V.S. Deshpande, J.
(1) These two petitions under section 561-A Criminal Procedure Code have been referred to the Division Bench mainly to consider the question whether the previous decision between the parties in C.W. 189-D/1965 acts as rest judicata barring the petitioner from raising in these petitions those contentions which have been aiready decided against him in the writ petition.
(2) The facts are not in dispute. The petitioner Sharma in his return under the Income-Tax Act 1922 for the assessment year 1959- 60 claimed deduction for the payment of a sum of Rs. 18,000.00 allegediy made to M/s. Modem Sanitation for electrical and sanitary supervising charges during the relevant year. On enquiry, the lncome-Tax Officer was of the view that the alleged payee did not exist at ail and no such payment had been made by the petitioner. Not only the petitioner's daim to the deduction was disallowed in the assessment but two further proceedings were taken against the petitioner under the Income-Tax Act 1961, which had in the meanwhile corne into force. Firstly, a penalty was imposed on the petitioner for having made a false rctum under section 274 read with sections 271 and 273 of the Income-Tax Act 1961. Secondiy, two identical complaints were filed against the petitioner-one by the Income-Tax Officer and the other by the Commissioner of IncomeTax for having committed offences punishable under (l) section 277 of the Income-Tax Act 1961 making a false statement which the petitioner knew to be false or did not believe to be true), (2) section 193 of the Indian Penal Code (giving or fabricating false evidence in a judicial proceeding) and (3) sections 467 and 471 Indian Penal Code (forging a document and using it as genuine).
(3) In the proceedings for imposition of penalty under the IncomeTax Act 1922 the petitioner has paid the penalty but his appeal against it is said to be still pending. To checkmate the complaints filed against him, the petitioner filed writ petition No. 189-D/1965 praying that the complainants (the Income-tax Officer and the Commissioner of Income-Tax) be restrained from pursu ng the said complaints pending before a Magistrate on the grounds that section 277 of the Income-Tax Act 1961 could not apply to the alleged offence committed by the petitioner relating to the assessment year 1959-60 and the income-tax authorities could not resort to both the proceedings against the petitioner namely (l) imposition of penalty and (2) filing of complaints inasmuch as this would be in violation of Articles 14 and 20 of the Constitution. A Division Bench of this court dismissed the writ petition holding that:-(l) in view of section 297(2)(b) of the Income-tax Act 1961 the assessment of the petitioner had to be made in accordance with the procedure specified in the Income-Tax Act 1961 inasmuch as the retum for the assessment year 1959-60 had been iiled by the petitioner on 7-8-1962 i.e. after the commencement of the Income-Tax Act 1961, (2) section 277 of the Income-Tax Act 1961 was applicable to a false statement made in a retum filed on 7-8-1962 and (3) a person can be penalised under section 271 of the Income-Tax Act 1961 and can aiso be prosecuted for an offence in respect of the same facts.
(4) Though the complaints against the petitioner had been filed as early as on 31-3-1965, they could not be proceeded with till the dismissal of the writ petition on 10-9-1969 in view of the stay order which had been issued by this court. Before the complaints could proceed thereafter, the petitioner has now filed the se two petitions under section 5 61-A Criminal Procedure Code on 7-10-1971 praying that the two complaints made against him be quashed on the following grounds:- (1) Two identical complaints one by the Income-Tax Officer and the other by the Commissioner of Income-Tax in respect of same offences could not be maintained against the petitioner. (2) The complaints were not accompanied by documents specified in section 173(4) Criminal Procedure Code. (3) The complainants were not examined nor were their statements recorded by the Magistrate under section 200 Criminal Procedure Code. (4) The complainants have not appeai-ed in person before the Magistrate nor has the Magistrate granted them exemption from personal appe raiiee and yet the complaints have not been dismissed for their default. (5) As the petitioner was being prosecuted under section 277 of the Income-Tax Act 1961 which was a special Act he could not be prosecuted at the same time under the provisions of the Indian Penal Code. (6) Cognizance of the complaints could not be taken because the Income-Tax Officer before whom the offences were a eged to have been committed was a 'Civil. Revenue or Criminal Court' within the meaning of sections 476 and 479-A of the Criminal Procedure Code ., who could make the complaints against the petitioner oniy after complying with these provisions. Since this was not donc cognizance of the complaints by the Magistrale was barred by section 195(1) (a) (b) and (c) Criminal Procedure Code. (7) Proceedings for the imposition of penalty and prosecution could not both be taken against the petitioner simultaneousiy and the complaints could not be lodged particularly when an appeal in the penalty proceedings is still pending.
(5) In their opposition to these petitions, it was pointed out by the income-tax authorities that firstly, those contentions of the petitioner which have aiready been rejected by this court in civil writ 189-D/65 cannot be raised again in view of the principle of rest judicata and secondiy, there is no substance either in these or the other contentions.
(6) The first question for consideration is whether the decision of this court in civil writ 189-D/65 acts as rest judicata with the effect that the contentions rejected in the said writ petition cannot now be raised in these petitions under section 561-A Criminal Procedure Code. A part of the principle of rest judiciala is embodied in section 11 Civil Procedure Code which applies oniy to suits. But section 11 Civil Procedure Code is not exhaustive. The wider principle of rest jadicata is a part of Engiish Common Law and is applicable to India as a ruie of 'justice, equity and good conscience' which have been equated with the principles of Engiish law. It continues to apply to India as 'Law in force in the territory of India immediately before the commencement of the Constitution' by virtue of Article 372(1) of the Constitution. A writ petition is not a suit. What is its nature? In relation to Article 133 of the Constitution the writ petition has been held by the Supr me Court to be a 'civil proceeding'. The rcason, as observed in Ramesh v. Genda Lai : [1966]3SCR198 is that 'ail proceedings affecting civil rights which are not criminal' are civil proceedings. In Commissioner of Income-T x Bombay v. lshwarlal Bhagwandas (IA) a criminal proceeding was defined as one 'which if carried to its conclusion may result in the imposition of sentences such as death, imprisonrnent, fine or forfeiture of property. lt aiso includes proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and order or orders aimed at preventing vagrancy are contemplated to be passed.'
(7) Since a writ petition in itself, judged by the above tests, cannot be a criminal proceeding, it may be generally regarded as a civil proceeding in the sense that it deals with the civil rights of a party. The nature of the decision of a High Court would thus differ according as it is given in a civil or criminal or some other proceeding. Its decision in a writ petition would be given in civil proceeding. On the other hand, when the High Court is acting under section 561-A Cr.P.C., its juridiction is exercised in a criminal proceeding inasmuch as a petition under section 561-A Criminal Procedure Code. can be filed oniy in a criminal proceeding. The question thereforee is whether the decision in C.W. 189-D/65, though, given in a civil proceeding, acts as rest judicata in the present petitions under section 561-A Criminal Procedure Code. though they arise ont of a criminal proceeding and may, thereforee, be regarded as criminal proceedings.
(8) Conflicting judicial decisions may be found cited in commentaries under section 40 to 43 of the Indian Evidence Act, section 403 Cr.P.C. and section 11 Civil Procedure Code as to whether a decision in a suit would act as rest judicata in a criminal trial and vice-versa. In our view, the general principle of rest judicata is based firstly on public policy and secondiy on private justice both of which apply to ail judicial proceedings whether civil, criminal or otherwise. Public policy general interest of the community litigation must come to an end and its conclusion must have a finality. Private justice requires that an individual should be protected from vexations multiplication of suits and prosecutions at the instance of an opponent whose superior power and resources may enabic him to abuse the process of court. The principle of rest judicata should, thereforee, apply equally to civil and criminal proceedings inasmuch as the decisions of courts in both the proceedings are justified by and rest upon 'the same theoretical basis of public policy and private justice' (Spencer-Bower and Turner on rest Judicata 2nd Edition paragraph 13).
(9) In Gulabchand v. State of Gujarat : [1965]2SCR547 , it was contended that the decision in a previousiy decided writ petition should not act as rest judicata in a subsequently institutcd suit between the same parties inasmuch as the scope of a suit is different from the scope of the writ petition. The Supr me Court, however, held that the principle of rest judicata would apply and at page 1160 paragraph (29):
THEdifference in the nature of the two proceedings is immaterial if the matter decided inter parties in onc proceeding is the same which is to be determined in the subsequent proceedings and the parties to the suit were aiso parties to the writ petition.
(10) Shri A. N. MuUa for the petitioner contends that an earlier decision can be looked into oniy for the purposes of sections 40 to 43 of the Indian Evidence Act and if not admissible there under, it cannot be used. While the general principle of rest judicata is treated as a part of the principle of estoppel in 15 Halsbury's Laws of England part Ii section 11 pages 191 onwards^), the principle is partially embodied in three different statutes in India namely-section 11 Civil Procedure Code ., sections 40 to 43 Indian Evidence Act and section 403 Criminal Procedure Code. But none of these provisions exhaust the scope of the general principle of rest judicata. Each of them is limited to its own purpose. None of them thereforee eut down the rest of the principle of rest judicata. The three essentials of the general principle of rest judicata may be stated as foUows:- 1. A decision by a Competent Judicial Tribunal which is final, 2. it must determine the same questions as are sought to be controverter in the litigation in which the plea of rest judicata is raised, and 3. parties to the proceedings in which the plea of rest judicata is raised must be the same as were parties to the decision which acts as rest judicata.
(11) thereforee, when section 40 of the Evidence Act says that 'the existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial' as being a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such triai, it refers not only to the statutory law but to the non-statutory general law of rest judicata also. thereforee, either the general principle of rest judicata is not eut down by sections 40 to 43 or it is expressiy recognised by section 40.
(12) Shri Mulla then contended that the principle of rest judicata in criminal proceedings is confied to section 403 Criminal Procedure Code. In other words it is oniy if a person is convicted or acquitted of an offence that he cannot be again tried for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been framed. It is argued, thereforee, that short of such conviction or acquittai, a mere finding of an issue between the parties does not operate as rest judicata. This contention became untenable long ago. In Sambasivam v. Public Prosecutor 1950 A C 458 the law was stated as follows:
THEeffect of a verdict of acquittai pronounced by a Competent Court on a lawfui charge and after a lawfui 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 ail subsequent proceedings between the parties to the adjudication. The maxim 'res judicata pro veritale accipitur' is no less applicable to criminal than to civil proceedings.
(13) This statement of law was approved by the Supreme Court in Pritam Singh v. State of Punjab : 1956CriLJ805. The plea that the decision in Pritam Singh's case required reconsideration because the principle could have no application to India where section 403 Cr.P.C. must be taken to be exhaustive was rejected by the Supreme Court in Lalta v. State of U.P. : 1970CriLJ1270. The binding nature of a finding arrived at between the parties in a previous litigation in a subsequent litigation between the same parties as applied to criminal proceedings is called 'issue estoppel'. The principle of issue estoppel outside the scope of section 403 Criminal Procedure Code. was held to apply to India in State of Andhra Pradesh v. Kokhiliagada Meerayya and anr. : AIR1970SC771 and Piara Singh v. State of Punjab : 1969CriLJ1435 .
(14) It was then contended that the principle of issue estoppel is applicable only in favor of the accused but not against him. The general rule is that rest judicata must apply in favor as well as against each of the parties. (15 Haisbury's Laws of England 201 paragraph 379). Issues estoppel is a branch of the law of rest judicata applied to crirninal proceedings. This was the conclusion of the majority of the House of Lords in Connelly v. Director of Public Prosecutions 1964 A C 1254. Logically it may be argued that issue estoppel applies not onlv in favor of the accused but aiso against him (spencer-Bower and Turner 'Res Judicata' paragraph 335). But in ail criminal proceedings, the principle of rest judicata or issue estoppel may corne into conflict with another principle, naincly, that the prosecution must prove that the accused is guilty and uniess this is donc the accused presumed to be innocent. But principle of issue estoppel cannot over-ride the principle of presumption of innocence of the accused. Similarly, the following special featurcs of the criminal proceeding would further modify the application of issue estoppel. Firstly, in a criminal case there is no duty on the accused to adduce evidence in defense while in a civil case adverse inference may be drawn from the refusai of a party to adduce evidence in his possession or power. Secondiy, the burden of proof to prove the guilt of the accused is higher on the prosecution in a criminal case as compared to the burden of proof on the plaintiff to prove his case against the defendant in a civil case. Lastly, certain evidence such as confessions in certain circumstances cannot be proved in a criminal case against accused though there is no such restriction between the parties to a civil proceeding. The resuit is that a finding of fact arrived at in a civil proceeding may not be binding in a criminal proceeding against the accused. In Manipur Administration v. Thokchom Bira Singh 0065/1964 : [1964]7SCR123 at the end of paragraph 12, thereforec, the Supr me Court observed as follows:
THEquestion has sometimes been mooted as to whether the same principle of issue estoppel could be raised against an accused, the argument against its application being that the prosecution cannot succeed uniess it proves to the satisfaction of the Court trying the accused by evidence led before it that he is guilty of the offence charged. We prefer to express no opinion on this question since it does not arise for examination.
(15) In Mohar Rai v. State of Bihar : 1968CriLJ1479 the trial Court and the High Court had held that the dismissal of a complaint by Mohar Rai finding certain allegations by him as unproved would act as rest judicata to bar the defense on the same allegations in a subsequent prosecution of Mohar Rai. But the Supreme Court reversed the decision of the High Court holding at page 531 that 'it is doubtfui- though for the purpose of this case it is unnecessary to express any final opinion on this point-whether the nile in question could be pressed against an accused.' The ruie could not be applied in that case at any rate because the previous decision was not between the same parties.
(16) Generally speaking, the principle of issue estoppel is invoked to bar the adducing of evidence to prove facts which have been aiready adjudicated upon in a previous proceeding between the parties. It being casier (for the reasons stated above) to obtain a finding of fact for a plaintiff against a defendant in a civil proceeding than for the prosecution to do so against the accused in a criminal proceeding, the finding of fact given in a previous civil proceeding may not act as rest judicata in a subsequent criminal proceeding. For the same reasons, thereforee, a finding of fact in a criminal proceeding against an accused person should act as rest judicafa m a subsequent civil proceeding between the same parties. Tn Hollington v. F. Hewthom & Ltd., (1943) K.B. 587 the Court of Appeal in England, however, did not accord the effect of rest judicata to a summary conviction of the accused for a traffic offence in a subsequent civil proceeding in which the accused was sued for damages by the person who was injured by the negligence of the accused in driving a car. Similarly, in Anil Behari Ghosh v.Smt. Latika Bala Dassi : [1955]2SCR270 , the conviction by a criminal court of a person for the murder of his father was not regarded as conclusive in a subsequent proceeding Succession Act. These decisions apparently did not attach importance to the fact that the rules of procedure and evidence are more favorable to the accused in a criminal proceeding and, thereforee, there should be no objection to a finding obtained against the accused in a criminal proceeding acting as rest judicafa in a subsequent civil proceeding. It is interesting to note that the decision in Hollington v. F. Hewhorn &. Ltd. was regarded as being contrary to one's sense of justice by the Law Reforins Committee chaired by Lord Pearson in England. The Fifteenth Report of the said Committee presented to the Parliament in September 1967, thereforee, recommends a change in the law to make a conviction of a criminal offence admissible in subsequent civil proceedings to show that the person concemed was guilty of the conduct constituting the offence.
(17) However that may be, there is no question of presumption of innocence of the accused and no question of the ruies of procedure and evidence being more favorable to him when a pure question of law is decided in a criminal or a civil proceeding. In respect of a finding on a question of law, thereforee, both the civil and the criminal proceedings ought to be on par. The finding of law in a previous civil proceeding should, thereforee, act as rest judicata in a subsequent criminal proceeding in accordance with the well established general law of rest judicata.
(18) In Civil Writ 189-D of 1965, the following questions of law were decided against the accused between the same parties, namely:- (1) The return by the accused having been field on 7-8-1962, the offence alleged to have been committed by the accused would be covered by the Income-Tax Act, 1961 in view of section 297(2)(b) thereof. (2) The imposition of penalty on the accused could also be only under the Income-Tax Act, 1961 and not under the Income-Tax Act of 1922. (3) Section 277 of the Income-Tax Act, 1961 was applicable to the making of a false statement in a retum filed on 7-8-62. The accused could, thereforee, be prosecuted under section 277. Whatever may be his objection with regard to the prosecution under section 277, no objection could be made by him to his prosecution under the provisions of the Indian Penal Code.
(19) As these findings of law are based on admitted facts, they would, in our view, operate as rest judicata by way of an issue estoppel in the present petitions under section 561-A Criminal Procedure Code. The petitioner accused cannot, thereforee, re-agitate those questions before us in these petitions.
(20) Further, assuming for the sake of argument that these findings of law do not act as rest judicata in these petitions under section 561-A Criminal Procedure Code, it is obvions that it would be an abuse of the process of court for the accused to be allowed to reagitate those questions again in this Court. Section 561-A Criminal Procedure Code itself recognises the inherent junsdiction of this Court to prevent an abuse of the process of court. Such inherent jurisdiction of the court is aiso recognised in the principles of English law. The Court thus has an inherent jurisdiction to disallow such abuse of its process and hold that the accused could be barred from re-agitating these questions of law which have been aiready decided against him between the parties by a competent court. (Reichol v. Magrath, (1889) 14 A.C. 665 , and the other decisions referred to in Appendix A in Spencer-Bower and Turner's book on rest Judicata, referred to abovc). We find so.
(21) We may now consider Serialtim the objections listed above specifically raised by the petitioner accused in these petitions:- (1) & (6). While On the one hand the offence punishable under section 277 of the Income-Tax Act, 1961 was allegedly committed by the accused before the Income-Tax Officer, the prosecution against the accused for that offence could not be lodged 'except at the instance of the Commissioner' in view of section 279(1) of the said Act. The complaint under section 277 filed by the Income-Tax Officer at the instance of the Commissioner of Income-Tax would, thereforee, satisfy the requirements of section 279(1). The Commissioner of Income-Tax has, however, filed an identical complaint so that no doubt may be left that the complaint was filed at his own instance. Both these complaints have to be regarded as one complaint signed by both these officers in the above circumstances. No prejudice can be caused to the petitioner accused merely because instead of one complaint signed by both of them, there are two identical complaints signed by each of them. Further, the accused is being prosecuted also under sections 193, 467 and 471 Indian Penal Code. Section 195(1)(b) of the Criminal Procedure Code in respect of section 193 of the Indian Penal Code and section 195(1)(c) of the Criminal Procedure Code in respect of section 471 India Penal Code require that if any of these offences is committed in relation to any proceeding in any court, then the cognizance of these offences can be taken by a criminal court only on a complaint in writing by such a court. According to section 136 of the IncomeTax Act, 1961, any proceeding under the said Act before an Income-Tax Officer shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code. In Lalji Haridas v. State of Maharashtra : 1964CriLJ249 it was held by the Supreme Court that the effect of section 37(4) of the Income-Tax Act, 1922 corresponding to section 136 of the Income-Tax Act, 1961 was that the proceeding before the Income-Tax Officer had to be treated as 'proceeding in any court' within the meaning of section 195(1)(b) of the Criminal Procedure Code. The making of the complaint by the Income-Tax Officer, thereforee, satisfies the requirement of section 195(1)(b) Criminal Procedure Code in respect of the complaint under section 193 Indian Penal Code. Shri Mulla argued that the Income-Tax Officer, if a court under section 195(1)(b) Criminal Procedure Code, should have followed the procedure laid down in sections 476 and 479-A Criminal Procedure Code before making the complaint against the accused. But the Supreme Court has clarified in Balwant Singh v. L. C. Bharupal, (1968) 70 Itr 89, that though an Income-Tax Officer may be a court for the purposes of section 195(l)(b) Criminal Procedure Code, he is not a 'civil, revenue or a criminal court' for the purposes of sections 476 and 479-A Criminal Procedure Code. It was not necessary, thereforee, for him to comply with sections 476 and 479A Criminal Procedure Code. (2) Compliance with section 173(4) Criminal Procedure Code regarding the filing of documents and giving copies of the same to the accused was not necessary inasmuch as the accused is being prosecuted on a complaint and not on a police report. (3) & (4). In respect of the offences punishable under sections 467 and 471 Indian Penal Code, the Income-Tax Officer was not a court within the meaning of section 195 Criminal Procedure Code. Shri Mulla, thereforee, argued that the complainants in respect of these offences were in the position of private persons. They had to be, thereforee, examined by the Magistrate under section 200 Criminal Procedure Code. They had also, thereforee, to be personally present before the Magistrate. As this was not done, the complaints should have been dismissed by the Magistrate. But the proviso (aa) to section 200 exempts a public servant acting or purporting to act in the discharge of his official duties from such personal examination by the Magistrate. Section 279 of the Income-Tax Act, 1961 expressly required that the prosecution under section 277 against the accused could not be launched except at the instance of the Commissioner. It was, thereforee, the duty of the Commissioner to either make the complaint himself or to authorise the Income-Tax Officer to do so. The Commissioner has done both these things. The Income-Tax Officer was bound to obey the orders of the Commissioner. Both the Commissioner and the Income-Tax Officer are, thereforee, acting 'in the discharge of official duties' within the meaning of the proviso (aa) to section 200 Criminal Procedure Code in respect of the complaints under section 277. Similarly, the Income-Tax Officer was a 'Court' for the purposes of the offence punishable under section 193 Indian Penal Code and as held by the Supreme Court in Lalji Haridas case referred to above, the cognizance of the prosecution under section 193 Indian Penal Code could not be taken by the Magistrate except on a complaint by the court concerned. The Income-Tax Officer, was, thereforee, required to make a complaint. In respect of section 193 Indian Penal Code also thereforee, he was acting in the discharge of official duties. The offences alleged to have been committed under sections 467 and 471 Indian Penal Code related to the same proceeding and had, thereforee, to be tried with the other two offences together. It was, thereforee, a moral and a legal duty of the Income Tax authorities to include them also in the same complaints. In respect of them also, thereforee, the Income-Tax Officer and the Commissioner were acting in discharge of their official duties. They were, thereforee, exempted from personal examination by the Magistrate in respect of all the offences. Finally, the complainants had actually applied to the Magistrate for granting exemption from personal appearance and examination. If the Magistrate was in doubt as to whether the complainants were covered by the proviso (aa) to section 200 Criminal Procedure Code, he would have granted them exemption from personal appearance and examination. (5) Even if the offences punishable under section 277 Income-Tax Act, 1961 and section 193 Indian Penal Code may be somewhat similar, they are not identical. There is no legal bar to the prosecution of the accused for both these offences in view of section 26 of the General Clauses Act. (7) The proceedings for the imposition of penalty taken against the accused under the Income-Tax Act, 1961 are distinct from the criminal complaints filed against him. They can, thereforee, continue simultaneuosly. Article 20(2) of the Constitution says that 'no person shall be prosecuted and punished for the same offence more than once'. The imposition of a penalty under the Income-Tax Act is neither a prosecution nor a punishment for any offence. The accused is not, thereforee, exposed to any 'double jeopardy'.
(22) None of the contentions raised by the petitioner accused has, thereforee, any merit. ShriK. L. Arora for the State has invited our attention to the fact that the complaint against the accused was filed on 31-3-1965. The accused obtained a stay order in Civil Writ 189-D of 1965. After the dismissal of the writ petition on 10-9-1969, he further delayed the prosecution against him and filed these petitions under section 5 61-A. The delay in the prosecution is thus entirely due to the conduct of the accused himself. Now that the objections of the accused have been disposed of, the trial Magistrate shall give priority to the hearing of the complaints against the accused and ensure that they are speedily disposed of. With the above observations, these petitions (Criminal Misc. Main Nos. 116 and 118 of 1971) under section 561-A Criminal Procedure Code are dismissed. Parties to appear before the Additional Chief Judicial Magistrate, New Delhi on 17-9-1973.