ISSUE ESTOPPEL AND ITS APPLICATION IN

CRIMINAL CASES—A SHORT STUDY

THE PRINCIPLE of issue estoppel is of foreign origin and though

rarely used in the Indian courts, it secured its first recognised and autho-
ritative transplantation in the case of Pritam Singh v. State of Punjab.1
The field of criminal law has given it such a luxuriant growth in a short
span of time that now it may overshadow the field of justice.
What this principle stands for is succinctly stated by Dixon, J., in
King v. Wilkes2 as follows :

The law which gives effect to issue estoppel is not concerned

with the correctness or incorrectness of the finding which
amounts to an estoppel It is enough that an issue or issues
have been distinctly raised or found. Once that is done, then
so long as the finding stands, if there be any subsequent
litigation between the same parties no allegations legally
inconsistent with the finding may be made by one of them
against the other.

Lord MacDermott in Sambasivam v. Public Prosecutor, Federation

of Malaya? gives it a pleasant shape through his lucid expression that :

The effect of a verdict of acquittal pronounced by a competent

Court on a lawful charge and after a lawful trial is not
completely stated by saying that the person acquitted cannot
be tried again for the same offence. To that it must be added
that the verdict is binding and conclusive in all subsequent
proceedings between the parties to the adjudication.

This is the form frequently relied upon in support of the plea of

issue estoppel raised in a case and so we need a bit going back to examine
the quality of this imported seed. In an appeal from his conviction for
(a) possessing ammunitions and (b) carrying a fire arm, the accused was in
this case acquitted on the first charge but a retrial was ordered on the
second. In the retrial he was again convicted on his statement before
the police admitting possession of both ammunitions and a fire arm. The
Privy Council set aside the conviction with the above observation holding
that the finding of acquittal on the first charge disbelieving his statement
before the police being binding, the statement regarding the fire arm was not

1. A.I.R. 1956 S.C. 415.

2. 77. C.L.R. 51L.
3. (1950) A.C. 458 at 479.

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19731 ISSUE ESTOPPEL AND ITS APPLICATION IN CRIMINAL CASES 139

admissible in the second trial as it was impossible to sever the two. It

Was that 'binding' nature of the finding leading to the application of the
principle which is equally emphasised upon by Dixon, J., (quoted above"*
that this principle of estoppel controls the "re-litigation of issue...settled
by a prior litigation". So a finding, before it can be used as an estoppel,
must satisfy the requirements of being both 'prior' to the present case
and 'settled' finally either by exhausting the appeal or revision or by
lapse of time for the same. But if we stretch the 'finality' of such a
finding to the saying (relating to different aspect) that every decision is
final unless reversed in appeal, it may throttle the substantive justice out
of life. The problem of the application of this principle of estoppel is
no less hazardous, as we shall presently see, than that of the 'public
policy' which has characteristically been remarked as a 'very unruly
horse.'
The case of Gurcharan Singh v. State of Punjab1 may be cited as the
first instance. Gurcharan Singh (besides others) stood his trial for
murder in one case and under the Arms Act in the other for being in
unlawful possession of the gun belonging to the victim Arjan Singh. But
the two cases were tried by the same sessions judge, who, delivering both
the judgements on the same day, acquitted the accused in the Arms Act
case disbelieving evidence of recovery of the weapon; but convicted him
in the murder case believing the same evidence as true. In the appeal
before the Supreme Court it was argued on behalf of the convict that the
Hight Court ought to have taken into consideration the findings of the
sessions court in the Arms Act case that the convict was not in possession
of the gun, and the finding of the sessions court in the murder case regar-
ding recovery of the gun from him should not have been accepted. The
Supreme Court accepted in principle such application of the issue estoppel
by observing :
There is no doubt that if the order of acquittal under S. 19
(f) had been pronounced before the judgement in the principal
case was delivered, then in the latter case the prosecution will
not be entitled to contend that Gurcharan Singh was in illegal
possession of the fire arm. This position cannot be and is
not disputed.6

But this case fell beyond the reach of this estoppel as there was no
proof, nor there could have been, as to which of the two judgments was
pronounced first. Incidentally the number of the two cases in the file of
the sessions court—murder case being 88/93 and Arms Act case 89/94—
came to tilt the balance against this rule as the murder case was registered
prior to that of the Arms Act case and so the Supreme Court observed

4. A.I.R. 1963 S.C. 340.

5. Id. at 345.

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that prima facie,, the judgement in the murder case must have been deli-
vered first. This sort of complication arising out of the simultaneous
delivery of judgments in the companion cases by the sessions judge makes
us pause a little and enquire whether this rule of issue estoppel can go to
the extent of affecting the findings in su;h cases and, that too, by its
application for the first time in the appellant courts. But let us postpone
the answer to this query till we have seen some other phases of its
application.
The case of Mohinder Singh v. State of Punjab ,6 has a special interest
from our point of view. After the conviction of Mohinder Singh for
murder charge, on the allegation of shooting Dula Singh dead by a country-
made pistol, was confirmed by the High Court, but before the appeal in
the Supreme Court was filed, he was acquitted by the trial court in the
companion case under Arms Act. This afforded an opportunity for the
learned counsel of Mohinder Singh to raise the plea of issue estoppel
in the said appeal before the Supreme Court on murder charge asserting
the compliance of the requisites for the application of this rule (as indi-
cated before) by contending that the appeal before the Supreme Court was
a "proceeding subsequent to the acquittal." Though this contention was
negatived on the ground of priority of decision of conviction in the lower
court the Supreme Court also looked into the propriety of the correctness
of the finding of acquittal in the fire arms case by observing that :
That acquittal was recorded because the two search witnesses—
Sham Singh and Kehar Singh—resiled from their earlier state-
ments and the learned Magistrate did not think it necessary to
wait for the evidence of the police officer who investigated the
murder. From what has happened in this case, it is easy to
see that these witnesses who had stood firm before were won
over in the interval and deposed contrary to their earlier
versions and documents signed by them.7
This observation seems to militate against the statement of Dixon, J.,
quoted in the beginning that :
"The law which gives effect to issue estoppel is not concerned with
the correctness or incorrectness of the finding which amounts to an
estoppel "
The case of Karan Singh v. State of M. P.8 is another glaring example
of the attempt by the accused to apply this principle of estoppel despite
the parties being different and the findings of acquittal being subsequent
to the present case at the lowest level. After the acquittal of some persons,
the case remained confined to the allegation that Ramhans and Karan
Singh went armed with guns to a terrace and, while Karan Singh remained

6. A.I.R. 1965 S.C. 79.

7. Id. at 83.
8. A.I.R. 1965 S.C. 1037.

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1973] ISSUE ESTOPPEL AND ITS APPLICATION IN CRIMINAL CASES 141

standing with a gun by his side. Ramhans fired shots killing G and
injuring R, both sleeping on the terrace. Ramhans absconded and so trial
under section 307 and 302 I.P.C. read with section 34 I.P.C. (common
intention) of Karan Singh only proceeded and after being convicted he
preferred an appeal to the High Court. In the meantime Ramhans was
arrested and separately tried but acquitted by the sessions court. The
attempt of Karan Singh to get acquitted in appeal before the High Court
on the ground of the acquittal of Ramhans failed and the appeal before
the Supreme Court also remained unsuccessful. The Supreme Court
dismissed the appeal observing :

The principle of Sambasivam's case 1950 A. C. 468 has no

application here because the two cases we are concerned with
are against two different persons though for the commission
of the same offence.9
Now we need to answer the query posed before. The very application of
this rule of issue estoppel, in my opinion, in such cases is incongruous and
against the spirit of the rule which requires a finding clearly marked off by
its 'priority' in time and not a priority by lot and chance. As a matter of
principle it should generally be available to a party from the very court
of first instance. This is possible only when the finding to be utilised
as a bar is 'settled' by its finality before the second companion case
is taken up for hearing. If this condition is not fulfilled, the com-
panion cases will, losing their connection, have to be decided on their own
respective merits and evidence. It then cannot be said to be a 're-liti-
gation' of the issues, though common in both. If, on the other hand, the
finding of one case is allowed to be affected by the finding of another case
at the appeal stage despite the affecting finding being passed subsequent
to the finding in the lower court against which the appeal is pending, even
the provision for appeal in most of the cases will prove infructuous. For
the decision of the lower court in the related case, even though subse-
quently made, will be capable of governing the decision in appeal.
Likewise, prior finding in a case which is itself pending in appeal should
not be allowed to govern the subsequent trial and finding of the lower
court in the companion case, as the observation in Mohinder Singh's case
by way of retort indicates that :
The acquittal itself on a parity of reasoning could not be
granted by the Magistrate in view of the verdict of conviction
by the Sessions Court in the earlier trial without recording
evidence fully.10
Otherwise it will be a sheer wastage of time, energy and money of
the court and the public over this second trial and one will marvel at the

9. Id. at 1039.
10 Supra note 6 at 83.

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fate of litigation when the prior finding is reversed in appeal after the
second decision has lost its time for appeal.
The case of Lalta v. State of U.P.11 appears to have given a wide
application to this principle of estoppel. In the suit filed by Lalta against
Swaminath on the basis of a promissory note dated July 1, 1952, the report
of the Superintendent, Security Press, Nasik proved that the stamps affixed
on the handnote were for the first time printed only in December 1953.
This patent forgery therefore led the court to file a criminal case against
Lalta (and others) for offences under sections 467 (forging a valuable
security) and 471 (using a forged document) I.P.C. Lalta ultimalely took
the matter of his conviction before the Supreme Court with the main
contention that since he was previously acquitted in a criminal case filed
by Swaminath under section 384 I.P.C. for having obtained the impressions
on blank forms of pronotes, the rule of issue estoppel applied and the
second case under sections 467 and 471 I.P.C. must fail. The appeal was
allowed with the observation that :
If the rule of issue-estoppel is applied to the present case, it
follows that the charge with regard to forgery must fail against
all thj appellants. The reason is that the case of Swami Nath
is solely based upon the allegation that his thumb impressions
were obtained on blank forms of promissory notes and
receipts...If the finding of the Second Class Magistrate on this
issue is final and cannot be reopened, the substratum of the
present prosecution case fails...12
Thus it appears that the rule of issue estoppel was applied in the
present case in spite of the fact that in the former case under section 384
I.P.C. it was Swaminath who was the complainant while in the latter case
of forgery it was the court (civil judge) who was the complainant.
Assuming that the prosecutors were same in both the cases (the
state, in broader sense) the averment, if any, of this source of the thumb-
impression in the present complaint petition, will utmost be a fact very
remotely connected with the genesis of the forgery in the present case but
would not, with great respect, be the substratum of it. For, the present
prosecution hinges on the allegation that the pronote alleged by the
accused Lalta to have been executed in July, 1952 was in fact not executed
on the particular date, rather that it was ante-dalcd and so was forged, and
used with the knowledge of its having been forged. The evidence proving the
pronote to be forged was the report of the Superintendent, Security Press
Nasik and the guilt of Lalta (not of other persons charged for the offences)
was an inference drawn from such proved facts. Since the two incidents
of forcibly taking of the thumb-impression and forging the handnote are
separated by lapse of time and difference in places, the possibility of the
11. A.I.R. 1970 S.C. 1381.
12. Id. at 1384 (emphasis added).

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thumb-impression on the handnote having been obtained otherwise than by

the alleged incident of the first trial cannot be excluded and is reinforced by
the very acquittal. Even after discarding or disbelieving the allegations of
the prosecution about this specific source of thumb-impression, offered by
way of explanation as to how the accused came to possess the thumb
impressions, but based merely on guess, the main charges for having forged
and used the handnote remain unaffected. Hence the finding in the
previous trial that Lalta had not obtained thumb impressions on blank
forms, is not contradicted by the present finding that he had forged and
used the handnote in question. The issues were neither same nor similar.
Further, the charge for using this forged handnote knowing it to be forged
(section 471) stands totally disconnected from and independent of other
charges or allegations. Dixon J. in the Wilkes case may be quoted for
emphasising upon the "sameness" of 'issue' as the essential criterion for
the application of this issue estoppel, t b observed :

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. 13

The case of State of Andhra Pradesh v. Kokkiligade Meeriah1* is

another notable example. In this case Meerayya and Vankatnarayan
were tried and convicted for the offence of assaulting S. and V. In a prior
proceeding under section 107, Cr. P. C. in which these convicts were also
parties, the said occurrence of assault, alleged as one of the incidents of
the overt act, was found not proved. Hence the High Court set aside the
conviction of the accused persons by application (we may say misapplica-
tion) of the principle of issue estoppel. In the appeal by the state, however,
the Supreme Court set it right with the observation :

The rule of issue estoppel cannot in our judgment be extended

so as to prevent evidence which was given in the previous
proceeding and which was held not sufficient to sustain the
order for being used in support of a charge of an offence
which the state seeks to make out. The rule of issue estoppel
prevents re-litigation of the issue....In the present case, there
was no trial and no acquittal... 15

The court relied upon the following observation of Lord Morris of

Borlh-y-Gest-in Connelly s case :
There is no rule or principle to the effect that evidence which
has first been used in support of a charge which is not proved

13. Supra note 2 at 518-519.

14. A.I.R. 1970 S.C. 771.
15. W. at 775,

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may not be used to support a subsequent and different

16
charge

Thus it is not the evidence rather the finding on an issue based on

such evidence which acts as a bar to the accommodation of a contrary
finding on the same issue in subsequent litigations. The evidence are the
bricks, but not the proverbial 'brick' carried around by an ancient
Irishman as the sample for the house he had for sale. A brick is not the
house ; and it may be used to construct a new house.

As a plea by the prosecution

The case of Manipur Administration v. Bira Singh17 shows that
sometimes the question has been raised before, but not decided by
the Supreme Court as to whether this issue estoppel can be available
also to the prosecution against an accused. The argument against
its acceptance emphasises that the prosecution cannot secure conviction
of the accused on the basis of this finding but it has to succeed
only on the "evidence" adduced before the trying court. This sort of
argument tends to take this finding out of the category of 'evidence'. But
this is not a correct approach. For when a finding on a issue is used as
an estoppel by the defence, it is used only as an evidence of a fact as
found by a court. The impediment on the way of the prosecution for
such a use of a finding is unwarranted. The purpose of this estoppel is
to bind the parties to a finding on an issue by a competent court in a
lawful trial settled finally. The emphasis is on the effect of this finding
either accepted voluntarily by the accused as correct by not preferring
appeal against it, or being coerced involuntarily into such acceptance by
unsuccessful appeals. In the second trial, there is no lack of evidence
before the court on this point which is common in both. Firstly, because
the same evidence may also be adduced here. What is lacking then is the
discretion of the court in independently appraising the evidence so adduc-
ed due to the evidence having already hardened into a conclusive slab of
finding to be used as a readymade substitute. Secondly, the prior finding
may be put as evidence to prove the fact in issue. In both the contingen-
cies it is evidence, nontheless.
There is no apparent reason for exonerating the accused from this
legal disability tending towards the stability and finality in the litigation.
For this purpose, the kind of proof this rule of issue estoppel is prone to
offer does not appear to admit of any valid objection. For, this finding
is only on a few issues of the second case and cannot ordinarily be the
sole evidence to base a conviction or the decision of the whole case. It is
why this rule of issue estoppel is rightly distinct from the rule of res-

16. (1964) A.C. 1254 at 1325.

17. A.I.R. 1965 S.C. 87,

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judicata or 'double jeopardy' rule as observed by Dixon, J., in the Wilkes

case that:

Such rules are not to be confused with those of res judicata^

which in criminal proceedings are expressed in the pleas of
autrefois acquit and autrefois convict. They are pleas which
are concerned with the judicial determination of an alleged
criminal liability and in the case of conviction with the substi-
tution of a new liability. Issue estoppel is concerned with the
judicial establishment of a proposition of law or fact between
parties...which control the relitigation of issues which are
settled by a prior litigation.18

If on the other hand, the same evidence is the only evidence in the latter
case adduced for sustaining a different charge of the nature which under
section 236 Cr. P.C. the accused could very well have been charged with
in the previous trial either conjointly or alternatively, or if, even without
such charge, conviction could have been made by virtue of section 237
Cr. P.C. the trial on this distinct charge will be barred under section 403
(1) Cr. P.C. But this bar is not due to any defect in the nature and use
of such evidence and finding or any infirmity attached to the prosecution in
relation to such a use. It is rather the assumption of finding by the
previous court to the effect that this charge has been negatived by the court.
This is an inference by implication from the very findings of the previous
case used as an evidence. This implied findings provided in criminal
trials is the sister provision of section 11 explanation IV of the Civil
Procedure Code which reads :

Any matter which might and ought to have been made ground
of defence or attack in such former suit shall be deemed to
have been a matter directly and substantially in issue in such
suit.

Further, the evidence resulting in the finding of a conviction on a

particular charge in a trial does not lose its nature and character of being
still an evidence to be used for sustaining a different charge in a different
trial is also evident from the provisions of sub-section (3) of section 403
Cr. P.C. This enables the prosecution to use such evidence of the self
same acts of the accused which were the subject-matter of previous trial
for proving a distinct offence arising as the consequences of the said acts,
which either had not happened then or was not known to the court to
have happened. Likewise, sub-section (4) of it entitles the prosecution to
use the same acts of the accused which entailed his conviction on a charge
in a previous trial to prove a different offence of a kind which the previous

1$. Supra note Z at 519.

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court was not competent to try. Thus the scheme of section 403 Cr. P.C.
is indicative of the fact that the prosecution is given no less indulgence to
wield its attack, whenever possible, on the accused than the accused has the
right to shield himself from vexatious and unending jeopardy. Thus this
plea of issue estoppel can equally be availed of by the prosecution.
Ram Bhajan Rai*

* Munsif, Bihar Judicial Service.

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