sat 1 appln 1330-2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1330 OF 2011 Municipal Corporation of Greater Mumbai ...Applicants vs. Pankaj Arora & Ors. ...Respondents Mr.Sandeep Patil i/b. M/s.R.A. Malandkar and K.N. Gaikwad for the Applicants. Mrs.P.H. Kantharia, APP for the State. CORAM : M.L. TAHALIYANI, J. DECEMBER 5, , 2011 P.C. :- 1 Heard learned Advocate Sandeep Patil for the applicants. 2 This application for leave to appeal has been filed against the order passed by the learned Metropolitan Magistrate of 39th Court, Vile Parle. The learned Magistrate has rejected the application filed by the Municipal Corporation of Greater Mumbai for condonation of delay. The applicants feel aggrieved by the said order. Further grievance of the applicants is that the learned Magistrate has passed the order of discharge of all the accused. sat 2 appln 1330-2011 3 It is submitted that the discharge of accused in the summons case amounts to acquittal and therefore, the appeal is tenable. 4 I have gone through the provisions of Section 514 of the Mumbai Municipal Corporation Act (MMC Act). The said Section runs as under :- “514. Limitation of time within which complaints of offences punishable under this Act shall be entertained. No person shall be liable to punishment for any offence made punishable by this Act, unless complaint of such offence is made before a Presidency Magistrate within the time hereinafter prescribed in that behalf, namely:- (a) if the offence be against the provisions of section 155, within six months next after the commission of such offence; (b) if the offence be against the provisions of sections 223, 229A, 240, 258, 272(1), 272(5), 274(1), 274(1A), 281, 284, 287B(1), 287(B)(2) or 390, or any bye-laws framed under section 461 (b), within three months next after the commission or discovery of such offence; (c) if the offence be against any other provision of this Act, within three months next after the commission of such offence]” 5 It can be noted that there is no provision for condonation of delay in filing the complaint under the MMC Act. sat 3 appln 1330-2011 6 Mr.Patil submits that the delay could have been condoned by the learned Magistrate u/s. 473 of Cr.P.C. I have gone through Section 473 of Cr.P.C. also which runs as under :- “473. Extension of period of limitation in certain cases.- Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitations, if it satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.” 7 It is to be noted that u/s. 468 of Cr.P.C., there is bar on taking cognizance of 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 u/s. 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 u/s. 514. As such provisions 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 sat 4 appln 1330-2011 period prescribed by Section 514, the Magistrate may take cognizance. The powers of the Magistrate for taking cognizance are governed by the provisions of Cr.P.C. As such, the provisions of Sections 468 and 473 of Cr.P.C. 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 proceedings including application u/s. 482 of Cr.P.C., they are advised to do so. (M.L. TAHALIYANI, J)