( 1 ) THIS is a reference made by the Additional District Magistrate (Judicial), Rae Bareli, recommending that the order of dismissal dated the 4th of October, 1958, passed by a sub-divisional Magistrate in a complaint case be set aside.

( 2 ) THE facts of the case which led to this reference are as follows : one Ram Narain filed a complaint in the court of the Sub-divisional Magistrate, Dalmau, Raa bareli, against the five opposite parties alleging that they had contravened the provisions of the child Marriage Restraint Act. It was alleged that Ram Kumar, opposite party No. 4, who is the son of Kali Babu, opposite party No. 2, was married to Shrimati Rajeshwari alias Gogee, opposite party No. 5, who is the daughter of Mool Chand, opposite party No. 1. It was further alleged in this complaint that both Shrimati Rajeshwari and Ram Kumar were about 14 years of age at the time of marriage and the remaining three opposite parties celebrated this marriage in contravention of the provisions of the Child Marriage Restraint Act. The complaint was filed in the month of June 1958 and the opposite parties were served on the 12th of September, 1958. The next hearing fixed in the case was the 4th of October, 1958, and when the case was called the complainant was absent and so the complaint was dismissed for default under Section 247 Cr. P. Code. It is, however, apparent from the record that the witnesses summoned by the complainant were present and the complainant himself appeared before the court shortly after wards and paid the diet money to the witnesses at the orders of the Court.

( 3 ) THE complainant felt aggrieved against this order of dismissal of his complaint and he went up in revision under Section 435, Cr. P, Code before the District Magistrate, Rae Bareli. In his grounds of revision the complainant contended that he and his counsel were present in the court on the date fixed, but as the complainant suffered from hernia, ho suddenly got an attack outside the court and so when the case was called in the beginning of the day, the complainant and his counsel could not attend the court. It was alleged that due to this attack the complainant could not even call his counsel and so there was no one to represent him before the Magistrate and tell him the reason for the absence of the complainant. Another point stressed by him was that the dismissal of the complaint in the early hours of the day was improper. It was then mentioned in this application of revision that because this order of dismissal was tantamount to an acquittal under Section 247 Cr. P. Code, the complainant had no other remedy but to file this application of revision.

( 4 ) THIS revision was heard by the Additional District Magistrate (Judicial), Rae Bareli, and he came to the conclusion that the order passed by the Magistrate was illegal and improper. He, therefore, made a reference for setting it aside.

( 5 ) WHEN I heard this reference the counsel for the opposite parties advanced two contentions before me on the basis of which he contended that this reference cannot be accepted. In the first place he contended that there was no impropriety or illegality in the order passed by the sub-Divisional Magistrate and, therefore, the order of acquittal should not be disturbed. Secondly, he contended that under the amended provisions of the Code of Criminal Procedure, a right to appeal has been given to a complainant and if the complainant was aggrieved he should have approached the High Court and filed an appeal under Section 417 (3) Cr. P. Code. The revision filed by him was not entertain-able in view of the express provisions of Section 439 (5) Cr. P. Code. The Additional District Magistrate was, therefore, incompetent to entertain this revision and the reference made by him is illegal, as he had no jurisdiction to make such a reference.

( 6 ) THE counsel for the complainant on the other hand contended that Section 439 (5) is not a bar to the filing of an