Judgment

KAPUR, J. : (with him JAFER IMAM AND WANCHOO, JJ.) - This appeal by special leave raises a question of the application of S. 403 of the Criminal Procedure Code. The circumstances in which this question arises are these: A complaint was filed against one S. K. Bose and the appellant under Ss. 120-B, 409, Indian Penal Code and S. 5(2) of the Prevention of Corruption Act (Act 2 of 1947) in the Court of the Sub-Divisional Magistrate, Darjeeling. Against the appellant the complaint was instituted on 2-3-1950. As the West Bengal Criminal Law Amendment (Special Courts Act) West Bengal Act 21 of 1949 (hereinafter referred to as the Act) came into force on 23-6-1949, the case was allotted to the Special Judge at Alipore Mr. S. C. Dutt Gupta who, on 11-7-1951, found S. K. Bose guilty but acquitted the appellant. S. K. Bose took an appeal to the High Court at Calcutta.

2. In another case, J. K. Gupta v. State of West Bengal, 56 Cal WN 701 a Special Bench of the Calcutta High Court held that S. 4(1) of the Act was ultra vires. Following this judgment a Division Bench of that Court (Trevor Harries C. J. and S. R. Das Gupta J.) passed the following order in S. K. Bose s appeal :-

"The appe