Judgment :- 1. Revision sought for here is of an order passed by the District Magistrate (Judicial), Trichur, refusing to rescind under S.144 (4) of the Criminal Procedure Code an order passed ex parte by the Executive First Class Magistrate, Trichur, more than six years back prohibiting members of the A Party and the public in general from using the property blocked in Survey Numbers 1178 and 1179 of Eyyal Village in Thalappally Taluk as a burial ground. 2. It was on 6-10-1964 that that order was passed. The duration of the prohibition in the first instance was only two months. But the State Government acting under Sub-section (6) extended it first till 5-1-1965 by notification dated 4-12-1964 and thereafter" until further orders by another notification dated 2-1-1965. 3. On 2311965 A Party applied under Sub-section 4 of the Section to the Additional Executive District Magistrate, to whom the Executive First Class Magistrate is subordinate, for cancellation of the ex parte order. He merely lodged it. Then A Party filed another application on 14101965 before him for the same relief. On 20101965 he disposed it of by saying that the request could not be granted. From that order Crl. RP. 602 of 1965 was filed here. In it the question arose whether the Executive District Magistrate could rescind the ex parte order when its operation had been extended by the State Govermmnet until further orders. A Division Bench of this Court held in that case that that could be done and after setting aside the order passed by the Magistrate sent it back to him for fresh disposal in accordance with law. Thereafter on 2 31967 he again dismissed the petition. From that order Crl. RP. 183 of 1967 was filed here. A learned Single Judge of this Court set aside that order and after transfering the case from the file of the Executive District Magistrate to that of the District Magistrate (Judicial), Trichur, directed him to dispose of the petition according to law. The District Magistrate (Judicial), Trichur, has also now dismissed the petition. It is that order that is sought to be revised by this petition. 4. This revision petition has to be allowed on the short ground that the reason mentioned in the ex parte order dated 6101964 justifying the passing of it is no longer tenable. The District Magistrate (Judicial), Trichur, has also now dismissed the petition. It is that order that is sought to be revised by this petition. 4. This revision petition has to be allowed on the short ground that the reason mentioned in the ex parte order dated 6101964 justifying the passing of it is no longer tenable. This is how that order reads: Whereas it has been reported by the Police that the members of the 'A' Party has caused the burial of a dead body in the plot bearing survey No. 1178 and 1179 of Eyyai Village without obtaining prior sanction of Government as contemplated by Cochin Act 1 of 1062. And whereas it is apprehended that this action of the 'A' Party is likely to cause a clash between Wand 'B' Party and create a disturbance of public tranquillity, I do hereby prohibit the members of the 'A' Party and the public in general from using Sy. Nos. 1178 and 1179 of Eyyal Village as a burial ground and strictly warn and enjoin the Vicar of the Chapal not to let in any dead body for burial in the said Sy. No." What is seen from it is that it had come to the notice of the Magistrate, who passed it that'A' Party had violated the provisions of Cochin Act 1 of 1062 by burying a dead body without obtaining sanction of the Government as contemplated by that Act and that on account of that act it was apprehended that there would be disturbance of public tranquillity. Cochin Act 1 of 1052 referred to there is the Erection of Religious Buildings Act. Under S.2 of that Act utilisation of ground for purpose of public burial without obtaining previous sanction of the Government is prohibited. That Act is no longer in force. It has been repealed by the Places of Public Worship Laws (Repealed) Act, Kerala Act XII of 1967. 5. In 1965, that is, after the passing of the ex parte order, two prosecutions were launched against some members of the A Party for burying on the self same property dead bodies without sanction of the Government. They were CC. Nos. 108 and 438 of 1965 on the file of the Sub Divisional Magistrate, Kunnamkulam. Of these CC. 5. In 1965, that is, after the passing of the ex parte order, two prosecutions were launched against some members of the A Party for burying on the self same property dead bodies without sanction of the Government. They were CC. Nos. 108 and 438 of 1965 on the file of the Sub Divisional Magistrate, Kunnamkulam. Of these CC. 108 of 1965 was under Cochin Act 1 of 1062 and the other under the Travancore-Cochin Public Health Act, 16 of 1955, for violating the provisions of those Acts. In CC. 108 of 1965 the accused admitted the acts attributed to them and pleaded mercy. What they said in the petition, copy of which is Ext. Dl, filed by them in that case was that they were not aware of the provisions of the Cochin Act when the dead bodies were buried. They undertook not to violate the provisions of the Cochin Act and not to bury in future dead bodies on the particular property without obtaining order from court or other competent authority declaring their right to it. They were then convicted but released under the Probation of Offenders Act. In the other case as that case related to the same incident they were acquitted. 6. In the order now sought to be revised the District Magistrate has observed that issue estoppel has been created by the judgment in CC. Nos. 108 and 438 of 1965 and that A Party has no locus standi to apply for rescinding the impugned order. This is not correct. 7. Unlike pleas of autre fois acquit and autre fois convict which are based on previous acquittal and previous conviction issue estoppel is based on rinding entered in a judgment in a previous trial on a point arising for consideration and which is common to both the trials. When a criminal charge has once been adjudicated upon by a competent court and the accused is acquitted or convicted by a competent court a finality attaches itself to it and it can be pleaded as a bar to a subsequent prosecution for the same offence. That is autre fois acquit and autre fois convict. They are founded on the principle that a man should not be put in jeopardy twice for the same matter. It rests on grounds of public policy & not any doctrine of estoppel. That is autre fois acquit and autre fois convict. They are founded on the principle that a man should not be put in jeopardy twice for the same matter. It rests on grounds of public policy & not any doctrine of estoppel. S.403 of the Criminal Procedure Cadi provides that when once a competent court has acquitted or convicted a person he should not be tried again for the same offence. The right to plead autre fois acquit and autre fois convit is thus preserved by that Section. But what about findings entered in the judgment in the previous trial on points material for decision and common to both the trials? S.403 does not say that they are also conclusive and that they cannot be reagitated in the subsequent trial. Even if the subsequent trial is not for the same offence as the previous one some of the points arising for decision may be common to both the trials. S.26 of the General Clauses Act, the provisions of which remain unaffected by S.403 of the Criminal Procedure Code on account of sub-sec. (5) of that Section, provides that where an act or omission is an offence under two or more enactments then the offender is liable to be punished under either of those enactments provided the punishment is not made twice for the same offence. Thus for distinct offences under distinct enactments distinct trials can be held in respect of the same incident. It is in such and similar other cases that the operation of the rule of issue estoppel assumes importance. That rule has nothing to do with the previous acquittal or conviction. It is concerned only with the finding entered in the earlier case on a point material for the disposal of the later case also. 8. Issue estoppel is estoppel by judgment. The principle of it is that where an issue has been decided in a particular manner in a previous trial between the same parties it cannot be allowed to be reagitated. It is really as extension or a byproduct of the doctrine of res judicata. There is nothing in the Criminal Procedure Code or any other enactment prohibiting its application. The principle of it is that where an issue has been decided in a particular manner in a previous trial between the same parties it cannot be allowed to be reagitated. It is really as extension or a byproduct of the doctrine of res judicata. There is nothing in the Criminal Procedure Code or any other enactment prohibiting its application. In considering the question whether it can be applied the first step as always in such an enquiry is to see how far the authorities have gone because new categories in the law do not spring into existence overnight. The Supreme Court has freely applied it. Some notable cases regarding it relied upon by the Supreme Court in its decisions are The Queen v. Ollis (1900) 2 Q.B. 758, The King v. Wilkes 77 CLR. 511, Sambasivan v. Public Prosecutor, Federation of Malaya 1950 AC. 453 and Mraz v. Queen 96 CLR. 62. 9. The germ of the doctrine of issue estoppel can be found in The Queen v. Ollis (1900) 2 QB. 758. There the accused who had been adjudicated bankrupt in May 1899 was prosecuted twice for obtaining money by false representations, by issue of worthless cheques. In the first instance the prosecution was for his having issued on July 1, 1899, to one Ramsay a cheque which was dishonoured. The second trial related to his receiving money from three other persons on June 24 and 26 and July 26 after issuing worthless cheques. At the first trial he said that he expected money to be paid into his bank account by a firm of solicitors and a member of the firm stated that the accused would have been entitled to an amount, which was much more than that covered by the cheques, by way of commission on the sale of some property, but that the sale did not take place. The accused was acquitted in the first trial probably because he was expecting money due from his solicitors in his bank account and the representation he made had not been proved to be fraudulent. At the second trial in order to negative reasonable belief on the part of the accused that there was money at the bank to meet the cheques issued by him Ramsay was examined to prove fraud practised on him by the accused. At the second trial in order to negative reasonable belief on the part of the accused that there was money at the bank to meet the cheques issued by him Ramsay was examined to prove fraud practised on him by the accused. His statement was precisely the same he made in the first trial. The question was whether that- evidence was legally admissible as it formed part of the evidence during the first trial at which the accused was acquitted. It was held that it could not be excluded because it had not been proved that at the first trial the jury had negatived the fraudulent character of the pretence charged against the accused. Wright, J. said in that case. "The only possible ground of objection to the reception of the evidence, assuming it to be relevant, seems to be that there is an estoppel of record, or "quasi of record." An objection in the nature of a plea of "autrefois acquit" cannot of course be maintained, because an either indictment the prisoner could not have been convicted of the offences, or any of them, which"were alleged in the other indictment. Nor can there be an estoppel of record or quasi of record, unless it appears by record of itself, or as explained by proper evidence, that the same point was determined on the first trial which was in issue on the second trial. But in this case the record of the first trial would shew no more than a general verdict of not guilty." 10. From the above observations of the learned judge it was inferred by Dixon, J. in The King v. Wilkes, 77 CLR. 511 a decision of the Australian High Court, that if in the second trial it was proved that any issue there had arisen in the first trial also and it had been decided in a particular manner there it could not be allowed to be reagitated in the later trial. In that case the accused were charged for three offences. 511 a decision of the Australian High Court, that if in the second trial it was proved that any issue there had arisen in the first trial also and it had been decided in a particular manner there it could not be allowed to be reagitated in the later trial. In that case the accused were charged for three offences. They were that they and a witness for the Crown who was an accomplice but had received a pardon had taken a series of steps to procure the abortion of a pregnant woman, that in the attempt to procure abortion they or one of them had killed her and that they attempted to conceal their crime by telling a lying story accounting for the body. The jury found the accused not guilty on the first two counts but guilty on the third count. On appeal the Court of Criminal Appeal quashed the conviction on the ground of inconsistency between the verdicts. After quashing the conviction the court went on to say that they would not order a new trial. One of the reasons given for refusing retrial was that it had been conclusively established in the trial already held that the accused had not killed the pregnant woman and conspired with the witness for the Crown to procure her miscrriage. Application for special leave to appeal from the acquittal was filed before the Australian High Court and there in considering the question as to how far findings entered in earlier trials would be conclusive Dixon, J. observed: "Whilst there is not a great deal of authority upon the subject, it appears to me that there is nothing wrong in the view that there is an issue estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner. That seems to be implied in the language used by Wright J. in R. v. Ollis (1900) 2Q.B. 758, which in effect I have adapted in the foiegoing statement. Such a question must rarely arise because the conditions can seldom be fulfilled which are necessary before an issue estoppel in favour of a prisoner and against the Crown can occur. That seems to be implied in the language used by Wright J. in R. v. Ollis (1900) 2Q.B. 758, which in effect I have adapted in the foiegoing statement. Such a question must rarely arise because the conditions can seldom be fulfilled which are necessary before an issue estoppel in favour of a prisoner and against the Crown can occur. There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a condition of affairs arises I see no reason why the ordinary rules of issue estoppel should not apply, such rules are not to be confused with those of res judicata, which in criminal proceedings are expressed in the pleas of autre fois acquit and autre fois convict. They are pleas which are concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability. Issue estoppel is concerned with the judicial establishment of a proposition of law or fact between parties. It depends upon well-known doctrines which control the relitigation of issues which are settled by prior litigation." 11. The accused in Sambasivan v. Public Prosecutor, Federation of Malaya 1950 A. C. 458 who was charged for(1) carrying firearm and (2) being in possession of ammunition was acquitted of the second charge, the trial judge accepting the verdict of the assessors that he was not guilty. As regards the first charge also the assessors found him not guilty but the judge disagreed with that finding and ordered retrial. At the retrial which took place before different judge and assessors he was found guilty and convicted. His appeal to the Supreme Court of the Federation of Malaya was dismissed. Appeal therefrom to the ' Privy Council was allowed. One of the questions involved was about relying on the evidence of the prosecution witnesses who spoke of the revolver carried by the accused being loaded with bullets and of his carrying four more bullets in a bag. His appeal to the Supreme Court of the Federation of Malaya was dismissed. Appeal therefrom to the ' Privy Council was allowed. One of the questions involved was about relying on the evidence of the prosecution witnesses who spoke of the revolver carried by the accused being loaded with bullets and of his carrying four more bullets in a bag. Lord Mac Dermott said: there is one feature of the present case which must now be mentioned and which though it bears directly in the weight to be accorded to the statement under discussion, involves an important principle of the criminal law to such an extent that, in the opinion of the Board, the conviction appealed from ought not to be allowed to stand. The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The Maxim "Res judicata pro veritate accipitur" is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the firearm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other." 12. In Mraz v, The Queen, 96 CLR. 62 a decision of the Australian High Court, the accused was alleged to have caused the death of a woman after ravishing her. He was first tried for murder. Although he was convicted for manslaughter by the trial court the conviction was quashed in appeal. In Mraz v, The Queen, 96 CLR. 62 a decision of the Australian High Court, the accused was alleged to have caused the death of a woman after ravishing her. He was first tried for murder. Although he was convicted for manslaughter by the trial court the conviction was quashed in appeal. Then he was charged for rape and second trial started. He entered a special plea of issue estoppel. Their Lordships said: "It is a negation in the alternative upon which, so long as the verdict stood in its entirety, the applicant was entitled to rely as creating as issue estoppel against the Crown. He was entitled so to rely upon it because when he pleaded not guilty to the indictment of murder the issues which were thereby joined between him and the Crown necessarily raised for determination the existence of the three 'elements we have mentioned and the verdict upon those issues must, for the reasons we have given, be taken to have affirmed the existence of the third and to have denied the existence of one or other of the other two elements. It is nothing to the point that the verdict may have been the result of a misdirection of the judge and that owing to the misdirection the jury may have found the verdict without understanding or intending what as a matter of law is its necessary meaning or its legal consequences, The law which gives effect to issue estoppels is not concerned with the correctness or incorrectness of the finding which amounts to an estoppel, still less with the processes of reasoning by which the finding was reached in fact; it does not matter that the finding may be thought to be due to the jury having been put upon the wrong track by some direction of the presiding judge or to the jury having got on the wrong track unaided. It is enough that an issue or issues have been distinctly raised and found. Once that is done, then, so long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding may be made by one of them against the other. It is enough that an issue or issues have been distinctly raised and found. Once that is done, then, so long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding may be made by one of them against the other. Res judicata pro veritate accipitur." After stating that their Lordships went on to say that even if on the face of the record of the previous trial there was nothing to show a finding having been entered on a particular issue it was open to the court to go behind that record to ascertain whether a finding on that issue was involved in the conclusion reached at the previous trial and that issue estoppel operates not only on questions of fact but on questions of law as well. (In The King v. Wilkes 77 CLR. 511 Dixon J. had also said that issue estoppel was concerned with findings on questions of law also.) Their Lordships said: "Now in ascertaining what were the issues determined judicially it is proper to look beyond the record. See per Isaacs J. in Gray v. Dalgety & Co. Ltd-. (5). You cannot show that issues necessarily involved in the conclusion were not found. You cannot say that, though as a matter of law the conclusion could not be reached except by passing upon certain issues, yet one or more of them was not passed upon. You cannot do so unless it so appears upon the face of the record, or in the case of courts where there is no record, unless it so appears from the course of procedure by which in such a court the character of the claim and the answer is determined. It should be added, however, that the parties may definitely agree to suspend, defer or otherwise eliminate a necessary issue and then it is not covered by the determination. That is shown by Hoysted's Case, the report of which in the Privy Council (1), should be read with the report of the decision in this court (2). But there is no question of this having been done in the present case. That is shown by Hoysted's Case, the report of which in the Privy Council (1), should be read with the report of the decision in this court (2). But there is no question of this having been done in the present case. What the applicant needs to do here is to exclude the possibility, a merely logical possibility, that the foundation of the verdict was the denial of an element that on the facts was not denied and could not be denied. Indeed it was in truth an element of an entirely notional character which factually could have no significance and accordingly passed unnoticed. It is quite consistent with the indictment and the verdict to exclude the possibility in question. There is no reason why, in order to ascertain the issue which in truth was found, matters of this kind should not be taken into consideration by the court when deciding the validity of a plea of issue estoppel' It is by no means the same thing as going into evidence as to the course of the previous trial for the purpose of showing that what in point of law must be covered by the verdict or finding was infact not considered at all. That is to run counter to the very principle of issue estoppel, which is to treat an issue of f act or law as sett led once for all between the parties if it is distinctly raised and if the judgment pronounced implies its determination necessarily as a matter of law. All that the applicant need do here is to add to the record certain information which makes it possible to see what issue it was that the finding must necessarily cover. That information makes it clear enough that the finding must cover the issue which in fact is one of rape or no rape. To say that the jury never meant to negative rape is to overlook the essence of the error made on the previous trial. The jury were in effect told that it was not enough if there was a rape, it must be a rape done with malice. Doubtless it was a curious conception. But if it is assumed that they followed and acted upon the direct/ on, what the jury may be supposed to have found is that there was not a rape done with malice. Doubtless it was a curious conception. But if it is assumed that they followed and acted upon the direct/ on, what the jury may be supposed to have found is that there was not a rape done with malice. To speculate why a jury finds manslaughter on an indictment of murder is often fruitless, and in this case the direction may have had no further effect upon the result than to encourage the returning of a verdict of manslaughter. Bat let it be assumed that in fact it meant that there was no rape done with malice. That only meant that, having availed themselves of an erroneous reason supplied by the judges charge, the jury found a verdict upon the very issue which under the plea of not guilty the indicment for murder, properly understood according to law, presented to them as an issue of rape or no rape. The foregoing reasoning shows that the verdict of not guilty of murder read with the verdict of guilty of manslaughter must be taken to cover the issue of rape and to negative the commission of that crime by the applicant." 13. In Regina v. Connelly (1963) 3. WLR. 839 in an office robbery an employee was killed. The first trial against the appellant and some others was for murder. The appellant was convicted by the trial judge but it was set aside, in appeal solely on the ground that the direction to the jury on the question whether or not the appellant had been present at the scene of the crime was not satisfactory. In the second trial started for robbery he was convicted. On the basis of issue estoppel it was argued in the appeal from that conviction that he should not have been tried for robbery. Edmund Devies J. said: "The submission as to "issue estoppel", which was the second matter advanced on the appellant's behalf, is a somewhat novel one in the criminal courts of this country, although it is being increasingly raised both in the Commonwealth and in the United States of America (see, for example, Harris v. State of Georgia) and is discussed at length in a valuable article "Res Judicata in the Criminal Law" by Dr. Colin Howard in the Melbourne University Law Review (1961) (p. 101). Does issue estoppel avail an accused person in this country? Colin Howard in the Melbourne University Law Review (1961) (p. 101). Does issue estoppel avail an accused person in this country? We do not find ourselves, in the circumstances of the present case, called upon to give a definite answer to that question. But, as Lawton J. observed in the course of the argument, it would be deplorable if English law laggad behind in this matter because of a strict rule of pleading. For issue estoppel to arise, there must have been distinctly raised and inevitably decided the same issue in the earlier proceedings between the same parties. "The doctrine (ef estoppel) cannot be made to extend to presumptions or probabilities as to issues in a second action which may be, and yet cannot be asserted beyond all possible doubt to be, identical with those raised in the previous action" (per Lord Maugham LC. J in the New Brunswick case). It is this impermissible extension which is invloved, in our judgment, in the issue estoppel point hare raised on behalf of the appellant- we accordingly hold that the submission is invalid." 14. In Pritam Singh State of Punjab AIR. 1956 SC. 4 i 5 one of the circumstances relied upon by the prosecution for connecting one accused with the offence of murder was recovery of a revolver, Ext. P56. In respect of that rifle there was a separate trial against him under the Arms Act and in it he was finally acquitted in appeal. In such circumstances the Supreme Court held that evidence regarding the recovery of Ext. P56 had to be rejected. Bhagwati J. said: "That acquittal of Pritam Singh Loharaof that charge was tantamount to a finding that the prosecution had failed to establish the possession of the revolver Ext. P-56 by him. The possession of that revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence with which he had been charged. The fact was found against the prosecution and having regard to the observations of Lord Macdermott quoted above, could not be proved against Pritam Singh Lohara in any further proceedings between the Crown and him. We are of the opinion that the High Court was right in rejecting the evidence regarding the recovery of Ex. The fact was found against the prosecution and having regard to the observations of Lord Macdermott quoted above, could not be proved against Pritam Singh Lohara in any further proceedings between the Crown and him. We are of the opinion that the High Court was right in rejecting the evidence regarding the recovery of Ex. P-56 against Pritam Singh Lohara and tha evidence against him would have to be considered regardless of the alleged recovery of Ex. P-56 at his instance." 15. In Manipur Administration v. Bira Singh AIR. 1965 SC. 87 the "appeal was from an acquittal. The District Magistrate had promulgated orders under S.144 of the Criminal Procedure Code banning public meetings and processions. Flouting those orders crowds collected and moved along the streets. It was alleged that the Respondent was leading the mob. During the firing by the police to disperse the mob there was stone throwing on the part of the mob. Injuries were sustained in the incident by some persons in the crowd and the police personnel. A case was registered against the Respondent and some others under S.114,149,342 and 307 of the IPC. and S.7 of the Criminal Law Amendment Act. There was a prior prosecution, against the Respondent under S.188 of the IPC. for disobeying the order passed by the District Magistrate under S.144 of the Criminal Procedure Code. The incident alleged in the two cases was the same. Although the trial court convicted the Respondent in the charge under S.188 of the IPC. the appellate court acquitted him holding that the prosecution had not established that he was present at the [place at the time. In the charge under S.144,149, .332, 342 and 307 of the IPC. and S.7 of the Criminal Law Amendment Act the trial judge convicted the Respondent and the other accused in the case under S.333, 323 and 440 read with S.149 of the IPC. In the appeals filed by them before the Judicial Commissioner, Manipur, the Respondent was acquitted on the ground that the finding of fact recorded in the charge under S.188 of the IPC. about his presence at the relevant time at the scene was conclusive. The learned Judicial Commissioner held that the principle of res judicata applicable to criminal proceedings was not confined to cases falling within S.403 of the Criminal Procedure Code but was of wider application. about his presence at the relevant time at the scene was conclusive. The learned Judicial Commissioner held that the principle of res judicata applicable to criminal proceedings was not confined to cases falling within S.403 of the Criminal Procedure Code but was of wider application. He based his conclusion on the decision in Pritam Singh v. State of Punjab AIR. 1956 SC. 415. The Supreme Court reexamined the position it took in Pritam Singh v. State of Punjab AIR. 1956 SC, 415 and held that that was rightly decided and that the decision of the Judicial Commissioner was also right. Rajagopala Ayyangar J. said in that case: It is...clear that S.403 of the Criminal Procedure Code does not preclude the applicability of this rule of issue estoppel. The rule being one which is in accord with sound principle and supported by high authority and there being a decision of this Court which has accepted it as a proper one to be adopted, we do not see any reason for discarding it." But His Lordship left the question open whether the principle of issue estoppel could be raised against as accused. His Lordship said: "Before parting, we think it proper to make one observation. The question 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 unless 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." 16. It was again urged before the Supreme Court that the decision in Pritam Singh v. State of punjab AIR. 1956 SC. 415 required reconsideration. It was again re-examined and in Lelka v. State of U. P. AIR. 1970 SC. 1381 Ramaswami J. said: "It is therefore clear that S.403, Criminal Procedure Code does not preclude the applicability of this rule of issue-estoppel. It was contended by Mr. Rana on behalf of the respondent that the decision of this Court in Pritam Singh's case, AIR. 1956 SC. 415 was based on the observations of the judicial Committee in Sambasivan v. Public Prosecutor, Federation of Malaya, 1950 AC. 458 and the decision in Pritam Singh's case, AIR. 1956 SC. It was contended by Mr. Rana on behalf of the respondent that the decision of this Court in Pritam Singh's case, AIR. 1956 SC. 415 was based on the observations of the judicial Committee in Sambasivan v. Public Prosecutor, Federation of Malaya, 1950 AC. 458 and the decision in Pritam Singh's case, AIR. 1956 SC. 415 required reconsideration because the principle could have no application to India where the principle of autre fois acquit is covered by a statutory provision viz.. S.403, Criminal Procedure Code which must be taken to be exhaustive in character. We are unable to accept this contention as right. We have already pointed out that S.403, Criminal Procedure Code does not preclude the applicability of the rule of issue estoppel. In any event the rule is one which is in accordance with sound principle and supported by high authority and there are already two decisions of this Court, viz..Pritam Singh's Case' AIR. 1956 SC. 415 and a latter case-Manipur Administration v. Thokchom, Bira Singh, (1964) 7 SCR 133 =(AIR. 1965 SC. 87) which have accepted the rule as a proper one to be adopted. We therefore do not see any reason for casting any doubt on the soundness of the rule or for taking a different view from that adopted in the two earlier decisions of this Court referred to." 17. From the foregoing it is clear that the principle of issue estoppel has by now come to stay as part of the criminal law of this country as in some other Commonwealth countries and America. It has so far been applied here only to findings entered on questions of fact and only for the benefit of accused persons. But questions 'may arise in future whether it cannot be extended to findings on questions of law as well. Questions may also arise whether it cannot instead of being limited to express findings be extended to findings involved in the conclusion reached at the previous trial and like constructive res judicata be applied even to matters which might and ought to have been raised by the prosecution in the previous trial. Questions may further arise whether it can be used against an accused for his conviction. Can it be extended like that to all or any of the aforesaid cases? Much can be said on both sides. Questions may further arise whether it can be used against an accused for his conviction. Can it be extended like that to all or any of the aforesaid cases? Much can be said on both sides. At this stage it is a fit matter for the legislature to intervene and say what are the permissible limits within which the principle of issue estoppel can operate in this country. 18. Now what are the facts in the present case. In C J. 438 of 1965 the accused were acquitted. It is true that some members of the A Party were convicted in CC. 108 of 1965. But that was for violating the provisions of I Cochin Act, 1 of 1062. That Act is no longer in force. So there is nothing in the judgment in CC. 108 of 1965 or 438 of 1965 to act as issue estoppel. 19. Some other grounds given by the District Magistrate are the evidence of B Pw.1 that he apprehends that there would be breach of the peace if dead bodies were allowed to be buried on the property and the Police report to the same effect. Although there are 19 persons in the B Party only one has chosen to come and swear like that. Further several years have by now passed after the report of the police and the passing of the ex parte order and there has been in the meanwhile tremendous social changes. It was during this period that Cochin Act 1 of 1062 was repealed. In such circumstances the District Magistrate ought not to have relied upon the evidence of BPw.1 and the police report. 20. The right of the A Party that is being interfered with by the ex parte order is a fundamental right. Under Art.25 (1) of the Constitution subject to public order, morality and health and to the other provisions of Part III of the Constitution unfettered right is given to all persons to practise any religion. In Commr. FIRE. v. LT. Swamiar AIR. 1954 SC. 232, B.tC. Mukherjee T. said: "Religion is certainly a matter of faith with individuals or communities and it in not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. In Commr. FIRE. v. LT. Swamiar AIR. 1954 SC. 232, B.tC. Mukherjee T. said: "Religion is certainly a matter of faith with individuals or communities and it in not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else 'but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms an observances might extend even to matters of food and dress. The guarantee under our Constitution not only protects the freedom or religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression "practice of religion" in Art.25. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all those would be regarded as parts of religion. Our Constitution-makers, however, have embodied the limitations which have been evolved by judicial pronouncements in America or Australia in the Constitution itself and the language of Art.25 and 26 is sufficiently clear to enable us to determine without the aid of foreign- authorities as to what matters come within the purview of religion and what do not. As we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down. As we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down. Under Art.26 (b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters." Again in Ratilal v. State of Bombay AIR. 1954 SC. 388 the same learned judge said: "Religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines. Thus if the tenets of the Jain or the Parsi religion lay down that certain rites and caremonies are to be performed at certain times and in a particular manner, it cannot be said that those are secular activities. partaking of commercial or economic character simply because they involve expenditure of money or employment of priests or the use of marketable commodities. No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate." 21. In Venkataramana Devaru v. State of Mysore AIR. 1958 SC. 255 Venkatarama Aiyer J. held that the expression "matters of religion" embraced not merely matters of doctrine and belief pertaining to the religion but also the practice of it, "or to put it in terms of Hindu theology, not merely its Gnana but also its Bhakti and Karma Kandas." 22. Practices which are regarded by the community as part of its religion are also matters of religion. Among most of the Hindus disposal of the dead is effected by cremation but among Muslims, Jews and Christians it is done by burial. Right to bury dead bodies in a particular manner with particular rites and ceremonies in consecrated places is part and parcel of the practice of certain religions. Among Christians while rites at the time of burial consist in services expressed in words ceremonies consist in gestures or acts preceding, accompanying or following those words. Right to bury dead bodies in a particular manner with particular rites and ceremonies in consecrated places is part and parcel of the practice of certain religions. Among Christians while rites at the time of burial consist in services expressed in words ceremonies consist in gestures or acts preceding, accompanying or following those words. Catholics, it is admitted that members of the A Party are Catholics, believe in the immortality of the soul and resurrection of the body. The practice of burying dead bodies with certain rites and ceremonies is an integral part of the Catholic faith. In burying dead bodies in consecrated places they only exercise their fundamental right regarding practice of religion. 23. It was argued that A party had waived this right and so members of that party could not be allowed to relly on it now. It is true that this right was not pleaded by them in C. C. 108 and 438 of 1965 but this right unlike contractual or certain statutory rights which it is open to parties for whose benefit they were made, to waive, cannot be waived being fundamental right. In Behrain Khurshid Pesikaka v. Stale of Bombay, AIR. 1955 SC. 123 Mahajan C. J. said: "These fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy." 24. B Party has no case that the owner of the property blocked in Survey Nos. 1178 and 1179 has any objection to the burial of dead bodies there. If any other person prevents A Party from exercising their right to bury dead bodies there it is he who is the law breaker and who has to be prevented from doing unlawful acts. S.144 of the Criminal Procedure Code is not intended to restrict the liberty of persons in exercising their lawful rights in a lawful manner. Action should be taken not against peaceful citizens but against the potential law breakers. The Magistrate has ample powers to bind down the party in the wrong from interfering unnecessarily with the exercise of legal rights by law abiding citizens. Action should be taken not against peaceful citizens but against the potential law breakers. The Magistrate has ample powers to bind down the party in the wrong from interfering unnecessarily with the exercise of legal rights by law abiding citizens. Peaceful citizens exercising their lawful rights are entitled to the support of the authorities responsible for law and order and it is the duty of the executive to protect them. 25. The ex parte order dated 6-10-1964 is no longer sustainable. It has to De rescinded and I do so. This revision petition is allowed.