Statutory appeal with special leave bars revision where the complainant bypasses the appellate remedy after acquittal.

Where a complainant in a complaint case has a statutory route to appeal against acquittal with special leave, revision under Section 439 of the Code of Criminal Procedure cannot be used as a substitute for that appellate remedy. Section 417 recognises the availability of an appeal by the complainant subject to obtaining leave, and that availability brings the case within the bar in Section 439(5) against revision by a party who could have appealed. Because the complainant did not seek the required leave to appeal, the revisional application was held incompetent and the reference was rejected.

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Issues: Whether a complainant, in a case instituted upon complaint, can invoke revision under Section 439 of the Code of Criminal Procedure when a special-leave appeal against acquittal under Section 417 is available but has not been pursued.

Analysis: Section 417 of the Code of Criminal Procedure permits the State Government to appeal against acquittal and also enables a complainant, in a complaint case, to seek special leave to appeal and then present the appeal. The availability of special leave means that an appeal lies in such cases, even though leave is a procedural prerequisite before the appeal can be presented. Section 439(5) bars revision at the instance of a party who could have appealed, and that bar cannot be defeated by bypassing the appellate remedy. Since the complainant did not seek the requisite leave to appeal, revision was incompetent.

Conclusion: The revision at the instance of the complainant was not maintainable and the reference was rejected.

Final Conclusion: The decision affirms that where a statutory appeal is available subject to special leave, the revisional jurisdiction cannot be used as a substitute for that appellate remedy.

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