Delhi High CourtMunicipal Corporation Of Delhi vs Shri Jeevan Dass on 18 February, 1998Equivalent citations: 1998IIAD(DELHI)703, 1998(45)DRJ30, 1998RLR214Author:A.K. SrivastavaBench:A.K. SrivastavaJUDGMENT
 

 A.K. Srivastava, J.1.     This  is a criminal revision against order dated 22.8.94 passed  by  a Magistrate whereby the respondent has been acquitted. Reply has been filed.2.   Mr. V.K. Shali, learned counsel for the respondent makes a preliminary legal  objection that this criminal revision is not maintainable  as  after summoning order the respondent has been acquitted by the learned Metropolitan Magistrate vide the impugned order dated 22.8.94.3.   A rejoinder was filed on behalf of revisionist in which it is  averred that  the revision was filed in the bonafide belief the revision was  maintainable.  It is also pleaded that under sub-Section (5) ofSection 401of the  Code of Criminal Procedure, the present petition may be dealt with  as an appeal. That sub-Section reads as follows:(5)  Where under this Code an appeal lies but an application  for revision  has been made to the High Court by any person  and  the High Court is satisfied that such application was made under  the erroneous  belief  that  no appeal lies thereto and  that  it  is necessary  in the interests of justice so to do, the  High  Court may  treat the application for revision as a petition  of  appeal and deal with the same accordingly.4.   In  view  of  the above rejoinder, there is now no  dispute  that  the remedy  with  the petitioner was by filing an appeal and not  by  filing  a revision.5.   Learned  counsel for the respondent contended that it is not an  absolute  rule  under sub-section (5) ofSection 401that a  revision  petition when  objected  to as not maintainable shall be treated as  a  petition  of appeal. According to him it may be done only where the revision application is made under the erroneous belief that no appeal lies thereto and that  it is  necessary in the interests of justice so to do. He contented that  considering  the nature of the offence and the continued mental agony  of  the 
respondent in facing trial since the year 1991 and after being acquitted in the  year  1994 in facing this revision petition since  August  1995,  this revision  petition may not be permitted to be converted into a petition  of appeal.  He further contended that the respondent had  raised  construction after  getting a plan sanctioned and thus there could only be  some  deviations which could be compounded under the provisions of theDelhi Municipal Corporation Act. It was further contended that the offence alleged  against the petitioner was only under 332 of the said Act for which the  punishment is  simple  imprisonment which may extend to six months or fine  which  may extend to rupees five thousand, or with both. The argument advanced is that considering  the trivial nature of the offence it is not necessary  in  the interests of justice that the revision application be treated as a petition of  appeal. Accordingly to him, the interests of justice in the  afore-mentioned  facts  and circumstances rest with the respondent rather  than  the petitioner.6.   On the other hand, learned counsel for petitioner says that it is  the order of the day that people make constructions without the previous  sanction  of the concerned Authority and this tendency is causing great  inconvenience on all fronts to the general public.7.   I  have  carefully  considered the rival contentions  of  the  learned counsel  for the parties. It is to be observed that the petitioner  in  its rejoinder  does not say that there was a bonafide erroneous belief  on  the part of the petitioner that no appeal lies against the impugned order. What is said in the rejoinder is that there was a bonafide belief that  revision application  was maintainable. It is also found that the  present  criminal litigation  between the petitioner and the respondent has been  since  1991 and the respondent has been acquitted by the court below in the year  1994. Learned counsel for the petitioner admits that the respondent had  obtained previous  sanction from the concerned Authority for  making  constructions. According  to  him the sanctioned plan was not shown when  the  officer  of M.C.D.  visited the site. Thus, it is to be found that admittedly  the  respondent had obtained previous sanction from the concerned authorities  and it  was not a case of raising construction without obtaining  any  previous sanction. Therefore, instead of prosecuting this case against the  respondent by way of appeal it would be better for the petitioner to proceed under the  other  provisions of theDelhi Municipal Corporation Act, that  is  to say,  for compounding or for demolition of the  unauthorised  construction. The respondent has already suffered mental agony and expense for  defending the criminal prosecution right from 1991 till date.8.   In the aforesaid facts and circumstances, I do not consider it  appropriate to permit the prayer of the petitioner to treat this application for revision as a petitioner of appeal.9.   Since  against the impugned order of acquittal no revision lies,  this revision petition is dismissed as not maintainable.