Failure to avail the statutory right of appeal rendered the revision petition not legally maintainable.

Virender Singh, J.

1. The instant revision petition has been filed by the complainant against the impugned order of learned Judicial Magistrate Ist Class, Jalandhar dated 22.1.1996, vide which respondent Balraj Singh has been discharged. The order reads thus :-

"Present : None for the complainant Accused on bail with counsel. ORDER No evidence of the complainant is present. Complainant has also not appeared in the court inspite of repeated calls since morning. It is 3.10 PM now. Complainant has not come present nor any evidence of the complainant is present. The case is summon case. Therefore, the complaint is dismissed, in default for want of prosecution. File be consigned to the record. The accused is discharged from the complaint. Pronounced Sd/- Dated : 22.1.96 Judicial Magistrate I Class, Jalandhar"

2. There is a delay of a few days in filing and refiling the instant petition for which two Misc. application have been moved by the petitioner. The record further reveals that during the pendency of the instant revision petition, the Complainant had also died and the counsel for the petitioner sought time to place on record the LRs of the Complainant. Subsequently, Misc. application was also moved for bringing one Gurbinder Singh Ahuja as LR.

3. I do not want to enter into detailed discussion either on merits or even on other aspects with regard to the delay or the maintainability of the instant revision petition through LR. for the reason that the instant revision is not legally maintainable. The respondent has earned acquittal in a complaint case which was treated as a summon case. The present case being a complaint case, the complainant had a statutory right of appeal as provided under Section 378(4) of the Code of Criminal Procedure. The said remedy is not availed of by the petitioner. On this score alone, the instant revision petition is not maintainable.

4. Learned counsel for the petitioner otherwise states that as per the provisions of Section 401(5) of the Code of Criminal Procedure, the instant revision can also be treated as an appeal. I do not agree with the submission of the learned counsel for the petitioner. The petitioner may file an appeal as per the High Court Rules and Orders and pray for special leave to appeal. The petitioner, however, can pray for the condonation of delay in appeal on account of the period consumed by her in prosecuting the instant revision petition.

5. Faced with this situation, Mr. Brar learned counsel for the petitioner wishes to withdraw the instant petition enabling the petitioner to avail the statutory remedy available to her. May do so. The instant revision petition is disposed of in the aforesaid terms.