iminal 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
section 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 vs The State of Punjab1 in view of the decision of the English Court of Criminal Appeal in R vs Connelly2 and the subsequent decision of this Court in Gurcharan Singh vs State of Punjab3
The facts giving rise to the appeal are in brief as followsThere 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 section 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 section 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 pm 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 sections 114149332342 and 307 of the Indian Penal Code and section 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 pm 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 AIR 1956 SC 415
 2 3  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 section 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 section 144 by forming himself along with 2000 other persons into an unlawful assembly between the hours of 3 and 5 pm 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 section 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 section 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 PWs 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 section 188 IPC 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 section 403 Criminal Procedure Code by reason of the acquittal of the accused under section 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 sections 333 323 and 440 all read with section 149 Indian Penal Code and sentenced him to 4 years RI
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 section 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 pm 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 vs State of Punjab1 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 section 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 vs State of Punjab1 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 section 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 ATR 5 Nothing in this section shall affect the provisions of section 26 of the  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 which is referred to in section 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 article 202 of the Constitution since it makes provision for a bar against a second prosecution in an analogous case
That provision reads 202
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 vs section L Apte1 both in the case of article 202 of the Consti tution as well as section 26 of the to operate as a bar the second prosecution and the consequential punishment thereunder must be for same offence ie 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 section
1 of section 403 and it was also common ground that the trial of the respondent would be permitted by sub section
It should however be noticed that sub sections
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 s2 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  2 AIR 1956 SC 415
LPD1SCI 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 section 4032
As Pritam Singh s1 case was based wholly on the decision of the Privy Council in Sambasivam vs Public Prosecutor Federation of Malaya2 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 AIR 1956 SC 415 2 131 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 s1 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 section 302 Indian Penal Code the appellant before this Court had been tried before the Additional Sessions Judge Faridpur under section 19f 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 s2 case required reconsideration
This submission was rested on two separate lines of reasoning 1 That the rule in Sambasivam s1 case on which Pritam Singh IS 2 case was based had been dissented from by the English Court of Criminal Appeal in R vs Connelly3 and that similarly that principle had been departed from by this Court in Grcharan Singh vs State of Punjab4
2 That the principle of Common law which was applied by the Privy Council in Sambasivam s1 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 section 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 s4 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 vs Connelly3 we should make it clear that the decisions of the English Courts being merely of persuasive authority decisions of such a 1 2 3 AIR 1956 SC 415
4  LPD1 SCI 5a 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 vs Connelly1 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 s2 case was dissented from in R vs Connelly1
Besides it should be pointed out that the principle underlying the decision in Pritam Singh s3 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 vs The State of Rajasthan4 Mohinder Singh vs State of Punjab5 and Kharkan vs The State of Uttar Pradesh6
These two decisions in R vs Connelly1 and Gurcharan Singh vs State of Punjab7 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 s3 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 section 51 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 s3 case did not introduce any variation in the Code as regards either 3 AIR 1956 SC 415
4 GA No 141 of 1960 dFebruary 7 1961
5 AIR 1965 SC 79
6 AIR 1965 SC 83
7  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 vs The King1 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 section 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 section 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 s2 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 vs Ollis3 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 IA 158
 2  3  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 vs Wilkes1 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 vs 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 CLR 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 s1 case in Marz vs 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 section 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 vs The State3
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 2   68 69
3 AIR 1952 Cal
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 s1 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 AIR 1956 SC 415


Summary:
In the present case
the trial court held the respondent guilty of the offences under sections 333 323 and 440 all read with section 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 pm on 25th April 1960 in contravention of the promulgation of the order under section 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 section 403 Criminal Procedure Code by reason of the acquittal of the accused under section 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 vs State of Punjab
Before the trial of the present case a complaint was filed against the respondent on May 12 1960 under section 188 IPC
In that complaint the District Magistrate alleged that the respondent had disobeyed the order passed under section 144 by forming himself alongwith other persons into an unlawful assembly between the hours of 3 and 5 pm 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 sections
1 to 3 of section 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 section 403 2
It would not be correct to say that the principle underlying in Sambasivan s case was dissented from in R vs 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 vs State of Punjab AIR 1956 SC 415 R vs Connelly and Sambasivam vs Public Prosecutor Federation of Malaya  relied on
Gurcharan Singh vs State of Punjab AIR  referred to
State of Bombay vs section L Apte   Banwari Godara vs The State of Rajasthan Cr A No 141 of 1960 dated February 7 1961 Mohinder Singh vs State of Punjab AIR 1965 SC 79 Kharkan vs The State of Uttar Pradesh AIR 1965 SC 83 Yusofalli mulla vs The King
76 IA 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 section 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 vs Ollis The King vs Wilkes   Marz vs The Queen  and Manick chand Agarwall vs The State AIR 1952 Cal
730 relied on