ORDER Kader, J. 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 of section 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 retened to beheard 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 sections 85 (i) (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, Kizhikode 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 section 378(4) , Criminal Procedure Code, a revision was not maintainable in view of the express prohibition under sub- section (4) of section 401, Criminal Procedure Code. 3. The relevant sections for consideration are section 378 and section 401 , Criminal Procedure Code. section 378, Criminal Procedure Code, reads: “378. 3. The relevant sections for consideration are section 378 and section 401 , Criminal Procedure Code. section 378, Criminal Procedure Code, reads: “378. (1) Save as otherwise provided in sub- section (2) and subject to the provisions of sub- sections (3) and (5), the State-Governmentat 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 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 leaver 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 section 407 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”. section 378 , Criminal Procedure Code corresponds to section 417 of the Code of Criminal Procedure, 1898, hereinafter called the old Code. section 378 , Criminal Procedure Code corresponds to section 417 of the Code of Criminal Procedure, 1898, hereinafter called the old Code. Sub- section (4) of section 378 is a verbatim reproduction of sub- section (3) of section 417 of the old Code. Sub- section (4) of section 401 of the Criminal Procedure Code which corresponds to sub- section (5) of section 439 . of the old Code, is also a verbatim..reproduction of sub- section (5) of section 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 section 378 (4) , Criminal Procedure Code, 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 anystretch of imagination be said that a right of appeal has been conferred under section 378(4). This argument was based on the phraseology in Article 136 of the Constitution of India which, according to the Counsel, is akin to the phraseology in section 378 of sub- section (4). The counsel relied on Sita Ram v. State of U.P.1 and also Arunachalam v. P.S.R.Satharatheam2 in support of this contention. It was also argued that whereas under sub sections (1) and (2) of section 378 an appeal can be straightaway filed; under sub- section (4) of the same section an appeal can be presented only after obtaining special leave of the Caprt. According to the counsel, none of these aspects was considered by the learned single Judge in Krishnanlal Oberoi v. Corpn. of Cochin3 and therefore this decision requires reconsideration. 5. On a careful reading of the provisions in section 378 (4) along with the provisions in sub- section (4) of section 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. of Cochin3 and therefore this decision requires reconsideration. 5. On a careful reading of the provisions in section 378 (4) along with the provisions in sub- section (4) of section 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 Arunachalam's case2 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 Article 136 of the Constitution of India, to challenge an order of acquittal of the accused in a murder charge, held that against the judgment in appeal by the High Court the appellate power vested in the Supreme Court under Article 136 of the Constitution is not to be confused with tbe ordinary appellate power exeicised by appellate Courts and the appellate Tribunals under specific statutes, that the power vested under Article 136 is a plenary power exercisable outside the purview of ordinary law’ to meet the pressing demands of justice and that Article 136 of the Constitution neither confers on any one 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 case1 was the constitutional validity of clause (c) of sub- rule (1) of rule 15 of Order 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 Article 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 vested in the Supreme Court to deign or declare to grant leave to appeal against any conviction or sentence. After leave, the appeal is born. Then it ripens into fullness and is disposed of when both sides are present. After leave, the appeal is born. Then it ripens into fullness and is disposed of when both sides are present. * * * If Article 136 gives a discretionary power to grant leave to appeal or to dismiss in limine after an ex parte hearing (or after issue of notice if the Court so chooses), Article 134, which gives a constitutional right to appeal, as it were, must stand on a higher footing lost the Constitution-makers be held to have essayed in supererogation. 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 Article 134 puts the momentous class or cases covered by it beyond the discretionary compass of Article 136 and within the compulsory area of full hearing such as would follow upon leave being granted under Article 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 section 378 is not a right and is only a permission. According to the Counsel the phraseology in Article 136 and that in sub section (4) of section 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 Article 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 case1, the power vested under Article 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 section 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 prcper to construe the provision in sub- section (4) of section 378 , Criminal Procedure Code, on the basis of an analogy of the language or phraseology in Article 136 of the Constitution of India. Under section 378., Criminal Procedure Code, 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 sections 374 and 378, Criminal Procedure Code. The leave or special leave is necessary for filing an appeal against a conviction under section 374 ; while section 378 which confers a right of appeal against acquittal insisted of obtaining 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 section 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 section 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 section 417 of the old Code, the Law Commission stated that section 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- section (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 section 378 was a right of appeal. We are pointing out these aspects to show that what was provided for and intended by sub-section. (4)of section 378 was a right of appeal. Sub- section (3) of section: 417 of the old Code was introduced in the Code by the amending Act XXVI 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,1 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 had a right to move the High Court under section 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- section 3 of section 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. Bhadal Sah2, a Bench of the Supreme Court consisting of Sinha, C.J., Hidayatullah and Dasgupta, JJ., had occasion to consider the right of appeal conferred under section 417 of the old Code. In Jamuna Singh and others v. Bhadal Sah2, a Bench of the Supreme Court consisting of Sinha, C.J., Hidayatullah and Dasgupta, JJ., had occasion to consider the right of appeal conferred under section 417 of the old Code. It was observed in this case that the provision in sub- section (3) of section 417 was introduced in the Code by the Amending Act XXVI of 1955, giving a complainant a right of appeal agairst 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. In this context, it is useful to notice the wording in sub- section (4) of section 481. 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. section 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 section 378. The right of appeal conferred on the State and Central Governments under sub- sections (1) and,(2) 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 obtairing special leave. The appeals provided under sub- sections (1), (2) and (4) have to satisfy certain procedural requirements. 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 obtairing 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 section 401, sub section (4)are concerned. On a careful examination and consideration of the relevant provisions in section 378 and section 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 a right of appeal has been expressly provided for under sub- section (4) of section 378 in favour of a complainant in a case 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 Ammal3Municipal Commissioner, Nagercoil v. Annamakkiyam4 City Board, Mussorie v. Sri Kishan Lal,1Ram Narain In Antony v.Ibrahimkutty9 C.J., also was of the view that a right of appeal has been given to a private complainant under section 417 (3) of the Code), (corresponding to section 378 (4) of the new Code. In a recent case in Krishnanlal Obsroi v. Corpn. of Cochin10, a learnedsingle 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. 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 sub- section (4) of section 401, Criminal Procedure Code and we hereby set aside the order of the learned Sessions Judge remaining the case to the trail Court and dismiss the revision application. This revision case is disposed of as above. Revision case allowed.