SAHAI, J. - (1.) WE have heard Mr. V.R. Shetty for the petitioner, Mr. S.R. Borulkar A.P.P. for the respondent nos.1 and 2 and Mrs. Karandikar for respondent no. 3.
(2.) BY means of this petition preferred under Article 226 and 227 of Constitution of India, the petitioner has prayed-that the judgment and order dated 2.2.1996 passed by the Additional Sessions Judge, Thane in Criminal Revisions Application no. 131 of 1992 (preferred at his instance) confirming the order dated 22.4.1992 passed by the Sub-Divisional Magistrate, Thane u/s 133 Cr.P.C. the petitioner to demolish the pacca construction carried out in the margin of 5' to 6' between Kaustub and Yashodhara apartments for the purpose of keeping gas cylinders be quashed. At the very outset we questioned the learned counsel for the petitioner as to how the present petition is maintainable in view of the decision of the Apex Court reported in AIR 1979 SC 381- Jagir Singh vs. Ranbir Singh And Anr. In the aforesaid decision the Apex Court has followed the principle that what cannot be done directly would not be permitted by law to be done indirectly and has held that inasmuch as in view of the provisions contained in section 397 (3) of the Cri.P.C. there is an embargo that the same party has a right to file only one revision that embargo cannot be circumvented by approaching this court under Article 227 of the Constitution of India. The same principle would apply in regard to invoking the jurisdiction of this court under Article 226 of the Constitution of India.
(3.) MR . Shetty submitted that we should exercise our inherent powers. The situation even in respect of their exercise is the same. The Apex Court in the decision reported in AIR 1993 SC 1361 (Dharmpal and Ors. vs. Ramshri & Ors.) has held that the bar of a second revision at the instance of the same party engrafted in section 397 (3) of the Cri.P.C. cannot be circumvented by approaching the High Court under section 482 of the Cri.P.C. In that case in paragraph 9 the Supreme Court had held that the order in question was illegal but inspite of that it was of the view that the bar of a second revision could not be circumvented by invoking the use of inherent powers. Way Back as the year 1978 in the case reported in AIR 1978 SC 47 - Madhu Limaye vs. State of Maharashtra the Apex Court in a judgment delivered by a Bench of three Judges held that the inherent powers cannot be used to defeat or to circumvent that bar imposed by the Code of Criminal procedure. The same view has been reinforced by the Apex Court in the decision reported in JT 1995 (7) SC p. 175 - Deepti @ Arati Rai vs. Akhil Rai & ors.;