Section 378 (4) of the Criminal Procedure Code (for short ‘the Cr.P.C.”). = complaint under the provisions of Maharashtra Ownership Flats Act (for short called “the Act”) against respondent nos. 2 to 6 in the Court of Metropolitan Magistrate 26th Court Borivali Mumbai being Complainant Case No.429/55/04 seeking prosecution of respondent nos. 2 to 6 for allegedly committing several violations of the provisions of the Act in execution of one housing project and while allotting the flats purchased by the parties in the said housing project. 4. By order dated 01.11.2007, the Metropolitan Magistrate dismissed the complaint and acquitted all the respondent nos.2 to 6. The appellant felt 2 aggrieved and filed leave to appeal before the High Court under Section 378 (4) of the Criminal Procedure Code (for short ‘the Cr.P.C.”). – whether the High Court was justified in declining to grant leave to file appeal against the order dated 1.11.2007 passed by the Metropolitan Magistrate.= Having pursued the order dated 01.11.2007, we are of the view that the High Court ought to have granted leave to the appellant (complainant) to file criminal appeal. In other words, having regard to the nature of violations complained of in the context of relevant provisions of the Act coupled with the material on record, a regular hearing by way of 4 appeal before the High Court was necessary to examine the entire issue on facts and law which ought to have been granted to the complainant(appellant herein). In light of aforesaid discussion, we allow the appeal, set aside the impugned order, and grant leave to the appellant (complainant) to file an appeal in the High Court against the order dated 1.11.2007 passed by the Metropolitan Magistrate (26th Court) Borivoli Mumbai in complaint case no 429/55/04. As a consequence of grant of leave by this Court to the complainant, the matter is now remanded to the High Court for deciding the complainant’s appeal on merits in accordance with law.

NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1550 OF 2010
Dahisar Saraswati Co­op. Housing
Society Ltd. … Appellant(s)
Versus
State of Maharashtra & Others … Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is filed against the final judgment
and order dated 27.7.2009 passed by the High
Court of Judicature at Bombay in Criminal
Application No. 241 of 2008 whereby the said
application filed by the appellant was dismissed.
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2. Brief facts of the case lie in a narrow compass
as would be clear from its narration infra.
3. The appellant herein­a housing cooperative
society was the complainant. They filed a complaint
under the provisions of Maharashtra Ownership
Flats Act (for short called “the Act”) against
respondent nos. 2 to 6 in the Court of Metropolitan
Magistrate 26th Court Borivali Mumbai being
Complainant Case No.429/55/04 seeking
prosecution of respondent nos. 2 to 6 for allegedly
committing several violations of the provisions of
the Act in execution of one housing project and
while allotting the flats purchased by the parties in
the said housing project.
4. By order dated 01.11.2007, the Metropolitan
Magistrate dismissed the complaint and acquitted
all the respondent nos.2 to 6. The appellant felt
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aggrieved and filed leave to appeal before the High
Court under Section 378 (4) of the Criminal
Procedure Code (for short ‘the Cr.P.C.”).
5. By impugned order, the High Court declined to
grant leave to file appeal to the complainant
(appellant herein) which has given rise to filing of
this appeal by the complainant­housing cooperative
society by way of special leave to appeal in this
Court.
6. The short question which arises for
consideration in this appeal is whether the High
Court was justified in declining to grant leave to file
appeal against the order dated 1.11.2007 passed by
the Metropolitan Magistrate.
7. Having heard the learned counsel for the
parties and on perusal of the written submissions of
the parties and the record of the case, we are
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inclined to allow the appeal, set aside the impugned
order and grant leave to the appellant (complainant)
to file an appeal before the High Court to question
the legality and correctness of the order passed by
the Metropolitan Magistrate Borivali (Mumbai) as
contemplated under Section 378(4) of the Cr.P.C.
8. We have perused the order dated 01.11.2007
and taken note of the facts which led to the passing
of the said order, coupled with the grounds on
which leave to file appeal was prayed for.
9. Having pursued the order dated 01.11.2007,
we are of the view that the High Court ought to have
granted leave to the appellant (complainant) to file
criminal appeal. In other words, having regard to
the nature of violations complained of in the context
of relevant provisions of the Act coupled with the
material on record, a regular hearing by way of
4
appeal before the High Court was necessary to
examine the entire issue on facts and law which
ought to have been granted to the
complainant(appellant herein).
10. In light of aforesaid discussion, we allow the
appeal, set aside the impugned order, and grant
leave to the appellant (complainant) to file an appeal
in the High Court against the order dated 1.11.2007
passed by the Metropolitan Magistrate (26th Court)
Borivoli Mumbai in complaint case no 429/55/04.
11. As a consequence of grant of leave by this
Court to the complainant, the matter is now
remanded to the High Court for deciding the
complainant’s appeal on merits in accordance with
law.
12. We may observe that we have not expressed
any opinion on the merits of the case and therefore,
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the High Court will decide the appeal filed by the
appellant (complainant) on merits strictly in
accordance with law, uninfluenced by any
observations made.
13. Liberty is granted to the parties to raise all the
issues as are available to them in the appeal
including any subsequent events in support of their
case. It is for the High Court to decide its relevancy
while deciding the appeal on merits.
14. We request the High Court to expedite the
hearing of the appeal because the case is quite old.

……………………………………..J.
[ABHAY MANOHAR SAPRE]

……………………………………….J.
[INDU MALHOTRA]
New Delhi;
October 12, 2018
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