Andhra HC (Pre-Telangana)
D.R. Rao vs G. Somi Reddy And Ors. on 26 April, 1986
ORDER
1. This criminal revision case arises out of the petition filed before the Judicial First Class Magistrate, Kothagudem who dismissed the case being withdrawn pursuant to G.O.Rt. No. 3384 dated 15-12-1982. The facts culminating in this petition may be briefly stated :
2. The petitioner herein is the occupier and the Chief Personnel Manager of Bhadrachalam Paperboards Limited. The prosecution is launched for not notifying certain vacancies to the Employment Exchange in accordance with the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959. The Company is obligated to notify the vacancies as and when the vacancies arise. It is stated that the appropriate authority inspected the premises on 9-9-1981 and 10-9-1981 and after verification of the records, it is found that certain vacancies have not been notified. On the basis of this report, C.C. No. 270/82 is filed on the file of Xth Metropolitan Magistrate, Secunderabad with respect to certain managerial posts. Another case for not complying with the provisions of this Act has been filed as C.C. No. 639/82 before the Judicial First Class Magistrate, Kothagudem. The Government passed G.O.Rt. No. 3384 dated 15-12-82 wherein it is stated as follows :
"Government have decided that the prosecution launched against M/s. Bhadrachalam Paper Boards Limited in C.C. M.C. No. 270/82, on the file of Xth Metropolitan Magistrate Court, Secunderabad be withdrawn.
2. The Collector, Hyderabad District is requested to instruct the Law Officer attached to the concerned Court to take necessary action under S. 321 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974)."
3. In accordance with this G.O., the case before the Xth Metropolitan Magistrate, Secunderabad was withdrawn. At the time when the case was withdrawn at Hyderabad the summon in Kothagudem case, that is, C. C. No. 639/82 was not served. After the summons were served the case was taken up on file before the Judicial First Class Magistrate, Kothagudem. When the case is taken up, a petition has been filed stating that the case may be dismissed as withdrawn, pursuant to G.O.Rt. No. 3384 dated 15-12-82. The learned Magistrate declined to do so.
4. The learned Counsel for the petitioner Sri M. S. K. Sastry contends that the G.O. should be interpreted as a general one, applicable to the withdrawal of all cases with respect to the non-compliance of the provisions of Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 and therefore G.O.Rt. No. 3384 is applicable to the case C.C. No. 639/82 also. Even otherwise, it is contended that on the basis of the doctrine of issue estoppel the case has to be dismissed.
5. The G.O. is specific about the case pending before the Xth Metropolitan Magistrate as the case C.C.M.C. No. 270/82 has been specifically stated that the withdrawal of the case is confined and restricted to C.C.M.C. No. 270/82 only. The Government under the powers vested in it, has withdrawn that case and the withdrawal has been permitted by the Magistrate. Therefore, the G.O. directing the withdrawal and also permitting the withdrawal by the Magistrate is necessarily confined to that case only and it cannot be stretched to any other case though it may be identical or similar. It is true as contended by the learned counsel that both the cases before the Metropolitan Magistrate, Secunderabad and Kothagudem are identical and both the cases, have been filed on the basis of the verification of the records on 9-1-81 and 10-9-81 and both the cases relate to non-compliance of the provisions of the same Act viz., Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, by the Company. But, however, the identity of cases as such cannot be taken advantage of by the accused and the Government cannot be compelled to withdraw in a case where they have not chosen to withdraw. Therefore, I am unable to appreciate the initial contention.
6. The second contention pertains to the applicability of the rule as to issue estoppel. The rule as to issue estoppel is analogous to res judicata under S. 11, C.P.C. When a finding has been arrived at by a criminal Court in respect of a certain fact and if the identical fact arises for consideration in another case, the accused can press into service the prior decision. The rule as to issue estoppel is distinct from autrefois acquit. Autrefois acquit is founded upon the principle that for the same offence that accused cannot be prosecuted or tried and there cannot be double jeopardy. The rule as to issue estoppel comes into play when a finding of fact is arrived at by a Court on an appraisal of facts and circumstances and the adjudication of the same issue crops up for consideration in another case. The learned counsel for the petitioner referred to the decision of Supreme Court in Piara Singh v. State of Punjab, wherein the principle of issue estoppel has been considered and held as follows :-
"The principle of issue estoppel is different from the principle of double jeopardy or autrefois acquit as embodied in S. 403 of the Criminal Procedure Code. The principle of issue estoppel is a different principle, viz., 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 the terms of S. 403(2), Cr.P.C. 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. Thus any issue as between State and one of the accused persons in the same litigation cannot operate as binding upon the State with regard to the another accused."
Another decision relied upon by the learned counsel for the petitioner is T. V. Sarma v. R. Meeriah, wherein the Full Bench of this Court considered whether the Principle of issue estoppel can be pressed into service in a case where the proceedings were quashed by the High Court and whether the Magistrate can commence proceedings against the same accused for the offence in respect of which the proceedings are quashed. In the context of considering this aspect, the Full Bench held :
"The rule of issue estoppel is not the same as the plea of double jeopardy of autrefois acquit. It does not introduce any variation in the Cr.P.C. either in investigation, enquiry or trial. The rule of issue estoppel in a criminal trial is 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. But this principle would equally apply to an issue of law also. The principle of issue estoppel has been invoked in criminal cases in order to cover cases where the plea of autrefois acquit will not be available because the crime with which the accused is charged in the later proceedings may not be the same crime of which he was acquitted earlier. Yet it may be that the verdict of acquittal in the earlier proceedings might have been based on a finding, the consequence of which is that he must be acquitted of the charge in the later proceedings also. That is not autrefois acquit as the accused is not able to show that the crime charged is substantially the same crime on which a finding was given in the first verdict. Such a situation is covered by the principle of issue estoppel or res judicata."
The rule of issue estoppel can be taken advantage of in a situation when the finding in favour of the accused is arrived at on an appraisal of facts and circumstances on an identical issue in a former case. Whatever be the outcome in the prior case if the identical issue arises in both the cases the finding given in a prior case bars the adjudication of the same issue in a later case. The accused in whose favour the finding has been given in a former case can invoke rule of issue estoppel and the court is barred from considering the issue again. The rule of issue estoppel bears the pattern of res judicata under section 11 C.P.C. Though res judicata with all its ramifications may not apply but the essence of the doctrine applies and when the court is seized of the matter the finding in the issue cannot be reopened in a subsequent cause and the said finding is binding by operation of this doctrine. The operation of rule of issue estoppel is not linked with the outcome in the proceedings and the bar is confined to re-agitate or adjudicate when a finding is already arrived on identical issue as distinct from autrefois acquit applicable to the interdiction of a trial in succession in respect of the same offence ending in acquittal. As already stated the case was withdrawn pursuant to G.O. issued by the Government and there was no occasion for considering the matter in depth and landing in a finding and the applicability of rule of issue estoppel is totally excluded notwithstanding the identity of the facts. This is similar or analogous to the situation of withdrawing a cause or suit and in the absence of adjudication or finding the applicability of res judicata under section 11, C.P.C. is not appropriate.
7. In this view criminal revision case dismissed. It is open to the petitioner to approach the Government for appropriate orders if so advised.
8. Revision dismissed.