Full Judgment Text
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PETITIONER:
MANIPUR ADMINISTRATION
Vs.
RESPONDENT:
THOKCHOM, BIRA SINGH
DATE OF JUDGMENT:
11/03/1964
BENCH:
AYYANGAR, N. RAJAGOPALA
BENCH:
AYYANGAR, N. RAJAGOPALA
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
GUPTA, K.C. DAS
SHAH, J.C.
CITATION:
1965 AIR 87 1964 SCR (7) 123
CITATOR INFO :
D 1968 SC1281 (5,8)
R 1969 SC 961 (7)
F 1970 SC 771 (3,10)
R 1970 SC1381 (5)
RF 1971 SC 458 (9)
R 1974 SC 28 (4)
D 1974 SC1256 (14)
R 1975 SC 856 (20)
ACT:
Criminal Trial-Accused acquitted in previous trial-On same
facts a subsequent trial initiated-Subsequent court whether
debarred from receiving the same evidence on the principle
of issue-estoppel-Code of Criminal Procedure 1898, (Act 5 of
1898) s. 403.
HEADNOTE:
In the present case. the trial court held the respondent
guilty of the offences under ss. 333, 323 and 440 all read
with s. 149, Indian Penal Code. It was alleged by the
prosecution that ’the respondent Bira Singh was a member of
the unlawful assembly which was formed between 3 and 5 p.m.
on 25th April 1960, in contravention of the promulgation of
the order under s. 144 of the Code of Criminal Procedure.
As a member of the mob he was alleged to have pelted Stones
at police officers. The respondent pleaded, in his defence
that the present trial was barred by s. 403, Criminal
Procedure Code by reason of the acquittal of the accused
under s. 188, Indian Penal Code on July 30, 1960. The Trial
court did not accept his defence and convicted him. On
appeal, the Judicial Commissioner accepted the defence of
the respondent and acquitted him on the bases of the
decision of this court in Pritam Singh v. State of Punjab.
Before the trial of the present case, a complaint was filed
against the respondent on May 12, 1960 under s. 188 I.P.C.
In that complaint the District Magistrate alleged that the
respondent had disobeyed the order passed under s. 144 by
forming himself alongwith other persons into an unlawful
assembly between the hours of 3 and 5 p.m. on April 25,
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1960. In that case the trial court convicted him of the
offence charged and sentenced him to rigorous imprisonment
for 6 months. On appeal the Sessions Judge by his judgment
dated July 30, 1960 acquitted the respondent, on the ground
that the prosecution had failed to establish that the
respondent was present at the place and at the time where
the occurrence took place. This acquittal was confirmed by
the Judicial Commissioner.
Held-Sub-ss. (1) to (3) of s. 403 of the Code of Criminal
Procedure deal with the trial of an accused for an offence
and his conviction therefor. The question raised for
decision in Pritam Singh’s case however was different and
was whether where an issue of fact has been tried by a
competent court on a former occasion and a finding has been
reached in favour of an accused, such a finding would
constitute an estoppel or res judicata against the
prosecution not as a bar to the trial and conviction of the
accused for a different or distinct offence but as
precluding the reception of evidence to disturb that finding
of fact when the accused is tried subsequently even for a
different offence which might be permitted by the terms of
s. 403 (2).
It would not be correct to say that the principle underlying
in Sambasivan’s case was dissented from in R. v. Connelly.
Besides, it should be pointed out that the principle
124
underlying the decision in Pritam Singh’s case did come up
for consideration before this Court on several occasions,
but it was never dissented from though in some of them it
was distinguished on facts.
Pritam Singh v. State of Punjab, A.I.R. 1956, S.C. 415, R.
v. Connelly, (1963) 3 All E.R. 510 and Sambasivam v. Public
Prosecutor, Federation of Malaya, 1950 A.C. 458, relied on.
Gurcharan Singh v. State of Punjab, A.I.R., 1963 S. C. 340,
referred to.
State of Bombay v. S. L. Apte, [1961] 3 S.C.R. 107, Banwari
Godara v. The State of Rajasthan, Cr. A. No. 141 of 1960
dated February 7, 1961, Mohinder Singh v. State of Punjab,
A.I.R. 1965 S.C. 79, Kharkan v. The State of Uttar Pradesh,
A.I.R. 1965 S.C. 83, Yusofalli mulla v. The King. 76 I.A.
158, referred to.
(ii) The rule of issue-estoppel does not prevent the trial
of an offence as does author fois acquit but only precludes
evidence being led to prove a fact in issue as regards which
evidence had already been led and a specific finding
recorded at an earlier criminal trial before a court of
competent jurisdiction.
The rule of issue-estoppel is not the same as the plea of
double jeopardy or autre fois acquit is also clear from the
statement of the law by Lord Mac Dermott in Sambasivam’s
case.
(iii) It is clear that s. 403 of the Criminal Procedure
Code does not preclude the applicability of this rule of
issue-estoppel. The rule being one which is in accord with
sound principle and supported by high authority and there
being a decision of this court in Pritam Singh’s case which
has accepted it as a proper one to be adopted, there is no
reason for discarding it.
The Queen v. Ollis, (1900) 2 Q.B. 758. The King v. Wilkes,
77 C.L.R. 511, Marz v. The Queen, 96 C.L.R. 62 and Manick-
chand Agarwall v. The State, A.I.R. 1952 Cal. 730 relied on.
JUDGMENT:
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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 6 of
1962. Appeal by special leave from the judgment and order
dated June 1, 1961 of the Judicial Commissioner’s Court for
Manipur in Criminal Appeal Case No. 7 of 1961.
O. P. Rana and R. N. Sachthey, for the appellant.
S. C. Agarwal, for the respondent.
March 11, 1964. The judgment of the Court was delivered by
AYYANGAR, J.-This appeal which comes before us by special
leave is directed against the judgment and order of the
Judicial Commissioner of Manipur acquitting the respondent
and setting aside the conviction and sentence passed against
him by the learned Sessions Judge.
This appeal was originally heard before a Bench of two
Judges but has been directed to be placed before this Bench
by reason of the learned Counsel for the appellant seeking
125
to question the correctness of the judgment of this Court in
the case of Pritam Singh v. The State of Punjab(1) in view
of the decision of the English Court of Criminal Appeal in
R. v. Connelly(2) and the subsequent decision of this
Court in Gurcharan Singh v. State of Punjab(3).
The facts giving rise to the appeal are in brief as
follows:There was an agitation by certain political parties
and groups in Manipur in April, 1960 for establishing res-
ponsible Government in the Manipur area. The agitation took
the form of picketing of Government offices and the
residences of Government servants and blocking roads in
order to paralyse the administration. After this form of
agitation continued for some time, the District Magistrate
of Manipur promulgated orders under s. 144, Criminal Proce-
dure Code on the morning of April 25, 1960 banning public
meetings and processions and these orders were proclaimed
and communicated to the public through loudspeakers. Not-
withstanding this order, crowds continued to collect and
move on the streets shouting slogans. Bira Singh-the res-
pondent-was said to have been leading this mob. A lathi
charge by the police took place but it is stated that
because of this the crowd moved a little away and began to
pelt stones. The crowd was thereupon directed to disperse,
its attention being drawn to the promulgation of the order
under s. 144, Criminal Procedure Code and to the fact that
the gathering in a public place in violation of the order
made it an unlawful assembly; but this command was not
heeded and the stone-throwing continued. There was firing
by the police which resulted in injuries to certain persons
including some of the police personnel. The first
information report in regard to the incident and the
offences committed during its course was lodged at the
Imphal Police station at about 7 p.m. that day in which the
informant specified the name of the respondent-Bira Singh as
the leader of this mob. On this a case was registered under
ss. 114/149/332/342 and 307 of the Indian Penal Code and s.
7 of the Criminal Law Amendment Act, and a few days later
the respondent was arrested. Charges were framed against
the respondent who was placed before the Magistrate and the
charge sheet stated that the respondent was in the crowd
between 3 and 5 p.m. on that day, that the crowd was an
unlawful assembly, that he was among those who pelted stones
which caused grievous hurt to one person and simple hurt to
others and also caused damage to the Inter-State Police
Wireless Station. Along with
(1) A.I.R. 1956 S.C. 415.
( 2) [1963] 3 All E.R. 510.
(3) A.I.R. 1963 S.C. 340.
126
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the respondent certain others were included as accused but
we are now concerned only with the respondent. The learned
Sessions Judge convicted all of them of the offences with
which they were charged and sentenced them to varying terms
of imprisonment but into the details of these it is not
necessary to enter.
The question of law that arises in this case is by reason of
a prior prosecution of the respondent in which he was
acquitted. That prosecution was founded on a complaint
against him filed on May 12, 1960 under s. 188, Indian Penal
Code in connection with his participation is a member of the
same crowd in regard to which the charge which is the sub-
ject matter of the present proceedings is concerned. In
that complaint the District Magistrate alleged that the
respondent had disobeyed the order passed under s. 144 by
forming himself along with 2,000 other persons into an
unlawful assembly between the hours of 3 and 5 p.m. on April
25, 1960 by shouting slogans and pelting stones at police
officers and this was stated to be oil the road in front of
the Police Wireless station. This complaint by the District
Magistrate was registered and taken cognizance of by the
Magistrate. The respondent pleaded in his defence that he
was not present at the scene of the occurrence at all and
that he had been falsely implicated by the police. The
Magistrate rejected the defence and accepting the
prosecution case that the respondent was present as the head
of the mob on that occasion convicted him of the offence
charged and sentenced him by his order dated July 8, 1960 to
rigorous imprisonment for six months. Ten days thereafter
on July 18, 1960 the charge sheet in the present case was
filed.
During the pendency of the prosecution from which the
present appeal arises the respondent appealed to the learned
Sessions judge against his conviction by the Magistrate on
the charge under s. 188, Indian Penal Code. The learned
Sessions Judge allowed the appeal holding that the prosecu-
tion had not established that the respondent was present at
the place and at the time where the occurrence took place at
which he was said by the prosecution to have been present or
that he disobeyed the order under s. 144, Criminal Procedure
Code. In the course of his judgment delivered on July 30,
1960 the learned Sessions Judge observed after referring to
the delay in the filing of the complaint after the occur-
rence:
"This delay: in the filing of the complaint
and in the naming of the
appellant.................. throws con-
siderable doubt on the presence of the
appellant among the agitators on 25-4-
60............... if the P. Ws. did not
know the appellant from before no
127
reliance can be placed on their identification
of the appellant during the trial because that
identification was not tested in a test
identification parade. This also confirms my
suspicion that the appellant might not have
been present in the incident of 25-4-
60......... The important position which the
appellant had in organising the agitation in
my opinion, afforded sufficient motive for the
P.Ws. to come to a conclusion that the
appellant might have been present in the
agitation. But that erroneous impression on
conclusion would not prove the presence of the
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appellant among the agitators on 25-4-
60......... For reasons given above the appeal
is allowed and the conviction and sentence of
the appellant under s. 188 I.P.C. are set
aside and he is acquitted."
This acquittal was confirmed by the Judicial Commissioner on
April 29, 1961. Meanwhile, to proceed with the narrative of
the proceedings which has given rise to the present appeal,
the learned Magistrate committed the respondent and 5 others
to take their trial before the Sessions Judge, Manipur on a
charge in respect of the offences we have set out earlier.
Before the learned Sessions Judge an objection was raised on
behalf of the respondent that the trial was barred by s.
403, Criminal Procedure Code by reason of the acquittal of
the accused under s. 188, Indian Penal Code on July 30,
1960. The learned Sessions Judge, however, held, that the
terms of the section were not satisfied, in that the
ingredients of the two offences with which the accused was
charged in the two prosecutions were different and rejected
that submission. On the evidence adduced before him be
found that it had been established to his satisfaction that
the respondent as well as the others were present at the
scene of the occurrence and held the accused guilty of the
offences under ss. 333, 323 and 440 all read with s. 149,
Indian Penal Code and sentenced him to 4 years R.I. All the
six accused filed appeals against their conviction and
sentences before the Judicial Commissioner, Manipur and the
learned Judicial Commissioner after making some variations
in the sentences as regards certain of the accused directed
the acquittal of the respondent on the ground that the
finding of fact recorded by the learned Sessions Judge in
his trial for the offence under s. 188, Indian Penal Code
that he was not present at the scene of the occurrence on
April 25, 1960 between the hours of 3 and 5 p.m. was final
and conclusive and binding upon the prosecution and that no
evidence could be led to
128
establish a contrary state of affairs in the present
proceedings. In so holding the learned the Judicial
Commissioner followed the decision of this Court in Pritam
Singh v. State of Punjab(1) and certain other decisions and
held that the principle of res judicata applicable to
criminal proceedings was not confined to cases falling
within the bar of s. 403, Criminal Procedure Code but was of
wider application. It is the correctness of this view of
the law that calls for consideration in this appeal.
Before referring to the decision of this Court in Pritam
Singh v. State of Punjab(1) it would be convenient to refer
to and put aside one point for clearing the ground. Section
403, Criminal Procedure Code embodies in statutory form the
accepted English rule of autre fois acquit. This section
runs:
"403 (1) A person who has been once tried by a
Court of competent jurisdiction for an offence
and convicted or acquitted of such offence
shall, while such conviction or acquittal
remains in force, not be liable to be tried
again for the same offence, nor on the same
facts for any offence for which a different
charge from the one made against him might
have been made under s. 236, or for which he
might have been convicted under section 237.
(2) A person acquitted or convicted of any
offence may be afterwards tried for any
distinct offence for which a separate charge
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might have been made against him on the former
trial under section 235, sub-section (1).
(3) A person convicted of any offence
constituted by any act causing consequences
which, together with such act, constituted a
different offence from that of which he was
convicted may be afterwards tried for such
last mentioned offence, if the consequences
had not happened, or were not known to the
Court to have happened, at the time when he
was convicted.
(4) A person acquitted or convicted of any
offence constituted by any acts may,
notwithstanding such acquittal or conviction,
be subsequently charged with, and tried for,
any other offence constituted by the same acts
which he may have committed if the Court by
which he was first tried was not competent to
try the offence with which he is subsequently
charged.
(1) A.T.R. 1956 S.C. 415.
(5) Nothing in this section shall affect the
provisions of section 26 of the General
Clauses Act, 1897, or section 188 of this
Code.
129
Explanation-The dismissal of a complaint, the
stopping of proceedings under section 249, the
discharge of the accused or any entry made
upon a charge under section 273, is not an
acquittal for the purposes of this section."
Section 26 of the General Clauses Act which is
referred to in s. 403 enacts:
"26. Where an act or omission constitutes an
offence under two or more enactments, then the
offender shall be liable to be prosecuted and
punished under either or any of those
enactments, but shall not be liable to be
punished twice for the same offence."
We might also, in this connection, refer to Art. 20(2) of
the Constitution since it makes provision for a bar against
a second prosecution in an analogous case. That provision
reads:
"20(2). No person shall be prosecuted and
punished for the same offence more than once."
As has been pointed out by this Court in State of Bombay v.
S. L. Apte(1), both in the case of Art. 20(2) of the Consti-
tution as well as s. 26 of the General Clauses Act to
operate as a bar the second prosecution and the
consequential punishment thereunder, must be for "same
offence" i.e., an offence whose ingredients are the same.
It has been pointed out in the same decision that the V
Amendment of the American Constitution which provides that
no person shall be subject, for the same offence, to be
twice put in jeopardy of life or limb, proceeds on the same
principle.
It is common ground that the respondent cannot bring his
case within the provisions of sub-s. (1) of s. 403 and it
was also common ground that the trial of the respondent
would be permitted by sub-s. (2). It should, however, be
noticed that sub-ss. (1) to (3) of this section deal with
the trial of an accused for an offence and his conviction
therefor. The question raised for decision in Pritam
Singh’s(2) case however was different and was whether where
an issue of fact has been tried by a competent court on a
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former occasion and a finding has been reached in favour of
an accused, such a finding would constitute an estoppel or
res judicata against the prosecution not as a bar to the
trial and conviction of the accused for a different or
distinct offence but as
(1) [1961] 3 S.C.R. 107. (2) A.I.R. 1956 S.C. 415.
L/P(D)1SCI-5
130
precluding the reception of evidence to disturb that finding
of fact when the accused is tried subsequently even for a
different offence which might be permitted by the terms of
s. 403(2).
As Pritam Singh’s(1) case was based wholly on the decision
of the Privy Council in Sambasivam v. Public Prosecutor,
Federation of Malaya(2) it would be necessary to examine the
basis of the latter decision. The appellant-an Indian
Tamil-was travelling on foot in the company of two Chinese.
They met a party of three Malays. A fight ensued between
the two groups in the course of which one of the Chinese was
killed. The Malays alleged that they had been fired on by
the Chinese and that the appellant had with him a revolver
which he had held out and pointed at one of them. In
connection with this incident the appellant was charged with
carrying a fire-arm and being in possession of ten rounds of
ammunition. Two charges were framed against the appellant:
(1) of carrying a fire-arm, and (2) of being in possession
of ammunition. He was acquitted of the second charge of
being in possession of ammunition and that acquittal became
final. He was, later convicted of the offence of carrying a
fire-arm and the appeal before the Privy Council related to
the legality of this conviction. Diverse objections
branching into several fields of law were raised before the
Privy Council in support of the appeal but what is, however,
of relevance now, is the one which related to the
admissibility of the evidence of the prosecution witnesses
who spoke of the revolver carried by the appellant being
loaded with bullets and of the appellant carrying four more
bullets in a bag. Their Lordships rejected all the other
contentions raised on behalf of the appellant but allowed
the appeal on the ground that this evidence regarding the
revolver being loaded and of the appellant carrying a bag
containing some bullets was inadmissible in law. In dealing
with this Lord MacDermott speaking for the Board said:
"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 in all
subsequent proceedings between the parties to
the adjudication."
After pointing out that the prosecution witnesses were
permitted to depose regarding the possession of ammunition
by the appellant and that it was not possible to exclude the
(1) A.I.R. 1956 S.C. 415.
(2) [1950] A.C. 458.
131
effect of this evidence on the prosecution case, their Lord-
ships held that the appellant was seriously prejudiced by
the reception of this evidence and therefore allowed the
appeal and directed his acquittal. The point in regard to
which the observations in Sambasivam’s(1) case was applied
by this Court related to the use of the recovery of a
revolver from the accused to sustain his conviction of the
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offence of murder. Previous to the prosecution for an
offence under s. 302, Indian Penal Code the appellant before
this Court had been tried before the Additional Sessions
Judge, Faridpur under s. 19(f) of the Indian Arms Act ‘of an
offence for possession of that revolver and had been
acquitted. This Court speaking through Bhagwati, J.
extracted the observations we have quoted from the judgment
of Lord MacDermott and pointed out that on the basis of this
decision the evidence relating to the recovery of the
revolver from the accused should have been excluded.
It was not contended by learned Counsel for the appellant
that if the principle laid down by this decision was
correct, the acquittal of the respondent by the learned
Judicial Commissioner by the order now under appeal was
erroneous. The argument, however, was that the observations
in Pritam Singh’s(2) case required reconsideration. This
submission was rested on two separate lines of reasoning:
(1) That the rule in Sambasivam’s(1) case on which Pritam
Singh IS (2) case was based had been dissented from by the
English Court of Criminal Appeal in R. v. Connelly(3) and
that, similarly that principle had been departed from by
this Court in Grcharan Singh v. State of Punjab(4). (2) That
the principle of Common law which was applied by the Privy
Council in Sambasivam’s(1) case could have no application in
a jurisdiction like ours where the principle of autre fois
acquit is covered by a statutory provision framed on the
lines of s. 403 occurring in a Code which is exhaustive.
As regards the first ground, it must be pointed out that
learned Counsel for the State admitted that there was noth-
ing a Gurcharan Singh’s(4) case which militated against the
acceptance of the rule laid down in Pritam Singh’s (2) case.
Coming next to the point made regarding the decision of the
English Court of Criminal Appeal in R. v. Connelly(3), we
should make it clear that the decisions of the English
Courts being merely of persuasive authority, decisions of
such a
(1) [1950] A.C. 458.
(2) [1963] 3 All E.R. 510
(3) A.I.R. 1956 S.C. 415.
(4) A.I.R. 1963 S.C. 340.
L/P(D)1 SCI--5(a)
132
court even if at variance with one of this Court do not by
themselves justify an application to reconsider an earlier
decision of this Court. Besides, a close examination of the
judgment in R. v. Connelly(1) through which learned Counsel
for the State has taken us, does not disclose any dissent
from the principle stated by Lord MacDermott. The entire
case before the Court turned upon whether there had been a
specific finding on an issue of fact-an issue directly
raised regarding an ingredient of the offence charged at the
later trial, when the accused was acquitted by the Court of
Criminal Appeal in the former proceeding. Except that the
Court did not expressly rule that the principle of issue-
estoppel applied in England, no exception was taken to its
soundness and the decision proceeded on the basis of the
facts not justifying the application of the principle, the
conditions not being fulfilled. Learned Counsel is,
therefore, not well-founded in his submission that the
principle underlying Sambasivam’s(2) case was dissented from
in R. v. Connelly(1). Besides, it should be pointed out
that the principle underlying the decision in Pritam
Singh’s(3) case did come up for consideration before this
Court on several occasions, but it was never dissented from
though in some of them it was distinguished on facts. (See
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Banwari Godara v. The State of Rajasthan(4), Mohinder Singh
v. State of Punjab(5) and Kharkan v. The State of Uttar
Pradesh(6).
These two decisions in R. v. Connelly(1) and Gurcharan Singh
v. State of Punjab(7) being out of the way, we shall address
ourselves to the question as to whether what is termed
"issue estoppel" which has been held by this Court in Pritam
Singh’s(3) case to be applicable to criminal proceedings is
excluded by reason of the provisions of the Criminal
Procedure Code. For this purpose learned Counsel invited
our attention to s. 5(1) which enacts:
"All offences under the Indian Penal Code
shall be investigated, inquired into, tried,
otherwise dealt with according to the
provisions hereinafter contained."
This, however, in our opinion, does not afford any
assistance to the argument because Pritam Singh’s(3) case
did not introduce any variation in the Code as regards
either
[1963] 3 All E.R. 510.
[1950] A.C. 458.
(3) A.I.R. 1956 S.C. 415.
(4) G.A. No. 141 of 1960, d/February 7, 1961.
(5) A.I.R. 1965 S.C. 79.
(6) A.I.R. 1965 S.C. 83.
(7) A.I.R. 1963 S.C. 340.
133
investigation, enquiry or trial. As we have pointed out
earlier, issue-estoppel does not prevent the trial of any
offence as does autre fois acquit but only precludes
evidence being led to prove a fact in issue as regards which
evidence has already been led and a specific finding
recorded at an earlier criminal trial before a court of
competent jurisdiction. Learned Counsel next drew our
attention to the observations of the Privy Council in
Yusofalli Mulla v. The King(1) at page 169 where the
following observations occur:
"The last point urged by Mr. Page was that
even if the case did not fall within the terms
of s. 403 of the Code of Criminal Procedure
the appellant could nonetheless rely on the
common law rule that no man should be placed
twice in jeopardy."
After stating that even for the application of the Common
Law rule of double jeopardy the earlier order had to be by a
court competent to pass a valid order of acquittal or
conviction the judgment proceeded:
"This argument therefore fails on the facts,
and it is not necessary for their Lordships to
consider whether s. 403 of the Code of
Criminal Procedure constitutes a complete code
in India on the subject of autre fois acquit
and autre fois convict, or whether in a proper
case the common law can be called in aid to
supplement the provisions of the section."
As we have pointed out, we are not now concerned with any
extension of the principle of autre fois acquit but as to
the admissibility of evidence which is designed to upset a
finding of fact recorded by a competent court at a previous
trial. The reasoning of Lord MacDermott in Sambasivam’s(2)
case was not the first occasion when this rule as to issue-
estoppel in a criminal trial was formulated or given effect
to. That it is not the same as the plea of double jeopardy
or autre fois acquit is also clear from the statement of the
law by Lord MacDermott himself. The distinction between
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autre fois acquit and the objection to the reception of
evidence to prove an identical fact which has been the
subject of an earlier finding between the parties is brought
out in the following passage from the judgment of Wright, J.
in The Queen v. Ollis(3):
"The real question is whether this relevant evidence of the
false pretence on July 5 or 6 ought to have been excluded on
the ground that it was part of
(1) 176 I.A. 158. ( 2 ) [1950] A.C. 458.
(3) (1900) 2 Q.B. 758, 768-769.
134
the evidence given for the prosecution at the
former trial, at which the prisoner was
charged with having obtained money from Ramsey
on that false pretence, and was acquitted of
that charge."
The learned Judge then went on to point out that if the
acquittal at the first trial was based on the negativing of
this fact the evidence would be inadmissible but if that
acquittal was based on other circumstances the evidence
would be admissible. That is why he said:
"An objection in the nature of a plea of
"autre fois acquit" cannot of course be
maintained, because on either indictment the
prisoner could not have been convicted of the
offences, or any of them, which were alleged
in the other indictment. Nor can there be an
estoppel of record or quasi of record, unless
it appears by record of itself, or as
explained by proper evidence, that the same
point was determined on the first trial which
was in issue on the second trial."
Speaking of this type of estoppel Dixon, J. said in The King
v. Wilkes(1):
"Whilst there is not a great deal of authority
upon the subject, it appears to me that there
is nothing wrong in the view that there is an
issue estoppel, if it appears by record of
itself or as explained by proper evidence,
that the same point was determined in favour
of a prisoner in a previous criminal trial
which is brought in issue on a second criminal
trial of the same prisoner. That seems to be
implied in the language used by Wright, J. in
R. v. Ollis which in effect I have adopted in
the foregoing statement........... There must
be a prior proceeding determined against the
Crown necessarily involving an issue which
again arises in a subsequent proceeding by the
Crown against the same prisoner. The
allegation of the Crown in the subsequent
proceeding must itself be inconsistent with
the acquittal of the prisoner in the previous
proceeding. But if such a condition of
affairs arises I see no reason why the
ordinary rules of issue-estoppel should not
apply. Such rules are not to be confused with
those of res judicata, which in criminal
proceedings are expressed in the pleas of
autre fois acquit and autre fois convict.
They are pleas which are
(1) C.L.R. 511 at pp. 518-519.
135
concerned with the judicial determination of
an alleged criminal liability and in the case
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of conviction with the substitution of a new
liability. Issue-estoppel is concerned with
the judicial establishment of a proposition of
law or fact between parties. It depends upon
well-known doctrines which control the
relitigation of issues which are settled by
prior litigation."
This decision was rendered in 1948. The matter was the
subject of consideration by the High Court of Australia
after the decision in Sambasivam’s(1) case in Marz v. The
Queen (2) . The question concerned the validity of a convic-
tion for rape after the accused had been acquitted on the
charge of murdering the woman during the commission of the
act. In an unanimous judgment by which the appeal of the
accused was allowed, the court said:
"The Crown is as much precluded by an estoppel
by judgment in criminal proceedings as is a
subject in civil proceedings......... The law
which gives effect to issue-estoppels is not
concerned with the correctness or
incorrectness of the finding which amounts to
an estoppel, still less with the process of
reasoning by which the finding was reached in
fact............ It is enough that an issue or
issues have been distinctly raised or found.
Once that is done, then, so long as the
finding stands, if there be any subsequent
litigation between the same parties, no
allegations legally inconsistent with the
finding may be made by one of them against the
other."
It is, therefore, clear that s. 403 of the Criminal Proce-
dure Code does not preclude the applicability of this rule
of issue-estoppel. The rule being one which is in accord
with sound principle and supported by high authority and
there being a decision of this Court which has accepted it
as a proper one to be adopted, we do not see any reason for
discarding it. We might also point out that even before the
decision of this Court this rule was applied by some of the
High Courts and by way of illustration we might refer to the
decision of Harries, C. J. in Manickchand Agarwala v. The
State(3). Before parting, we think it proper to make one
observation. The question has sometimes been mooted as to
whether the same principle of issue-estoppel could be raised
(1) [1950] A.C. 458. (2) 96 C.L.R. 62, 68-69.
(3) A.I.R. 1952 Cal. 730.
136
against an accused, the argument against its application
being that the prosecution cannot succeed unless it proves
to the, satisfaction of the Court trying the accused by
evidence led before it that he is guilty of the offence
charged. We prefer to express no opinion on this question
since it does not arise for examination.
As stated earlier, if Pritam Singh’s(1) case was rightly
decided, it was conceded that the decision of the Judicial
Commissioner was right.
The appeal, therefore, fails and is dismissed.
Appeal dismissed
(1) A.I.R. 1956 S.C. 415.
137