B. Mukerji, J. - (1.) THIS is a reference by the learned Sessions Judge of Bulandshahr recommending that an acquittal made by the Magistrate beset aside.
(2.) THE facts giving rise to this reference briefly were these. The Municipal Board of Bulandshahr made certain bye -laws under the provisions of Section 298H(m) of the Municipalities Act whereby they said that no one could use loudspeakers or other electrically or mechanically operated means of producing loud noise whether stationery or fitted to motor lorries or other moving vehicles within the limits of Bulandshahr municipality without permission to use such loudspeakers. The bye -laws prescribed scale of fees for obtaining the permission. The opposite parties indulged in advertising cinema films with the aid of loudspeakers within the municipal limits of the town of Bulandshahr without obtaining the necessary permission as required under the bye -laws framed by the Municipality. The learned Magistrate acquitted the opposite parties on grounds which do not appear at all sound. The learned Judge who had made the reference has characterised the learned Magistrate's reasoning as 'hair -splitting'. I must say that the reasoning of the Magistrate did perilously border on hair -splitting. There would have been little difficulty in setting aside the order of the learned Magistrate on the merits but there is a very serious difficulty in the way of setting aside that order in this reference. And the difficulty arises because of the provisions of Sub -section (5) of Section 439, Code of Criminal Procedure which is in these words: Where under this Code an appeal lies and no appeal is brought, no proceedings by wav of revision shall be entertained at the instance of the party which could have appealed.
(3.) SECTION 417, Code of Criminal Procedure has undergone an amendment and by Sub -section (3) of that section a complainant has been granted a right of appeal against an acquittal though that right of appeal is not as wide a right as has been accorded to the State for Sub -section (3) of Section 417 is in these words: If such an order of acquittal is passed in any case instituted upon complaint and the High Court on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquirable, the complainant may present such an appeal to the High Court.;