N. R. GROSE ALIAS NIKHIL RANJAN GROSE versus THE STATE OF WEST BENGAL

Kedar Nath Bajoria v. State of West Bengal ( whereby it held that the judgment of the High Court at Calcutta in J. K. Gupta v. The State of West Bengal( was wrong and that the Act was constitutionally valid. · · .

p. 69

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. On June 21, 1954 the appellant applied to the Sub-Divisional Magistrate, Darjeeling for an orger quashing the proceeding against him as in view of the judgment of this Court in Kedar Nath Bajoria' s case ( to which reference has been earlier made, it had to be held that his' acquittal by Mr. Dutta Gupta was an acquittal by a court of competent jurisdiction and that therefore the appellant could not be tried for the same offence over again. 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 Bajoria's case('), had been delivered. The appellant them moved the High Court a.t Calcutta in revision a.gainst this order of the Sub-Divisional Magistrate by criminal revision petition No. 930 of 1954. The High Court by its judgment dated February IO, 1955 dismissed this revision ca.se holding tha.t notwithstanding the judgment of this Court in Kedar Nath Bajoria's case ( the judgment ofC!rnnder, J., dated March 19, 1953 was binding on the appellant and it ha.d therefore to be held that the acquittal of the appellant by Mr. Dutta Gupta no longer remained in force after the judgment of Chunder, J., It is from this judgment that the present appeal arises.

pp. 69–70

In my opinion the view taken by the High Court is right. The question is whether the appellant is entitled to an order quashing the prosecution against him as he had earlier been acquitted by Mr. Dutta Gupta. The appellant contends, relying on the principle of autrefois acquit, that he is. That principle is enacted in s. 403 of the Code of Criminal Procedure. It then comes to t.his : Is the appellant entitled to the benefit of s. 403 ?

p. 70

The principle stated in the section is that when a person has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of it, he shall not while th~ 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.

p. 70

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 thiR 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 n;e 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 itselfand of course in coming to its decision it must follow such. precedefl:tS as are binding upon it-whether the Court which had earlier acquitted the accused was a court of competent jurisdiction. Its power to decide that question is not derived from a decision of a higher court pronouncing upon the question of the competence of the Cour~ which earlier acquitted the accused. Therefore it seems to me that Kedar Nath Bajoria's case (2), does not decide the case before us.

p. 71

Now, in order to get the benefit of s. 403, the appel" Iant has to show that the Court of Mr. Dutta Gupta, which acquitted him was a court of competent jurisdiction. But another prior question arises in this case. That is this: Is it open to the appellant in view of the order of Ch under, J.; to contend that the Court of Mr. Dutta Gupta was a court of competent jurisdiction? In other words, can he at all raise the question whether the Court of Mr. Dutta Gupta was a court of competent jurisdiction? Is he not bound by the judgment of Chunder, J., to the position th11-t Mr. Dutta Gupta did not constitute a court of competent jurisdiction ? It is no doubt true that if it is open to the appellant to contend that the Court of Mr. Dutta Gupta' was a court of competent jurisdiction, the decision of this Court in Kedar NathBajoria's case (2) would help him to establish that contention. If it is not so open to him that decision does not avail him at all.

p. 71

It seems to me that the judgment of Chunder, J., prevents the appellant from raising the question that the Court of Mr. D~tta Gupta, was a court of competent jurisdiction. That question was directly raised by the appellant by revision petition No. 965 of 1952 in which the judgment of Chunder, J., was passed. Chunder, J., held that the Court of Mr. Dutta Gupta, was not a court of competent jurisdiction. He had full jurisdiction to decide the petition and the question. His jurisdiction to do so was never questioned.

pp. 71–72

The decision of Ch under, J., is a final judgment and must have effect as such. It must be trPated as binding on the appellant. It is no doubt true that Kedar Na.th Bajoria's case ( shows that Chunder, J.'s, judg. ment was wrong. That however does not make his decision 1ose its force as a final judgment. A final judgment does not lose its force as such because a superior court in a different case subsequently takes a view which shows that judgment to be wrong. A final judgment however wrong is still a final judgment. Its binding force does not depend upon its correctness.

p. 72

In order to dispel any doubt as to the jurisdiction of Chunder, J., to decide the criminal revision petition No. 965 of 1952, I wi;h 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.

p. 72

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 e~pressed in the maxims, interest reipublicae ut sit finie litium,. and nemo debet bis vexari pro una et eadem causa: see Halsbury's Laws of England, (3rd Ed.), vol. 15 p.

pp. 72–73

177. Brett, M.R .• said in In re May. (i)

p. 73

" The doctrine of res judicata is not a technical doctrine applicable only to records. It is a very substantial doctrine, and it is one of the most fundamental doctrines of all Courts, that there must be an end of litigation, and that the parties have no right of their own accord, after having tried a question between them and obtained a decision of a Court, to start that litigation over again on precisely the same questions."

p. 73

I feel no doubt that the principle of the finality of judgment obtains in criminal law as well as it does in civil law. Section 403 of the Code is no doubt based on the same principle. But I find no reason to confine its application within the limits of the section. I find clear support for this view in the judgment of the Privy Council in Sambasivam v. Public Prosecutor, Federation of Malaya ( where it was said at p. 4 79 :

p. 73

" The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive on all subsequent proceedings between the parties to the adjudication. The maxim "Res judicata pro veri, tate aceipitur" is no less applicable to criminal than to civil proceedings."

p. 73

Then it is said that the order of Chunder, J., was an interlocutory order to which the principle of res judicata does not apply. I am unable to agree that that order was an interlocutory order. It plainly decided the right of the appellant; it decided that the appellant had no right not to be prosecuted again. It is clear law that the principle Of res judicata applies to all orders which finally determine the :rights of the parties: see Halsbury's Laws of England (3rd Ed.) p. 177.

pp. 73–74

The case of Ram Kirpal Sukul v. Mussumat K uari ( is of great assistance. There in the course execution proceedings it had been decided by District Judge, Mr. Probyn, that the decree under execution awarded future mesne profits:• It was held by the Judicial Committee that in the later ~tages the course of the same execution proceeding question whether the decree had awarded mesne profits could not, in view of ]\fr. Probyn's decision, be reopened and canvassed again. It was observed at pp. 42-43,

p. 74

"The decree of the•Sudder Court was a written document. Mr. Probyn had jurisdiction to execute that decree, and it was consequently within jurisdiction, and it was his duty to put a construction upon it. He had aH much jurisdiction, upon examining the terms of the decree, to decide it did award mesne profits as he would have 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 not, because the parties were bound by the decision of Mr. Probyn, who, whether right or wrong, decided that it did, a decision which, not having been appealed, was final and binding upon parties and those claiming under them. It is necessary, nor would it be correct, for their Lordships to put their construction upon the decree the Sudder Court. If the Subordinate Judge the Judge were bound by the order of Mr. Probyn in proceedings between the same parties on same judgment, ·the High Court were bound by and so also are their Lordships in adjudicating

p. 74

between the same parties. Applying the reasoning adopted in Ram Kirpal's case(') it woultl appear that. the order of Chunder, J., cannot now be questioned before us and the appellant bound by it. · As the appellant cannot contend that his acquittal by Mr. Dutta Gupta was an acquittal by a court of competent. jurisdiction, he cannot plead s. 403· in support of this appeal. I appreciate that the view that I- have taken is hard on the appellant. But it does not seem to me that he was entirely without a remedy. I would have been prepared to give relief to the appellant if he had appealed from the judgment of Chm:ider J. and for that purpose I would have felt no difficulty in extending the time to appeal. As it is, I feel that the appeal must be dismissed.

pp. 74–75

ORDER OF COURT.

p. 75

In accordance with the opinion of the majority ·the appeal is allowed; the order of the Calcutta High Court directing the complaint to be proceeded within the Court of the Sub-Divisional Magistrate is set aside, and the proceedings against the appellant are quashed.

p. 75

UNION OE' INDIA

p. 75

v.

p. 75

AMAR SINGH (P. B. GAJENDRAGADKAR, K. SuBBA RAo and

p. 75

J. c. JJ.)

p. 75

Contract-bnplied contract of bailment--Goods entrusted to Pakistan Railway for delivery in India-Pakistan Railway handing over goods Indian Railway-Loss of goods-Liability of Indian Railway consignor-Limitation for suit for compensation for loss .:_Indian Contract Act, r872 (IX of r872), ss. r48 and r94-lndian Limitation Act, r908 (IX of r908) Schedule I, arts. 30 and 3r.

p. 75

The respondent booked certain goods on September 4, 1947, with the N. W. Railway at Quetta in Pakistan to New Delhi. The wagon containing the goods was received at the Indian border station of Khem Karan on November 1947, duly sealed and labelled indicating its destination as New Delhi. It reached New Delhi on February 13, 1948, and was unloaded on February lQ48, but no immediate information was sent to the respondent. On June 7, 1948, the respondent was asked by the E. P. Railway to take delivery of the goods lying at New Delhi station but when the respondent went there the goods were not traceable. Again, on July 24, 1948, .the respondent was asked to take delivery of the goods when only a small portion of the goods

p. 75