TMI Blog1959 (10) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 retrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quitted 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 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. Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 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 against; Sheonath v. Ram Nath (1) wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquittal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction 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 technicality. It is based on fundamental principles expressed in the maxims, interest reipublicae ut sit finie litium, and nemo debet bis vexari pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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