Issue estoppel applies in criminal proceedings, preventing re-opening issues decided in previous judgments.

ORDER :

Petitioner is the accused in C.C. No.27 of 2019 on the files of the Judicial First Class Magistrate Court-II, Perambra. The case originated from O.R. No.3 of 2008 registered at the Peruvannamuzhy Forest Range Office for the offences punishable under Sections 2(16A), 9, 52 read with 51 of the Wild Life (Protection) Act. The prosecution case is that on 05.04.2008 at 10 a.m., the patrol party proceeded to the B Division of Muthukad beat in Perambra Estate, based on prior information that certain persons had kept an unlicensed gun and wild animal meat in the estate. On reaching the cashew plantation they found the petitioner standing inside a shed. On questioning, the petitioner stated that the cashew plantation was taken on lease by him and thirteen others from the Plantation Corporation Limited. He also revealed that a country gun was concealed in the shed and pointed out the place where the gun was kept concealed under coconut leaves. Thereupon, the gun along with four live and two empty cartridges were seized and the Crime and Occurrence Report prepared, arraying petitioner as the accused. The Forest Range Officer who registered the Crime and Occurrence Report made a complaint to the Station House Officer, Peruvannamuzhy, which resulted in Crime No.63 of 2008 being registered based on the same incident for the offence punishable under Section 25(1B)(a) of the Arms Act, 1959. On filing of the final report in the case registered by the police, the same taken on file as C.C. No.628 of 2012 of the Judicial Magistrate of First Class-II, Perambra. By Annexure A2 judgment, the trial court acquitted the accused of the offence under Section 25(1B)(a) of the Arms Act, finding the prosecution to have miserably failed in proving the seizure of the unlicensed gun from the possession of the petitioner. This Crl.M.C. is filed seeking to quash Annexure A1 OR and Annexure A3 final report in C.C. No.27 of 2019 on the strength of Annexure A2 judgment of acquittal in the police registered case based on the very same incident.

2. Heard Adv. Alex M. Scaria for the petitioner and Senior Public Prosecutor, Renjith Gerorge for the State.

3. Learned counsel for the petitioner drew attention to the detailed discussion in Annexure A2 judgment, with particular focus on paragraphs 18 and 19, wherein the court found the prosecution to have failed in proving seizure of the unlicensed gun and cartridges from the possession of the petitioner. It is contended that the rule of issue estoppel is applicable to criminal proceedings also. The issue with respect to seizure of the unlicensed gun and cartridges from the petitioner's possession having been decided in Annexure 2 judgment, cannot be re-opened or reconsidered in C.C. No.27 of 2019. In support of this contention, reliance is placed on the Apex Court decision in Pritam Singh and Another v. State of Punjab (1956 KLT OnLine 1002 (SC) = AIR 1956 SC 415). Support is also drawn from Annexure A6 judgment of this Court rendered under almost similar circumstances. It is submitted that, apart from the question of issue estoppel, there is absolutely no independent evidence to connect the petitioner with the offences alleged. Further, even accepting the prosecution case, no offence under the Forest Act as alleged is made out, since mere recovery of the gun cannot lead to the conclusion that it was meant to be used for hunting. It is submitted that law does not provide punishment for mere evil intention or design unaccompanied by any overt act, in furtherance of such design.

4. Learned Pubic Prosecutor contended that the principle of autrefois acquit autrefois convict will not apply to the case at hand, since the petitioner was tried and acquitted for different offence. For the same reason, Article 20(2) of the Constitution of India, which guarantees that no person shall be prosecuted and punished for the same offence more than once, will also not apply. The acquittal of the petitioner for the offence under the Arms