Lalta & Ors Vs. State of Uttar
Pradesh  INSC 257 (25 October 1968)
25/10/1968 RAMASWAMI, V.
CITATION: 1970 AIR 1381 1969 SCR (2) 528
RF 1975 SC 856 (18)
Code of Criminal Procedure (5 of 1898), s.
403--Rule of issue-estoppel--Applicability.
The first appellant filed a suit on a
Prior to the institution of the suit, the
executant of the promissory note had filed a complaint against the appellants
alleging that they had forcibly taken his thumb impressions on a number of
blank forms of promissory notes. The Magistrate 'acquitted the, appellants.
Thereafter. the suit on the promissory note was dismissed on the ground that
the promissory note was a forgery because, the stamps affixed were of a date
later than that of the promissory note. The Court then filed a complaint
against the appellants for the offence of forgery. The appellants were
convicted for forgery and abetment of forgery.
In appeal to this Court,
HELD: In the earlier criminal case, the
allegation that the executant's thumb impressions on blank forms were obtained
by force, was found to be false. That finding was final and could not be
reopened because of the rule as to issue-estoppel. Therefore, the sub-stratum
of the present case failed and the appellants could not be convicted for the
offence of forgery and its abetment. [532 D--F] The rule of issue-estoppel is
not covered by s. 403, Criminal Procedure Code, which deals with the principle
of autrefois acquit: but that section does not preclude the applicability of
the rule. The rule is in accordance with sound principle and was applied in two
decisions of this Court, namely, Pritam Singh v. State of Punjab, A.I.R. 1956
S.C. 415 and Manipur Administration v. Thockechom Bira Singh,  7 S.C.R.
123. There is no reason for casting any doubt on its soundness or for taking a
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No.185 of 1966.
Appeal by special leave from the judgment and
order dated June 3, 1966 of the Allahabad High Court, LuCknow Bench inCriminal
Revision Applications No. 410 and 413 of 1964.
R.K. Garg, S.C. Agarwala, S. Chakravarti and
S. S.Shukla, for the appellants.
O.P. Rana and Ravindra Bana, for the respondent.
The Judgment of the Court was delivered by
Ramaswami, L This appeal is brought, by special leave, from the judgment of the
Allahabad High Court dated June 3, 1966 527 dismissing the Criminal Revision
Applications Nos. 410 and 413. of 1964.
The appellant, Lalta filed a money suit no.
54 of 1955 in the Court of Civil Judge, Gonda against Swami Nath on the basis
of a pronote and receipt dated July 1, 1952 on the allegation that Swami Nath
had taken a loan of Rs. 250 from him and executed a promisory note and a
receipt in lieu thereof. Swami Nath filed a written statement in that suit
denying to have taken any loan or to have executed any pronote and receipt in
favour of Lalta. It appears that prior to the institution of this suit Swami
Nath had filed a complaint on January 24, 1955 against Lalta and others
alleging that they had forcibly taken his thumb. impressions on a number of
blank forms of pronotes and receipts.. The case arising out of the Criminal
complaint came to be heard by a Magistrate Second Class who by his judgment
dated May 31, 1956 acquitted Lalta and the other persons complained against.
The Criminal c'ase against Swami Nath proceeded on the. charges framed under
ss. 342 and 384, Indian Penal Code. In the Civil Suit which was filed by Lalta,
the defendant Swami Nath moved an application for a report being called from
the Superintendent, Security Press, Nasik regarding the year of the revenue.
stamps affixed on the pronote and the receipt. The matter was accordingly
referred to the Superintendent, Security Press, Nasik and the report received
was that the stamps in question had been printed on December 21, 1953 and were
issued for the first time on January 16, 1954 to the Treasury. Subsequent to
the receipt of the report Lalta did not put in appearance and the suit was
dismissed for default on June 1, 1956. The Civil Judge was moved for filing a
complaint against the appellants for committing forgery. The Civil Judge Gonda
actually filed a complaint on, November 9, 1956 against Lalta for offences
under ss. 193, 194, 209, 465, 467 and 471, Indian Penal Code and against
Tribeni and Ram Bharosey for'an offence under s. 193, Indian Penal' Code. The
complaint was enquired into by a First Class Magistrate who committed the
appellants to the Court of Sessions. By his judgment dated November 27, 1963,
the Assistant Sessions Judge, Gonda convicted Tribeni and Ram Bharosey under s.
467 read with s. 109, Indian Penal Code and sentenced them to 3 years rigorous
imprisonment. He found Lalta guility under s. 467, Indian Penal Code and
sentenced him to 3 years rigorous imprisonment. Lalta was also convicted under
s. 471, Indian Penal Code and sentenced to 2 years rigorous imprisonment. He
was also found guilty under s. 193, Indian Penal Code and sentenced to rigorous
imprisonment for two years. The appellants took the matter in appeal to the
Sessions Judge, Gonda who by his order dated October 17, 1964 set aside the
convie- 528 tion of Lalta under s. 193, Indian Penal Code but maintained the
conviction of the appellants under the other sections.
Tribeni, Lalta and Ram Bharosey filed
Revision Applications before the Allahabad High Court which by its order dated
June 3, 1966 affirmed the order of the Sessions Judge, Gonda and dismissed the
In support of this appeal Mr. Garg put
forward the argument that in view of the fact that Swami Nath's complaint had
been ,dismissed by the Second Class Magistrate on May 31, 1956, the prosecution
case with regard to the act of forgery must fail and the conviction of Lalta
467 and s. 471, Indian Penal ,.Code was not
sustainable. It was also pointed out that the ,charge of abetment against Ram
Bharosey and Tribeni under s. 467 read with s. 109, Indian Penal Code and s.
471 read with s. 109, Indian Penal Code must fail for the same reason. In our
opinion, the argument put forward on behalf of the appellants is well- founded
and must be accepted as correct.
In Pritam Singh v. The State of Punjab(1), it
was pointed out by this Court that the effect of a verdict of acquittal passed
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, but to that it must be added that the verdict is binding and
conclusive in all subsequent proceedings between the parties- to. the
adjudication. In that case the appellant had been acquitted of the charge under
s. 19(f), Arms Act for possession of a revolver. There was a subsequent
prosecution of the appellant for ,an offence under s. 302, Indian Penal Code
and the possession of the revolver was a fact in issue in the later case which
had to be established by the prosecution. It was held that the finding in the
former trial on the issue of prossession of revolver will constitute an
estoppel against the prosecution, not as a bar to the trial and conviction of
the appellant for a different offence but as precluding the reception of
,evidence to disturb the finding of fact.
Section 403, Criminal Procedure Code embodies
in statutory form the accepted English rule of autrefois acquit. The section
reads as follows:
"403. (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 (1) A.I.R. 1956 S.C. 415.
529 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,
(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
after wards 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
(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
(5) Nothing in this section shall affect the
provisions of section 26 of the General Clauses Act, 1897, or of section 18 8
of this Code.
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, Criminal Procedure Code enacts as follows:
"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." It is manifest in
the present case that. the appellants cannot plead the bar enacted in s. 403(1)
of the Criminal Procedure Code. It is equally manifest that the prosecution of
the appellants would be permitted under sub-s. (2) of s.
403, Criminal Procedure Code. The question
presented for determination in this appeal is, however, different. The question
is 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
530 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 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), Criminal Procedure Code. The
distinction between the principle of autrefois acquit and the rule as to issue-
estoppel; in other words, the objection to the reception of evidence to prove
an identical fact which has been the subject-matter of an earlier finding
between the same parties clearly brought out in the following passage from the
judgment Wright,. J. in The Queen v. OIlis(1):
"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 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." Speaking of this type of estoppel, Dixon, J. stated in The King
v. Wilkes ( 2 ):
"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. Oilis which in effect I have adoptde 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 autrefois acquit
and autrafois convict. They are pleas which are concerned with the judicial
determination of an alleged criminal liability and in the case of (1)  2
Q.B. 758, 768-769. (2) 77 C.L.R. 511,518.
531 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." The same question was the subject-matter of consideration by
the High Court of Australia in a later case Marz v. The Queen(1). The question
at issue was the validity of a conviction for rape after the accused had been
acquitted on the charge of murdering the woman during the commission of the
act. In a unanimous judgment by which the appeal of the accused was allowed,
the High Court stated as follows :-- "It is a negation in the alternative
upon which, so long as the verdict stood in its entirety, the applicant was
entitled to rely as creating an issue estoppel against the Crown. He was
entitled to rely upon it because when he pleaded not guilty to the indictment
of murder the issues which were thereby joined between him and the Crown
necessarily raised for determination the existence of the three elements we
have mentioned and the verdict upon those issues must, for the reasons we have
given, be taken to have affirmed the existence of the third and to have denied
the existence of one or other of the other two elements. It is nothing to point
that the verdict may have been the result of a misdirection of the judge and
that owing to the misdirection the jury may have found the verdict without
understanding or intending what as a matter of law is its necessary meaning or
its legal consequences. 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 processes of reasoning by which the finding
was reached in fact; it does not matter that the finding may be thought to be
due to the jury having been put upon the wrong track by some direction of the
presiding judge or to the jury having got on the wrong track unaided. It is
enough that an issue or issues have been distinctly raised and fou nd. 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, Criminal Procedure Code does not preclude the applicability
of this rule of issue-estoppel.
(1) 96 C.L.R. 62, 68-69.
532 It was contended by Mr. Rana on behalf of
the respondent that the decision of this Court in Pritam Singh's case(x) was
based on the observations of the Judicial Committee in Sambasivam v. Public
Prosecutor, Federation of Malaya(2) and the decision in Pritam Singh's case(1)
required reconsideration because the principle could have no application ,to
India where the principle of autrefois acquit is covered by a statutory
provision viz., s. 403,' Criminal Procedure Code which must be taken to be
exhaustive in character. We are unable to accept this contention as right. We
have already pointed out that s. 403, Criminal Procedure Code does not preclude
the applicability of the rule of issue-estoppel. In any event, the rule is one
which is in accordance with sound principle and supported by high authority and
there are already two decisions of this Court, viz., Pritam Singh's case(1) and
a later case Manipur Administration v. Thokchom, Bira Singh(3)-which have
accepted the rule .as a proper one to be adopted. We therefore do not see any
reason for casting any doubt on the soundness of the rule or for taking a
different view from that adopted in the two earlier decisions of this Court
If the rule of issue-estoppel is applied to
the present case, it follows that the charge with regard to forgery must fail
against all the appellants. The reason is that the case of Swami Nath is solely
based upon the allegation that his thumb impressions were obtained. on blank
forms of promissory notes and receipts on January 7, 1955 by the use of force.
If the finding of the Second Class Magistrate on this issue is final and cannot
be reopened, the substratum of the present prosecution case fails and the
charges of forgery under ss. 467 and 471, Indian Penal Code cannot be
established against any of the appellants.
For these reasons we hold that this appeal
must be allowed, the judgment of the Allahabad High Court dated June 3, 1966
must be set aside and the convictions of each of the appellants and the
sentence imposed upon them should be quashed. If the appellants are still in
jail they should be set at liberty forthwith.
V.P.S. Appeal allowed.
(1) A.I.R. 1956 S.C. 415.
(2)  A.C. 458.
(3)  7 S.C.R. 123.