( 1 ) THIS application In revision is directed against an order of acquittal presumably passed under sec. 247 of the Criminal Procedure Code by Shri K. H. Damani City Magistrate 7 Court Ahmedabad In Criminal Case No. 1554 of 1966 on the ground that the complainant was not present when called out.

( 2 ) ON 30th September 1966 the petitioner had filed a complaint in the Court of the learned Magistrate against the opponents inter alia alleging that they had committed offences punishable under secs. 323-504 read with sec. 114 of the Indian Penal Code. The process was directed to be issued by the learned Magistrate on 30-9-66 in respect of an offence under sec. 323 of the Indian Penal Code. The procedure contemplated under Chapter XX of the Criminal Procedure Code In respect of trial of summons cases by Magistrates was followed in the case. The evidence of the complainant was recorded and then the matter had come to be adjourned to 27th December 1966. On that day the complainant was absent and his learned advocate presented an application for an adjournment on the ground that the complainant and his witnesses were not able to remain present in Court. The learned Magistrate passed an order rejected. In consequence as the complainant was absent he dismissed the complaint and ordered the acquittal of the accused. The order of acquittal obviously was one not on merits but was under sec. 247 of the Criminal Procedure Code.

( 3 ) A preliminary point was raised by Mr. Thakore the learned advocate for the opponents Nos. 1 1o 4 that no application in revision can lie having regard to sec. 439 sub-sec. (5) of the Criminal Procedure Code as according to him an appeal against any such order of acquittal even in a private complaint has been provided for under sub-sec. (3) of sec. 417 of the Criminal Procedure Code. Sec. 417 provides for appeals In cases of acquittal. Sub-sec. (1) thereof relates to the right of the State Government to 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. Then sub-sec. (3) thereof runs thus :417 (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 complaint in this behalf grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court. Sub-sec. (4) then says that no application under sub-sec. (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. Then comes sub-sec. (5) which says that if in any case the application under sub-sec. (3) for the grant of special leave to appeal from an order of acquittal is refused no appeal from that order of acquittal shall lie under sub-sec. (1 ). In this context we have to refer to sec. 439 which contemplates the powers of revision of the High Court. Sub-sec. (5) thereof says 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 Thus reading sub-sec. (3) of sec. 417 and sub-sec. (5) of sec. 439 of the Criminal Procedure Code together it appears abundantly clear that in any case instituted upon complaint and in which an order of acquittal is passed by the Court an application has to be made by the complainant for obtaining special leave to appeal against the order of acquittal from the High Court and it is on the leave being granted that the complainant may present such an appeal to the High Court. In other words while an appeal is provided in respect of any such complaint in which an order of acquittal is passed by the Court of the Magistrate but that has to be subject to his obtaining the leave from the High Court. That is by way of a safeguard or check put on any such ap