K. Karunakaran, M. P. v. State Of Kerala — 1997 DIGILAW 241 (KER)

Judgment :- This petition is to quash the First Information Report and all further proceedings pursuant thereto under Section 482 of the Code of Criminal Procedure. 2. Petitioner was the Chief Minister of State of Kerala during the relevant period 1991 to 1995. The allegations in the F.I.R. (Annexure-A) relate to a contract entered into between the Managing Director of the Kerala State Civil Suplies Corporation and M/s. Power and Energy (P) Limited, Singapore on 29-11-1991 for the purchase and import of 15,000 Metric tonnes of Palmolein. It is alleged that the petitioner as accused No. 1 along with accused 2 to 5 by abusing their official position as public servants entered into a criminal conspiracy amongst themselves and with A6 and A7, the private firms caused pecuniary loss of about Rs. 2.8 crores and corresponding pecuniary gain to the accused and thereby committed the offences of criminal misconduct and criminal conspiracy. 3. The superintendent of Police, Vigilance Department, conducted preliminary enquiry in the matter from 9-8-1996 to March, 1997. The said enquiry revealed that the accused have committed the offences under Section 13(2) read with Section 13(1) of Prevention of Corruption Act, 1988 and Section 120B, I.P.C. and accordingly the case was registered as Cr. 1/97 at Vigilance Special Cell Police Station, Thiruvananthapuram and further investigation continued. It is at this stage the above Crl.M.C. has been filed. 4. The substantial and the only argument advanced by learned Senior Counsel, Mr. M. N. Sukumaran Nayar, is that on the very same allegations a F.I. Statement filed by one Shri M. Vijayakumar, then M.L.A. and presently the Speaker of the Legislative Assembly was found by a Division Bench of this Court that they do not make out prima facie case of commission of any cognizable offence which requires investigation. Learned Senior Counsel took me through the complaints filed by Shri M. Vijayakumar, M.L.A. and the decision of the Single Bench and the Division Bench. According to him, the findings of the Division Bench have concluded the issue and are no longer res integra for the respondents to commence the investigation. The SLP. filed against Writ Appeal judgment was dismissed by the Supreme Court. He further submits that the Division Bench had rightly or wrongly decided substantially on the issue and the law of precedents has to be applied to debar a fresh FIR. The SLP. filed against Writ Appeal judgment was dismissed by the Supreme Court. He further submits that the Division Bench had rightly or wrongly decided substantially on the issue and the law of precedents has to be applied to debar a fresh FIR. The FIR and investigation pursuant thereto by the respondents is, therefore, contrary to the larger principle of res judicata, amounting to abuse of the process of Court and hence it must be quashed. 5. Learned Director General of Prosecution Mr. Kallada Sukumaran, while opposing the stand of the petitioner submitted that earlier Original Petition filed as a public interest litigation has its origin from an earlier O.P. No. 3813 of 1994 which was dismissed by this Court on 4-4-1994 holding that the petitioner's contention therein was on the basis of the report of the Comptrolle and Auditor General (herein after referred to as 'the CAG'). According to the judgment the report by itself was not sufficient to come to a conclusion that an offence has been made out under Section 3 of the Prevention of Corruption Act. 6. Thereafter one Shri M. Vijayakumar, Member of Kerala Legislative Assembly presented a petition dated 15-4-1994 before the Superintendent of Police, Vigilance, to register a case based on certain allegations of corruption in the import of palmolein. The Superintendent of Police informed Shri Vijayakumar on 16-4-1994 (Annexure E) that in the light of G.O. (P) No. 65/92/Vig. dated 12-5-1992 necessary action on the said petition can be taken only on receipt of the orders of the Director of Vigilance and accordingly the said petition was forwarded to the Director of Vigilance Investigation. By a communication dated 4-7-1994 the Deputy Superintendent of Police informed Shri M. Vijayakumar that the allegations were purely based on the observations contained in the report of the CAG for the year 1991-92. The said report had been placed before the legislature to consider and act upon at the first instance. Therefore, according to the said letter, in view of the procedure laid down under the Constitution of India he was not in a position to act upon the conclusions emerged from unpublished CAG report. As against the refusal to register the complaint by the Deputy Superintendent of Police. Shri M. Vijayakumar moved O.P. No. 9882 of 1994 before this Court for quashing the communication and for a direction to register his F.I. Statement. As against the refusal to register the complaint by the Deputy Superintendent of Police. Shri M. Vijayakumar moved O.P. No. 9882 of 1994 before this Court for quashing the communication and for a direction to register his F.I. Statement. A learned Judge of this Court while dismissing the O.P. held that the rejection of the petitioner's complaint by the Deputy Superintendent of Police cannot be assailed. The Writ Appeal filed against this order was also dismissed holding that it was not a fit case to exercise power under Article 226 of the Constitution of India of under Section 482 of the Crl.P.C. and agreed with the conclusions of the learned single Judge. SLP. No. 54 of 1995 moved against this judgment was dismissed on 27-9-1994. 7. Learned Director General of Prosecution contended that the Original Petitions were the result petitions preferred by private parties as public interest litigants requesting registration of their individual cases and these petitions cannot be equated with that of a F.I.R. registered by the Police. According to him, Shri M. Vijayakumar's petition was based on the information gathered by him as an M.L.A. He has his own limitations in getting the full facts of the case. As a matter of fact it was admitted that many pages in the files were missing which are relevant to the conspiracy angle. Therefore this petition was from the documents made available to him, whereas the present investigation is based on some more materials and documents that are made available to the Investigating Officer. For instance he submits that there is a letter dated 5-10-1991 addressed by the then Chief Minister directly to the Prime Minister seeking for a permission to import palmolein at a time when direct import was prohibited. The said letter preceded by meetings of the then Chief Minister at New Delhi at Kerala House for three days on 3-10-1991, 4-10-1991 and 5-10-1991 with the other accused including representatives of the private firms. According to him, it is significant to the letter dated 5-10-1991 sent along with the memoranda of understanding entered with the firms for the import of palmolein. These letters further assume significance for the reasons set out to justify the said import. Investigation has to further go on into the conspiracy and on many aspects of the matter. According to him, it is significant to the letter dated 5-10-1991 sent along with the memoranda of understanding entered with the firms for the import of palmolein. These letters further assume significance for the reasons set out to justify the said import. Investigation has to further go on into the conspiracy and on many aspects of the matter. He further submitted that a letter addressed by another Company dated 28-7-1991 offering a lower price prior to the approval of the contract in question was suppressed. According to him, the relevant files relating to the incoming and outgoing tax registers are missing. It is submitted that these are some of the fresh materials other than those that were made available to this Court by Shri M. Vijayakumar. It is contended that the petition of Shri Vijayakumar was based on CAG report besides the materials that were available to him. According to learned Director General of Prosecution, the Division Bench found that there is financial irregularity in the contract. But since the allegations were based on the report of CAG and the limited documents made available, the Division Bench held that by themselves do not disclose the commission of any cognizable offence. That means the Division Bench was alive to the fact that there could be other materials which could make out a cognizable offence. The Division Bench did not exclude the materials being collected to find out further evidence. According to him, the dismissal of Original Petition under Article 226 of the Constitution would only mean that the discretionary power of High Court was not invoked to compel the respondents to register a complaint. The failure to exercise that jurisdiction could not mean that there is a bar for the investigating agency to go not the allegations of corruption and conspiracy. 8. Learned Director General contends that there is no proceeding pending before any Court for quashing. In this context he relied on the decision in State of West Bengal v. S. N. Basak, AIR 1963 SC 447 : (1963 (1) Cri LJ 341) wherein the Supreme Court held that Sec. 154 Crl.P.C. deals with information in cognizable offences. Section 156 deals with the investigation into such offences. In this context he relied on the decision in State of West Bengal v. S. N. Basak, AIR 1963 SC 447 : (1963 (1) Cri LJ 341) wherein the Supreme Court held that Sec. 154 Crl.P.C. deals with information in cognizable offences. Section 156 deals with the investigation into such offences. Under these sections the police has a statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police cannot be interfered with under the inherent power of the Court when there was no case pending. According to learned Director General, Section 482, Crl.P.C. can be invoked only under three circumstances, viz. to give effect to any order, to prevent abuwse of process of any Court or to secure ends of justice. There is no order to be given effect to and no order or the process of the Court is abused in this case and on the other hand in order to secure the ends of justice investigation is required to be continued. 9. He drew my attention to the decision in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : (1992 Cri LJ 527) on the scope of power under Section 482, Crl.P.C. The Supreme Court held as follows : "The power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. The Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint". It was further held in the same judgment on the necessity of preliminary enquiry before a public servant is charged. It was held as follows : "In a perfect system of prevention and detection of crimes, undeniably the paramount duty of a police officer to whom the commission of a cognizable offence is reported, is to register a case without causing any delay and promptly commence the investigation without perverting or subverting the law. It was held as follows : "In a perfect system of prevention and detection of crimes, undeniably the paramount duty of a police officer to whom the commission of a cognizable offence is reported, is to register a case without causing any delay and promptly commence the investigation without perverting or subverting the law. However, before a public servant is publicly charged with acts of dishonesty, and corruption, and a first information report is lodged against him, there should be some suitable preliminary enquiry into the allegations by a responsible officer". On the power of police and reliability of FIR Their Lordships observed : ".............., it is not necessary for the Court at this stage to embark upon an enquiry whether the allegations in the first information report are reliable or not and thereupon to render a finding whether any of the allegations is proved. These are matters which can be examined only by the concerned Court after the entire materials are placed before it on a thorough investigation. Court is not called upon to examine the truth or otherwise of each of the instances of the alleged corruption indicated in complaint in snippet form and thereafter string them together and express any opinion either way, since in our view any such opinion may affect the case of either party or cripple the course of investigation". "The investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigation into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds". 10. In State of W.B. v. Swapan Kumar, AIR 1982 SC 949 : (1982 Cri LJ 819) the Supreme Court quashed the F.I.R. as it did not disclose any offence. According to their Lordships : "A First Information Report which does not allege or disclose that the essential requirements of the penal provision are prima facie satisfied, cannot form the foundation or constitute the starting point of a lawful investigation. According to their Lordships : "A First Information Report which does not allege or disclose that the essential requirements of the penal provision are prima facie satisfied, cannot form the foundation or constitute the starting point of a lawful investigation. An investigation can be quashed if no cognizable offence is disclosed by the F.I.R. It is surely not within the province of the police to investigate into a Report (F.I.R.) which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry in such cases". 11. In Delhi Municipality v. Purshotam Dass, AIR 1983 SC 158 : (1983 Cri LJ 172) the Supreme Court while reversing the view of the High Court held that when there is a clear averment made regarding the active role played by the respondents and the extent of their liability the High Court is not justified in exercising its discretion under Section 482, Crl.P.C. to quash the proceedings, learned Director General of Prosecution relying on the principles laid down by the Supreme Court submitted that the present F.I.R. is based on clear averments on the active role played by the accused and the extent of their liability and there are no grounds to interfere at this stage. 12. The Advocate General appearing on the notice issued by this Court submitted that the principle of res judicata or estoppel cannot be imported to criminal jurisprudence. The restricted application of this principle is found under Section 300 of the Crl.P.C. and Article 20(2) of the Constitution of India. Assuming that large principle of res judicata is applied, petitioner's case would not come within the parameters of those principle. According to him, the basic requirements for applying the principle of res judicata are absent in this case. The parties, issues and the adjudication of it are different from the present F.I.R. The complaint of Shri M. Vijayakumar and the materials relied on by him are not the same in the case of the F.I.R.. The conspiracy angle is wider and is based on fresh investigation and materials. He submitted that even if investigation had been closed earlier so long as there was no acquittal of the accused, there is no bar for a fresh investigation, and the High Court's power under Section 482, Crl.P.C. is very limited. The conspiracy angle is wider and is based on fresh investigation and materials. He submitted that even if investigation had been closed earlier so long as there was no acquittal of the accused, there is no bar for a fresh investigation, and the High Court's power under Section 482, Crl.P.C. is very limited. Learned Advocate General referred to certain text books on the subject and decisions which are set out below. 13. In Rashmi Kumar v. Mahesh Kumar Bhada, (1997) 2 SCC 397 the Supreme Court in reference to the exercise of power under Section 482, Crl.P.C. held that the said power should be exercised sparingly and cautiously to prevent miscarriage of justice. Their Lordships observed as follows : "The High Court should sparingly and cautiously exercise the power under Section 482 of the Code to prevent miscarriage of justice. The High Court would be loath and circumspect to exercise its extraordinary power under Section 482 of the Code or under Article 226 of the Constitution. The Court would consider whether the exercise of power would advance the cause of justice or it would tantamount to abuse of the process of the Court. Social stability and order require to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon the exercise of the inherent power vested in the Court". 14. In State of Bihar v. J. A. C. Saldanha (1980) 1 SCC 554 : (1980 Cri LJ 98) the Supreme Court held that unless an extraordinary case of gross abuse of power is made out by the those in charge of investigation, the Court should be quite loath to interfere at the stage of investigation a field of activity reserved for police and the executive. 15. In R. P. Kapur v. State of Punjab, AIR 1960 SC 866 : (1960 Cri LJ 1239) the Supreme Court held that ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. 15. In R. P. Kapur v. State of Punjab, AIR 1960 SC 866 : (1960 Cri LJ 1239) the Supreme Court held that ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. Some of the categories set out by the Supreme Court in the said judgment where the inherent jurisdiction can be exercised are : (i) where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged; (ii) when the allegations in the first information report even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not. 16. In Jehan Singh v. Delhi Administration, AIR 1974 SC 1146 : (1974 Cri LJ 802) dealing with inherent powers of the High Court the Supreme Court held that where no charge-sheet or complaint has been laid down in Court and the matter is only at the stage of investigation by police, the Court cannot, in exercise of its inherent jurisdiction interfere with the statutory powers of the police to investigation into the alleged offence and to quash the proceedings. Even assuming that the allegations in the FIR are correct and constitute an offence so as to remove the legal bar to institute proceedings in Court, the Court cannot at that stage appraise the evidence collected by the police in their investigation. Any petition under Section 561A of the 1898 Code at such a stage is premature and incompetent. 17. In Ram Lal Narang v. State (Delhi Administration) 1979 SCC (Crl) 479 : (1979 Cri LJ 1346) the Supreme Court held that there was no express provision prohibiting the police from launching upon an investigation into the fresh facts coming to light after the submission of the report under Section 173(1) or after Magistrate had taken cognizance of the offence. Practical convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. Practical convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In the view of the Supreme Court, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. 18. On the principle of res judicata the Supreme Court held in Mohd. S. Labbai v. Mohd. Hanifa, AIR 1976 SC 1569 the following conditions to be satisfied for the plea : (i) the litigating parties are the same; (ii) the subject matter is identical; (iii) the matter must be finally decided. The best method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suits, and then to find out as to what had been decided by the judgments which operate as res judicata. In order to operate res judicata it must have been an issue raised directly and decided substantially. 19. In Daryao v. State of U.P., AIR 1961 SC 1457 the Supreme Court held that the basis on which the rule rests is founded on consideration of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions and is also in the public interest that individuals should be not be vexed twice over the same kind of litigation. 20. In Kirit Kumar v. Union of India, AIR 1981 SC 1621 : (1981 Cri LJ 1267) the Supreme Court held that the doctrine of finality of judgment or the principles of res judicata are founded on the basic principle that where a Court of competent jurisdiction has decided an issue, the same ought not be allowed to be agitated again and again. 21. In Lallubhai Jogibhai v. Union of India, AIR 1981 SC 728 : (1981 Cri LJ 288) the Supreme Court held that the application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings. 21. In Lallubhai Jogibhai v. Union of India, AIR 1981 SC 728 : (1981 Cri LJ 288) the Supreme Court held that the application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings. This principle of public policy is entirely inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus under Act 32 on fresh grounds, which were not taken in the earlier petition for the same relief. 22. In Bhajanlal's case (1992 Supp (1) SCC 335 : (1992 Cri LJ 527) referred earlier the Supreme Court while considering a similar plea of binding judicial decision held as follows : "Lastly, a fervent, but inexonerable plea was made requesting this Court to take judicial notice of the fact that the Justice Jaswant Singh Commission, appointed to enquire into the allegations of disproportionate assets of Shri Bhajan Lal through corrupt means found that these allegations were baseless. Both Shri Devi Lal and Dharam Pal in their affidavits filed before the High Court have stated that the allegations in the FIR are quite different from those which were the subject matter of enquiry before the Justice Jaswant Singh Commission. Be that as it may, we are not inclined to give any finding one way or other merely on the report of the Justice Jaswant Singh Commission by taking judicial notice of the same". 23. Learned Advocate General referred to a passage in the text book of Criminal Law by Glanville Williams, 1978 edition, which is as follows : "Re-opening the issue of guilt : Suppose that a transgressor is charged and acquitted for lack of evidence, and evidence has now come to light showing beyond doubt that he committed the crime. Even no, he cannot be tried a second time. He has what is termed, in legal Frenglish, the defence of autrefois acquit. Similarly, if he is convicted, even though he is let off very lightly, he cannot afterwards be charged on fresh evidence, because he will have the defence of autrefois convict. These uncouth phrases have never been superseded, though they might well be called the defence of "previous acquittal" and "previous conviction"; and "double jeopardy" makes an acceptable generic name for both. Another general title is res judicata. A man is acquitted of murder and afterwards writes an article for a newspaper describing how he committed it. These uncouth phrases have never been superseded, though they might well be called the defence of "previous acquittal" and "previous conviction"; and "double jeopardy" makes an acceptable generic name for both. Another general title is res judicata. A man is acquitted of murder and afterwards writes an article for a newspaper describing how he committed it. Would he still be safe from being charged again ? He could not be charged again with the murder. But if he had given evidence falsely denying the charge, he could be prosecuted for perjury. Prosecutions for perjury by defendants to criminal charges are uncommon, but one might well be brought if the case were as scandalous as you suggest". According to him, this principle incorporated under S. 300 of the Code would apply only if there is a conviction. This has no application to this case where the matter is still under investigation and assuming that the earlier F.I. Statement was quashed it would not prevent the investigating agency from reopening the case on fresh grounds. On dealing with this principle he has referred to another passage of B. B. Mitra on the Code of Criminal Procedure, Sixteenth Edition, which is as follows : "There is nothing like res judicata in a criminal trial as long as it does not terminate in either acquittal or conviction so as to attract the provisions of this section. Apart from this, there is no law, authority or principle which would estop an accused person from showing that the act with which he is charged as penal did not constitute an offence and that on a right interpretation of the enactment under which he is sought to be penalised, it should be held that the legislature never intended that anyone placed in his position should be criminally liable. To debar him from this defence would be nothing short of a prohibition from proving his innocence and would amount to a clear denial of justice. Such a course is manifestly repugnant to the basic principle of all criminal jurisprudence. To debar him from this defence would be nothing short of a prohibition from proving his innocence and would amount to a clear denial of justice. Such a course is manifestly repugnant to the basic principle of all criminal jurisprudence. 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 terms of S. 300(2). The above rule of issue estoppel does not prevent the trial of any offence as does autrefois acquit but only precludes evidence being led to prove a fact in issue as regard which evidence has already been led and a specific finding recorded at an earlier criminal trial. Section 300 does not preclude the applicability of this rule of issue of estoppel. The rule is in accord with sound principle and supported by high authority, and the Supreme Court has already accepted it as a proper one to be adopted". 24. Learned counsel for the petitioner referred to a decision in Jagnarain Singh v. State, AIR 1968 All 388 : (1968 Cri LJ 1457) wherein learned Judge of the Allahabad High Court held that principle of res judicata will apply to criminal cases also. In that case the High Court held that if the criminal trial in question was based upon facts which had actually be decided in exercise of jurisdiction under Art. 226 of the Constitution of India and as a result of the appeal preferred from that decision, that decision had become final between the parties, it would not be open to the parties to render that decision ineffective and to re-adjudicate that question in a subsequent criminal trial. The facts of that case was that the premises of petitioners and others were searched and some stock of grains was seized under U.P. Food Grains (Control, Requisition and Distribution) Order 1963. A petition for writ of mandamus was allowed and the seizure was held to be illegal. The said order became final. The facts of that case was that the premises of petitioners and others were searched and some stock of grains was seized under U.P. Food Grains (Control, Requisition and Distribution) Order 1963. A petition for writ of mandamus was allowed and the seizure was held to be illegal. The said order became final. Thus according to learned Judge, the order in writ petition holding the petitioner not guilty became final, therefore, the subsequent decision to prosecute for contravention for Foodgrain Control Order is barred. 25. I have heard the counsel in extenso. 26. At the outset it must be made clear that though several grounds were raised in the petition, learned senior counsel appearing on behalf of the petitioner had restricted to a "solitary point". According to him, if the present F.I.R. (Annexure-A) stands on its own and if the petitioner could not make out his case with reference to the previous adjudication by the Division Bench on the F.I. Statement there is nothing more to argue. In other words the petitioner rests his case solely on the plea that the respondents are prohibited from proceeding on the same set of allegations found by the Division Bench as not sustainable. On the other hand learned Advocate General and the Director General of Prosecution submitted that the F.I.R. is on different set of materials and there is no bar for further proceedings. 27. In the light of this stand the only question that arises for consideration is whether the judgments in O.P. No. 9882 of 1994 confirmed in W.A. No. 1083 of 1994 and against which SLP was dismissed are binding on the respondents so as to prohibit them from investigating and proceeding on the basis of FIR in question. 28. Before considering this question it is necessary to see the relevant pleadings, findings and the conclusions of the courts. The prayers in O.P. No. 9882 of 1904 dated 16-7-1994 filed by Shri M. Vijayakumar are as follows : i) A writ of mandamus directing the Deputy Superintendent of Police, (Vigilance) to register a crime case pursuant to the First Information Statement dated 11-4-1994 and to investigate the same; ii) A writ of certiorari to quash Ext. The prayers in O.P. No. 9882 of 1904 dated 16-7-1994 filed by Shri M. Vijayakumar are as follows : i) A writ of mandamus directing the Deputy Superintendent of Police, (Vigilance) to register a crime case pursuant to the First Information Statement dated 11-4-1994 and to investigate the same; ii) A writ of certiorari to quash Ext. P2 order of the Deputy Superintendent of Police dated 4-7-1994 and the letter dated 16-4-1994 of the Superintendent of Police, Vigilance; iii) A writ of mandamus to direct the Superintendent of Police, Vigilance, to investigate as per S. 154(3) of the Code of Criminal Procedure. 29. Learned single Judge of this Court by judgment dated 26-7-1994 dismissed the original petition. The findings are as follows : i) The F.I. Statement/Complaint is based on the report submitted by the Comptroller of Auditor General of India (CAG) for the year ended on 31-3-1993. Paragraphs 7 and 8 of the complaint are the verbatim reproduction of the report of CAG. From Exts. P4 to Ext. P21 the nature of the offence committed by many of the counter petitioners therein is not fully explained. The learned Judge did not propose to consider each of the offence mentioned in the F.I. Statement; ii) Regarding the missing pages in the Civil Supplies Corporation file it is not even alleged that these counter petitioners had entered into a conspiracy and have taken any action in furtherance of their conspiracy to remove the pages from the file. This had been stated in the judgment in order to show that the material particulars are lacking in Ext. P1 complaint; iii) If an analysis is made in respect of other offences mentioned in the complaint, almost the same conclusions (that the complaint does not disclose any details) have to be reached; iv) Therefore the original petition was disposed of on other grounds, namely, Ext. P1 complaint is only based on CAG's report. The documents produced by Shri M. Vijayakumar taken by themselves do not disclose the commission of any cognizable offence; v) The receiption of the complaint was not in accordance with S. 154, Cr.P.C. as it was submitted to an officer of the Vigilance Department who is not empowered to take action under S. 154, Cr.P.C., and, therefore, no provisions of the Code is violated by the officers in rejecting the complaint. 30. 30. The findings of the Division Bench in W.A. No. 1083 of 1994 dated 27-9-1994 are as follows : i) The short question which the Division Bench decided to consider was whether the complaints made by Shri M. Vijayakumar in writing can be considered as an information relating to a commission of a cognizable offence under S. 154 of the Cr.P.C. ii) The various annexures to this First Information Statement are not annexed to the original petition; iii) Some of the exhibits which are relevant were considered by the Division Bench and found that these documents pertained to certain financial irregularities in placing orders. These documents, however, by themselves do not disclose the commission of any cognizable offence; iv) The Division Bench did not deal with these documents in extenso as the learned Judge has analysed them and the Division Bench agreed with his analysis; v) The allegations are based on CAG report and the Division Bench had to consider whether all these allegations are sufficient to make out a prima facie case of commission of any cognizable offence; vi) There is nothing in the F.I. Statement on the basis of the materials which is disclosed to conclude that respondents have committed a cognizable offence. At its worst, the allegations bring out some irregularities; vii) The correspondence in connection with the placing of the contract and obtaining the approval had been dealt with by learned single Judge. While agreeing with the reasoning the Division Bench found that they do not disclose commission of any cognizable offence; viii) No materials were disclosed to conclude that the pages are missing from the said file and the respondents there are the responsible for the same and that the alleged missing pages would have disclosed a commission of cognizable offence; ix) This is not a fit case to exercise powers under Art. 226 of the Constitution of India or under S. 482 of the Cr.P.C. and the Division Bench agreed with the conclusion of learned single Judge and the appeal was dismissed; 31. The Supreme Court in SLP No. 54 of 1995 dated 27-9-1994 dismissed the special leave petition. 32. The Supreme Court in SLP No. 54 of 1995 dated 27-9-1994 dismissed the special leave petition. 32. The summary of F.I. Statement of Shri M. Vijayakumar dated 11-4-1994 is as follows : i) According to the said statement, the originals produced along with the statement would substantiate that the accused have committed corruption under S. 13(1)(c) and (d) of the Prevention of Corruption Act, 1988 and under Ss. 406, 409, 420, 34 and 120B of I.P.C. While setting out the facts and circumstances leading to the commission M. Vijayakumar has stated that CAG report had examined the regularity and propriety of the financial transaction of the Civil Supplies Corporation and found irregularities; ii) Even though CAG did not go into the criminal nature of the transaction and enquired whether a cognizable offence had been committed they are self evident and CAG report spells out these aspects and leaves the facts to speak; iii) Changes were made in the method of pricing the supplies and the delivery schedule would show that there is deliberate delay in fixing the price and delivery dates were postponed in violation of the Government of India guidelines; iv) The missing of 13 pages in the Civil Supplies Corporation file gives evidence of corruption and conspiracy. The direct import of palmolein to the State originated because of the undue initiative taken by the first accused by directly entering into negotiation with the private company. The direct import of palmolein to the State originated because of the undue initiative taken by the first accused by directly entering into negotiation with the private company. The said understanding was contrary to the guidelines framed by the Government of India for direct import of edible oils; v) The petitioner herein taking initiative and holding discussions with the private companies even before a decision was taken to import palmolein; vi) The import and the conditions agreed were contrary to the Union of India guidelines in reference to (a) against the approved scheme of import, normally that it should be only S.T.C. and (b) non-fixing of the delivery schedule; vii) Failure to adopt the normal procedure of tender system and make enquiries on the financial soundness of the parties; viii) The meeting with the private parties prior to 9-11-1991 indicates a pre-plant scheme to import through accused 3 and 4; ix) The Civil Supplies Corporation was forced to appoint accused 3 and 4 who were strangers to them; x) There was no festival need during the time of import; xi) The accused have made unlawful gain while causing loss to the State Government; xii) There is a deep secret conspiracy as evident from the role played by accused No. 1 in taking decision on his own without any Government decision on it and without observing the norms followed in respect of the contracts and also without there being any emergency for the import and accepting proposal without competitive offers. 33. The sum and substance of the First Information Statement is based on the findings of CAG report on the irregularities in concluding the contract. The First Information Statement further elaborates the findings of the report in pointing that accused No. 1 had taken initiative and decision to import palmolein and with that motive approached the Central Government and got approval and thereafter entered into an agreement which are contrary to the guidelines of the Central Government and the norms of the contract. This has resulted a huge loss to the State Government and pecuniary gain to accused 3 and 4. 34. This has resulted a huge loss to the State Government and pecuniary gain to accused 3 and 4. 34. The summary of the First Information Report (Annexure-A) dated 21-3-1997 is as follows : i) The proposal to import palmolein directly by the State Government was taken up with the Government of India at a time when there was no real requirement for palmolein as palmolein was being issued to the State by the State Trading Corporation; ii) The quantity proposed for such import was far in excess of the requirement in the State; iii) Important conditions stipulated by the Government of India such as price limit, terms of payment, fixation of retail price were violated; iv) Various procedures laid down by the State Government for purchase of the items were violated and a decision was taken without consulting the Finance Department; v) Formal agreement was entered into with A3 and A4 on 29-11-1991 without due sanction from the State Government and without specifying the price; vi) The price was fixed long after on 24-1-1992 at 40 USD per MT which was far above the average procurement price (392.25 USD); vii) The price was fixed in terms of USD as on the date of supply as against Indian Rupee resulting in huge loss to the Government on account of increase in the value of USD, which was known/anticipated at the time of the agreement; viii) Supply was delayed till the end of March 1992 as against the agreed period of February, 1992 resulting in increase of, price in real terms; ix) Kerala State Civil Supplies Corporation did not invoke the relevant penal clause applicable to delayed supply; x) A2 to A5 thereby abusing their official position as public servants in criminal conspiracy amongst themselves and with A6 and A7, the private firms, caused pecuniary loss of approximately Rs. 2.8 crores and corresponding pecuniary gain to the accused and thereby committed the offence of criminal misconduct under S. 13(2) read with S. 13(1)(d) of P.C. Act, 1988 and S. 120B, I.P.C. 35. By an assessment of both the first information statement (Annexure-D) and First Information Report (Annexure-A) it is seen that the present First Information Report is definitely based on further materials and enquiry. By an assessment of both the first information statement (Annexure-D) and First Information Report (Annexure-A) it is seen that the present First Information Report is definitely based on further materials and enquiry. The obvious difference between these two sets of First Information Statement and First Information Report are : i) In the F.I.R. filed by Superintendent of Police, Vigilance it is clearly found that there was no real requirement for direct import by the State Government; ii) The import was far in excess of the requirement in the State for the projected period; iii) The agreement was made without due sanction from the State Government and Finance Department without specifying the price; iv) Import conditions stipulated by the Government of India were violated in reference to price limit, terms of payment and fixation of retail price for distribution through the P.D.S.; v) While fixing the price in terms of USD as against the Indian Rupee resulted increase in the value of USD was known/anticipated at the time of the agreement resulting in huge loss to the Government; vi) As against the delay from the agreed period up to February, 1992 the supply till March 1992 the penal clause for the delay was not invoked; These were the relevant and important specific information/allegation as against the earlier First Information Statement of Shri M. Vijayakumar. According to respondents 2 and 3, the present First Information Report is based on a preliminary enquiry conducted in the matter from 9-8-1996 to March, 1997 during which period which they examined 63 documents including 18 documents mentioned earlier in the judgments. This FIR discloses a commission of a cognizable offence which is not disputed. 36. While the Division Bench judgment refused to exercise their jurisdiction under Art. 226 of the Constitution of India on the ground that the First Information Statement does not disclose commission of any cognizable offence on the basis of the materials available to the court, it made its view holding that though "these documents undoubtedly pertain to certain financial irregularities," the documents however by themselves do not disclose the commission of any cognizable offence. Thus the judgments were in reference to those documents that were made available whereas the present FIR, is based on further materials as set out above and, therefore, in my view the findings and the dismissal of the Original Petition and writ appeal could not be taken as a binding judicial pronouncement on any further enquiry on the same subject matter. 37. The principle of res judicata as indicated in Section 11 of the C.P.C. is technical rule applicable to civil litigation. However as the said rule is founded on public policy cannot be treated as inadmissible in dealing with criminal cases. Therefore while applying this rule courts should see that the test of the technical rule should be satisfied strictly. Secondly the provisions of Crl.P.C. giving freedom for investigating agencies to proceed on fresh materials subject to Section 300 of the Crl.P.C. should not be whittled down by such application. 38. The stand of 2nd and 3rd respondents in the counter that they held a preliminary enquiry from 9-8-1996 to 3/97 and during the course of the enquiry examined 63 documents including 18 mentioned in the earlier judgment and seven witness and based on that the commission of a cognizable offence has made out remains unrepudiated. The respondents have prepared a preliminary report and are prepared to furnish all the records and the copy of the report for perusal. 39. The earlier petition was by a private party and his prayer was to register the case. The orders that were challenged viz. the communication dated 16-4-1994 and 4-7-1994 did not refuse to register the case. According to them the complaint was based on irregularities pointed out CAG report and therefore they could not act upon it. This will not bind or estop them from registering a case if additional materials are brought to their knowledge for their action. 40. Applying the known tests of res judicata in this case it could be seen that the litigating parties and their pleadings are not same. The subject matter was not finally decided. The Division Bench did not rule out additional or fresh materials to substantiate and reactivate the police for an action. 41. 40. Applying the known tests of res judicata in this case it could be seen that the litigating parties and their pleadings are not same. The subject matter was not finally decided. The Division Bench did not rule out additional or fresh materials to substantiate and reactivate the police for an action. 41. In the decision in Jaganarain Singh's case (1968 Cri LJ 1457) of Allahabad High Court referred to by the learned Senior Counsel for the petitioner, the criminal prosecution was initiated after the petitioner had succeed in quashing the order in the writ confirmed in the appeal. The parties were the same and the issue was finally decided. Therefore this decision will not apply to the facts of the case. 42. The issue before the Division Bench was whether the complaint of Shri M. Vijayakumar can be considered as information relating to a commission of a cognizable offence to compel the police to register the case. The Division Bench held that from the materials made available there is no offence made out and jurisdiction under Art. 226 of the Constitution of India cannot be exercised. 43. The issue before this Court now is whether FIR. filed by the police discloses a cognizable offence. This issue is different from the one raised before the Division Bench. If the police have subsequently registered the F.I. Statement of Shri M. Vijayakumar without any fresh materials, the Principle of the res judicata may be invoked. But the police have after enquiry on their own registered a case, but on the subject matter raised earlier. I do not find nay scope for applying the larger principle of res judicata even to a limited extent. Any other construction would lead to disastrous consequences. It would be easy for any third party to approach a court with ipsedixit materials and get the petition dismissed so as to foreclose any further investigation on the said matter. 44. I do not find nay scope for applying the larger principle of res judicata even to a limited extent. Any other construction would lead to disastrous consequences. It would be easy for any third party to approach a court with ipsedixit materials and get the petition dismissed so as to foreclose any further investigation on the said matter. 44. Some of the fresh facts alleged in the present FIR are as follows : (i) The quantity of import of palmolein was far in excess of the real requirement for the period; (ii) The import was without concurrence of Finance Department; (iii) Acted with anticipated knowledge that the U.S. Dollar value will increase; (iv) The failure to resort to penal clause for the delayed delivery; (v) Direct meetings with the officials and private firms' representatives at New Delhi prior to 4-10-1991 even before the decision of the Government to import. Besides many other facts on the private meetings of the accused during 3-10-1991 to 5-10-1991 and the wider conspiracy angle are being investigated according to learned Director General of Prosecution besides offering to place all those documents and preliminary report which I declined to go into it as not necessary. These are voluminous additional fresh materials which were not available to Shri M. Vijaykumar and consequently to the Division Bench. 45. After careful consideration of the F.I. Statement and FIR. as pointed earlier the present FIR. is not based on the report of the CAG or on the materials relied on earlier. This FIR. makes out new and clear and categorical allegations and also based on additional materials as it could be made out by reading of F.I.R. itself. A mere look of the FIR. discloses clearly a commission of cognizable offence. This fact is not in dispute. The power of the police for repeated investigation on discovery of fresh facts is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. In the light of additional and fresh materials the present FIR. makes out a cognizable offence and, therefore, the earlier findings would not impair or bar to the proceedings. In the light of additional and fresh materials the present FIR. makes out a cognizable offence and, therefore, the earlier findings would not impair or bar to the proceedings. For all these reasons I am of the view that the judgments in O.P. No. 9882 of 1994 and W.A. No. 1083 of 1994 as confirmed in SLP are not binding on the respondents so as to estop them from investigating into the matter. The FIR (Annexure A) does make out a cognizable offence. No grounds are made out for interference. Hence Crl.M.C. is dismissed. Order accordingly.