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TMI Blog2018 (1) TMI 1731X X X X Extracts X X X X X X X X Extracts X X X X ..... h September, 2015 passed by the High Court of Judicature at Bombay in Criminal Writ Petition No. 3166 of 2012. 4. Briefly stated, the facts of the case are that the appellant-Corporation, in pursuance of a complaint filed by one Mrs. Veena Khanchandani a resident in the respondent's society, carried out an inspection through its Junior Engineer on 31.01.2011 and noticed that various cracks had developed in the building endangering the inhabitants. In accordance with the procedure laid down under the provisions of Section 354 of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred as 'MMC Act'), a notice was issued on 02.02.2011 calling upon the respondents to carry out structural repairs of the building within a mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. However, the High Court by order dated 05.12.2011, dismissed the application but granted liberty for the applicants to file appropriate proceedings including an application under Section 482 of CrPC. 6. Accordingly, the appellant filed criminal writ petition, under Article 226 of the Constitution of India, before the High Court. By the impugned order dated 16.09.2015, the High Court dismissed the writ Petition. 7. Feeling aggrieved by the views taken by the High Court, the present appeal has been filed by the Municipal Corporation. 8. Heard learned counsel for the appellant as well as learned counsel for the respondent No.4 - State. No one appeared on behalf of private respondents, despite service of notice. 9. Learned senior couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dden 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 in following manner- " 7. It is to be noted that under Section 468 of CrPC, there is a bar on taking cognizance of the offence by the court after lapse of the period of limitation mentioned in the said section. Section 473 gives discretion to the Court to condone the delay whereas under Section 514 of MMC Act, the limitation is provided for filing of complaint in the Court of Magistrate. It is clearly stated in Section 514 that no person shall be liable to punishment for any offence under the Act if the complaint is not filed within the period prescribed under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 aforesaid provision and granted further liberty to move appropriate court if so advised. 13.When the matter came up before the High Court, in furtherance of the liberty granted earlier, for the second time in the Criminal Writ Petition under Article 226 of the Constitution of India. The High Court vide impugned order dismissed and, inter alia, observed as under- " 12. It is true that Hon'ble Justice Tahaliyani had granted liberty to file the Writ Petition. However, "liberty to file" is a phras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind while coming to such conclusion. 16. There is no dispute that the rule of res judicata in common law, from Ferrer v. Arden, (1598) 77 Eng. Rep. 263[interest reipublicae ut sit finis litium], to recent precedents of this Court, has been accepted as a universal rule of law emanating from the public policy1 to limit excessive and unnecessary litigation. It may not be an overstatement to state that the principle of res judicata is as old as the law itself. The extent of application of res judicata in a country, on a comparative analysis of foreign jurisprudence, depends on various considerations such as efficiency, fairness, and substantive policies, but across the board a minimal core seems to be well preserved. 17.We may note that 'issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the issue material and essential for its decision. 19. 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. We cannot approve such reasoning of the High Court that the issue had attained finality, since the observations were made by a court which went against its own findings that the court did not have any authority/jurisdiction to do so. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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