Decided on July 27,1960



S.K.Sen, J. - (1.) In connection with this appeal against acquittal, there is a preliminary objection by the learned Advocate for the respondents that the complainant was a private person, Monmathanath Halder, and that he did not file the appeal under Section 417 (3) of the Criminal Procedure Code, but after his death his sons obtained leave and filed the appeal, and that such an appeal is not maintainable. Section 417 (3) provides that if an order of acquittal is passed in any case instituted upon a complaint, and the High Court on an application made to it by the complainant in this behalf grants special leave to appeal from the orders of acquittal, the complainant may present such an appeal to the High Court. There is no provision for substitution in the Criminal Procudure Code; and the term 'complainant' as used in Sub-section (3) of Section 417 of the Code cannot be interpreted to include the successors-in-interest of the complainant. Section 404 of the Code provides that no appeal shall lie from any judgment or an order of a Criminal Court except as provided by this Code or by any other law for the time being in force. Section 431 of the Code provides for abatement of an appeal, and an appeal under Section 417 abates on the death of the accused. On the death of the complainant such an appeal would not abate. If the complainant had obtained leave of the High Court and filed an appeal against the acquittal, then on his death before the appeal has been heard the appeal would not abate; but it would appear that if the complainant died before he could obtain leave of the Court and file an appeal against the acquittal, the appeal would not be maintainable at the instance of his son. The learned Advocate for the appellant has urged that as the wrong done was an offence against property, the heirs can also maintain an appeal, and that the appeal would not be maintainable only if the complainant had been personally injured. But the terms of Section 417 (3) must be strictly interpreted, and therefore, I must agree with the learned Advocate for the respondent that the appeal is not maintainable.
(2.) The learned Advocate for the appellants has urged that in the alternative the petition of appeal may be treated as a revisional application. A petition of appeal is not equivalent to a revisional application but under Section 439 of the Code of Criminal Procedure, if any case conies to the knowledge of the High Court in any way whatever, the High Court can exercise powers of revision. Therefore, I have heard the learned Advocates of both sides as a revisional Court, that is, in exercise of the jurisdiction of this Court under Section 439 of the Criminal Procedure Code.
(3.) The case of the complainant Monmathanath Halder was briefly as follows: C. S. Plots 189 and '190 of mouza Tatuagari, P. S. Diamond Harbour, was purchased y the complainant in the name of his sons and C. S. plot 257 of the same mouza was purchased by the complainant at an execution sale and thereafter, the complainant was growing paddy on the plots and in 1365 B. S. also the crops were grown by the labourers of the complainant. But on 8th Agrahayan 1365 B. S. corresponding to 24th November 1958, after the paddy had been reaped and stacked on the land by the complainant's men, the accused persons wrongfully removed the paddy to their own houses.;

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