The main legal point established is that the interpretation of the right of appeal and special leave is crucial in determining the entertainability of a revision, especially in cases where an appeal against acquittal could have been sought with special leave.

1. Does an appeal lie under the Code of Criminal Procedure 1973 against an order of acquittal is a case instituted upon complaint? On the answer to this question depends the fate of this revision. If an appeal lies, no appeal having been brought the prohibition under S.401(4) of the Code of Criminal Procedure that no proceeding by way of revision shall be entertained at the instance of the party who could have appealed, will operate as a bar against this revision. Under Sub-section (4) of S.378 of the Code of Criminal Procedure, the High Court, on an application made by the complainant for special leave against an order of acquittal passed in a case instituted on complaint may grant special leave to appeal. On such special leave being granted the complainant may present such appeal to the High Court. Where, against an order of acquittal, the complainant does not seek special leave to appeal to the High Court but files a revision under S.397 of the Code of Criminal Procedure to the Court of Sessions is the revision barred by reason of sub-s. (4) of S.401 of the Code? That is the question I am called upon to answer here.

2. Without the aid of any precedents and on the plain language of sub-section (4) of S.401, I am inclined to say that an appeal does lie against an order of acquittal in any case instituted upon complaint. Of course an appeal lies only when special leave is obtained. The requirement that the complainant has to seek special leave and only if it is granted he can present the appeal, does not, according to me, mean that no appeal lies against the order of acquittal. Appeal does lie, but subject to special leave. The contention of the complainant that appeal must lie as a matter of right in order to attract the bar of S.401 (4) of the Code is, as observed by the High Court of Allahabad in City Board Mussorie v. Sri. Kishun Lal (AIR. 1959 Allahabad 413), to read in place of the words, "where under this Code an appeal lies" the words 'where under the Code an appeal lies as a matter of right'. The High Court of Madras has in the decision reported in Municipal Commr. Nagercoil v. Annapakkiyam (1967 Crl. L. J. 898) expressed the same view. That leave has to be obtained before an appeal is filed does not amount to saying that there is no right of appeal is the view expressed by many of the High Courts of India. The High Court of Allahabad in the decisions in Ram Narain v. Mool Chand (AIR. 1960 Allahabad 296) has expressed this view. The same view has been expressed by the High Court of Assam in Abdul Majid v. Adai (1970 Crl. L. J. 950), the High Court of Bombay in the decision reported in State of Bombay v. Tayawade (AIR. 1959 Bombay 94), the Gujarat High Court in the decision in Sankalchand v. Khengaram (AIR. 1969 Gujarat 342) and the High Court of Madras in In re Seeni Ammal (AIR. 1960 Mad. 573), Municipal Commissioner, Nagercoil v. Chinnammal (1966 Crl. L. J. 1461), and in the later decision in Municipal Commissioner, Nagercoil v. Annapappiyam (1967 Crl. L. J. 898), already adverted to. The mere fact that right of appeal is made subject to obtaining leave makes no difference is the view expressed by the decision of the Orissa High Court in Dukhishyam Sahu v. Bidyadhar Sahu (AIR. 1966 Orissa 45). Relying on the decision of the Allahabad High Court in City Board Mussorie v. Sri. Kishan Lal (AIR. 1959 All. 413), that of the Bombay High Court in State of Bombay v. Tayawade (AIR. 1959 Bombay 94) and that of the Punjab High Court in Shiv Prashad v. Bhagwan Das (AIR. 1958 Punjab 228) the same view was expressed in Chairman, Village-Panchayath Nagathihalli v. N. Thimmasetty (AIR. 1956 Mysore 62). This Court had in the decision in Antony v. Ibrahimkutty (I960 KLT. 481) expressed the same view and Chief Justice Sankaran expressed the view where an appeal could be filed by a complainant in a private complaint and he has not sought to file an appeal, a revision at his instance would not be entertainable.

3. I may notice