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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 ..... e 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. 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 - such reasoning of the High Court that the issue had attained finality, cannot be approved, 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 on merits as has been done in this case. The High Court was not correct in dismissing the case on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 354 read with Section 475(A)(1)(a) of the MMC Act. The complaint is disposed of. Proceedings closed. 5. Aggrieved by the aforesaid order of the Metropolitan Magistrate, the appellant invoked the criminal appellate jurisdiction of the High Court under Section 378 (4) of Code of Criminal Procedure [hereinafter referred as CrPC ] by filing a Criminal Application No. 1330 of 2011. It was pointed out thereunder that if the repair works are not carried out, the building would collapse, and the crime complained was in nature of a continuing offence. 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 respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Section 514 has nothing to do with taking of cognizance by the Magistrate or otherwise. If the complaint is filed before the concerned Magistrate within the period prescribed by Section 514, the Magistrate may take cognizance. The powers of the Magistrate for taking cognizance are governed by the provisions of CrPC. As such, the provisions of Sections 468 and 473 of CrPC have nothing to do with the provisions of Section 514 of MMC Act. If the complaint is not made before the concerned Magistrate within the time prescribed by Section 514, the same is required to be returned to the complainant. It, therefore, follows that in such a case, the Magistrate will have no occasion to pass an order of discharge or acquittal. As such, in my view, the order passed by the learned Metropolitan Magistrate discharging the accused does not amount to acquittal. In fact, it amounts to return of the complaint to the complainant. As such no appeal can lie against such order. 8. The application is, therefore, dismissed with liberty to the applicants to file appropriate proceeding including application under Section 482 of CrPC, if they are advised to do so. (emphasis supplied) 12. Fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment as to how and why the earlier order attained finality, we can only second guess that High Court had the broad principle of res judicata in mind 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 issue estoppel or collateral estoppel , which is a part of principle of res judicata, has often been agitated resulting in bevy of decisions across Indian, English and American jurisprudence and has created large voluminous records of academic literature. It may not be beneficial herein to restate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 .[Sri Ramnik Vallabhdas Madhvani and Ors. V. Taraben Pravinlal Madhvani, (2004) 1 SCC 497 (as per S. B. Sinha J. (concurring)).] 21. 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. 22. In light of the aforesaid discussion, we consider 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, we set aside the impugned order passed by the High Court and restore the Criminal Writ Petition No. 3166 of 2012 on the file of the High Court. Further we request the High Court to afford an opportunity of hearing to the parties and dispose of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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