# SUPREME COURT REPORTS [1960 (2)] N. R. GROSE alias NIKHIL RANJAN GROSE v. THE STATE OF WEST BENGAL - **Citation:** [1960] 2 S.C.R. 58 - **Court:** Supreme Court of India - **Decided:** 1960 - **Case number:** Criminal Appeal No. 116 of 1957 - **Bench:** Jafer Imam, J. L. Kapur, A. K. Sarkar, K. N. Wanchoo - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-reports-1960-2-n-r-grose-alias-nikhil-ranjan-grose-v-the-state-of-1876 - **Pages:** 18 ## Headnote Criminal Trial-Autrefois acquit, plea of-Order by trial Court ' ' at intermediate stage rejecting plea-Order confirmed by High Court --Whether can be challenged in appeal against subsequent orders in ' same proceeding-Principle of finality of decisions in criminal cases -Code of Criminal Procedure, I898 (V of I898), s. 403. ' A complaint was filed against the appellant and one Bose before the Sub-Divisional Magistrate, Darjeeling. Under the W.B. Criminal Law Amendment (Special Courts) Act, 1949 the case was allotted to Mr. Dutta Gupta, Special Judge, Alipur, who by order dated1 July II, 1951, acquitted the appellant but convicted Bose. Bose appealed to the High Court which held the Act to be ultra vires and quashed the conviction.. The Act was amended and another complaint was then filed against the appellant and Bose before Mr. Lodh, Special Judge, Alipur. The appellant pleaded the bar of s. 403 Code of Criminal Procedure on account of his acquittal by Mr. Dutta Gupta but the Special Judge overruled the plea. The appellant went to the High Court in revision and on March 19, 1953, Chunder, J., held that the acquittal was not by a competent Court ·as the Act creating the court had been declared ultra vires and dismissed the application. In the meantime the case was withdrawn from Mr. Lodh and was allotted to the Special Judge. Darjeeling, and a f~esh complaint was filed against both accused. On an application made by Bose the High Court quashed these proceedings and directed the proceedings pending in the Court of the Sub-Divisional Magistrate, Darjeeling, to be disposed of in accordance with law. By thjs time the Supreme Court had held in Kedar Nath Bajoria v. The State of West Bengal that the Act was intra vires. The appellant again raised the plea of the bar of s. 403 Code of Criminal Procedure, contending that in view of the decision of the Supreme Court his acquittal was by a competent Court. The plea was rejected by the Magistrates and a revision application was dismissed by the High Court on the ground that the appellant was bound by the decision of Chunder, J., holding that the acquittal was by a Court not of competent jurisdiction. The appellant appealed by special leave. Held (Sarkar, J., dissenting), that in view of the decision of the Supreme Court in Keaar Nath Bajoria's case the trial before Mr. Dutta Gupta, Special Judge was a lawful one and the acquittal of the appellant which was never ,set aside was a bar to another trial. It was open to the appellant to challenge in this appeal the order made by Chunder, J., on March 19, 1953· Except • - \ .. -- i - S.0.R. ~UPREME COURT REPORTS 59 where the statute so required, it was not imperative upon a party to appeal against every error, defect or irregularity in any order by which he may 5e aggrieved and by not doing so he did not forfeit his right to have the matter considered by the Supreme Court. So far as the Supreme Court was concerned it made no difference whether the intermediate order complained of was passed by the Trial Court and was not taken to · the High Court or it was taken to the High Court and was confirmed by it. Kedar Nath Bajoria v. The State ofli' est Bengal, [1954] S.C R. 30, followed . Maharaja Moheshur Singh v. The Bengal Government, (1859) 7 M.l.A. 283, Alexander John Forbes v. Ameeroonissa Begum, (1865) IO M.I.A. 340, Sheonath v. Ram Nath, (1865) IO M.I.A. 413 and Shah Mukhun Lal v. Baboo Sree Kishen Singh, (1868) I2 M.I.A. 157, referred to. Sambasivam v. Public Prosecutor, Federation of Malaya, [1950] A.C. 458 and Pritam Singh v. The State of Punjab,· A.LR. 1956 S.C. 415, applied. Sarkar J.-The judgment of Chunder, J., prevented the appellant from raising the question that the Court of Mr. Dutta Gupta was a court of competent jurisdiction. That decision was a final judgment and it did not lose its force as such because a·Superior Court in a different' case subsequently took a view which showed that the judgment was wrong. That decision was no ## Text _Characters 0–39,995 of 40,317. This is a partial read: ask again with offset=39995 for what follows._ I959 October 27. 58 SUPREME COURT REPORTS [1960 (2)] N. R. GROSE alias NIKHIL RANJAN GROSE v. THE STATE OF WEST BENGAL (JAFER IMAM, J. L. KAPUR, A. K. SARKAR and K. N. WANCHOO, JJ.) Criminal Trial-Autrefois acquit, plea of-Order by trial Court ' ' at intermediate stage rejecting plea-Order confirmed by High Court --Whether can be challenged in appeal against subsequent orders in ' same proceeding-Principle of finality of decisions in criminal cases -Code of Criminal Procedure, I898 (V of I898), s. 403. ' A complaint was filed against the appellant and one Bose before the Sub-Divisional Magistrate, Darjeeling. Under the W.B. Criminal Law Amendment (Special Courts) Act, 1949 the case was allotted to Mr. Dutta Gupta, Special Judge, Alipur, who by order dated1 July II, 1951, acquitted the appellant but convicted Bose. Bose appealed to the High Court which held the Act to be ultra vires and quashed the conviction.. The Act was amended and another complaint was then filed against the appellant and Bose before Mr. Lodh, Special Judge, Alipur. The appellant pleaded the bar of s. 403 Code of Criminal Procedure on account of his acquittal by Mr. Dutta Gupta but the Special Judge overruled the plea. The appellant went to the High Court in revision and on March 19, 1953, Chunder, J., held that the acquittal was not by a competent Court ·as the Act creating the court had been declared ultra vires and dismissed the application. In the meantime the case was withdrawn from Mr. Lodh and was allotted to the Special Judge. Darjeeling, and a f~esh complaint was filed against both accused. On an application made by Bose the High Court quashed these proceedings and directed the proceedings pending in the Court of the Sub-Divisional Magistrate, Darjeeling, to be disposed of in accordance with law. By thjs time the Supreme Court had held in Kedar Nath Bajoria v. The State of West Bengal that the Act was intra vires. The appellant again raised the plea of the bar of s. 403 Code of Criminal Procedure, contending that in view of the decision of the Supreme Court his acquittal was by a competent Court. The plea was rejected by the Magistrates and a revision application was dismissed by the High Court on the ground that the appellant was bound by the decision of Chunder, J., holding that the acquittal was by a Court not of competent jurisdiction. The appellant appealed by special leave. Held (Sarkar, J., dissenting), that in view of the decision of the Supreme Court in Keaar Nath Bajoria's case the trial before Mr. Dutta Gupta, Special Judge was a lawful one and the acquittal of the appellant which was never ,set aside was a bar to another trial. It was open to the appellant to challenge in this appeal the order made by Chunder, J., on March 19, 1953· Except • - \ .. -- i - S.0.R. ~UPREME COURT REPORTS 59 where the statute so required, it was not imperative upon a party to appeal against every error, defect or irregularity in any order by which he may 5e aggrieved and by not doing so he did not forfeit his right to have the matter considered by the Supreme Court. So far as the Supreme Court was concerned it made no difference whether the intermediate order complained of was passed by the Trial Court and was not taken to · the High Court or it was taken to the High Court and was confirmed by it. Kedar Nath Bajoria v. The State ofli' est Bengal, [1954] S.C R. 30, followed . Maharaja Moheshur Singh v. The Bengal Government, (1859) 7 M.l.A. 283, Alexander John Forbes v. Ameeroonissa Begum, (1865) IO M.I.A. 340, Sheonath v. Ram Nath, (1865) IO M.I.A. 413 and Shah Mukhun Lal v. Baboo Sree Kishen Singh, (1868) I2 M.I.A. 157, referred to. Sambasivam v. Public Prosecutor, Federation of Malaya, [1950] A.C. 458 and Pritam Singh v. The State of Punjab,· A.LR. 1956 S.C. 415, applied. Sarkar J.-The judgment of Chunder, J., prevented the appellant from raising the question that the Court of Mr. Dutta Gupta was a court of competent jurisdiction. That decision was a final judgment and it did not lose its force as such because a·Superior Court in a different' case subsequently took a view which showed that the judgment was wrong. That decision was not an interlocutory order as it decided that the appellant had no right not to be prosecuted again. The principle of finality of judgment obtained in qiminal law as well as it did in civil law. In re May, 28 Ch. D. 516, Sambasivam v. Public Prosecutor, F;e,4eration of Malaya, 1950 A.C. 458 and Ram Kirpal Shukul v. Mussumat Rup Kuari, (1883) L.R. II I.A. 37, referred to. 0RIMfNAL APPELLATE JURISDICTION: Criminal Appeal No. 116 of 1957. Appeal by special leave . from the judgment and order dated the February 10, 1955, 9f 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. 1959. 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 s. 403 of the Criminal , I959 N. R.Ghose v. The State of West Bengal Il \r) (1954J s.c.~. ~o. 1959 N.R.Ghose v. The State o/ West Bengal Kttpur ]. '959 N. R. Gho$e v. The State of fv est Bengal Kapur]. . 64 SUPREME COURT REPORTS [1960(2)] 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 s. 403 as the order of acquittal by the Special Judge Mr. S. 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, i.e., applicability of s. 403 even in this Court. It therefore becomes necessary to determine the effect of the order of Chunder, J. The Special Judge Mr. S. C. Dutt Gupta, acquitted the appellant and convicted the co-accused S. K. Bose who alone took an appeal to the High Court. That Court held s. 4(1) 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 S. 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 discharge. (Yusofalli Mulla Noorbhoy v. The King (3 ) ). But the appellant contended that in view of the decision of this Court in K edar Nath Bajoria v. The State of West Bengal (') where the Act was declared intra vires and s. 4( 1) 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 s. 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 (2) [1954) S.C.R. ~o., . ' • • ' - ·> .r .S.C.R. SUPREME COURT REPORTS 65 of the effect of the order of acquittal passed by Mr. S. C. Dutt Gupta because of the pronouncement by this Court in Kedar NathBajoria's case(1). What we have to decide in this appeal is whether the order of Ch under, J., has the effect of debarring the appellant from the benefit of obtaining a review by th,is 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 wlfich 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 M oheshur Singh v. The Bengal Government(2) where a party had not appealed from the order of Sudder, 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 differP.ntly 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 v. Ameeroonissa Begum( 3) where an order of remand had not been appealed - (1) [1954) S.C.R. 30. ,(2) (l 859) 7 M.I.A. 283.-302. (3) (1865) IO M.I.A. 340, 352, 'l, 9 r959 N R. Ghou v. The State of West Bengal Kapur j. I959 N. R. Chose v. The State of West Bengal Kapur]. 66 SUPREME COURT REPORTS [1960 (2)] against; Sheonath v. Ram Nath(') where the order was a step in the procedure that leads to a final decree; Shah Mukhun Lal v. Baboo Sree Kishen Singh(') 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. 965of1952 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 judp;ment of the High Court in Criminal Revision No. 930 of 1954 now under appeal S. 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" (now the appellant) "could no longer get the benefit thereof under s. 403 Cr. P. C. on a subsequent change in the law introduced by the Supreme Court decision in Kedar Nath Bajoria v. The State of West Bengal('). Following Kerlar Nath Bajoria's case (3) we are of the opinion thats. 4(1) of the Act was not ultra 'vires and the judgment of the Calcutta High Court in J.K. Gupta v. State of West Bengal(') was erroneous and the acquittal by the Special Judge Mr. S. 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) IO M.1.A. 413. (2) 11R68) 12 M.J.A. 157· (3) (1954) S.C.R. 30. (4) (1952) 56 C.W.N. 701. , f - - - - I • - ...... S.C.R. SUPREME COURT REPORfS 67 of the Privy Council in Yusofalli Mulla Noorbhoy v. 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 s. 403 Criminal Procedure Code. We have held that the trial in the court of Mr. S. 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 wa.s said by Lord MacDermott in Sambasivam v. 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 v. The State of Punjab (3). In our opinion the order of Chunder, J., was based on an erroneous view of the vires of s. 4(1) of the Act. The first trial of the appellant was before a court @f 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 s. 403. The trial before Mr. S. 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) L.R. 76 I.A. 158, 168, 16q. (2) [1950] A .C. 458, 479. (3) A.I.R. 1956 S.C. 415, 420. 1959 N R. Gliose v. The State of West Bengal _Kapur]. I959 N. R. Ghose v. The State of West Bengal Sarkar .J. 68 SUPREME COURT REPORTS [1960 (2)) jeopardy a second time which would contravenes. 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. SARKAR J.-In my view this appeal fails. On March 2, 1950, the appellant and one Bose were prosecuted for certain offences 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. v. The State of West Bengal (1 ), found that the Act was invalid as it offended art. 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 the same day the Government of West Bengal passed an Ordinance amending the Act, which Ordinanr.·e was later replaced by another. Act. Under the Act as amended, fresh proceedings in respect of the same offences 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 1ohe 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) (1952) 56 C.W.N. 701. - , . - - ' - S.C.R. SUPREME COURT REPORTS 69 April 9, 1952, it must be held that Mr. Dutta Gupta w~s not a court of competent jurisdiction and the acquittal by him was of ~o 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 th!tt the revision petition was filed in ignora1ice 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 m;ider 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 constitute<;l 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 pr~ ceding paragraph was pending itt 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 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 orger quashing the proceeding against him as in view of the judgment of this Court in Kedar Nath Bajoria' s case (1), to which reference has . (I) [1954] S.C.R, 30. (2) (1952) 56 c.w.N. 701. I959 N. R. Ghose v. , Tks State of West Bengal Sarkar /. I959 N. R. Ghose v. The State of West Bengal SaYkar ]. 70 SUPREME COURT REPORTS [1960 (2)] 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 (1), 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. 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 ? 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. \1) [1954] S.C.R. 30. . ' . • • - S.C.R. SUPREME COURT REPORTS 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 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 (2 ) 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. 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. It seems to me that the judgment of Chunder, J., prevents the appellant from raising the question that (1) (IQ.52) 56 C.W.N. 701. (2) [1954] S.C.R. 30 N. R. Chose v. The State of West Bengal Sarl