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Prakash Narayan Tripathi vs Sessions Judge, Karvi And Others

High Court Of Judicature at Allahabad|27 May, 1998


JUDGMENT S.K. Phaujdar and J.C. Misra, JJ.
1. The array of the parties indicate that the petitioner was really aggrieved by an order of a Magistrate and subsequently by an order of the Sessions Judge who had dismissed his revision application challenging the order of the Magistrate.
2. The facts behind the present petition were indicated in our order dated 30.4.1998 and we may state them in short again. The petitioner was an accused in a criminal case in which the co-accused persons stood the trial and were acquitted after evidence and the order of acquittal became final as it was not challenged in appeal. On that very F.I.R., the petitioner is now prosecuted upon a subsequent charge-sheet and the Court of first instance has issued non-bailable warrant of arrest against him.
3. It is submitted on behalf of the petitioner that when the prosecution relies on the same evidence as it had adduced before the Court below during the trial of the co-accused persons and which were disbelieved by the trial court, the same evidence could not be led against the petitioner being barred under the principle of issue-estoppel. It was further submitted that even if that the evidence be led it would end up in disbelieving the story again and the whole exercise of trial of the petitioner would be futile.
4. Facts have been placed before this Court to show that two applications under Section 482. Cr. P.C. were preferred by the petitioner against his proposed prosecution and. In the latest one, the point of abuse of process was taken up but was negatived by the High Court. On this aspect, we had made a query from the learned counsel for the petitioner whether a writ petition would lie against a decision of another wing of the High Court or. In other words, whether the writ jurisdiction of the High Court could be placed at a higher pedestal than its other jurisdiction. We had allowed time to the learned counsel for the petitioner and the learned A.G.A. to explain this situation and had adjourned the matter on 30.4.1993.
5. When the matter came up again, we did not get any explanation/ interpretation on the above question. The learned counsel for the petitioner simply submitted before us what was issue estoppel and how the prosecution would be debarred from adducing that evidence which was once "disbelieved" by the trial court.
6. Reliance was placed on the decision of the Supreme Court in Bhagat Ram's case, 1972 SCC (Cri) 751. The Supreme Court in this case had before it the case of a Police Inspector tried for an offence of conspiracy to extort bribe. Certain charges were framed against him and he was acquitted of all the charges. The same was the fate for his co-accused Ram Swaroop. The appeal against acquittal of Ram Swaroop was dismissed. There had been an appeal against acquittal of Bhagat Ram as well. The Hon'ble Judges of the Division Bench diferred in their opinion on the point whether the acquittal of Bhagat Ram for offences under Section 161. I.P.C. and Section 5(1)(a) of Prevention of Corruption Act should be maintained. The case was then piaced before a single Judge who held that both the accused persons were guilty of offences under Section 120A, I.P.C. punishable under Section 120B. I.P.C. As there had been an order of acquittal of Ram Swaroop by a Division Bench, his acquittal was not set aside but on the finding of the single Judge the acquittal of Bhagat Ram was set aside. The Supreme Court was approached by Bhagat Ram. The State came in appeal against the order of the acquittal of Ram Swaroop.
7. The Supreme Court was of the view that the third Judge could not open the matter for recording a conviction for offences other than Sections 161, I.P.C. and 5(1)(a) of Prevention of Corruption Act. It was observed that the principle of res judicata is also applicable to a criminal proceedings and it was not permissible in the subsequent stage of the same proceedings to convict a person for an offence in respect of which an order for his acquittal has already been recorded. The principle enunciated in Section 403. Cr. P.C. (old) were based upon the same wholesome principle as of res judicata. It was further held that once Ram Swaroop was acquitted in respect of charge relating to conspiracy, the charge against Bhagat Ram for conspiracy must necessarily fall to the ground.
8. Reliance was also placed on another decision of the Supreme Court in the case of Asud Khan. 1973 SCC (Cri) 1084. It was observed in this case, in relation to Section 403, Cr. P.C. that the principle of issue-estoppel was to the effect that 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 an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by law.
9. The third decision relied upon by the learned counsel for the petitioner stands in Shri Satish Mehra v. Delhi Administration and another, 1996 (33) All CrC 704. This case, however, does not deal with the problem posed before us.
10. The last case relied upon by the learned counsel for the petitioner stands in Yogesh Narain Dixit v. Superintendent, District Jail, Lakhimpur Kheri and others, 1996 U. P. CrR 241. It deals with the right of an accused to claim speedy trial. It was stated that the petitioner's case is hanging on for years together and the right of speedy trial is being denied to him. If this be the only grievance, there could always be a direction upon the Court below to conclude the trial within a time frame but it appears that the Court below has issued warrant of arrest against the present petitioner who is yet to appear. In our view, therefore, it is not the appropriate stage for directing a speedy trial.
11. On the question of issue estoppel or the principle of res judicata, we may look to the judgment of the trial Judge in relation to the co-accused persons. The accused persons who stood the earlier trial were acquitted as the trial Judge found that the case was not proved against them as the eyewitnesses had accepted that they did not see those persons opening fire. There is a reference in the judgment that trial was not being held in respect of Prakash Narayan. The judgment indicates that the complainant had spoken against Prakash Narayan although the other witness had not seen the firing.
12. In our view, when earlier trial ended in acquittal of the co-accused persons as the case was not proved against them, the judgment may not be read as res judicata for the prosecution debarring trial afresh for Prakash Narayan who had not faced the trial and for whom definite allegations were made by the complainant. The principle of issue estoppel may be applicable for the other witnesses who had denied to speak about the incident but not about Mata Prasad. In addition to our above finding, there is yet another question of law involved in the matter, and although we had posed the question to the learned counsel for the petitioner on 30.4.1998, we do not get any answer on that point, The petitioner had approached the Court against the order of the C.J.M. and the Sessions Judge in two applications under Section 482, Cr. P.C. and the Hon'ble Judge dealing with the second application under Section 482. Cr. P.C, had observed. "I do not agree with the contention of the learned counsel that the witnesses, who have not deposed against six co-accused, would not depose against the petitioner also. It cannot be presumed that the witnesses, who have not deposed against six co-accused persons, could not depose against the petitioner." it thus appears that the question now agitated before us was agitated before Court exercising powers under Section 482. Cr. P.C. and the point was answered against the petitioner. Section 482. Cr. P.C. Is one of the several powers that may be exercised by the High Court and Article 226 of the Constitution also empowers the High Court to take certain action under certain circumstances. When one wing of the High Court had been approached on the very particular point which is sought to be agitated now, it is not permissible to agitate another wing of the High Court with the same question as that would in our view go against the principle of resjudicata which is equally applicable to criminal proceedings also, A finality must be allowed to be reached by a decision of the High Court unless under any law, the matter is open to appeal before any other authority. To allow a writ petition to be filed after final decision by a High Court in exercise of powers under some statute would be opening a flood gate of litigation and allowing a party to begin de novo on a question which has already been settled by the High Court. If this is allowed, we would only get devastating results.
13. The writ petition stands dismissed.
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Prakash Narayan Tripathi vs Sessions Judge, Karvi And Others


High Court Of Judicature at Allahabad

27 May, 1998
  • S Phaujdar
  • J Misra