ORDER : The opponent Purushottamdas son of Kanhayalal was prosecuted for offences under sections 93 (1) and 98 (1) of the C. P. and Berar Municipalities Act. The trial Court acquitted the accused. Thereafter the Municipal Committee, Warud, through its prosecutor filed an application under S. 435, Criminal Procedure Code, to the Court of Sessions Judge, Amravati. The learned Sessions Judge after having called for the record has recommended that under Sec. 439, Criminal Procedure Code, the acquittal of the accused should he set aside. This reference is opposed by the learned Government Pleader on the ground that under Sec. 439 revision proceedings are incompetent at the instance of a private party in view of sub-sec, (5) of Sec. 439. In case it is held that such a revision under Sec. 439 is incompetent the reference will have to be rejected. The learned Counsel appearing for the opponent Purushottamdas has supported the objection of the learned Government Pleader.

(2) This question was also raised before the learned Sessions Judge and he has dealt with it in paragraph 6 of his order. The learned Sessions Judge has taken the view that Sec. 417, Criminal Procedure Code, regulates the procedure1 of appeal against acquittal and differentiates between the procedure to be followed by the State Government and a private party, that under Sec. 417 a private party challenging an acquittal has to obtain special leave to appeal and that an appeal lies only if such leave is granted. According to the learned Sessions Judge, Sec. 417 thus grants a discretionary right to a private complainant and that under sub-section (3) of section 417 what lies is not an appeal but an application for grant of special leave to appeal. In this view, the learned Sessions Judge has held that it cannot be said that an appeal lies

against an order of acquittal in terms of Sec. 439 in the case of a private complainant and therefore this contention which was presumably raised on behalf of the accused was rejected.

(3) Section 439, Criminal Procedure Code, provides :

439. (1) In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence; and when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by Sec. 429.

(2) * * *

(3) * * *

(4) * * *

(5) where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.

(6) * * *"

What sub-section (5) of Sec. 439 provides is that where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. What has, therefore, to be considered is whether an appeal lies in the instant case and whether the complainant (opponent) could have filed such appeal. If it can be held that an appeal lies at the instance of a private party in a case of a type before me, necessarily it will have to be held that this revision is not competent.

(4) Chapter 31 of the Criminal Procedure Code deals with appeals. Section 417 provides:

"417. (1) Subject to the provisions of sub-s. (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.

(2) x x x x

(3) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(4) No application under sub-s. (3)

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