Jwala Prasad, J.@mdashThe petitioner Anwar Ali was prosecuted by the Chairman of the Deoghar Municipality under Sections 136(1) and 192 of the Bihar and Orissa Municipal Act; of 1922. He was tried by a Magistrate of the second class of Daoghar, who by his judgment, dated the 19th February 1926. acquitted the petitioner.
2. The Chairman of the Municipality moved the Commissioner of the Bhagalpur Division against the order of acquittal and the Commissioner by his order, dated the 23rd April 1926 sat aside the acquittal and directed re-trial of the petitioner.
3. Aggrieved by this order of the Commissioner the petitioner moved this Court u/s 439 of the Code of Criminal Procedure and obtained a rule by this Court on the 27th May 1926, which Tuns as follows:
The application will be heard by the Criminal Bench. Issue the usual notices. Let, further proceedings be stayed pending the disposal of this application.
4. Accordingly a letter of this Court, Memo No. 1477, Or A., dated the 27th May 1926, forwarding a copy, was addressed by the Assistant Registrar to the Commissioner of Bhagalpur enclosing copy of latter No. 1477, Cr. A., of the same date to the Deputy Commissioner of the Santal Parganas, calling upon the latter to submit the original record and to stay further proceedings, and requesting the Commissioner to forward the original record and proceeding in his own Court. In reply to this letter the Commissioner in his letter No. 98 J/V, dated the 1st June 1926, pointed out that he had dealt with the case u/s 439 of the Code of Criminal Procedure in the exercise of his power as the High Court of the Santal Parganas u/s 5(1)(ii)(b) of the Santal Parganas Justice Reg. V of 1893, and consequently the requisitions issued by the High Court ware issued by inadvertence. He also intimated that pending further orders of the Court, the record of the case has been withheld and the Deputy Commissioner has been asked not to take any action upon the order of this Court dated the 27th May 1926.
5. Considering the importance of the question raised by the Commissioner of Bhagalpur, the Government Advocate was asked to appear. The case was argued at great length on both sides. The complainant Chairman of Deoghar Municipality has also appeared in this case.
6. The first question is whether this Court had any power to pass the order of the 27th May 1926. In the application of the petitioner on the basis of which the aforesaid order was passed the petitioner prayed that the order of the Commissioner setting aside his acquittal and directing his re-trial be set aside was also prayed that the proceedings re, the trial of the petitioner started upon the basis of the order of the Commissioner be set aside. The Commissioner says that he passed the order in question as the High Court of the Santal Parganas u/s 40(1)(ii)(b) of the Santal Parganas Justice Reg. V of 1893. Section 4 of that Regulation says that the Code of Criminal Procedure of 1898 shall have effect in the Santal Parganas, subject to the modifications indicated in that section. The most important modification is the constitution of the Commissioner of Bhagalpur as the High Court for certain criminal cases in the Santal Parganas within the meaning of the term as defined in Section 4 of the Code of Criminal Procedure. The "High Court" in this section, leaving out the words with which we are not concerned, means the highest Court of Criminal appeal or revision for any local area; or where no such Court is established under any law for the time being in force, such officer as the Governor-General in Council may appoint in this behalf.
7. The High Court within the province of Bihar and Orissa known as the Patna High Court established in 1916 under the Letters Patent of that year is the highest Court of appeal in the civil and criminal matters and exercises revisional jurisdiction u/s 439 of the Code of Criminal Procedure. The jurisdiction of this Court is modified by the Santal Parganas Justice Reg. V of 1893 referred to by virtue of the definition of High Court with respect to the area called the Santal Parganas in that section, Clause 1 of that section defines the "High Court" (i) in reference to proceedings against European British subjects, or persons jointly charged with European British subjects, the High Court of Judicature at Fort William in Bengal (now in the province of Bihar and Orissa the High Court of Patna); and (ii) in reference to proceedings against other persons, (a) in cases tried by the Court of Session and in appeals u/s 417 from original or appellate orders of acquittal the High Court of Judicature at Fort William in Bengal; and (b) in other cases the Commissioner. Sub-clause (i) of Clause 1 applies only to cases against European British subjects and we are not concerned with that case. We are concerned with Sub-clause (ii) of Clause 1. In cases coming under that Sub-clause the High Court of Patna has jurisdiction in the area called the Santal Parganas. In cases not coming under that clause, in order words, in other kinds of cases, the High Court of the Santal Parganas is the Commissioner of Bhagalpur.
8. The question then is whether the present case comes under Clause (a) or Clause (b) of Sub-clause (ii). The present is a case of an accused person tried by the Sub-Deputy Magistrate of Deoghar for offences under the Bihar and Orissa Municipal Act which is in force in the Santal Parganas. The accused (petitioner) was acquitted by the Sub-Deputy Magistrate. The order of acquittal was appealable and was also revisable by the High Court u/s 439 of the Criminal P.C. An appeal against an acquittal is allowed only to Local Government and it lies only to a High Court. Any private person just like the complainant might invoke the revisional powers of the High Court to set aside an order of acquittal u/s 439 or the High Court may of its own motion set aside such an order. There was no appeal in the present case by the Local Government u/s 417. If there was an appeal it would have lain only to the High Court of Patna under Clause 1(ii)(a) of Section 4. The chairman of the Deoghar Municipality who was the complainant in the case applied to the Commissioner of Bhagalpur to set aside the order of acquittal in his capacity as the High Court of the Santal Parganas.
9. The learned Government Advocate contends that the matter dealt with by the Commissioner under 439 came under Clause 1(ii)(b) of Section 4. His contention is, that the High Court of Patna has only jurisdiction to deal with appeals u/s 417 against an order of acquittal and that it has no power to deal with such an order u/s 439 of the Criminal P.C. and that the Commissioner of Bhagalpur is the High Court in such matters. Mr. Yunus on behalf of the petitioner resists this contention of the learned Government Advocate and says that all matters connected with an order of acquittal, be it an appeal from that order or an application in revision, is excluded from the jurisdiction of the Commissioner of Bhagalpur and that the High Court of Judicature at Patna is the only authority competent to deal with such matters. He says that although the words used in Clause 1(ii) of Section 4 refer especially to appeals u/s 417, it includes also applications in revision u/s 439 of the Criminal P.C. In support of his contention he relies upon Section 439 of the Code which says that the High Court dealing with matters in revision under that section may exercise any of the powers conferred on a Court of appeal by Sections 423, 426, 427 and 428 or on a Court by Section 338, and he says that an order of acquittal can only be set aside by the High Court acting u/s 439 in the manner prescribed by Section 423 of the Criminal P.C., which deals with appeals.
10. Reference has also been made to the provision in Section 423(1) which says that in dealing with an appeal u/s 417 from an order of acquittal the Court may reverse such order or direct that a further enquiry may be made, or that the accused may be re-tried or committed for trial as the case may be and find him guilty and pass sentence according to law. The contention is that reading Sections 424 and 439 together the order of acquittal can only be set aside by the High Court exercising its revisional powers u/s 439 by a reference to the provisions in Section 417 relating to an appeal from an acquittal. Therefore, the power given to the High Court at Patna to deal with appeals u/s 417 against an order of acquittal implies that the power of revising such an order u/s 439 is also vested in the said High Court and is taken away from the Commissioner of Bhagalpur.
11. The contention does not seem to be sound. The powers of revision are different from powers exercisable in appeal. The right of appeal can only be conferred by express provision in the Criminal P.C., whereas the power of revision conferred u/s 439 is larger in scope and it deals with matters in which there may or may not be an appeal. It gives a wide power to the High Court to look into the record of any cause and satisfy itself as to the correctness and propriety of the finding or sentence recorded or order passed and as to the irregularity of proceedings of an inferior Court. This power of revision is exercisable at the instance of a party or by the High Court of its own motion. Even in cases where there is an appeal the power of revision may be exercised where no appeal has actually been brought: vide Clause (5) of Section 439. Under that clause a private party has a right to apply to the High Court to set aside an order of acquittal although it has no right of appeal. Section 439 indicates the manner in which certain cases coming to this Court might be disposed of. It refers to the powers of the appellate Court defined in Section 423 as indicating the mode in which appealable orders may be dealt with by the High Court. It does not mean that an application in revision is converted into an appeal simply because u/s 439 a High Court is empowered to exercise the powers defined u/s 423 with respect to appeals.
12. It is obvious that an application by a private party against an order of acquittal u/s 439 cannot be regarded as an appeal u/s 417, for a private party has no right of appeal under that section. Reference to Section 417 In Section 423 and to Section 423 in Section 439 simply means that under the revisional powers of the High Court an order of acquittal may, also be reversed and further enquiry of re-trial of the accused be directed as is indicated under Clause (1)(a), Section 423. The application of the Chairman of the Municipality in the present case cannot be treated as an appeal u/s 417 by the Local Government, and hence it cannot come under Clause 1(ii)(a) of Section 4 which applies only to appeals u/s 417 from orders of acquittal. We have to read into that clause the words "and applications u/s 439" or words to that effect in order to amplify the scope of the provision and thus to give jurisdiction to the High Court at Patna to deal with applications in revision against orders of acquittal. This we are not permitted to do. It may seem to be an anomaly that an appeal from an order of acquittal u/s 417 should lie to the High Court at Patna, whereas an application in revision against the same order u/s 439 would lie to the Commissioner u/s 4(1) of the Santal Parganas Justice Regulation V of 1893. It may be that this is a case of omission; but that is a matter which has to be dealt with by competent authority.
13. The application to this Court against the order of the Commissioner of Bhagalpur passed u/s 439 of the Criminal P.C., setting aside the order of acquittal in the present case, did not lie to this Court and it is obvious that it was entertained under a misapprehension. The order of the Commissioner exercising his powers as the High Court of the Santal Parganas u/s 4 cannot be dealt with by this Court, and, therefore, the petitioner had no right to come to this Court against the order of the Commissioner.
14. The result is that the rule issued on the 27th May 1926 calling for the record of the case and staying further proceedings is discharged.
Macpherson, J.
15. I also entertain no doubt that this application must be rejected.
16. It has been made u/s 439 of the Code of Criminal procedure on behalf of a person other than a European British subject and other than a person jointly charged with a European British subject, with the prayer that this Court will (1) set aside an order of the Commissioner of Bhagalpur purporting to act as High Court of the Santal Parganas in which he set aside the acquittal of the petitioner in the Court of the Sub-Deputy Magistrate of Daoghar and directed his retrial; and (2) quash the proceedings now pending against the petitioner in that Court.
17. The first prayer fails because this High Court has, as Mr. Yunus admits, no jurisdiction u/s 439 or otherwise to set aside the order of the Commissioner. In point of fact the rule was granted to consider the second prayer. The second prayer fails because this Court possesses no jurisdiction u/s 439 over the proceedings against the petitioner in the Court of a Magistrate of the Santal Parganas. Furthermore, the order for retrial of the petitioner was in fact within the jurisdiction of the Commissioner. Under Chap. II of the Santal Parganas Civil Justice Reg. V of 1893 the jurisdiction of this Court under the Code of Criminal Procedure with reference to proceedings against the petitioner does not extend beyond cases tried by the Court of Session and appeals u/s 417 from Original and Appellate orders of acquittal [Section 4(1)(ii)(a)], the Commissioner being the High Court with reference to all other proceedings against him. The proceedings now pending against him are manifestly not included within such cases or appeals.
18. In fact Mr. Yunus for the petitioner admits that he is out of Court at once if Section (I)(ii)(a) be strictly construed. His position is that a wide interpretation should be recorded to "appeals u/s 417" so as to make the expression cover also applications u/s 439 to set aside orders of acquittal. His ground is that anomalies may result if an appeal u/s 417 is made to one High Court and an application to set aside the same acquittal is made u/s 439 to the other High Court. The discussion before us has'' however clearly demonstrated that the possibility of divergent orders on the subject of an acquittal being passed by the two High Courts is so remote as to be in practice entirely negligible. It is certainly not such as would lead one to construe "appeals u/s 417" (which are presumably excluded from the jurisdiction of the Commissioner as High Court because they are preferred by the executive Government, and the Commissioner is except; for his special judicial functions in the Santal Parganas, an executive officer) as including applications u/s 439 in respect of acquittals which can only be preferred by the private prosecutor and with which the executive Government is not concerned.
19. Mr. Yunus next argues, if I understand him aright, that as this Court is the only Court that can set aside an acquittal by a Court in the Santal Parganas, the Court of the Sub-Deputy Magistrate is an inferior criminal Court situated within the local limits of the jurisdiction of this Court, at least so far as acquittals are concerned, and accordingly this Court is empowered to revise the proceedings of such Magistrate in a case such as the present where he is about to try the petitioner whom he has already acquitted.
20. But there is no reason to hold that this is the only High Court that can set aside an acquittal by the Magistrate in the Santal Parganas. No doubt this Court alone can set aside an acquittal on appeal. The learned Commissioner in his judgment does indeed describe the proceedings before him as an appeal against an acquittal, and he has also set out that the private prosecutor "has a right of appeal u/s 439." But that proceeding was intact not an appeal, still less an appeal by the Local Government u/s 417, and the intention manifestly was to hold that it was open to him as the High Court to revise an order of acquittal. In fact his order concludes: "I accordingly direct that re-trial shall take place (under Section 439, Criminal P. C)." That an acquittal may be set aside by the High Court u/s 439 at the instance of a private prosecutor is settled law. It had also been so held in several High Courts prior to the date when the Regulation of 1893 was made, and the authority which made the regulation is to be presumed to have been aware of that fact and to have intended that as High Court for the Santal Parganas the Commissioner of Bhagalpur should possess the ordinary power u/s 439 to revise order of acquittal in such circumstances. Mr. Yunus then points out that the power exercisable u/s 339 are "the powers conferred on a Court of appeal u/s 432" and that the only powers conferred u/s 423 to set aside as acquittal on appeal relate to appeals u/s 417 which are removed from the jurisdiction of the Commissioner, and contends that in the face of the provisions the presumption should not be made. But the argument involves the importation of words into Section 439 so as to make the provisions quoted run "the powers conferred on (it as) a Court of appeal u/s 423." The indications are that in Section 4(1)(ii)(a) of Reg. V of 1893 the enacting authority specifically set out all the powers which it intended should not rest with the Commissioner as High Court in proceedings against persons of the status of the petitioner, and I can see no justification for importing any words into Section 439 which would restrict his jurisdiction by implication. Accordingly this Court is not the only High Court which has jurisdiction to set aside an acquittal by a Magistrate of the Santal Parganas.
21. Jurisdiction in respect of setting aside acquittals is in fact distributed between the two High Courts: this Court possessing it on appeal by Government and the Commissioner on application by a private party in revision. In Sections 435 to 439, as in other provisions of the Code, "High Court" means the Commissioner except where Section 4(1)(ii)(a) of the Regulation operates. It has no operation in the proceeding pending against the petitioner in the Court of the Sub-Deputy Magistrate of Deoghar which for this purpose at least is not an inferior Court to this Court. Accordingly this Court has no jurisdiction to quash that proceeding. The same would have been the case if the Magistrate had without the intervention of the Commissioner, started suo motu and illegally to re-try the petitioner; the petitioner''s remedy would have lain in an application for revision in the Court of the Commissioner.
22. Mr. Yunus, it may be remarked, adopted in so many words the argument of Mr. Hill in In the matter of Wilson (1891) 18 Cal 247 which is summarized at the top of p. 249 in support of his claim that this Court has jurisdiction over all the criminal Courts of the Santal Parganas under its revisional powers under the Code of Criminal Procedure, but a perusal of the Acts, Regulations and cases there cited has failed to satisfy me that the claim is well founded.
