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.
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; 614F; 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 jurisdictional issue present, the court gave a finding on merits and such finding cannot be treated as res judicata as it was purely auxiliary or non-foundational to the main issue in the earlier order. Hence, such observation can neither be said to have a preclusive effect nor can it be said to have attained finality. It would not be out of context to clarify that the only aspect which attained finality with respect to the first order pertains to the jurisdictional issue concerning invocation of Section 378 of CrPC and nothing beyond that. The High Court was not correct in dismissing the case on the threshold without holding a full-fledged enquiry into the issues raised thereunder. Accordingly, the impugned order passed by the High Court is set aside and the Criminal Writ Petition No. 3166 of 2012 on the file of the High Court is restored. [Paras 19 to 22] [616-F, G-H; 617-A-D]
Ferrer v. Ardeb (1598) 77 Eng. Rep. 263 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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