(1.) THE point of law which arises for determination in this revision petition may be formulated in the following terms:
(2.) THE facts giving rise to the petition may now be briefly surveyed. Anokh Singh, Petitioner filed a complaint under Sections 406, 419, 420, Indian Penal Code, against one Baggu, his wife Smt. Kartar Kaur and his son Mitu. After recording the preliminary evidence and on a prima facie case having been made out, the Respondents were summoned under Section 420, Indian Penal Code. Thereafter the evidence was recorded in the presence of the accused -Respondents and a charge under Section 420, Indian Penal Code, was duly framed. It appears that the evidence of the parties having been concluded the case was fixed for arguments before the learned Magistrate for the 30th of July, 1966. On the said date the Petitioner -complainant could not appear and the learned Chief Judicial Magistrate then proceeded to pass the following order:
(3.) MR . B. S. Khoji in reply has contended that the authorities relied upon by the Petitioner's counsel are prior to the amendment of the Code of Criminal Procedure in 1955. It is submitted that it was only by the said amendment and by virtue of Section 417(3), Code of Criminal Procedure, that a private complainant was granted the right of appeal against acquittal in a case instituted on complaint. It is. therefore, argued that after the incorporation of this provision in the statute a private complainant is entitled to file an appeal against an order of acquittal and thus any revision preferred by him instead would be hit by the provisions of Section 439(5), Code of Criminal Procedure, Reliance was placed on a Division Bench authority of this Court reported as Shiv Parshad v. Bhagwan Das and Anr. : A.I.R. 1958 P&H 228, wherein it was held that in a case instituted on a complaint, an appeal against an order of acquittal therein at the instance of the private complainant is provided by Section 417(3) and if no appeal is preferred then Section 439(5) is a bar to the complainant having recourse to a revision petition. It is, however, noticeable that in the said case the acquittal was on merits after full consideration and not under Section 259, Code of Criminal Procedure. Two other authorities relied upon by Mr. Khoji are Single Bench decisions of the Orissa High Court in (1) The State v. Lachman Murty and Anr. : A.I.R. 1958 Ori 204 and (2) Dukhishyam Sahu v. Bidyadhar Sahu : A.I.R. 1966 Ori 45. In Lachman Murty's case : A.I.R. 1958 Ori 204, the prosecution had been instituted not by way of private complaint but upon a police report. The trying Magistrate had in two cases allowed the offences to be compounded under Section 345(1) and acquitted the accused persons. The State of Orissa instead of challenging the acquittal by way of appeal presented two revision petitions against the orders of acquittal. It was held that as the State had omitted to file a regular appeal under Section 417 it could not move the High Court through the Sessions Judge to reverse the order of acquittal in the exercise of its revisional jurisdiction under Section 439. The provisions of Sub -section (5) of Section 439 were invoked as a bar and the learned Chief Justice of that Court held that in such a case the High Court would be precluded from acting suo motu also. In Dukhishyam Sdhu's case : A.I.R. 1966 Ori 45 a similar view that Section 439(5) bars a revision where an appeal has not been preferred was expressed by R. K. Das, J. In both the above cases it is noticeable that the acquittal was not under Section 250, Code of Criminal Procedure. In Dukhishyam Sahu's case : A.I.R. 1966 Ori 45, the learned Judge had further observed as follows: