# STATE OF ANDHRA PRADESH v. KOKKILIAGADA MEERAYYA AND ANR

- **Citation:** [1969] 2 S.C.R. 1004
- **Court:** Supreme Court of India
- **Decided:** 1968-11-28
- **Case number:** Criminal Appeal No. 207 of 1967
- **Bench:** J. C. Shah, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-andhra-pradesh-v-kokkiliagada-meerayya-and-anr-4548
- **Pages:** 9

## Headnote

"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 incidents 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 persons including the two respondents and an order was made against· them
under s. 112 Cr. P .C. stating that they were indulging in various acts of
violence involving breach ot peace and requiring them
to show cause
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why. each of them should not execute a bond for keeping the peace. This
order referred to four incidents, the first of which was that on June 22,
1964, eleven persons including the two respondents had indulged in cerD
lain acts of violence as 'a result df which a case under ss. 148, 323 and
325 I.P.C. had been registered.
After holding an inquiry, the Magistrate was of the view that the evidence Jed in support of the first incident was not reliable and the first incident was not proved against any
of the eleven persons.
Subsequently the respondents were
convicted at a trial of offences
under ss. 323 and 324 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
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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
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statutory provisions contained in s. 403 Cr. P.C.
and could not be resorted to in criminal trials.
HELD : (i) The High Court was in error in holding that the respondents could not be tried and convicted of offences under ss. 324 and 323
I.P.C. because in the earlier proceeding under s. 107 Cr. P.C., evidence
j.
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
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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.)
1005
A
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.
B
The rule of "issue estoppel" prevents reJitigation of the issue which
has been determined in a criminal trial between the State and the accused. ff in respect of an offence arising out a transaction a 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 a related transaction
which requires the Court to arrive at a conclusion inconsistent with the
conclusion reached at the earlier trial is prohibited by the rule of issue
estoppel.
In the present case there was no trial of the respondents for
an offence in the earlier proceeding and there was no order of conviction or acquittal. [1011 D-F, HJ
"
(ii) Section 403 Cr. P.C. enacts the rule of autre fois acquit
and
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autre fois convict applicable to criminal trials.
The rule is that so long
C . as an order of acquittal or c

## Text

STATE OF ANDHRA PRADESH
v.
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 incidents 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 persons including the two respondents and an order was made against· them
under s. 112 Cr. P .C. stating that they were indulging in various acts of
violence involving breach ot peace and requiring them
to show cause
A
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c
why. each of them should not execute a bond for keeping the peace. This
order referred to four incidents, the first of which was that on June 22,
1964, eleven persons including the two respondents had indulged in cerD
lain acts of violence as 'a result df which a case under ss. 148, 323 and
325 I.P.C. had been registered.
After holding an inquiry, the Magistrate was of the view that the evidence Jed in support of the first incident was not reliable and the first incident was not proved against any
of the eleven persons.
Subsequently the respondents were
convicted at a trial of offences
under ss. 323 and 324 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
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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
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statutory provisions contained in s. 403 Cr. P.C.
and could not be resorted to in criminal trials.
HELD : (i) The High Court was in error in holding that the respondents could not be tried and convicted of offences under ss. 324 and 323
I.P.C. because in the earlier proceeding under s. 107 Cr. P.C., evidence
j.
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
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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.)
1005
A
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.
B
The rule of "issue estoppel" prevents reJitigation of the issue which
has been determined in a criminal trial between the State and the accused. ff in respect of an offence arising out a transaction a 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 a related transaction
which requires the Court to arrive at a conclusion inconsistent with the
conclusion reached at the earlier trial is prohibited by the rule of issue
estoppel.
In the present case there was no trial of the respondents for
an offence in the earlier proceeding and there was no order of conviction or acquittal. [1011 D-F, HJ
"
(ii) Section 403 Cr. P.C. enacts the rule of autre fois acquit
and
•
I --
autre fois convict applicable to criminal trials.
The rule is that so long
C . as an order of acquittal or conviction at a trial held by a court of competent jurisdiction of a person charged with committing an offence stands,
that person cannot again be tried on the same facts for the offence for
which he was tried or for any other offence arising 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
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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 decided on Feb. 7, 1961; Lalta & Ors. v. The State of U.P., Cr. A. No. 185
of 1966 decided on Oct. 25, 1968; The Assistant Collector of Customs
and another v. L. R. Malwani and another, Cr. As. Nos. 15 & 35 of 1967
decided on Oct. 16, 1968; 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 Seetharamayya and Veeraraghavayya on June 22,
1964. The Trial
Magistrate convicted Meerayya and Venkatanarayana-the first
under the offence under s. 324 and the second for the offence
under s. 323 I.P. Code. In appeal to the Court of Session,
1006
SUPREME COURT REPORTS
[1969} 2 S.C.R ..
Krishna ·Division, at Machilipatnam, the order was
confirmed.
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The High Court, in exercise of its revisional jurisdiction, set
aside the order of conviction and sentence. The State of Andhra
Pradesh has appealed to this Court, with special leave.
The case raises a question of some importance in the administration of justice. The findings recorded by the Trial Magistrate
and confirmed by the Sessions Judge were that the respondents
had committed assault upon Seetharamayya and
Veeraraghavayya and that they could in law be properly convicted. But
it was urged that there was a bar against prosecution of the two
accused Me.erayya and Venkatanarayana because of the "principle of issue estoppel".
The plea is raised on the ground that
the Station House Officer, Kodur Police Station, had instituted
proceedings in the Court of the Sub-Divisional Magistrate, Bandar, under s. 107 Code of Criminal Procedure, against 96 persons, amongst whom were the two respondents, and an order
under s. 112 Code of Criminal Procedure was made stating that
the persons named therein were indulging in acts of violence involving breach of public peace and tranquillity in the village of
Salempalam and were endangering peace in the village, and that
they had formed themselves into a party and were thereby disturbing the public peace and tranquillity by committing acts of
violence, and on that account they were required to show cause
why each person named should not execute a bond for keeping
the peace for a period of one year in the sum of Rs. 1,000 with
two sureties in a like amount each. In the order requiring the
parties to show cause, four incidents were referred to-the first
of which is material. It was recited that on June 22, 1964, 11
persons including the two respondents had beaten Seetharamayya
and Veeraraghavayya with crow bars and sticks, and a case in
Crime No. 20/64 under ss .. 148, 323 and 325 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 a trial against the respondents
in respect of the same incident.
The Trial Magistrate rejected
the plea, and the Sessions Judge agreed with him.
But in the
view of the High Court &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
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A. P. STATE v, MBBRAYYA (Shah, J,)
1007
relied upon and was held not proved, it was not open to the
State to commence or continue a prosecution against the respondents in respect of the same incident. In so holding, the High
Court held that on the principle of "issue estoppel" approved by
this Court in Manipur Administration v. Thokchom, Bira Singh ( 1)
so long as the finding, that the respondents were not concerned in
the incident, was not set aside by appropriate proceeding, no
prosecution on any allegation legally inconsistent with that finding could be commenced against the respondents.
Counsel for the State contended that the rule of issue estoppel is inconsistent with the statutory provisions contained in s.
403 of the Code of Criminal Procedure, and cannot be resorted
to in criminal trials and that in any event the rule of issue estoppel had no application, since there was no "previous trial" of
the respondents for any offence alleged to arise out of the incident in respect of which they were tried. It was urged that it
was not the law even recognised by the Australian Courts where
the rule of issue estoppel had its origin that evidence on which
a criminal proceedmg was held cannot be utilised in any subsequent proceeding between the same parties.
The first contention raised by counsel for the State cannot
be entertained in view of a large body of authority in this Court.
If the matter were res integra the argument that the Courts cannot travel outside the terms of the Code of Criminal Procedure
and extend the rule of autre fois acquit incorporated in s. 403
of the Code of Criminal Procedure may have required serious
consideration.
The following important rules emerge from the terms
of
s. 403 of the Code of Criminal Procedure :
( 1) An order of conviction or acquittal in respect of any
offence consti~u~ed by. any act against or in favour of a person
does not proh1b1t a 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 a iransaction several offences are
co~itted for ';Vhic~ s~parate charges could have been made,
but if a person 1s tried m respect of some of those charges and
· '!ot all, and is acquitted or convicted, he may be tried for any distmct offence for which at the former trial a separate charge may
have been, but was not, made.
(3) If a person is convicted. of any offence constituted by
any act, and that act together with the consequences which re·
s~lted therefro~ constitute a 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
1008
SUPRBMI! COURT ili!PORTS
(1969) i s.c.a.
the consequences had not happened or were not known to the
A
Court to have happened, at tne time when he was convicted. ·
( 4) A person who has once been tried by a court of competent 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 a dif1.erent charge
from the one made against him might have been made or tor
B
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 criminal trials. The ru1e is that so long as an order of acquittal or
conviction at a trial held by a Court of competent jurisdiction Jf
C
a 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
n
of the Code of Criminal Procedure.
Lord MacDennott in
Sambasivam v.
Public Prosecutor,
Federation of Malaya(') observed at p. 479 :
"The eftect 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 proceediugs
bet.ween the parties to the adjudication.
The maxim
"Res judicata pro veritate accipitur" is no less applicable , 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 prose1: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 conclusiye 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.
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A. P. STATE V. MBBRAYYA (Shah, J.)
1009
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 a fire-arm contrary to Reg. 4 ( 1) (a) of the Emergency Regulations and was convicted by the Supreme Court of
the federation of Malaya.
An appeal was earned to the Judicial 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 entitled to rely upon the acquittal in so far as it was relevant to
his defence.
The plea so raised was accepted by the Judicial
Committee.
Pritam Singh v. The State of Punjab( 2 ) this Court held that
where a person has been tried under s. 19(f) of the Arms Act
and is acquitted because the prosecution has failed to establish
the possession of a revolver by the accused as alleged, in a subsequent trial of the offence of murder, where the possession of the
revolver was a fact in issue which had to be established,
the
prosecution could not ignore the finding at the previous trial.
In several later judgments of this Court the principle of issue
estoppel has received approval : Manipur
Administration v.
Thokchom, Bira Singh(').
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 a
departure from the rule accepted by this Court. In the American
Courts also the rule of issue estoppel has received approval :
Sealfron v. United States(1).
It is true that in Connelly v. Director of Public Prosecutions( 8) decided by the House of Lords there was some difference of opinion amongst the Law Lords as to the applicability
of the rule to criminal trials in the English Courts. Our Criminal jurisprudence is largely 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 transaction 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.
1010
SUPREME coull.t REPORTS
[196912 s.c.R'.
.. ,.,.
by the Courts. Under the English system of a~strati~n of
A
criminal law trials for serious offences are held with the aid of
the jury and' it is frequently impossible t? deterrnin~ wi~ certitude the specific issues on which the verdict of .th~ JUfY 1s founded.
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
B
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 a prisoner in a previous criminal trial which is brought in
issue on a second criminal trial of the same prisoner.
.
. . There must be a prior proceeding determined against the Crown
necessarily
involving
an
issue which again arises in a subsequent proceeding by
the 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 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 concerned with the judicial determination of an alleged criminal liability and in the case
of conviction with the substitution of a new liability.
Issue-estoppel is concerned with the judicial establishment of a proposition of law or fact between parties.
It depends upon well-known doctrines which control
the relitigation of issues which are settled by prior litigation."
The rule, does not predicate that evidence given at one
trial
against the accused cannot again be given in the trial of
the
accused for a distinct offence.
As Lord Morris of
Borty-YGest observed in Connelly's case(') at p. 1325 :
" . . . . there is no rule or principle fo the effect that
evidence which has first
been used in
support of a
charge which is not proved may not be used to support
a subsequent and different charge,
.
.
. "
(!) LR. [1964] A.C. 1254.
(2) 77 C.L.R. 511.
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A. P. STATE V. MEERAYYA (Shah,].)
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Can it be said in the present case that there has been a trial ~f
the accused on an issue in a prior liiigation, and an attempt 1s
made to relitigate the same? It may be recalled that the respondents were not tried at any criminal trial in the previous case.
The earlier proceeding was for binding over the respondents and
94 others to keep the peace on the case that it was apprehended
that they were likely to commit breach of peace or disturb public
tranquillity. The primary issue which the Court was called
upon to 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 conviction or acquittal.
The rule of issue estoppel cannot, in our
judgment, be extended so as to prevent evidence which was given
in the previous proceeding and which was held not sufficient to
'sustain the other for being used in support of a charge of an
offence which the State seeks to make out.
The rule of issue
estappel prevents relitigation of the issue which has been determined in a criminal trial between the State and the accused. If
in respect of an offence arising out of a transaction a trial has
been taken place and the accused has been acquitted, another trial
in respect of the olfen~ alleged to arise out of that transaction or
of a related transaciion which reauires the Court to arrive at a
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 evidence given in the earlier proceeding to sustain an order for binding over the respondents to keep the peace does not preclude the
trial of the 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 a case arisin!! under the Sea Customs
Act in which there was an inouiry held bv the Collector of Customs and a 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 proceeding 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 regarded as insufficient to susfaln the order.
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(I) er.-As.-Nos. I'~ 3' or1967 decided on Oct. 16, 1968.
1012
SUPREME. COUJ.T UPO!tTS
. [1969] 2 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.
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