State of Andhra Pradesh Vs.
Kokkiliagada Meerayya & ANR [1968] INSC 300 (28 November 1968)
28/11/1968 SHAH, J.C.
SHAH, J.C.
GROVER, A.N.
CITATION: 1970 AIR 771 1969 SCR (2) 626 1969
SCC (1) 161
CITATOR INFO :
RF 1971 SC 458 (9) R 1973 SC2131 (14,15) D
1974 SC1256 (14)
ACT:
"Issue Estoppel"-rule of-when
applicable-whether inconsistent with s. 403 Cr. P.C.-Proceedings under s. 107
Cr. P.C. against certain persons including respondents- Evidence found
insufficient to sustain incidents alleged to make order of binding
over-Respondents convicted under ss. 323 and 324 I.P.C. in relation to one of
the incidents- whether conviction valid.
HEADNOTE:
Proceedings were instituted under s. 107 Cr.
P.C. against four persons including the two respondents and an order was made
against them under s. 112 Cr. P.C. stating that they were indulging in various
acts of violence involving breach of peace and requiring them to show cause why
each of them should not execute a bond for keeping the peace. This order
referred to four incidents, the first of which was that on June 22, 1964,
eleven persons including the two respondents had indulged i.n certain acts of
violence as a result of which a case under ss. 148, 323 and 325 I.P.C. had been
registered. After holding an inquiry, the Magistrate was of the view that the
evidence led in support of the first incident was not reliable and the first
incident was not proved against any of the eleven persons.
Subsequently the respondents were convicted
at a trial of offences under ss. 323 and 324 I.P.C. committed in the first
incident in the order under s. 112 Cr. P.C. The Court of Session in appeal
confirmed the conviction but the High Court, in revision, set it aside holding
that on the principle of "issue estoppel" approved by this Court in
Manipur Administration v. Thockchom Bira Singh, [1964] 7 S.C.R. 123, since in
the proceedings under s. 107 Cr. P.C.
the incident which was made the subject
matter of the complaint against the respondents in the Trial Court was one of
the incidents relied upon and was held not proved, it was not open to the State
to prosecute the respondents in respect of the same incident.
In appeal to this Court with special leave,
it was contended that the rule of "issue estoppel" had no application
in the present. case, since there was no "previous trial" of the
respondents for any offence alleged to arise out of the incident in respect of
which they were tried; and furthermore, that the rule of issue estoppel was
inconsistent with the statutory provisions contained in s. 403 Cr. P.C. and
could not be resorted to in criminal trials.
HELD: (i) The High Court was in error in
holding that the respondents could not be tried and convicted of offences under
ss. 324 and 323 I.P.C. because in the earlier proceeding under s. 107 Cr. P.C.,
evidence with regard to the incident out of which the offences arose which were
the subject-matter of the present appeal was taken, and was regarded as
insufficient to sustain the order. The rejection of evidence given in the
earlier proceeding to sustain an order for binding over the respondents to keep
the peace did not preclude the trial of the respondents in respect 1005 of the
specific incident which together with the other incidents was sought to be made
the basis of the order of binding over the respondents.
The rule of "issue estoppel"
prevents relitigation of the issue which has been determined in a criminal
trial between the State and the accused. If in respect of an offence arising
out a transaction a trial has taken place and the accused has been acquitted,
another trial in respect of the offence alleged to arise out of that
transaction or of a related transaction which requires the Court to arrive at a
conclusion inconsistent with the conclusion reached at the earlier trial is
prohibited by the rule of issue estoppel. In the present case there was no
trial of the respondents for an offence in the earlier proceeding and there was
no order of conviction or acquittal. [1011 D--F, H] (ii) Section 403 Cr. P.C.
enacts the 'rule of autre fois acquit and autre fois convict applicable to
criminal trials. The rule is that so long as an order of acquittal or
conviction at a trial held by a court of competent jurisdiction of a person
charged with committing an offence stands, that person cannot again be tried on
the same facts for the offence for which he was tried or for any other offence
arising there from. But the rule of "issue estoppel" in criminal
trials evolved by the High Court of Australia and approved by the Judicial
Committee has been applied to criminal trials in India, apart from the terms of
s. 403.
[1008 C] Manipur Administration v. Thokchom,
Bira Singh, [1964] 7 S.C.R. 123; Sambasivam v. Public Prosecutor, Federation of
Malaya, L.R. [1950] A.C. 458; Pritam Singh v. The State of Punjab, A.I.R. 1956
S.C. 415; Banwari Godara v. The State of RaJasthan, Cr. A. No. 141 of 1960
decided on Feb. 7, 1961; Lalta & Ors. v. The State of U.P., Cr. A. No. 185
of 1966 decided on Oct. 25, 1968; The assistant Collector of Customs and another
v.L.R. Malwani and another, Cr. ,As.
Nos. 15 & 35 of 1967 decided on Oct. 16,
1968; Sealfron v.
United States, (1948) 332 U.S. Rep..575 and
The King v.
Wilkes, 77 C.L.R. 511, referred to.
Connelly v. Director of Public Prosecutions,
L.R. [1964] A.C. 1254, distinguished.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 207 of 1967.
Appeal by special leave from the judgment and
order dated April 17, 1967 of the Andhra Pradesh High Court in Criminal
Revision Petition No. 735 of 1965.
P. Ram Reddy and A. V.V. Nair, for the
appellant. G.S. Rama Rao, for the respondents.
The judgment of the Court was delivered by
Shah, J.K. Meerayya, K. Venkatanarayana--respondents in this appeal and two
others were charged before the Judicial Magistrate, IInd Class, Avanigadda, for
offences under ss.
323 and 324 I.P. Code for voluntarily causing
injuries to Seetharamayya and Veeraraghavayya on June 22, 1964. The Trial
Magistrate convicted Meerayya and Venkatanarayana--the first under the offence
under s. 324 and the second for the offence under s. 323 I.P. Code. In appeal
to the Court of Session, 1006 Krishna Division, at Machilipatnam, the order was
confirmed.
The High Court, in exercise of its revisional
jurisdiction, set aside the order of conviction and sentence. The State of
Andhra Pradesh has appealed to this Court, with special leave.
The case raises a question of some importance
in the administration of justice. The findings recorded by the Trial Magistrate
and confirmed by the Sessions Judge were that the respondents had committed
assault upon Seetharamayya and Veeraraghavayya and that they could in law be
properly convicted. But it was urged that there was a bar against prosecution
of the two accused Meerayya and Venkatanarayana because of the "principle
of issue estoppel". The plea is raised on the ground that the Station
House Officer, Kodur Police Station, had instituted proceedings in the Court of
the Sub-Divisional Magistrate, Bandar, under s. 107' Code of Criminal
Procedure, against 96 persons, amongst whom were the two respondents, and an
order under s. 112 Code of Criminal Procedure was made stating that the persons
named therein were indulging in acts of violence involving breach of public
peace and tranquillity in the village of Salempalam and were endangering peace
in the village, and that they had formed themselves into a party and were
thereby disturbing the public peace and tranquillity by committing, acts of
violence, and on that account they were required to show cause why each person
named should not execute a bond for keeping the peace for a period of one year
in the sum of Rs. 1,000 with two sureties in a like amount each. In the order
requiring the parties to show cause, four incidents were referred to-the first
of which is material. It was recited that on June 22, 1964, 11 persons
including the two respondents had beaten Seetharamayya and Veeraraghavayya with
crow bars and sticks, and a case in Crime No. 20/64 under ss. 148, 323 and 325
I.P. Code had been registered and was being investigated. The Sub-Divisional
Magistrate held an inquiry and was of the view that since the evidence led in
support of the first incident was not supported by reliable evidence, and there
were inherent discrepancies in the testimony of the witnesses and the recitals
in the complaint, the first incident was not proved against any of the eleven
persons.
It was urged that the order of the
Sub-Divisional Magistrate holding that the respondents were not concerned in
the incident had become final and it was not open to the Judicial Magistrate,
IInd Class, Avanigadda, to hold a trial against the respondents in respect of
the same incident.
The Trial Magistrate rejected the plea, and
the Sessions Judge agreed with him. But in the view of the High Court since in
the proceeding under s. 107 of the ,Code of Criminal Procedure the incident
which was made the subject- matter of the complaint against the respondents in
the Court of the Judicial Magistrate was one of the incidents 1007 relied upon
and was held not proved, it was not open to the State to commence or continue a
prosecution against the respondents in respect of the same incident. In so
holding, the High Court held that on the principle of "issue
estoppel" approved by this Court in Manipur Administration v. Thokchom, Bira
Singh(1) so long as the finding, that the respondents were not concerned in the
incident, was not set aside by appropriate proceeding, no prosecution on any
allegation legally inconsistent with that finding could be commenced against
the respondents.
Counsel for the State contended that the rule
of issue estoppel is inconsistent with the statutory provisions contained in s.
403 of the Code of Criminal Procedure, and cannot be resorted to in criminal
trials and that in any event the rule of issue estoppel had no application,
since there was no "previous trial" of the respondents for any
offence alleged to arise out of the incident in respect of which they were
tried. It was urged that it was not the law even recognised by the Australian
Courts where the rule of issue estoppel had its origin that evidence on which a
criminal proceeding was held cannot be utilised in any subsequent proceeding
between the same parties.
The first contention raised by counsel for
the State cannot be entertained in view of a large body of authority in this
Court. If the matter were res integra the argument that the Courts cannot
travel outside the terms of the Code of Criminal Procedure : and extend the
rule of autre fois acquit incorporated in s. 403 of the Code of Criminal Procedure
may have required serious consideration.
The following important rules emerge from the
terms of s. 403 of the Code,of Criminal Procedure:
(1) An order of conviction or acquittal in
respect of any offence constituted by any act against or in favour of a person
does not prohibit a trial for any other offence constituted by the same act
which he may have committed, if the Court trying the first offence was
incompetent to try that other offence.
(2) If in the course of a transaction several
offences are committed for which separate charges could have been made, but if
a person is tried in respect of some of those charges, and not all, and is
acquitted or convicted, he may be tried for any distinct offence for which at
the former trial a separate charge may have been, but was not, made.
(3) If a person is convicted of any offence
constituted by any act, and that act together with the consequences which re
suited therefrom constitute a different offence, he may again be tried for that
different offence arising out of the consequences, if (1) [1964] 7 S.C.R. 123.
L 6 Sup C1169--13 1008 the consequences had not happened or were not known to
the Court to have happened, at me time when he was convicted.
(4) A person who has once been tried by a
court of competent jurisdiction for an offence and has been either convicted or
acquitted shall not be tried for the same offence or for any other offence
arising out of the same facts, for which a different charge from the one made
against him might have been made or for which he might have been convicted
under the Code of Criminal Procedure.
Section 403 of the Code of Criminal Procedure
enacts the rule of autre fois acquit and autre fois convict applicable to
criminal trials. The rule is that so long as an order of acquittal or
conviction at a trial held by a Court of competent jurisdiction of a person
charged with committing an offence stands, that person cannot again be tried on
the same facts for the offence for which he was tried or for any other offence
arising there/fore. But the rule of issue estoppel in criminal trials evolved
by the High Court of Australia and approved by the Judicial Committee has been
applied to criminal trials in India, apart from the terms of s. 403 of the Code
of Criminal Procedure.
Lord MacDermott in Sambasivam v. Public
Prosecutor, Federation of Malaya(1) observed at p. 479:
"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. The maxim "Res judicata pro veritate accipitur" is no
less applicable to criminal than to civil proceedings. Here, the appellant
having been acquitted at the first trial on the charge of having ammunition in
his possession, the prosecution was bound to accept the correctness of that
verdict and was precluded from taking any step to challenge it at the second
trial. And the appellant was no less entitled to rely on his acquittal in so
far as it might be relevant in his defence. That it was not conclusive of his
innocence on the fire-arm charge is plain, but it undoubtedly reduced in some
degree the weight of the case against him, for at the first trial the facts
proved in support of one charge were clearly relevant to the other having
regard to the circumstances in which the ammunition and revolver were found and
the fact that they fitted each other." L.R. [1950] A.C. 458.
1009 In Sambasivam's case(1) the appellant
was tried for the offence of being in possession of ammunition in violation of
Reg. 4(1)(b) of the Emergency (Criminal Trials) Regulations, 1948. He was acquitted
of the charge. Later he was tried for the offence of carrying a fire-arm
contrary to Reg.
4(1)(a) of the Emergency Regulations and was
convicted by the Supreme Court of the Federation of Malaya. An appeal was
carried to the Judicial Committee and the legality of the conviction was
challenged on the grounds, inter alia, that so long as the order of acquittal
in respect of the carrying of ammunition stood, the facts proved in support of
that charge were in the circumstances of the case clearly relevant to the
second charge, and the appellant was entitled to rely upon the acquittal in so
far as it was relevant to his defence. The plea so raised was accepted by the
Judicial Committee.
Pritam Singh v. The State of Punjab(a) this
Court held that where a person has been tried under s. 19(f) of the Arms Act
and is acquitted because the prosecution has failed to establish the possession
of a revolver by the accused as alleged, in a subsequent trial of the offence
of murder, where the possession of the revolver was a fact in issue which had
to be established, the prosecution could not ignore the finding at the previous
trial.
In several later judgments of this Court the
principle of issue estoppel has received approval: Manipur Administration v.
Thokchom, Bira Singh(a). Banwari Godara v. The State. of Rajasthan(4). Lalta
& Ors. v. The State of U.P.(5) It was also accepted in The Assistant
Collector of Customs and another v. L.R. Malwani and another(x). It is too late
now to make a departure from the rule accepted by this Court. In the American
Courts also the rule of issue estoppel has received approval: Sealfron v.
United States(7).
It is true that in Connelly v. Director of
Public Prosecutions(8) decided by the House of Lords there was some difference
of opinion amongst the Law Lords as to the applicability of the rule to
criminal trials in the English Courts. Our Criminal jurisprudence is largely
rounded upon the basic rules of English Law though the procedure is somewhat
different. Trials by jury have been practically abolished and the cases are
being tried by Judges. Several charges arising out of the same transaction can
be tried under the Code of Criminal Procedure together at one trial, and
specific issues are always raised and determined (1) L.R. [1950] A.C. 458.
(2) L A.I.R. 1956 S.C. 415.
(3) [1964] 7 S.C.R. 123.
(4) Cr. A. No. 141 of 1960 decided on Feb. 7,
1961.
(5) Cr. A. No. 185 of 1966 decided on Oct.
25, 1968.
(6) Cr. As. Nos. 15 & 35 of 1967 decided
on Oct. 16, 1968.
(7) [1948] 332 U.S. Rep. 575. (8) L.R.
[1964] A.C. 1254.
1010 by the Courts. Under the English system
of administration criminal jaw, trials for serious offences are held with the
aid of the jury and it is frequently impossible to determine with certitude the
specific issues on which the verdict of the jury is founded. In criminal trials
under the Code of Criminal procedure, there is no uncertainty in the
determination of issues decided. Difficulties envisaged in Connelly's case(1)
in the application of the rule of issue estoppel do not therefore arise under
our system.
But it is necessary to notice the true basis
of the rule. Dixon 1., in The King v. Wilkes(2) observed at pp.
518-519:
" .... 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 issue on a second criminal trial of the same prisoner. 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 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 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 ." The rule,
does not predicate that evidence given at one trial against the accused cannot
again be given in the trial of the accused for a distinct offence. As Lord
Morris of Borty-Y-Gest observed in Connelly's case(1) at p. 1325:
" .... there is no rule or principle to
the effect that evidence which has first been used in support of a charge which
is not proved may not be used to, support a subsequent and different charge,
(1) L.R. [1964] A.C. 1254. (2) 77 C.L.R.
511.
1011 Can it be said in the present case that
there has been a trial of the accused on an issue in a prior litigation, and an
attempt is made to relitigate the same? It may be recalled that the respondents
were not tried at any criminal trial in the previous case. The earlier
proceeding was for binding over the respondents and 94 others to keep the peace
on the case that it was apprehended that they were likely to commit breach of
peace or disturb public tranquillity. The primary issue which the Court was
called upon to determine was whether there was any apprehension of the breach
of peace or disturbance of public tranquillity which necessitated the passing
of the order requiring the respondents and others to give security. It is true
that in support of that order the Station House Officer in his report had
relied upon four incidents, one of which specifically set out the details which
formed the subject-matter of' the trial from which the present appeal arises.
But there was no trial of the respondents for an offence in the earlier
proceeding and there was no order of conviction or acquittal. The rule of issue
estoppel cannot, in our judgment, be extended so as to prevent evidence which
was given in the previous proceeding and which was held not sufficient to
sustain the other for being used in support of a charge of an offence which the
State seeks to make out.
The rule of issue estoppel prevents
relitigation of the issue which has been determined in a criminal trial between
the State and the accused. If in respect of an offence arising out of a
transaction a trial has been taken place and the accused has been acquitted,
another trial in respect of the offence alleged to arise out of that
transaction or of a related transaction which requires the Court to arrive at a
conclusion inconsistent with the conclusion reached at the earlier trial is
prohibited by the rule of issue estoppel. In the present case, there was no
trial and no acquittal. The rejection of evidence given in the earlier
proceeding to sustain an order for binding over the respondents to keep the
peace does not preclude the trial of the respondents in respect of the specific
incident which together with the other incident was sought to be made the basis
of the order of binding over the respondents.
This Court in L.R. Malwani's case(1) declined
to apply the rule of issue estoppel to a case arising under the Sea Customs Act
in which there was an inquiry held by the Collector of Customs and a criminal
prosecution was then filed.
In our judgment, the High Court was in error
in holding that the respondents could not be tried and convicted of offences
under s. 324 and 323 I.P. Code because in the earlier proceeding under s. 107
of the Code of Criminal Procedure, evidence with regard to the incident out of
which offences which are the subject-matter of the present appeal was taken,
and was regarded as insufficient to sustain the order.
(1) C:r, As. Nos. 15 & 35 of 1967 decided
on Oct. 16, 1968, 1012 The appeal is allowed, and the order passed by the High
Court is set aside. As, however, the sentences passed by the learned Trial
Magistrate and confirmed by the Court of Session were of short duration and the
respondents have been released on bail, we do not think that they should be
called upon to undergo the remaining sentences. We reduce the sentences of
imprisonment to the period already undergone. The appeal is allowed and the
order of the Session Court is restored, subject to the modification in the
sentence of imprisonment.
R.K.P.S. Appeal allowed.
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