P.D. Raian. J.

This Revision petition is preferred by the defacto complainant against the judgments in Crl. Appeal No.670 of 2004, 741 of 2004 and 749 of 2004 of the Sessions Court, Kozhikode. The accused were charge sheeted by the Judicial First Class Magistrate, Payyoli under Sections 143, 147, 447, 427 r/w 149 IPC. The charge against the accused is that on 6.2.1996, after 12 O'clock in the night, the accused, along with 75 unidentified persons formed themselves into an unlawful assembly and in furtherance : of their common object, trespassed into the property owned by the brother of the revision petitioner, committed rioting and demolished the compound wall and thereby sustained a loss of Rs.50,000/-. In this incident, Payyoli police registered a case and after completing investigation, SHO, Payyoli laid a final report before Judicial First Class Magistrate, Payyoli. A2 is absconding, therefore his case was split up and refiled.

2. During trial, prosecution examined PW1 to PW6 and marked Exts.P1 to P12 as documentary evidence. The incriminating circumstances brought out in evidence were denied by die accused while questioning them. They did not adduce any defence evidence. The learned Magistrate convicted the accused and sentenced A1, A3 to A7 to simple imprisonment for two months each under section 143 r/w. Section 149 IPC, rigorous imprisonment for eight months and fine of Rs. 1000/- each, with a default sentence of simple imprisonment for three months each under section 147 r/w Section 149 IPC, rigorous imprisonment for one year and fine of Rs.2000/- each with a default sentence of simple imprisonment for four months under section 427 r/w Section 149 IPC, simple imprisonment for one month each under section 447 r/w Section 149 IPC, If the fine amount is realised, it was directed to pay Rs. 10,000/- to PW1 by way of compensation under section 357(1) Cr.P.C. Against that accused preferred Crl. Appeal Nos.670/2004, 741/2004 and 749/2004 and the learned Sessions Judge, Kozhikode modified the sentence of the trial court. Being aggrieved by that, the defacto complainant preferred this revision.

3. The main contention advanced by the learned counsel appearing for the revision petitioner is that the appellate court reduced the sentence of imprisonment to simple imprisonment till rising of court, which is illegal, hence the sentence has to be enhanced. The brother of the revision petitioner sustained heavy loss in the above incident and he is entitled to get reasonable amount of compensation, which was not considered by the trial court and appellate court. He also contended that Section 397 and 401 Cr.P.C empowers the defacto complainant to file a revision petition to rectify that illegality.

4. In reply to the above contention, the learned counsel appearing for the respondents 1 to 6 contended that the appellate court already modified the sentence and rightly decided the case, hence a revision by third party to enhance the sentence is not maintainable.

5. Now the question is that when the state Government failed to prefer an appeal for enhancement of sentence, it precludes the defacto complainant from exercising the power of revision. Appeal by state Government against sentence has been explained under Section 377 of die Code of Criminal Procedure (Code hereinafter) which reads as follows

"377. Appeal by the State Government against sentence - (1) Save as otherwise provided in sub- section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present (an appeal against the sentence on the ground of its inadequacy -

(a) to the Court of session, i f the sentence is passed by the Magistrate; and

(b) to the High Court, if the sentence is passed by any other Court.

(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 19