# MANIPUR ADMINISTRATION v. THOKCHOM, BIRA SINGH IP. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, K. c. DAS

- **Citation:** [1964] 7 S.C.R. 123
- **Court:** Supreme Court of India
- **Decided:** 1961-02-07
- **Case number:** Criminal Appeal No. 6 of 1962
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/manipur-administration-v-thokchom-bira-singh-ip-b-gajendragadkar-c-j-k-n-3240
- **Pages:** 14

## Headnote

7 S.U.R
SUPREME COURT REPORTS
123
MANIPUR ADMINISTRATION
v.
THOKCHOM, BIRA SINGH
IP. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, K. c. DAS
GUPTA, J. C. SHAH AND N. RAJAGOPALA AYYANGAR, JJ.]
Criminal Trial-Accused acquitted in previous trial-On
same facts a subsequent !rial initiated-Subsequent court
whether debarred from receiving the same evidence on the
principle of issue-estoppe!-<.::ode of Criminal Procedure 1898,
(Act 5 of 1898) s. 403.
In the present case, the trial coμrt held the respondent
guilty ~1' the o'fences under ss. 333, 3123 and 440 all read with
s. 149, Indian Penal Code. It was alleged by the prosecution
that the respondent Bira Singh was a member of the unlawful assembly which was formed between 3 and 5 p.m. on 25th
April 1960, in contravention of the promulgation of the order
under s. 144 of the Code of Criminal Procedure. As a member
of the mob he was alleged to have pelted stoll€s at police officers. The respondent pleaded in his defence that the present
trial was barred by s. 403, Criminal Procedure Code by reason
of the acquittal of the accused under s. 188, Indian Penal Code
·on July 30, 1960. The Trial court did not accept his defence
and convicted him. On appeal, the Judicial Commissioner
accepted the defence of the. respondent and acquitted him on
the bas's of the decision of this court in Pritam Singh v. Stat~
of Punjab.
·
Before the trial of the present case, a complaint was filed
against the .respondent on May 12, 1960 und€r s. 188 I.P.C. In
that complaint the District Magistrate alleged that the respendent had disobeyed the order passed under s. 144 by forming himself alongwith other persons into an unlawful assembly
between the hours of 3 and 5 p.m. on April 25, 1960. In that
case the trial court convicted him of the offence charged and
sentenced him to rigorous imprisonment for 6 months.
On
appeal the Sessions Judge by his judgment dated July 30,
1960 acquitted the respondent, on the ground that the prosecution had failed to establish that the respondent was present
at the place and at the time where the occurrence took place.
This acquittal was confirmed by the Judicial Commissioner.
Held-Sub-ss. (1) to (3} of s. 403 of the Code of Criminal
Procedure deal with the trial of an accused for an offence and
his conviction therefor. The question raised for decision in
Pritam Singh's case however was different and was 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 finding would constitute an estoppel or
res judicata against the prosecution not as a bar to the tI1ial
and conviction of the accused for a different or distinct offence
but as precluding the reception of evidence to disturb that
findi'lg of fact when the accused is tried subsequently even
for· a different offence which might be permitted by the terms
oI s. 403(2).
It would not be correct to say that the principle underlying in Sambasivan's case was dissented from in R. v. Connelly. Besides. it should be pointed out that the principle
1964
Marek 11
1964
Manipur .Adminia·
tration
v.
Thokcham, Bira
Si1111h
Ayyangar, J.
124
SUPREME COURT REPORTS
[1964]
underlying the decision in Pritam Singh's case d'd come up
for consideration before this Court on several occasions, but it
was never dissented from though in some of them it was distinguished on facts.
Pritam Singh v. State of Punjab, A.LR. 1956, S.C. 415,
R. v. Connelly, (1963) 3 All E.R. 510 and Sambasivam v .. Pub!ic
Prosecutor, Federation of Malaya, 1950 A.C. 458, relied on.
Gurcharan Singh v. State of Punjab, A.LR., 1963 S. C. 340,
referred to.
State of Bombay v. S. L. Apte, [1961] 3 S.C.R. 107, Banwari
Godara v. The State of Rajasthan, Cr. A. No. 141 of l!M'O dated
February 7, 1961, Mohinder Singh v. State of Punjab, A.LR. 1965
S.C. 79, Kharkan v. The State of Uttar Pradesh, A.LR. 1965
S.C. 83, Yusofalli mulla v. The King. 76 I.A. 158, referred to.
(ii) The rule of issue-estoppel does not

## Text

7 S.U.R
SUPREME COURT REPORTS
123
MANIPUR ADMINISTRATION
v.
THOKCHOM, BIRA SINGH
IP. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, K. c. DAS
GUPTA, J. C. SHAH AND N. RAJAGOPALA AYYANGAR, JJ.]
Criminal Trial-Accused acquitted in previous trial-On
same facts a subsequent !rial initiated-Subsequent court
whether debarred from receiving the same evidence on the
principle of issue-estoppe!-<.::ode of Criminal Procedure 1898,
(Act 5 of 1898) s. 403.
In the present case, the trial coμrt held the respondent
guilty ~1' the o'fences under ss. 333, 3123 and 440 all read with
s. 149, Indian Penal Code. It was alleged by the prosecution
that the respondent Bira Singh was a member of the unlawful assembly which was formed between 3 and 5 p.m. on 25th
April 1960, in contravention of the promulgation of the order
under s. 144 of the Code of Criminal Procedure. As a member
of the mob he was alleged to have pelted stoll€s at police officers. The respondent pleaded in his defence that the present
trial was barred by s. 403, Criminal Procedure Code by reason
of the acquittal of the accused under s. 188, Indian Penal Code
·on July 30, 1960. The Trial court did not accept his defence
and convicted him. On appeal, the Judicial Commissioner
accepted the defence of the. respondent and acquitted him on
the bas's of the decision of this court in Pritam Singh v. Stat~
of Punjab.
·
Before the trial of the present case, a complaint was filed
against the .respondent on May 12, 1960 und€r s. 188 I.P.C. In
that complaint the District Magistrate alleged that the respendent had disobeyed the order passed under s. 144 by forming himself alongwith other persons into an unlawful assembly
between the hours of 3 and 5 p.m. on April 25, 1960. In that
case the trial court convicted him of the offence charged and
sentenced him to rigorous imprisonment for 6 months.
On
appeal the Sessions Judge by his judgment dated July 30,
1960 acquitted the respondent, on the ground that the prosecution had failed to establish that the respondent was present
at the place and at the time where the occurrence took place.
This acquittal was confirmed by the Judicial Commissioner.
Held-Sub-ss. (1) to (3} of s. 403 of the Code of Criminal
Procedure deal with the trial of an accused for an offence and
his conviction therefor. The question raised for decision in
Pritam Singh's case however was different and was 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 finding would constitute an estoppel or
res judicata against the prosecution not as a bar to the tI1ial
and conviction of the accused for a different or distinct offence
but as precluding the reception of evidence to disturb that
findi'lg of fact when the accused is tried subsequently even
for· a different offence which might be permitted by the terms
oI s. 403(2).
It would not be correct to say that the principle underlying in Sambasivan's case was dissented from in R. v. Connelly. Besides. it should be pointed out that the principle
1964
Marek 11
1964
Manipur .Adminia·
tration
v.
Thokcham, Bira
Si1111h
Ayyangar, J.
124
SUPREME COURT REPORTS
[1964]
underlying the decision in Pritam Singh's case d'd come up
for consideration before this Court on several occasions, but it
was never dissented from though in some of them it was distinguished on facts.
Pritam Singh v. State of Punjab, A.LR. 1956, S.C. 415,
R. v. Connelly, (1963) 3 All E.R. 510 and Sambasivam v .. Pub!ic
Prosecutor, Federation of Malaya, 1950 A.C. 458, relied on.
Gurcharan Singh v. State of Punjab, A.LR., 1963 S. C. 340,
referred to.
State of Bombay v. S. L. Apte, [1961] 3 S.C.R. 107, Banwari
Godara v. The State of Rajasthan, Cr. A. No. 141 of l!M'O dated
February 7, 1961, Mohinder Singh v. State of Punjab, A.LR. 1965
S.C. 79, Kharkan v. The State of Uttar Pradesh, A.LR. 1965
S.C. 83, Yusofalli mulla v. The King. 76 I.A. 158, referred to.
(ii) The rule of issue-estoppel does not prevent tile trial
of an offence as does autre fois acquit but only precludes evidence being led to prove a. fact in issue as regards which evidence had already been led and a specific finding recorded at
an earlier criminal trial before a court of competent jurisdiction.
The rule of issue-estoppel is
not the same as the plea
of double jeopardy or autre fois acquit is also clear from the
statement of the law by Lord Mac Dermott in Samb"sivam's
case.
(iii) It is clear that s. 403 of the Criminal Procedu:re Code
does not preclude the applicability of this rule of issue-estoPpel. The rule being one which is in accord with sound principle and supported by high authority and there being a decision of this court in Pritam Singh's case which has accepted it
as a proper one to be adopted, there is no reason for discarding it.
The Queen v. O!!is, (1900) 2 Q.B. 758. The King v. Wi!kes,
77 C.L.R. 511, Marz v. The Queen, 96 C.L.R. 62 and Manickchand Agarwal! v. The State, A.LR. 1952 Cal. 730 relfod on.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 6 of 1962. Appeal by special leave from the judgment
and order dated June I, 1961 of the Judicial Commis.~ioner's
Court for Manipur in Criminal Appeal Case No. 7 of 1961.
0. P. Rana and R. N. Sachthey, for the appellant.
S. C. Agarwal, for the respondent.
March 11, 1964. The judgment:of the Court was delivered by
AYYANGAR, J.-This appeal •vhich comes before us by
special leave is directed against the judgment and order of
the Judicial Commissioner of Manipur acquitting the respondent and setting aside the conviction and sentence passed
against him by the learned Sessions Judge.
This appeal was originally heard before a Bench of two
Judges but has been directed to be placed before this Bench
by reason of the learned Counsel for the appellant seeking
7 S.C.R.
SUPREME COURT REPORTS
125
to. questiun the correctness of the judgment of this Court in
the case of Pritam Singh v. The State of Punjab(') in view
of the decision of the English Court of Criminal Appeal in
R. v. Connelly(') and the subsequent decision of this Court
in Gurcharan Singh v. State of Punjab(').
The facts giving rise to the appeal are in brief as
follows: There was an agitation by certain political parties
and groups in Manipur in April, 1960 for establishing responsible Government in the Manipur area. The agitation
took the form of picketing of Government offices and the
residences of Government servants and blocking roads in
order to paralyse the administration. After this form of agitation continued for some time, the District Magistrate of
Manipur promulgated orders under s. 144, Criminal Procedure Code on the morning of April 25, I 960 banning public
meetings a.nd processions and these orders were proclaimed
and communicated to the public through loudspeakers. Notwithstanding this order, crowds continued to collect and
move on the streets shouting slogans. Bira Singh-the respondent-was said to have been leading this mob. A lathi
charge by the police took place but it is stated that because
of this the crowd moved a little away and began to pelt
stones. The crowd was thereupon directed to disperse, its
attention being drawn to the promulgation of the order under
s. 144, Criminal Procedm~ Code and to the fact that the
gathering in a public place in violation of the order made it
an unlawful assembly; but this command was not heeded and
the stone-throwing continued. There was firing by the police
which resulted in injuries to certain persons including some
of the police personnel. The first information report in regard
to the incident and the offences committed during its course
was lodged at the Imphal Police station at about 7 p.m. that
day in which the informant specified the name of the respondent-Bira Singh as the leader of this mob. On this a case
was registered under ss. 114/149/332/342 and 307 of the
Indian Penal Code and s. 7 of the Criminal Law Amendment
Act, and a few days later the respondent was arrested.
Charges were framed against the respondent who was placed
before the Magistrate and the charge sheet stated that the
respondent was in the crowd between 3 and 5 p.m. on that
day, that the crowd was an unlawfu) assembly, that he was
among those who pelted stones which caused grievous hurt
to one person and simple hurt to others and also caused
damage to the Inter-State Police Wireless Station. Along with
(') A.LR. 1956 S.C. 415.
(') [1963] 3 All E.R. 510.
(') A.LR. 1963 S.C. 34-0.
1964
Manipur
.Adm.inistration
T,
Tlwkckom., Bint
Singk
Ayyangar, ./.
1961
J.lfl'lnipur
~4tlmi11i..ilrafion
Y.
Thokclt0Yf/,fe, Bira
,'3ingh
126
SUPREME COURT REPORTS
[1964]
the respondent. certain others were included as accused but
we are now concerned only with the respondent. The learned
Sessions Judge convicted all of them of the offences with
which they were charged and sentenced them to varying
terms of imprisonment but into the details of these it is not
necessary to enter.
The question of law that arises in this case is by reason
of a prior prosecution of the respondent in which he was
acquitted. That prosecution was founded on a complaint
against him filed on May J 2, J 960 under s. 188, Indian Penal
Code in connection with his participation as .a member of the
same crowd in regard to which the charge which is the subject-matter of the present proceedings is concerned. In that
complaint the District Magistrate alleged that the respondent had disobeyed the order passed under s. 144 by forming
himself along with 2,000 other persons into an unlawful
assembly between the hours of 3 and 5 p.m. on April 25,
1960 by shouting slogans and pelting stones at police officers and this was stated to be on the road in front of the
Police Wireless station. This complaint by the District Mag:strate was registered and taken cognizance of by the Magistrate. The respondent pleaded in his defence that he was not
present at the scene of the occurrence at all and that he had
been falsely implicated by the police. The Magistrnte rejected the defence and accepting the prosecution case that the
respondent was present as the head of the mob on that ocosion convicte:I him of the offence charged and sentenced
him by his order dated July 8, 1960 to rigorous imprisonment for six months. Ten days thereafter on July 18, 1960
the charge sheet in the present case was filed.
During the pendenoy of the prosecution from which the
present appeal arises the respondent appealed to th(i learned Sessions judge against his conviction by the Magistrate on
the charge under s. 188, Indian Penal Code. The learned
Sessions Judge allowed the appeal holding that the prosecution had not established that the respondent was present
at the place and at the time where the occurrence took place
at which he was said by the prosecution to have been present
or that he disobeyed the order under s. 144, Criminal Procedure Code. In the course of his judgment delivered on July.
30, 1960 the learned Sessions Judge observed after referring
to the delay in the filing of the complaint after the occur·
rence:
"This delay in the filing of the complaint and in the
naming of the appellant.. ................ throws considerable doubt on the presence of the appellant
among the agitators on 25-4-60 .............. .if the
P. Ws. did not know the appellant from before no
7 S.C.R.
SUPREME COURT REPORTS
127
reliance can be placed on their identification
of the
appellant during the
trial
because
that identification was not tested in a test
identification parade. This also confirms my
suspicion that the appellant might not have been
present in the incident of 25-4-60 ......... The important position which the appellant had in organising the agitation in my opinion, afforded sufficient motive for the P.Ws. to come to a conclusion
that the appellant might have been present in
the agitation. But that erroneous impression on
conclusion would not prove the presence of the
appellant among the agitators on 25-4-60 .........
For reasons given above the appeal is allowed
and the conviction and sentence of the appellant
under s. 188 I.P.C. are set aside and he is acquitted."
This acquittal was confirmed by the Judicial Commissioner on April 29, 1961. Meanwhile, to proceed with the narrative of the proceedings which has given rise to the present
appeal, the learned Magistrate committed the
respqndent
and 5 others to take their trial before the Sessions Judge,
Manipur on a charge in respect of the offences we have set
out earlier. Before the learned Sessions Judge an objection
was raised on behalf of the respondent that the trial was barred by s. 403, Criminal Procedure Code by reason of the
acquittal of the accused under s. 188, Indian Penal Code
on July 30, 1960. The learned Sessions Judge, however, held,
that the terms of the section were not satisfied, in that the
ingredients of the two offences with which the accused was
charged in the two prosecutions were different and rejected
that submission. On the evidence adduced before him he
found that it had been established to his satisfaction that
the respondent as well as the others were present at the scene
of the occurrence and held the accused guilty of the offences
under ss. 333, 323 and 440 all read with s. 149, Indian Penal
Code and sentenced him to 4 years R.I. All the six accused
filed appeals against their conviction and sentences before
the Judicial Commissioner, Manipur and the learned Judicial
Commissioner after making some variations in the sentences
as regards certain of the accused directed the acquittal of
the respondent on the ground that the finding o.f fact recorded by the learned Sessions Judge in his trial for the offence
under s. 188, Indian Penal Code that he was not present at
the scene of the occurrence on April 25, 1960 between the
hours of 3 and 5 p.m. was final and conclusive and binding
upon the prosecution and that no evidence could be led to
1961
Manipur
Admini.Jlratio11v.
Tlwkckom, Bira.
Si"!lh
Ayyangar, J.
1964
lrfanipur
Admi.nistration
v.
1'/wkclwni, Bira
Singh
Ayyanqar, J.
128
SUPREME COURT REPORTS
[1964]
establish a contrary state of affairs in the present proceedings. In so holding the learned Judicial Commissioner followed the decision of this Court in Pritam Singh v. State of
Punjab(') and certain other decisions and held that the principle of res judicata applicable to criminal proceedings was
not confined to cases falling within the bar of s. 403, Criminal Procedure Code but was of wider application. It is the
correctness of this view of the Jaw that calls for consideration in this appeal.
Before referring to the decision of this Court in Pritam
Singh v. State of Punjab(') it would be convenient to refer
to arid put aside one point for clearing the ground. Section
403, Criminal Procedure Code embodies in statutory form
the accepted English rule of autre fois acquit. This section
runs:
"403 (]) A person who has
been
once 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 offence
for which a different charge from the one made
against him might have been made under s. 236,
or for which he might have been convicted under
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, sub-section (!).
(3) A person convictec:l of 'any offence constituted by
any act causing consequences which, together
with such act, constituted a different offence from
that of which he was convicted may be afterwards tried for such last mentioned offence, if
the consequences had not happened, or were not
known to the Court to have happened, at the
time When he was convicted.
(4) A person acquitted or convicted of any offence
constituted by any acts may, notwithstanding
such acquittal or conviction, be sebsequently
charged with, and tried for, any other offence
constituted by the same acts which he may have
committed if the Court by which he was first
tried was not competent to try the offence with
which he is subsequently charged.
(') A.LR. 1956 S.C. 415.
' ,
7 S.C.R.
SUPREME COURT REPORTS
129
(5) Nothing in this section shall affect the provisions
of section 26 of the General Clauses Act, 1897,
or section 188 of this Code.
Explanation-The dismissal of a complaint, the stop·
ping 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 enacts:
"26. Where an act or omission constitutes an offence
under two or more enactments, fthen 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."
We might also, in this connection, refer to Art. 20(2) of
the Constitution since it makes provision for a bar against
a second prosecution in an analogous case. That provision
reads:
"20(2). No person shall be prosecuted and punished
for the same offence more than once."
As has been pointed out by this Court in State of Bombay
v. S. L. Apte('), both in the case of Art. 20(2) of the Constitution as well as s. 26 of the General Clauses Act to operate
as a bar the second prosecution and the consequeniial punishment thereunder, must be for "same offence" i.e., an offence
whose ingredients are the same. It has
been pointed out
in the same decision that the V Amendment of the American Constitution which provides that no person shall be subject, for the same offence, to be twice put in jeopardy of life
or limb, proceeds on the same principle.
It is common ground that the respondent cannot bring
his case within the provisions of sub-s. (1) of s. 403 and it
was also common ground that the trial of the respondent
would be permitted by sub-s. (2). It should, however, be
noticed that sub-ss. (!) to (3) of this section deal with the
trial of an accused for an offence and his conviction therefor. The question raised for decision in Pritam Singh's(') case
however was different and was 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 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 or distinct offence but as
(') [1961] 3 S.C.R. 107.
(') A.LR. 1956 S.C. 415.
L_1'P(D)IRCI-5
"
1964
Manipur
Administration
v.
Tkockclunn, Mira
Singh
Ayyangar, J.
1964
Manipur
Administration
v.
Tkokchom, Bira
Si'/l{/k -·
Aggangar, J.
130
SUPREME COURT REPORTS
[1964]
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).
As Pritam Sing h's(') case was based wholly on the decision of the Privy Council in Sambasivam v. Public Prosecutor, Federation of Malaya(') it would be necessary to examine
the basis of the latter decision. The appellant-an Indian
Tamil-was travelling on foot in the company of two. Chinese.
They met a party of three Malays. A fight ensued between
the two groups in the course of which one of the Chinese
was killed. The Malays alleged that they had been fired on
by the Chinese and that the appellant had with him a revolver which he had held .out and pointed at one of them.
In connection with this incident the appellant was charged
with carrying a fire-arm and being in possession of ten rounds
of ammunition. Two charges were framed against the appellant: (!) of carrying· a fire-arm, and (2) of being in possession
of ammunition. He was acquitted of the second charge of
being in possession of ammunition and that acquittal becaine
final. He was, later convicted of the offence of •;arrying a
fire-arm and the appeal before the Privy Council related to
the legality of this convictjon. Diverse objections branching
into several fields of law were raised before the Privy Council in support of the appeal but what is, however, of relevance now, is the one which related to the admissibility of
the evidence of the prosecution witnesses who spoke of the
revolver carried by the appellant being loaded with bullets
and of the appellant carrying four more bullets in a bag.
Their Lordships rejected all the other contentions raised on
behalf of the appellant but allowed the appeal on the ground
that this evidence regarding the revolver being loaded and
of the appellant carrying a bag containing some bullets was
inadmissible in Jaw. In dealing with this Lord MacDermott
speaking for the Board 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."
After pointing out that the prosecution witm:sses were
permitted to depose regarding the possession of ammunitim1
by the appellant and that it was not possible to exclude the
(') A.I.R. 1956 s.c. 415.
(') [1950] A.C. 458.
7 S.C.R.
SUPREME COURT REPORTS
131
effect of this evidence on the prosecution case, their Lordships held that the appellant was seriously prejudiced by the
reception of this evidence and therefore allowed the appeal
and directed his acquittal. The point in regard to which the
observations in Sambasivam's(')
case was applied by this
Court related to the use of the recovery of a revolver from
the accused to sustain his conviction of the offence of murder. Previous to the prosecution for an offence under s. 302,
Indian Penal Code the appellant before this Court had been
tried before the Additional Sessions Judge, Faridpur under
s. 19<0 of the Indian Arms Act of an offence for possession of
that revolver and had been acquitted. This Court speaking
through Bhagwati, ,J. extracted the observations we have
quoted from the judgment of Lord MacDermott and pointed
out that on the basis of this decision the evidence relating to
the recovery of the revolver from the accused should have
been excluded.
It was not contended by learned Counsel for the appellant that if the principle laid down by this decision was
correct, the acquittal of the respondent by the learned Judicial Commissioner by the order now under appeal was erroneous. The argument, however, was that the observations in
Pritam Singh's(') case required reconsideration. This sul)mission was rested on two separate lines of reasoning: (!) That
the rule in Sambasivam's(') case on which Prita11J; Singh's(')
case was based had been dissented from by the English Court
of Criminal Appeal in R. v. Connelly(') and that, similarly
that principle had been departed from by this Court in Gur·
charan Singh v. State of Punjab("'). (2) That the principle of
Common law which was applied by the Privy Council in
Sambasivam's(') case could have no application in a jurisdiction like ours where the principle of autre fois acquit is
covered by a statutory provision framed on the lines of
s. 403 occurring in a Code which is exhaustive.
As regards the first ground, it must be pointed out that
learned Counsel for the State admitted that there was nothing a Gurcharan Singh's(') case which militated against the
acceptance of the rule laid down in Pritam Singh's(') case.
Coming next to the point mad!? regarding the decision of the
English Court of Criminal Appeal in 'R. v. Connelly('), we
should make it clear that the decisions of the English Courts
being merely of persuasive authority, decisions of such a
(') [1950] A.C. 458.
(') (1963] 3 All E.R. 510
L P(D)ISC!-5(a)
(') A.LR. 1956 S.C. 415.
(') A.LR. 1963 S.C. 34-0.
1964
Manipur
Adminiatration
v.
Thokchom, Bira
Singh
Ayyangar, J.
1964
Jllunipur
A~l111i11i1J!n1lion
v.
1'/iokc/10111, Bir1i
Singh
Ayyanyrir, ,J,
132
SUPREME COURT REPORTS
[196'1]
court even if at variance with one of this Court do not by
themselves justify an application to reconsider an earlier decision of this Court. Besides. a close examination of the
judgment in R. v. Connelly(') through which learned Counsel
for the State has taken us, does not disclose any dissent from
the principle stated by Lord MacDermott. The entire case
before the Court turned upon whether there had been a
specific finding on 3n issue of fact-an issue directly raised
regarding an ingredient of the offence charged at the later
trial, when the uccused was acquitted by the Court of Criminal Appeal in the former proceeding. Except that the Court
did not expressly rule that the principle of issue-estoppel
applied in England, no exception was taken to its soundness
and the decision proceeded on the basis of the facts not
justifying the application of the principle, the conditions not
being fulfilled. Learned Counsel is, therefore, not well-founded in his submission that the principle underlying Sambasivam's('! case was dissented from in R. v. Con11e/ly('). Besides•
it should be pointed out that the principle underlying the
decision in Pritam Sing/i's(') case did come up for consideration before this Court on several occasions, but it was never
dissented from though in some. of them it was distinguished
on facts. (See Bamvari Godara v. The State of Rajastlwn('),
Mohiniler Singh v. State o.f Punjab(') and Kht1rkan
v.
The
State of Uttar Pradesh(').
These two decisions in R. v. Connelly(') and Gurclwran
Singh v. State of Punjab(') being out of the way, we shall
address ourselves to the question as to whether what is termed "issue estoppel" which has been held by this Court in
Pritam Singh's(') case to be applicable to criminal proceedings is excluded by reason of the provisions of the Criminal
Procedure Code. For this purpose learned Counsel invited
our attention to s. 5(1) which enacts:
"All offences under the Indian Penal Code shall be inI
vestigated, inquired into, tried, otherwise dealt
,_
with according to the provisions hereinafter contained."
This, however, in our opinion, does not afford any
assistance to the argument because Pl'itam
Singh's(") case
)II
did not introduce any variation in the Code as regards either
(') [1963] 3 All E.R. 510.
(') (1950] A.C. 458.
(') A.LR. 1956 S.C. 415.
(') G.A. No. 141 of 1960, ct/February 7, 1961.
(') AI.R. 1965 S.C. 79.
(') A.I.R. 1965 S.C. 83.
(') A.LR. i963 S.C. 3,10.
7S.C·R
SUPREME COURT REPORTS
133
investigation, enquiry or trial. As we have pointed out earlier,
issue-estoppel does not prevent the trial of any offence as
docs autre fois acquit but only precludes evidence being l;J
to pr:we a fact in issue as regards which evidence has already
been led and a specific finding recorded at an earlier criminal trial before a court of competent jurisdiction. Learned
Counsel next drew our attention to the observations bf the
Privy Council in Yusofalli Mu/la v. The King(') at page 169
' where the following observations occur:
"The last point urged by Mr. Page was that even if
the case did not fall within the terms of s. 403
of the Code of Criminal Procedure the appellant
could nonetheless rely on the common law rule
that no man should be placed twice in jeopardy."
After stating that even for the application of the Common Law rule of double jeopardy the earlier order had to be
by a court competent to pass a valid order of acquittal or
conviction the judgment proceeded:
"This argument therefore fails on the facts, and it is
not necessary for their Lordships to consider
whether s. 403 of the Code of Criminal Procedure constitutes a complete code in India on the
subject of autre fois acquit and autre fois convict,
or whether in a proper case the common law can
be called in aid to supplement the provisions of
the section."
As we have pointed out, we are not now concerned
with any extension of the principle of autre fois acquit but
as to the admissibility of evidence which is designed to upset
a finding of fact recorded by a competent court at a previous
trial. The reasoning of Lord MacDermott in Sambasivam's(')
case was not the first occasion when this rule as to issueestoppel in a criminal trial was formulated or given effect to.
That it is not the same as the plea of double jeopardy or
autre fois acquit is also clear from the statement of the law
by Lord MacDermott himself. The distinction between autre
fois acquit and the objection to the reception of evidence to
prove an identical fact which has been the subject of an
earlier finding between the parties is brought out in the
following passage from the judgment of Wright, J. in The
Queen v. Ollis('):
"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
(') 76 I.A. 158.
(') [1950] A.C. 458.
(') (1900) 2 Q.B. 758, 763-769.
1161
·Manipur
Admini&trati011
v.
TlwlccMm, Bira
Singh
Ayyangar, J.
.Manipur
Administration
v.
Thokchom, Bi1ll
Sing II
Ayyangar, ,f.
134
SUPREME COURT REPORTS
[196
the evidence given for the prosecution at !the former trial, at which the prisoner was charg1ed with
having obtained money from Ramsey on that
false pretence, and was acquitted of that charge."
The learned Judge then went on to point out that if the
acquittal at the first trial was based on the negativing of this
fact the evidence would be inadmissible but if that acquittal
was based on other circumstances the evidence would be
admissible. That is why he said:
"An objection in the nature of a plea of "autre fois
acquit" cannot of course be maintained, because
on either indictment the prisoner could not have
been convicted of the offences, or any of them,
which were alleged in the other indictment. Nor
can there be an estoppel of record or quasi of
record, unless it appears by record of itself, or
as explained by proper evidence, that the same
point was determined on the first trial which was
in issue on the. second trial."
Speaking of this type of estoppel Dixon, J. said in The
King v. Wilkes('):
"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. Ollis which in effuct I have
adopted 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 autre fois acquit
and autre fois convict. They are pleas which are
(') C.L.R. 511 at pp. 518-519.
7 S.C.R
SUPREME COURT REI'ORTS
135
concerned with the judicial determination of an
alleged criminal liability and in the case of conviction with the substitution of a new liability.
Jssue-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."
This decision was rendered in 1948. The matter was the
subject of consideration by the High Court of Australia
after the decision in
Sambasil'wn's(') case in Mar~ v. The
Queen('). The question concerned 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 an unanimous judgment by which the appeal of
the accused was allowed, the court said:
"The Crown is as rn uch precluded by an estoppel by
judgment in criminal proceedings as is a subt
ject in civil proceedings ......... The Jaw which
gives effect to issue-estoppels is nbt concerned
with the correctness or incorrectness of the finding which amounts to an estoppcl, still less with
the process of reasoning by which the finding was
reached in fact. ........... lt is enough that an issue
or issues have been distinctly raised or found.
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 of the Criminal Procedure Code does not preclude the applicability of this rule
of issue-estoppel. The rule being one which is in accord with
sound principle and supported by high authority and there
being a decision of this Court which has accepted it as a
proper one to be adopted, we do not see any reason for discarding it. We might also point out that even before the de-
-·
cision of this Court this rule was applied by some of the
High Courts and by way of illustration we might refer to the
decision of Harries, C. J. in Manickchand Agarwala v. The
State('). Before parting, we think it proper to make one observation. The question has sometimes been mooted as to
whether the same principle of issue-estoppel could be raised
(') [1950] A.C. 458.
(') 96 C.L.R. 62, 68-69.
(') A.LR. 1952 Cal. 730.
1964
Jlanipu1
. id ministration
v.
Thol:rliom, Bira
,')'lngh
.lyyanga.t, J,
1964
Nanir"'r
Administration
v.
Pholu:Jwm, Bira
Sinqli
.Ayyangar, J.
136
SUPREME COURT REPORTS
[1964J
against an accused, the argument against its application being
that the prosecution cannot succeed unless it proves to the
satisfaction of the Court trying the accused by evidence Jed
before it that he is guilty of the offence charged. We prefer
to express no opinion on this question since it does not arise
for examination. .
As stated earlier, if Pritam Singh's(') case was rightly
decided, it was conceded that the decision of the Judicial
Commissioner was right.
The appeal, therefore, fails and is dismissed.
Appeal dismissed
(') A.I.R. 1956 s.c. 415.