Role Of Resjudicata

ROLE OF RESJUDICATA IN CRIMINAL CASES:ANALYSIS IT CRITICAL (Project Report)

Submitted to Dr.PARVESH KUMAR RAJPUT

Faculty Member in Crimnal law

Submitted by SURBHI BAIS B. A. LL. B. (Hons.) Student Semester – 7th , Roll No. 175

Hidayatullah National Law University

Uparwara Post, Abhanpur, New Raipur – 493661 (C.G.)

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DECLARATION This is to certify that the Project work done at Hidayatullah National Law University, Raipur Chhattisgarh by Ms.SURBHI BAIS, Roll no.175 has been found satisfactory. It has not been submitted for any other examination and does not form a part of any other course undergone by the candidate. It is further certified that she has made the project with all her sincerity and is found authentic and not copied from any other project submitted earlier.

SURBHI BAIS

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ACKNOWLEDGEMENTS

First and foremost I would like to thank our course teacher Dr.Parvesh kumar Rajput Faculty in land laws, HNLU, for allotting me this topic to work on and whose help and assistance enabled me to move ahead with this topic. I would like to thank my friends, who gave me their precious time for guidance and helped me a lot in completing my project by giving their helpful suggestion and assistance. I would like to thanks my seniors for their valuable support. Last, but not the least I thank the University Administration for equipping the University with such good library and I.T. facilities, without which, no doubt this work would not have taken this shape in correct time .

SURBHI BAIS SEM VII ROLL NO.175

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CONTENTS Declaration……………………………………………………………………………..……2 Acknowledgements…………………………………………………………………...……...3 Chapter 1:-Introduction………………………………………………………………...…….5 Objective …………………………………………………………………………..…6 Research Methodology……………………………….………………………..……..7 Chapter 2:Meaning and essential of resjudicata…………………………………………...….8 Chapter 3:- Resjudicata and issue estoppel ……………………………………………….....11 Chapter 4: Application of resjudiacta in criminal proceedings………………………………13 Conclusion…………………………………………………………………………………....18 Bibliography………………………………………………………………………….……….19

CHAPTER 1-INTRODUCTION 4

RES JUDICATA means "a thing decided" in Latin. It is a common law doctrine meant to bar relitigation of cases between the same parties in Court. Once a final judgment has been handed down in a lawsuit subsequent judges who are confronted with a suit that is identical to or substantially the same as the earlier one will apply res judicata to preserve the effect of the first judgment. This is to prevent injustice to the parties of a case supposedly finished, but perhaps mostly to avoid unnecessary waste of resources in the court system. Res judicata does not merely prevent future judgments from contradicting earlier ones, but also prevents them from multiplying judgments, so a prevailing plaintiff could not recover damages from the defendant twice for the same injury. Res judicata includes two related concepts: claim preclusion, and issue preclusion (also called collateral estoppel), though sometimes res judicata is used more narrowly to mean only claim preclusion. Claim preclusion focuses on barring a suit from being brought again on a legal cause of action that has already been finally decided between the parties. Issue preclusion bars the relitigation of factual issues that have already been necessarily determined by a judge or jury as part of an earlier claim. It is often difficult to determine which, if either, of these apply to later lawsuits that are seemingly related, because many causes of action can apply to the same factual situation and vice versa. The scope of an earlier judgment is probably the most difficult question that judges must resolve in applying res judicata. Sometimes merely part of a subsequent lawsuit will be affected, such as a single claim being struck from a complaint, or a single factual issue being removed from reconsideration in the new trial. Res judicata does not restrict the appeals process, which is considered a linear extension of the same lawsuit as it travels up (and back down) the appellate court ladder. Appeals are considered the appropriate manner by which to challenge a judgment rather than trying to start a new trial, and once the appeals process is exhausted or waived, res judicata will apply even to a judgment that is contrary to law. However, there are limited exceptions to res judicata that allow a party to attack the validity of the original judgment, even outside of appeals. These exceptions--usually called collateral attacks--are typically based on procedural or jurisdictional issues, based not on the wisdom of the 5

earlier court's decision but its authority or competence to issue it. A collateral attack is more likely to be available (and to succeed) in judicial systems with multiple jurisdictions, such as under federal governments, or when a domestic court is asked to enforce or recognize the judgment of a foreign court. When a subsequent court fails to apply res judicata and renders a contradictory verdict on the same claim or issue, if a third court is faced with the same case, it will likely apply a "last in time" rule, giving effect only to the later judgment, even though the result came out differently the second time. This situation is not unheard of, as it is typically the responsibility of the parties to the suit to bring the earlier case to the judge's attention, and the judge must decide how broadly to apply it, or whether to recognize it in the first place. Public Interest Litigation, in simple words, means, litigation filed in a court of law, for the protection of "Public Interest", such as pollution, Terrorism, Road safety, constructional hazards etc.Public Interest Litigation is not defined in any statute or in any act. It has been interpreted by judges to consider the intent of public at large. Although, the main and only focus of such litigation is only "Public Interest" there are various areas where a Public Interest Litigation can be filed. For e.g. # Violation of basic human rights of the poor # Content or conduct of government policy # Compel municipal authorities to perform a public duty. # Violation of religious rights or other basic fundamental rights.

OBJECTIVES 6

1. To study the meaning and essential of resjudicata 2. To compare the resjudicata and issue of estoppel 3. To analyse the application of resjudicata and issue of estoppels in criminal proceedings.

RESEARCH METHODOLOGY Nature of research work: This project “Role of resjudicata in criminal proceeding” is a “Doctrinal” work. Doctrinal research includes studying books and established literature and not actually going to the field and doing empirical research. Source of research work: The sources of this project are both primary (bare acts, statutes, etc) and secondary sources (books given by different authors, journals, internet, etc

CHAPTER 2:-MEANING AND ESSENTIAL OF RESJUDICATA

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res iudicata is the Latin term for "a matter already judged", and refers to the legal doctrine meant to bar continued litigation of cases that have already been decided between the same parties. The doctrine of res judicata is based on three maxims (a) Nemo debet lis vaxari pro eadem causa 1 (b) Interest republicae ut sit finis litium 2; and (c) Re judicata pro veritate occipitur (a judicial decision must be accepted as correct)3

The Doctrine of Res Judicata can be understood as something which restrains the either party to “move the clock back” .The extend of Res Judicata is very-very wide and it includes a lot of things which even includes Public Interest Litigations. This doctrine is applicable even outside the Code of Civil Procedure and covers a lot of areas which are related to the society and people. The scope and the extend has widened with the passage of time and the Supreme Court has elongated the areas with its judgments. The legal concept of RJ arose as a method of preventing injustice to the parties of a case supposedly finished as well as to avoid unnecessary waste of resources in the court system. Res iudicata does not merely prevent future judgments from contradicting earlier ones, but also prevents litigants from multiplying judgments4, so a prevailing plaintiff could not recover damages from the defendant twice for the same injury.

Res Judicata is a rule of universal law pervading every well regulated system of jurisprudence and is based upon a practical necessity that there should be an end to litigation and the hardship to the individual if he is vexed twice for the same cause. Thus, this doctrine is a fundamental concept based on public policy and private interest. It is conceived in the larger public interest, which requires that every litigation must come to an end. It therefore, applies to all kinds of suits such as civil suits, execution proceedings, arbitration proceedings, taxation matters, writ petitions, administrative orders, interim orders, and criminal proceedings.

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(no man should be twiced vexed for the same offence) ( it is in the interest of the state that there should be an end to a litigation) 3 (a judicial decision must be accepted as correct) 4 prevents litigants from multiplying judgments 2

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Essential Elements for Res Judicata

1. The matter in issue in a subsequent suit must directly and substantially be same as in the previous suit. 2. The former suit must have been between the same parties or between parties under whom they or any of them claim. 3. Such parties must has been litigating under the same title in the former suit. 4. The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised. 5. The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit. Pukhraj D. Jain v. G. Gopalakrishna 5 If the court is satisfied that subsequent suit can be decided purely on the legal point, it is open to the court to decide such suit. Slochana Amma V Narayana Nair 1994:

Held, the doctrine of Res Judicata applies to quasi

judicial proceedings before tribunals also. In Govndaswamy V Kasturi Ammal 1998: Held, the Doctrine of Res Judicata applies to the plaintiff as well as the defendant.

Res Judicata And Writ Petitions It was debatable whether the term ‘suit’ would include writs and whether the principle of res judicata would apply to writ petitions. Daryao V. State Of U.P -it is the Court which decides the former suit whose jurisdiction to try the subsequent suit has to be considered and not the Court in which the former suit may have been filed

-in order that a matter may be said to have been heard and finally decided the decision in the former suit must have been on the merits. Where the former suit was dismissed for want of jurisdiction or for default of plaintiffs appearance, or on the ground of non-joinder of parties or 5

[(2004) 7 SCC 251]

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misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for the failure on the part of the plaintiff to produce probate or letters of administration or Succession Certificate when the same is required by law to entitle the plaintiff to a decree or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on an undervalued plaint, or for want of cause of action, or on the ground that it is premature and the dismissal is confirmed in appeal if any, the decision not being on merits would not lie res judicata in a subsequent suit. .

Explanation I: The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II. For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III. The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV. Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V. Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

Explanation VI. Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

Explanation VII. The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. 10

Explanation VIII. An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.

CHAPTER 3 :-RESJUDICATA AND ISSUE OF ESTOPPEL The concept of issue estoppel is closely related to the doctrine of estoppel by record or res judicata. While res judicata bars re-agitating same cause of action in subsequent proceedings, issue estoppels bars re-agitating same issue in similar proceedings while the cause of action may be same. Rule of res judicata, prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstrated wrong.6When the proceedings have attained finality, parties are bound by the judgement and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate on any issue which was necessary for decision in the earlier litigation. These two aspects are ―cause of action estoppel‖ and ―issue estoppel.7 8In Hope Plantations Ltd. v. Taluk Land Board.Peermade, Justice Wadhwa speaking for Three Judge Bench of The Apex Court distinguished between both these aspects of Res Judicata doctrine, as follows: Cause of action estoppel arises where the cause of action in the latter proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case, the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to satisfy the earlier judgement…….Issue estoppel arises when a particular issue forming a necessary ingredient in a cause of action has been litigated and decided involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen the issue.

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Hope Plantations Ltd. v. Taluk Land Board.Peermade, (1999) 5 SCC 590 Ibid 8 (1999) 5 SCC 590 7

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The rule of issue estoppel applies, even when the previous decision was erroneous. In Greater Cochin Development authority v. Leelamma Valson,9 there was express finding of the High Court that it has chosen not to grant the future interest along with amount decreed as the same was not pleaded. The appellant neither filed appeal against the decision of the High Court, nor did he file review of said decision. Justice Ruma Pal, delivering Judgement for Division Bench of Supreme Court, held that when the issue of future interest under Section 29 of the Arbitration Act, 1940 has been has been raised and decided and the order allowed to become final by the appellant without any challenge the issue becomes barred by res judicata even if the decision of High Court is erroneous . In Dr. Subramanian Swamy v. State of Tamil Nadu,10 the question before the Supreme Court was whether ―Dikshitar Brahmins” constitute a religious denomination and have exclusive privilege and right to participate in the administration of properties of concerned temple. The court observed, that the issue was earlier decided in favour of appellants by earlier decision of the High Court of Tamil Nadu and has attained finality. The Apex Court further observed that the decision of the High Court making declaration of the status of Dikshitar Brahmins was a judgement in rem, hence, it would operate as res judicata in any subsequent decisions on the issue regarding the status of Dikshittars. In Anil v. Rajendra,11 Justice Kurian, speaking for the Division Bench of the Apex Court, held that if the application regarding reference of dispute to Arbitration under the provisions of Arbitration and Conciliation Act, 1996 has been rejected by the civil court, and the decision of civil court has become final, subsequent application for reference of dispute to arbitration before Chief Justice of High Court under section 11 of the Arbitration and Conciliation Act, 1996 in the final stages of the suit will be barred by the principles of res judicata and issue estoppel.

The rule of issue estoppel prevents re-litigation of an issue which has been determined in a criminal trial between the parties. If with respect to an offence, arising out of a transaction, a trial has taken place and the accused has been acquitted, another trial with respect to the offence alleged to arise out of the transaction, which requires the court to arrive at a conclusion

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(2002) 2 SCC 573 (2014) 5 SCC 75 11 (2015) 2 SCC 583 10

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inconsistent with the conclusion reached at the earlier trial, is prohibited by the rule of issue estoppel.12

In order to invoke the rule of issue estoppel, not only the parties in the two trials should be the same, but also the fact in issue, proved or not, as present in the earlier trial, must be identical to what is sought to be re-agitated in the subsequent trial. Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue. It would be impermissible to permit any party to raise an issue inter se where such an issue has been decided in an earlier proceeding

CHAPTER 4: APPLICATION OF RESJUDICATA AND ISSUE OF ESTOPPEL IN CRIMINAL PROCEEDINGS As observed earlier, the doctrine of res judicata has two aspects these are, ‗cause of action estoppel' and 'issue estoppel' 13The former prevents re-litigation on same cause of action while latter prevents raising same issue which has been previously determined by competent court. The principle of res judicata in the former sense is also embodied in Constitution of India, 1950 as a fundamental right under Article 20(2)14 in the form of protection against double jeopardy. In criminal law, ‗cause of action‘ estoppel in is embodied in Section 300 of Code of Criminal Procedure, 1973228(Sec 403 of Code of Criminal Procedure, 1898). A plea of res judicata asserts that since the cause of action is the same in both the prior and the current proceeding, the current proceeding should not continue, whereas the plea of issue estoppel may be raised where the causes of action in the two proceedings are different, but the same particular factual issue has arisen in both. In criminal proceedings, the principle of res judicata has been given effect through the pleas of autrefois acq'uit and autrefois convict.15Where those pleas are not available, issue estoppel arises where the accused who has been finally 12

Ravinder Singh v. Sukhbirsingh,(2013) 9 SCC 245 Hope Plantations Ltd v. Taluk Land Board Peermade, (1999)5 SCC 590 14 Art 20(2) ―No person shall be prosecuted and punished for the same offence more than once 15 Hamesh Stewart, ―Issue Estoppel and Similar facts‖ available at https://www.law.utoronto.ca/documents/stewart/issue_estoppel.pdf (last accessed on 4thfeb 2015). 13

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acquitted of a criminal offence arising out of certain conduct, is charged with a different offence, and for some reason the facts surrounding the earlier charge become relevant. The plea of autrefois convict or autrefois acquit, avers that a person has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is presently arraigned.16 The fundamental right guaranteed in Constitution of India, 1950 under Article 20(2) enunciates the principle of autrefois convict or ‗double jeopardy‘ i.e. a person must not be put in peril twice for the same offence. The doctrine is based on ancient maxim nemo debit bis punire pro uno delicto, that is to say, no one ought to be punished twice for the same offence. The manifestation of the rule against double jeopardy is found in Section 300 of the Code of Civil Procedure, 1973; Section 26 of the General Clauses Act, 1897 and Section 71 of the Indian Penal Code, 1861.233 Section 300 of the Code of Criminal Procedure, 1973 reads as under Section 300. Person Once Convicted or acquitted or acquitted not to be tried for same offence.(1) A person who has once been 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 other offence for which a different charge from the one made against him might have been made under sub Section(1) of Section 221 or for which he might have been convicted under Sub Section (2) there of. Section 26 of the General Clauses Act, 1897 reads: Section26. Provision as to offences punishable under two or more enactments.—Where an act or omission constitutes an offence under two or more enactments, then 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. Section 71 of the Indian Penal Code, 1861 reads: 71. Limit of punishment of offence made up of several offences.-- Where anything which is an offence is made up of parts, any of which parts is itself an offence the offender shall not be punished with the punishment of more than one of such of his offences, unless it be so expressly provided.

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Sangeetaben Mahindrabhai Patel v. State of Gujrat, (2012) 7 SCC 621 at Para. 14, Page. 627

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The rule of double jeopardy is applicable if the two offences are identical and not merely similar. In State of Bombay v. S.L Apte, 234 Constitutional Bench of the Supreme Court, while dealing with the issue of double jeopardy, under Article 20(2) of the Constitution of India, 1950, held that in order to operate as a bar (of double jeopardy) the second prosecution, and the consequential punishment thereunder, must be for ‗the same offence‘. The crucial requirement, therefore, for attracting the article is that the offences are the same i.e. they should be identical. If, therefore, two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out.17 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 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 or distinct offence. In other words, the rule of issue estoppel does not prevent the trial of an offence as does autrefois 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 difference between issue estoppel and the autrefois acquit principle is that while the latter prevents the prosecution from impugning the validity of the verdict as a whole, the former prevents it from raising again any of the separate issues of fact which the jury have decided, or are presumed to have decided, in reaching their verdict in the accused‘s favour. Law commission of India, in its 41st report,18 has, inter alia, considered the application of the doctrine of ―issue estoppel‖ in India and concluded that time was not ripe at that time(in 1969) for giving statutory recognition to it as at that time and ―any hasty legislation with its rigidity may create difficulties‖. However, the doctrine has been developed and applied by judiciary in in

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Id.,at 581 Law Commission of India, 41th Report on The Code of Criminal Procedure, 1898 (September, 1969)

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a series of cases. 19 Sambasivam v. Public Prosecutor, Federation of Malaya,20 is an early authority of Privy Council on the application of the rule of issue estoppel in criminal law. In this case, in the previous prosecution for carrying illegal arms and murder, two charges were framed against the appellant: (1) use of 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 became final. In respect of first charge re-trial was ordered. In the second trial he was convicted of the offence of carrying a fire-arm. The appeal before the Privy Council related to the legality of this conviction. One of the objection raised in appeal 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. It was contended by appellant that he has been acquitted of the charge of carrying and being in possession ammunition in earlier trial and this was not brought to notice of trial court by prosecution.21 Their Lordships of Privy Council 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 law by reason of issue estoppel. Lord MacDermott speaking for the Judicial 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. The maxim Res judicata pro veritate accipitur22 is no less applicable to criminal law than to civil proceedings. Here the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the opposition was bound to accept the correction of that verdict and was precluded from taking any step to challenge it at the second trial.

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Some of the leading cases are discussed in following paragraphs. 1958 AC 458 : (1950) 63 LW 597 21 Id.,at 603 (L.W) 22 ―A thing adjudged must be taken for truth‖ 20

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CONCLUSION The principle of Res Judicata does not apply strictly to public interest litigations. The procedural laws are not fully applicable to PIL cases. Where the prior public interest relates to illegal mining, subsequent public interest litigation to protect environment is not barred. Though, the provisions of section 11 of the Code are mandatory and the ordinary litigant who claims under 17

one of the parties to the former suit can only avoid its provisions by taking advantage of section 44 of the Indian Evidence Act which defines with precision the grounds of such evidence as fraud or collusion. It is not for the court to treat negligence or gross negligence as fraud or collusion unless fraud or collusion is the proper inference from facts. Other factors in exception to section 11 being present must be litigating bona fide and the fulfillment of this is necessary for the applicability of the section. Since the primary object of Res Judicata is to bring an end to litigation, there is no reason not to extend the doctrine to public interest litigation. In Forward Construction Co. v. Prabhat Mandal , the Supreme Court was directly called upon to decide the question. The apex court held that the principle would apply to public interest litigation provided it was a bona fide litigation

REFERENCES

STATUTES REFERRED  Code of Criminal Procedure, 1973  Indian Penal Code, 1861 18

 General Clauses Act, 1897  Constitution of India, 1950 WEBSITES REFERRED  shodhganga.inflibnet.ac.in  blog.ipleaders.in  definitions.uslegal.com  casemine.com  indiankanoon.org LEXICON

➢Black’s Law Dictionary, 9th Edition.

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