Judgment :- 1. The only question that arises for determination in this criminal revision case is whether there is a right of appeal given to a complainant in a private complaint under Sub-section (4)of S.378 of the Code of Criminal Procedure. In Calendar revision a learned Judge of this court issued notice to the parties to, show cause why revisional order passed in the case "be not set aside as one passed without jurisdiction", and when the matter came up for hearing before one of us. the case was referred to be heard by a Division Bench. 2. The short facts necessary for the disposal of this revision can now be stated. A private complaint was filed by the E. S I. Corporation represented by the Manager, Local Office, Employees' State Insurance Corporation, Kallai, before the Chief Judicial Magistrate Kozhikode alleging that the accused therein being the Principal Employer of the factory known as "M/s. South India Saw Mills", Kallai, failed to pay the contribution and submit the contribution cards for the contribution periods mentioned in the complaint and thereby committed offences punishable under S.85(1) (a), (b), (c) and (g) of the Employees' State Insurance Act, 1948, hereinafter called the Act. The accused denied having committed any offence and claimed to be tried and the summary trial that followed in S. T. Case No. 183 of 1977 ended in acquittal of the accused. The Employees' State Insurance Corporation, the complainant, challenged this order of acquittal in Crl. R. P. No. 67 of 1978 before the Court of Session, Kozhikode Division and the learned Sessions Judge set aside the order of acquittal and sent back the case to the trial court for fresh disposal according to law. In Calendar revision it was found that, as this was a case where an appeal could have been filed under S.378(4) Crl. P. C., a revision was not maintainable in view of the express prohibition under sub-section (4) of S.401 Crl. P.C. 3. The relevant Sections for consideration are S.378 and S.401 Cr. P C. S.378 Cr. P. C. reads: "378. P. C., a revision was not maintainable in view of the express prohibition under sub-section (4) of S.401 Crl. P.C. 3. The relevant Sections for consideration are S.378 and S.401 Cr. P C. S.378 Cr. P. C. reads: "378. (1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3), to the High Court from the order of acquittal. (3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2)." Sub-section (4) of S.401 reads: "(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed". S. 378 Crl. P.C. corresponds to S.417 of the Code of Criminal Procedure, 1898, hereinafter called the old Code. S. 378 Crl. P.C. corresponds to S.417 of the Code of Criminal Procedure, 1898, hereinafter called the old Code. Sub- section (4) of S.378 is a verbatim reproduction of Sub-section (3) of S.417 of the old Code. Sub-section (4) of S.401 of the Cr.P.C, which corresponds to sub-section (5) of S.439 of the old Code, is also a verbatim reproduction of sub-section (5) of S.439 of the old Code. 4. The learned Advocate appearing for the E. S. I. Corporation strenuously contended that no right of appeal has been granted to a complainant in a private complaint under S.378(4) Cr. P. C., that right of appeal is a right to enter a superior court, that the right given under the sub-section is only a right to file an application for granting special leave for appeal from the order of acquittal, that this cannot be treated or equated with a right of appeal, that the right of appeal is created or conferred only after grant of special leave and that as the appeal itself is born after the grant of special leave it cannot by any stretch of imagination be said that a right of appeal has been conferred under S 378(4). This argument was based on the phraseology in Art.136 of the Constitution of India which, according to the counsel, is akin to the phraseology in S.378 sub-s. (4). The counsel relied on Sita Ram v. State of U. P. (AIR. 1979 SC. 745) and also Arunachalam v. P. S. R. Setharathnam (AIR. 1979 SC. 1284) in support of this contention. It was also argued that whereas under sub-sections (1) and (2) of S.378 an appeal can be straight away filed, under Sub-section (4) of the same Section an appeal can be presented only after obtaining special leave of the court. According to the counsel, none of these aspects was considered by the learned single Judge in Krishnanlal Oberoi v. Corpn. of Cochin (1979 KLT. 75) and therefore this decision requires reconsideration. 5. On a careful reading of the provisions in S.378 (4) along with the provisions in sub-section (4) of S.401, it is clear that the legislature intended to confer a right of appeal on a complainant against an order of acquittal in a case instituted on a complaint. In Arunachalalm's case (AIR. 1979 SC. 5. On a careful reading of the provisions in S.378 (4) along with the provisions in sub-section (4) of S.401, it is clear that the legislature intended to confer a right of appeal on a complainant against an order of acquittal in a case instituted on a complaint. In Arunachalalm's case (AIR. 1979 SC. 1284) the Supreme Court while considering whether it was competent for a private party, namely, the brother of the deceased, to invoke the jurisdiction of the Supreme Court under Art.136 of the Constitution of India, to challenge an order of acquittal of the accused in a murder charge, held that against the judgment of appeal by the High Court the appellate power vested in the Supreme Court under Art.136 of the Constitution is not to be confused with the ordinary appellate power exercised by appellate courts and the appellate Tribunals under specific statutes, that the power vested under Art.136 is a plenary power 'exercisable outside the purview of ordinary law' to meet the pressing demands of justice and that Art.136 of the Constitution neither confers on anyone the right to invoke the jurisdiction of the Supreme Court nor inhibits anyone from invoking the Court's jurisdiction and that the power is vested in the Supreme Court but the right to invoke the Court's jurisdiction is vested in no one. 6. The question that came up for decision in Sita Ram's case (AIR. 1979 SC. 745) was the constitutional validity of Clause (c) of sub-rule (1) of R.15 of 0.21 of the Supreme Court Rules which enables an appeal to be placed for hearing ex parte before the court for admission. There while considering the scope of Art.136 of the Constitution of India which deals with special leave to appeal before the Supreme Court, it was observed as follows; 'A plenary discretion vests in the Supreme Court to deign or decline to grant leave to appeal against any conviction or sentence. xx xx xx After leave, the appeal is born. Then it ripens into fullness and is disposed of when both sides are present. xx If Art.136 gives a discretionary power to grant leave to appeal or to dismiss in limine, after an ex parte bearing (or after issue of notice if the court so chooses). xx xx xx After leave, the appeal is born. Then it ripens into fullness and is disposed of when both sides are present. xx If Art.136 gives a discretionary power to grant leave to appeal or to dismiss in limine, after an ex parte bearing (or after issue of notice if the court so chooses). Art.134, which gives a constitutional right to appeal, as it were, must stand on a higher footing lest the Constitution-makers be held to have essayed in super-erogation. Surely, there is much more 'hearing' content in an absolute appellate right than in a precarious 'special leave' motion. Jurisprudentially, a right is larger than a permission. What is irresistible is that Art.134 puts the momentous class of cases covered by it beyond the discretionary compass of Art.136 and within the compulsory area of full hearing such as would follow upon leave being granted under Art.136 (1)". 7. It was mainly relying on these observations of the Supreme Court that the counsel for the E.S.I. Corporation contended that special leave to appeal provided for in sub-section (4) of S.378 is not a right and is only a permission. According to the counsel the phraseology in Art.136 and that in sub-section (4) of S.378 is similar as both speak of grant of special leave to appeal and therefore these decisions of the Supreme Court squarely apply to this case. We may now extract Art.136: "136. Special leave to appeal by the Supreme Court. (1) Notwithstanding anything in this "Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. (2) Nothing in clause (1) shall apply to any judgment, determination, sentence or . order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces". 8. As pointed out by the Supreme Court in Arunachalam"s case (AIR. (AIR. 1979 SC. 1284) the power vested under Art.136 is a plenary power exercisable outside the purview of ordinary law' to meet the pressing demands of justice and the appellate power vested in the Supreme Court under this Article is not to be confused with ordinary appellate power exercised by appellate courts and appellate Tribunals under specific statutes. (AIR. 1979 SC. 1284) the power vested under Art.136 is a plenary power exercisable outside the purview of ordinary law' to meet the pressing demands of justice and the appellate power vested in the Supreme Court under this Article is not to be confused with ordinary appellate power exercised by appellate courts and appellate Tribunals under specific statutes. Under sub-section (4) of S.378 a right of appeal is given to the party but the only restriction is that he can present the appeal to the High Court only after obtaining special leave to appeal. An appeal is creature of statute. We do not think it proper to construe the provisions in sub-section (4) of S.378 Cr. P. C. on the basis of an analogy of the language or phraseology in Art.136 of the Constitution of India. Under S.378 Cr. P. C. a right of appeal in cases of acquittal has been conferred on the State Government, the Central Government and the complainant in a case instituted upon a complaint, under the circumstances mentioned therein, and also on compliance of certain procedural requirements. Both the decisions cited have no application to the points involved in this case. 9. It was observed by the Law Commission in its 48th Report that appeals against acquittals should not be allowed in the same unrestricted manner as appeals against convictions. This is clear from a reading of S.374 and 378 Cr. P C. No leave or special leave is necessary for filing an appeal against a conviction under S.374; while S.378 which confers a right of appeal against acquittals insisted obtaining of leave or special leave as the case may be. The difference between granting leave and special leave is only procedural. It was taking these facts into consideration that the Law Commission recommended that appeals against acquittals under S.417 of the old Code, even at the instance of the Central Government or the State Government, should be allowed only if the High Court granted leave. The difference between granting leave and special leave is only procedural. It was taking these facts into consideration that the Law Commission recommended that appeals against acquittals under S.417 of the old Code, even at the instance of the Central Government or the State Government, should be allowed only if the High Court granted leave. It was also further observed that the amendment recommended will not be as radical a departure as may appear at the first sight, that if the right of appeal against acquittal is itself retained, then the right to be given to a private party should not be abolished and that "to inspire and maintain confidence in the administration of justice, the limited right of appeal with leave given to a private party should be retained and should embrace cases initiated on private complaint or otherwise at the instance of an aggrieved party." In its 41st Report concerning S.417 of the old Code, the Law Commission stated that S.417 deals with appeals in case of acquittal, that sub-section (1) gives the State Government unrestricted right of appeal against any order of acquittal, that sub-section (2) also gives a similar power to the Central Government in the category of cases referred to therein and that sub-s. (3) permits a private complainant in a case instituted on complaint to appeal against acquittal, but only after obtaining special leave from the High Court. There was a suggestion placed before the Law Commission that apart from the State and the complainant in complaint cases, other interested persons such as the first informant to the police or the victim of a crime or his relatives may be given a right of appeal, in suitable cases, but the Commission was unable to agree with the suggestion on the ground that in criminal proceedings they do not want to recognise any interest except that of the public, and of course, to some extent, that of a complainant who actually initiates the proceedings.in Court: We are pointing out these aspects to show that what was provided for and intended by sub-section (4) of" S.378 was a right of appeal. Sub-section (3) of S.417 of the old Code was introduced in the Code by the amending Act 26 of 1955, giving the complainant a right of appeal against acquittal where a case is instituted upon a complaint. Sub-section (3) of S.417 of the old Code was introduced in the Code by the amending Act 26 of 1955, giving the complainant a right of appeal against acquittal where a case is instituted upon a complaint. Prior to this amendment, the State Government alone had the right of appeal against an order of acquittal. No change was brought out in this provision in the Code of Criminal Procedure, 1973. 10. In Bhimappa v. Laxman ( (1971) I S. C. R I) Hidayatullah, C J. delivering judgment on behalf of the Bench consisting of Ray J., as he then was, and Dua, J while considering the question whether Bhimappa has a right to move the High Court under S.417 of the old Code for special leave to appeal, as the order of acquittal was passed in a case instituted upon his complaint, observed as follows: "Sub S.3 of S.417 as an amendment was introduced by Act XXVI of 1955. Previously the right of appeal against acquittal belonged only to the State Government. By the amendment this right is also conferred on a complainant if the order of acquittal is passed in any case instituted upon complaint". In Jamuna Singh and others v. Bhadai Sah (1964) 5 S C. R.37) a Bench of the Supreme Court consisting of Sinha, C J , Hidatullah and Das-gupta JJ. had occasion to consider the right of appeal conferred under S.417 of the old Code. It was observed in this case that the provision in sub-section (3) of S.417 was introduced in the Code by the Amending Act XXVI of 1955, giving a complainant a right of appeal against acquittal where a case is instituted upon a complaint, that before this new legislation, only the State Government had the right to appeal against an order of acquittal, that the result of the new provision in sub-section (3) is that if an order of acquittal is passed by any court other than a High Court in a case instituted upon a complaint, the High Court on an application made to it by the complainant in this behalf may grant special leave to appeal from the order of acquittal and on such leave being granted the complainant may present such an appeal to the High Court and that this right is limited only to cases instituted upon a complaint. 11. 11. In this context, it is useful to notice the wording in sub-section (4) of S.401 That sub-section states that where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. S.372 states that no appeal shall lie from any judgment or order of a criminal court except as provided for by this Code or by any other law for the time being in force. An appeal, no doubt, has been expressly provided for under sub-section (4) of S.378. The right of appeal conferred on the State and Central Governments under sub-sections (1) and (2) and on a private complainant under sub-section (4) of the Section are subject to certain restrictions. Without obtaining leave no appeal filed by the State or Central Government can be entertained by the High Court; whereas an appeal by a private party can be presented only after obtaining special leave. The appeals provided under sub-sections (1), (2) and (4) have to satisfy certain procedural requirements. This is only as a check or safeguard and obtaining special leave is only a procedural step for presenting an appeal. Merely because special leave has to be obtained for presenting an appeal under sub-section (4), it cannot be said that no right of appeal is conferred under that section. Further the filing of an appeal subject to leave or special leave makes no difference so far as the provisions in S 401 sub-section (4) are concerned. On a careful examination and consideration of the relevant provisions in S.401 sub-section (4), bearing in mind the purpose and object of the introduction of the new provision by the amending Act of 1955 and its retention in the new Code, we have no hesitation to hold that aright of appeal has been expressly provided for under sub-section (4) of S 378 in favour of a complainant in a ease instituted upon complaint. The High Courts of Madras, Bombay, Allahabad, Gujarat, Orissa, Mysore, Punjab and Assam have taken the same view. (See In re Seeni Ammal (AIR. 1960 Mad. 573), Municipal Commr., Nagercoil v. Annamakkiyam (1967 Crl. L. J. 898), City Board Mussoorie v. Sri. Kishun Lal (AIR. 1959 All. 413), Ram Narain v. Mool Chand (AIR. 1960 Allahabad 296), State of Bombay v. Tayawade (AIR 1959 Bombay 94), Sankalchand v. Khengaram (AIR. (See In re Seeni Ammal (AIR. 1960 Mad. 573), Municipal Commr., Nagercoil v. Annamakkiyam (1967 Crl. L. J. 898), City Board Mussoorie v. Sri. Kishun Lal (AIR. 1959 All. 413), Ram Narain v. Mool Chand (AIR. 1960 Allahabad 296), State of Bombay v. Tayawade (AIR 1959 Bombay 94), Sankalchand v. Khengaram (AIR. 1969 Gujarat 342), Dukhishyam Sahu v. Bidyadhar Sahu (AIR. 1966 Orissa 45), Chairman, Village-Panchayath Nagathihalli v. N. Thimmasetty (AIR. 1956 Mysore 62), Shiv Prashad v. Bhagwan Das (AIR. 1958 Punjab 228) and Abdul Majid v. Adai (1970 Crl. L.J. 95) In Antony v. Ibrahimkutty (1960 KLT 481) Sankaran, C J. also was of the view that a right of appeal has been given to a private complainant under S.417 (3) of the old Code (corresponding to S 378 (4) of the new Code). In a recent case in Krishnanlal Oberoi v. Corpn. of Cochin 1979 KLT. 75) a learned single Judge of this court considered this question elaborately and held that an appeal does lie against an order of acquittal in a case instituted on a complaint. The requirement that the complainant has to seek special leave and only if it is granted he can present the appeal, does not, according to the learned Judge, mean that no appeal lies against the order of acquittal. With great respect, we are in full agreement with the decision of the learned single Judge and we find no ground to reconsider this decision, which, according to us, lays down the correct position of law on the point. The result is that the revision filed by the E. S. I Corporation against the order of acquittal is not maintainable in view of the prohibition in subsection (4) of S.401 Cr. P. C. and we hereby set aside the order of the learned Sessions Judge remanding the case to the trial court and dismiss the revision application. This Revision Case is disposed of as above.