11 March 1964
Supreme Court


Case number: Appeal (crl.) 6 of 1962






DATE OF JUDGMENT: 11/03/1964


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,



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.




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



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



             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



             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



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



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



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



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



             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