Full Judgment Text
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PETITIONER:
N. R. GHOSE alias NIKHIL RANJAN GHOSE
Vs.
RESPONDENT:
THE STATE OF WEST BENGAL
DATE OF JUDGMENT:
27/10/1959
BENCH:
KAPUR, J.L.
BENCH:
KAPUR, J.L.
IMAM, SYED JAFFER
SARKAR, A.K.
WANCHOO, K.N.
CITATION:
1960 AIR 239 1960 SCR (2) 58
CITATOR INFO :
F 1970 SC 962 (8)
ACT:
Criminal Trial-Autrefois acquit, Plea of-Order by trial
Court at intermediate stage rejecting Plea-Order confirmed
by High Court --Whether can be challenged in appeal against
subsequent orders in same proceeding--Principle of finality
of decisions in criminal cases -Code of Criminal Procedure,
1898 (V of 1898), s. 403.
HEADNOTE:
A complaint was filed against the appellant and one Bose
before the Sub-Divisional Magistrate, Darjeeling. Under the
W.B. Criminal Law Amendment (Special Courts) Act, 1949 the
case was allotted to Mr. Dutta Gupta, Special judge, Alipur,
who by order dated July 11, 1951, acquitted the appellant
but convicted Bose. Bose appealed to the High Court which
held the Act to be ultra vires and quashed the conviction.
The Act was amended and another complaint was then filed
against the appellant and Bose before Mr. Lodh, Special
judge, Alipur. The appellant pleaded the bar of S. 403 Code
of Criminal Procedure on account of his acquittal by Mr.
Dutta Gupta but the Special judge overruled the plea. The
appellant went to the High Court in revision and on March
19, 1953, Chunder, J., held that the acquittal was not by a
competent Court as the Act creating the court had been
declared ultra vires and dismissed the application. In the
meantime the case was withdrawn from Mr. Lodh and was
allotted to the Special judge, Darjeeling, and a fresh
complaint was filed against both accused. On an application
made by Bose the High Court quashed these proceedings and
directed the proceedings pending in the Court of the Sub-
Divisional Magistrate, Darjeeling, to be disposed of in
accordance with law. By this time the Supreme Court had
held in Kedar Nath Bajoria v. The State of West Bengal that
the Act was intra vires. The appellant again raised the
plea of the bar of s. 403 Code of Criminal Procedure,
contending that in view of the decision of the Supreme Court
his acquittal was by a competent Court. The plea was
rejected by the Magistrates and a revision application was
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dismissed by the High Court on the ground that the appellant
was bound by the decision of Chunder, J., holding that the
acquittal was by a Court not of competent jurisdiction. The
appellant appealed by special leave.
Held (Sarkar, J., dissenting), that in view of the decision
of the Supreme Court in Kedar Nath Bajoria’s case the trial
before Mr. Dutta Gupta, Special judge was a lawful one and
the acquittal of the appellant which was never set aside was
a bar to another trial. It was open to the appellant to
challenge in this appeal the order made by Chunder, J., on
March 19, 1953. Except
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where the statute so required, it was not imperative upon a
party to appeal against every error, defect or irregularity
in any order by which he may be aggrieved and by not doing
so he did not forfeit his right to have the matter
considered by the Supreme Court. So far as the Supreme
Court was concerned it made no difference whether the
intermediate order complained of was passed by the Trial
Court and was not taken to the High Court or it was taken to
the High Court and was confirmed by it.
Kedar Nath Bajoria v. The State of West Bengal, [1954] S.C
R. 30, followed.
Maharaja Moheshur Singh v. The Bengal Government, (1859) 7
M.I.A. 283, Alexander John Forbes v. Ameeroonissa Begum,
(1865) 10 M.I.A. 340, Sheonath v. Ram Nath, (1865) 10 M.I.A.
413 and Shah Mukhun Lal v. Baboo Sree Kishen Singh, (1868)
12 M.I.A. 157, referred to.
Sambasivam v. Public Prosecutor, Federation of Malaya,
[1950] A.C. 458 and Pritam Singh v. The State of Punjab,
A.I.R. 1956 S.C. 415, applied.
Sarkar J.-The judgment of Chunder, J., prevented the appel-
lant from raising the question that the Court of Mr. Dutta
Gupta was a court of competent jurisdiction. That decision
was a final judgment and it did not lose its force as such
because a Superior Court in a different case subsequently
took a view which showed that the judgment was wrong. That
decision was not an interlocutory order as it decided that
the appellant had no right not to be prosecuted again. The
principle of finality of judgment obtained in criminal law
as well as it did in civil law.
In re May, 28 Ch. D. 516, Sambasivam v. Public Prosecutor,
Federation of Malaya, 1950 A.C. 458 and Ram Kirpal Shukul v.
Mussumat Rup Kuari, (1883) L.R. 11 I.A. 37, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 116 of
1957.
Appeal by special leave from the judgment and order dated
the February 10, 1955, of the Calcutta High Court, in
Criminal Revision No. 930 of 1954, arising out of the
judgment and order dated July 13, 1954, of the Sub-
Divisional Magistrate, Darjeeling in G. R. case No. 108 of
1950.
Sukumar Ghose, for the appellant.
N. R. Khanna and T. M. Sen, for the respondent.
1959. October 27. The judgment of Jafer Imam, J. L. Kapur
and K. N. Wanchoo was delivered by Kapur, J., Sarkar, J.
delivered a separate judgment.
KAPUR J.-This appeal by special leave raises a question of
the application of s. 403 of the Criminal
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Procedure Code. The circumstances in which this question
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arises are these: A complaint was filed against one S. K.
Bose and the appellant under ss. 120-B, 409, Indian Penal
Code and s. 5(2) of the Prevention of Corruption Act (2 of
1947) in the Court of the Sub-Divisional Magistrate,
Darjeeling. Against the appellant the complaint was
instituted on March 2, 1950. As the West Bengal Criminal
Law Amendment (Special Courts) Act (West Bengal 21 of 1949)
(hereinafter referred to as the Act) came into force on June
23, 1949, the case was allotted to the Special Judge at
Alipore, Mr. S.C. Dutt Gupta who, on July 11, 1951, found S.
K. Bose guilty but acquitted the appellant. S. K. Bose took
an appeal to the High Court at Calcutta.
In another case J. K. Gupta v. The State of West Bengal (1)
a Special Bench of the Calcutta High Court held that s. 4(1)
of the Act was ultra vires. Following this judgment a
Division Bench of that Court (Trevor Harries, C.J., and S.
R. Das Gupta, J.) passed the following order in S. K. Bose’s
appeal:-
The appeal must, therefore, be allowed. The conviction and
sentence are set aside and the appellant must be regarded as
an under-trial prisoner awaiting retrial, if Government so
decides. He will continue on the same bail until such
retrial."
On April 9, 1952, the West Bengal Criminal Law Amendment
(Special Courts Amending) Ordinance 1952 (West Bengal Ord. 8
of 1952) came into force and was replaced by West Bengal Act
XII of 1952 on July 30, 1952. By a Notification No. 2047J
Mr. J. C. Lodh was appointed as the Special Judge at Alipore
and on May 26, 1952, a petition of complaint was filed
against both the appellant and S.K. Bose. It was stated
therein that the High Court had held that the allotment of
the case to the previous Special Court and all proceedings
thereafter were invalid and "all such cases have been
directed to be retried according to law" and prayed for
cognizance to be taken of the offences which the appellant
and S. K. Bose were accused of. It may be pointed out that
as far as the
(1) (1952) 56 C.W.N. 701.
61
appellant was concerned the High Court had given no such
direction.
The Special Judge then summoned the appellant who on June
19, 1952, pleaded the bar of s. 403, Criminal Procedure
Code, basing it on his acquittal by the Special Judge, Mr.
S. C. Dutt Gupta. The Special Judge overruled this plea on
the ground of want of jurisdiction of the previous Special
Judge to try the offences because s. 4(1) of the Act had
been declared ultra vires by the High Court. Against this
order the appellant moved the High Court under Articles 226
& 227 and under s. 439 of the Criminal Procedure Code for
quashing the proceedings before the Special Judge. On
August 22, 1952 Notification No. 2047J. was superseded by
Notification No. 4673J. and Mr. J. C. Lodh ceased to have
jurisdiction and he passed an order on August 26 that as the
Court had no jurisdiction to continue the trial the "case be
filed and the accused be held underwater prisoner pending a
retrial according to law." The appellant thereupon amended
his petition in the High Court. On March 19, 1953, the High
Court (Chunder, J.), dismissed, the application and
discharged the rule. It held that as the Act "creating the"
Special Judge’s Court has been declared ultra vires, the
decision of that Court had no binding force and that the
High Court " did not discharge the accused persons
altogether but directed that they were to be held as
undertrial prisoners, leaving it to the Government to decide
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what further steps the Government would take." Here again
there was an error because whatever might be the legal
consequence of the order of the High Court in S.K. Bose’s
appeal there was no specific order as to the appellant.
The West Bengal Criminal Law Amendment (Special Courts)
Amending Act (West Bengal Act 22 of 1952) having come into
force, by a notification dated December 22, 1952, the case
of the appellant and S. K. Bose was allotted to the Special
Judge at Darjeeling and a fresh complaint was filed on March
27, 1953 in that Court and it issued process against both
the accused. The appellant again took objection to the
restarting
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of the proceedings. S. K. Bose, the other accused,took a
revision to the High Court (Criminal Revision No. 578 of
1953). On April 8, 1954 the High Court (Das Gupta &
Debabrata Mookerjee, JJ), quashed the proceedings in the
High Court of the Special Judge at Darjeeling on the ground
that the Amendment Act (XXII of 1952) was
inapplicable to the facts of the case. The High Court held:
"The position in law therefore was that the proceedings
against the petitioner were pending in appeal before this
Court on the 9th April, 1952; the appeal was disposed of on
that date and a retrial was ordered. There has not
therefore been a, termination of those proceedings. If
consequently the Special Courts Act does not apply to those
proceedings and those proceedings cannot be tried by a
Special Court, that position cannot be escaped by filing a
fresh petition of complaint’. The filing of fresh petition
of complaint will not institute fresh proceedings distinct
from the proceedings that were pending in appeal. So long
as these proceedings have not been disposed of in accordance
with law, fresh proceedings cannot be instituted against the
petitioner.
The result in my opinion is that the Special Court Judge,
Darjeeling has no jurisdiction to try the case instituted
before him on a complaint on the 27th of March, 1953. I
would accordingly quash the proceedings in his Court and
order that the proceedings now pending against the
petitioner in the Court of the Sub-Divisional Magistrate,
Darjeeling should now be disposed of in accordance with
law."
On May 31, 1954 the Sub-Divisional Magistrate, Darjeeling,
issued process against the appellant to appear on June 21,
1954, and on the same day the case was transferred to Mr. S.
P. Kar, Magistrate. The appellant then applied to the Sub-
Divisional Magistrate for the quashing of proceedings on the
ground that he had been acquitted by a Court of competent
jurisdiction because the Supreme Court in Kedar Nath Bajoria
v. The State of West Bengal (1) had declared s.4(1) of the
Act to be intra vires of the Constitution. The
(1) [1954] S.C.R. 30.
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learned Magistrate dismissed this petition oil the ground
that the order of the High Court dated April 8, 1954, which
directed the trial of the appellant: was passed after the
judgment of the Supreme Court and that he was bound by the
order of the, High Court. Against this order the appellant
took a revision to the High Court and the matter was heard
by Guha Roy and S. K. Sen, JJ. Guha Roy, J., held that the
order of Chunder, J., in Criminal Revision No. 965 of 1952
operated as a bar; that the proceedings before the Sub-
Divisional Magistrate at Darjeeling were really a con-
tinuation of the proceedings before Mr. J. C. Lodh, Special
Judge and that the appellant was bound by the decision of
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Chunder, J. S. K. Sen, J., agreed and held that the order of
acquittal was by a Court which was not of competent
jurisdiction and therefore it (the acquital) was no longer
in existence when Chunder, J., passed the order on March 19,
1953, and the petitioner could not get the benefit under s.
403 of the Criminal Precedure Code or the "subsequent change
in the law introduced by the Supreme Court decision " in
Kedar Nath Bajoria v. The State of West Bengal(1). The
result was that the appellant’s prayer for quashing the pro-
ceedings was rejected and the appellant has come in appeal
by special leave against this decision of the High Court.
Under s. 403(1) of the Code of Criminal Procedure a person
once tried and acquitted for an offence is not liable to be
tried again for the same offence or on the same facts. It
is this provision of the Code which the appellant relies on
in support of his appeal and submits that as he was
acquitted by a court of competent jurisdiction and which
acquittal remains - operative he cannot be tried again for
the same offence. Under the decision of this Court in Kedar
Nath Bajoria v. The State of West Bengal (1) s. 4 (1) of the
Act is intra vires and the court of the Special Judge,
Alipore, Mr. S. C. Dutt Gupta, who passed the original order
of acquittal of the appellant was a court of competent
jurisdiction and if there is no other impediment in the way
of the appellant the previous acquittal
(1) [1954] S.C.R. 30.
64
must operate as a complete bar to his being tried again on
the some facts and for the same offences. But it was
contended on behalf of the State that in his order
Chunder, J., had held that the appellant could not
plead the bar of s. 403 as the order of acquittal by the
Special Judge Mr. S. C. Dutt Gupta, was not by a court
of competent jurisdiction; and as the order had become final
whether it was right or wrong it barred the raising of that
question, i.e., applicability of s. 403 even in this Court.
It therefore becomes necessary to determine the effect of
the order of Chunder, J.
The Special Judge Mr. S. C. Dutt Gupta, acquitted the
appellant and convicted the co-accused S. K. Bose who alone
took an appeal to the High Court. That Court held s. 4(1)
of the Act to be ultra vires and set aside his conviction
and left it to Government to decide as to whether he should
again be tried or not. By filing the proceedings again the
Government decided that the appellant and S. K. Bose should
be retried. No argument was raised before us as to the
effect of that order on the appellant’s case and the
argument has proceeded on the basis that on that view of the
law the acquittal of the appellant was by a court without
jurisdiction and therefore even if no appeal was taken as
against the appellant the order of acquittal would be no
more than an order of discharge(Yusofalli Mulla Noorbhoy v.
The King (3) ). But the appellant contended that in view of
the decision of this Court in Kedar Nath Bajoria v. The
State of West Bengal (2) where the Act was declared intra
vires and s. 4(1) of the Act a good provision, the decision
of the High Court to the contrary could no longer impede the
efficacy of his plea and he was entitled to plead s. 403,
Criminal Procedure Code, as a bar to his being tried on the
same facts and for the offences of which he was acquitted.
It was also contended that the verdict of acquittal was
given by a court of competent jurisdiction and that verdict
has never been reversed and the acquittal is still in force.
It is not necessary in this appeal to decide whether it was
open to the High Court to take a different view
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(1) (1949) 76 I.A 158, 168, 169.
(2) [1954] S.C.R. 30.
65
of the effect of the order of acquittal passed by Mr. S. C.
Dutt Gupta because of the pronouncement by this Court in
Kedar Nath Bajoria’s case (1). What we have to decide in
this appeal is whether the order of Chunder, J., has the
effect of debarring the appellant from the benefit of
obtaining a review by this Court of that decision. It is
also not necessary to discuss the scope of res judicata and
the extent of its application to criminal proceedings and
its limitation to decisions of courts of competent
jurisdiction.
Except where the statute so requires it is not imperative
upon a party to appeal against every error, defect or
irregularity in any order by which he may conceive himself
aggrieved under the penalty, if he does not So do, of
forfeiting for ever the benefit of consideration by this
Court. Nothing would be more detrimental to the expeditious
administration of justice than the establishment of a rule
which would impose upon a party the necessity of appealing
against every such order. It was so held in Moheshur Singh
v. The Bengal Government (2) where a party had not appealed
from the order of Sudan, Commissioner, granting a review of
judgment. In our opinion, it would make no difference as
far as this Court is concerned whether an intermediate order
complained of is passed by the trial court and is not taken
to the High Court in revision or it is taken in revision to
the High Court and is there confirmed. We think it
unnecessary in this case to express any opinion as to the
effect of that order qua the revision in the High Court
itself, but when the matter properly comes to this Court in
appeal in such circumstances as this case it is open to this
Court unless there is any statute which provides differently
to review the order passed by the High Court as much as it
would have been if the original order passed by the trial
court had not been taken to the High Court in revision. In
civil cases this principle was accepted by the Privy
Council. See Alexander John Forbes v. Ameeroonissa Begum
(3) where an order of remand had not been appealed
(1) [1954] S.C.R. 30. (2) (1859) 7 M.I.A. 283, 302.
(3) (1865) 10 M.I.A. 340, 352.
9
66
against; Sheonath v. Ram Nath (1) where the order was a step
in the procedure that leads to a final decree; Shah Mukhun
Lal v. Baboo Sree Kishen Singh (2) where the question as to
interest was decided in an interlocutory decree not appealed
from. These cases are decisions on general principles and
are not based on any particular statute or regulation
peculiar to procedure in civil cases. We do not see why the
principle of these cases should, in the absence of any law
to the contrary, not be equally applicable to matters of a
criminal nature.
Chunder, J., in his judgment in Criminal Revision No. 965 of
1952 dated March 19, 1953 said:
" There must be a judicium before there can be res judicata.
If a judicium created by an Act is not a judicium at all
because the Act is ultra vires there can be no res decided
by it. Because there is no judicium there can be no
decision which will have a binding force."
It only means this that for an order of acquittal to be
binding it must be pronounced by a Court of competent
jurisdiction. In the judgment of the High Court in Criminal
Revision No. 930 of 1954 now under appeal S. K. Sen, J., was
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of the opinion that as the acquittal was not by a Court of
competent jurisdiction the Government regarded it as set
aside and it was no longer in force when Chunder, J., passed
his order on March 19, 1953, and " consequently the
petitioner " (Dow the appellant) " could no longer get the
benefit thereof under s. 403 Cr. P. C. on a subsequent
change in the law introduced by the Supreme Court decision
in Kedar Nath Bajoria v. The State of West Bengal (3).
Following Kedar Nath Bajoria’s case (3) we are of the
opinion that s. 4(1) of the Act was not ultra vires and the
judgment of the Calcutta High Court in J.K. Gupta v. State
of West Bengal (4) was erroneous and the acquittal by the
Special Judge Mr. S. C. Dutt Gupta was an order made by a
court of competent jurisdiction; as such it was binding
unless set aside in appeal and it was never set aside in
appeal. The observations
(1) (1865) 10 M.I.A., 413.
(2) (1868) 12 M.I.A. 157.
(3) (1954) S.C.R. 30.
(4) (1952) 56 C.W.N. 701.
67
of the Privy Council in Yusofalli Mulla Noorbhoy v. The King
Emperor (1):
" If the orders of acquittal were passed by a court of
competent jurisdiction, though wrongly, they would be
binding unless set aside in appeal " would be applicable to
the case of the appellant. If the trial court was not a
court of competent jurisdiction the acquittal would be no
more than a discharge; but if it was by a court of competent
jurisdiction it is binding unless lawfully set aside.
The plea of the appellant effectively falls within s. 403
Criminal Procedure Code. We have held that the trial in the
court of Mr. S. C. Dutt Gupta being a trial before a court
competent to pass a valid order the prosecution is bound to
accept the correctness of the verdict of acquittal and is
precluded from challenging it. As was said by Lord
Mcdermott in Sambasivam v. Public Prosecutor, Federation of
Malaya (2) in regard to a verdict pronounced by a competent
court and after a lawful trial:
" the verdict is binding and conclusive in all subsequent
proceedings between the parties to the adjudication."
This passage was quoted with approval by this Court in
Pritam Singh v. The State of Punjab(3). In our opinion the
order of Chunder, J., was based on an erroneous view of the
vires of s. 4(1) of the Act. The first trial of the
appellant was before a court of competent jurisdiction and
the verdict of acquittal was not a nullity; its efficacy was
not impaired by any binding order of the High Court; and at
this stage when the matter is properly before this court and
the proceedings are a continuation of the proceedings before
Mr. J. C. Lodh, it is not precluded from rectifying any
error or defect in the order of the High Court and giving
effect to the plea set up under s. 403. The trial before
Mr. S. C. Dutt Gupta being a lawful one which resulted in
acquittal and which has never been set aside, another trial
would place the appellant in
(1) (1949) L.R. 76 I.A. 158, 168, 169.
(2) [1950] A .C. 458, 479.
(3) A.I.R. 1956 S.C. 415,420.
68
jeopardy a second time which would contravene s. 403 of the
Criminal Procedure Code.
We therefore allow this appeal, set aside the order
of the Calcutta High Court directing the complaint to
be proceeded within the court of the Sub-Divisional
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Magistrate and the proceedings against the appellant are
quashed.
SARKARJ.-In my view this appeal fails.
On March 2, 1950, the appellant and one Bose were prosecuted
for certain offenses under the West Bengal Criminal Law
Amendment (Special Courts) Act, 1949. The case was heard by
Mr. Dutta Gupta who, on July 11, 1951, acquitted the
appellant but convicted Bose. Bose appealed to the High
Court at Calcutta. The High Court, following its own
earlier decision in J. K. Gupta & Ors. v. The State of West
Bengal (1), found that the Act was invalid as it offended
art. 14 of the Constitution. The High Court thereupon held
that Bose’s conviction under the Act could not be sustained
and set it aside.
This judgment was passed on April 9, 1952. On the same day
the Government of West Bengal passed an Ordinance amending
the Act, which Ordinance was later replaced by another Act.
Under the Act as amended, fresh proceedings in respect of
the same offenses were started both against the appellant
and Bose on May 26, 1952, in the Court of Mr. Lodh who was
empowered by the Government under the Act as amended, to
deal with it.
On June 19, 1952, the appellant made an application to Mr.
Lodh for an order that the prosecution against him be
quashed as he had earlier been acquitted of the same
offences by Mr. Dutta Gupta. This application was rejected
by Mr. Lodh. On September 2, 1952 the appellant moved the
High Court at Calcutta by revision petition No. 965 of 1952
against the order of Mr. Lodh. This petition was disposed
of by Chunder, J., by order dated March 19, 1953, whereby
the learned Judge held that the proceedings could not be
quashed as, in view of the judgment of the High Court dated
(1) (1952) 56 C.W.N. 701.
69
April 9, 1952, it must be held that Mr. Dutta Gupta was not
a court of competent jurisdiction and the acquittal by him
was of no effect. Before the revision petition No. 965 of
1952 was filed, the Government had withdrawn the case
against the appellant and Bose from Mr. Lodh. It is said
that the revision petition was filed in ignorance of such
withdrawal.
After withdrawing the case from Mr. Lodh the Government by
Notifications dated December 22, 1952 and March 24, 1953,
assigned it for trial under the Act as amended, to a court
at Darjeeling. A fresh petition of complaint was thereupon
filed against the appellant and Bose in that Court. Bose
then moved the High Court at Calcutta by a revision petition
for quashing the proceedings on the ground that the Act as
amended did not apply to him. On April 8, 1954 the High
Court allowed Bose’s application and quashed the proceedings
holding that the amended Act did not apply to any proceeding
pending on the date of the commencement of the Ordinance,
namely, April 9, 1952, in any court other than a court
constituted under the Act and that on that date the
proceeding against Bose was pending in the High Court which
was not a court under the Act.
While the revision petition mentioned in the preceding
paragraph was pending in the High Court, this Court on May
22, 1953 delivered judgment in Kedar Nath Bajoria v. State
of West Bengal (1), whereby it held that the judgment of the
High Court at Calcutta in J. K. Gupta v. The State of West
Bengal(2), was wrong and that the Act was constitutionally
valid.
After the decision of the High Court of April 8, 1954,
proceedings againt the appellant and Bose were started
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afresh in the Court of the Sub-Divisional Magistrate,
Darjeeling under the provisions of the Code of Criminal
Procedure. On June 21, 1954 the appellant applied to the
Sub-Divisional Magistrate, Darjeeling for an order quashing
the proceeding against him as in view of the judgment of
this Court in Kedar Nath Bajoria’s case(1), to which
reference has
(1) [1954] S.C.R. 30.
(2) (1952) 56 C.W.N. 701.
70
been earlier made, it had to be held that his acquittal by
Mr. Dutta Gupta was an acquittal by a court of competent
jurisdiction and that therefore the appellant could not be
tried for the same offence over again. The Sub-
Divisional Magistrate dismissed this application by his
order passed on July 13, 1954 holding that he was bound
by the order of the High Court dated April 8, 1954 which
directed the case to be tried and which was passed after the
judgment of this Court in Kedar Nath Bajoria’s case (1), had
been delivered. The appellant them moved the High Court at
Calcutta in revision against this order of the Sub-
Divisional Magistrate by criminal revision petition No. 930
of 1954. The High Court by its judgment dated February 10,
1955 dismissed this revision case holding that
notwithstanding the judgment of this Court in Kedar Nath
Bajoria’s case (1), the judgment of Chunder, J., dated March
19, 1953 was binding on the appellant and it bad therefore
to be held that the acquittal of the appellant by Mr. Dutta
Gupta no longer remained in force after the judgment of
Chunder, J., It is from this judgment that the present
appeal arises.
In my opinion the view taken by the High Court is right.
The question is whether the appellant is entitled to an
order quashing the prosecution against him as he bad earlier
been acquitted by Mr. Dutta Gupta. The appellant contends,
relying on the principle of autrefois acquit, that he is.
That principle is enacted in s. 403 of the Code of Criminal
Procedure. It then comes to this: Is the appellant entitled
to the benefit of s. 403 ?
The principle stated in the section is that when a person
has once been tried by a court of competent jurisdiction for
an offence and convicted or acquitted of it, he shall not
while the conviction or acquittal remains in force, be tried
again for the same offence. In order, therefore, that the
appellant may have the benefit of the section he must have
been tried by a court of competent jurisdiction.
Furthermore, such acquittal must be in force.
(1) [1954] S.C.R. 30.
71
It is said that notwithstanding the judgment of the High
Court in J. K. Gupta’s case (1) it must now be held in view
of the judgment of this Court in Kedar Nath Bajoria’s
case(2) that the acquittal by Mr. Dutta Gupta was an
acquittal by a court of competent jurisdiction. It seems to
me that the judgment in Kedar Nath Bajoria’s case(") is
really irrelevant. If the Court of Mr. Dutta Gupta, was in
law a court of competent jurisdiction, it would remain such
whether this Court declared it to be so or not. Any court
before which a plea of autrefois acquit is taken, must
decide for itself and of course in coming to its decision it
must follow such precedents as are binding upon it-whether
the Court which had earlier acquitted the accused was a
court of competent jurisdiction. Its power to decide that
question is not derived from a decision of a higher court
pronouncing upon the question of the competence of the Court
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which earlier acquitted’ the accused. Therefore it seems to
me that Kedar Nath Bajoria’s Case (2), does not decide the
case before us.
Now, in order to get the benefit of s. 403, the appellant
has to show that the Court of Mr. Dutta Gupta, which
acquitted him was a court of competent jurisdiction. But
another prior question arises in this case. That is this:
Is it open to the appellant in view of the order of Chunder,
J., to contend that the Court of Mr. Dutta Gupta was a court
of competent jurisdiction ? In other words, can he at all
raise the question whether the Court of Mr. Dutta Gupta was
a court of competent jurisdiction ? Is he not bound by the
judgment of Chunder, J., to the position that Mr. Dutta
Gupta did not constitute a court of competent jurisdiction ?
It is no doubt true that if it is open to the appellant to
contend that the Court of Mr. Dutta Gupta was a court of
competent jurisdiction, the decision of this Court in Kedar
Nath Bajoria’s case (2) would help him to establish that
contention. If it is Dot so open to him that decision does
not avail him at all.
It seems to me that the judgment of Chunder, J., prevents
the appellant from raising the question that
(1) (1952) 56 C.W.N. 701.
(2) [1954] S.C.R. 30
72
the Court of Mr. Dutta Gupta, was a court of com-
petent,jurisdiction. That question was directly raised by
the appellant by revision petition No. 965 of 1952
of in which the judgment of Chunder, J., was passed.
Chunder, J., held that the Court of Mr. Dutta Gupta, was not
a court of competent jurisdiction. He bad fall
jurisdiction to decide the petition and the question. His
jurisdiction to do so was never questioned.
The decision of Chunder, J., is a final judgment and must
have effect as such. It must be treated as binding on the
appellant. It is no doubt true that Kedar Nath Bajoria’s
case (1) shows that Chunder, J.’s, judgment was wrong. That
however does not make his decision lose its force as a final
judgment. A final judgment does not lose its force as such
because a superior court in a different case subsequently
takes a view which shows that judgment to be wrong. A final
judgment however wrong is still a final judgment. Its
binding force does not depend upon its correctness.’ In
order to dispel any doubt as to the jurisdiction of Chunder,
J., to decide the criminal revision petition No. 965 of
1952, I wish to observe here that there is nothing in the
order of the High Court dated April 8, 1954 to show that he
did not have such jurisdiction. That order only held that
in view of s. 12 of the Act as amended, the Court at
Darjeeling constituted under the Act had no jurisdiction to
try the case against Bose as it had been pending on the
specified date in a court which was not a court constituted
under the Act. That reasoning does not apply to the case
against the appellant in which the criminal revision
petition NO. 965 of 1952 had been moved for that case was
not pending on that date in any court at all.
Then it seems to me clear that the decision of Chunder, J.,
being a final judgment and binding on the appellant, he
cannot be heard to contend that the Court of Mr. Dutta Gupta
by which he was acquitted was a court of competent
jurisdiction. That result follows from the rule of res
judicata which applies to all final judgments. The rule is
not a matter of
(1) [1954] S.C.R. 30.
73
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technicality. It is based on fundamental principles
expressed in the maxims, interest reipublicae ut sit finie
litium, and nemo debet bis vexari pro una et eadem causa:
see Halsbury’s Laws of England, (3rd Ed.),vol. 15 p.177.
Brett, M.R. said in In re May.
The doctrine of res judicata is not a technical doctrine
applicable only to records. It is a very substantial
doctrine, and it is one of the most fundamental doctrines of
all Courts, that there must be an end of litigation, and
that the parties have no right of their own accord, after
having tried a question between them and obtained a decision
of a Court, to start that litigation over again on precisely
the same- questions."
I feel no doubt that the principle of the finality of
judgment obtains in criminal law as well as it does in civil
law. Section 403 of the Code is no doubt based on the same
principle. But I find no reason to confine its application
within the limits of the section. I find clear support for
this view in the judgment of the Privy Council in Sambasivam
v. Public Prosecutor, Federation of Malaya(2)where it was
said at p. 479:
" The effect of a verdict of acquittal pronounced by a
competent court on a lawful charge and after a lawful trial
is not completely stated by saying that the person acquitted
cannot be tried again for the same offence. To that it must
be added that the verdict is binding and conclusive on all
subsequent proceedings between the parties to the
adjudication. The maxim " Res judicata pro veritate
aceipitur " is no less applicable to criminal than to civil
proceedings."
Then it is said that the order of Chunder, J., was an
interlocutory order to which the principle of res judicata
does not apply. I am unable to agree that order was an
interlocutory order. It plainly decided the right of the
appellant; it decided that the appellant had no right not to
be prosecuted again. It is clear law that the principle of
res judicata applies to all orders which finally determine
the rights of the
(1)(1885) 28 Ch. D. 516, 518.
10
(2) [1950] A.C. 458.
74
parties: see Halsbury’s Laws of England (3rd Ed.) p. 177.
The case of Ram Kirpal Sukul v. Mussumat Rup Kuari (1)
is of great assistance. There in the course of
execution proceedings it had been decided by the District
Judge, Mr. Probyn, that the decree under execution
awarded future mesne profits. It ’Was held by the Judicial
Committee that in the later stages in the course of the same
execution proceeding the question whether the decree had
awarded mesne profits could not, in view of Mr. Probyn’s
decision, be reopened and canvassed again. It was observed
at pp. 42-43,
" The decree of the Sudder Court was a written document.
Mr. Probyn had jurisdiction to execute that decree, and it
was consequently within his jurisdiction, and it was his
duty to put a construction upon it. He had as much
jurisdiction, upon examining the terms of the decree, to
decide that it did award mesne profits as he would have had
to decide that it did not. The High Court assumed
jurisdiction to decide that the decree did not award mesne
profits, but, whether their construction was right or wrong,
they erred in deciding that it did not, because the parties
were bound by the decision of Mr. Probyn, who, whether right
or wrong, had decided that it did, a decision which, not
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having been ’appealed, was final and binding upon the
parties and those claiming under them. It is not necessary,
nor would it be correct, for their Lordships to put their
construction upon the decree of the Sudder Court. If the
Subordinate Judge and the Judge were bound by the order of
Mr. Probyn in proceedings between the same parties on the
’same judgment, the High Court were bound by it and so also
are their Lordships in adjudicating between the same
parties.
Applying the reasoning adopted in Ram Kirpal’s case(1) it
would appear that the order of Chunder, J., cannot now be
questioned before us and the appellant is bound by it.
(1) (1885) L.R. 11 I.A. 37.
75
As the appellant cannot contend that his acquittal by Mr.
Dutta Gupta was an acquittal by a court of competent
jurisdiction, he cannot plead s. 403 in support of this
appeal. I appreciate that the view that I have taken is
hard on the appellant. But it does not seem to me that he
was entirely without a remedy. I would have been prepared
to give relief to the appellant if he had appealed from the
judgment of Chunder J. and for that purpose I would have
felt no difficulty in extending the time to appeal. As it
is, I feel that the appeal must be dismissed.
ORDER OF COURT.
In accordance with the opinion of the majority the appeal is
allowed, the order of the Calcutta High Court directing the
complaint to be proceeded within the Court of the Sub-
Divisional Magistrate is set aside, and the proceedings
against the appellant are quashed.