Revision barred where appeal lay; revisional enhancement of sentence was held without jurisdiction and the fine order stood.

Revision by a complainant to seek enhancement of sentence was barred where an appeal lay under the Code of Criminal Procedure, 1973, because Section 401(4) precludes revision by a party who could have appealed. A revisional order passed in breach of that bar was without jurisdiction and unsustainable. On sentence, the magistrate's decision to impose only fine was upheld, the court noting the prolonged prosecution and the absence of specific proof of the duty leviable on the excisable goods, which was relevant to punishment under the Central Excises and Salt Act, 1944. The original sentence order therefore remained intact.

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Issues: Whether the complainant's revision seeking enhancement of sentence was maintainable when an appeal lay under the Code of Criminal Procedure, 1973, and whether the revisional order could survive when the magistrate had imposed only fine in view of the prolonged proceedings and absence of proof of the duty leviable on the goods.

Analysis: Section 401(4) of the Code of Criminal Procedure, 1973 bars revision at the instance of a party who could have appealed. The revisional court, therefore, could not entertain the complainant's challenge to the sentence once the statute provided an appellate remedy. An order passed in such a barred revision is without jurisdiction. On sentence, the magistrate had taken note of the long delay in prosecution and had awarded fine. The judgment also records that, for offences under Section 9(1)(bb) and Section 9(1)(bbb) of the Central Excises and Salt Act, 1944, the prosecuting agency was required to place the duty leviable on the excisable goods, especially because the severity of punishment depends upon that figure. In the present case, the duty evaded was not specifically shown.

Conclusion: The revisional order was not sustainable and was liable to be set aside. The magistrate's order imposing fine was upheld.

Final Conclusion: The challenge to the revisional order succeeded, and the original sentence order remained intact.

Ratio Decidendi: Where an appeal lies, revision at the instance of the party who could have appealed is barred and any revisional order passed in breach of that bar is without jurisdiction.

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