Ponnuswamy and Another vs Venkatahchalam and Another

Ratnavel Pandian, J.—Accused 1 and 2 in C.C. 41 of 1974 on the file of the Judicial I Class Magistrate No. II, Salem have preferred this

revision petition, canvassing the correctness and propriety of the judgment of the learned Sessions Judge, Salem dated 13-3-1975, in C.A. 11 of

1975, confirming the judgment of the trial Magistrate dated 27-12-1974 convicting the first petitioner (accused-1) for offences under Sections 326

and 324, Indian Penal Code, and the second petitioner (accused-2] u/s 324, Indian Penal Code, and sentencing the first petitioner to suffer

rigorous imprisonment for six months u/s 326, Indian Penal Code (no separate sentence being passed u/s 324, Indian Penal Code) and the second

petitioner to suffer rigorous imprisonment for two months u/s 324, Indian Penal Code.

The crux of the indictment against these two petitioners and one Chinna Ponnu (who was accused-3 before the trial Court), based on the private

complaint preferred by the complainant (first respondent herein) is as follows : On 5-3-1973, at about 7.30 A.M. when the complainant was on his

way to Mettur from his house, accused-1 armed with a crow-bar, accused-2 armed with a koduval and accused-3 armed with a stick, obstructed

him and beat and cut him with their respective weapons. As a result of the attack made, the complainant (P.W. 1) sustained as many as ten

injuries, of which injuries 6 and 7 were grievous in nature vide Ex. P-4, the wound certificate issued by P.W. 5. When P.W. 2 intervened, he was

also beaten by accused-3 and sustained three injuries as described in Ex. P-5 issued by P.W. 5. P. Ws. 2 to 4 are the eye-witnesses to the

occurrence. As the village Munsif was not available in his house, P.W. 1 went to the police station, Salem Camp, and laid a complaint Ex. P-2

before the Head Constable. According to P.W. 1, this report Ex. P-2 was not read over to him, but his signature alone was obtained. Thereupon,

P. Ws. 1 and 2 were sent to the Government Hospital, Mettur, for treatment. As no action was taken by the police, P.W. 1 sent a petition under

Ex. P-1 to the Superintendent of Police and other officials. Subsequently, he also sent a complaint under Ex. P-3 dated 27-4-1973 before the trial

court, which complaint was sent to the Sub-Inspector of Police, Salem Camp, for investigation u/s 156(3), Criminal Procedure Code with a

direction that if the Sub-Inspector had laid a charge-sheet against the complainant also u/s 160, I.P. Code this complaint need not be registered,

and the Sub-Inspector was also directed to return the complaint to the court with a suitable endorsement. It is found from the evidence of D.W. 2,

the then Sub-Inspector of Police, Salem that a charge-sheet as against P.W. 1 and others was filed in Petty Cases Nos. 119 to 124 of 1973 u/s

160, Indian Penal Code, on 6-3-1973. Ex. D-4 is the charge-sheet in those petty oases. Subsequently, on the instructions of the Assistant

Superintendent of Police, D.W. 2 withdrew the petty cases and registered a case on the basis of Ex. P-2 in Crime No. 69 of 1973 of the said

police station for offences under Sections 323 and 325, Indian Penal Code, against the same three accused. After completing the investigation, a

charge-sheet was laid before the Judicial II Class Magistrate and it was pending before the said court in C.C. 2080 of 1973. Meanwhile, the

private complaint Ex. P-3 was taken on file by the Judicial I Class Magistrate No. II, Salem in C.C. 212 of 1973. Then, this case C.C. 212 of

1973 was transferred to the file of the Executive I Class Magistrate, Mettur, before whom it was pending trial. Subsequently, C.C. 2080 of 1973

was also transferred to the file of the same Executive I Class Magistrate, and this was numbered as C.C. 15 of 1973 on his file. The said

Magistrate, instead of disposing of both the cases simultaneously, tried C.C. 15 of 1973 and acquitted all the three accused. Thereafter, the case

on the private complaint was retransferred to the file of the Judicial First Class Magistrate, Salem, and re-numbered as C.C. 41 of 1974. This

ended in the conviction before the trial Magistrate and the same was confirmed by the lower appellate court as mentioned above.

It may be noted that the facts both in the police charge-sheeted case which ended in acquittal and in the case on the private complaint, which is

the subject-matter of this revision petition, are one and the same and based on the same occurrence between the same parties. Both the Courts

below have concluded that the principle of autrefois convict and autrrfois acquit, as adumbrated u/s 403, Cri.P.C. corresponding to Section 300 of

the new Code, will not be applicable to the facts of this case, as the trial of both the cases were simultaneously pending. At the time of the hearing

of the appeal, these two petitioners-appellants filed a petition in Cr. M.P. 155 of 1975 with the prayer to receive a certified copy of the judgment

made in C.C. 15 of 1973 by the Executive I Class Magistrate, Mettur, acquitting all the accused, and the said petition was allowed and the

document received and marked as Ex. D-5. Though the petitioners raised a contention that by the application of the principle of issue estoppel or

res judicata, the conviction by the trial court cannot be sustained, the lower appellate court without properly appreciating that contention, has

totally rejected this plea on the ground that the principle autrefois acquit will not be applicable to this case and confirmed the conviction.

Mr. Doraiswami, appearing for the petitioners, now raises the contention that the principle of issue estoppel or res judicata will squarely be

applicable to the facts of the present case and the petitioners are entitled to an acquittal.

The principle of issue estoppel or res judicata is different from the principle of ""double jeopardy"" or ""autrefois acquit"" embodied in Section 403

of the old Criminal Procedure Code corresponding to Section 300 of the new Code. Under this principle, 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 the accused, such a finding would constitute an issue estoppel

or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different and distinct offence, but as precluding

the reception of evidence to disturb the finding of fact when the accused is tried subsequently even for a different offence which might be permitted

by the terms of Section 403(2), old Criminal Procedure Code, corresponding to Section 300(2) of the new Code. It is clear that Section 403 does

not preclude the applicability of this rule of estoppel, which principle is supported by high authority and has received the approval of the Supreme

Court in several decisions vide Manipur Administration Vs. Thokchom, Bira Singh, , Lalta and Others Vs. State of Uttar Pradesh, , Ravinder

Singh Vs. State of Haryana, . The main object of the rule of issue estoppel is to prevent re-litigation 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 the same transaction, a trial has taken place and the

accused has 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 application of this principle. In

other words, the effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial will be that this verdict

will be binding and conclusive in all subsequent proceedings between the same parties to the adjudication on the same issue. The naxim res judicata

proveriate accipitur (a thing adjudicated is received as true) is no less applicable to criminal cases than to civil proceedings vide State of Andhra

Pradesh Vs. Kokkiliagada Meerayya and Another, and Pritam Singh and Another Vs. The State of Punjab, . This maxim is based on the principle

that no man ought to be twice vexed if it be proved to the court that it be for one and the same cause. Thus, it can be seen from the above principle

that if a man be brought and the merits of the question be discussed between the parties and a final judgment obtained by either, the issues between

the parties are concluded and therefore the parties cannot canvass the same question again in another action. Any objection or argument that may

be urged against the first trial, contending that the Court in that trial would have come to a different judgment had certain facts now available in the

second trial been placed before the first trial will not avail the complainant and such a contention cannot be a legal argument against the application

of this principle.

From the above facts, it is clear that the same issue between the same parties has already been agitated and concluded by the judgment of the

Executive First Class Magistrate, Mettur in C.C. 15 of 1973 at the time when the present case was pending on his file. Therefore, the principle of

issue estoppel or res judicata would clearly be attracted and the re-agitation in respect of the same offences between the same parties in C.C. 41

of 1974 would be barred. This, neither the trial Court nor the lower appellate court has observed.

In the light of the above discussions, I hold that the trial court in this case should not have entertained the trial of the present case at all. Thus, the

judgments of both the courts are liable to be set aside as they suffer from a manifest illegality and they are accordingly set aside.

The revision petition is allowed and the petitioners are acquitted of the offences which they stood charged.