Vijay Kumar Alias Vidhar Kumar vs State
1991 Latest Caselaw 185 Del

JUDGMENT

S.C. Jain, J.

(1) The point involved in this revision petition is very short and therefore, I dispose of this revision petition at the admission stage. The allegation against the petitioner is that on 28.1.1987 he was found carrying on unauthorised construction of two shops on the ground floor of E-11, Lajpat Nagar, New Delhi without the sanction of Municipal Corporation of Delhi, which is an offence punishable under Section 461 of Municipal Corporation of Delhi Act. The complaint was filed by M.C.D. against the petitioner. The petitioner has challenged the notice issued to him under Section 251 Cr.P.C. on various grounds. The first contention is that the Magistrate has not applied her mind while entertaining the complaint and issuing notice to him. It was ordered that the petitioner be charged with an offence under Section 461 and the case was adjourned to 30.11.90 for framing charge. On 30.11.90 instead of framing charge, notice under Section 251 Cr.P.C. was issued to him in which wrong Section i.e. 461 Cr.P.C. has been mentioned instead of Section 461 of M.C.D. Act. That shows non application of mind by the Magistrate. Counsel argued that no case is made out against the petitioner. The construction is old one and no material has been placed on record showing that the petitioner was constructing the shops illegally. The registration of the case against the petitioner is mechanical and without application of mind. He has, therefore, prayed that the order dated 13.II.1990 issuing notice to the petitioner be quashed and proceedings before the lower court be also quashed.

(2) I have carefully considered the submissions made by the counsel and find no force in the same. No prejudice is shown to have been caused by wrong mention of the Section for the violation of which he has been prosecuted. The allegation mentioned in the notice under section 251 Cr.P.C. are quite clear and unambiguous no complaint can be made on that account. It can be clerical/typing mistake also. At the time of issuing notice on the basis of the complaint and documents filed it could not be said that the construction was old one. It is only at the time of trial that these points can be decided. Keeping in view the circumstances explained above, I find no merit in admitting this revision petition and the same is hereby dismissed. However, I order that correction of the Section be made in the notice given under Section 251 Cr.P.C. The violation is of Section 461 M.C.D. Act and not of 461 pr.P.C. The Magistrate shall give a fresh notice to the petitioner mentioning the correct Section of the offence alleged to have been committed by him on the basis of the complaint filed by M.C.D. and shall conclude the proceedings within one month thereafter as the offence is of minor nature. The petitioner should appear before the trial court immediately. A copy of the order be sent to the trial court forthwith. This revision petition is disposed of with the above observations.