STATE OF ANDHRA PRADESH versus KOKKILIAGADA MEERAYYA AND ANR.

STATE OF ANDHRA PRADESH

KOKKILIAGADA MEERAYYA AND ANR.

November 28, 1968

[J. C. SHAH AND A. N. GROVER, JJ.]

"Issue Estoppel"'-rule of-when applicable-whether inconsist.ent with s. 403 Cr. P.C.-Proceedings under s. 107 Cr. P.C. against certain persons including respondents-Evidence found insufficient to sustain inci-dents alleged to make order of binding over-Respondents convicted under ss. 323 and 324 J.P.C. in relation to one of the inddents-whether conviction valid.

Proceedings were instituted under s. 107 Cr. P.C. against four per-sons 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 ot peace and requiring them to show cause why. each of them should not execute 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 in cer-lain acts of violence as 'a result df which case under ss. 148, 323 and 325 I.P.C. had been registered. After holding an inquiry, the Magis-trate was of the view that the evidence Jed in support of the first inci-dent was not reliable and the first incident was not proved against any of the eleven persons. Subsequently the respondents were convicted at trial of offences under ss. 323 and 324 l.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 df 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"1 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 re-sorted to in criminal trials.

HELD : (i) The High Court was in error in holding that the respon-dents 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 regarcl 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 e,;dence 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

A. P. STATE V. MEBRAYYA (Shah, J.)

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 reJitigation of the issue which has been determined in criminal trial between the State and the accus-ed. ff in respect of an offence arising out transaction trial bas taken place and the accused bas been acquitted, another trial in respect of the offence alleged to arise out of that transaction or of related transaction which requires the Court to arrive at 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 convic-tion or acquittal. [1011 D-F, HJ

(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 trial held by court of com-petent jurisdiction of 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 therefrom. But the rule of "issue estoppel" in criminal trials evolved by the High Court of Australia and approved by the Judicial Committee bas been applied to crimin.al trials in India, apart from the< terms of s. 403. [1008 CJ

Manipur Administration v. Thokchom, Bira Singh, [1964] 7 S.C.R. 123; Sambasivam v. Public Prosecu.Wr, Federation of Malaya, L.R. [1950} A.C. 458; Pritam Singh v. The State of Punjab, A.LR. 1956 S.C. 415; Banwari Godara v. The State of Rajasthan, Cr. A. No. 141 of 1960 de-cided 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; SeaJfron 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 Aoidhra 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, !Ind Class, Avanigadda, for offences under ss. 323 and 324 I.P. Code for voluntarily causing injuries to Seethara-H mayya 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,

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 question of some importance in the adminis-tration 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 Veeraragha-vayya and that they could in law be properly convicted. But it was urged that there was bar against prosecution of the two accused Me.erayya and Venkatanarayana because of the "princi-ple 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, Ban-dar, under s. 107 Code of Criminal Procedure, against 96 per-sons, 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 in-volving 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 party and were thereby dis-turbing 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 bond for keeping the peace for period of one year in the sum of Rs. 1,000 with two sureties in 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 case in Crime No. 20/64 under ss .. 148, 323 and 325 J.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 fo the Judicial Magistrate, Ilnd Class, Avanigadda, to hold 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 &ince in the proceeding under s. 107 of the Code of Criminal Procedure the incident which was made the subject-matter of the complaint against tbe respondents in the Court of the Judicial Magistrate was one of the incidents

A. P. STATE v, MBBRAYYA (Shah, J,)

relied upon and was held not proved, it was not open to the State to commence or continue prosecution against the respon-dents 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 find-ing could be commenced against the respondents.Counsel for the State contended that the rule of issue estop-pel 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 estop-pel had no application, since there was no "previous trial" of the respondents for any offence alleged to arise out of the inci-dent 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 criminal proceedmg was held cannot be utilised in any subse-D quent proceeding between the same parties.

The first contention raised by counsel for the State cannot be entertained in view of large body of authority in this Court. If the matter were res integra the argument that the Courts can-not 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 consti~u~ed by. any act against or in favour of person ' does not proh1b1t tnal 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 iransaction several offences are co~itted for ';Vhic~ s~parate charges could have been made, but if person 1s tried m respect of some of those charges and · '!ot all, and is acquitted or convicted, he may be tried for any dis-tmct offence for which at the former trial separate charge may have been, but was not, made.

(3) If person is convicted. of any offence constituted by any act, and that act together with the consequences which re· s~lted therefro~ constitute different offence, he may again be tried for that different offence arising out of the consequences, if

(I) [1964] 7 S.C.R. 123.

L 6 Sup CI/69-H

the consequences had not happened or were not known to the Court to have happened, at tne time when he was convicted. ·

( 4) person who has once been tried by court of compe-tent jurisa1ction for an otfence and has been either convicted or acqullted shall not be tried tor the same ottence or for any other oitence ansmg out ot the same facts, for which dif1.erent charge from the one made against him might have been made or tor which he might have been convictea 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 cri-minal trials. The ru1e is that so long as an order of acquittal or conviction at trial held by Court of competent jurisdiction Jf person charged with comllltting an oflence stands, that person cannot again t>e tried on the same facts for the ofteuce for which he was tned or for any other oftence arising there.from. But the rule of issue estoppel in criminal trials evolved by the High Court ot Australia ana approved by the Judicial Committee has been applied to crimiual trials in India, apart from the terms of s. 403 of the Code of Criminal Procedure.

Lord MacDennott in Sambasivam v. Federation of Malaya(') observed at p. 479 :

Public Prosecutor,

"The eftect of verdict of acquittal pronounced by competent court on lawful charge and after 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 proceediugs bet.ween the parties to the adjudication. The maxim "Res judicata pro veritate accipitur" is no less appli-cable , to criminal than to civil proceediugs. Here, the appellant having been acquitted at the first trial on the charge of having anrmunition in his possession, the pro-se1:ution 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 con-clusiye of his innocence on the fire-arm charge is plain, but 1t undoubtedly re?uced · in some degree the weight of the case agamst hlill, 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."

(1) L.R. [1950] A.C. 458.

A. P. STATE V. MBBRAYYA (Shah, J.)

In Sambasivam' s case ( [1]) the appellant was tried for the offence of being in possession of ammumuon in violation of Reg. 4 (I)( b) of the Emergency (Criminal Trials) Regulations, 1948. He was acquitted of the charge. Later he was tried for the offence of carrying fire-arm contrary to Reg. 4 ( 1) (a) of the Emer-gency Regulations and was convicted by the Supreme Court of the federation of Malaya. An appeal was earned to the Judi-cial Committee and the legality of the conviction was challenged on the grounds, inter alia, that so Jong 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 releva.nt to the second charge, and the appellant was en-titled 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([2 ]) this Court held that where 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 revolver by the accused as alleged, in subse-D quent trial of the offence of murder, where the possession of the revolver was 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('). Banwari Godara v. The State of Rajasthan(4). · Lalta & Ors. v. The State of U.P.([0 ]) It was also accepted in The Assistant Collector of Customs and another v. L. R. Malwani and another([6]). It is too late now to make 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(1).

It is true that in Connelly v. Director of Public Prosecu-tions( 8) decided by the House of Lords there was some diffe-rence of opinion amongst the Law Lords as to the applicability of the rule to criminal trials in the English Courts. Our Crimi-nal jurisprudence is largely founded 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 transac-tion can .be tried und7r t~e Cod.e of Criminal Procedure together at one tnal, and specific issues are always raised and determined(I) L.R. [1950] A.C. 458.

(2) 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 & 35of1967 decided on Oct. 16, 1968.

(7) [1948] 332 U.S. Rep. S7S.

(8) L.R. [1964] A.C. 1254.

[196912 s.c.R'.

SUPREME coull.t REPORTS

1010 .. ,.,.

by the Courts. Under the English system of a~strati~n of

criminal law trials for serious offences are held with the aid of the jury and' it is frequently impossible t? deterrnin~ wi~ certi-tude the specific issues on which the verdict of .th~ JUfY 1s found-ed. In criminal trials under the Code of Cnmmal Procedure, there is no uncertainty in the detennination of issues decided. Difficulties envisaged in Connelly's case(') in the application of the rule of issue estoppe 1 do not therefor~ arise under our system.

But it is necessary to notice the true basis of th1~ rule. Dixon J., in The King v. Wilkes(') 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 detennined in favour of pri-soner in previous criminal trial which is brought in issue on second criminal trial of the same prisoner. . . . There must be prior proceeding deter-mined against the Crown necessarily involving an issue which again arises in subsequent proceeding by the Crow:n 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 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 concerned with the judicial determi-nation of an alleged criminal liability and in the case of conviction with the substitution of new liability. Issue-estoppel is concerned with the judicial establish-ment of proposition of law or fact between parties. It depends upon well-known doctrines which control the relitigation of issues which are settled by prior liti-gation."

The rule, does not predicate that evidence given at one against the accused cannot again be given in the trial of accused for distinct offence. As Lord Morris of Borty-Y-Gest observed in Connelly's case(') at p. 1325 :

trial the

" . . . . there is no rule or principle fo the effect that evidence which has first been used in support of charge which is not proved may not be used to support subsequent and different charge, . . . "

A. P. STATE V. MEERAYYA (Shah,].)

Can it be said in the present case that there has been trial ~f the accused on an issue in prior liiigation, and an attempt 1s made to relitigate the same? It may be recalled that the respon-dents 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 detennine 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 Staiion 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 con-viction 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 charge of an offence which the State seeks to make out. The rule of issue estappel prevents relitigation of the issue which has been deter-mined in criminal trial between the State and the accused. If in respect of an offence arising out of transaction trial has been taken place and the accused has been acquitted, another trial in respect of the olfen~ alleged to arise out of that transaction or of related transaciion which reauires the Court to arrive at conclusion inconsistent with the conclusion reached at the earlier trial is Prohibited by the rule of issue estopnel. In the present case, there was no trial and no acquittal. The rejeciion of evi-dence given in the earlier proceeding to sustain an order for bind-F ing over the respondents to keep the peace does not preclude the trial of the resoondents in respect of the specific incident which together with the other incident was sou11ht to be made the basis of the order of binding over the respondents.

This Court in L. R. Malwani's case(') declined to atmlv the rule of issue estoooel to case arisin!! under the Sea Customs Act in which there was an inouiry held bv the Collector of Cus-toms and criminal prosecutiOl!l was then filed.

In our judgment, the High Court was in error in holding thaf the respondents could not be tried and convicted of offences under s. 324 and 323 I.P. Code because in the earlier proceed-ing under s. l 07 of the Code of Criminal Procedure. evidence with re2ard to the incident out of which offences whicb are the rublect-matter of the present appeal was taken and was regard-ed as insufficient to susfaln the order. '

(I) er.-As.-Nos. I'~ 3' or1967 decided on Oct. 16, 1968.

1012 SUPREME. COUJ.T UPO!tTS . [1969] 2 s.c.a. [1969] 2 s.c.a. 2 s.c.a. s.c.a. 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.