N. R. Ghose Alias Nikhil Ranjan Ghose vs The State of West Bengal

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 116 of 1957

Decision Date: 27 October, 1959

Coram: J.L. Kapur, Syed Jaffer Imam, A.K. Sarkar, K.N. Wanchoo

In the matter titled N. R. Ghose alias Nikhil Ranjan Ghose versus The State of West Bengal, the Supreme Court of India delivered its judgment on 27 October 1959. The judgment was authored by Justice J. L. Kapur and the bench was composed of Justices J. L. Kapur, Syed Jaffer Imam, A. K. Sarkar and K. N. Wanchoo. The petitioner was N. R. Ghose, also known as Nikhil Ranjan Ghose, and the respondent was the State of West Bengal. The case is reported in 1960 AIR 239 and 1960 SCR (2) 58, and is cited in later authorities such as F 1970 SC 962 (8). The operative statute concerned was the Criminal Trial-Autrefois acquit provision, and the issue involved a plea of bar under section 403 of the Code of Criminal Procedure, 1898 (V of 1898). The central question was whether an order of a trial court, which rejected a plea invoking that bar, could be challenged on appeal against later orders in the same proceeding, taking into account the principle of finality of criminal decisions.

According to the headnote, a complaint was initially filed against the appellant and another accused, Bose, before the Sub-Divisional Magistrate of Darjeeling. The case was assigned under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 to Mr. Dutta Gupta, a special judge at Alipur. By an order dated 11 July 1951, Mr. Gupta acquitted the appellant while convicting Bose. Bose appealed the conviction to the High Court, which held the Act to be ultra vires and set aside the conviction. After the amendment of the Act, a second complaint was lodged against both accused before another special judge, Mr. Lodh, also of Alipur. The appellant invoked the bar of section 403, CPC, relying on his earlier acquittal by Mr. Gupta, but the special judge rejected this plea.

The appellant then sought revision in the High Court. On 19 March 1953, Justice Chunder ruled that the earlier acquittal was not rendered by a competent court because the Act that created that court had been declared ultra vires, and consequently dismissed the appellant’s application. Subsequently, the case was withdrawn from Mr. Lodh and reassigned to the special judge of Darjeeling, where a fresh complaint was filed against both accused. On an application by Bose, the High Court struck down those proceedings and ordered that the pending proceedings before the Sub-Divisional Magistrate of Darjeeling be dealt with according to law.

During this period, the Supreme Court, in Kedar Nath Bajoria v. The State of West Bengal, upheld the validity of the amended Act as intra vires. The appellant again raised the bar of section 403, asserting that, in light of the Supreme Court’s decision, his earlier acquittal was by a competent court. The magistrates rejected the plea, and a further revision application was dismissed by the High Court on the ground that the appellant was bound by Justice Chunder’s earlier finding that the acquittal had been rendered by a court lacking jurisdiction. The appellant then appealed to the Supreme Court by way of special leave. Justice A. K. Sarkar, dissenting, observed that, considering the Supreme Court’s decision in Kedar Nath Bajoria’s case, the trial before Mr. Dutta Gupta was lawful and the acquittal, which had never been set aside, constituted a bar to any subsequent trial.

Dutta Gupta, the Special Judge, was held to have been duly appointed, and the appellant’s acquittal, which had never been set aside, operated as a bar against any further trial. The appellant was entitled to challenge, in the present appeal, the order pronounced by Justice Chunder on 19 March 1953. The law did not require a party, except where the statute expressly demanded it, to appeal every error, defect or irregularity in any order that caused grievance; failure to do so did not deprive the party of the right to have the matter examined by the Supreme Court. For the Supreme Court, it made no material difference whether the intermediate order under attack had been issued by a Trial Court and left unreferred to the High Court, or whether it had been taken to the High Court and subsequently affirmed. The decision in Kedar Nath Bajoria v. The State of West Bengal, [1954] S.C.R. 30, was therefore followed. Earlier authorities such as 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 were referred to, while the cases of 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 were applied. Justice Sarkar observed that the judgment of Justice Chunder barred the appellant from contesting the proposition that the court of Mr Dutta Gupta possessed competent jurisdiction. That judgment was a final one and retained its force notwithstanding that a superior court, in a different proceeding, later expressed a view indicating that the earlier judgment was erroneous. The order was not interlocutory, for it concluded that the appellant had no right to be insulated from prosecution anew. The principle of finality of judgment applied equally in criminal and civil contexts, as illustrated in 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. The judgment section then recorded that the criminal appellate jurisdiction was invoked by Criminal Appeal No. 116 of 1957, filed by special leave against the judgment and order dated 10 February 1955 of the Calcutta High Court in Criminal Revision No. 930 of 1954, which arose from the judgment and order dated 13 July 1954 of the Sub-Divisional Magistrate, Darjeeling in G.R. case No. 108 of 1950. Counsel for the appellant was Sukumar Ghose and counsel for the respondent were N. R. Khanna and T. M. Sen. The opinion was delivered on 27 October 1959, with the judgment of Justices Jafer Imam, J. L. Kapur and K. N. Wanchoo read by Justice Kapur, while Justice Sarkar delivered a separate judgment. Justice Kapur noted that this appeal by special leave raised the question of the application of section 403 of the Criminal Procedure Code. The factual backdrop to that question was that a complaint had been lodged against S. K. Bose and the appellant under the relevant sections.

In the matter before the Sub-Divisional Magistrate of Darjeeling, a complaint was lodged against the appellant on 2 March 1950 under sections 120-B, 409 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act, 1947. Because the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (hereinafter “the Act”) had been in operation since 23 June 1949, the case was assigned to the Special Judge at Alipore, Mr S.C. Dutt Gupta. On 11 July 1951, Judge Gupta pronounced a conviction against S. K. Bose while acquitting the appellant. S. K. Bose consequently appealed to the Calcutta High Court. In a separate proceeding, J. K. Gupta v. State of West Bengal (1), a Special Bench of that High Court ruled that section 4(1) of the Act was ultra vires. Following that decision, a Division Bench consisting of Chief Justice Trevor Harries and Justice S.R. Das Gupta set aside S. K. Bose’s conviction, ordered his release on bail, and directed that he be treated as an under-trial prisoner pending a possible retrial as determined by the Government.

Subsequently, on 9 April 1952 the West Bengal Criminal Law Amendment (Special Courts Amending) Ordinance 1952 (West Bengal Ordinance 8 of 1952) came into force and was later replaced by West Bengal Act XII of 1952 on 30 July 1952. By Notification No. 2047J, Mr J.C. Lodh was appointed Special Judge at Alipore. On 26 May 1952 a fresh complaint was filed against both the appellant and S. K. Bose, alleging that the High Court had declared the earlier allocation of the case to the former Special Court and all subsequent proceedings as invalid and had instructed that “all such cases be retried according to law.” The petition sought that the offences alleged against the two accused be taken on record. It is noteworthy that, with respect to the appellant, the High Court had not issued any specific direction. The Special Judge summoned the appellant, and on 19 June 1952 the appellant invoked the bar of section 403 of the Criminal Procedure Code, relying on his earlier acquittal by Judge Gupta. The Special Judge rejected this plea, holding that the previous Special Judge lacked jurisdiction to try the offences because section 4(1) of the Act had been declared ultra vires by the High Court. The appellant then approached the High Court under Articles 226 and 227 of the Constitution and under section 439 of the Criminal Procedure Code, seeking to have the Special Judge’s proceedings set aside. On 22 August 1952 Notification No. 2047J was superseded by Notification No. 4673J, resulting in Mr J.C. Lodh losing jurisdiction. Nevertheless, on 26 August 1952 he issued an order stating that, as the Court no longer possessed jurisdiction to continue the trial, the case should be filed and the accused held as under-trial prisoners pending a retrial in accordance with law.

The Court observed that the Special Judge had previously held that it lacked jurisdiction to continue the trial and therefore ordered that the case be filed and that the accused remain in custody as “underwater prisoners” pending a lawful retrial. The appellant subsequently amended his petition before the High Court. On 19 March 1953 the High Court, sitting with Justice Chunder, dismissed the application and discharged the rule. The High Court reasoned that, because the Act creating the Special Judge’s Court had been declared ultra vires, the decisions of that Court possessed no binding effect. However, the High Court did not release the accused entirely; instead it directed that they continue to be held as under-trial prisoners and left it to the Government to determine any further action. The Court noted that this ruling contained an error: although it addressed the legal consequences of the order in S. K. Bose’s appeal, it failed to make any specific order concerning the appellant himself.

Subsequently, the West Bengal Criminal Law Amendment (Special Courts) Amending Act 22 of 1952 came into force by a notification dated 22 December 1952. Under this amendment, the appellant’s case together with that of S. K. Bose was assigned to the Special Judge at Darjeeling, and a fresh complaint was lodged on 27 March 1953, after which process was issued against both accused. The appellant again objected to the re-initiation of proceedings, while S. K. Bose filed a criminal revision (No. 578 of 1953) before the High Court. On 8 April 1954 a two-judge bench of the High Court, comprising Justices Das Gupta and Debabrata Mookerjee, set aside the Darjeeling Special Judge’s proceedings, holding that the Amending Act did not apply to the facts of the case. The Court explained that the proceedings against the petitioner were still pending on appeal as of 9 April 1952, that the appeal had been disposed of on that date with an order for retrial, and that therefore the earlier proceedings had not terminated. Consequently, the Special Courts Act could not be invoked to bypass the existing proceedings, and filing a fresh complaint could not create a separate trial while the original appeal remained unresolved. Accordingly, the Special Judge at Darjeeling lacked jurisdiction to try the complaint filed on 27 March 1953, and the Court quashed those proceedings. It ordered that the pending proceedings before the Sub-Divisional Magistrate of Darjeeling be dealt with in accordance with law.

Following the High Court’s direction, on 31 May 1954 the Sub-Divisional Magistrate of Darjeeling issued process requiring the appellant to appear on 21 June 1954. On that same day the case was transferred to Magistrate S. P. Kar.

On the same day that the case was transferred to Magistrate S. P. Kar, the appellant filed an application before the Sub-Divisional Magistrate seeking the quashment of the proceedings on the basis that he had already been acquitted by a court of competent jurisdiction, relying on the Supreme Court’s decision in Kedar Nath Bajoria v. The State of West Bengal, reported in 1954 SCR 30, which held that section 4(1) of the Act was within the constitutional limits. The learned magistrate rejected the application, reasoning that the High Court order dated 8 April 1954, which directed the appellant’s trial, had been issued after the Supreme Court judgment and that the magistrate was bound by the High Court’s directive. Dissatisfied with that dismissal, the appellant filed a revision before the High Court, where Judges Guha Roy and S. K. Sen heard the matter. Justice Guha Roy observed that the order of Justice Chunder in Criminal Revision No. 965 of 1952 operated as a bar, and that the proceedings before the Sub-Divisional Magistrate at Darjeeling were essentially a continuation of the earlier proceedings before Special Judge J. C. Lodh, thereby binding the appellant by Justice Chunder’s decision. Justice S. K. Sen concurred, adding that the acquittal had been rendered by a court lacking competent jurisdiction and therefore ceased to exist when Justice Chunder issued his order on 19 March 1953; consequently, the appellant could not invoke the protection of section 403 of the Code of Criminal Procedure nor rely on the “subsequent change in the law” introduced by the Supreme Court ruling in Kedar Nath Bajoria. As a result, the High Court rejected the appellant’s prayer to quash the proceedings, and the appellant subsequently appealed the decision by special leave. The appellant’s appeal rests on section 403(1) of the Code of Criminal Procedure, which stipulates that a person who has been tried and acquitted of an offence may not be tried again for the same offence on the same facts. He contends that his earlier acquittal was rendered by a court of competent jurisdiction and remains operative, thus barring any further trial for the same offence. Moreover, the appellant relies on the Supreme Court’s pronouncement in Kedar Nath Bajoria that section 4(1) of the Act is intra vires, and on the finding that the Special Judge of Alipore, S. C. Dutt Gupta, who originally granted the acquittal, was a court of competent jurisdiction; consequently, in the absence of any other impediment, that acquittal should operate as an absolute bar to any subsequent prosecution on the same facts and for the same offences. The respondent, however, argued otherwise, challenging the appellant’s reliance on these authorities.

In the order issued by Justice Chunder, it was observed that the appellant was not entitled to rely on the protection provided by section 403 of the Criminal Procedure Code because the acquittal granted by the Special Judge, Mr S C Dutt Gupta, was not rendered by a court possessing the necessary jurisdiction. Justice Chunder further held that, once the order of acquittal had become final, the correctness of that order—whether it was right or wrong—precluded any further consideration of the applicability of section 403, even before this Court.

The present case therefore required an examination of the legal effect of Justice Chunder’s order. The Special Judge, Mr S C Dutt Gupta, had acquitted the appellant while convicting the co-accused, S K Bose, who alone appealed the conviction to the High Court. The High Court, after hearing the appeal, declared section 4(1) of the Act to be ultra vires, set aside Bose’s conviction, and left it to the Government to decide whether Bose should be retried. Subsequently, the Government ordered that both the appellant and S K Bose be retried. No party raised before this Court any argument concerning the impact of the High Court’s order on the appellant’s case; instead, the argument proceeded on the premise that, given the High Court’s view of the law, the appellant’s acquittal had been rendered by a court lacking jurisdiction. Consequently, even in the absence of an appeal against the appellant’s acquittal, that acquittal would be treated merely as an order of discharge, relying on the principle articulated in Yusofalli Mulla Noorbhoy v. The King (3).

The appellant, however, contended that the precedent set by Kedar Nath Bajoria v. The State of West Bengal (2), which upheld the constitutionality of the Act and declared section 4(1) to be a valid provision, rendered the High Court’s contrary decision ineffective. Accordingly, the appellant argued that he remained entitled to invoke section 403 of the Criminal Procedure Code as a bar to being tried again on the same facts and for the offences for which he had been acquitted. He further maintained that the acquittal had been delivered by a court of competent jurisdiction, that the acquittal had never been reversed, and that it therefore continued to be operative.

The Court recognized that it was unnecessary to determine whether the High Court was empowered to adopt a view different from that expressed in Kedar Nath Bajoria’s decision, given the latter’s authoritative pronouncement on the matter (1). The issue before this Court was limited to deciding whether Justice Chunder’s order precluded the appellant from seeking a review of that order before this Court. The broader questions concerning the scope of res judicata, its application to criminal proceedings, and its limitation to decisions of courts of competent jurisdiction were deemed unnecessary for resolution in the present appeal, except where a statute expressly mandates a particular approach.

In this case the Court observed that a party who wishes to raise an appeal against any error, defect or irregularity in an order that he believes injures his interests must do so, otherwise he will permanently lose the opportunity to have that order considered by the Court. The Court warned that it would be highly detrimental to the speedy administration of justice if a rule were created that forced a party to appeal every such order. The principle was earlier affirmed in Moheshur Singh v. The Bengal Government (2), where the Court noted that a party had failed to appeal a decision of the Sudan Commissioner granting a review of judgment and the consequences of that failure were recognized.

The Court further explained that, with respect to its own jurisdiction, it makes no difference whether an intermediate order that is complained of originates from the trial court and is never taken to the High Court in revision, or whether that order is taken to the High Court on revision and is subsequently confirmed there. The Court stated that it was unnecessary to comment on the effect of the order as it stood before the High Court, but when the matter properly arrives before this Court on appeal, the Court is free to review the High Court’s order in the same manner as it would have reviewed the original trial-court order, provided that no statutory provision says otherwise.

The Court then referred to civil-law authority, noting that the Privy Council had accepted this principle. It cited Alexander John Forbes v. Ameeroonissa Begum (3), where an order of remand had not been appealed, Sheonath v. Ram Nath (1), where the order was merely a procedural step towards a final decree, and Shah Mukhun Lal v. Baboo Sree Kishen Singh (2), where an interlocutory decree on interest was not appealed. These authorities were characterised as decisions on general principles, not dependent on any specific civil procedural statute. The Court expressed no reason why, in the absence of any contrary law, the same principle should not be applied to criminal proceedings.

Finally, the Court quoted the earlier judgment of Chunder, J. in Criminal Revision No. 965 of 1952 dated 19 March 1953, wherein he stated: “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.” The Court interpreted this to mean that an order of acquittal is binding only when pronounced by a Court of competent jurisdiction. The discussion then turned to the judgment of the High Court in Criminal Revision No. 930 of 1954, which is presently under appeal, authored by S. K. Sen.

Justice J. had earlier expressed the view that because the acquittal had not been rendered by a court possessing competent jurisdiction, the Government treated that acquittal as having been set aside. Consequently, according to that view, the acquittal was no longer operative when Justice Chunder issued his order on 19 March 1953. The writer further stated that, as a result, the petitioner – identified as Dow, the appellant – could not rely on the protection afforded by section 403 of the Criminal Procedure Code after the Supreme Court altered the law in Kedar Nath Bajoria v. State of West Bengal (3).

The Court now disagreed with the earlier opinion. It held that section 4(1) of the West Bengal Criminal Law Amendment (Special Courts) Act was not ultra vires and that the Calcutta High Court’s decision in J.K. Gupta v. State of West Bengal (4) was erroneous. The Court observed that the acquittal pronounced by Special Judge S.C. Dutt Gupta was an order issued by a court of competent jurisdiction; therefore, the order was binding unless reversed on appeal, and no such reversal had ever occurred. The Court relied on the Privy Council’s observations in Yusofalli Mulla Noorbhoy v. The King-Emperor (1), which stated that “if the orders of acquittal were passed by a court of competent jurisdiction, though wrongly, they would be binding unless set aside in appeal.” The Court explained that an acquittal rendered by a court lacking jurisdiction would amount only to a discharge, whereas an acquittal issued by a properly constituted court would remain binding unless lawfully set aside. Accordingly, the appellant’s plea fell squarely within the ambit of section 403 of the Criminal Procedure Code.

The Court affirmed that the trial conducted before Judge S.C. Dutt Gupta was a lawful trial before a court capable of issuing a valid acquittal. Consequently, the prosecution was obligated to accept the correctness of the acquittal and was barred from challenging it. The Court further cited Lord McDermott’s statement in Sambasivam v. Public Prosecutor, Federation of Malaya (2), which declared that a verdict pronounced by a competent court after a lawful trial “is binding and conclusive in all subsequent proceedings between the parties to the adjudication.” This passage had been previously quoted with approval by this Court in Pritam Singh v. State of Punjab (3). In the present opinion, the Court concluded that Justice Chunder’s order was founded on an erroneous interpretation of the validity of section 4(1) of the Act. The first trial of the appellant had indeed been before a court of competent jurisdiction, and the acquittal therefore was not a nullity. Its effectiveness had not been impaired by any binding order of the High Court. At the present stage, with the matter properly before this Court and the proceedings representing a continuation of those before Mr J.C. Lodh, the Court is not barred from correcting any error or defect in the High Court’s order.

In this case, the Court observed that the trial conducted before Mr. S. C. Dutt Gupta was a lawful proceeding which resulted in the appellant’s acquittal and that acquittal had never been set aside. Consequently, ordering a fresh trial would expose the appellant to a second prosecution for the same offences, thereby constituting double jeopardy. The Court held that such a second trial would violate section 403 of the Criminal Procedure Code. Accordingly, the Court allowed the present appeal, set aside the order of the Calcutta High Court that had directed the complaint to be proceeded with before the Sub-Divisional Magistrate, and quashed all proceedings that had been instituted against the appellant.

Justice Sarkar, however, expressed a contrary view and concluded that the appeal failed. He recounted that on 2 March 1950 the appellant and a co-accused, Bose, were charged with offences under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949. The case was tried before Mr. Dutta Gupta, who on 11 July 1951 acquitted the appellant but convicted Bose. Bose appealed his conviction to the Calcutta High Court, which, relying on its earlier decision in J. K. Gupta and Ors. v. State of West Bengal, held that the Act was unconstitutional as it violated article 14 of the Constitution. Accordingly, the High Court set aside Bose’s conviction on 9 April 1952. On the same day the Government of West Bengal promulgated an Ordinance amending the Act, and this Ordinance was later replaced by a new Act. Under the amended Act, fresh proceedings for the same offences were instituted against both the appellant and Bose on 26 May 1952 before Mr. Lodh, who had been authorised by the Government to adjudicate such matters. The appellant applied to Mr. Lodh on 19 June 1952 for a quashing order on the ground that he had already been acquitted of the same offences by Mr. Dutta Gupta; the application was rejected. The appellant then filed a revision petition (No. 965 of 1952) before the Calcutta High Court on 2 September 1952 challenging Mr. Lodh’s order. Justice Chunder, delivering the judgment on 19 March 1953, held that the proceedings could not be quashed because, in view of the High Court’s 9 April 1952 judgment, Mr. Dutta Gupta was not a court of competent jurisdiction and his acquittal had no legal effect. Before the filing of the revision petition, the Government had withdrawn the cases against both the appellant and Bose from Mr. Lodh, and the withdrawal was effected by notifications dated 22 December 1952 and 24 March 1953, after which the cases were reassigned for trial under the amended Act to a court in Darjeeling.

The trial was assigned, under the Act as amended, to a court situated in Darjeeling. Accordingly, a fresh petition of complaint was filed in that court against both the appellant and Bose. Bose subsequently approached the High Court at Calcutta by filing a revision petition seeking to have the proceedings quashed on the ground that the amended Act did not apply to him. On 8 April 1954 the High Court allowed Bose’s application and set aside the proceedings, holding that the amended Act could not be applied to any proceeding that was pending on the date the Ordinance had commenced, namely 9 April 1952, unless the proceeding was before a court constituted under the Act. The Court observed that on that date the proceeding against Bose was pending in the High Court, which was not a court established under the Act, and therefore the Act could not affect it. While this revision petition was still pending before the High Court, this Court delivered its judgment in Kedar Nath Bajoria v. State of West Bengal on 22 May 1953, holding that the earlier judgment of the Calcutta High Court in J. K. Gupta v. State of West Bengal was erroneous and declaring the Act constitutionally valid. After the High Court’s decision of 8 April 1954, fresh proceedings against the appellant and Bose were initiated anew in the Court of the Sub-Divisional Magistrate at Darjeeling, this time under the provisions of the Code of Criminal Procedure. On 21 June 1954 the appellant filed an application before the Sub-Divisional Magistrate seeking an order to quash the proceeding against him, contending that, in view of this Court’s judgment in Kedar Nath Bajoria’s case (1) – to which reference had previously been made (1) [1954] S.C.R. 30; (2) (1952) 56 C.W.N. 701 – his earlier acquittal by Mr. Dutta Gupta constituted an acquittal by a court of competent jurisdiction and consequently he could not be retried for the same offence. The Sub-Divisional Magistrate dismissed the appellant’s application by order dated 13 July 1954, holding that he was bound by the High Court’s order of 8 April 1954, which directed that the case be tried and which was issued after the delivery of this Court’s judgment in Kedar Nath Bajoria’s case. The appellant then filed a criminal revision petition, numbered 930 of 1954, before the Calcutta High Court challenging the Sub-Divisional Magistrate’s order. The High Court, by its judgment dated 10 February 1955, dismissed the revision, observing that notwithstanding this Court’s decision in Kedar Nath Bajoria’s case, the earlier judgment of Chunder, J., dated 19 March 1953 remained binding on the appellant; consequently, the acquittal by Mr. Dutta Gupta could not be said to have lost its effect after Chunder, J.’s decision. The present appeal arises from that High Court judgment, and the Court expressed the view that the High Court’s approach was correct, raising the question whether the appellant is …

The appellant sought a direction to set aside the prosecution on the ground that he had previously been acquitted by Mr. Dutta Gupta. He relied on the doctrine of autrefois acquit, which is embodied in section 403 of the Code of Criminal Procedure. The question before the court was whether the appellant could enjoy the protection of section 403. The provision states that when a person has once been tried before a court of competent jurisdiction for an offence and has either been convicted or acquitted, that person may not be tried again for the same offence while the conviction or acquittal remains in force. Consequently, for the appellant to obtain the benefit of the section, two conditions had to be satisfied: first, that he had been tried by a court of competent jurisdiction; and second, that the acquittal was still operative. The appellant argued, invoking the judgment in J. K. Gupta’s case, that, in view of this Court’s decision in Kedar Nath Bajoria’s case (2), the acquittal by Mr. Dutta Gupta should be regarded as an acquittal rendered by a court of competent jurisdiction. The court observed that the ruling in Kedar Nath Bajoria’s case was essentially irrelevant to the present controversy. If, in law, the court of Mr. Dutta Gupta was a court of competent jurisdiction, that status would persist irrespective of any subsequent declaration by this Court. Whenever a plea of autrefois acquit is raised, the court before which it is raised must determine for itself whether the earlier adjudicating court possessed the requisite jurisdiction, while also adhering to binding precedents concerning that issue. The authority to decide that question does not flow from a higher-court pronouncement on the competence of the earlier court. Accordingly, the judgment in Kedar Nath Bajoria’s case did not resolve the matter at hand. The appellant therefore needed to establish that the court of Mr. Dutta Gupta, which delivered the acquittal, was a court of competent jurisdiction. However, a further preliminary issue emerged: could the appellant, in light of the order of Chunder, J., even contest the jurisdiction of Mr. Dutta Gupta’s court? In other words, was the appellant permitted to raise the question of whether that court was competent, or was he bound by Chunder, J.’s finding that Mr. Dutta Gupta’s court lacked jurisdiction? The court noted that if the appellant were entitled to challenge the jurisdiction of Mr. Dutta Gupta’s court, the decision in Kedar Nath Bajoria’s case would be advantageous to him; if not, that precedent would be of no assistance.

In order to establish the contention that the appellant could rely on section 403, it was necessary to examine whether he was permitted to question the jurisdiction of the court that had acquitted him. It appeared to the Court that the judgment of Chunder, J., barred the appellant from raising the issue that the Court of Mr. Dutta Gupta was a court of competent jurisdiction. The appellant had directly raised that issue in revision petition No. 965 of 1952, which resulted in the judgment of Chunder, J. Chunder, J., held that the Court of Mr. Dutta Gupta was not a court of competent jurisdiction and that he possessed full jurisdiction to determine the petition and the question. His jurisdiction to do so was never challenged, and therefore his decision constituted a final judgment that must have effect as such. Consequently, the final judgment had to be treated as binding on the appellant and could not be disregarded. Although Kedar Nath Bajoria’s case (1) indicated that Chunder, J.’s judgment was erroneous, that observation did not remove the judgment’s force as a final decision. A final judgment does not lose its force merely because a superior court in a different case later expresses a contrary view. Even when a final judgment is later deemed wrong, it remains a final judgment, and its binding effect does not depend on its correctness. To remove any doubt about Chunder, J.’s jurisdiction to decide the criminal revision petition No. 965 of 1952, the Court observed that nothing in the High Court order dated April 8, 1954 indicated a lack of such jurisdiction. That order merely held that, in view of s. 12 of the Act as amended, the Darjeeling Court constituted under the Act lacked jurisdiction to try the case against Bose. The reason was that the case had been pending on the specified date in a court not established under the Act. That reasoning did not apply to the appellant’s case, because the criminal revision petition No. 965 of 1952 was not pending in any court on that date. Hence, the decision of Chunder, J., being a final judgment and binding on the appellant, precluded him from asserting that the Court of Mr. Dutta Gupta was a court of competent jurisdiction. The appellant had been acquitted by that court, but the rule of res judicata barred him from revisiting the jurisdictional issue. The rule of res judicata applied to all final judgments and was therefore not a mere technicality, but a substantive principle of law (2). Its basis lay in fundamental maxims such as interest reipublicae ut sit finita litia and nemo debet bis vexari pro una et eadem causa. These maxims were referenced in Halsbury’s Laws of England, third edition, volume fifteen, page one hundred seventy-seven, as authoritative commentary. Brett, M.R., in In re May, also emphasized that the doctrine of res judicata was a substantial doctrine, not limited to recorded matters. Thus, the Court concluded that the appellant could not successfully contend that the Court of Mr. Dutta Gupta possessed jurisdiction, because the prior final judgment barred any such claim.

The Court explained that the doctrine of res judicata is among the most fundamental doctrines recognised by all courts. It requires that litigation must come to an end once the parties have fully argued a question before a court and that court has rendered a decision. After such a decision, the parties have no authority, of their own accord, to reopen the same question and relitigate it. The Court expressed complete confidence that the principle of finality of judgment applies equally in criminal proceedings as it does in civil proceedings. Although Section 403 of the Code of Criminal Procedure reflects this same principle, the Court found no justification for limiting the doctrine’s application solely to the situations described in that statutory provision. Support for a broader application was found in the Privy Council’s judgment in Sambasivam v. Public Prosecutor, Federation of Malaya (2). At page 479 of that judgment, the Privy Council observed that the effect of an acquittal pronounced by a competent court after a lawful trial is not merely that the acquitted person cannot be tried again for the same offence; it further means that the verdict is binding and conclusive on all subsequent proceedings between the parties to the adjudication. The maxim “Res judicata pro veritate accipitur” therefore applies in criminal as well as civil matters. The Court rejected the contention that the order of Chunder, J. was merely interlocutory and thus outside the reach of res judicata. The order had plainly determined the appellant’s right, concluding that the appellant possessed no right to be exempt from prosecution again. It is settled law that the principle of res judicata extends to every order that finally determines the rights of the parties. The Court referred to the case of Ram Kirpal Sukul v. Mussumat Rup Kuari (1) for further authority. In that case, during execution proceedings, the District Judge, Mr. Probyn, held that the decree under execution awarded future mesne profits. The Judicial Committee later ruled that, in later stages of the same execution proceeding, the question of whether the decree awarded mesne profits could not be reopened because of Mr. Probyn’s decision. The Committee noted at pages 42-43 that the decree of the Sudder Court was a written document, that Mr. Probyn had jurisdiction to execute it, and that it was his duty to interpret it. Accordingly, his jurisdiction allowed him to decide that the decree did award mesne profits, just as it would have allowed him to decide otherwise. The High Court later assumed jurisdiction to decide that the decree did not award mesne profits, but, regardless of whether its construction was correct, it erred in overturning Mr. Probyn’s decision, which, having not been appealed, was final and binding on the parties and their successors. This reasoning underlines that subsequent courts are bound by prior final determinations, confirming that the order of Chunder, J. could not be questioned before the present Court and that the appellant remained bound by it.

The Court observed that the parties were bound by the decision of Mr Probyn, who had held that the decree did award mesne profits. Whether Mr Probyn’s decision was right or wrong was irrelevant, because the decision had not been appealed and therefore was final and binding on the parties and on anyone claiming under them. Consequently, the Court held that it was neither necessary nor proper for the judges to reinterpret the decree of the Sudder Court. The Court explained that if the Subordinate Judge and the Judge were bound by Mr Probyn’s order in proceedings involving the same parties and the same judgment, then the High Court was likewise bound by that order, and the present judges were likewise bound when adjudicating between the same parties. Applying the reasoning set out in Ram Kirpal’s case (1885) L.R. 11 I.A. 37, the Court concluded that the order of Chunder J. could not now be questioned before this Court and that the appellant was bound by that order. The Court further noted that the appellant could not argue that his acquittal by Mr Dutta Gupta amounted to an acquittal by a court of competent jurisdiction, and therefore he could not rely on section 403 in support of his appeal. Although the Court recognized that this view was harsh on the appellant, it stated that the appellant was not completely without a remedy. The Court would have been prepared to grant relief if the appellant had appealed the judgment of Chunder J. and, in that circumstance, the Court would have had no difficulty extending the time for appeal. As the appellant did not make such an appeal, the Court felt that the appeal must be dismissed. Accordingly, the Court ordered that the appeal be dismissed, set aside the order of the Calcutta High Court directing the complaint to be proceeded within the Court of the Sub-Divisional Magistrate, and quash the proceedings against the appellant.