Sampath vs Inspector of Police, Ammapet, Salem Dt.

Padmini Jesudurai, J.—The petitioner against whom P.R.C. 18 of 1981, is pending committal before the Judicial Second Class Magistrate,

No. III Salem, for an offence under S. 124-A, I.P.C. invokes the inherent powers of this court under S. 482 Code of Criminal Procedure, to

quash the above proceedings.

Cr. No. 383 of 1978 was registered with the respondent, against the petitioner and others, for an offence under S. 124-A I.P.C. on the

allegation that on 1-8-1979, at about 3-30 a.m, the petitioner and the co-accused attempted to post posters, which contained the recitals which

had the effect of bringing into hatred and contempt the Government established by Law in India and also excite disaffection towards the

Government. After investigation, a charge-sheet was filed against the petitioner and the two co-accused. Since the petitioner was absconding, the

case against him was split and after committal the case against the two co-accused was tried by the Sessions Judge, Salem, in Sessions case No.

125 of 1982. After trial, the co-accused were acquitted. On the petitioner being apprehended, the split up case, has been taken up for committal

enquiry and committal proceedings are to commence. At this stage, the petitioner has approached this court to quash the above proceedings

invoking the court''s inherent powers.

Thiru R. Sankarasubbu, learned counsel for the petitioner, contended that in view of the fact that the co-accused have been acquitted by a

competent court and the acquittal is in force the subsequent trial against the petitioner, is in violation of the principle of issue estoppel and as such

the proceedings have to be quashed. According to the learned counsel, learned Sessions Judge, in the case against the co-accused; has given a

finding that much reliance cannot be placed on the F.I.R. and the recovery also has not been established. It would not be open to the prosecution

in the trial against the petitioner, to lead evidence contrary to the above finding. The findings have become final and cannot be re-canvassed, in the

trial against the petitioner.

I am unable to accept the above contentions. For the rule of issue estoppel to apply, the first requirement is that the two proceedings must be

between the same parties. The oft-quoted pronouncement of Dixon J in King v. Wilke 77 C.L.R. 511, is as follows:-

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 view on a second criminal trial of the same prisoner.

The Supreme Court i Piara Singh Vs. The State of Punjab, after quoting the above passage and also referring to similar passages in other decisions

on the subject, held that the principle cannot be invoked when the parties are different. In the case before the Supreme Court, on the acquittal of a

co-accused (Nandlal Sehgal) the principle of issue estoppel was put forward by the convicted accused and the Supreme Court observed:-

....But the principle cannot be invoked in the present case because the parties are different and the decision upon any issue as between State and

Nandlal Sehgal to the same litigation cannot operate as binding upon the State with regard to the present appellant. For issue estoppel to arise,

there must have been distinctly raised and inevitably decided the same issue in the earlier proceedings between the same parties.

Dealing with a similar situation, again in Ravinder Singh Vs. State of Haryana, wherein also, as in the present case, another accused involved in

the same incident had been acquitted in a separate trial. It was contended that the rule of issue estoppel would apply against the convicted

accused. After discussing all the earlier decisions on that aspect, the. Supreme Court observed as follows:-

In order to invoke the rule of issue estoppel not only the parties in the two trials must be the same but also the fact-in-issue proved or not in the

earlier trial, must be identical with what is sought to be reagitated in the subsequent trial.

Holding that in the earlier case, the parties were the State and the accused Bhanu Parkash Singh and that in the case before the Supreme Court,

the parties were, the State and the accused Ravinder Singh, the Supreme Court observed that the rule of issue estoppel would not apply. The

above two decisions apply with all force to the instant case. In the earlier trial, the parties were the State as against Asokan and Veerappan

(acquitted accused) while in the present case, the parties are the State and the petitioner. I am unable to accept the contention of the learned

counsel for the petitioner.

In the result, this petition is dismissed.