Nadeem alias S.M. Nusrat Ali vs State of U.P.

Palok Rasu, J.—Nadeem alias S. M. Nusrat Ali has approached this Court u/s 482 Code of Criminal Procedure with the prayer that the trial pending in the court of judicial Magistrate II. Budaun arising out of Crime No. 80 of 1978 in the form of State v. Nadeem case No. 780 of 1980 be quashed.

Sri V. K. Chaturvedi, learned Counsel for the applicant has been heard at great length in support of this application who has relied upon the affidavit and the rejoinder affidavit filed by his client. Sri Akhtar Hussain, learned A.G.A. has been heard on behalf of the State of U.P. who had filed counter affidavit sworn by Sri Udai Pratap Singh, Sub-Inspector, Police Station-Dhanari, District-Budaun.

The uncontroverted facts are that a dacoity was committed on 6-6-1978 when one Ram Charan Singh was looted around 10.30 A.M. between Babrala and Bhajohi villages falling within police station, Bhajohi, district Budaun. It is alleged that Ram Charan Singh had a riflle. a revolver and few cartridges at that time which were also looted. This case was duly registered at the policestation Bhajohi, Budaun and was duly investigated.

It transpires that on 25/26-12-1978 one Badshah was arrested by ''the police of Firozabad, Agra who divulged to the police that the applicant was having some looted property of the dacoity in Budaun referred to above. On the same day the house of the applicant was searched and it is said that a rifle and a gun were recovered from his house. It is not disputed that the gun recovered from the applicant''s house has been released in favour of the applicant''s father who was the licensed owner of the said gun but the rifle said to have been recovered was found to be the rifle looted in the dacoity case at Budaun referred to above.

Consequent upon the recovery of the rifle the Budaun case saw a charge-sheet u/s 412 IPC being filed against the applicant. But since the recovery of looted arm (looted rifle) was done at the residence of the applicant in district Agra a case u/s 25/27 of the Indian Arms Act was registered against the applicant where in Section 412 IPC was also added. This case was also charge--sheeted and came to be tried as Sessions Trial No. 134 of 1980 by XI Addl. Sessions Judge, Agra who by his judgment and order dated 1-3-1983 acquitted the applicant of all the charges. This judgment of acquittal has become final and no leave application or appeal has been filed by the State.

This argument of Sri Chaturvedi is that since the Sessions Judge at Agra has acquitted the applicant of the charges u/s 25/27 of the Arms Act as also u/s 412 IPC the applicant cannot be tried in Budaun for the same recovery which has been disbelieved.

It may be remembered that the evidence of recovery obviously depends upon the same eye-witnesses. Whatever statements they have made in the case at Agra, the prosecution should be taken to be bound by it and since those statements of the prosecution witnesses have been found insufficient to convict the applicant of the charges u/s 25/27 of the Arms Act and Section 412 IPC, the prosecuting Agency can not be permitted to produce evidence to disturb that finding of fact at a latter trial. In such cases the "Rule of issue estoppel" even in a criminal trial would apply where an issue of fact has been tried by a Court at an earlier occasion and the accused has been acquitted after recording a particular finding of fact, such finding should constitute an estoppel against the prosecution and would preclude the reception of evidence to disturb that finding of fact in a latter trial even for a different offence. It may be that the latter case may not strictly be covered within the meaning of Section 300 Code of Criminal Procedure but this would be governed by the rule of issue estoppel which relates only to the admissibility of the evidence which may be designed to up-set a finding of fact recorded by a competent court at previous trial. This view is fully fortified by a decision of Supreme Court in Manipur Administration v. Meera Singh AIR 1965 87.

In view of the aforesaid discussion this application succeeds and is allowed. Further proceedings in State v. Nadeem Case No. 780 of 1980, arising out of Crime No. 80 of 1978 of police station Bhajohi, district Budaun in the court of Judicial Magistrate II, Budaun are quashed. If the applicant is on bail, his bail bonds are discharged.