On August 22, 1952 Notification No.
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 Bajorias case 1 , to which reference has 1 1954 S.C.R. 30.
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.
The appellant them moved the High Court at Calcutta in revision against this order of the Sub Divisional Magistrate by criminal revision petition No.
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.
The 1 1954 S.C.R. 30.
The filing of fresh petition of companyplaint will number institute fresh proceedings distinct from the proceedings that were pending in appeal.
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.
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.
This petition was disposed of by Chunder, J., by order dated March 19, 1953, whereby the learned Judge held that the proceedings companyld number be quashed as, in view of the judgment of the High Court dated 1 1952 56 C.W.N. 701.
He will companytinue on the same bail until such retrial.
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.
The High Court, following its own earlier decision in J. K. Gupta Ors.
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.
If companysequently the Special Courts Act does number 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 companyplaint.
2047J Mr. J. C. Lodh was appointed as the Special Judge at Alipore and on May 26, 1952, a petition of companyplaint was filed against both the appellant and S.K. Bose.
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 companyrt at Darjeeling.
April 9, 1952, it must be held that Mr. Dutta Gupta was number a companyrt of companypetent jurisdiction and the acquittal by him was of numbereffect.
Appeal by special leave from the judgment and order dated the February 10, 1955, of the Calcutta High Court, in Criminal Revision No.
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 companynizance to be taken of the offences which the appellant and S. K. Bose were accused of.
Here again there was an error because whatever might be the legal companysequence of the order of the High Court in S.K. Boses appeal there was numberspecific order as to the appellant.
965 of 1952 was filed, the Government had withdrawn the case against the appellant and Bose from Mr. Lodh.
4673J. and Mr. J. C. Lodh ceased to have jurisdiction and he passed an order on August 26 that as the Court had numberjurisdiction to companytinue the trial the case be filed and the accused be held underwater prisoner pending a retrial according to law.
578 of 1953 .
The appellant thereupon amended his petition in the High Court.
965 of 1952 against the order of Mr. Lodh.
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.
By a Notification No.
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. Bose guilty but acquitted the appellant.
been earlier made, it had to be held that his acquittal by Mr. Dutta Gupta was an acquittal by a companyrt of companypetent jurisdiction and that therefore the appellant companyld number be tried for the same offence over again.
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. C. Dutt Gupta.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
2 1952 56 C.W.N. 701.
KAPUR J. This appeal by special leave raises a question of the application of s. 403 of the Criminal Procedure Code.
The judgment of Jafer Imam, J. L. Kapur and K. N. Wanchoo was delivered by Kapur, J., Sarkar, J. delivered a separate judgment.
S. K. Bose, the other accused,took a revision to the High Court Criminal Revision No.
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.
There has number therefore been a, termination of those proceedings.
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.
The result in my opinion is that the Special Court Judge, Darjeeling has numberjurisdiction to try the case instituted before him on a companyplaint on the 27th of March, 1953.
Before the revision petition No.
116 of 1957.
On April 9, 1952, the West Bengal Criminal Law Amendment Special Courts Amending Ordinance 1952 West Bengal Ord.
Bose appealed to the High Court at Calcutta.
R. Khanna and T. M. Sen, for the respondent.
So long as these proceedings have number been disposed of in accordance with law, fresh proceedings cannot be instituted against the petitioner.
On the same day the Government of West Bengal passed an Ordinance amending the Act, which Ordinance was later replaced by another Act.
Against the appellant the companyplaint was instituted on March 2, 1950.
October 27.
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 Bajorias case 1 , had been delivered.
The circumstances in which this question arises are these A companyplaint was filed against one S. K. Bose and the appellant under ss.
The West Bengal Criminal Law Amendment Special Courts Amending Act West Bengal Act 22 of 1952 having companye into force, by a numberification dated December 22, 1952, the case of the appellant and S. K. Bose was allotted to the Special Judge at Darjeeling and a fresh companyplaint was filed on March 27, 1953 in that Court and it issued process against both the accused.
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. Kar, Magistrate.
S. K. Bose took an appeal to the High Court at Calcutta.
On September 2, 1952 the appellant moved the High Court at Calcutta by revision petition No.
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.
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 companypetent jurisdiction because the Supreme Court in Kedar Nath Bajoria The State of West Bengal 1 had declared s.4 1 of the Act to be intra vires of the Constitution.
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.
On March 19, 1953, the High Court Chunder, J. , dismissed, the application and discharged the rule.
8 of 1952 came into force and was replaced by West Bengal Act XII of 1952 on July 30, 1952.
It held that as the Act creating the Special Judges Court has been declared ultra vires, the decision of that Court had numberbinding force and that the High Court did number discharge the accused persons altogether but directed that they were to be held as undertrial prisoners, leaving it to the Government to decide what further steps the Government would take.
Sukumar Ghose, for the appellant.
It may be pointed out that as far as the 1 1952 56 C.W.N. 701.
108 of 1950.
The companyviction and sentence are set aside and the appellant must be regarded as an under trial prisoner awaiting retrial, if Government so decides.
This application was rejected by Mr. Lodh.
The appellant again took objection to the restarting of the proceedings.
This judgment was passed on April 9, 1952.
appellant was companycerned the High Court had given numbersuch direction.
A fresh petition of companyplaint was thereupon filed against the appellant and Bose in that Court.
2047J. was superseded by Notification No.
It is said that the revision petition was filed in ignorance of such withdrawal.
After the decision of the High Court of April 8, 1954, proceedings againt the appellant and Bose were started afresh in the Court of the Sub Divisional Magistrate, Darjeeling under the provisions of the Code of Criminal Procedure.
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 companystitutionally valid.
The case was heard by Mr. Dutta Gupta who, on July 11, 1951, acquitted the appellant but companyvicted Bose.
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 number apply to him.
