MUNICIPAL CORPORATION OF GREATER MUMBAI versus PANKAJ ARORA (SECRETARY) AND OTHERS

Citation: [2018] 1 S.C.R. 609 · Decided: 23-01-2018 · Supreme Court of India · Bench: N.V. RAMANA · Disposal: Disposed off

Judgment (excerpt)

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MUNICIPAL CORPORATION OF GREATER MUMBAI
v.
PANKAJ ARORA (SECRETARY) AND OTHERS
(Criminal Appeal No. 164 of 2018)
JANUARY 23, 2018
[N. V. RAMANA AND S. ABDUL NAZEER, JJ.]
Code of Criminal Procedure, 1973 – ss.482, 378 – Complaint
filed by  appellant-corporation under s.354 r/w s.475A(1)(a) of the
MMC Act – Magistrate refused to take cognizance of the complaint
on the ground that complaint was time barred – On appeal, High
Court made adverse observations on the merit of the case, however,
dismissed the appeal granting liberty to the appellant to file
appropriate proceeding holding that its jurisdiction was incorrectly
invoked under s.378 (4) of CrPC – Appellant filed writ petition
which was dismissed on the ground that liberty granted to file
appropriate proceedings did not grant right to the litigant to agitate
the same order which has attained finality – Held: High Court was
not correct in dismissing the case on the threshold without holding
a full-fledged enquiry into the issues raised thereunder – High Court
having concluded in earlier order that a case is not maintainable
under s.378, did not have jurisdiction to make further observations
on merits as was done in this case – Moreover, it was not necessary
for the High Court in the earlier order to travel beyond the issue of
ascertaining whether a dismissal of complaint on the ground of
delay amounted to acquittal in order to invoke the jurisdiction under
s.378 – The observations of the High Court on the interplay of
CrPC and MMC Act and its implication on the facts were not
necessary for the jurisdictional issue – Despite a specific
jurisdictional issue present, High Court gave a finding on merits –
Such finding cannot be treated as res judicata as it was purely
auxiliary or non-foundational to the main issue in the earlier order
– Such observation can neither be said to have a preclusive effect
nor can it be said to have attained finality – Accordingly, the
impugned order passed by the High Court is set aside – Mumbai
Municipal Corporation Act, 1888 – s.354.
609
[2018] 1 S.C.R. 609
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SUPREME COURT REPORTS
[2018] 1 S.C.R.
Disposing of the appeal, the Court
HELD:  1. The High Court in Criminal Application under
Section 378(4) of Cr.P.C.  even after concluding that its
jurisdiction was incorrectly invoked under Section 378(4) of
CrPC, still made adverse observations on the merit of the case
thereby exceeding its jurisdiction. It would not be out of context
to point out that the order of the High Court, in Criminal
Application is ridden with internal contradictions, in the sense
that the High Court first gives a finding on the merits of the case
concerning the bar of taking cognizance for reason of delay. The
High Court ultimately dismissed the case on the jurisdictional
issue by observing that by no stretch of imagination, the dismissal
of the criminal complaint for filing delay may be construed as
acquittal so as to invoke the jurisdiction under Section 378 of
CrPC, and ultimately held that it did not have jurisdiction to
entertain such matter. It can be observed that the High Court at
this juncture, recognised the incorrect invocation of the criminal
appellate jurisdiction under the said provision and granted further
liberty to move appropriate court if so advised.  The High Court
misconstrued the earlier order as it failed to note that the
observations made thereunder were not binding since they were
made without jurisdiction. [Paras 11, 12 and 18] [613-E-G; 614-
F; 616-B]
2. It is apparent from the perusal of the impugned order that the
High Court stretched the ambit of ‘finality’ for some observations
to the saying (relating to collateral aspects) that every such
observation was final unless reversed in appeal, which had an
effect of throttling the substantive justice out of life. Once the
court concludes that a case is not maintainable under Section
378 of CrPC, it did not have any jurisdiction to make further
observations on merits as has been done in this case.  Moreover,
it was not necessary for the High Court in the earlier order to
travel beyond the issue of ascertaining whether a dismissal of
complaint on the ground of delay amounted to acquittal in order
to invoke the jurisdiction under Section 378 of CrPC. The
observations of the High Court on the interplay of CrPC and
MMC Act and its implication on the facts were not foundational
or necessary for the jurisdictional issue. Despite a specific
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