The State's failure to appeal against an acquittal order bars it from seeking revision of the order under Section 439(5) of the Criminal Procedure Code, and the Sessions Judge's reference to the High Court cannot override this bar.

Narayan, J.

1. This is a reference by the Third Additional Sessions Judge, Patna, recommending that an order of acquittal passed by Mr. S. M. Ozair, Judicial Magistrate, Dinapur, in a case under Sec.144, Penal Code be set aside.

2. The occurrence giving rise to the case had taken place on 11-5-1950 at a place called Bikram Hat near Bikram police station. Several persons were found shouting and brandishing their weapons and on hearing the shouts the officer in charge of the Bikram police station went to the spot and ordered them to disperse. This order was disobeyed, and the ring-leaders were arrested. Fourteen persons were put on trial under Sec.144, Penal Code, and on 27-12-1950 a petition was filed by the Assistant Public Prosecutor praying that the case be split up and there be two separate trials each directed against one set of accused persons who formed one party. This application was rejected by the learned Magistrate. But on 6-4-1951 the learned Magistrate acquitted the accused persons on the ground that their joint trial was illegal. The learned Sessions Judge has recommended that the order of acquittal be set aside, firstly, on the ground that the learned Magistrate should not have rejected the Assistant Public Prosecutors prayer for the splitting of the case into two parts on 27-12-1950, and, secondly, on the ground that there is no find- ing by the learned Magistrate to the effect that the accused are not guilty.

3. It is true that though the learned Magistrate refused to accede to the prayer of the Assistant Public Prosecutor for splitting up the case in December, 1950, in April 1951 he acquitted the accused persons on the ground that a joint trial of all of them was not permissible. The question which arises for our consideration, therefore, is whether in the circumstances this is a fit case in which we should exercise our revisional jurisdiction.

Before I discuss the question of law which has been canvassed before us, I should like to point out that the state have not been quite vigilant so far as this case is concerned. If the order dated 27-12-1950 was not a proper order, and prima facie it does appear that that order was not a proper order, then it was certainly open to the state to move the higher Courts against that order. Even against the final order which was passed by the learned Magistrate on 6-4-1951 the Sessions Judge could not be moved by the State before 3-8-1951. I have already stated that the occurrence had taken place on 11-5-1950. Though several persons arrayed on two opposite sides had been seen brandishing weapons in Bikram Hat, there was no assault, and therefore the only section of the Indian Penal Code under which those persons were prosecuted was Sec.144. If the State was very kesji for bringing to bock the "persons who had constituted the unlawful assembly, they should have acted quite promptly, and apart from what I have pointed out above, it was open to the State to file an appeal against the acquittal that was recorded by the learned Magistrate on 6-4-1951.

No appeal was preferred by the State, and there was considerable delay in moving the learned Sessions Judge against the order of acquittal. Because there was no appeal preferred against the order cf acquittal, Sub-section (5) of Sec. 439 would come into operation, and this sub-section lays down 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.

The learned Standing Counsel submitted a fair argument in the case, and he conceded that the State being a party it ought to have appealed against the order of acquittal passed by the learned Magistrate on 6-4-1951. But the learned Standing Counsel submitted that Sub-section (5) would not operate as a bar in this case because there has been a reference or a recommendation by the Additional Sessions Judge. In my opinion, it makes no difference if our revisional