Statutory appeal bars revision against acquittal in private complaint cases, and the appeal right covers appellate acquittals too.

Where a complainant in a private complaint case has a statutory right of appeal against acquittal under Section 417(3) of the Criminal Procedure Code, revisional jurisdiction cannot be used as a substitute. Section 439(5) bars revision when an appeal lies and has not been brought by the party entitled to appeal. The expression "such an order of acquittal" in Section 417(3) is read to include both an original acquittal and an appellate acquittal by a court other than the High Court. The complainant must therefore pursue the statutory appeal, including special leave where required, rather than bypass that remedy in revision.

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Issues: Whether a complainant could maintain a revision against an acquittal when an appeal lay under Section 417(3) of the Criminal Procedure Code and no such appeal had been brought, and whether the expression "such an order of acquittal" in Section 417(3) covered an appellate acquittal by the Sessions Court.

Analysis: Section 439(5) bars revision where an appeal lies and is not brought by the party who could have appealed. In a case instituted on a private complaint, the complainant's remedy against an acquittal is an appeal under Section 417(3) with special leave. The expression "such an order of acquittal" in Section 417(3) refers back to the acquittal described in Section 417(1) and therefore includes an original as well as an appellate order of acquittal passed by any court other than the High Court. The complainant therefore ought to have pursued the statutory appeal and could not bypass that remedy by revision. No ground was shown for the Court to invoke suo motu extraordinary jurisdiction.

Conclusion: The revision was not maintainable and the application failed.

Ratio Decidendi: Where a statutory appeal lies from an acquittal in a complaint case, the complainant cannot invoke revisional jurisdiction instead, and the right of appeal under Section 417(3) extends to an appellate acquittal as well as an original acquittal.

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