9.

2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed
V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian
Evidence Act, 3rd ed > IX RELEVANCY OF JUDGMENTS OF COURTS > Sections 40–44

IX RELEVANCY OF JUDGMENTS OF COURTS

Sections 40–44

9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY

Section 40 provides:

Previous judgments relevant to bar a second suit or trial.—The existence of any judgment, order or decree which by
law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether
such Court ought to take cognizance of such suit or to hold such trial.

Section 40 says that where the question is whether a court should take cognizance of a suit or hold a trial, the fact
there is a judgment, order or decree which by law bars the court from proceeding with that case is a relevant fact. In
Ajay Singh v Chhattisgarh, 2017, (1) Supreme 335, paras 16, 17, the Supreme Court said:

though CrPC does not define the term “judgment”, yet it has clearly laid down how the judgment is to be pronounced”, and
that “a judgment, as has been always understood, is the expression of an opinion after due consideration of the facts which
deserve to be determined.

Section 2 (9) of Code of Civil Procedure 1908 (CPC 1908) defines a judgment as “the statement given by the judge
on the grounds of a decree or order”.1 Section 2 (2) defines a “decree” as meaning “the formal expression of an
adjudication which...conclusively determines the rights of the parties with regard to all or any of the matters in
controversy in the suit ... “2 Section 2 (14) states that an “order” means “the formal expression of any decision of a
Civil Court which is not a decree”. Thus, the judgment contains the decree or order and also states the grounds on
which the Court arrived at its adjudication after the consideration of evidence and the applicable law. Thus, section
40 provides that if in an earlier case the Court has finally adjudicated a matter, that judgment will be relevant in a
later case so as to bar the subsequent Court from reopening that matter again.3
9.2.1 Rationale

Section 40 is founded on the maxim nemo debet bis vexari pro una et eadem causa (no body shall be vexed twice
for one and the same cause) and the maxim interest republicae sit finis litium (it is in the interest of the State that
there should be an end to litigation). The Supreme Court observed:

It is true that maxim Nemo debet bis vexari pro una et eadem causa is founded on principle of private justice as it states
that no man ought to be twice put to trouble if it appear to the Court that it is for one and the same cause. The maxim
Interest republicae sit finis litium concerns the State that Law suits be not protracted. This maxim is based on public policy.4

In Indian Council For Enviro-Legal Action v UOI, 2011) 8 SCC 161, paras 114–115, the Supreme Court dealing with
a case where a party wantonly delayed with repetitive interlocutory applications the execution of the Apex Court’s
judgment rendered more than decade back, expressed its anguish and observed:

The maxim ‘interest Republicae ut sit finis litium’ says that it is for the public good that there be an end of litigation after a
long hierarchy of appeals. At some stage, it is necessary to put a quietus. It is rare that in an adversarial system, despite
the judges of the highest court doing their best, one or more parties may remain unsatisfied with the most correct decision.
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9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY

Opening door for a further appeal could be opening a flood gate which will cause more wrongs in the society at large at the
cost of rights. The controversy between the parties must come to an end at some stage and the judgment of this court must
be permitted to acquire finality.

Thus, the maxim incorporates the principle of (a) private convenience that a person should not be vexed twice for
the same cause, and (b) of public policy that it is in the best interests of peace and harmony of a State and the
people at large to ensure that there should be a finality to litigation,5 and that multiplicity of suits must be avoided.
The above principle finds application in both civil and criminal laws.6
9.2.2 Res judicata in Civil Law

In civil law the maxim is res judicata pro veritate accipitur or in short res judicata which means that when a case has
been finally adjudicated by a Court of competent jurisdiction the matter cannot be reopened and re-litigated again
between the same parties or their representatives in interest. “Res judicata literally means a—thing adjudicated or—
an issue that has been definitively settled by judicial decision”.7 This rule is incorporated in section 11 of the CPC
1908. Suppose A files a civil suit for damages for defamation against B and the Court finally dismisses his suit. A
cannot file another suit against B regarding the same matter because section 11 of CPC bars such repetitious and
vexatious suits. In Satyadhyan Ghosal v Deorajin Debi, AIR 1960 SC 941,8 explaining the principle of res judicata
the Supreme Court observed:

The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is
judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation, When a matter -
whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and
the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no
appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter
again. This principle of res judicata is embodied in relation to suits in S. 11 of the Code of Civil Procedure; but even where
S. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in
litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the
basis that the previous decision was correct.9

It has been held that:

Even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The
correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata.10

However, if in a litigation for a particular property a pure question of law had been decided, the decision will not
operate as res judicata in subsequent proceedings between the same parties but for different property.11 Though
section 40 uses the terms “suit or trial”, it is not necessary that all the issues that were the subject matter of the
earlier case should also form part of the lis in the later case or vice versa. For instance, where the question whether
A is the adopted son of B is settled by a Court holding in favour of A’s adoption, that judgment bars a later Court
dealing with partition of B’s properties from reopening the issue of A’s adoption. So the bar of res judicata can apply
even regarding a particular issue and this is called “issue estoppel”.12 As observed by the Law Commission,
“obviously, the section should be construed widely, so as to cover such cases also”.13 In Masud Khan v State of UP,
1974 AIR 28 : 1974 SCR (1) 79314 the Supreme Court observed:

Issue-estoppel arises only if the earlier as well as the subsequent proceedings were criminal prosecutions... 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... The rule thus relates only to the admissibility of evidence which is designed to upset a
finding of fact recorded by a competent court at a previous trial.15

9.2.3 Autrefois Convict and Autrefois Acquit in Criminal Law

What is Res Judicata to civil law, Autrefois Convict and Autrefois Acquit are to criminal law.16 The French words
autrefois convict mean “previously convicted” and autrefois acquit mean “previously acquitted”. Thus, where a
person has been tried for an offence and convicted or acquitted, as the case may be, finally by a Court of
competent jurisdiction, it is unfair to try him for the same offence all over again as such a prosecution amounts to
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9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY

persecution. Section 300 (1) of Code of Criminal Procedure 1973 (Cr PC 1973)17 incorporates both these principles
and provides:

A person who once has 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...

The Explanation to section 300 clarifies that “the dismissal of a complaint, or the discharge of the accused, is not an
acquittal for the purpose of this section”.18 Under section 203 of Cr PC, the complaint against a person can be
dismissed by the Magistrate if he “is of the opinion that there is no sufficient ground for proceeding”. Similarly, under
section 227 of Cr PC the Judge, after consideration of the record and after hearing the prosecution and the
accused, may discharge the accused if he considers that “there is no sufficient ground for proceeding against the
accused”.19 In the case of the dismissal of complaint or of the discharge of the accused, there is no commencement
of trial as such, and the preliminary condition of section 300 that the person should have been “tried” for an offence
and “convicted or acquitted” of such an offence is not fulfilled. So, the process of a fresh trial can be re-commenced
after such a dismissal of complaint or discharge of the accused.20

The above legal protection given to the accused under the doctrine of autrefois convict and autrefois acquit is also
referred to as the Doctrine of Double Jeopardy. The idea is that an accused should not be put to jeopardy or peril
of trial and punishment twice for the same offence. The Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution provides: “nor shall any person be subject for the same offence to be twice put in
jeopardy of life or limb”. It was reiterated by American Supreme Court in Bravo-Fernandez et al v US, (2016) 194 L
Ed 2d 585, that “the Clause protects against a second prosecution for the same offense after conviction; as well, it
protects against a second prosecution for the same offense after acquittal”.21

If the same act of the accused constitutes an offence under more than one criminal enactment, section 26 of the
General Clauses Act, 1897, provides that “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”. In other words,
if the same act is an offence under IPC, 1860 and also under the Prevention of Corruption Act, 1988 the offender
can be prosecuted and punished under either the IPC or PCA but not under both the enactments.22 In Lusmikant v
Bureau of Indian Standard Act,23 2015, the MP High Court observed:

In view of aforesaid judgments of Supreme Court, it is clear that the litmus test to ascertain whether two offences are the
same is not the factual foundation or identity of allegations but the identity of the ingredient of offence”.

It is interesting to note that this substantive right of the accused against Double Jeopardy is provided for in
procedural Codes like Cr PC and the Indian Evidence Act, 1872.24

Article 20 (2) of the Constitution elevates the protection against Double Jeopardy to that of a fundamental right
and provides: “No person shall be prosecuted and punished for the same offence more than once”. As this
Constitutional provision requires that the accused must have been “prosecuted and punished”, it is evident that for
the right to be available to the accused (i) the prosecution must have taken place and (ii) the accused must have
been punished. The requirement of prosecution eliminates mere dismissal of complaint or discharge of the accused
and places the Constitutional provision on par with the Explanation to section 300 of Cr PC. On the other hand, the
requirement of punishment covers only autrefois convict and omits autrefois acquit.25 Thus, while both autrefois
convict and autrefois acquit are protected as ordinary legal rights under section 30026 (and, hence, also under
section 40 of the Evidence Act, 1872), autrefois convict is elevated to the position of not only a constitutional right
but also a fundamental right.27

Explaining the operation of the doctrine of aurefois acquit, in Sambasivam v Public, Prosecutor, Federation of
Malaya, 1950 AC 458, Lord MacDermott speaking for the Privy Council said:

the effect of a verdict of an 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.28

It must, however, be mentioned that doctrines of autrefois convict and autrefois acquit bar only the State from
repeated prosecutions and/or convictions of an accused for the same offence, and the doctrines are not a complete
extension of res judicata or constructive res judicata or issue estoppel to criminal law and hence, in Kalyan Chandra
Sarkar v Rajesh Ranjan alias Pappu Yadav, (2005) 3 SCC 284 the Supreme Court observed that “the principles of
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9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY

res judicata and such analogous principles ... are not applicable in a criminal proceeding”. Thus, there is no bar
against the accused filing successive habeas corpus petitions under Articles 226 or 32 of the Constitution,29 or bail
petitions30 even if the earlier petitions have been dismissed.
9.2.4 UK “Abrogates” Doctrine of Double Jeopardy

In the case of R v Norris, [2013] EWCA Crim 712, the Court of Appeal has observed that section 76 of the Criminal
Justice Act of 2003 has “abrogated” the doctrine of Double Jeopardy. Section 76 provides:

(1) A prosecutor may apply to the Court of Appeal for an order—

(a) quashing a person’s acquittal in proceedings within section 75 (1), and
(b) ordering him to be retried for the qualifying offence.
(2) A prosecutor may apply to the Court of Appeal, in the case of a person acquitted elsewhere than in the
United Kingdom, for—
(a) a determination whether the acquittal is a bar to the person being tried in England and Wales for the
qualifying offence, and
(b) if it is, an order that the acquittal is not to be a bar.
(3) A prosecutor may make an application under subsection (1) or (2) only with the written consent of the
Director of Public Prosecutions.
(4) The Director of Public Prosecutions may give his consent only if satisfied that—
(a) there is evidence as respects which the requirements of section 78 appear to be met,
(b) it is in the public interest for the application to proceed, and
(c) any trial pursuant to an order on the application would not be inconsistent with obligations of the United
Kingdom under Article 31 or 34 of the Treaty on European Union relating to the principle of ne bis in
idem.
(5) Not more than one application may be made under subsection (1) or (2) in relation to an acquittal.

The terms “qualifying offence” in section 76 (1)(a) mean, according to section 75 (8), the offences listed out in Part I
of Sch 5 of the Act which includes a fairly long list of serious offences like murder, manslaughter and rape. Section
78, to which reference is made above in section 76 (4)(a), deals with “New and Compelling Evidence” and provides:

(1) The requirements of this section are met if there is new and compelling evidence against the acquitted
person in relation to the qualifying offence.
(2) Evidence is new if it was not adduced in the proceedings in which the person was acquitted (nor, if those
were appeal proceedings, in earlier proceedings to which the appeal related).
(3) Evidence is compelling if—
(a) it is reliable,
(b) it is substantial, and
(c) in the context of the outstanding issues, it appears highly probative of the case against the acquitted
person.
(4) The outstanding issues are the issues in dispute in the proceedings in which the person was acquitted and,
if those were appeal proceedings, any other issues remaining in dispute from earlier proceedings to which
the appeal related.
(5) For the purposes of this section, it is irrelevant whether any evidence would have been admissible in earlier
proceedings against the acquitted person.

In Norris case referred to above, Norris and Dobson and three other whites were arrested for the brutal murder of
Stephen Lawrence, a black man, but the prosecutions were either discontinued as in Norris’ case or resulted in
acquittal as in Dobson’s case for insufficient evidence. Charges of racist prejudice were made against the
investigation, and private prosecutions were commenced. A public enquiry under the chairmanship of Sir William
Macpherson of Cluny was set up and in 1999 his report31 recommended, inter alia, that the rule of Double
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9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY

Jeopardy “should be abrogated: this change was effected by section 76 of the Criminal Justice Act, 2003”.32 In the
case of the other accused prosecuted in R v Dobson, [2011] EWCA Crim 1256 : [2011] 1 WLR 3230 the Court of
Appeal characterized Double Jeopardy as “ancient rule”33 and ordered fresh trial on prosecution applying for
quashing of the acquittal on providing new and compelling forensic evidence under section 76 read with section 78
of CJA. The Court observed:

This decision means, and we emphasise that it means no more than that the question whether Dobson had any criminal
involvement in Stephen Lawrence’s death must be considered afresh by a new jury which will examine the evidence and
decide whether the allegation against him is proved. The presumption of innocence continues to apply.34

Norris was rearrested and the Court of Appeal rejected Norris’ plea that the trial judge was wrong in referring to the
jury the forensic evidence, and the Court paved the way for the trial of Norris’ as his prosecution was earlier
abandoned and he was not tried as was the case with Dobson. No quashing of acquittal was found necessary as
there was not even a trial as such.
9.2.5 Section 40 and Judgments in Civil and Criminal cases inter se

The maxim nemo debet bis vexari operates as a bar between civil cases inter se and criminal cases inter se but not
between civil cases and criminal cases. Suppose, A prosecutes B for committing adultery with A’s wife and B is
convicted. Subsequently, A files a suit for divorce against his wife on the ground of adultery with B. Though, the first
is a criminal case and the second a civil suit, the issue in both the cases is whether B committed adultery with A’s
wife. Nevertheless, the judgment in adultery case is not applicable to the divorce suit and the second Court has to
independently arrive at its own conclusion whether A’s wife committed adultery with B. This is so even though the
standard of proof required in the criminal case of adultery is proof beyond all reasonable doubt which is higher than
the test of mere preponderance of probabilities in the civil case of divorce. Even the evidence of witnesses recorded
in the adultery case cannot be used in the divorce case under section 33 as the parties were different—in the
former case the parties were A and B35 and in the latter they were A and his wife.36 The resultant legal position will
be same even if the sequence of judgments is reversed and the divorce case is decided first and the criminal
prosecution for adultery later. However, if in the earlier criminal case the judgment was founded on the plea of guilty
by the accused, that plea and the judgment can be proved in the subsequent civil case if the same issue arises
again.37

However, there has been conflict of opinion on the inter se operability of judgments in civil and criminal cases. The
Privy Council observed in Emperor v Khwaja Nazir Ahmad, AIR (32) 1945 PC 18, para 28, that “it is conceded that
the findings in a civil proceeding are not binding in a subsequent prosecution founded upon the same or similar
allegations”. In Karam Chand Ganga Prasad v UOI, AIR 1971 SC 1244 : 1971 Cr LJ 1072 : (1970) 3 SCC 694, para
4, it was held: It is a well established principle of law that the decisions of the civil Courts are binding on the criminal
Courts. The converse is not true”. In BN Kashyap v Emperor, AIR 1945 Lahore 23, it was stated that:

to hold that...it would not be open to criminal Courts to go behind the findings of the civil court is to place the latter without
any valid reason in a much higher position than what it actually occupies in the system of administration in this country.

In MS Sheriff v Madras, AIR 1954 SC 397 a Constitutional Bench of the Supreme Court had to deal with a different
but related issue of precedence between two parallel civil suits for damages for wrongful confinement and two
criminal prosecutions under IPC for wrongful confinement. Pointing out that “there is some difference of opinion in
the High Courts of India on this point”, the Apex Court held that “as between the civil and the criminal proceedings
we are of the opinion that the criminal matters should be given precedence”. The Apex Court opined that (1) “a civil
suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned
has forgotten all about the crime”; and (2) “it is undesirable to let things glide till memories have grown too dim to
trust” [of witnesses]. But, “this, however, is not a hard and fast rule. Special considerations obtaining in any
particular case might make some other course more expedient and just. For example, the civil case or the other
criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a
prosecution”. However, in V M Shah v Maharashtra, 1996 AIR 339 : 1995 SCC (5) 767 after noting the decision in
MS Sheriff, the Apex Court held that, as there is no hard and fast rule, “the findings recorded by the criminal court
stand superseded by the findings recorded by the civil court”, particularly when the civil Court “after full dressed trial
recorded the finding”.

Finally, in KG Premshanker v Inspector of Police, (2002) 8 SCC 87, the Supreme Court held that:

If the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if
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9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY

conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as
provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein. In the
present case, the decision rendered by the Constitution Bench in M.S. Sheriff’s case... would be binding, Hence, the
observation made by this Court in V. M. Shah v State of Maharashtra and anr.38 that the finding recorded by the criminal
Court stands superseded by the finding recorded by the civil Court is not correct enunciation of law.39

In other words, there is no automatic rule of precedence between judgments in civil and criminal cases. If the
judgment in a civil case comes under sections 40 to 43, such a judgment will be “relevant” in a criminal case and
the Criminal Court will consider it depending on the circumstances of the case (as in V M Shah), but if the judgment
is conclusive under the terms of section 41 it will prevail and be binding on the criminal Court.

In the Australian case of Beckett v The State of New South Wales, [2013] HCA 17 the Director of Public
Prosecutions directed that eight charges of offences alleged to have been committed by Becket against her
husband should not be proceeded with. The trial judge treated that direction as nolle prosequi (prosecution’s plea of
“unwilling to prosecute”) and followed Davis v Gell, [1924] HCA 56 : (1924) 35 CLR 275, which held that:

acquittal connotes (a) termination of the proceedings and (b) innocence of the accused. Nolle prosequi connotes the first
only. This effect it must have on the civil action. But innocence in that case still remains to be proved in order to maintain
the action and cannot be assumed....where there is termination but no acquittal the question of guilt is open.40

In Becket, the High Court of Australia declined to follow its earlier decision in Davis and held that in all proceedings
in which the prosecution has, for whatever reason, terminated favourably to the plaintiff, she is not required to prove
her innocence. The relevance of these decisions for the purpose of the discussion of inter se operability of
judgments in civil and criminal cases is not that a judgment in a criminal case acquitting the accused is relevant in a
subsequent civil case. In the case of civil suit for malicious prosecution, an essential ingredient, inter alia, is that the
plaintiff has been acquitted of the charge in the earlier criminal case maliciously filed by the defendant. Thus, the
prior decision of acquittal is a fact in issue41 in the later civil suit. The Becket decision holds that the effect of plea of
nolle prosequi in the earlier criminal case is the same as acquittal after trial.42 Section 321 of Indian Cr PC also
provides for “Withdrawal from prosecution” and states:

The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time
before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one
or more of the offences for which he is tried” and that would result in discharge if no charge has been framed, or in acquittal
if charge has been framed.

9.2.6 Article 311 (2) of Indian Constitution

Article 311 of the Indian Constitution deals with penalties in the service by way of “dismissal, removal or reduction
in rank” of a civil servant and provides in clause (2) that the penalty cannot be imposed “except after an enquiry” in
which the incumbent is (a) informed of the charges and (b) he has been given an opportunity of being heard with
regard to those charges. However, the second proviso to that clause says that the clause “shall not apply— (a)
where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his
conviction on a criminal charge”. Suppose, a civil servant was found to indulge in corruption in the discharge of his
duties which is a ground for disciplinary action as well as a criminal prosecution. Then, the requirements as to
enquiry, intimation of charges and the right to be heard under Article 311 (2) shall be dispensed with and the
penalty may be imposed on the incumbent in disciplinary proceedings if he was convicted by a criminal court for the
very same conduct, which is also a crime. The terms “shall not apply” in the proviso indicate that the conviction
operates as a bar to the disciplinary enquiry.
9.2.7 Double Jeopardy under Article 20 (3) and Disciplinary Proceedings

As pointed out above, for the same cause of action like accepting a bribe, a person may be proceeded against in a
disciplinary proceeding and also prosecuted under criminal law if that conduct amounts to an offence. Maqbool
Hussain v Bombay, [1953] SCR 703 it was held that the proceedings in connection with the prosecution and
punishment of a person must be in the nature of a criminal proceeding, before a court of law or judicial tribunal, and
not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute,
but which is not required by law to try a matter judicially and on legal evidence. In Venkataraman v UOI, AIR 1954
SC 375 the question arose whether disciplinary proceedings before the commissioner of enquiry under conduct
rules of an employee and the employee’s prosecution under criminal law would amount to double jeopardy. The
Supreme Court rejected the appellant’s contention on the grounds that (a) the commissioner of enquiry was merely
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9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY

a fact-finding authority who would report his findings without the power to take action and (b) “if we are to accept the
petitioner’s contention as correct, the man cannot be prosecuted for it, even though the authority inflicting the
penalty of removal was not a competent court to investigate any criminal charge nor was the punishment imposed
in exercise of disciplinary jurisdiction a punishment for an offence”.

The same legal position holds good even in the United States and it is said that the disciplinary proceedings are
“free of punitive criminal intent” and are therefore not “essentially criminal in nature”.43
9.2.8 Successive Disciplinary Proceedings and Double Jeopardy– English Case (2011)

In R (on the application of Coke-Wallis) v Institute of Chartered Accountants in England and Wales (2011), AIR
1954 SC 375 an interesting question arose whether double jeopardy will bar successive disciplinary proceedings.
In that case, the appellant, Coke-Wallis, was a chartered accountant and a member of the respondent Institute of
Chartered Accountants in England and Wales, which was the professional body responsible for the regulation of
chartered accountants. Coke-Wallis formerly practised in Jersey, Scotland, where he and his wife were directors
and shareholders in a number of trust companies carrying out regulated financial services work. In September 2003
Coke-Wallis and his wife were convicted in Jersey of failing to comply with a direction of the Jersey Financial
Services Commission that no records or files in respect of the companies were to be removed from the offices of
the companies, having been caught by police attempting to take away by ferry suitcases containing documents and
records relating to the companies from the jurisdiction of the Jersey authorities. In November 2004, relying on the
Jersey conviction, the Institute’s Investigation Committee preferred a complaint (“first complaint”) against Coke-
Wallis, alleging that he was liable to disciplinary action under the Institute’s bye-laws. The first complaint was
dismissed by a disciplinary committee (“the tribunal”) in April 2005 on the basis that the tribunal was not satisfied
that the offence of which Mr Coke-Wallis was convicted in Jersey corresponded with any indictable offence in
England and Wales. When the Institute initiated second complaint against Coke-Wallis on substantially same
charges, he approached the Courts on the ground that the proceedings on the second complaint after the dismissal
of the first complaint were violative of autre fois/res judicata doctrine. After his appeal was dismissed by the Court of
Appeals, Coke-Wallis approached the Supreme Court of the UK and the main question before the Court was
whether the double jeopardy doctrine applied to second disciplinary proceeding after the failure of the first
disciplinary proceeding. The Supreme Court unanimously allowed the appeal and held that the principle of res
judicata required that the second complaint be dismissed. Earlier also in Harry Lee Wee v Law Society of
Singapore, [1985] 1 WLR 362, Lord Bridge said:

No one would dispute that the doctrine of autrefois convict and acquit is applicable to disciplinary proceedings under a
statutory code by which any profession is governed.44

Both in Harry Lee Wee and Coke-Wallis the Courts considered the question from the angle also of professions like
health care where stringent disciplinary actions by professional monitoring bodies might be necessary to protect the
patients’ interests, but, still, they considered nemo debit bis vexare maxim to be too transcendental.45
9.2.8.1 Multiple Investigations

The Doctrine of Double Jeopardy applies only to prevent retrial of an accused for the same offence after he has
been duly tried and acquitted or convicted finally, as the case may be, by a court of competent jurisdiction. As was
discussed above, if the accused is merely discharged, he can be tried. The law also provides safe-guards to the
accused person to ensure speedy and fair trial to protect him against prolonged investigations by the police and
prolonged trials by the courts which can cause jeopardy to the personal liberty and freedom of the accused. The
doctrine does not per se bar multiple investigations by the police with regard to the same accused for the same
offence though such vexatious investigations can cause considerable harassment to the accused. In Emperor v
Khwaja Nazir Ahmad, AIR (32) 1945 PC 18 the Privy Council spelt out the power of the investigation of the police,
as follows:

In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged
cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an
unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent
jurisdiction of the Court.

In fact, interference and directions to the police by the Court in the process of investigation after it has taken
cognizance of the case and issued process might cause apprehensions of bias. In TT Antony v Kerala, (2001) 6
SCC 181, the Supreme Court pointed out that harassment could be meted out to the accused by repeated
investigations and observed:
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However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the
police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive
FIRs whether before or after filing the final report under Section 173 (2) Cr.P.C. It would clearly be beyond the purview of
Sections 154 and 156 Cr.P.C. nay, a case of abuse of the statutory power of investigation in a given case.

In Amrutbhai Shambhubhai Patel v Sumanbhai Kantibhai Patel, 3 (2017) 4 SCC 177 : 2017 Cr LR (SC) 219 the
Court referred to the powers of the trial Court under section 311, Cr PC 1973, to summon witnesses and under
section 319 to add accused, and held:

neither the learned Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation.
Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting
further investigation on the detection of material evidence only to secure fair investigation and trial.

In Athul Rao v Karnataka,46 after the police investigated the complaint filed by the mother of the second
complainant, completely investigated the case, and filed charge sheet, and the trial Court issued the process, the
second complainant filed the complainant alleging other offences arising out of the same incident, the Court held
that the trial Court was right in rejecting the second complaint, and said:

The respondent No. 2 is not the complainant. The complaint in question was instituted by the mother of respondent no. 2.
She was not the applicant [in the present appeal]. In any case, at the instance of respondent no. 2, it was not open to the
Court to direct further investigation as the Trial Court had already framed charges and taken cognizance of the case against
the appellant who appeared before it in the said proceedings. The prayer for further investigation was not at the instance of
the investigating agency nor on the ground of detection of material evidence.

1 The Court also said: “The provisions clearly spell out that it is imperative on the part of the learned trial judge to
pronounce the judgment in open court by delivering the whole of the judgment or by reading out the whole of the
judgment or by reading out the operative part of the judgment”. It has been held by Madras High Court in Re
Athipalayan, (1960) 2 Mad LJ 450, para 4, that “the judgment must be pronounced in open court, signed and dated”. In
both the above cases, the trial judge merely announced the conviction and sentence but did not write and sign and
pronounce the judgment. In Ajay Singh, the Court said, at para 19, “as is evincible in the instant case, the judgment is
not available on record and hence, there can be no shadow of doubt that the declaration of the result cannot
tantamount to a judgment as prescribed in the Cr PC “.
2 In Rishabh Chand Jain v Ginesh Chandra Jain, (2016) 6 SCC 675, it was stated: “In terms of section 2 (2), it is only
where court adjudicating a case, conclusively determines rights of parties with regard to any one or more or all matters
in controversy, that it qualifies as “decree”.
3 In Maharashtra v Ramdas Shrinivas Nayak, (1982) 2 SCC 463, the Supreme Court has held that “the principle is well
settled that statements of fact as to what transpired at the hearing recorded in the judgment of the court are conclusive
of the facts so stated and no one can contradict such statements by affidavit or other evidence”.
4 Commissioner of Central Excise, Nagpur v Shree Baidyanath Ayurved Bhavan Ltd, (2009) 12 SCC 419.
5 Nagabhushanammal (D) by LRS v Chandikeswaralingam, 2016 (3) Scale 5.
6 See the discussion under section 115 on doctrine of cause of action estoppel and issue estoppel.
7 Nagabhushanammal (D) by LRS v Chandikeswaralingam, 2016 (3) Scale 5, para 14. However, if in a litigation in
between the same parties for a particular property, a pure question of law had been decided, the decision will not
operate as res judicata in subsequent proceedings for different property. Satyendra v Raj Nath Dubey, AIR 2016 SC
2231.
8 In Sheoparsan Singh v Ramnandan Singh, AIR 1916 PC 78, Privy Council observed: “Though the rule of the Code may
be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the
Hindu commentators. Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by law,
each citing for this purpose the text of Katyayana, who describes the plea thus: “If a person though defeated at law, sue
again, he should be answered, ‘you were defeated formerly’. This is called the plea of former judgment.’... And so the
application of the rule by the courts in India should be influenced by no technical considerations of form, but by matter
of substance within the limits allowed by law”.
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9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY

9 Dr Subramanian Swamy v State of TN, (2014), para 24 AIR 2015 SC 460 : 2015 (2) SCJ 47. Also, Tarini Charan
Bhattacharjee v Kedar Nath Haldar, (1928), 115 Ind Cas 593. “The question whether a decision is correct or erroneous
has no bearing upon the question whether it operates or does not operate as res judicata”; Abhoy Kanta Gohain v
Gopinath Deb Goswami, AIR 1943 Cal 460 : “Correctness or otherwise of a judicial decision has no bearing upon the
question whether or not it operates as res judicata”.
10 Satyendra Kumar v Raj Nath Dubey, AIR 2016 SC 2231.
11 See the discussion under section 115 on “Issue Estoppel”.
12 The 69th Report of the Law Commission, p 296, para 16:6.
13 In Assistant Collector of Customs v L R Malwani, AIR 1970 SC 962, it was said: “The issue estoppel rule is but a facet
of the doctrine of autrefois acquit”.
14 In State ofAP v Kokkiliagada Meerayya, AIR 1970 SC 771 : 1969 SCR (2) 62, the Court said: “the rule of issue estoppel
in criminal trials evolved by the High Court of Australia and approved by the Judicial Committee has been applied to
criminal trials in India, apart from the terms of section 403 of the Code of Criminal Procedure [1898]” and the Court
referred to a number of decisions where the Apex Court approved and applied the rule. In Connelly v Director of Public
Prosecutions, [1964] 2 AC 1254 , Lord Lawton stated: “there is some English authority and a large amount of
Australian, New Zealand and United States authority to support the submission that where, in the course of deciding a
total cause of action, one specific issue is determined, then, if that issue arises as an essential ingredient in subsequent
proceedings between the same parties, that issue cannot be relitigated”. Also in Sealfron v US, (1948) 332 US Rep.
575.
15 In Connelly v Director of Public Prosecutions, [1964] AC 1254 : [1964] 2 All ER 401, it was said: “In civil law the doctrine
of res judicata occupies the same place as the plea of autrefois does in the criminal law”. In Pritam Singh v Punjab, AIR
1956 SC 415 : 1956 Cr LJ 805, the Apex Court stated that “The maxim ‘res judicata pro veritate accipitur’ is no less
applicable to criminal than to civil proceedings”. Also, Sambasivam v Public, Prosecutor, Federation of Malaya, 1950
AC 458 PC, (per Lord MacDermott). See for an exhaustive discussion of case-law, Moosa v Sub Inspector of Police,
2006 Cr LJ 1922 : 2006 (1) Ker LT 552 (per PR Raman, J).
16 Before the Cr PC 1973 was amended by the Act II of 1974, the corresponding section was section 403.
17 In Ratilal Bhanji Mithani v Maharashtra, 1979 AIR 94 : 1979 SCR (1) 993, the Supreme Court observed: “it is clear that
in a warrant case instituted otherwise on a police report, ‘discharge’ or ‘acquittal’ of accused are distinct concepts
applicable to different stages of the proceedings in Court. The legal effect and incidents of ‘discharge’ and ‘acquittal’ are
also different”.
18 In UOI v Prafulla Kumar Samal, (1979) 3 SCC 4, the Apex Court said: “The Judge while considering the question of
framing the charges under section 227 of the Cr PC 1973 has the undoubted power to sift and weigh the evidence for
the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to
determine prima facie case would depend upon the facts of each case”. Also, Sajjan Kumar v CBI, JT 2010 (10) SC
413 : (2010) 9 SCC 368.
19 Where on the first complaint the accused has been discharged, it was held that “proceedings in the second complaint
would not be barred, because no trial had been conducted against the respondent, in furtherance of the first complaint”.
Ravinder Kaur v Anil Kumar, 2015 (4) Supreme 208. In the decision of Martinez v Illinois, 572 US _(2014), the
prosecution, after being given repeated adjournments for producing two key witnesses, failed to produce them and
submitted that it would not “participate” in the prosecution any more, the trial judge swore in the jury and proceeded to
give the verdict of not guilty. The Supreme Court of Illinois reversed the trial court verdict and held that Martinez’s trial
has not started and he “was never at risk of conviction” as the prosecution did not commence and that he could still be
prosecuted. The US Supreme Court, reversing the decision of Illinois Supreme Court, held that it “consistently treated
as a bright-line rule: A jury trial begins, and jeop ardy attaches, when the jury is sworn” and that “Martinez was
subjected to jeopardy because the jury in his case was sworn .... Here, there is no doubt that Martinez’s jeopardy
ended in a manner that bars his retrial: The trial court acquitted him of the charged of fenses”. In Director of Public
Prosecutions v Jarman, [2013] All ER (D) 116, when J’s case was listed for trial the prosecutor was not present and the
case was dismissed for want of prosecution. The prosecution then issued information for the same offence which was
stayed on the basis of autrefois acquit. The Magistrates’ Courts Act, 1980 provides in section 27: “Effect of dismissal of
information for offence triable either way. Where on the summary trial of an information for an offence triable either way
the court dismisses the information, the dismissal shall have the same effect as an acquittal on indictment”. Section 15
says: “Non appearance of prosecutor. (1) Where at the time and place appointed for the trial or adjourned trial of an
information the accused appears or is brought before the court and the prosecutor does not appear, the court may
dismiss the information or, if evidence has been received on a previous occasion, proceed in the absence of the
prosecutor. (2) Where, instead of dismissing the information or proceeding in the absence of the prosecutor, the court
adjourns the trial, it shall not remand the accused in custody unless he has been brought from custody or cannot be
remanded on bail by reason of his failure to find sureties”. On appeal by DPP, lifting the stay, it was held that “a
dismissal under section 15 Magistrates’ Courts Act, 1980 did not have the same meaning as under section 27 as in the
instant case J was charged with a summary only matter. The defendant had not been in peril of conviction and
therefore autrefois acquit did not apply”. In relation to England and Wales, the expression “offence triable either way”
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9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY

means an offence, other than an offence triable on indictment only by virtue of Part V of the Criminal Justice Act, 1988,
which, if committed by an adult, is triable either on indictment or summarily.
20 The courts in United States were confronted with the problem of “issue estoppel” in cases where the jury gave
contradictory verdicts on the same facts and similar issues and the accused claimed acquittal on one charge because
they have been acquitted on the other charge on identical facts. Sometimes, the jury gave conviction verdict on the
compound offence but acquittal verdict on a component offence or one hung verdict. In Bravo-Fernandez, the accused
were convicted of giving and taking bribe for securing favourable legislation from the State Senate but were acquitted of
conspiracy which went undisputed in bribery charge. The Trial Court wrongly counseled the jury that “gratuity” is the
same as “bribery” and their conviction on that count by the jury was vacated on appeal. The Supreme Court, relying on
US v Powell, 469 US 57, 63, 65 (1984), held that the “Powell’s starting point was our holding in Dunn v US, 284 US 390
(1932), that a criminal defendant may not attack a jury’s finding of guilt on one count as inconsistent with the jury’s
verdict of acquittal on another count”. The Court also held that “issue-preclusion component of the Double Jeopardy
Clause does not bar the Government from retrying defendants, like petitioners, after a jury has returned irreconcilably
inconsistent verdicts of conviction and acquittal and the convictions are later vacated for legal error unrelated to the
inconsistency”. Bravo-Fernandez et al v US, (2016) 194 L. Ed 2d 585, pp 12–19. Lissa Griffin, “Untangling Double
Jeopardy in Mixed-Verdict Cases”, 63 SMU L Rev 1033 (2010), http://digitalcommons.pace.edu/lawfaculty/658/ (last
accessed in April 2019); Daniel K Mayers & Fletcher L Yarbrough, “Bis Vexari: New Trials and Successive
Prosecutions”, 74 Harv. L. Rev. 1, (1960), pp 38–39.
21 In a long chain of decisions, the Supreme Court and the High Courts have consistently held that under Article 20 (2),
section 300 of the Cr PC 1973 and section 26 of the General Clauses Act, the bar of Double Jeopardy applies only
when the two offences are identical i.e., their ingredients are the same. If the two offences are distinct, mere similarity
of facts or allegations in the prosecutions do not make them identical. Maqbool Hussain v Bombay, (1953) 4 SCR 730;
TS Baliah v TS Rangachari, (1969) 3 SCR 65; Bombay v SL Apte, (1961) 3 SCR 107; VK Agarwal v Vasantraj B
Bhatia, (1988) 3 SCC 467; Rajasthan v Hat Singh (2003) 2 SCC 152; Jeewan Kumar Raut v CBI, 1994 (2009) 7 SCC
526; Leo Roy Frey v Superintendent, District Jail, [1958] SCJ 301 : 1958 SCR 822 : AIR 1958 SC 119 : [1958] Mad LJ
(Crl) 289; RR Sinha v Jharkhand (2011), Om Prakash v The State, AIR 1955 All 275 : 1955 Cr LJ 754. If one of the
actions against the accused is an executive one like confiscation of property and not a judicial prosecution, the bar
does not apply. Maqbool Hussain v Bombay, (1953) 4 SCR 730. Under Article 20 (2) there should be both prosecution
and punishment. SA Venkataraman v UOI, (1954) SCR 1150. In Gian Chand Madhok v State (MP),1954 Cr LJ 1481, it
was held that difference in the punishment, the requirement as to prior sanction for prosecution and the special rules of
evidence cannot make it an offence. Justice MC Chagla held in The State v Pandurang Baburao, AIR 1955 Bom 451 :
(1955) 57 Bom LR 868 that “there is clear legislative sanction in favour of the option to be exercised by the prosecution”
whether to prosecute under one or the other enactments. Also, Re Bapanaiah, AIR 1970 AP 47, 1970 Cr LJ 199.
22 Lusmikant v Bureau of Indian Standard Act, Madhya Pradesh, para 16, Misc. Criminal Case No. 5411/2014, decided on
2 September 2015 (Madhya Pradesh High Court).
23 Prior to amendment, section 491 of Cr PC 1898, conferred the statutory right to the writ of Habeas Corpus which is now
a fundamental right under Article 32 (Supreme Court) and a constitutional right under Article 226 (High Courts).
24 Section 120 of the Indian Air Force Act, 1950, provides: “When any person subject to this Act has been acquitted or
convicted of an offence by a court-martial or by a criminal court, ... he shall not be liable to be tried again for the same
offence by a court-martial or dealt with under the said sections”. (See also, section 121 of the Army Act in similar
terms). On the other hand, section 126 states: “Successive trials by a criminal court and a court-martial. (1) A person
convicted or acquitted by a court-martial may, with the previous sanction of the Central Government, be tried again by a
criminal court for the same offence, or on the same facts”. Thus, section 120 bars a retrial of a service person for the
same offence by a Court Martial after he has been acquitted or convicted by a Criminal Court or Court Martial, section
126 permits retrial of a service person by a Criminal Court with the prior sanction of the Central Government after he
has been convicted or acquitted by a Court Martial. Article 33 says that “Parliament may, by law, determine to what
extent any of the rights conferred by this Part shall, in their application to,—(a) the members of the Armed Forces; or ...
be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among
them”. Section 1 of the Evidence Act, 1872 excludes its application to Courts Martial set up under the Army, Navy and
Air Force acts.
25 In State of AP v Kokkiliagada Meerayya, AIR 771 : 1969 SCR (2) 626, the Supreme Court said that section 403 Cr PC,
1898 (present section 300), “governs the entire principle of autrefois acquit and autrefois convict”.
26 Venkataraman v UOI, AIR 1954 SC 375.
27 This statement of the law was quoted with approval by the Supreme Court in Pritam Singh v Punjab, AIR 1956 SC 415 :
1956 Cr LJ 805; Piara Singh v Punjab, 1969 1 SCC 379; and Manipur Administration v Thokchom Bira Singh, 1964 7
SCR 123.
28 Ghulam Sarwar v UOI, AIR 1967 SC 1335 (Article 226); Srikant v District Magistrate, (2007) 1 SCC 486; Lallubhai
Jogibhai Patel v UOI, AIR 1981 SC 728; Nazul Ali Molla v State of WB, 1969 (3) SCC 698 (Articles 226 and 32).
29 Kalyan Chandra Sarkar v Rajesh Ranjan alias Pappu Yadav, (2005) 3 SCC 284.
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9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY

30 See The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William MacPherson of Cluny, 1999, (Command
Papers, No. 4262-I), available at http://www.archive.official-documents.co.uk/document/cm42/4262/sli-47.htm (last
accessed April 2019). The report recommended, inter alia: “38. That consideration should be given to the Court of
Appeal being given power to permit prosecution after acquittal where fresh and viable evidence is presented”. The Law
Commission of UK in its Report on “Double Jeopardy and Prosecution Appeals”, March 2001, Part VIII,
http://www.lawcom.gov.uk (last accessed April 2019), also recommended that the rule “should be subject to an
exception in certain cases where evidence is discovered after an acquittal”. The exception should be confined to cases
of homicide like murder, genocide. R v Norris, [2013] EWCA Crim 712, para 1). It was also said that the evidence
should be “reliable and compelling” (para 3) and it should be in the “interests of justice” that there should be a retrial,
(para 4). The “appropriate Court” will be the Court of Appeal, Criminal Division, (para 5). Lord Auld, welcoming the Law
Commission’s exception “under stringent standards”, proposed that the exception should be extended to other graver
offences also. Lord Justice Auld, Review of the Criminal Courts of England and Wales, 2001, chapter 12, para 63,
http://webarchive.nationalarchives.gov. uk/+/http://www.criminal-courts-review.org.uk/ccr-00.htm (last accessed April
2019). The CJA has, in fact, extended the exception to other non-homicidal grave offences. However, Michael Zander
sounds a warning and says: “This is novel and potentially very difficult and controversial terrain. Testing the workings of
the concept for a few years would enable every one ... to get the feel of it in order to decide whether it should be
retained, scrapped or extended”. Michael Zander QC, “Lord Justice Auld’s Review of the Criminal Courts—a
Response”, http://www.lse.ac.uk/collections/law/staff%20publications%20 full%20text/zander/auld_response_web.pdf
(last accessed April 2019).
31 R v Norris, [2013] EWCA Crim 712, para 2. It is submitted, with respect, that the report did not propose the abrogation,
as such, of Double Jeopardy rule but, as mentioned above, only that the Court of Appeal be authorized “to permit
prosecution after acquittal where fresh and viable evidence is presented”. In fact, under CJA, certain preconditions are
to be met before a retrial can start: (1) the offence must be a “qualifying offence”; (2) The DPP must give his written
permission; (3) DPP must satisfy himself that (a) new and compelling evidence is available and (b) it is in public interest
to retry the accused; and (4) the prior acquittal is quashed and retrial is ordered by the Court of Appeal. See also,
Alisdair Gillespie, The English Legal System, (Oxford, 2007), p 398; and Nyssa Taylor, “England and Australia Relax
the Double Jeopardy Privilege for Those Convicted of Serious Crimes”, 19 Temple International & Comparative Law
Journal, (2005), p 189 ff.
32 R v Dobson, [2011] EWCA Crim 1256 : [2011] 1 WLR 3230, para 5.
33 Ibid, para 15.
34 As mentioned in the discussion under section 33, though the State is a party as the prosecutor in the criminal case of
adultery, as the complainant is also deemed to be party.
35 See, Gulab Chand v Chunnilal, (1907) 9 Bomb LR 1134. In that case of civil suit for damages for malicious prosecution,
the Court held that the judgment of acquittal and the evidence recorded in the earlier criminal case against the present
plaintiff were inadmissible.
36 B Meenakshisundaram Chetty v Kuttimalu, (1958) Ker 39.
37 V M Shah v State of Maharashtra, 1996 AIR 339 : 1995 SCC (5) 767.
38 Followed in Air Customs Officer Igi New Delhi v Pramod Kumar Dhamija, AIR 2016 SC 934 : 2016 (3) SCJ 217.
39 Emphasis in the original.
40 See, the discussion on relevancy of a judgment as a fact in issue under section 43 below.
41 In Davis the Court opined that the termination of prosecution by nolle prosequi may be favourable to the accused in the
sense that the criminal proceedings come to an end but that is not the same thing as acquittal. See, the discussion on
relevancy of a judgment as a fact in issue under section 43 below. With respect, it is submitted that Beckett was rightly
decided. If the termination of proceedings on the plea of nolle prosequi is not treated as amounting to acquittal and the
“question of guilt is open” as Davis held, the accused will be at a great disadvantage as he is left with no legal means of
proving his innocence in the earlier criminal case, and proceeding against the malicious accuser. Or, the “question of
guilt” in a criminal case has to be decided in the civil suit for malicious prosecution but, in that case, the precondition of
suit for malicious prosecution that the accused must have been acquitted will not be met.
42 Helvering v Mitchell, 303 US 391 (1938).
43 Harry Lee Wee v Law Society of Singapore, [1985] 1 WLR 362, p 368G.
44 R (on the application of Coke-Wallis) v Institute of Chartered Accountants in England and Wales, [2011] UKSC 1, para
45 (per Lord Clarke). The Supreme Court explicitly left to Parliament the policy question whether a public policy
exception should be made to nemo debit bis vexare rule in the case of professional disciplinary proceedings.
45 Athul Rao v Karnataka, AIR 2017 SC 4021 : 2017 (9) SCJ 207 .
46 Phipson, Law of Evidence, 10th Edn, Michael V Argyle, ed, (London, 1963), p 507, section 1343.
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9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY

End of Document