B.K.PATEL, J. Criminal Revision No.252 of 2002 (Decided on 5.5.2010). MITRA SANKAR NANDA …………. Petitioner. .Vrs. STATE OF ORISSA & ANR. ………….. Opp.Parties. CRIMINAL PROCEDURE CODE, 1973 (ACT NO.2 OF 1974) – SEC.300(1) For Petitioner - M/s. D.K.Mishra, R.P.Mohapatra, D.Panda, S.K.Ratha & R.K.Parida. M/s. A.K.nanda & G.N.Sahoo. For Opp.Parties – Addl. Standing counsel M/s. G.Pr.Mohanty, H.K.Kar, N.K.Das & M.K.Maharana (for O.P.2). B.K.PATEL, J. This revision is directed against judgment dated 31.8.2002 passed by learned Sessions Judge, Sundargarh in Criminal Appeal No.1/21 of 2000 confirming the judgment and order dated 29.2.2000 passed by the learned S.D.J.M., Bonai in G.R. Case No.384 of 1993, corresponding to Gurundia P.S. Case No.25 of 1993, by which the petitioner was convicted under Sections 341, 323 and 506(II) of the I.P.C. and sentenced to undergo simple imprisonment for one month under Section 341 of the I.P.C., for three months under Section 323 of the I.P.C. and for six months under Section 506(II) of the I.P.C. 2. Informant-P.W.3 was the Block Development Officer (B.D.O.), Gurundia and the petitioner was working as Police Constable in Gurundia Police Station during the period of occurrence. Prosecution case is that on 23.11.1993 at about 9.30 P.M. P.W.3 heard that the petitioner was abusing him in a drunken state in filthy and obscene language near his home. When P.W.3 came out from the house and went near the Block Office gate, the petitioner dragged him to the road, assaulted him, threw him on the road and tried to throttle his neck. The petitioner also was asking for a Tangia. Some of the Block personnel intervened to bring the occurrence to an end. Finding the Officer-In-Charge absent from the Gurundia Police Station, P.W.3 submitted F.I.R. Ext.1 to Sub-Divisional Police Officer (S.D.P.O.), Bonai. On being directed by the S.D.P.O., Bonai, Circle Inspector of Police, Bonai took up investigation and submitted final report stating the case to be mistake of law. In response to protest petition filed by P.W.3, enquiry under Section 202 of the Cr.P.C. was conducted by the learned S.D.J.M., Bonai and cognizance of offences under Sections 323, 294 and 506 of the I.P.C. was taken. Petitioner took the plea of complete denial. In order to substantiate the case, prosecution examined three witnesses and relied upon F.I.R. Ext.1. P.Ws.1 and 2 were occurrence witnesses. On appraisal of evidence on record, learned S.D.J.M. convicted and sentenced the petitioner as stated supra. 3. It was submitted by the learned counsel for the petitioner that from the very beginning the petitioner assailed his prosecution in the present case on the ground of bar under Section 300 of the Cr.P.C. on the assertion that trial in the present case amounted to double jeopardy. It was submitted that on the basis of allegations arising out of the self-same occurrence, the petitioner was tried for alleged commission of offences under Sections 160, 341, 323, 324 and 294 of the I.P.C. and acquitted in G.R. Case No.383 of 1993 in the court of learned S.D.J.M., Bonai. It was strenuously argued that both the learned Courts below failed to appreciate the embargo under Section 300 of the Cr.P.C. It was categorically admitted by the informant-P.W.3 himself in course of his cross-examination that G.R. Case No.383 of 1993 was also registered for the self- same occurrence. It was further argued that non-examination of the Investigating Police Officer gravely prejudiced the petitioner. On completion of investigation, final report stating the case to be mistake of law was filed by the Investigating Police Officer on the ground that on the basis of allegations arising out of self-same occurrence Gurundia P.S. Case No.24 of 1993 had been registered prior to registration of the present case as Gurundia P.S. Case No.25 of 1993. Confusion, if any, which arose in the mind of both the learned Courts below regarding the cases to have arisen out of the self-same occurrence would have been clarified by the Investigating Police Officer. 4. In reply, it was submitted by the learned counsel for the State and learned counsel for the opposite party no.2-informant that both the learned Courts below have assigned cogent reasons in support of their findings to the effect that facts and circumstances of the case do not attract application of provision under Section 300 of the Cr.P.C. It has also been concluded that non-examination of the Investigating Police Officer has not been prejudicial to the petitioner. 5. The vital question raised in this revision is the applicability of bar under the provision under Section 300 of the Cr.P.C. against the proceeding in G.R. Case No.384 of 1993 in view of earlier judgment in G.R. Case No.383 of 1993. Section 300 of the Cr.P.C. reads:- “Person once convicted or acquitted not to be tried for same offence.- (1) A person who has once been 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 other offence for which a different charge from the one made against him might have been made under sub-section(1) of section 221, or for which he might have been convicted under sub-section (2) thereof. (2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of section 220. (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. (5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate. (6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code.” 6. Provision under Article 20 of the Constitution of India provides that no person shall be prosecuted and punished for the self-same offence more than once. But provision under Sub-section (1) of Section 300 of the Cr.P.C. lays down that a person once convicted or acquitted cannot be tried for the same offence subject to exceptions under Sub-section (2) to (6) thereof. 7. In Maqbool Hussain –vrs.- State of Bombay : AIR 1953 SC 325, it was observed by the Hon’ble Supreme Court : “(7) The fundamental right which is guaranteed in Art.20(2) enunciates the principle of “autrefois convict” or “double jeopardy”. The roots of that principle are to be found in the well established rule of the common law of England “that where a person has been convicted of an offence by a Court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence”. (Per Charles J. in Reg. v. Miles (1890) 24 Q. B. D. 423 (A)). To the same effect is the ancient maxim “Nimo Bis Debet Puniri Pro Uno Delicto”, that is to say that no one ought to be twice punished for one offence or as it is sometimes written “Pro Eadem Causa” that is for the same cause. (8) This is the principle on which the party pursued has available to him the plea of “autrefois convict” or “autrefois acquit”. “The plea of ‘autrefois convict’ or “autrefois acquit” avers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned…….The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of “autrefois acquit” is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter”. (Vide Halsbury’s Laws of England-Hailsham Edition-Vol.9, Pages 152 & 153, Para.212.) (9). This principle found recognition in section 26 of the General Clauses Act, 1897- “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”, and also in S.403 (1), Criminal P.C., 1898- “A person who has been 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 other 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 S.237”.” 8. In Khartan and others –vrs.- State of Uttar Pradesh : AIR 1965 SC 83, it has been held by the Hon’ble Supreme Court that a plea of autrefois acquit which is statutorily recognized in India under Section 403 of the Cr.P.C. (Section 300 of the new Cr.P.C.) arises when a person is tried again for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236 (Section 221(1) of the new Cr.P.C.) or for which he might have been convicted under Section 237 (Section 221 (2) of the new Cr.P.C.). 9. In Mohammad Safi –vrs.- The State of West Bengal : AIR 1966 SC 69, it has been held by the Hon’ble Supreme Court that the provisions of Section 403 are based upon the general principle of autrefois acquit recognized by the English Courts. The principle upon which the right to plead autrefois acquit depends is that a man may not be put twice in jeopardy for the same offence. This principle is incorporated in Article 20 of the Constitution. In order that the bar in Section 403 (1) of the Cr.P.C. may apply it must be shown that a person has once been actually tried by a competent court for same offence charged in the second trial, or though not actually tried for he same offence charged in the second trial, he could have been on the same facts charged with it under Section 236 or convicted of it under Section 237 of the Cr.P.C. 10. In Thakur Ram and others –vrs.- The State of Bihar : AIR 1966 SC 911, it has been held that the provisions under Section 403 (1) of the old Cr.P.C. bars the trial of the person again not only for the same offence but also for any other offence based on the same facts. 11. In Mukhtiar Ahmed Ansari –v.- State (N.C.T. of Delhi) : 2005 Crl.L.J. 2569 the appellant and two others had earlier been charged for kidnapping in Sessions Case and acquitted by Additional Sessions Judge. It was held by the Hon’ble Supreme Curt that once the appellant was acquitted in kidnapping case, the doctrine of autrefois acquit gets attracted against his trial for kidnapping in the Designated Court under the Terrorists and Disruptive Activities (Prevention) Act, 1987. 12. There is also rule of issue estoppel in a criminal trial. In Manipur Administration, Manipur –v.- Thokchom Bira Singh : AIR 1965 SC 87 it was held that the rule of issue estoppel in a criminal trial is that 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, 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) of the Cr.P.C. (Section 300 (2) of the new Cr.P.C.). The rule thus relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court at a previous trial. The rule is not the same as the plea of double jeopardy or autrefois acquit, but Section 403 of the Cr.P.C. does not preclude the applicability of this rule of issue estoppel. 13. In Ravinder Singh –vrs.- State of Haryana : AIR 1975 SC 856, it has been pointed out by the Hon’ble Supreme Court : “In order to invoke the rule of issue estoppel in a criminal trial, there is an issue estoppel, if it appears that the same point was determined in favour of an accused in a previous criminal trial which is brought in issue on a second criminal trial of the same accused. In order to invoke the rule of issue estoppel not only the parties in the two trials must be the same but also the fact-in-issue proved or not in the earlier trial must be identical with what is sought to be reagitated in the subsequent trial.” 14. There is no dispute with regard to legal proposition that a person cannot be exposed to double jeopardy in view of provision under Section 300 of the Cr.P.C. However, it appears that both the Courts below came to a conclusion that allegations in the present case, i.e., in G.R. Case No.384 of 1993 and earlier G.R. Case No.383 of 1993 arose out of two occurrences. On perusal of materials on record it is found that the finding is contrary to evidence on record. P.W.3-informant has categorically admitted in his cross-examination that G.R. Case No.383 of 1993 was also registered by Gurundia Police for the self-same occurrence. He deposed: “It is a fact that another police case G.R. 383/93 was also registered by Gurundia Police for the same occurrence”. Thus, there is clear admission in unambiguous term that allegations in G.R. Case No.383 of 1993 corresponding to Gurundia P.S. Case No.24 of 1993 also related to the occurrence in the present case. 15. In the final report submitted under Section 173 of the Cr.P.C. in the present case it had been concluded: “During course of investigation when formal FIR was drawn up vide Gurundia P.S. Case No.25/93, I found that on the same facts, date, hour of occurrence, spot, a case vide Gurundia P.S. Case No.24 dt.24-11-93 U/s. 160/341/323/324/294 IPC was registered and investigated by ASI, M.K. Chodhury, in the capacity of OIC, Gurundia P.S. Under the above facts and circumstances after supervision and investigation of both the cases it was found that case no.24/93 is a true one u/s.160 IPC and both the accused persons C/776 M.S. Nanda and Sri P.K. Das, Ex-B.D.O., Gurundia Block Office made themselves liable u/s 160 IPC.” 16. It appears from the judgment dated 20.1.2000 passed by the learned S.D.J.M., Bonai in G.R. Case No.383 of 1993, i.e., Gurundia P.S. Case No.24 of 1993 and other materials on record that in the said case for alleged occurrence which took place at about 10.00 P.M. on 23.11.1993, case was registered against petitioner as well as informant-P.W.3 for commission of offences under Sections 160, 341, 323, 324 and 294 I.P.C. Both of them faced trial, in course of which as many as seven witnesses were examined, and were acquitted. Allegation, in brief, in the said case was that on hearing some persons abusing him, P.W.3 came out from the Block campus by climbing over the boundary gate and challenged as to why they were abusing him. During challenge, the informant-P.W.3 and petitioner caught hold of each other and rolled on the road. They also assaulted each other by fist blows and the informant bit petitioner’s left thumb. Thus, it is evident that occurrence took place on the public road near the Block gate at about 9.30 to 10.00 P.M. Therefore, on the face of clear admission made by P.W.3 that G.R. Case No.383 of 1993 was also registered for the same occurrence, obviously, the petitioner is found to have been already tried for offences and acquitted thereof on the same fact on the basis of which the present case was registered. In the present case, the petitioner faced prosecution of offences under Sections 341, 323 and 506 (II) of the I.P.C. In the earlier trial in G.R. Case No.383 of 1993 also allegations were made of commission of offences under Sections 341 and 323 as well as 324 and 294 of the I.P.C. Nature of allegations made in the present case as well as the earlier case reveals that in the earlier case also charge under Section 506 (II) of the I.P.C. could have been made against the petitioner. Judgments passed by both the learned courts below suffered from non-consideration of fact involving both the cases more particularly in G.R. Case No.383 of 1993, which resulted in a trial, barred under Section 300 (1) of the Cr.P.C. 17. It was rightly contended by the learned counsel for the petitioner that non- examination of Investigating Police Officer by the prosecution caused prejudice to the petitioner. Had the Investigating Police Officer been examined, he could have certainly unfolded the circumstance under which final report had been submitted in this case, as mentioned supra at paragraph-15 of this judgment. However, the informant-P.W.3, who also faced trial in G.R. Case No.383 of 1993, has categorically admitted that both the cases arose out of same occurrence. In view of such admission, the learned Courts below committed illegality in not accepting the petitioner’s plea of bar against his trial in the present case in view of provision under Section 300(1) of the Cr.P.C. as well as the rule of issue estoppel. 18. In view of above discussions, the revision is allowed. Impugned judgments dated 31.8.2002 passed by learned Sessions Judge, Sundargarh in Criminal Appeal No.1/21 of 2000 and dated 29.2.2000 passed by the learned S.D.J.M., Bonai in G.R. Case No.384 of 1993 are set aside. Revision allowed.