CIVIL

Issue-estoppel

SUPREME COURT

Supreme Court in the case of Masud Khan vs. State of Uttar Pradesh, (1974) 3 SCC 469 had the occasion to consider the question of applicability of principle of “issue-estoppel” to judicial proceedings. Their Lordships speaking through A. Alagiriswami, J. examined the facts of that case in the light of law laid down in several English and Indian cases and held that principle of “issue-estoppel” applies to criminal proceedings only and not to any other proceedings. This is what His Lordship held in para 4 and in concluding para:

“4. But that apart, this matter could be decided on another point. The question of issue-estoppel has been considered by this Court in Pritam Singh v. State of Punjab, AIR 1956 SC 415, Manipur Administration v. Thokchom Bira Singh, AIR 1965 SC 87 and Piara Singh v. Staff of Punjab,(1969) 1 SCC 379. Issue-estoppel arises only if the earlier as well as the subsequent proceedings were criminal prosecutions. In the present case while the earlier one was a criminal prosecution the present is merely an action taken under the Foreigners (Internment) Order for the purpose of deporting the petitioner out of India. It is not a criminal prosecution.

The principle of issue-estoppel is simply this: 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 law. Pritam Singh case was based on the decision of the Privy Council is Sambasivam v. Public Prosecutor, Federation of Malaya, (1950) AC 458. In that case 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.” It should be kept clearly in mind that the proceeding referred to herein is a criminal prosecution. The plea of issue-estoppel is not the same as the plea of double jeopardy or autrefois acquit. In King v. Wilkes, 77 CLR 511, Dixon, J., referring to the question of issue-estoppel said:

“…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 … 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…. Issue-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.” The emphasis here again would be seen to be on the determination of criminal liability. In Marz v. Queen, 96 CLR 62, the High Court of Australia said: “The Crown is as much precluded by an estoppel by judgment in criminal proceedings as is a subject in civil proceedings… The law which gives effect to issue estoppel is not concerned with the correctness or incorrectness of the finding which amounts to an estoppel, still less with the process of reasoning by which the finding was reached in fact … It is enough that an issue or issues have been distinctly raised or found.

Once that is done, then, so long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding, may be made by one of them against the other.” Here again, it is to be remembered that the principle applies to two criminal proceedings and the proceeding with which we are now concerned is not a criminal proceeding. We therefore hold that there is no substance in this contention.

5. The petition is dismissed.”