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(2) [1963] 3 All E.R. 510 (3) A.I.R. 1956 S.C. 415.

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

L/P(D)1 SCI--5(a) court even if at variance with one of this Court do not by themselves justify an application to reconsider an earlier decision of this Court. Besides, a close examination of the judgment in R. v. Connelly(1) through which learned Counsel for the State has taken us, does not disclose any dissent from the principle stated by Lord MacDermott. The entire case before the Court turned upon whether there had been a specific finding on an issue of fact-an issue directly raised regarding an ingredient of the offence charged at the later trial, when the accused was acquitted by the Court of Criminal Appeal in the former proceeding. Except that the Court did not expressly rule that the principle of issue- estoppel applied in England, no exception was taken to its soundness and the decision proceeded on the basis of the facts not justifying the application of the principle, the conditions not being fulfilled. Learned Counsel is, therefore, not well-founded in his submission that the principle underlying Sambasivam's(2) case was dissented from in R. v. Connelly(1). Besides, it should be pointed out that the principle underlying the decision in Pritam Singh's(3) case did come up for consideration before this Court on several occasions, but it was never dissented from though in some of them it was distinguished on facts. (See Banwari Godara v. The State of Rajasthan(4), Mohinder Singh v. State of Punjab(5) and Kharkan v. The State of Uttar Pradesh(6).

These two decisions in R. v. Connelly(1) and Gurcharan Singh v. State of Punjab(7) being out of the way, we shall address ourselves to the question as to whether what is termed "issue estoppel" which has been held by this Court in Pritam Singh's(3) case to be applicable to criminal proceedings is excluded by reason of the provisions of the Criminal Procedure Code. For this purpose learned Counsel invited our attention to s. 5(1) which enacts:

"All offences under the Indian Penal Code shall be investigated, inquired into, tried, otherwise dealt with according to the provisions hereinafter contained."

Speaking of this type of estoppel Dixon, J. said in The King v. Wilkes(1):

"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 issue on a second criminal trial of the same prisoner. That seems to be implied in the language used by Wright, J. in R. v. Ollis which in effect I have adopted in the foregoing statement........... 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. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a condition of affairs arises I see no reason why the ordinary rules of issue-estoppel should not apply. Such rules are not to be confused with those of res judicata, which in criminal proceedings are expressed in the pleas of autre fois acquit and autre fois convict. They are pleas which are (1) C.L.R. 511 at pp. 518-519.

It is, therefore, clear that s. 403 of the Criminal Proce- dure Code does not preclude the applicability of this rule of issue-estoppel. The rule being one which is in accord with sound principle and supported by high authority and there being a decision of this Court which has accepted it as a proper one to be adopted, we do not see any reason for discarding it. We might also point out that even before the decision of this Court this rule was applied by some of the High Courts and by way of illustration we might refer to the decision of Harries, C. J. in Manickchand Agarwala v. The State(3). Before parting, we think it proper to make one observation. The question has sometimes been mooted as to whether the same principle of issue-estoppel could be raised (1) [1950] A.C. 458. (2) 96 C.L.R. 62, 68-69. (3) A.I.R. 1952 Cal. 730.