Rajeshwari Prasad, J.
1. These petitions in revision were filed before the learned Sessions Judge, Varanasi by different persons. These petitions were numbered in that Court as Criminal Revisions Nos. 82, 83, 84, 80, 86 and 87 all of 1965. Sri Abu Saad, IInd Additional District and Sessions Judge, Varanasi accepted the contention made before him by the revisionists and proceeded to make reference to this Court in all the six cases by similar orders. All the six references made to this Court can, therefore, conveniently be disposed of by a common order.
2. In exercise of powers conferred by Clause 18 of the U. P. Food Grains (Control, Requisition and Distribution) Order, 1963, the Food Officers of the Superintendent of Police made raids in the houses of the petitioners AS well as the houses of about 35 other persons. Such raids were made on or about 26th September 1964. Quantities of rice, paddy, wheat and etc., were seized from the houses of the petitioners and others, as it was found that the quantities seized were in excess of the quantity permitted In be retained by notification dated 18th August, 1964.
3. Aggrieved by that action of the Food Officers and the Superintendent of Police, the applicants as well as the other persons from whose possession foodgrains had been seized, filed 48 writ petitions in this Court under Article 226 of the Constitution of India. The reliefs that were claimed in those writ petitions were as follows:
'(a) That a writ of mandamus, order or direction in the nature of mandamus be issued, directing them to release the foodgrains which they have seized at once to the petitioner and other persons to whom it belongs.
(b) That a writ of mandamus, order or direction in the nature of mandamus be issued to the respondents to release that quantity of grain that is in excess of the exempted limit.
(c) That no further proceedings be taken against the petitioners on the basis of the aforesaid order.
(d) That such other writ, order or direction he issued as the petitioners be in law entitled'.
4. The main around taken in those writ petitions was that the provisions of the order were arbitrary and discriminatory. On 17th November 1964, by a common judgment, Hon'ble B. C. Gupta, J., allowed all the writ petitions on the finding that seizure of the commodities was illegal. It was also directed that grains so seized be released forthwith.
5. Against the decision of the learned Single Judge, the State Government filed Special appeals in all the cases. These special appeals finally came for disposal before a Full Bench consisting of five Hon'ble Judges of this Court. That Pull Bench by its judgment dated 11th August 1965, set aside the judgment of the learned Single Judge and held that the seizure of the grains was not illegal. So farAS the appeals against the present petitioners were concerned those appeals were dismissed as infructuous. The ground for dismissing those appeals as infructuous was that the quantity of foodgrains which had been seized from their possession were meanwhile released as ordered by the learned Single Judge, prior o the passing of any stay order against the release of the foodgrains by the Full Bench. In relation to the appeal against the present petitioners, the Full Bench made the following order:--
'In this Special Appeal the food-grains stocks which had been seized were released in favour of the respondent under the orders of the learned Single Judge prior to any stay order having been passed. The appeal has, therefore, become infructuons and is accordingly dismissed with costs.'
6. When the writ petitions were still pending in this Court, the police submitted separate charge sheets against the applicants on 30th October 1964 purporting to be under Rule 125 of the, Defence of India Rules for contravening Sub-clause (1) (a) of Clause 3 (b) of the U. P. Food Grains (Control, Requisition and Distribution) Order, 1963, on the basis of the some facts which had led the filing of the writ petition in this Court
7. The criminal proceedings against the petitioner, however, remained stayed during the pendency of the writ petitions and the special appeals in this Court. After the special appeals had been decided by the Full Bench of this Court, the learned District Magistrate before whom, the proceedings were pending took steps to proceed with the prosecution of the applicants. By his order dated 13th September 1965, the Additional District Magistrate (Judicial) refused to drop the criminal proceedings against the applicants by repelling then contention that in view of the Full Bench decision in special appeals filed against the petitioners, the order of the learned Single Judge of this Court in their writ petitions to the effect that the seizure of the food-grains from their possession was illegal had become final
8. The petitioners thereafter tiled the six revision petitions before the learned Sessions Judge which have been mentioned above.
9. The learned Sessions judge could not find himself in agreement with the learned Additional District Magistrate in not dropping the proceeding against the applicants. The view taken by the learned Sessions Judge was that special appeals against the petitioners having been dismissed the order of the learned Single Judge made in favour of the petitioners became final and inasmuch as the learned Single Judge has held that the seizure of the food-grains from their possession was illegal, the petitioners were no more liable to be prosecuted on the charge-sheets submitted by the police against them. The learned Sessions Judge also took the view that a party to a decision was bound by it whether that decision was correct or not, though a third person would not be bound by it
The learned Sessions Judge proceeded to observe that the State Government was boundby the order made by the learned Single Judge and that therefore, so far as the petitioners were concerned, it had been finally held in their favour as against the State Government that the seizure of the food-grains from their possession was illegal. The learned Sessions judge as a result of the opinion at which ha had arrived came to the conclusion that the petitioners were not liable to be prosecuted on the basis of the same facts and that proceedings in prosecution of the petitioners were liable to be dropped This was the reason why the learned Sessions judge made reference to this Court recommending that the order passed by the learned Additional District Magistrate on the 13th September 1965 be set aside and quashed and proceedings in prosecution of the petitioners be directed to be dropped.
10. I have heard, Sri P. C. Chaturvedi in support of the references made by the learned Sessions Judge. I have also heard at length Sri K. C. Dhulya, the learned counsel for the State who has opposed the references and had attempted to justify the order made by the learned Additional District Magistrate.
11. On behalf of the petitioners, it has been contended before me that as a result of the dismissal of the special appeal filed against the petitioners by the Full Bench of this Court, the decision given by the learned Single Judge in favour of the petitioners became final. It has been further contended that this would be so, even if the effect of the decision by the Full Bench of the special appeals filed against other persons may be to lay down that the view of law taken by the learned Single Judge was erroneous, The rule ol finality of decision does not depend upon the correctness of the decision. It has been repeatedly held by the Supreme Court as also by this Court and other Courts, that even though a decision may be erroneous, it would operate as res judicata between the parties, and the finality of the judgment which is otherwise binding on the parties cannot be disturbed on the consideration, that the decision said to be binding between the parties was not a correct decision I have, therefore, no doubt in accepting the contention that although decision may not be correct, yet if it is final, between the parties, it is binding on them
12. It was next contended that the question whether the petitioners had contravened the order in question or not, was expressly decided by the learned Single Judge and if that decision is binding on the State Government, there is no question of the petitioners being prosecuted for such assumed contravention or the order in question The learned Single Judge found that none of the petitioners before him could possibly have contravened the terms of the order in question, and that, therefore, there could be no reason to accept that a contravention of the order had been, or was being or was likely to be committed. Having made that observation, the learned Single Judge proceeded to say that as a result thereof, the act of seizure was in excess of the authority conferred by paragraph 18 of the order The learned Single judge, therefore, issued mandamusdirecting the release, forthwith, of the entire quantity of food-grains covered by the act of seizure. With regard to relief (o) claimed in the writ petition, the learned Single Judge made the following observation:--
'As regards the further relief for preventing the authorities from taking action against the petitioners, the learned counsel for the petitioners have stated that they do not desire to press this relief'
On behalf of the State, it has been urged that in view of the fact that the petitioners did not press for relief (c) in their petition, it cannot be held that the questions relating to relief (c) were also decided by the learned Single Judge According to the learned counsel for the State it must be held that those questions were left open, consequently, the decision of the learned Single Judge cannot prevent the State authorities from prosecuting the petitioners for the offence with which they have been charged.
13. Both sets of the reliefs claimed in the writ petitions were based on identical ground. In order to establish their claim to the reliefs claimed, it was necessary for the petitioners to show that they did not contravene the order in question The assertion with regard to the illegality of the act of seizure was based on the same premises as in the case of claim for relief (c). Further it may be noted that what was not pressed in those proceedings was the particular relief. No part of the case put forth in those petitions was given up. This being so. It cannot be said that the fact that the petitioners had decided not to press their claim for relief (c) in the writ petition does not militate against the finality of such findings as had been given by the learned Single Judge. It would not have been possible for the learned Single Judge to grant any relief to the petitioners without first deciding the question whether the petitioners had made any contraventions of the order in question or not. In fact, the finding that the seizure of the grains in the case or petitioners was illegal evolves the finding to the effect that the petitioners had not contravened the order in question.
14. But the question that arises in these cases is whether the principle of res judicata apply to the facts of the present case so as to preclude the State Government from prosecuting the petitioners for the offence of contraven tion of the order in question. The rule of res judicata is embodied in the provisions of the Code of Criminal Procedure in Section 403 of the Code. Section 403, Criminal P. C., however is in the following terms:--
'403 (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 Section 236, or for which he might have been convicted under Section 287.
15. It is not necessary for me to reproduce the subsequent clause of Section 403 for the purposes of this case. It is, however, obvious on a perusal of Section 403, that that section is not applicable to the facts of the present case in its terms. What Section 403 requires is that there must have been a previous trial of the person by a Court of competent jurisdiction and that such person should have been either convicted or acquitted in that trial. The proceedings on the basis of the writ petitions were not trials within the meaning of the Code of Criminal Procedure, nor was the order passed on the writ petitions, acquittal of the petitioners. There is, therefore, absolutely no doubt that Section 403, Criminal P. C. in terms foes not apply to the facts of the present case.
What has been contended before me is hat, on consideration of the general principles of res judicata, the petitioners are no more liable to be prosecuted. The question, therefore, that arises is firstly whether general principles of res judicata is applicable to criminal oases and whether on application of those general principles in this case, the petitioners are not liable to be prosecuted. Learned counsel for the parties, however, has clearly contended that there is no direct decision on that question either of this or any other Court so far. On behalf of the petitioners, reliance has been placed on various decisions of the Supreme Court which have dealt with the application of the general principles of res judicata to proceedings of different nature.
One of the cases relied upon by the learned counsel for the revisionist is Gulabchand Chhotalal v. State of Gujarat, AIR 1965 SC 1153. The facts of that case were, that the appellant had stood surety for a number of contracts in 1947 for felling timber trees and removing timber trees in various forests in the erstwhile State of Baria. The contracts had been taken as a result of auction, which had taken place under the 'Conditions of Auction Sale of Forasts in the Baria State in the Samvat Year 2002' In April, 1948, the appellant presented an application to the Baria State saying that certain brokers owed money to the various contractors and prayed that they be restrained from paying the amount to the contractors until further orders and that those brokers and contractors be also restrained from directly removing the goods stored in the godown at Piplod, Baria and Limkheda without the permission of the State Government.
It was also mentioned in those applications that if those contractors would arrive at an arrangement with him and carry out the vahivat, he would do the needful in that behalf. The State Government issued notices to the contractors on that application stating therein that the surety i. e., the appellant, had moved, under Clause 8 of the Condition of Auction Sale of jungle goods for attachment of their goods, that be lying in the godowm at Baria, Piplod and Limkheda in the State and the debts or other movable or immovable property belonging to them and for delivering the same to him and to direct the contractors not to sell, mortgage, gift away or otherwise disposeof whatever movable or immovable property they had in the State without the permission of the State. At that stage, the State of Baria merged with the State of Bombay on June 10, 1948.
The Government thereafter allowed the contractors to remove the materials on certain conditions. This led the appellants in that case to present a writ petition under Article 226 of the Constitution to the High Court of Bombay. The relief claimed in that writ petition was, that, direction be issued to the respondents, namely, the State of Bombay and to the Mamlatdar of Baria Taluk to raise the attachment levied on Municipal Nos. 728 and 842 of Deogad Baria. The relief further was to issue a writ of mandamus under Article 226 of the Constitution, prohibiting them (i. e. the respondents) from selling those Municipal numbersand from proceeding with the auction of those properties. It was alleged that the sale of the properties was unauthorised and contrary to the terms of the attachment levied by the State, and that the liabilities of the appellant under the surety bonds had been put an end to. The High Court of Bombay dismissed the writ petitions in July 1952 holding that there was no substance in the contention that the petitioners had been discharged from their liability as sureties. The High Court further held that it was a wrong assumption of the appellant that the attached goods were to be solo without his knowledge and consent. The High Court finally held that the plea, that the sale absolved the appellant from his liability as surety could not be accepted.
16. Thereafter in August 1952, the appellant instituted a suit which has given rise to the appeal before the Supreme Court on the facts alleged in the plaint of that suit, the appellant had claimed reliefs to the effect that it be declared that he became discharged from all liabilities as sureties for the contractors. A relief for issue of permanent injunction prohibiting the defendants from attaching and lelling the property of the plaintiff was also prayed for.
17. The State of Bombay contested the suit by repeating what it had urged in its reply to the proceedings of writ application. One of the issues framed in that suit related to the question of res judicata. The precise issue was in the following terms:--
'Is the suit barred by res Judicata in view of the High Court's judgment in Civil applications Nos. 260, 261 and 376 of 1952'. The Court which tried the suit came to the conclusion that the judgment of the High Court in writ jurisdiction operated as res Judicata in the suit. The District Judge who decided the appeal against the decision of the trial Courtagreed with a view taken by the trial Court on the question of application of res Judicata.
18. In second appeal, a learned Single judge of the Bombay High Court agreed with the Courts below that the decisions of the High Court on the question whether the plaintiff was absolved from liabilities under the Surety agreement, must be regarded as res Judicata and could not be re-opened in the suit. On otherconsiderations, some relief was, however, granted by the High Court to the appellant. After obtaining special leave, the appellant, filed the appeal in the Supreme Court. The two submissions made before the Supreme Court were, firstly, that a decision in a writ application under Article 226 for the issue of a writ of mandamus does not operate as res Judicata in a regular suit subsequently filed for a declaration of the plaintiff's rights and for the issue of an order of injunction against the defendants. The other submission was that the doctrine of constructive res Judicata cannot be applied when dispute was first decided in a writ petition and is to be later decided in a regular suit. Their Lordships of the Supreme Court, however, treated the first question as a main question involved in the appeal. The majority judgment in that case was delivered by his Lordship Mr. Justice Raghubar Dayal. The principles regarding the doctrine of res Judicata were elaborately considered and reference was made to the various earlier decisions of the Supreme Court touching the point. It was observed with emphasis that the principles of res Judicata is not based on any rule of technicality but is really based on very high principles of public policy so as to put an end to the litigation and give finality to judgments pronounced by the Courts of competent jurisdiction and to save litigations a second time over the same cause of action. In short, the principle laid down in all the decisions referred to above had been reaffirmed and reiterated by the Supreme Court in the aforesaid decision also.
Proceeding with the decision, the following observation was made:--
'As a result of the above discussion, we are of the opinion that the provisions of Section 11 Civil P. C. are not exhaustive with respect to an earlier decision operating as res Judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res Judicata any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res Judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. The nature of the former proceeding Is immaterial.
We do not see any good reason to preclude such decisions on matters in controversy in writ proceedings under Article 226 or 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest. We, therefore, hold that on the general principle or res Judicata, the decision of the High Court on a writ petition under Article 226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter'.
19. So far as the applicability of the general principles of res judicata to civil suits is concerned, there is, therefore, no manner of doubt that the decision arrived at in exercise of Jurisdiction under Article 226 of the Constitution would create the bar of res judicata against the rehearing of questions which had been decided earlier under Article 226 of the Constitution of India The question is whether the same principle and the same consideration arises in respect of criminal cases That the rule of res judicata is applicable to criminal cases is also a question which appears to have been settled by now If the rule of finality of decision is, therefore, applicable to civil cases, I am unable to think of any reasonable basis for coming to the conclusion that the principles laid down in AIR 1985 SC 1153 (Supra) by the Supreme Court, cannot be made applicable to a criminal trial The only question in such a case would be whether the criminal trial in question is based upon facts which had actually been decided in exercise of jurisdiction under Article 226 of the Constitution of India. If they have been so decided and as a result of the appeal preferred from that decision, that decision had become final between the parties, to my rnind. it would not be open to the parties to render that decision ineffective by claiming to have the right to reagitate that question in a subsequent criminal trial. For the application of the general principles of res judicata, the nature of the proceedings according to the view of the Supreme Court are not very relevant. Whatever be the nature of the proceedings, the question which have been finally settled and set at rest between the parties in a previous proceeding before a competent Court, cannot be permitted to be reopened and reagitated in the subsequent proceedings I am therefore of the opinion, that, a matter finally decided between the parties under the writ jurisdiction, is one which cannot be allowed to be re-open ed and reagitated in a subsequent proceeding even though the subsequent proceeding is a criminal case I have already pointed out that one of the essential conclusions on which the learned Single judge had arrived was that the petitioners had not contravened the order in question That result, therefore is binding on the parties to the subsequent criminal case. That being so, I am in agreement with the view taken by the learned Sessions Judge and the reference must, therefore be accepted.
20. The references are accepted. The order of the Additional District Magistrate dated 13th September 1965 refusing to drop the criminal proceedings against the petitioners is set aside and it is directed that proceedings in prosecution of the petitioners pending in the Court of the Additional District Magistrate (Judicial) Varanasi be dropped.