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TMI Blog1958 (6) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be set aside. This reference is opposed by the learned Government Pleader on the ground that under Section 439 revision proceedings are incompetent at the instance of a private party in view of Sub-section (5) of Section 439. In case it is held that such a revision under Section 439 is incompetent the reference will have to be rejected. The learned Counsel appearing for the opponent Purushottamdas has supported the objection of the learned Government Pleader. 2. This question was also raised before the learned Session Judge and he has dealt with it in paragraph 6 of his order. The learned Sessions Judge has taken the view that Section 417, Criminal Procedure Code, regulates the procedure of appeal against acquittal and differentiates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained at the instance of the party who could have appealed. (6) ***** What Sub-section (5) of Section 439 provides is 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. What has, therefore, to be considered is whether an appeal lies i the instant case and whether the complainant (opponent) could have filed such appeal. If it can be held that an appeal lies at the instance of a private party in a case of a type before me, necessarily it will have to be held that this revision is not competent. 4. Chapter 31 of the Criminal Procedure Code deals with appeals. Section 417 provides: 417. (1) Subject to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... piry of sixty days from the date of the order of acquittal. Thus it is possible for a complainant to present an appeal to the High Court if he has obtained special leave as provided in Sub-section 93) of Section 417. It cannot, therefore, be said that an appeal does not lie to the High Court. If an appeal against the acquittal at the instance of a private party did not lie to the High Court, then at no stage and by no procedure it should be possible for the High Court to interfere with the order of acquittal in an appeal at the instance of a private party. Sub-section (3) does provide for an appeal at the instance of a private party against the order of acquittal, and, therefore, it can be said that an appeal lies against the order of acqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It cannot be said that an appeal could not lie. He has not applied for special leave and the same has not been rejected. Such provisions for taking permission or obtaining certificate of fitness before an appeal can be presented are found in case of appeals to the Supreme Court under the Constitution or in case of letters patent appeals under the Letters Patent. In all these cases appeal lies to the proper superior court but only after obtaining permission or obtaining certificate of fitness. Ii is because a party has got such a right of appeal that he is allowed to apply for leave to appeal. Such provisions of obtaining prior leave before presenting an appeal by themselves connote that the party has a right of appeal and obtaining of permi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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