LexSTATE OF WEST BENGAL versus HEMANT KUMAR BHATTACHARJEE AND OTHERS
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542 SUPREME COURT REPORTS [1963] SUPP. 1'62 STATE OF WEST BENGAL - x...,,,;,,. 21. "· HEMANT KUMAR BHATIACHARJEE AND OTHERS (S. J. IMAM, K. SUBBA RAO, N. RAJAGOPALA AYYANOAR and J. R. MUDHOLKAR, JJ.) Criminal Trial-Jurisdiction-West Bengal Criminal Law Amendment (Special Courts) Act, Act XII of 1952, .•. 12. A charge sheet was placed on 19-1-1951 before the Chief Presidency Magistrate, Calcutta, against the 1st respondent and others under s. 120-B read with s. 409 of the Indian Penal Code and s 5 (2) of the Prevention of Corruption Act. By an order of the Government the case was allotted to the Special Judge under the West &ngal Criminal Law Amendment Act. At the instance of the respondents, the Calcutta High Court quashed the allotment on 4-4-1952 on the ground thats. 4 (1) of the Act which enabled the Government to allot the case was unconstitutional. The Act was amended by an Ordinance and later the Ordinance was replaced by the West Bengal Act 12 of 1952. On the promulgation of the Ordinance the charge sheets against the respondent~ were refiled in the Court of the Special Judge. This was again challenged and the High Court held that as the summons issued by the Special Judge on the refiled charge sheet lapsed with the Ordinance and as neither the Act nor the Ordinance made a provision to save the proceedings instituted under the Ordinance, there could be no further proceedings against the respondents. The Government filed a fresh charge sheet on 13-6-1953 against the respondents. The respondents questioned the jurisdiction of the Special Judge on the ground that by reason of s. 12 of the Act of 1952 it was the Chief Presidency Magistrate alone who had juris· diction over the case and th4t could not be legally allotted to the Special Judge. The Special Judge having over-ruled the objection, the matter was again taken up to the liigh Court in revision. The High Court dismissed the Revision Petition and this Court also declined to grant special leave at that stage. The respondents again raised an objection before the Special Judge who this time upheld the objection and discharged the respondents. The Government without questioning the order of the Special Judge filed a charge sheet before the Chief Presidency Magistrate who issued process agaimt the respon· pents. The first respondent again challenged this by way of a 2S.C.R. SUPREME COURT REPORTS 543 revmon in the High Court. On 19-12-56 the High Court set aside the order of the Chief Presidency Magistrate on the ground that the effect of the earlier order of the High Court dated 2'!-3-1%3 was to uphold the jurisdiction of the Special Judge and therefore the Chief Presidency Magistrate could .not try the case. The Government filed a fresh charge sheet in the Court of the Special Judge to which the first respondent objected again and took it before th~ Iligh Court for revision. The High Court held that by reason of s. 12 of the Act, it was the Chief Presidency Magistrate who had jurisdiction and not the Special Judge. Held, that the decision of the High Court regarding the unconstitutionality of s. 4 (I) of the first Act was binding between the parties and its correctness could not be collaterally or incidentally challenged th~re not having been an appeal t1ken from that decision. Ileld, further, that though the effect of quashing of the allotment by the High Court was to leave the charge sheet pending before the Chief Presidency Magistrate, the effect of the subsequent proceed resulting in the decision of the High Court dated the December, 19, J 956, was that the Specia!Juclge had jurisdiction over the case and this decision bound !he parties. Held, further, that the fresh charge sheet filed came within the prohibition of s. 12 and it could not be crmsiclered to be the initiation of a new proceeding. CRIMINAL APPELLATE JuRISDTCTWN : Criminal Appeal No. 207 of 1959. Appeal by special leave from the judgment and order dated May 9, 1958 of the Calcutta High Court in Criminal Revision No. 1128of1957. fl. R. Khanna and R. N. S11chthey, for the appellant. The Respondent in person. 1962. November 27. The Judgment of the Court was delivered by AYYANGAR, J.~Tbis is an appeal by special leave preferred by the State of West Bengal against 1962 State of We.rt Bmgal v. Hemani Kumar BhattacMrjee 1962 Stott of lfest Btntal v. Htmant Kumar Bhattacharjee Ayyangar, J. 544 SUPREME
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