Subsection (5) of Section 439 of the Criminal Procedure Code bars revision proceedings at the instance of a party who could have appealed, including the State in police cases.

R. L. NARASIMHAM, C. J.

( 1 ) THIS is a reference by the Sessions Judge of Koraput-Jeypore-recommending the setting aside of an order of acquittal passed by (1) Sri B. C. Mohanty, stationary Sub-Magistrate of Gunupur in G. R. Case No. 77 of 1956 and (2) Sri P. Jena, Stationary Sub-Magistrate of Nowrangpur in G. R. Case No. 313 of 1956.

( 2 ) G. R. Case No. 77 of 1956 in the Court of the Stationary Sub-Magistrate of gunupur against opposite party Kengua Lachman Murty was initiated on the basis of a charge sheet submitted by the Officer-in-charge of Gunupur P. S. under sections 279 and 338 of the Indian Penal Code. The allegation was that on the 145- 1956 the opposite party drove his cycle in a rash and negligent manner and ran over one Trinath Bouri (P. W. 2) and thereby fractured his leg. The trying Magistrate of Gunupur, on 6-8-1956 allowed the offence under Section 338, Indian Penal Code to be compounded and acquitted the accused of that offence, under Section 345 (1) of the Criminal Procedure Code. He dropped the charge under Section 279, Indian Penal Code observing that where grievous hurt is caused by the rash and negligent act of a person he will be guilty only under section 338 Indian Penal Code, and not under both Sections 338 and 279 Indian penal Code. In G. R. Case No. 313 of 1956 also, the facts were very similar, opposite party Dayadam Bhanja was prosecuted under Sections 279 and 337 of the Indian Penal Code on the allegation that by driving his cycle rashly and negligently on a public road he caused injury to one Brahman. The trying magistrate of Nawrangpur allowed the parties to compound the offence under section 337 and acquitted the accused of that offence under Section 345 of the criminal Procedure Code. He further observed that there can be no separate charge under Section 279, Indian Penal Code inasmuch as that offence merged with the offence under Section 337 Indian Penal Code.

( 3 ) THE State of Orissa represented by the Public Prosecutor of Koraput, filed two revisions before the Sessions Judge of Koraput-Jeypore, challenging the view taken by the two magistrates of Gunupur and Nowrangpur regarding the non-maintainability of the charge under Section 279 Indian Penal Code when there is another charge for an offence under Section 337 or 338, Indian Penal Code. It was conceded by the learned Public Prosecutor before the learned Sessions Judge that the orders of the two Magistrates amounted to an acquittal of the two accused persons of the charge under Section 279 I. P. C. though there is no express order of acquittal in the judgments of the two magistrates.

( 4 ) THE learned Sessions Judge, after referring to some decisions on the subject, has recommended the reversal of the order of acquittal and re-trial of the accused persons under Section 279 Indian Penal Code.

( 5 ) MR. Roy on behalf of the opposite parties Raised a preliminary objection to the maintainability of this revision petition. He urged that the two cases were police cases, that the State was entitled to file a regular ' appeal against the orders of acquittal as permitted by Section 417 of the Criminal Procedure Code and that no revision at the instance of the State would lie for reversing those orders of acquittal in view of the express bar imposed by Sub-section (5) of Section 439 of the Criminal Procedure Code. This preliminary point was fully argued by the learned Government Advocate for the State and by Mr. Roy for the opposite parties and I am grateful to them for fairly placing the entire case law on the subject.

( 6 ) THE question for decision is whether in police cases ending in acquittal by the trying magistrate, if the State omits to file a regular appeal under Section 417 criminal Procedure Code, it can move the High Court through the Sessions Judge to reverse the order of acquittal in exercise of its revisional jurisdiction. Subsection (5) of Section 439, Cr. P. C. is very clear on the subject. It says that where under this C