MarcA 11

SUPREME COURT REPORTS [1964]

RAJKUMAR NARSINGH PRATAP SINGH DEO

STATE OF ORISSA AND ANR.

[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, J. c. SHAH,

N. RAJAGOPALA AYYANGAR ANDS. M. SIKRI, JJ.)

Khorposh Allowance-Sanad granted by Ruler of State- Discontinuance of cash allowance by Government of Orissa after merger-Validitv-Sanad, if law or executive act-Constitution of India), Arts. 366(10), 372--0rder 31 of 1948 issued by Government of Orissa, cl. 4{b ).

The Ruler of Dhenkanal State granted a sanad by way. of Khorposh allowance to his younger brother, the appellant giving certain lands and a maintenance allowance, under the customary law of the State. After the merger of that State to the Dominion of India which became effective on January 1, 1948, the Government of Orissa took over the administration of the State and discontinued the cash allowance. The appellant challenged the validity of the order of discontinuance by a suit in the Court of Subordinate Judge. The suit was dismissed. On appeal to this Court it was urged on behalf of the appellant that the sanad issued by an absolute monarch was law, and was continued by Arts. 366(10), 372(1) of the Constitution and cl. 4(b) of the Order 31 of 1948 issued by the Orissa Government in exercise of the power delegated to it by the Central Government under s. 3(2) of the Extra Foreign Jurisdiction Act, 1947.

Held: (i) It was not correct to say that in dealing with a grant m, ade by an absolute monarch any enquiry as to whether the grant was the result of an executive or legislative act was altogether irrelevant. This Court did not lay down any inflexible rule that the weli"I1eCClgnised jurisprudential distinction between legislative and executive acts was wholly irrelevant or inapplicable to such a case.

Ameer-un Nissa Begum v. Mahboob Begum, A.I.R. 1955 S.C. 352, Director of Endowments, Government of Hyderabad .v.

Akram Ali, A.I.R. 1956 S.C. 60, Madhaorao Phalke v. State of Madhya Bharat, [1961] 1 S.C.R. 957, Promode Chandra Deb v.

State of Orissa, [1962] Supp_ 1 S.C.R. 405, Tilkauat Shri Govindlalii Maharaj v. State of Rajasthan, [1964] 1 S.c:R. 561, Maharaja Shree Umaid Mills Ltd. v. Union of India, AI.R. 1963 S.C. 953 and State of Gujarat v. Vora Fiddali Badruddin Nithibarwala. [1964] 6 S.C.R 461, considered.

In such an enquiry it was necessary to consider such relevant factors as the nature of the order, its scope and effect, general setting and context and tire method adopted by the Ruler in promulgating it.

So judged, the Sanad in question had no legislative element in any of its provisions and was a gift pure and simple made in pursuanoe of the custom of the family and customai; r law of the State. The gift therefore, was an executive act of the Ruler and did not amount to law although the Ruler was discharging it his obligation under personal or customary law.

The gift being an executive act of the Ruler could be modifi- 1961 ed or cancelled by an executive act of the successor to the Ruler. R .k --;;- . 1 Th d. t' f t" h 11 ld t ff t th aJ umar .. arsmg' e iscon inuance o ue cas a o'\\oance cou no a ec e Pratap Singh Deo continuance of the customary law under cl. 4(b) of the Order of v. 1948 and Art. 372 of the Constitution. Nor could the plea of pay-State of or;"" and ment of such allowance even after the merger invalidate the Another discontinuance.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 133/

1963. Appeal from the judgment and decree dated November 17, 1960, of the Orissa High Court in First Appeal No. 45 of 1955.

M. C. Setalvad, R. K. Garg, M. K. Ra111a11111rthi, D. P.

Singh and S. C. Agarwala, for the appellant.

S. V. Gupte, Additional Solicitor-General of lndia, Ganapathy Iyer and R. H. Dhebar, for the respondents.

March 9, 1964. The judgment of the Court was delivered by

GAJENDRAGADKAR, C.J.-The principal point of iaw Gajendragad!w, C.J;. which arises in this appeal is whether the Sanad iSsued in favour of the appellant, Rajkumar Narsingh Pratap Singh Deo, by his elder brother, the Ruler of Dhenkanal State, on March 1, 1931, is existing law within the meaning of Art. .372 of the Constitution read with cl. 4(b) of Order No. 31 of 1948 issued by the respondent State of Orissa on January 1, 1948. This question arises in this way. The State of Dhenkanal which was an independent State prior to 1947 merged with the Province of Orissa in pursuance of a Merger Agreement entered into between the Ruler of Dhenkanal and the Dominion of India on December 15. 1947. This Agreement came into force as from January 1, 1948. In consequence of this Agreement the entire administration' of the State of Dhenkanal was taken over by the State of Orissa pursuant to the authority confered on it by the Central Government under s. 3 (2) of the Extra Foreign Jurisdiction Act, 1947 (No. 47 of 1947). After the Sanad in question was issued in favour of the appellant, he was getting a monthly allowance of Rs. 500 /- from the Dhenkanal District Treasury on the authority of a permanent Pay Order which had been issued in his favour by the Ruler of Dhenkanal on the basis of the said Sanad. This payment was discontinued by the respondent from !st of May, 1949 and the several representations made by the appellant to the various authorities of the respondent to reconsider the matter failed.

That is why he filed the present suit on September 26, 1951 in the Court of the subordinate Judge, Dhenkanal, alleging that the .act of discontin.uing te apellant's pension was illegal, and askmg for appropnate rehefs m that behalf. It is from this suit that the present appeal arises.

1964 The appellant's case is that in the family of the appellant,

Rajkumar Naraingh it has been recognied as a ustomary right .of the junior Pratap Singh Deo members of the family to receive adeqnate maintenance cons 10v. d sistently with the status of the family. Indeed, the appellant's '"''

0 A:,;;;:, an allegation is that this custom was recognised in Dhenkanal and . - enforced as customary law in the State. The grants made to GaJendraaadkar, C.J. the members of the Royal Family for their maintenance consisted of lands and cash allowances. These latter were described as Kharposh allowances and they were charged and paid out of the revenue of the former State of Dhenkanal. It was in accordance with this customary law that the Sanad in question was issued by the Ruler of Dhenkanal in favou~ of the appellant. By this Sanad, certain lands were granted to the appellant and a cash allowance of Rs. 500 /- per month was directed to be paid to him for life. The appellant's grieva.nce is that this grant of Rs. 500/- allowance has been discontinued by the respondent and that, according to the appellant, is an illegal and unconstitutional act. In support of his plea that the respondent was bound to continue the payment of the cash allowance, the appellant urged in his suit that the grant was a law within the meaning of Art. 372 and as such, it had to be continued. He also alleged that after the merger of Dhenkanal with Orissa, his right to receive the grant was recognised by the respondent and acted upon; and that is another reason why he claimed an appropriate relief in the form of an injunction against the respondent. Several other pleas were also taken by the appella.nt in support of his claim, but it is not necessary to refer to them for the purpose of the present appeal.

The respondent denied the appellant's claim and urged that having regard to the nature of the grant on which the appellant has rested his case, it was competent to the respondent to discontinue the grant. The grant in question is not law under Art. 372 and just as it could be made by the Ruler in 1931 by an executive act. it can be discontinued by the respondent by a similar executive act since the respondent is the successor of the Ruler. It was also urged by the respondent that the appellant's allegation that the respondent had recognised and agreed to act upon the grant of cash allowance, was not well-founded. Both the learned trial Judge who tried the appellant's case, and the High Court of Orissa before which the appellant took his case in appeal, have, in the main, rejected the appellant's contention, with the result that the appellant's suit has been dismissed. The appellant then applied for and obtained a certificate from the High Court and it is with the certificate thus granted to him that he has come to this Court in appeal.

The first. and the main point which Mt. Setalvad for the appellant has urged before us is that the Sanad on which the appellant's claim is founded, is la.w. At t!ie time when the -

Sanad was granted, the Ruler of Dhenkanal was an absolute 1964 monarch and in him vested full sovereignty; as such absolute Rajkumar N arsingh sovereign, he was endowed with legislative, judicial and exe- Pratap Singh Dea cutive powers and authority and whatever order he passed v. d 1 I h f b 1 h h Stateo/Orissaand amounte to aw. n t e case o an a so ute monarc w ose AnotMr word is literally law, it would be idle, says Mr. Setalvad, to -- distinguish between binding orders issued by him which are Gajendragadkar, C.J. legislative from other binding orders which are executive or administrative. All binding orders issued by such a Ruler are, on the ultimate analysis, law, and the Sanad in question falls under the category of such law.

In support of this argument, Mr. Setalvad has referred us to the definition of the words "existing law" prescribed by Art. 366(10) of the Constitution. Art. 366(10) provides that "existing law" means any law, ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a, law, ordinance, order, bye-law, rule or regulation. Basing himself on this definition, Mr. Setalvad also relies on the provisions of Art. 372(1) which provides for the continuance in force of existing laws; this continuance is, of course, subject to the other provisions of the Constitution and it applies to such laws as were in force in the territory of India immediately before the commencement of the Constitution, until they are altered, repealed or amended by a, competent Legislature or other competent authority.

These provisions are invoked by Mr. Setalvad primarily by virtue of cl. 4(b) of Order 31 of 1948 issued by the respondent on the lst'of January, 1948. It is well-known that by s.3(1) of the Extra Foreign Jurisdiction Act, the Central Government was given very wide powers to exercise extra provincial jurisdiction in such manner as it thought fit. Section 3(2) provided that the Central Government may delegate any such jurisdiction as aforesaid to atiy officer or authority in such manner and to such extent as it thinks fit. The width of the powers conferred on the Central Government can be properly appreciated if the provisions of s. 4 are taken into account.

Under s. 4(1Y: the Central Government was authorised by Jlotification in the Official Gazette to make such orders as may seem to it expedient for the effective exercise of the extraforeign jurisdiction of the Central Government. Section 4(2) indicates oy els. (a) to (d) the categbries of orders which can be passed by the Central Government in exercise of its jurisdiction. The sweep of these powers is very wide and they had to be exercised in the interests of the proper governance of the areas to which the said Act applied. Under s. 3(2), the Central Government had delegated its powers to the Province of Oriss.1 in respect of States which had merged with it, and it was in exercise of its powers as such delegated that Order 3 I of 1948

1964 was issued by the Province of Orissa (now the respondent).

llajkuma-; N,,,.1ngh Cl. 4 of the Order dealt with the question of the laws to be Pmtap Singh Deo applied to the merging areas. Cl. 4(a) referred to the enact-

0•·. d ments specified in the first column of the Schedule annexed to Stale of """'an d d h l" bl . d' d . "t CJ 4(b) Anoth.r the Order an ma e t em app 1ca e as m 1cate m 1 . • . - provided that as respects those matters which are not covered Oa1endrag.•dkar, C.J. by the ena.ctments applied to" the Orissa States under sub-para (a), all Jaws in force in any of the Orissa States prior to the commencement of this Order, whether substantive or procedural and whether based on custom and usage, or statutes, shall, subject to the provisions of this Order, continue to remain in force until altered or amended by an Order under the Extra. Provincial Jurisdiction Act, 1947. There is a proviso to this sub-clause to which it is unnecessary to refer. The argument is that by virtue of cl. 4(b) of this Order, \h•! customary law prevailing in the State of Dhenkanal prior to its merger continued to operate as law in the territory of Dhenkanal and that is how it is operative even now, beca.use it has not been repealed or amended. Since the Sanad issued in favour of the appellant is, according to the appellant's case. law, there would be no authority in the respondent to cancel the payment of cash allowance to the appellant merely by an executive order.

If the respondent wants to terminate the payment of the cash allowance to the appellant, the only way which the respondent can legitimately adopt is to fllake a Jaw in that behalf, or issue an order under cl. 4(b) of the Order. That, broadly stated, is the argument which has been pressed before us by Mr. Setalvad.

We do not think that the basic assumption made by Mr. Setalvad in presenting this argument is sound. It would be noticed that the basic assumption on whiCh the argument is based is that in the case Of an absolute monarch, there can be no distinction between executive and legislative orders. In other words, it is assumed that all orders which are passed by an absolute monarch, are binding, and it is idle to enquire whether they are executive or legislative in character, because no uch distinction can be made in regard to orders issued by an absolute monarch. It is true that the legislative. executive and judicial powers are all vested in an absolute monarch; he is the source or fountain of all these powers and any order made by him would be binding within the territory under his rule without examining the question as to whether it is legislative, executive or judicial; but though all the three powers are vested in the same individual, that does not obliterate the difference in the character of those powers. The jurisprudential distinction between the legislative and the exe<; utive powers still remains, though for practical purposes, an examination about the character of these orders may serve no useful purpose. It is not as if where absolute monarchs have sway in

7 S.C.R.

SUPREME COURT REFORTS 117

their kingdoms, the basic principles of jurisprudenc~ whic~ 1964 distinguish between the ~re~ categories of powers are mapph- Rajkumar Nar<ingh cable. A careful exammatlon of the orders passed by an Pratap Singh Deo absolute monarch would disclose to a jurist whether the power v •. . . . . · d · d" ·, 1 Slateo/Orisaaand exercised m a given case by 1ssumg a giyen or er 1s JU c1~ , Another legislative or executive, and the conclusion reached on Juns- - prudential grounds about the nature of the order and the Gl\iendragadk.,, O.J. source of power on which it is based would nevertheless be true and correct. That, indeed, is the approach which must be adopted in considering the question as to whether the grant in the present case is law within the meaning of Art. 372 as well as cl. 4(b) of Order 31 of 1948; and so, prima facie, it does not seem sound to suggest that in the case of an absolute monarch, that branch of jurisprudence which makes a distinction between three kinds of power is entirely inapplicable.

In dealing with this aspect of the matter, it is hardly necessary to examine and decide what distinguishes a la~ from an executive order. A theoretical or academic discuss10n of this problem would not be necessary for our present purpose, because all that we are considering at this stage is whether or not it would be possible to consider by reference to the character of the order, its provisions, its context and its general setting whether it is a legislative order or an executive order.

Though theorists may not find it easy to define a law as distinguished from executive orders, the main features and characteristics of law are well recognised. Stated broadly, a law generally is a body of rules which have been laid down for determining legal rights and legal obligations which are recognised by courts. In that sense, a law can be distinguished from a grant, because in the case of a grant, the grantor and the

grantee both agree about the making and the acceptance of the grant; not so in the case of law. Law in the case of an absolute monarch is his. command which has to be obeyed by the citizens whether they agree with it or not. Therefore, we are incline~ to hold tht Mr. Setalvad is not right in making the unqualified content10n that while we are dealing with a grant made by abs?lute monarch, it is irrelevant to enquire

whthe~ the !!1'1nt 1s the result of an executive action, or a legJSlative a.ctlon. On Mr. Setalvad's contention, every act of the absolute monarch and every order passed by him would ome la':" though the act or order may have relation exclu- SJVely to his personal matters and may have no impact on the

pu, hc at lage. h~.t i~ why it is unsound to suggest that the 1unsp.rudent1al d1stinchon between orders which are judicial executive or legislative or in relation to purely individual and personal matters should be treated as irrelevant in dealing with Acts or orders passed even by an absolute monarch.

Realisi_ng the dculty in his way, Mr. Setalvad has

trongly. relied on certain decisions of this Court which accordm11 to him, support the broad point which he has raised before

1964 us. It is, therefore, necessary to examine these dech:ions. The Rajk,.mar Narsinqh first case on which Mr. Setalvad relies is that of Ameer-un- Pratap Singh Deo Nissa Begum v. Mahboob Begum('). In that case, this Court State of~;;,,,. and was called upon to consider the validity of the Firman issued

Anoth.r by the Nizam of Hyderabad on the 19th February, 1939, by

0 . nd odk 0 J which a Special Commission had been constituted to investi-

•J' rag •r, gate and submit a report to him in the case of succession to a deceased Nawab which was transferred to the commission from the file of Darul Quaza Court. Dealing with the question as to whether the Firman in question was passed by the Nizam in exercise of his legislative power or judicial power, Mukherjea, C.J., speaking for the Court, observed that the Nizam was the supreme legislature, the supreme judiciary and the supreme head of the executive and there were no constitutional limitations upon his authority to act in any of these capacities. He also observed that the Firmans were expressions of the sovereign will of the Nizam and they were binding in th•~ same way as any other law; therefore so long as a particular firman held the field, that alone would govern or regulate the rights of the parties concerned, though it could be annulled or modified by a later Firman at any time that the Nizam willed. It appears, however, that the learned counsel appearing in that case did not argue this point, and so, the question as to whether it would be possible or useful to draw a line of demarcation between a Firman which is legislative and that which is exf:cutive, was neither debated before the Court, nor has it been examined and decided as a general proposition of law.

In The Director of Endowments, Government of Hyderabad v. Akram Ali('), similar observations were repeated by Bose, J., who spoke for the Court on that occasion. Dealing with the Firman issued by the Nizam on the 30th December,

1920, which directed the Department to supervise the Dargah until the rights of the parties were enquired into and decided by the Civil Court, it was observed that the Nizam was an absolute sovereign regarding all domestic matters at the time when the Firman was issued and his word was law. That is how the validity of the Firman was not questioned and it was held that its effect was to deprive' the respondent before the Court and all other claimants of all rights to possession pending enquiry of the case.

In this case again, as in the case of Ameer-un-Nissa Begum('), the point does not appear to have been argued and the observations are, therefore, not intended to lay down a broad or general proposition as contended by Mr. Setalvad.

That takes us to the decision in the case of Madhaorao Phalke v. The State of Madhya Bharat('). On this occasion, this Court was called upon to consider the question as to

(') A.LR. 1955 S.C. 352.

(') A.I.R. 1956 S.C. 60

(') [1961] I S.C.R. 957.

whether the relevant Kalambandis issued by the Ruler of 1964 Gwalior constituted law, 'Or amounted merely to executive Rajkumar NaT<iog~ orders. In the course of the judgment, the passages in the two Pratap Singh Deo cases to which we have just referred were, no doubt, quoted; State of Ori"a and. but the ultimate decision was based not so much on any gene Another ral ground as suggested by Mr. Setalvad, as on the examina . wJ - tion of the character of the Kalambandis themselves and other GaJe 'O!Jrsdkar, O.J relevant factors. If Mr. Setalvad's argument be well-founded and the Kalambandis had to be treated as law on the broad ground that they were orders issued by an abso_lute monarch, it would have been hardly necessary to consider the scope and effect of the Kalambandis, the manner in which they were passed, and the object and effect of their scheme. In fact, these matters were considered in the judgment and it was ultimately held that "having regard to the contents of the two orders and the character of the provisions made by them in such a detail ed manner, it is difficult to distinguish them from statutes or Jaws; in any event, they must be treated as rules or regulations having the force of law". That was the finding made by the High Court ahd the said finding was affirmed by this Court.

Therefore, though this judgment repeated the general observa lions made by this Court on two earlier occasions, it would be noticed that the decision was based not so much on the said observations, as on a' careful examination of the provisions contained in the Kalambandis themselves.

In Promod Chandra Deb v. The State of Orissa('), this Court has held that the grant with which the Court was con cerned, read in the light of Order 31 of the Rules, Regulations and Privileges of Khanjadars and Khorposhdars, was law. Jn discussing the question, Sinha, C.J., has referred to Order 31 of the Rules and Regulations and has observed that like the Kalambandis in the case of Phalke('), the said Rules has the force of law and would be existing law within the meaning of

rt. 372 of the Constitution. This case does not carry the posi t1on any further except that the same general observations are reproduced. In the case of Tilkayat Shri Govindlalji Maharaj v. Stat• of Rajasthan('), while dealing with the question as to whether the Firman issued by the Udaipur Darbar in 1934 was law or not, this Court examined the scheme of the said Firman C'Onsidered its provisions, their scope and effect and came t~ the -onclusion tha~ it was law. Having thus reached the co!\- clus1on that the Frrman, considered as a whole, was Jaw the general observtions on which Mr. Setalvad relies were rpro ..

uced. But as m the case of Phalke('), so in this case, the decis10n. does , not apix:ar. to be based on any general or a priori

CO~Jderation, but It IS J>ased more particularly Oll the exami nation of the scheme of the Firman and its provisions.

((') [1962] Supp. I S.C.R 405, 410.

(') [1961] 1 SC R 957

') [1964) 1 S.C.R 561. . . .

1964 In the case of Maharaja Shree Umaid Mills Ltd. v. Union Rajk,.mar Nars; ng1, of India('), a similar question arose for the decision of this_

Pratap Singh Deo Court in regard to an agreement made on the 17th of April, State of i"a and 1941. The point urged efore the Court was that the said agree-

Anoter ment was law, and rehance was placed on the several general -- observations to which we have alreadv referred. S. K Das. J.

Gajendragadkar, C.J. who spoke for the Court examined the said observations and the context in which they were made and rejected the plea that the said observations were intended to lay down a general proposition that in the case of an absolute monarch, no distinction can be made between his legislative and his executive acts.

In the result, the agreement in question was held to be no more than a contract which was an executive act and not a law within the meaning of Art. 372.

The same view has been recently expressed by Hidayatullah, Shah and Ayyangar, JJ. in the judgments respectively delivered by them in The State of Gujarat v. Vora Fidda/i Badruddin Mithibarwala(').

Therefore, a close examination of the decisions on which Mr. Setalvad relies does not support his argument that this Court has laid down a general proposition about the irrelevance or inapplicability of the well-recognised distinction between legislative and executive acts in regard to the orders issued by absolute monarchs like the Raja of Dhenkanal in the present case. The true legal position is that whenever a dispute arises as to whether an order passed by an absolute monarch represents a legislative act and continues to remain operative by virtue of cl. 4(b) of the Order, all relevant factors must be considered before the question is answered; the nature of the order, the scope and effect of its provisions, its general setting and context, the method adopted by the Ruler in promulgating legislative as distinguished from executive orders, these and other allied matters will have to be examined before the character of the order is judicially determined, and so, we arc satisfied that Mr. Setalvad is not right in placing his argu ment as high as to say that the Sanad issued in favour of the appellant by the Raja of Dhenkanal must be held to be law without considering the nature of the grant contained in it and other relevant circumstances and facts. We must, therefore. proceed to examine these relevant facts. ,..._

Let us then examine the Sanad. It consists of three clauses_ The first clause refers to the practice in the State of Dhenkanal under which the Rajas made grants in hereditary rights to their relatives. and it adds that there exists a patent necessity for making an adequate provision for the .grantee.

<'> A.LR. 1963 s_c. 953.

(') [19&)] 6 S.C.R. 461.

the appellant, to enable him to maintain his dignity as a Raj- 1964 knmar of the Stat~ and to maintain imsel~. his famy. his .eirs Rajkumar Naraingh and descendants m a manner befittmg his and therr pos1tton. Pratap Si09h Deo

Tht is w.hY out o~ love and affection for him, the grantor made BtaJe 0";;.,. ana the khan1a grant m the shape of a monthly cash allowance of >/Another Rs. 500 Ifor his life time and also an assignment of land . - measuring 6942-71-5 acres specified in the Schedule attached Gaienrlragadkar, C.J. to the Sanad. The grant of the said land has been made heritable and the grantee has been authorised to enjoy it from generation to generation. The extent of the grant is also clarified by additional clauses which it is unnecessary to mention.

Clause 2 of the Sanad imposes the condition of loyalty on the grantee and bis heirs; and by cl. 3 the State undertook to bear all costs for reclaiming the land covered by the grant with a view to render it fit for cultivation.

Now, it is plain that there is no legislative element in any of the provisions of this grant. It does not contain any command which has to be obeyed by the citizens of the State; it is a gift pure and simple made by the Ruler in recognition of the fact that under the custom of the family and the customary law of the State, he was bound to maintain his junior brother.

The grant, therefore, .represents purely an executive act on the part of the Ruler intended to discharge his obligations to his junior brother under the personal law of the family and the customary law of the State. It would, we think be idle to suggest that such a grant amounts to law. It is true that partly it is based on the requirement of personal and customary law; but no a, ction taken by the Ruler in discharging his obligations under such personal or customary law can be assimilated to an order issued by him in exercise of his legislative authority.

Therefore, we have no diflj.culty in holding that the Sanad in question is a purely executive dCt and cannot be regarded as la.w as contended by Mr. Setalvad.

It was then faintly argued by Mr. Setalvad that the obligation undertaken by the Ruler was recognised by the respondent, and so, it could not lie cancelled by the respondent merely by an executive act. In our opinion, there is no substance in this argnment. If the act by which the grant was made was a purely executive act on the part of the then Ruler of the State of Dhenkanal, we do not see how it can be legitimatelv urged that the terms of the grant cannot either be modified, or the grant cannot be cancelled altogether by ail executive act of the respondent which is the successor of the Ruler. As we have just indicated, the customary law which required the

Rler to provide maintenance for his junior brother, can be said to have been continued by cl. 4(b) of the Order of 1948 and t. 372 of the onstit.ution; ut to say that the customary law m that behalf 1s continned 1s very different from saying that the amount of maintenance fixed by the grant cannot be

1964 varied or altered. Wha.t the respondent has done is to stop the

Rojkamar s .. rsingh payment of cash alloance of Rs. 500/- per month _and that

Pratap Singh Dro does not mean alteration of the Jaw. It 1s common ground that

8 . the grant of the land covered by the Sanad has not been distatc ~";,~::: "'"1 turbed, and so, all that the impugned action of the respondent - amounts to is to reduce the total maintenance allowance grant- Gajendrngadkar. C.J. ed to the appellant by the Ruler in 1931. It is plain that though the customary law requiring provision to be made for the maintenance of the appellant is in force, the respondent has the right to determine what would be adequate and appropriate maintenance, and this part of the right is purely executive in character. It would, we think, be unreasonable. to suggest that though the Sanad is not law, the amount granted by the Sanad cannot be modified by an executive act of the respondent, and that the respondent must file a suit for that purpose. All that the customary law requires is the making of a suitable provision for the maintenance of the junior members of the family. But wha.t is adequate provision in that behalf will always be a question of fact which has to be determined in the light of several relevant factors; the number of persons entitled to receive maintenance, the requirements of the status of the members of the family, the total income derived by the family, and other commitments, may all have to be weighed in deciding the quantum of maintenance which should be awarded to anyone of the junior members. In fact, both the Courts below have agreed in holding that having regard to the relevant fact~. the grant of the land made by the Sanad would be adequate and appropriate for the maintenance of the appellant. ·

But apart from this aspect of the matter, we do not see how the appellant can seriously quarrel with the validity of the respondent's action in discontinuing the payment of cash allowance to him. The plea tha.t payment was made for some time after the merger can hardly avail the appellant in contending that the discontinuance is invalid. In the very nature of things, the respondent could not have decided whether the cash allowance should be continued to the appellant or not without examining the merits of the case, and since a large number of such cases had to be examined after merger, if the payment continued to be made in the meantime, that cannot give any valid ground to the appellant to challenge the legality of the ultimate decision of the respondent to diswntinue the payment of the said allowance.

The result is, we confirm the decision of the High Court, though on somewhat different grounds. The appeal according' ly fails and is dismissed. There would be no order as to costs.

Appeal dismissed

RAJKUMAR NARSINGH PRATAP SINGH DEO

P. B. GAJENDRAGADKAR, C.J.

K. N. WANCHOO, J.

c. SHAH

Constitution of India

Arts. 366(10), 372

cl. 4

Dominion of India

January 1, 1948

Government of Orissa

Arts. 366(10), 372(1)

cl. 4(b)

Orissa Government

Central Government

s. 3(2)

Extra Foreign Jurisdiction Act, 1947

Akram Ali

[1961] 1 S.C.R. 957

[1964] 6 S.C.R 461

Pratap Singh Deo

cl. 4(b)

Art. 372

R. K. Garg

M. K. Ra111a11111rthi

D. P.

Singh

S. C. Agarwala

S. V. Gupte

Ganapathy Iyer

R. H. Dhebar

GAJENDRAGADKAR

iaw Gajendragad!w

Rajkumar Narsingh Pratap Singh Deo

cl. 4(b)

State of Dhenkanal

Orissa

December 15. 1947

State of Dhenkanal

State of Orissa

s. 3

Extra Foreign Jurisdiction Act, 1947

Dhenkanal District Treasury

!st of May, 1949

September 26, 1951

Rajkumar Naraingh

GaJendraaadkar

Art. 372

Dhenkanal

Orissa

Art. 372

High Court of Orissa

Setalvad

Rajkumar N arsingh

Pratap Singh Dea

Art. 366(10)

Art. 366(10)

Art. 372(1)

India

cl. 4(b)

Section 3(2)

s. 4

Jlotification

s. 3(2)

Cl. 4

Cl. 4(a)

Provincial Jurisdiction Act, 1947

cl. 4(b)

cl. 4(b)

Art. 372

cl. 4(b)

Rajk,.mar Narsinqh

Nizam

Mukherjea

Bose

30th December,

1920

Ameer-un-Nissa Begum

Sinha

Udaipur Darbar

Phalke

[1961] 1 SC R 957

[1964) 1 S.C.R 561

S. K Das

Gajendragadkar

Art. 372

Hidayatullah

Shah

Ayyangar

cl. 4(b)

Gaienrlragadkar

Clause 2

cl. 3

cl. 4(b)

Rojkamar

Pratap Singh

Gajendrngadkar


7 S.U.R

SUPREME COURT REPORTS 123

MANIPUR ADMINISTRATION

THOKCHOM, BIRA SINGH IP. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, K. c. DAS

GUPTA, J. C. SHAH AND N. RAJAGOPALA AYYANGAR, JJ.] Criminal Trial-Accused acquitted in previous trial-On same facts a subsequent !rial initiated-Subsequent court whether debarred from receiving the same evidence on the principle of issue-estoppe!-<.::ode of Criminal Procedure 1898, (Act 5 of 1898) s. 403.

In the present case, the trial coµrt held the respondent guilty ~1' the o'fences under ss. 333, 3123 and 440 all read with s. 149, Indian Penal Code. It was alleged by the prosecution that the respondent Bira Singh was a member of the unlawful assembly which was formed between 3 and 5 p.m. on 25th April 1960, in contravention of the promulgation of the order under s. 144 of the Code of Criminal Procedure. As a member of the mob he was alleged to have pelted stoll€s at police officers. The respondent pleaded in his defence that the present trial was barred by s. 403, Criminal Procedure Code by reason of the acquittal of the accused under s. 188, Indian Penal Code on July 30, 1960. The Trial court did not accept his defence and convicted him. On appeal, the Judicial Commissioner accepted the defence of the. respondent and acquitted him on the bas's of the decision of this court in Pritam Singh v. Stat~ of Punjab. Before the trial of the present case, a complaint was filed against the .respondent on May 12, 1960 und€r s. 188 I.P.C. In that complaint the District Magistrate alleged that the respendent had disobeyed the order passed under s. 144 by forming himself alongwith other persons into an unlawful assembly between the hours of 3 and 5 p.m. on April 25, 1960. In that case the trial court convicted him of the offence charged and sentenced him to rigorous imprisonment for 6 months.

On appeal the Sessions Judge by his judgment dated July 30, 1960 acquitted the respondent, on the ground that the prosecution had failed to establish that the respondent was present at the place and at the time where the occurrence took place.

This acquittal was confirmed by the Judicial Commissioner.

Held-Sub-ss. (1) to (3} of s. 403 of the Code of Criminal Procedure deal with the trial of an accused for an offence and his conviction therefor. The question raised for decision in Pritam Singh's case however was different and was whether 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 tI1ial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that findi'lg of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms oI s. 403(2).

It would not be correct to say that the principle underlying in Sambasivan's case was dissented from in R. v. Connelly. Besides. it should be pointed out that the principle

Marek 11

Manipur .Adminia

tration

Thokcham, Bira

Si1111h

Ayyangar, J.

underlying the decision in Pritam Singh's case d'd 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.

Pritam Singh v. State of Punjab, A.LR. 1956, S.C. 415, R. v. Connelly, (1963) 3 All E.R. 510 and Sambasivam v .. Pub!ic Prosecutor, Federation of Malaya, 1950 A.C. 458, relied on.

Gurcharan Singh v. State of Punjab, A.LR., 1963 S. C. 340, referred to.

State of Bombay v. S. L. Apte, [1961] 3 S.C.R. 107, Banwari Godara v. The State of Rajasthan, Cr. A. No. 141 of l!M'O dated February 7, 1961, Mohinder Singh v. State of Punjab, A.LR. 1965 S.C. 79, Kharkan v. The State of Uttar Pradesh, A.LR. 1965 S.C. 83, Yusofalli mulla v. The King. 76 I.A. 158, referred to.

(ii) The rule of issue-estoppel does not prevent tile trial of an offence as does autre fois acquit but only precludes evidence being led to prove a. fact in issue as regards which evidence had already been led and a specific finding recorded at an earlier criminal trial before a court of competent jurisdiction.

The rule of issue-estoppel is not the same as the plea of double jeopardy or autre fois acquit is also clear from the statement of the law by Lord Mac Dermott in Samb"sivam's

case.

(iii) It is clear that s. 403 of the Criminal Procedu:re 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 in Pritam Singh's case which has accepted it as a proper one to be adopted, there is no reason for discarding it.

The Queen v. O!!is, (1900) 2 Q.B. 758. The King v. Wi!kes, 77 C.L.R. 511, Marz v. The Queen, 96 C.L.R. 62 and Manickchand Agarwal! v. The State, A.LR. 1952 Cal. 730 relfod on.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 6 of 1962. Appeal by special leave from the judgment and order dated June I, 1961 of the Judicial Commis.ioner's Court for Manipur in Criminal Appeal Case No. 7 of 1961.

0. P. Rana and R. N. Sachthey, for the appellant.

S. C. Agarwal, for the respondent.

March 11, 1964. The judgment:of the Court was delivered by AYYANGAR, J.-This appeal •vhich comes before us by special leave is directed against the judgment and order of the Judicial Commissioner of Manipur acquitting the respondent and setting aside the conviction and sentence passed against him by the learned Sessions Judge.

This appeal was originally heard before a Bench of two Judges but has been directed to be placed before this Bench by reason of the learned Counsel for the appellant seeking

to. questiun the correctness of the judgment of this Court in the case of Pritam Singh v. The State of Punjab(') in view of the decision of the English Court of Criminal Appeal in R. v. Connelly(') and the subsequent decision of this Court in Gurcharan Singh v. State of Punjab(').

The facts giving rise to the appeal are in brief as follows: There was an agitation by certain political parties and groups in Manipur in April, 1960 for establishing responsible Government in the Manipur area. The agitation took the form of picketing of Government offices and the residences of Government servants and blocking roads in order to paralyse the administration. After this form of agitation continued for some time, the District Magistrate of Manipur promulgated orders under s. 144, Criminal Procedure Code on the morning of April 25, I 960 banning public meetings a.nd processions and these orders were proclaimed and communicated to the public through loudspeakers. Notwithstanding this order, crowds continued to collect and move on the streets shouting slogans. Bira Singh-the respondent-was said to have been leading this mob. A lathi charge by the police took place but it is stated that because of this the crowd moved a little away and began to pelt stones. The crowd was thereupon directed to disperse, its attention being drawn to the promulgation of the order under s. 144, Criminal Procedm~ Code and to the fact that the gathering in a public place in violation of the order made it an unlawful assembly; but this command was not heeded and the stone-throwing continued. There was firing by the police which resulted in injuries to certain persons including some of the police personnel. The first information report in regard to the incident and the offences committed during its course was lodged at the Imphal Police station at about 7 p.m. that day in which the informant specified the name of the respondent-Bira Singh as the leader of this mob. On this a case was registered under ss. 114/149/332/342 and 307 of the Indian Penal Code and s. 7 of the Criminal Law Amendment Act, and a few days later the respondent was arrested.

Charges were framed against the respondent who was placed before the Magistrate and the charge sheet stated that the respondent was in the crowd between 3 and 5 p.m. on that day, that the crowd was an unlawfu) assembly, that he was among those who pelted stones which caused grievous hurt to one person and simple hurt to others and also caused damage to the Inter-State Police Wireless Station. Along with

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

(') A.LR. 1963 S.C. 34-0.

T, Tlwkckom., Bint

Singk

Ayyangar, ./.

J.lfl'lnipur

~4tlmi11i..ilrafion

Thokclt0Yf/, fe, Bira

,'3ingh

the respondent. certain others were included as accused but we are now concerned only with the respondent. The learned Sessions Judge convicted all of them of the offences with which they were charged and sentenced them to varying terms of imprisonment but into the details of these it is not necessary to enter.

The question of law that arises in this case is by reason of a prior prosecution of the respondent in which he was

acquitted. That prosecution was founded on a complaint against him filed on May J 2, J 960 under s. 188, Indian Penal Code in connection with his participation as .a member of the same crowd in regard to which the charge which is the subject-matter of the present proceedings is concerned. In that complaint the District Magistrate alleged that the respondent had disobeyed the order passed under s. 144 by forming himself along with 2,000 other persons into an unlawful assembly between the hours of 3 and 5 p.m. on April 25,

1960 by shouting slogans and pelting stones at police officers and this was stated to be on the road in front of the Police Wireless station. This complaint by the District Mag:strate was registered and taken cognizance of by the Magistrate. The respondent pleaded in his defence that he was not present at the scene of the occurrence at all and that he had been falsely implicated by the police. The Magistrnte rejected the defence and accepting the prosecution case that the respondent was present as the head of the mob on that ocosion convicte:I him of the offence charged and sentenced him by his order dated July 8, 1960 to rigorous imprisonment for six months. Ten days thereafter on July 18, 1960 the charge sheet in the present case was filed.

During the pendenoy of the prosecution from which the present appeal arises the respondent appealed to th(i learned Sessions judge against his conviction by the Magistrate on the charge under s. 188, Indian Penal Code. The learned Sessions Judge allowed the appeal holding that the prosecution had not established that the respondent was present at the place and at the time where the occurrence took place at which he was said by the prosecution to have been present or that he disobeyed the order under s. 144, Criminal Procedure Code. In the course of his judgment delivered on July. 30, 1960 the learned Sessions Judge observed after referring to the delay in the filing of the complaint after the occur rence:

"This delay in the filing of the complaint and in the naming of the appellant.. ................ throws considerable doubt on the presence of the appellant among the agitators on 25-4-60 .............. .if the P. Ws. did not know the appellant from before no

reliance can be placed on their identification of the appellant during the trial because that identification was not tested in a test identification parade. This also confirms my suspicion that the appellant might not have been present in the incident of 25-4-60 ......... The important position which the appellant had in organising the agitation in my opinion, afforded sufficient motive for the P.Ws. to come to a conclusion that the appellant might have been present in the agitation. But that erroneous impression on conclusion would not prove the presence of the appellant among the agitators on 25-4-60 .........

For reasons given above the appeal is allowed and the conviction and sentence of the appellant under s. 188 I.P.C. are set aside and he is acquitted."

This acquittal was confirmed by the Judicial Commissioner on April 29, 1961. Meanwhile, to proceed with the narrative of the proceedings which has given rise to the present appeal, the learned Magistrate committed the respqndent and 5 others to take their trial before the Sessions Judge, Manipur on a charge in respect of the offences we have set out earlier. Before the learned Sessions Judge an objection was raised on behalf of the respondent that the trial was barred by s. 403, Criminal Procedure Code by reason of the acquittal of the accused under s. 188, Indian Penal Code on July 30, 1960. The learned Sessions Judge, however, held, that the terms of the section were not satisfied, in that the ingredients of the two offences with which the accused was charged in the two prosecutions were different and rejected that submission. On the evidence adduced before him he found that it had been established to his satisfaction that the respondent as well as the others were present at the scene of the occurrence and held the accused guilty of the offences under ss. 333, 323 and 440 all read with s. 149, Indian Penal Code and sentenced him to 4 years R.I. All the six accused filed appeals against their conviction and sentences before the Judicial Commissioner, Manipur and the learned Judicial Commissioner after making some variations in the sentences as regards certain of the accused directed the acquittal of the respondent on the ground that the finding o.f fact recorded by the learned Sessions Judge in his trial for the offence under s. 188, Indian Penal Code that he was not present at the scene of the occurrence on April 25, 1960 between the hours of 3 and 5 p.m. was final and conclusive and binding upon the prosecution and that no evidence could be led to

Manipur Admini.Jlratio11v.

Tlwkckom, Bira.

Si"!lh

Ayyangar, J.

lrfanipur Admi.nistration

v. 1'/wkclwni, Bira

Singh

Ayyanqar, J.

establish a contrary state of affairs in the present proceedings. In so holding the learned Judicial Commissioner followed the decision of this Court in Pritam Singh v. State of Punjab(') and certain other decisions and held that the principle of res judicata applicable to criminal proceedings was not confined to cases falling within the bar of s. 403, Criminal Procedure Code but was of wider application. It is the correctness of this view of the Jaw that calls for consideration in this appeal.

Before referring to the decision of this Court in Pritam Singh v. State of Punjab(') it would be convenient to refer to arid put aside one point for clearing the ground. Section 403, Criminal Procedure Code embodies in statutory form the accepted English rule of autre fois acquit. This section runs:

"403 (]) A person who has been once tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any offence for which a different charge from the one made against him might have been made under s. 236, or for which he might have been convicted under section 237.

(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a, separate charge might have been made against him on the former trial under section 235, sub-section (!).

(3) A person convictec:l of 'any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted may be afterwards tried for such last mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time When he was convicted.

(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be sebsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.

(') A.LR. 1956 S.C. 415.

' ,

(5) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, or section 188 of this Code.

Explanation-The dismissal of a complaint, the stop

ping of proceedings under section 249, the discharge of the accused or any entry made upon a charge under section 273, is not an acquittal for the purposes of this section." Section 26 of the General Clauses Act which is referred to in s. 403 enacts:

"26. Where an act or omission constitutes an offence under two or more enactments, fthen the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." We might also, in this connection, refer to Art. 20(2) of the Constitution since it makes provision for a bar against a second prosecution in an analogous case. That provision reads:

"20(2). No person shall be prosecuted and punished for the same offence more than once." As has been pointed out by this Court in State of Bombay

v. S. L. Apte('), both in the case of Art. 20(2) of the Constitution as well as s. 26 of the General Clauses Act to operate as a bar the second prosecution and the consequeniial punishment thereunder, must be for "same offence" i.e., an offence whose ingredients are the same. It has been pointed out in the same decision that the V Amendment of the American Constitution which provides that no person shall be subject, for the same offence, to be twice put in jeopardy of life or limb, proceeds on the same principle.

It is common ground that the respondent cannot bring his case within the provisions of sub-s. (1) of s. 403 and it was also common ground that the trial of the respondent would be permitted by sub-s. (2). It should, however, be noticed that sub-ss. (!) to (3) of this section deal with the trial of an accused for an offence and his conviction therefor. The question raised for decision in Pritam Singh's(') case however was different and was whether 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

(') A.LR. 1956 S.C. 415.

L_1'P(D)IRCI-5 "

Tkockclunn, Mira

Singh

Ayyangar, J.

Tkokchom, Bira

Si'/l{/k -· Aggangar, J.

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).

As Pritam Sing h's(') case was based wholly on the decision of the Privy Council in Sambasivam v. Public Prosecutor, Federation of Malaya(') it would be necessary to examine the basis of the latter decision. The appellant-an Indian Tamil-was travelling on foot in the company of two. Chinese.

They met a party of three Malays. A fight ensued between the two groups in the course of which one of the Chinese was killed. The Malays alleged that they had been fired on by the Chinese and that the appellant had with him a revolver which he had held .out and pointed at one of them.

In connection with this incident the appellant was charged with carrying a fire-arm and being in possession of ten rounds of ammunition. Two charges were framed against the appellant: (!) of carrying a fire-arm, and (2) of being in possession of ammunition. He was acquitted of the second charge of being in possession of ammunition and that acquittal becaine final. He was, later convicted of the offence of •; arrying a fire-arm and the appeal before the Privy Council related to the legality of this convictjon. Diverse objections branching into several fields of law were raised before the Privy Council in support of the appeal but what is, however, of relevance now, is the one which related to the admissibility of the evidence of the prosecution witnesses who spoke of the revolver carried by the appellant being loaded with bullets and of the appellant carrying four more bullets in a bag.

Their Lordships rejected all the other contentions raised on behalf of the appellant but allowed the appeal on the ground that this evidence regarding the revolver being loaded and of the appellant carrying a bag containing some bullets was inadmissible in Jaw. In dealing with this Lord MacDermott speaking for the Board said :

"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." After pointing out that the prosecution witm:sses were permitted to depose regarding the possession of ammunitim1 by the appellant and that it was not possible to exclude the

(') A.I.R. 1956 s.c. 415.

(') [1950] A.C. 458.

effect of this evidence on the prosecution case, their Lordships held that the appellant was seriously prejudiced by the reception of this evidence and therefore allowed the appeal and directed his acquittal. The point in regard to which the observations in Sambasivam's(') case was applied by this Court related to the use of the recovery of a revolver from the accused to sustain his conviction of the offence of murder. Previous to the prosecution for an offence under s. 302, Indian Penal Code the appellant before this Court had been tried before the Additional Sessions Judge, Faridpur under s. 19<0 of the Indian Arms Act of an offence for possession of that revolver and had been acquitted. This Court speaking through Bhagwati, , J. extracted the observations we have quoted from the judgment of Lord MacDermott and pointed out that on the basis of this decision the evidence relating to the recovery of the revolver from the accused should have been excluded.

It was not contended by learned Counsel for the appellant that if the principle laid down by this decision was correct, the acquittal of the respondent by the learned Judicial Commissioner by the order now under appeal was erroneous. The argument, however, was that the observations in Pritam Singh's(') case required reconsideration. This sul)mission was rested on two separate lines of reasoning: (!) That the rule in Sambasivam's(') case on which Prita11J; Singh's(') case was based had been dissented from by the English Court of Criminal Appeal in R. v. Connelly(') and that, similarly that principle had been departed from by this Court in Gur charan Singh v. State of Punjab("'). (2) That the principle of Common law which was applied by the Privy Council in Sambasivam's(') case could have no application in a jurisdiction like ours where the principle of autre fois acquit is covered by a statutory provision framed on the lines of s. 403 occurring in a Code which is exhaustive.

As regards the first ground, it must be pointed out that learned Counsel for the State admitted that there was nothing a Gurcharan Singh's(') case which militated against the acceptance of the rule laid down in Pritam Singh's(') case.

Coming next to the point mad!? regarding the decision of the English Court of Criminal Appeal in 'R. v. Connelly('), we should make it clear that the decisions of the English Courts

being merely of persuasive authority, decisions of such a

(') [1950] A.C. 458. (') (1963] 3 All E.R. 510

L P(D)ISC!-5(a)

(') A.LR. 1956 S.C. 415.

(') A.LR. 1963 S.C. 34-0.

Manipur Adminiatration

Thokchom, Bira

Singh

Ayyangar, J.

Jllunipur

Al111i11i1J!n1lion

v. 1'/iokc/10111, Bir1i

Singh

Ayyanyrir, , J,

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(') 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 3n issue of fact-an issue directly raised regarding an ingredient of the offence charged at the later trial, when the uccused 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('! case was dissented from in R. v. Con11e/ly('). Besides• it should be pointed out that the principle underlying the decision in Pritam Sing/i's(') 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 Bamvari Godara v. The State of Rajastlwn('),

Mohiniler Singh v. State o.f Punjab(') and Kht1rkan v.

The State of Uttar Pradesh(').

These two decisions in R. v. Connelly(') and Gurclwran Singh v. State of Punjab(') 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(') 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." This, however, in our opinion, does not afford any assistance to the argument because Pl'itam Singh's(") case

)II did not introduce any variation in the Code as regards either

(') [1963] 3 All E.R. 510.

(') (1950] A.C. 458.

(') A.LR. 1956 S.C. 415. (') G.A. No. 141 of 1960, ct/February 7, 1961.

(') AI.R. 1965 S.C. 79.

(') A.I.R. 1965 S.C. 83. (') A.LR. i963 S.C. 3,10.

investigation, enquiry or trial. As we have pointed out earlier, issue-estoppel does not prevent the trial of any offence as docs autre fois acquit but only precludes evidence being l; J to pr:we 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. Learned Counsel next drew our attention to the observations bf the Privy Council in Yusofalli Mu/la v. The King(') at page 169 ' where the following observations occur:

"The last point urged by Mr. Page was that even if the case did not fall within the terms of s. 403 of the Code of Criminal Procedure the appellant could nonetheless rely on the common law rule that no man should be placed twice in jeopardy."

After stating that even for the application of the Common Law rule of double jeopardy the earlier order had to be by a court competent to pass a valid order of acquittal or conviction the judgment proceeded:

"This argument therefore fails on the facts, and it is not necessary for their Lordships to consider whether s. 403 of the Code of Criminal Procedure constitutes a complete code in India on the subject of autre fois acquit and autre fois convict, or whether in a proper case the common law can be called in aid to supplement the provisions of the section."

As we have pointed out, we are not now concerned with any extension of the principle of autre fois acquit but as to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court at a previous trial. The reasoning of Lord MacDermott in Sambasivam's(') case was not the first occasion when this rule as to issueestoppel in a criminal trial was formulated or given effect to.

That it is not the same as the plea of double jeopardy or autre fois acquit is also clear from the statement of the law by Lord MacDermott himself. The distinction between autre fois acquit and the objection to the reception of evidence to prove an identical fact which has been the subject of an earlier finding between the parties is brought out in the following passage from the judgment of Wright, J. in The Queen v. Ollis('):

"The real question is whether this relevant evidence of the false pretence on July 5 or 6 ought to have been excluded on the ground that it was part of

(') 76 I.A. 158.

(') [1950] A.C. 458.

(') (1900) 2 Q.B. 758, 763-769.

Manipur Admini&trati011

TlwlccMm, Bira

Singh

Ayyangar, J.

Thokchom, Bi1ll

Sing II

Ayyangar, , f.

the evidence given for the prosecution at !the former trial, at which the prisoner was charg1ed with having obtained money from Ramsey on that false pretence, and was acquitted of that charge."

The learned Judge then went on to point out that if the acquittal at the first trial was based on the negativing of this fact the evidence would be inadmissible but if that acquittal was based on other circumstances the evidence would be admissible. That is why he said:

"An objection in the nature of a plea of "autre fois

acquit" cannot of course be maintained, because on either indictment the prisoner could not have been convicted of the offences, or any of them, which were alleged in the other indictment. Nor can there be an estoppel of record or quasi of record, unless it appears by record of itself, or as explained by proper evidence, that the same point was determined on the first trial which was in issue on the. second trial."

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

"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 effuct 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

(') C.L.R. 511 at pp. 518-519.

7 S.C.R

SUPREME COURT REI'ORTS 135

concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability.

Jssue-estoppel is concerned with the judicial establishment of a proposition of law or fact between parties. It depends upon well-known doctrines which control the relitigation of issues which are settled by prior litigation."

This decision was rendered in 1948. The matter was the subject of consideration by the High Court of Australia after the decision in Sambasil'wn's(') case in Mar~ v. The Queen('). The question concerned the validity of a conviction for rape after the accused had been acquitted on the charge of murdering the woman during the commission of the act. In an unanimous judgment by which the appeal of the accused was allowed, the court said:

"The Crown is as rn uch precluded by an estoppel by judgment in criminal proceedings as is a subt ject in civil proceedings ......... The Jaw which gives effect to issue-estoppels is nbt concerned with the correctness or incorrectness of the finding which amounts to an estoppcl, still less with the process of reasoning by which the finding was reached in fact. ........... lt 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."

It is, therefore, clear that s. 403 of the Criminal Procedure 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 de- -· cision 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('). 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

(') [1950] A.C. 458.

(') 96 C.L.R. 62, 68-69. (') A.LR. 1952 Cal. 730.

Jlanipu1 . id ministration

Thol:rliom, Bira

,')'lngh

.lyyanga.t, J,

Nanir"'r Administration

Pholu:Jwm, Bira

Sinqli

.Ayyangar, J.

against an accused, the argument against its application being that the prosecution cannot succeed unless it proves to the satisfaction of the Court trying the accused by evidence Jed before it that he is guilty of the offence charged. We prefer to express no opinion on this question since it does not arise for examination. .

As stated earlier, if Pritam Singh's(') case was rightly decided, it was conceded that the decision of the Judicial Commissioner was right.

The appeal, therefore, fails and is dismissed.

Appeal dismissed

(') A.I.R. 1956 s.c. 415.

123

MANIPUR ADMINISTRATION

BIRA SINGH IP. B. GAJENDRAGADKAR, C.J.

K. N. WANCHOO

GUPTA, J.

C. SHAH

N. RAJAGOPALA AYYANGAR, JJ.

s. 403

ss. 333, 3123 and 440

s. 149

Indian Penal Code

25th April 1960

s. 144

Code of Criminal Procedure

s. 403

Criminal Procedure Code

s. 188

Indian Penal Code

July 30, 1960

May 12, 1960

s. 188

I.P.C

s. 144

April 25, 1960

s. 403

Code of Criminal Procedure

Pritam Singh

s. 403(2)

Sambasivan

Ayyangar

[1961] 3 S.C.R. 107

Mac Dermott

Samb"sivam

s. 403

P. Rana

R. N. Sachthey

S. C. Agarwal

AYYANGAR

Manipur

District Magistrate of Manipur

s. 144

Criminal Procedure Code

April 25, I 960

Bira Singh

s. 144

Imphal Police station

Bira Singh

ss. 114

Indian Penal Code

s. 7

Criminal Law Amendment Act

Inter-State Police Wireless Station

May J 2, J 960

s. 188

Indian Penal Code

s. 144

April 25,

1960

July 8, 1960

July 18, 1960

s. 188

Indian Penal Code

s. 144

Criminal Procedure Code

July. 30, 1960

s. 188

I.P.C

April 29, 1961

Sessions Judge, Manipur

s. 403

Criminal Procedure Code

s. 188

Indian Penal Code

ss. 333, 323 and 440

s. 149

Indian Penal Code

Judicial Commissioner, Manipur

s. 188

Indian Penal Code

Ayyanqar

s. 403

Criminal Procedure Code

Section 403

Criminal Procedure Code

s. 236

section 237

section 235

section 26

General Clauses Act, 1897

section 188

section 249

section 273

Section 26

General Clauses Act

s. 403

Art. 20(2)

Art. 20(2)

s. 26

General Clauses Act

s. 403

Tkockclunn

Tkokchom, Bira

Aggangar

s. 403(2)

Pritam Sing h

MacDermott

Sambasivam

s. 302

Indian Penal Code

Additional Sessions Judge, Faridpur

s. 19

Arms Act

Bhagwati

MacDermott

Singh

s. 403

Gurcharan Singh

Ayyanyrir

England

Pritam Sing

s. 5(1)

Pl'itam Singh

Page

s. 403

Code of Criminal Procedure

s. 403

Code of Criminal Procedure

India

Wright

Ayyangar

Ramsey

High Court of Australia

Sambasil'wn

s. 403

Harries

.Ayyangar