TMI Blog1968 (11) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded by the Trial Magistrate and confirmed by the Sessions Judge were that the respondents had committed assault upon Seetharamayya and Veeraraghavayya and that they could in law be properly convicted. But it was urged that there was a bar against prosecution of the two accused Meerayya and Venkatanarayana because of the principle of issue estoppel . The plea is raised on the ground that the Station House Officer, Kodur Police Station, had instituted proceedings in the Court of the Sub-Divisional Magistrate, Bandar, under s. 107' Code of Criminal Procedure, against 96 persons, amongst whom were the two respondents, and an order under s. 112 Code of Criminal Procedure was made stating that the persons named therein were indulging in acts of violence involving breach of public peace and tranquillity in the village of Salempalam and were endangering peace in the village, and that they had formed themselves into a party and were thereby disturbing the public peace and tranquillity by committing, acts of violence, and on that account they were required to show cause why each person named should not execute a bond for keeping the peace for a period of one year in the sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ried. It was urged that it was not the law even recognised by the Australian Courts where the rule of issue estoppel had its origin that evidence on which a criminal proceeding was held cannot be utilised in any subsequent proceeding between the same parties. The first contention raised by counsel for the State cannot be entertained in view of a large body of authority in this Court. If the matter were res integra the argument that the Courts cannot travel outside the terms of the Code of Criminal Procedure : and extend the rule of autre fois acquit incorporated in s. 403 of the Code of Criminal Procedure may have required serious consideration. The following important rules emerge from the terms of s. 403 of the Code of Criminal Procedure: (1) An order of conviction or acquittal in respect of any offence constituted by any act against or in favour of a person does not prohibit a trial for any other offence constituted by the same act which he may have committed, if the Court trying the first offence was incompetent to try that other offence. (2) If in the course of a transaction several offences are committed for which separate charges could have been made, but if a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the fire-arm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other. In Sambasivam's case() the appellant was tried for the offence of being in possession of ammunition in violation of Reg. 4(1)(b) of the Emergency (Criminal Trials) Regulations, 1948. He was acquitted of the charge. Later he was tried for the offence of carrying a fire-arm contrary to Reg. 4(1)(a) of the Emergency Regulations and was convicted by the Supreme Court of the Federation of Malaya. An appeal was carried to the Judicial Committee and the legality of the conviction was challenged on the grounds, inter alia, that so long as the order of acquittal in respect of the carrying of ammunition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em. But it is necessary to notice the true basis of the rule. Dixon 1., in The King v. Wilkes(2) observed at pp. 518-519: .... it appears to me that there is nothing wrong in the view that there is an issue estoppel, if it appears by record of itself or as explained by proper evidence., that the same point was determined in favour of a prisoner in a previous criminal trial which is brought issue on a second criminal trial of the same prisoner. There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a condition affairs arises I see no reason why the ordinary rules of issue-estoppel should not apply. Such rules are not to be confused with those of res judicata, which in criminal proceedings are expressed in the pleas of autre fois acquit and autre fois convict. They are pleas which are concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e out of that transaction or of a related transaction which requires the Court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial is prohibited by the rule of issue estoppel. In the present case, there was no trial and no acquittal. The rejection of evidence given in the earlier proceeding to sustain an order for binding over the respondents to keep the peace does not preclude the trial of the respondents in respect of the specific incident which together with the other incident was sought to be made the basis of the order of binding over the respondents. This Court in L.R. Malwani's case(1) declined to apply the rule of issue estoppel to a case arising under the Sea Customs Act in which there was an inquiry held by the Collector of Customs and a criminal prosecution was then filed. In our judgment, the High Court was in error in holding that the respondents could not be tried and convicted of offences under s. 324 and 323 I.P. Code because in the earlier proceeding under s. 107 of the Code of Criminal Procedure, evidence with regard to the incident out of which offences which are the subject-matter of the present appeal was taken, and wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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