The main legal point established in the judgment is the determination of the right of appeal and revision under the Code of Criminal Procedure and the Probation of Offenders Act, 1958, and the court's authority to order a retrial in cases of miscarriage of justice.

( 1 ) SIX accused respondents herein faced a session's trial on charges under Ss. 148, 302/149, 302/34 and 323/34 I. P. C. The allegations made against them were that while Parimal Ghosh, Krishna Ghosh, Biren Pramanick, Gopinath Ghosh and Nitya Ghosh after watching their cultivation on a piece of Char land were taking rest in a boat anchored in river Bhaghirathi close to village Malinipara, P S. Beldanga, Districst-Murshidabad, the respondents formed themselves into an unlawful assembly with the common object of making murderous assault on the aforesaid persons, equipped themselves with deadly weapons locally known as Pattangi, Jabha etc and attacked the above named persons in the boat aforesaid soon after midnight between 24th and 25th April, 1980 Nitya Ghosh and Gopinath Ghosh succumbed to their injuries within a few hours of receiving them. After considering the evidence adduced, the learned Additional Sessions Judge 4the Court, Murshidabad, by his judgment dated 24. 8. 81 found the accused respondents guilty of the offences under Ss. 148 and 304 (Part II) read with S. 149 I. P. C. for killing Nitya Ghosh and again under S. 304 (Part II) read with S 1498 I. P. C. For killing Gopinath Ghosh. He, however, acquitted them of the charges under 302/149, 302/34 IPC and 323/34 IPC. The learned Judge fixed the next day, that is, 25. 8. 81 for hearing the accused in the matter of sentence as required under S. 235 (2) of the Cr. P (c) (hereinafter to be referred to as the Code ). By his order dated 25-8-81 the learned Judge released the accused respondent Krishna Ghosh on probation under S. 360 of the Code and proposed to release other accused on probation under S. 4 of the Probation of Offenders Act, 1958 (hereinafter to be referred to as the Act) subject to receipt of Probation Officer's report regarding them.

( 2 ) PARIMAL Ghosh the informant and P. W. 1 has filed Criminal Appeal No 352 of 1981 under S. 11 (2) of the Act challenging the propriety of the orders of the learned Additional Sessions judge. He has also filed two Revision applications under S. 397 read with S. 401 of the Code numbered as Criminal Revision Petitions 2177 and 2178 of 1981 questioning the propriety of the findings of the learned Additional Sessions Judge and the orders passed by him. The appeal and the revsisional applications are taken up for analogous hearing as common questions of law and fact were canvassed.

( 3 ) THE first question which confronts us is whether or not a revision application lies when an order has been passed under S. 360 of the Code and S. 4 of the Act. The second question confronting us is if a revisional application does not lie, them who will file the appeal? More precisely, has the informant (de facto complainant) and right of an appeal under S. 11 of the Act?

( 4 ) BEFORE we proceed to answer the questions posed we should give an indication as to the line of arguments advanced by Mr. Bagcvhi, the learned advocate for the appellant / Petitioner. He reads out to us the judgment assailed and portions of evidence to contend that the time, place and circumstances and portions of evidence to contend that the time, place and circumstances of the occurrence clearly established planned and willful murders to attract S. 302 I. P. C. His further argument is that the accused respondents should properly have been convicted of offences under S. 302 read with S. 149 I. P. C. Mr. Bagchi contends that in any event the learned judge was wrong in finding the accused guilty of offences under S. 304 (Part II) read with S. 149-I P C. When he himself observed "from the nature of the instrument used by them and the vital parts of the bodily of Nitya Ghosh where they drove the instrument, it could be inferred that them had the intention of causing such bodily injury as was sufficient in the ordinary course of nature to cause death. " Mr. Bagchi argues that taking a view most favorable to the accused respondents they could not escape c