ON Criminal Appeal No 116 of 1957
Appeal by special leave from the judgment and order dated the February 10 1955 of the Calcutta High Court in Criminal Revision No 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 108 of 1950
Sukumar Ghose for the appellant
N R Khanna and T M Sen for the respondent
October 27
The judgment of Jafer Imam J L Kapur and K N Wanchoo was delivered by Kapur J Sarkar J delivered a separate judgment
KAPUR J
This appeal by special leave raises a question of the application of section 403 of the Criminal 60 Procedure Code
The circumstances in which this question arises are these A complaint was filed against one section K Bose and the appellant under sections 120 B 409 Indian Penal Code and section 52 of the Prevention of Corruption Act 2 of 1947 in the Court of the Sub Divisional Magistrate Darjeeling
Against the appellant the complaint was instituted on March 2 1950
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 SC Dutt Gupta who on July 11 1951 found section K Bose guilty but acquitted the appellant
section K Bose took an appeal to the High Court at Calcutta
In another case J K Gupta vs The State of West Bengal 1 a Special Bench of the Calcutta High Court held that section 41 of the Act was ultra vires
Following this judgment a Division Bench of that Court Trevor Harries CJ and section R Das Gupta J passed the following order in section K Bose s appeal The appeal must therefore be allowed
The conviction and sentence are set aside and the appellant must be regarded as an under trial prisoner awaiting retrial if Government so decides
He will continue on the same bail until such retrial
 On April 9 1952 the West Bengal Criminal Law Amendment Special Courts Amending Ordinance 1952 West Bengal Ord
8 of 1952 came into force and was replaced by West Bengal Act XII of 1952 on July 30 1952
By a Notification No 2047J Mr J C Lodh was appointed as the Special Judge at Alipore and on May 26 1952 a petition of complaint was filed against both the appellant and SK Bose
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 cognizance to be taken of the offences which the appellant and section K Bose were accused of
It may be pointed out that as far as the 1 61 appellant was concerned the High Court had given no such direction
The Special Judge then summoned the appellant who on June 19 1952 pleaded the bar of section 403 Criminal Procedure Code basing it on his acquittal by the Special Judge Mr section C Dutt Gupta
The Special Judge overruled this plea on the ground of want of jurisdiction of the previous Special Judge to try the offences because section 41 of the Act had been declared ultra vires by the High Court
Against this order the appellant moved the High Court under Articles 226  227 and under section 439 of the Criminal Procedure Code for quashing the proceedings before the Special Judge
On August 22 1952 Notification No 2047J was superseded by Notification No 4673J and Mr J C Lodh ceased to have jurisdiction and he passed an order on August 26 that as the Court had no jurisdiction to continue the trial the case be filed and the accused be held underwater prisoner pending a retrial according to law
 The appellant thereupon amended his petition in the High Court
On March 19 1953 the High Court Chunder J dismissed the application and discharged the rule
It held that as the Act creating the Special Judge s Court has been declared ultra vires the decision of that Court had no binding force and that the High Court  did not 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
 Here again there was an error because whatever might be the legal consequence of the order of the High Court in SK Bose s appeal there was no specific order as to the appellant
The West Bengal Criminal Law Amendment Special Courts Amending Act West Bengal Act 22 of 1952 having come into force by a notification dated December 22 1952 the case of the appellant and section K Bose was allotted to the Special Judge at Darjeeling and a fresh complaint was filed on March 27 1953 in that Court and it issued process against both the accused
The appellant again took objection to the restarting 62 of the proceedings
section K Bose the other accusedtook a revision to the High Court Criminal Revision No 578 of 1953
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
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
There has not therefore been a termination of those proceedings
If consequently the Special Courts Act does not 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 complaint 
The filing of fresh petition of complaint will not institute fresh proceedings distinct from the proceedings that were pending in appeal
So long as these proceedings have not been disposed of in accordance with law fresh proceedings cannot be instituted against the petitioner
The result in my opinion is that the Special Court Judge Darjeeling has no jurisdiction to try the case instituted before him on a complaint on the 27th of March 1953
I would accordingly quash the proceedings in his Court and order that the proceedings now pending against the petitioner in the Court of the Sub Divisional Magistrate Darjeeling should now be disposed of in accordance with law
 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 section P Kar Magistrate
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 competent jurisdiction because the Supreme Court in Kedar Nath Bajoria vs The State of West Bengal 1 had declared s41 of the Act to be intra vires of the Constitution
The 1  63 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
Against this order the appellant took a revision to the High Court and the matter was heard by Guha Roy and section K Sen JJ
Guha Roy J held that the order of Chunder J in Criminal Revision No 965 of 1952 operated as a bar that the proceedings before the Sub Divisional Magistrate at Darjeeling were really a con tinuation of the proceedings before Mr J C Lodh Special Judge and that the appellant was bound by the decision of Chunder J section K Sen J agreed and held that the order of acquittal was by a Court which was not of competent jurisdiction and therefore it the acquital was no longer in existence when Chunder J passed the order on March 19 1953 and the petitioner could not get the benefit under section 403 of the Criminal Precedure Code or the subsequent change in the law introduced by the Supreme Court decision  in Kedar Nath Bajoria vs The State of West Bengal1
The result was that the appellant s prayer for quashing the pro ceedings was rejected and the appellant has come in appeal by special leave against this decision of the High Court
Under section 4031 of the Code of Criminal Procedure a person once tried and acquitted for an offence is not liable to be tried again for the same offence or on the same facts
It is this provision of the Code which the appellant relies on in support of his appeal and submits that as he was acquitted by a court of competent jurisdiction and which acquittal remains operative he cannot be tried again for the same offence
Under the decision of this Court in Kedar Nath Bajoria vs The State of West Bengal 1 section 4 1 of the Act is intra vires and the court of the Special Judge Alipore Mr section C Dutt Gupta who passed the original order of acquittal of the appellant was a court of competent jurisdiction and if there is no other impediment in the way of the appellant the previous acquittal 1  64 must operate as a complete bar to his being tried again on the some facts and for the same offences
But it was contended on behalf of the State that in his order Chunder J had held that the appellant could not plead the bar of section 403 as the order of acquittal by the Special Judge Mr section C Dutt Gupta was not by a court of competent jurisdiction and as the order had become final whether it was right or wrong it barred the raising of that question ie applicability of section 403 even in this Court
It therefore becomes necessary to determine the effect of the order of Chunder J The Special Judge Mr section C Dutt Gupta acquitted the appellant and convicted the co accused section K Bose who alone took an appeal to the High Court
That Court held section 41 of the Act to be ultra vires and set aside his conviction and left it to Government to decide as to whether he should again be tried or not
By filing the proceedings again the Government decided that the appellant and section K Bose should be retried
No argument was raised before us as to the effect of that order on the appellant s case and the argument has proceeded on the basis that on that view of the law the acquittal of the appellant was by a court without jurisdiction and therefore even if no appeal was taken as against the appellant the order of acquittal would be no more than an order of dischargeYusofalli Mulla Noorbhoy vs The King 3 
But the appellant contended that in view of the decision of this Court in Kedar Nath Bajoria vs The State of West Bengal 2 where the Act was declared intra vires and section 41 of the Act a good provision the decision of the High Court to the contrary could no longer impede the efficacy of his plea and he was entitled to plead section 403 Criminal Procedure Code as a bar to his being tried on the same facts and for the offences of which he was acquitted
It was also contended that the verdict of acquittal was given by a court of competent jurisdiction and that verdict has never been reversed and the acquittal is still in force
It is not necessary in this appeal to decide whether it was open to the High Court to take a different view 1 1949 76 IA 158 168 169
2  65 of the effect of the order of acquittal passed by Mr section C Dutt Gupta because of the pronouncement by this Court in Kedar Nath Bajoria s case 1
What we have to decide in this appeal is whether the order of Chunder J has the effect of debarring the appellant from the benefit of obtaining a review by this Court of that decision
It is also not necessary to discuss the scope of res judicata and the extent of its application to criminal proceedings and its limitation to decisions of courts of competent jurisdiction
Except where the statute so requires it is not imperative upon a party to appeal against every error defect or irregularity in any order by which he may conceive himself aggrieved under the penalty if he does not So do of forfeiting for ever the benefit of consideration by this Court
Nothing would be more detrimental to the expeditious administration of justice than the establishment of a rule which would impose upon a party the necessity of appealing against every such order
It was so held in Moheshur Singh vs The Bengal Government 2 where a party had not appealed from the order of Sudan Commissioner granting a review of judgment
In our opinion it would make no difference as far as this Court is concerned whether an intermediate order complained of is passed by the trial court and is not taken to the High Court in revision or it is taken in revision to the High Court and is there confirmed
We think it unnecessary in this case to express any opinion as to the effect of that order qua the revision in the High Court itself but when the matter properly comes to this Court in appeal in such circumstances as this case it is open to this Court unless there is any statute which provides differently to review the order passed by the High Court as much as it would have been if the original order passed by the trial court had not been taken to the High Court in revision
In civil cases this principle was accepted by the Privy Council
See Alexander John Forbes vs Ameeroonissa Begum 3 where an order of remand had not been appealed 1  2 1859 7 MIA 283 302
3 1865 10 MIA 340 352
9 66 against Sheonath vs Ram Nath 1 where the order was a step in the procedure that leads to a final decree Shah Mukhun Lal vs Baboo Sree Kishen Singh 2 where the question as to interest was decided in an interlocutory decree not appealed from
These cases are decisions on general principles and are not based on any particular statute or regulation peculiar to procedure in civil cases
We do not see why the principle of these cases should in the absence of any law to the contrary not be equally applicable to matters of a criminal nature
Chunder J in his judgment in Criminal Revision No 965 of 1952 dated March 19 1953 said  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
 It only means this that for an order of acquittal to be binding it must be pronounced by a Court of competent jurisdiction
In the judgment of the High Court in Criminal Revision No 930 of 1954 now under appeal section K Sen J was of the opinion that as the acquittal was not by a Court of competent jurisdiction the Government regarded it as set aside and it was no longer in force when Chunder J passed his order on March 19 1953 and  consequently the petitioner  Dow the appellant  could no longer get the benefit thereof under section 403 Cr P C on a subsequent change in the law introduced by the Supreme Court decision in Kedar Nath Bajoria vs The State of West Bengal 3
Following Kedar Nath Bajoria s case 3 we are of the opinion that section 41 of the Act was not ultra vires and the judgment of the Calcutta High Court in JK Gupta vs State of West Bengal 4 was erroneous and the acquittal by the Special Judge Mr section C Dutt Gupta was an order made by a court of competent jurisdiction as such it was binding unless set aside in appeal and it was never set aside in appeal
The observations 1 1865 10 MIA 413
2 1868 12 MIA 157
3  4 67 of the Privy Council in Yusofalli Mulla Noorbhoy vs The King Emperor 1  If the orders of acquittal were passed by a court of competent jurisdiction though wrongly they would be binding unless set aside in appeal  would be applicable to the case of the appellant
If the trial court was not a court of competent jurisdiction the acquittal would be no more than a discharge but if it was by a court of competent jurisdiction it is binding unless lawfully set aside
The plea of the appellant effectively falls within section 403 Criminal Procedure Code
We have held that the trial in the court of Mr section C Dutt Gupta being a trial before a court competent to pass a valid order the prosecution is bound to accept the correctness of the verdict of acquittal and is precluded from challenging it
As was said by Lord Mcdermott in Sambasivam vs Public Prosecutor Federation of Malaya 2 in regard to a verdict pronounced by a competent court and after a lawful trial  the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication
 This passage was quoted with approval by this Court in Pritam Singh vs The State of Punjab3
In our opinion the order of Chunder J was based on an erroneous view of the vires of section 41 of the Act
The first trial of the appellant was before a court of competent jurisdiction and the verdict of acquittal was not a nullity its efficacy was not impaired by any binding order of the High Court and at this stage when the matter is properly before this court and the proceedings are a continuation of the proceedings before Mr J C Lodh it is not precluded from rectifying any error or defect in the order of the High Court and giving effect to the plea set up under section 403
The trial before Mr section C Dutt Gupta being a lawful one which resulted in acquittal and which has never been set aside another trial would place the appellant in 1 1949 LR 76 IA 158 168 169
2 1950 A C 458 479
3 AIR 1956 SC 415420
68 jeopardy a second time which would contravene section 403 of the Criminal Procedure Code
We therefore allow this appeal set aside the order of the Calcutta High Court directing the complaint to be proceeded within the court of the Sub Divisional Magistrate and the proceedings against the appellant are quashed
SARKARJ
In my view this appeal fails
On March 2 1950 the appellant and one Bose were prosecuted for certain offenses under the West Bengal Criminal Law Amendment Special Courts Act 1949
The case was heard by Mr Dutta Gupta who on July 11 1951 acquitted the appellant but convicted Bose
Bose appealed to the High Court at Calcutta
The High Court following its own earlier decision in J K Gupta  Ors
vs The State of West Bengal 1 found that the Act was invalid as it offended article 14 of the Constitution
The High Court thereupon held that Bose s conviction under the Act could not be sustained and set it aside
This judgment was passed on April 9 1952
On the same day the Government of West Bengal passed an Ordinance amending the Act which Ordinance was later replaced by another Act
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
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
This application was rejected by Mr Lodh
On September 2 1952 the appellant moved the High Court at Calcutta by revision petition No 965 of 1952 against the order of Mr Lodh
This petition was disposed of by Chunder J by order dated March 19 1953 whereby the learned Judge held that the proceedings could not be quashed as in view of the judgment of the High Court dated 1 69 April 9 1952 it must be held that Mr Dutta Gupta was not a court of competent jurisdiction and the acquittal by him was of no effect
Before the revision petition No 965 of 1952 was filed the Government had withdrawn the case against the appellant and Bose from Mr Lodh
It is said that the revision petition was filed in ignorance of such withdrawal
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 court at Darjeeling
A fresh petition of complaint was thereupon filed against the appellant and Bose in that Court
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 not apply to him
On April 8 1954 the High Court allowed Bose s application and quashed the proceedings holding that the amended Act did not apply to any proceeding pending on the date of the commencement of the Ordinance namely April 9 1952 in any court other than a court constituted under the Act and that on that date the proceeding against Bose was pending in the High Court which was not a court under the Act
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 vs State of West Bengal 1 whereby it held that the judgment of the High Court at Calcutta in J K Gupta vs The State of West Bengal2 was wrong and that the Act was constitutionally valid
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 order quashing the proceeding against him as in view of the judgment of this Court in Kedar Nath Bajoria s case1 to which reference has 1  2 70 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 1 had been delivered
The appellant them moved the High Court at Calcutta in revision against this order of the Sub Divisional Magistrate by criminal revision petition No 930 of 1954
The High Court by its judgment dated February 10 1955 dismissed this revision case holding that notwithstanding the judgment of this Court in Kedar Nath Bajoria s case 1 the judgment of Chunder J dated March 19 1953 was binding on the appellant and it bad 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
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 bad 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 section 403 of the Code of Criminal Procedure
It then comes to this Is the appellant entitled to the benefit of section 403  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 the 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
1  71 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 this Court in Kedar Nath Bajoria s case2 that the acquittal by Mr Dutta Gupta was an acquittal by a court of competent jurisdiction
It seems to me 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 itself and of course in coming to its decision it must follow such precedents 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 Court which earlier acquitted  the accused
Therefore it seems to me that Kedar Nath Bajoria s Case 2 does not decide the case before us
Now in order to get the benefit of section 403 the appellant 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 Chunder 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 that 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 Nath Bajoria s case 2 would help him to establish that contention
If it is Dot so open to him that decision does not avail him at all
It seems to me that the judgment of Chunder J prevents the appellant from raising the question that 1 2  72 the Court of Mr Dutta Gupta was a court of com petentjurisdiction
That question was directly raised by the appellant by revision petition No 965 of 1952 of 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 bad fall jurisdiction to decide the petition and the question
His jurisdiction to do so was never questioned
The decision of Chunder J is a final judgment and must have effect as such
It must be treated as binding on the appellant
It is no doubt true that Kedar Nath Bajoria s case 1 shows that Chunder J s judgment was wrong
That however does not make his decision lose 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  In order to dispel any doubt as to the jurisdiction of Chunder J to decide the criminal revision petition No 965 of 1952 I wish 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 section 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
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 1  73 technicality
It is based on fundamental principles expressed 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 Edvol 15 p177
Brett MR said in In re May 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
 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 vs Public Prosecutor Federation of Malaya2where it was said at p 479  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 veritate aceipitur  is no less applicable to criminal than to civil proceedings
 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 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 11885  518 10 2 74 parties see Halsbury s Laws of England 3rd Ed p 177
The case of Ram Kirpal Sukul vs Mussumat Rup Kuari 1 is of great assistance
There in the course of execution proceedings it had been decided by the District Judge Mr Probyn that the decree under execution awarded future mesne profits
It Was held by the Judicial Committee that in the later stages in the course of the same execution proceeding the question whether the decree had awarded mesne profits could not in view of Mr Probyn s decision be reopened and canvassed again
It was observed at pp
42 43  The decree of the Sudder Court was a written document
Mr Probyn had jurisdiction to execute that decree and it was consequently within his jurisdiction and it was his duty to put a construction upon it
He had as much jurisdiction upon examining the terms of the decree to decide that it did award mesne profits as he would have had 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 did not because the parties were bound by the decision of Mr Probyn who whether right or wrong had decided that it did a decision which not having been appealed was final and binding upon the parties and those claiming under them
It is not necessary nor would it be correct for their Lordships to put their construction upon the decree of the Sudder Court
If the Subordinate Judge and the Judge were bound by the order of Mr Probyn in proceedings between the same parties on the same judgment the High Court were bound by it and so also are their Lordships in adjudicating between the same parties
Applying the reasoning adopted in Ram Kirpal s case1 it would appear that the order of Chunder J cannot now be questioned before us and the appellant is bound by it
1 1885 LR 11 IA 37 75 As the appellant cannot contend that his acquittal by Mr Dutta Gupta was an acquittal by a court of competent jurisdiction he cannot plead section 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 Chunder 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
ORDER OF COURT
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


Summary:
The retrenched workmen of the appellant concern who were paid compensation as provided in s 25F of the  claimed that they were entitled to be paid in addition gratuity under the gratuity scheme in force in the appellant concern as modified by the award of the industrial tribunal dated August 18 1952
The award provided  The following gratuity scheme shall be for cases of retrenchment or termination of service by the company for any reason other than misconduct or for cases of resignation with the consent of the management
The Appellate Tribunal took the view that gratuity provided under the award was different from compensation on retrench ment payable to a workman under section 25F of the Act
Held that on a proper construction of the award the amount payable thereunder to the workmen on retrenchment though called gratuity was really compensation on account of retrenchment as provided under section 25F of the Act and that the workmen were only entitled to one or the other whichever was more advantageous to them in view of section 25J of the Act
It was not the intention of the legislature that a workman on retrenchment should get compensation twice ie once under the Act and once again under the scheme in force providing for retrenchment compensation by whatever name the payment might have been called