# Suresh Kumar Singala Revisionist v. State Of U.P

- **Citation:** (2016) 5 ILRA 533
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-13
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-kumar-singala-revisionist-v-state-of-u-p-43868
- **Pages:** 18

## Headnote

Charge Under Section 120B IPC in Bank Dacoity Case - Res-Judicata, Double Jeopardy and
Issue-Estoppel - Revision Dismissed - Revisionist (Branch Manager, Allahabad Bank, Branch Khariya,
Sonbhadra) charged under Section 120B IPC by Sessions Judge, Sonbhadra (Sessions Trial No. 56 of 2000)
for alleged conspiracy in dacoity of Rs. 82,85,000/- from his bank on 04.02.2000; seven circumstances
including revisionist's exclusive knowledge of Rs. 70 lacs transit cash, departure without locking strong room,
non-retention of security guards and constables, dacoits entering 15 minutes after his departure, and
statement of Lallan Prasad Pandey (overheard conversation on 11.01.2000 between revisionist and coaccused Rajesh Kumar Mishra planning bank dacoity) relied upon to frame charge; revision filed on ground
that revisionist was already acquitted by CJM, Sonbhadra in a separate Criminal Case No. 578 of 2000 (dacoity
at Vindhyavasini Gramin Bank, Anpara) in which the same witness Lallan Prasad Pandey retracted his
statement and Rajesh Kumar Mishra was also acquitted. (Paras 2-9)

Res-Judicata and Double Jeopardy Inapplicable - Two Separate Incidents, Different Charges -
Held, two incidents are entirely separate - one at Vindhyavasini Gramin Bank on 11.01.2000 (Rs. 2 lacs loot
from cashier in transit) and another at Allahabad Bank on 04.02.2000 (Rs. 82,85,000/- dacoity inside strong
room); revisionist was Branch Manager only at Allahabad Bank and had no concern with Vindhyavasini Bank;
dates of incidents, place of occurrence, charge and attending circumstances are entirely different; principle of
Section 403(1) Cr.P.C. (autrefois acquit) inapplicable; however, principle of issue-estoppel partially attracted
- statement of Lallan Prasad Pandey having been retracted in earlier proceedings, it cannot be relied to
disturb that finding of fact in present trial; but this does not eliminate remaining six circumstances relied upon
by Sessions Judge for framing charge. (Paras 13-16, 24, 34-36)

Estoppel -when estoppel is argued, double jeopardy principle stands excluded; when remaining material is
sufficient to frame charge, revision must fail; revision held to be misconceived filed to delay trial - matter
534 INDIAN LAW REPORTS ALLAHABAD SERIES
kept pending for over 15 years causing serious prejudice to the public interest; Trial Court directed to
complete trial expeditiously within one year from production of certified copy of this order. (Paras 21-46)

Case Law discussed:

Sambasivam v. The Public Prosecutor, 63 LW 597 = 54 CWN 695 (Privy Council)

N.R. Ghosh alias Nikhil Ranjan Ghose v. State of West Bengal, AIR 1960 SC 239

Pritam Singh & Another v. State of Punjab, AIR 1956 SC 415

Lalta & Others v. State of U.P., AIR 1970 SC 1381

Piara Singh v. State of Punjab, 1969 (1) SCC 379

Amritlal Ratilal Mehta & Another v. State of Gujarat, 1980 (1) SCC 121

S. Swamirathnam v. State of Madras, AIR 1957 SC 340

Srichand K. Khetwani v. State of Maharashtra, AIR 1967 SC 450

## Text

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5 All. Suresh Kumar Singala Vs State Of U.P.

533
27. Office is directed to send a certified copy of this order to the concerned trial court
along-with lower court record at an early date.

----------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.05.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

Criminal Revision No.- 724 Of 2001

Suresh Kumar Singala ...Revisionist
Versus
State Of U.P. ...Opposite Party

Counsel for the Revisionist:
Gopal Swaroop Chaturvedi, Rakesh Chandra Upadhyay

Counsel for the Opposite Party:
G.A.

.................................

Charge Under Section 120B IPC in Bank Dacoity Case - Res-Judicata, Double Jeopardy and
Issue-Estoppel - Revision Dismissed - Revisionist (Branch Manager, Allahabad Bank, Branch Khariya,
Sonbhadra) charged under Section 120B IPC by Sessions Judge, Sonbhadra (Sessions Trial No. 56 of 2000)
for alleged conspiracy in dacoity of Rs. 82,85,000/- from his bank on 04.02.2000; seven circumstances
including revisionist's exclusive knowledge of Rs. 70 lacs transit cash, departure without locking strong room,
non-retention of security guards and constables, dacoits entering 15 minutes after his departure, and
statement of Lallan Prasad Pandey (overheard conversation on 11.01.2000 between revisionist and coaccused Rajesh Kumar Mishra planning bank dacoity) relied upon to frame charge; revision filed on ground
that revisionist was already acquitted by CJM, Sonbhadra in a separate Criminal Case No. 578 of 2000 (dacoity
at Vindhyavasini Gramin Bank, Anpara) in which the same witness Lallan Prasad Pandey retracted his
statement and Rajesh Kumar Mishra was also acquitted. (Paras 2-9)

Res-Judicata and Double Jeopardy Inapplicable - Two Separate Incidents, Different Charges -
Held, two incidents are entirely separate - one at Vindhyavasini Gramin Bank on 11.01.2000 (Rs. 2 lacs loot
from cashier in transit) and another at Allahabad Bank on 04.02.2000 (Rs. 82,85,000/- dacoity inside strong
room); revisionist was Branch Manager only at Allahabad Bank and had no concern with Vindhyavasini Bank;
dates of incidents, place of occurrence, charge and attending circumstances are entirely different; principle of
Section 403(1) Cr.P.C. (autrefois acquit) inapplicable; however, principle of issue-estoppel partially attracted
- statement of Lallan Prasad Pandey having been retracted in earlier proceedings, it cannot be relied to
disturb that finding of fact in present trial; but this does not eliminate remaining six circumstances relied upon
by Sessions Judge for framing charge. (Paras 13-16, 24, 34-36)

Estoppel -when estoppel is argued, double jeopardy principle stands excluded; when remaining material is
sufficient to frame charge, revision must fail; revision held to be misconceived filed to delay trial - matter
534 INDIAN LAW REPORTS ALLAHABAD SERIES
kept pending for over 15 years causing serious prejudice to the public interest; Trial Court directed to
complete trial expeditiously within one year from production of certified copy of this order. (Paras 21-46)

Case Law discussed:

Sambasivam v. The Public Prosecutor, 63 LW 597 = 54 CWN 695 (Privy Council)

N.R. Ghosh alias Nikhil Ranjan Ghose v. State of West Bengal, AIR 1960 SC 239

Pritam Singh & Another v. State of Punjab, AIR 1956 SC 415

Lalta & Others v. State of U.P., AIR 1970 SC 1381

Piara Singh v. State of Punjab, 1969 (1) SCC 379

Amritlal Ratilal Mehta & Another v. State of Gujarat, 1980 (1) SCC 121

S. Swamirathnam v. State of Madras, AIR 1957 SC 340

Srichand K. Khetwani v. State of Maharashtra, AIR 1967 SC 450

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Gopal Swaroop Chaturvedi, learned Senior Advocate, assisted by Sri Rakesh
Chandra Upadhyay, Advocate, for Revisionist and perused the record. Though learned A.G.A. was
present and was requested to assist the Court, but he said that he has no file and failed to assist the
Court. This is really unfortunate that this Court could not get any assistant from learned A.G.A.
However, having no other option, I proceed to decide this matter after hearing counsel for
Revisionist and after perusal of record by myself.

2. This Criminal Revision under Section 397/401 Cr.P.C. has come up at the instance of
accused-Revisionist, who has been charged by Sessions Judge, Sonbhadra under Section 120B
I.P.C. in Sessions Trial No. 56 of 2000 vide order dated 19.02.2001.

3. Brief Facts, giving rise to this revision, may be stated as under.

4. A First Information Report being Case Crime No. 44 of 2000 under Sections 395, 397
I.P.C. was lodged at Police Station Shakti Nagar, District Sonbhadra by Ashish Kumar, an official
of Allahabad Bank, Branch Shakti Nagar alleging that on 04.02.2000, seventy lacs rupees which
had come from Robertsganj Branch, were kept in strong room by Branch Manager, Sri Suresh
Kumar Singala. Thereafter, he went to N.C.L. Headquarter, Singrauli. Branch Manager handed
over key of strong room and safe to Informant and since then Informant was in charge of Bank. At
around 4.00 PM, when all the officials and employees of Bank, except Branch Manager and one
Sanjay Kumar, were present, Informant and Umesh Kumar, In-charge Head Cashier were closing
strong room, after keeping cash therein, and when they had locked one key and going to lock
second key, about 6-7 miscreants entered the Bank, and threatened all officials and public persons
5 All. Suresh Kumar Singala Vs State Of U.P.

535
present in the Bank, showing countrymade pistols and revolvers. They took Sri Basu to stationary
room and brought one Lal Ji Upadhyay to the door of strong room on threat of countrymade pistol.
They compelled Informant and Sri Umesh Kumar to open the door of strong room. When the
miscreant threatened to kill Sri Upadhyay, having no option, Informant and Umesh Kumar opened
door of strong room. Miscreants entered strong room, took out cash from safe and collected cash in
two jute bags which they had brought with them after getting safe opened. Rest of cash was kept by
them in a cloth of Bank. They brought officials and staff of Bank and Post Office to strong room
along with 3-4 public persons who were present in the Bank. They took out bags containing cash
and moved away from strong room along with Informant at gun point and they closed door of
strong room. They ran away giving threats to Informant. Subsequently when checked, it was found
that miscreants had taken away rupees 82,85,000/- of the following denominations:

(i) 31 bundles of Rupees 500/-,

(ii) 452 bundles of Rupees 100/-, and,

(iii) 453 bundles of Rupees 50/-.

5. The report was lodged against unknown 6-7 persons. Police investigated the matter and
submitted charge-sheet under Sections 395, 397, 412 and 120B I.P.C. against Arun Kumar
Upadhyay, Satish Chand Mishra, Devendra Kumar Singh, Rajesh Kumar Mishra, Dinesh Kumar
and the Revisionist, Suresh Kumar Singala. List of witnesses submitted by Investigating Officer
consists of 17 witnesses examined under Section 161 Cr.P.C. The witnesses from Sl.No. 1 to 8
were witnesses of fact and other 9 witnesses were of formal nature. Name of Revisionist did not
come into picture for implicating him in criminal case. However, statement of one Lallan Prasad
Pandey recorded under Section 161 Cr.P.C. was relied by Investigating Officer in which he stated
that while he had gone to take medicines on 11.01.2000 in front of Bank, one Rajesh Kumar
Mishra and Revisionist were talking together. The witness said that he overhead Branch Manager
and Revisionist that we people first complete work at Vindhyavasini Bank, Anpara, thereafter the
work of Manager's bank would be told about.

6. At that time witness did not pay any heed to the said overheard statement but when he
read in newspaper subsequently that there was a loot of two lacs rupees in Vindhyavasini Bank,
Anpara and thereafter occurred a dacoity in Allahabad Bank, it became clear to him that Rajesh
Kumar Mishra and Bank Manager both had conspired and planned aforesaid offences.

7. Sessions Judge, Sonbhadra in its order dated 19.02.2001 before framing charge against
Revisionist under Section 120B I.P.C. and others under Sections 395, 397, 412 I.P.C., considered
submissions advanced by District Government Counsel (Criminal) as well as Revisionist's Counsel
and besides the fact that there was a witness of fact, i.e., conspiracy, he has further found certain
circumstances leading to a prima facie inference that Revisionist was involved in conspiracy of
Bank dacoity. The circumstances, which have been considered by Court below justifying framing
of charge under Section 120B I.P.C. against Revisionist are as under:
536 INDIAN LAW REPORTS ALLAHABAD SERIES
Circumstances No.-1 : Accused Suresh Kumar Singla was the Branch Manager of
the bank and he alone had knowledge about the cash of Rs. 70, Lacs brought from Robertsganj.

Circumstances No.-2 : Two security guards accompanied the cash but the accused
allowed them to leave the bank before the strong room was locked.

Circumstances No.-3 : Two constables used to be posted at the bank till 2 p.m. for
the security of the bank but both the constables were not detained by accused till the cash brought
from Robertsganj was kept and the strong room was locked.

Circumstances No.-4 : The dacoits entered in the bank premises 15 minutes after
the accused left the bank.

Circumstances No.-5 : It was not at all necessary for the accused to leave the bank
without ensuring safety of the cash brought from Robertsganj because meeting was not convened
by the authorities of the bank but it was a routine meeting of the N.C.L.

Circumstances No.-6 : The main gate of the bank was not closed from inside
before opening the strong room where the safe was kept.

Circumstances No.-7 : Lallan has given direct evidence of conspiracy by stating
that on 11.1.2000 accused Suresh Kumar Singala and Rajesh Kumar Mishra, one of the co-accused,
were heard talking that on that date they should do the work of Vindhyavasini Bank, Anpara
thereafter he (accused) would tell them the date of work in his bank and the Vindhyavasini Bank
was looted.

8. A Supplementary Affidavit has been filed stating that there was another Criminal Case
No. 578 of 2000 relating to Bank Dacoity at Vindhyavasini Gramin Bank, Branch at Anpara,
Sonbhadra arising from Case Crime No. 7 of 2000 under Sections 392/120B I.P.C. Therein also
Revisionist was accused along with Rajesh Kumar Mishra wherein also statement of Lallan Prasad
Pandey recorded under Section 161 Cr.P.C. was relied but the said witness did not support
allegation of conspiracy against Revisionist in respect to loot at Vindhyavasini Bank and retracted
from his statement and said that he has never given any such statement and that Police has wrongly
included his name as witness.

9. On 08.01.2016 another Supplementary Affidavit has been filed by Revisionist bringing
on record judgment dated 03.08.2001 passed by Sri Ramesh Gupta, Chief Judicial Magistrate,
Sonbhadra acquitting Revisionist and co-accused Rajesh Kumar Mishra.

10. Relying on aforesaid acquittal and also statement of Lallan Prasad Pandey, PW-1 in
Criminal Case No. 578 of 2000, Sri Gopal Swaroop Chaturvedi, learned Senior Counsel, urged that
same evidence is foundation of implicating Revisionist in Sessions Trial No. 56 of 2000. Once the
said witness has not supported allegations of conspiracy involving Revisionist and Rajesh Kumar
5 All. Suresh Kumar Singala Vs State Of U.P.

537
Mishra, and this statement has already been tested in another criminal case relating to dacoity in
Vindhyavasini Gramin Bank at Anpara, it will operate as res-judicata and on the basis of same
evidence, Revisionist cannot be tried for the same offence, i.e. under Section 120B I.P.C. in respect
to Bank dacoity at Allahabad Bank in which Revisionist was Branch Manager.

11. He further submitted that charge is same, evidence is same and, therefore, principle of
Rest judicata pro veritate accipitur would apply. Reliance is placed on a decision of Privy Council
in Sambasivam Vs. The Public Prosecutor 63 LW 597=54 CWN 695 and Apex Court's
decisions in N.R. Ghosh Alias Nikhil Ranjan Ghose Vs. State of West Bengal AIR 1960 SC
239, Pritam Singh and another Vs. State of Punjab AIR 1956 SC 415, Lalta and others Vs.
State of U.P. AIR 1970 SC 1381, Piara Singh Vs. State of Punjab 1969 (1) SCC 379, Amritlal
Ratilal Mehta and another Vs. State of Gujarat 1980 (1) SCC 121. S. Swamirathnam Vs.
State of Madras AIR 1957 SC 340 and Srichand K. Khetwani Vs. State of Maharashtra AIR
1967 SC 450.

12. On behalf of State, learned Additional Government Advocate was called upon to assist
the Court. This Court is at pain to place on record that he neither possess file with him nor was in a
position to assist the Court in any manner. In these facts and circumstances, the Court had to
consider submissions advanced by learned counsel for Revisionist, peruse the record and also to
examine law on the subject for deciding this revision. This fact I have also noted in my order dated
08.01.2006 while reserving judgment, which reads as under:

"1. Heard Sri Gopal Swaroop Chaturvedi, learned Senior Advocate, assisted by Sri
Rakesh Chandra Upadhyay, Advocate, for revisionist and perused the record. Though learned
A.G.A. was present and was requested to assist the Court, but he said that he has no file and failed
to assist the Court.

2. Be that as it may, judgment reserved."

13. Now the sole question up for consideration in this case is that Revisionist has been
acquitted in another Trial, i.e. Criminal Case No. 578 of 2000 in which witness Lallan Prasad
Pandey, who is common in both the Trials, has retracted from his statement and in these facts and
circumstances Trial Court, i.e., Chief Judicial Magistrate, Sonbhadra has found no evidence against
Revisionist-accused to hold him guilty for an offence under Section 120B I.P.C. resulting in loot of
cash from Vindhyavasini Bank, Branch Anpara, District Sonbhadra and that being so, "whether
aforesaid judgment of acquittal would constitute res-judicata so as to bar Trial of Revisionist in
respect to an offence under Section 120B I.P.C. in Sessions Trial No. 56 of 2000 pending in the
Court of Sessions Judge, Sonbhadra".

14. In other words, "whether, Revisionist if tried in the aforesaid facts and circumstances,
in Sessions Trial No. 56 of 2000, on the allegations of having committed an offence under Section
120B I.P.C., will it amount to double jeopardy"?
538 INDIAN LAW REPORTS ALLAHABAD SERIES
15. As a legal proposition, there is no quarrel that principle of res-judicata is applicable in
criminal cases and there exists a constitutional bar against double jeopardy but question is, whether
here is a case where these two principles would apply?

16. If we summarize entire facts relating to Criminal Case No. 578 of 2000 and Sessions
Trial No. 56 of 2000, what this Court finds is there were two separate incidents; one occurred at
Vindhyavasini Gramin Bank, Branch Anpara, District Sonbhadra and another at Allahabad Bank,
Branch Khariya, Police Station Shakti Nagar, District Sonbhadra. The dates of incidents are also
different. It is 11.01.2000 in respect to Vindhyavasini Gramin Bank, and 04.02.2000 in the case of
Allahabad Bank.

17. Revisionist has no concern with Vindhyavasini Bank. He was Branch Manager at the
relevant time at Allahabad Bank, Branch Khariya, District Sonbhadra. The incident giving rise to
Criminal Case No. 578 of 2000 occurred on 11.01.2000 when Informant, Awanish Kumar
Srivastava, Cashier, Vindhyavasini Gramin Bank, Anpara collected rupees two lacs from
Allahabad Bank, Shakti Nagar and accompanied with Messenger, Jyotish Narain Rai, of
Vindhyavasini Gramin Bank, was coming to his Bank, i.e., Vindhyavasini Gramin Bank, two
persons riding motorcycle came near Anpara turn from Bus-Station and snatched away the bag
containing cash of Rupees two lacs and ran away. First Information Report was lodged by Awanish
Kumar Srivastava, Cashier, Vindhyavasini Gramin Bank registered as Case Crime No. 7 of 2000 at
Police Station Anpara, Sonbhadra. Police investigated the matter, recovered money and thereafter
submitted charge-sheet against Rajesh Kumar Mishra under Section 392 and Revisionist Suresh
Kumar Singala under Section 120B I.P.C. The list of witnesses consisted of six persons, i.e., Lallan
Prasad Pandey, PW-1, Awanish Kumar Srivastava, the informant, PW-2, Jyotish Narain Rai, PW-3
and rest three formal witnesses, i.e., Investigating Officer and others. During Trial, Lallan Prasad
Pandey, PW-1 did not support his statement recorded under Section 161 Cr.P.C. and said that he
has not given any such statement. Trial Court in absence of any evidence found that charge was not
proved beyond doubt and hence acquitted both the accused.

18. Another incident took place on 04.02.2000 at Allahabad Bank in which Revisionist, at
the relevant time, was Branch Manager. He, along with Head Cashier, were two persons
responsible for opening and closing strong room. Revisionist, being Branch Manager, had overall
responsibility. Rupees seventy lacs were received at Allahabad Bank at Branch Khariya from
Robertsganj Branch. It was kept by Revisionist and Head Cashier in strong room. From the
information given by Sri Ashish Kumar in First Information Report, strong room was not
completely locked by Revisionist and he left Bank under charge of Ashish Kumar. While Ashish
Kumar and Head Cashier, Umesh Kumar, were in process of locking of strong room, dacoity in the
Bank was committed, resulting in a loot of 82,85,000/-. Report to this effect was lodged at Police
Station Shakti Nagar (being Case Crime No. 44 of 2000) under Section 395/397 I.P.C. After
investigation, charge-sheet was submitted against six persons including Rajesh Kumar Mishra and
Revisionist.
5 All. Suresh Kumar Singala Vs State Of U.P.

539
19. It is in this factual background and in the light of authorities cited above, this Court has
to consider submissions advanced by learned Senior Counsel appearing for Revisionist.

20. Learned Senior Counsel submitted that various authorities cited by him support his
submission that once a witness, who is relied to frame charge against Revisionist, has retracted
from his statement in another matter wherein also the same statement is relied, statement itself
become inadmissible, and, in any case, if finding in respect to statement is that of a retraction,
making evidence inadmissible, that would operate as res-judicata, and such statement cannot be
relied to frame charge in any other criminal matter, even if there are two different criminal cases.

21. To test the above submission, I may first examine authorities cited by learned counsel
for Revisionist to find out whether the extent of proposition he is advancing on the basis thereof, is
actually discernible and then its application in case in hand.

22. The oldest case relied is Privy Council's decision in Sambasivam Vs. Public
Prosecutor (supra). It was a single incident of 13.09.1948. In the morning appellant, Sambasivam,
was travelling on foot in the State of Johore in the company of two Chinese. They met three
persons. A fight ensued in the course of which one Chinese was killed. Appellant was seriously
wounded. Other Chinese escaped and thereafter disappeared for all times to come. The three
persons who were armed with knives alleged that they were first fired by Chinese and the appellant
Sambasivam had drawn and pointed a revolver at one of them before he had been wounded and
disarmed. Appellant Sambasivam was subsequently charged for carrying a firearm and being in
possession of ten rounds of ammunition and, thus, guilty of Regulation 4(1) of Emergency
Regulations, 1948 (hereinafter referred to as "Regulations, 1948"). He was tried according to
procedure prescribed in Emergency (Criminal Trial Regulations, 1948 (hereinafter referred to as
"Trial Regulations" 1948") which provided a simplified procedure without any preliminary
enquiry. Trial was conducted before Laville, J. in Supreme Court at Johore Bahru and two
assessors. Charge relating to Regulation 4(1)(b), i.e., possession of ammunition was returned by
two assessors by a verdict of not guilty and learned Judge agreed with the finding of assessors,
hence, acquitted appellant Sambasivam. In respect to another charge relating to carrying firearm
assessors again returned verdict of not guilty but Laville, J. disagreed with the finding and ordered
re-trial. Re-trial was directed in accordance with Section 198(2) of Code of Criminal Procedure
which provides "If the Court is unable to agree with the opinion of both assessors ... the
proceedings shall be stayed and a new trial held with the aid of fresh assessors". They found
appellant Sambasivam guilty and he was sentenced to death. Court of appeal dismissed appeal on
28.04.1949 by an unreasoned order. Privy Council in appeal found that in the first Trial, in
evidence led in respect to both charges, the principal witnesses were three persons, two of whom
swore of seeing appellant with a revolver. One of them, who stabbed appellant Sambasivam, said
that he had examined the revolver and it was loaded with six bullets. He also deposed that four
more bullets were found in a bag which appellant was carrying. In the retrial, again principal
witnesses were those three persons but no attempt was made to prove alleged statement of
20.09.1948 said to have been made by appellant Sambasivam, i.e., the day on which he was injured
though it was sought to be relied as a confessional statement of carrying a firearm and possession
540 INDIAN LAW REPORTS ALLAHABAD SERIES
of ammunition. Defence consisted of evidence of appellant, Sambasivam only who denied carrying
of firearm and also making statement to the Police. Statement made to Police by a person charged
of an offence was admissible in evidence by virtue of Regulation 33 (1) which read as under:

"33(1) Where any person is charged with any offence against these Regulations or
with any offence specified in the Schedule to these Regulations, any statement, whether such
statement amounts to a confession or not or is oral or in writing, made at any time, whether before
or after such person is charged and whether in the course of a police investigation or not and
whether or not wholly or partly in answer to questions, by such person to or in the hearing of any
police officer of or above the rank of Inspector shall, notwithstanding anything to the contrary
contained in any written law, be admissible at his trial in evidence and, if such person tenders
himself as a witness, any such statement may be used in cross-examination and for the purpose of
impeaching his credit."

23. Privy Council held that in view of Regulation, statement of appellant Sambasivam was
admissible but then it further said that mere fact that statement was admissible does not mean same
thing has weight for the purpose of holding accused guilty. It further held that in respect to charge
of possession of ammunition, appellant was already acquitted and if that be so, an evidence which
may go to prove a charge which has already been found unproved and accused has been
discharged, such evidence cannot be relied on for the purpose of proving remaining charge as this
evidence has to be excluded else it would result in reopening of a charge which has already come to
an end. Privy Council in this regard 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. The maxim "Rest
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 insofar as it might be relevant in his defence. That it was not conclusive of his
innocence on the fire-arms 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.

These considerations do not appear to have received the attention they deserved at
the second trial. Thus one of the police witnesses (P.W. 5) was re-examined so as to elicit the fact
that the revolver concerned was loaded with six rounds; and in his summing up Storr, J., in
reference to a point made by Mr. Charry, told the assessors to dismiss the question of ammunition
from their minds, though it would seem that Mr. Charry's submission was, in effect, a suggestion
that the person responsible for the ammunition might well be the person responsible in respect of
5 All. Suresh Kumar Singala Vs State Of U.P.

541
the revolver that could fire it; and that, whatever may be said of its cogency, was an argument
which the acquittal had made a possible line of defence. More important than these matters,
however, was the reliance of the prosecution upon the statement of the 13th September which, if
accepted as the truth, went to prove the appellant guilty of the charge of which he had been
acquitted as clearly as it proved him guilty of the offence the subject of the second trial. This
circumstance might well have been made a ground for excluding the statement in its entirety for it
could not have been severed satisfactorily. But the point was not taken and the statement was left to
the assessors, with ample warning, it is true, of the dangers of acting upon a retracted confession,
but without any intimation that the prosecution could not assert or ask the Court to accept a
substantial and important part of what it said. The fact appears to be-and the Board must judge of
this from the record and the submissions of Counsel who argued the appeal-that the second trial
ended without anything having been said or done to inform the assessors that the appellant had
been found not guilty of being in possession of the ammunition and was to be taken as entirely
innocent of that offence. In fairness to the accused that should have been made clear when the
statement had been put in evidence, if not before. Their Lordships do not attempt to attribute or
apportion responsibility for the omission. They do not know how far, if at all, the learned Judge's
earlier ruling as to mention of the fact that the trial was a re-trial may have discouraged Counsel
from referring to the previous proceedings; and they are uncertain from the record whether the
learned Judge was himself aware of the acquittal. But they cannot avoid the conclusion that the
effect of the omission was to render the trial unsatisfactory in a material respect. Had the
assessors realised that only a part of the statement could be relied upon, they might have
attached greater weight to the other criticisms regarding it any rejected it altogether. And had
they done so it by no means follows that they would have been prepared to accept the testimony of
the Malaya in preference to that of the appellant. What they would have done had the statement
been excluded from evidence or its effect qualified by an unequivocal direction as to the appellant's
acquittal and the effect thereof must, of course, remain a matter of conjectures. But the
uncertainties are sufficiently reasonable to jeopardise the verdict reached and to justify the view,
already expressed, that it ought not to stand.

For these reasons their Lordships have humbly advised His Majesty that the appeal
should be allowed and the conviction and sentence set aside." (emphasis added)

24. In the case in hand, the incident and the evidences are different. Even if this Court may
hold that statement of Lallan Prasad Pandey may not be relied on by prosecution, still there are
other circumstances, which have to be examined and assessed to find out whether Revisionist is
guilty of conspiracy under Section 120B I.P.C. for causing a Bank dacoity in the Bank in which he
was Branch Manager or not. The connecting facts and circumstances available in the present case
are much different than robbery of Rupees two lacs from the Cashier of Vindhyavasini Bank, in the
incident took place on 11.01.2000. The incident in the present case has occurred after about 23 days
thereafter and that too in the Bank in which Revisionist was Branch Manager. In my view,
exposition of law as discussed in Sambasivam Vs. Public Prosecutor (supra) has no application
to the facts of the case in hand.
542 INDIAN LAW REPORTS ALLAHABAD SERIES
25. The next judgment relied by learned Senior Counsel appearing for revisionist is N.R.
Ghose Vs. State of W.B. (supra). This judgment has been relied in support of submission that
"doctrine of res-judicata" is also applicable in criminal matters. Reliance is placed on para 28 of
judgment. I find that para 28 is part of judgment rendered by Hon'ble A.K. Sarkar, J. taking a view,
different, than majority. It is a judgment rendered by a Bench of four Hon'ble Judges. Two separate
opinions have been rendered, one by Hon'ble J.L. Kapur and another by Hon'ble A.K. Sarkar, J.
Hon'ble J.L. Kapur J. allowed appeal while Hon'ble A.K. Sarkar, J. dismissed appeal. In view of
majority judgment, appeal was ultimately allowed. Therefore, the matter was decided by 3 > 1.
Now taking brief facts of the matter, one complaint under Section 120-B and 409 I.P.C. read with
Section 5(2) of Prevention of Corruption Act, 1947 (hereinafter referred to as "PC Act, 1947") was
filed against one S.K. Bose and appellant N.R. Ghose. Matter was tried by Special Judge at Alipore
who held S.K. Bose guilty but acquitted N.R. Ghose. This judgment was rendered by Special Judge
at Alipore in view of West Bengal Criminal Law Amendment (Special Courts) Act, 1949
(hereinafter referred to as "Amendment Act, 1949") which came into force on 23.06.1949
whereunder criminal trial was allotted to Special Judge at Alipore. Validity of Section 4(1) of
Amendment Act, 1949 came up for consideration before Special Bench of Calcutta High Court in
J.K. Gupta Vs. State of West Bengal (1952) 56 CWN 701 and Court declared it ultra vires. Sri
S.K. Bose filed appeal against his conviction in Calcutta High Court and Division Bench following
Special Bench judgment declaring Section 4(1) ultra vires, allowed appeal, set aside conviction and
sentence and directed that appellant S.K. Bose shall be regarded as an under-trial prisoner awaiting
retrial if the Government so decides. Court also held that S.K. Bose will continue on the bail until
such re-trial. Legislature brought in West Bengal Act 12 of 1952 and thereunder another Judicial
Officer was appointed as Special Judge at Alipore. Before him, a petition was filed against S.K.
Bose as well as N.R. Ghose. It was stated that High Court having held that allotment of case to the
Court of previous Special Judge and all proceedings thereafter were invalid and all such cases were
directed for re-trial, hence cognizance be taken for the offence against N.R. Ghose and S.K. Bose
and they be re-tried. Special Judge, then summoned N.R. Ghose who pleaded bar of Section 403
Cr.P.C. relying on his acquittal by earlier Special Judge. This defence was overruled by Special
Judge on the ground of want of jurisdiction of previous Special Judge to try the offence. N.R.
Ghose moved High Court under Article 226 and 227 read with Section 439 Cr.P.C. and prayed for
quashing of proceedings before Special Judge initiated against him, i.e., N.R. Ghose. Judicial
Officer appointed as Special Judge ceased to have jurisdiction in view of another notification
issued by Government whereupon he passed an order on 26.08.1952 that Court has no jurisdiction
to continue trial hence the case be filed and accused be held under-trial prisoner pending re-trial
according to law. N.R. Ghose amended his petition. High Court dismissed his petition holding that
since Act under which he was tried by Special Judge and acquitted, relevant provision was declared
ultra vires, therefore, judgment rendered by such Special Judge has no binding force. Thereafter,
case of N.R. Ghose and S.K. bose both were allotted to Special Judge, Darjeeling and a further
complaint was filed thereat. Special Judge issued process against both the accused. N.R. Ghose
again took objection to restarting of proceedings. S.K. Bose, another accused, filed a Revision
before High Court challenging proceedings before Special Judge, Darjeeling which was allowed
and proceedings were quashed by High Court observing that Amendment Act, 1952 was
inapplicable to facts of case in hand. Then on 31.05.1954, Sub-divisional Magistrate, Darjeeling
5 All. Suresh Kumar Singala Vs State Of U.P.

543
issued process against N.R. Ghose fixing 21.06.1954. The case, however, was transferred to
another Magistrate S.P. Kar. N.R. Ghose applied to Sub-divisional Magistrate for quashing of
proceedings on the ground that he had been acquitted by a Court of competent jurisdiction and also
pointed out that Section 4(1) of Amendment Act, 1949 was declared intra vires by Supreme Court
in Kedar Nath Bajoria Vs. State of West Bengal 1954 SCR 30, hence, fresh proceedings against
him are bad. Magistrate dismissed his petition, referring to High Court's order which directed retrial, though it was passed after judgment of Supreme Court. The matter was again taken by N.R.
Ghose in Revision to High Court. Court held that N.R. Ghose cannot get benefit under Section 403
Cr.P.C. as also subsequent change in law in view of Supreme Court's judgment in Kedar Nath
Bajoria Vs. State of West Bengal (supra). Revision filed by Sri N.R. Ghose was dismissed,
hence, matter went to Supreme Court. The entire case revolved around Section 403 (1) Cr.P.C.
stating that a person once tried and acquitted for an offence is not liable to be tried again for the
same offence or on the same facts. The majority judgment in para 9 observed that it was not
necessary to discuss scope of "res-judicata" and its application in criminal proceedings since the
issue need be considered by it is different. Paras 9 and 10 are reproduced as under:

"9. It is not necessary in this appeal to decide whether it was open to the High
Court to take a different view of the effect of the order of acquittal passed by Mr. S. C. Dutt Gupta
because of the pronouncement by this Court in Kedar Nath Bajoria's case (1954) S.C.R. 30. What
we have to decide in this appeal is whether the order of Chunder, J., has the effect of debarring the
appellant from the benefit of obtaining a review by this Court of that decision. It is also not
necessary to discuss the scope of res judicata and the extent of its application to criminal
proceedings and its limitation to decisions of courts of competent jurisdiction.

10. Except where the statute so requires it is not imperative upon a party to appeal
against every error, defect or irregularity in any order by which he may conceive himself aggrieved
under the penalty, if he does not so do, of forfeiting for ever the benefit of consideration by this
Court. Nothing would be more detrimental to the expeditious administration of justice than the
establishment of a rule which would impose upon a party the necessity of appealing against every
such order. It was so held in Moheshur Singh v. The Bengal Government (1859) 7 M.I.A. 283, 302
where a party had not appealed from the order of Sudder, Commissioner, granting a review of
judgment. In our opinion, it would make no difference as far as this Court is concerned whether an
intermediate order complained of is passed by the trial court and is not taken to the High Court in
revision or it is taken in revision to the High Court and is there confirmed. We think it unnecessary
in this case to express any opinion as to the effect of that order qua the revision in the High Court
itself, but when the matter properly comes to this Court in appeal in such circumstances as this
case it is open to this Court unless there is any statute which provides differently to review the
order passed by the High Court as much as it would have been if the original order passed by the
trial court had not been taken to the High Court in revision. In civil cases this principle was
accepted by the Privy Council. See Alexander John Forbes v. Ameeroonissa Begum (1865) 10
M.I.A. 340, 352 where an order of remand had not been appealed against; Sheonath v. Ram nath
(1865) 10 M.I.A. 413 where the order was a step in the procedure that leads to a final decree; Shah
Mukhun Lal v. Baboo Sree Kishen Singh (1868) 12 M.I.A. 157 where the question as to interest was
544 INDIAN LAW REPORTS ALLAHABAD SERIES
decided in an interlocutory decree not appealed from. These cases are decisions on general
principles and are not based on any particular statute or regulation peculiar to procedure in civil
cases. We do not see why the principle of these cases should, in the absence of any law to the
contrary, not be equally applicable to matters of a criminal nature."

26. Court then held that ultimately, since Section 4 (1) was upheld by Supreme Court,
judgment of Special Judge acquitting N.R. Ghose attained finality and was binding unless set aside
in appeal which appeal admittedly was never filed against acquittal of N.R. Ghose. In that view of
matter, in view of majority, appeal was allowed and fresh proceeding initiated against N.R. Ghose
was set aside. Relevant observations made in para 11 and 12 may be reproduced as under:

"It only means this that for an order of acquittal to be binding it must be
pronounced by a Court of competent jurisdiction. In the judgment of the High Court in Criminal
Revision No. 930 of 1954 now under appeal S. K. Sen, J., was of the opinion that as the acquittal
was not by a Court of competent jurisdiction the Government regarded it as set aside and it was no
longer in force when Chunder, J., passed his order on March 19, 1953, and "consequently the
petitioner " (now the appellant) could no longer get the benefit thereof under Section 403 Cr. P. C.
on a subsequent change in the law introduced by the Supreme Court decision in Kedar Nath
Bajoria v. The State of West Bengal (1954) S.C.R. 30. Following Kedar Nath Bajoria's case we are
of the opinion that Section 4(1) of the Act was not ultra vires and the judgment of the Calcutta
High Court in J.K. Gupta Vs. State of West Bengal (1952) 56 C.W.N. 701 was erroneous and the
acquittal by the Special Judge Mr. S. C. Dutt Gupta was an order made by a court of competent
jurisdiction; as such it was binding unless set aside in appeal and it was never set aside in
appeal. The observations of the Privy Council in Yusofalli Mulla Noorbhoy v. The King Emperor
(1950) A .C. 458, 479:

"If the orders of acquittal were passed by a court of competent jurisdiction, though
wrongly, they would be binding unless set aside in appeal "

would be applicable to the case of the appellant.