JUDGMENT Bennett, J. - The question for consideration in this revision is whether the Additional Sessions Judge of Bahraich was justified in dismissing a revision application filed in his Court because the proper remedy of the applicants was by way of appeal and not by way of revision. He dismissed the application on this ground, referring to the provision in Section 439(5) of the Code of Criminal Procedure that "Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed." 2. It is not disputed that the applicants' proper remedy was by way of appeal, but it is argued that the Additional Sessions Judge should have allowed their request to treat the application as an appeal. It is also argued that Section 439 refers to proceedings before High Courts and that therefore a Sessions Judge before whom a revision application is filed is not entitled to dismiss it on this ground. He should it is contended refer the case to the High Court. 3. I have been referred to several authorities but none of them directly supports the applicants. The only case of this Court cited is Kandhai v. Emperor AIR 1932 Oudh 27. It was said in this case, according to the head note, that in the circumstances cited the Court (in this case the Sessions Judge) was perfectly justified in rejecting the revision application and was not bound to treat that application as an appeal when no such request was made to it. It is argued that this implies that the application should be treated as an appeal when a request is made to that effect. I do not, however, think that this is implied by the learned Judge who passed judgment in that case. He mentioned incidentally that no request had been made in that case to treat the application for revision as an appeal. But he did not say that the Sessions Judge should have so treated it had such a request been made. He referred generally to the provisions of Sub-section (5) of Section 439 as barring an application by way of revision where an appeal lies and no appeal is brought. But he did not say that the Sessions Judge should have so treated it had such a request been made. He referred generally to the provisions of Sub-section (5) of Section 439 as barring an application by way of revision where an appeal lies and no appeal is brought. Learned Counsel virtually conceded that the Court concerned had at least a discretion in such a matter and is not bound to treat a revision application as an appeal merely because a request has been made to do so 4. The next case cited was a Full Bench case of the Allahabad High Court, Shailabala Devi Vs. Emperor . Stress was laid in this case on the words in Sub-section (5) of Section 439 "at the instance of the party who could have appealed", the question being whether it was open to a third party to bring any matter to the notice of the Court. No such question arises in the present case as the applicants constitute the party who could have appealed. I have found nothing in the judgment which supports the present applicants' case. 5. In the Lahore case of AIR 1931 145 (Lahore) , a learned single Judge of the Lahore High Court observed that High Courts have on their own motion frequently set aside convictions of persons jointly tried and convicted at one trial who had not preferred appeals though they could have done so but in which the matter had come up before the Court on appeal or revision filed by other convicts, if on examining the record it was discovered that the lower Courts had acted illegally on a point which affected all the convicts equally. A similar view has been taken by this Court in the same circumstances, but it cannot be inferred therefrom that a Court should accept an application in revision contrary to the provisions of Sub-section (5) of Section 439. 6. Reference was made to the Rangoon case of Emperor v. U. San Win AIR 1932 Ran. 147. In that case a Bench held that the revision application was both groundless and misconceived. It was said that from such an order an appeal would lie and an application in revision would not be entertained. The judgment proceeded. "Treating the present application in revision as an appeal, however, for the reasons that I have stated, there is no substances in it." 7. It was said that from such an order an appeal would lie and an application in revision would not be entertained. The judgment proceeded. "Treating the present application in revision as an appeal, however, for the reasons that I have stated, there is no substances in it." 7. It is argued that as the learned Judges did to this extent treat the application as an appeal, that should always be done in such circumstances. I understand that all that was meant by the words quoted was that even if the application was treated as an appeal, there was no substance in it. Merely because the learned Judges considered the application from the point of view of an appeal, it cannot be said that they committed themselves to the view that it is incumbent upon a Court to do this. 8. Lastly reference was made to the case of Emperor v. Balkrishna Sharma (1932) 54 All. 331. It is suggested that certain observations of Sulaiman J support the applicants' contention but the provisions of Section 439(5) were not considered or referred to in the case and the observations do not, directly at least, support the contention that an application in revision can and should be considered even though an appeal lies. 9. As regards the argument that the Sessions Judge had no power to apply the provisions of Section 439(5) it is true that this section refers to the High Court's powers of revision. The Sessions Judge makes a reference to the High Court to exercise its powers of revision if upon examination of a revision application he considers that interference is called for. But that does not, in my opinion, mean that the Sessions Judge has no discretion to reject such an application where an appeal lies and no appeal has been brought. It would be absured to consider such applications and make a recommendation to the High Court upon them if they were barred by this provision and the High Court had to apply the bar as soon as the reference was received by it. The provision in Sub-section (5) must, I consider, be applied as soon as the application in revision is made and usually it would be made to the Sessions Court in the first instance. 10. The provision in Sub-section (5) must, I consider, be applied as soon as the application in revision is made and usually it would be made to the Sessions Court in the first instance. 10. It is also argued that there was no objection to the revision application being treated as an appeal, since there was no question of limitation. All that had to be done, it is said, was to alter the words "revision application" to "appeal", but I find on referring to the application to the Sessions Judge that this is not the only change which was required. Reference is made to the provisions of Section 435/438 Code of Criminal Procedure and the grounds are such as would naturally be given in a revision application. 11. For these reasons I see no reason to hold that the lower Court acted illegally in any way in refusing to entertain the revision application on the ground that it was barred by Section 439(5). It was clearly so barred and whether the Additional Sessions Judge might or might not have treated it as an appeal, he had clearly a discretion to refuse to do this and it cannot be said that he acted wrongly. 12. I accordingly dismiss this application.