IMPORTANT POINT
Once a court holds a case to be not maintainable it has no jurisdiction to jurisdiction to make further observation. Such observations do not operate as res judicata.

JUDGMENT :

N.V. RAMANA, J.

1. Delay condoned.

2. Leave granted.

3. This appeal by special leave is directed against the judgment and order dated 16th 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 month time under the supervision of a registered structural engineer. On 08.03.2011, the appellant-Corporation again carried out an inspection and found that the respondents did not comply with the above-mentioned notice. Thereafter the appellant filed a complaint under the provisions of Section 354 read with Section 475A(1)(a) of the MMC Act. Metropolitan Magistrate, vide order dated 09.09.2011, refused to take cognizance of the complaint and inter alia, passed the following order:

“The complaint is filed on the same building against different accused. There is delay of near about 2 months to file this complaint. There is no sufficient explanation for the delay, along with affidavit. It is only stated that delay was caused because of monsoon work and other works.

Hence, this complaint is not tenable. I reject this application; and dismiss this complaint. All the accused No.1 to 3 are discharged for the offence punishable under 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 respondent No.4 – State. No one appeared on behalf of private respondents, despite service of notice.

9. Learned senior counsel, Shri Dhruv Mehta, appearing for the appellant-Corporation vehemently contended that the writ petition was filed in furtherance of the liberty granted by the earlier order dated 05.12.2011 in Criminal Application No. 1330 of 2011 under Section 378 (4) of CrPC. Further he submitted that the High Court under the writ jurisdiction misconstrued the words ‘liberty to file’ to a mere phraseology which does not confer jurisdiction upon the Court to probe into the correctness or validity of the order under challenge and thereby wrongly dismissed the appellant’s writ petition. According to the learned senior advocate once liberty has been granted by predecessor Bench to file the writ petition, the High Court should have dealt with it on merits and should not have dismissed the same citing lack of jurisdiction.

10. Having heard learned counsel for the appellant and going through the r