LexN. R. GROSE ALIAS NIKHIL RANJAN GROSE versus THE STATE OF WEST BENGAL
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I959 October 27. 58 SUPREME COURT REPORTS [1960 (2)] N. R. GROSE alias NIKHIL RANJAN GROSE v. THE STATE OF WEST BENGAL (JAFER IMAM, J. L. KAPUR, A. K. SARKAR and K. N. WANCHOO, JJ.) 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, I898 (V of I898), s. 403. ' 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 dated1 July II, 1951, acquitted the appellant but convict- ed 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 In the meantime the case was withdrawn from Mr.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 f~esh complaint was filed against both accused. On an application made by Bose the High Court quashed these proceedings and directed the pro- ceedings pending in the Court of the Sub-Divisional Magistrate, Darjeeling, to be disposed of in accordance with law. By thjs 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 Proce- dure, 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 dismissed by the High Court on the ground that the appellant was bound by the decision of Chunder, J., holding that the acquit- tal 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 Keaar Nath Bajoria's case the trial before Mr. Dutta Gupta, Special Judge was a lawful one and the acquit- tal 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 • - \ .. -- i - S.0.R. ~UPREME COURT REPORTS 59 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 5e 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 ofli' est Bengal, [1954] S.C R. 30, followed . Maharaja Moheshur Singh v. The Bengal Government, (1859) 7 M.l.A. 283, Alexander John Forbes v. Ameeroonissa Begum, (1865) IO M.I.A. 340, Sheonath v. Ram Nath, (1865) IO M.I.A. 413 and Shah Mukhun Lal v. Baboo Sree Kishen Singh, (1868) I2 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.LR. 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 inter- locutory order as it decided that the appellant had no right not to be prosecuted again. The principle of finality of judgment obtained in qiminal law as well as it did in civil law. In re May, 28 Ch. D. 516, Sa
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