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28. A Constitution Bench of the Supreme Court in Manipur Administration v. Thokchom Bira Singh considered the rule as to issue estoppel with reference to Section 403 Cr.P.C. 1898 and held that Section 403 does not preclude its application as regard the rule as to issue estoppel. 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, 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 Section 403(2). The rule is not the same as the plea of double jeopardy or autrefois acquit. The rule does not introduce any variation in the Code of Criminal Procedure either in investigation, enquiry or trial. It also does not prevent the trial of any offence as does autrefois acquit but only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before a court of competent jurisdiction. The rule thus relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court at a previous trial. Further, Section 403 Cr.P.C. 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 Supreme Court which has accepted it as a proper one to be adopted, there is no reason for discarding it. The decision rendered in Pritam Singh's case was affirmed. Both in the case of Article 20(2) of the Constitution as well as Section 26 of the General Clauses Act, it was held that, to operate as a bar the second prosecution and the consequential punishment thereunder, must be for "the same offence" ie., an offence whose ingredients are the same. The apex court addressed the question as to whether what is termed "issue estoppel" which has been held by that court in Pritam Singh's case, to be applicable to criminal proceedings is excluded by reason of the provisions of the Criminal Procedure Code. After considering the matter at length it was concluded by saying that Pritam Singh's case was rightly decided.

29. In Kharkan v. State of U.P. 1965 (1) Crl.L.J. 116 the applicability of Section 403 was considered by the apex court and held that the plea will arise when a person is tried again for the same offence or on same facts for any other offence under conditions attracting Section 236 or Section 237. When there are two different trials for distinct offences arising out of different transactions and common object in both the cases being different the acquittal in one does not bar conviction in another. It was also held that the plea of autrefois acquit which is recognised under Section 403 Cr.P.C. arises when a person is tried again for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236 or for which he might have been convicted under Section 237. It has to be noticed that in that case the accused were charged under Section 302 IPC read with Section 149 IPC for murder of one T. They were convicted under Section 325 read with Section 149 and some other provisions. There was another trial at which the accused were tried under Section 307 I.P.C. for causing hurt to one P with such intention and under such circumstances that if by that act they had caused his death they would have been guilty of murder and also under Sections 147 and 148 of the Penal Code for being members of an unlawful assembly. The trial resulting in the acquittal preceded the trial for murder. In appeal against the conviction the accused contended that their acquittal in the other trial operated as a bar against their conviction for murder. It was also contended that the earlier judgment involved almost the same evidence and the reasoning given in the judgment in P's case destroyed the prosecution case. It was held that the acquittal did not operate as a bar to the conviction of the accused for murder. The two offences were distinct and required separate charges. It was also held that the reasoning in the earlier judgment could not be relied upon as it proceeded on evidence which was recorded separately and separately considered. The earlier judgment could be admissible to show the parties and the decision but it was not admissible for the purpose of relying upon the appreciation of evidence. Since the bar under Section 403 Cr.P.C. did not operate, the earlier judgment was not relevant for the interpretation of evidence in the latter case.

42. A three Judges' Bench of the Supreme Court in Kharkan v. state of Uttar Pradesh considered the question where in two different trials for distinct offences arising out of different transactions and when common object in both cases are different, whether acquittal in one is a bar to convict in the other. It was held that the reasoning of judgment of acquittal not admissible as evidence. It was further held that a plea of autrefois acquit which is recognised under Section 403 Cr.P.C. arises when a person is tried again for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236 or for which he might have been convicted under Section 237. It was also held that the reasonings in the earlier judgment could not be relied upon as it proceeded on evidence which was recorded separately and separately considered. The earlier judgment could be admissible only if it fulfilled the conditions laid down in Sections 40-43 of the Evidence Act. The earlier judgment was admissible to show the parties and the decision but it was not admissible for the purpose of relying upon the appreciation of evidence. Since the bar under Section 403 Cr.P.C. did not operate, the earlier judgment was not relevant for the interpretation of evidence in the latter case. To operate as a bar under Section 403 Cr.P.C. a Constitution Bench of the Supreme Court in Thokchom Bira Singh's case to which reference has already made, held that Section 403 Cr.P.C. does not preclude the application regarding the rule of issue estoppel. 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, 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 Section 403(2). It was held that Section 403 Cr.P.C. embodies in statutory form the accepted English rule of autrefois acquit.

43. Therefore, in order to apply the principle of autrefois acquit as is applicable to India, it should be brought within the ambit of Section 403 Cr.P.C. On a reading of Section 403 Cr.P.C. it can be seen that the bar will apply only if it is shown that the petitioner had been tried earlier. In other words, only a judgment inter parties would be relevant within the meaning of Sections 40 to 43 of the Evidence Act to bar a second trial as contemplated under Section 403 Cr.P.C. If it is an issue estoppel necessarily it is only a rule of evidence that does not bar a trial.