ORDER : A learned Single Judge of this Court as per the orders impugned in these proceedings, as rendered in Crl.L.P.Nos.683/2016 and 635/2013, has held that the appeal against acquittal in complaint proceedings for offence punishable under S.138 of the Negotiable Instruments Act is not maintainable before this Court and that proper remedy of the petitioners is to prefer an appeal against acquittal before the Sessions Court concerned in terms of the provisions contained in the proviso to S.472 of the Code of Criminal Procedure. Accordingly, this Court held that the petitions filed under S.378(4) seeking leave of this Court to institute Criminal Appeal for impugning judgment of acquittal of the accused for the above said offence are not maintainable before this Court. 2. A learned Single Judge of this Court (P.Bhavadasan, J.) in the case in Shibu Joseph & Ors. v. Tomy K.J. & Ors., reported in (ILR 2013 (4) Ker. 866 = 2013 (4) KHC 629 ), has held that an appeal against acquittal of an accused in complaint proceedings as in the instant one as envisaged in S.378 of the Cr.P.C. is not maintainable before this Court and the proper remedy of complainants aggrieved by such acquittal is to prefer an appeal against acquittal before the Session Court in terms of the provisions contained in the proviso to S.372 of the Cr.P.C. Whereas another learned Single Judge of this Court (K.Harilal, J.), took a contrary view on the same point in the case in Sree Gokulam Chit and Finance Co. (P) Ltd. v. Damodaran, reported in ( 2013 (4) KLT 547 ), and held that criminal appeal in such cases is maintainable before this Court, provided leave in that regard is obtained as envisaged in S.378(4) of the Cr.P.C. 3. The present petitioners have also filed complaints alleging offence punishable under S.138 of the Negotiable Instruments Act against the accused persons concerned and those complaints have ended in acquittal. Aggrieved thereby, the present petitioners had preferred petition under S.378(4) of the Code of Criminal Procedure seeking leave of this Court to institute criminal appeal for challenging the judgments of acquittal of the trial court. The leave petitions in that regard filed by the present petitioners are CrI.L.P.No.683/2013 and CrI.L.P.No.635/2013. Aggrieved thereby, the present petitioners had preferred petition under S.378(4) of the Code of Criminal Procedure seeking leave of this Court to institute criminal appeal for challenging the judgments of acquittal of the trial court. The leave petitions in that regard filed by the present petitioners are CrI.L.P.No.683/2013 and CrI.L.P.No.635/2013. Those Criminal Leave Petitions were dismissed by a learned Single Judge of this Court following the ratio decidendi laid down by the Single Bench decision rendered in the aforecited reported decision in Shibu Joseph & Ors. v. Tomy K.J. & Ors. reported in ILR 2013 (4) Ker. 866 and it was held that the remedy of the petitioners herein is to approach the appellate sessions court by instituting criminal appeal as aforestated. 4. Later, in view of the divergence in the judicial opinion in the aforecited Single Bench decision, the matter was referred to the Division Bench of this Court for authoritative pronouncement in the matter. Thereupon, a Division Bench of this Court in the judgment in Omana Jose v. State of Kerala, reported in ( 2014 (2) KLT 504 ), held that the appeal before the appellate sessions court concerned is not maintainable and that the proper remedy of a complainant, who is aggrieved by such judgment of acquittal of the trial court in complaint proceedings, is to file a petition under S.378(4) of the Cr.P.C. to secure leave of this Court so as to institute criminal appeal for impugning such judgment of acquittal. Thereby the Division Bench of this Court in Omana Jose’s case supra has affirmed the view rendered by a learned Single Judge of this Court in Sree Gokulam Chit and Finance Ltd.’s case supra and had overruled the contra view rendered in Shibu Joseph’s case supra. 5. The orders dismissing the present Crl.L.P.Nos.683/2013 and 635/2013 have been rendered by this Court on 4.11.2013 and 30.10.2013 respectively. It is thereafter that the Division Bench of this Court has rendered its judgment in Omana Jose’s case supra on 11.4.2014. The petitioners herein were advised that, in view of the alteration of law due to the abovesaid judicial verdict of the Division Bench, it is no longer legally feasible for them to maintain any appeal directly before the appellate sessions court, as directed in the impugned orders herein dismissing these leave petitions. The petitioners herein were advised that, in view of the alteration of law due to the abovesaid judicial verdict of the Division Bench, it is no longer legally feasible for them to maintain any appeal directly before the appellate sessions court, as directed in the impugned orders herein dismissing these leave petitions. Accordingly, the petitioners would point out that they were advised to file the present applications seeking to recall of the common order dated 30.10.2013 rendered by this Court dismissing the abovesaid criminal leave petitions as not maintainable, etc. 6. It is the prime contention of the petitioners that now it is virtually impossible for them to avail their appellate remedy before the sessions court in view of the change of law as declared in the subsequent Division Bench judgment and that their only course of action is to file applications for leave under S.378(4) of the Cr.P.C. and since the applications for leave for identical reliefs have already been dismissed by this Court on 30.10.2013, they would seek the intervention of this Court by invoking the extra ordinary powers conferred on this Court under S.482 of the Cr.P.C. so as to recall the common impugned order dated 30.10.2013 dismissing the leave petitions and to re-hear leave petitions afresh on merits, in the light of the change of law declared by the Division Bench of this Court in Omana Jose’s case supra. Further they would point out that unless there is intervention on the part of this Court as prayed for herein, they would be left with no remedy unless the Apex Court overrules the view taken by the Division Bench of this Court in Omana Jose’s case supra, etc. 7. Heard Sri.B.Pramod, learned counsel appearing for the applicant in the matter arising out of Crl.L.P.No.683/2013, Sri.V.N.Ramesan Nambisan, learned counsel appearing for the applicant in the matter arising out of Crl.L.P.No. 635/2013, Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for the respondent State of Kerala and Sri.Tom Jose Padinjarekara, learned Amicus Curiae appointed by this Court. 8. Incidentally it is relevant to note that this Court on 30.10.2017 had deemed fit to secure the assistance of an Amicus Curiae to assist this Court and had accordingly appointed Sri.Tom Jose Padinjarekara, learned Advocate of this Court (formerly Addl. D.G. of Prosecution and Addl.State Prosecutor) as Amicus Curiae for assistance to resolve the various issues raised in this case. Incidentally it is relevant to note that this Court on 30.10.2017 had deemed fit to secure the assistance of an Amicus Curiae to assist this Court and had accordingly appointed Sri.Tom Jose Padinjarekara, learned Advocate of this Court (formerly Addl. D.G. of Prosecution and Addl.State Prosecutor) as Amicus Curiae for assistance to resolve the various issues raised in this case. Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the respondent State was also requested to assist this Court in the matter. 9. One of the questions that arises in this matter is as to whether it is right and proper for this Court to recall the impugned orders passed on 30.10.2013 dismissing these Crl.L.Ps. by invoking the extra ordinary powers conferred under S.482 of the Cr.P.C, in spite of the bar contained in S.362 of the Cr.P.C. S.362 of the Cr.P.C. reads as follows: “Section 362: Court not to alter judgment.--Save as otherwise provided by this Code or by any other law for the time being in force, no Court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.” Section 482 of the Cr.P.C. reads as follows: “Section 482: Saving of inherent power of High Court.-- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” 10. It is by now well established by a catena of rulings of the Apex Court and various High Courts including this Court that the inherent powers conferred on this Court under S.482 of the Cr.P.C. are of wide plenitude to be exercised only for the purposes mentioned in that provision of the Code and it should be exercised to pass any order, which may be necessary to give effect to any order under the Code and to prevent abuse of the process of the Code or to secure the ends of justice with the ultimate objective that the said power should be exercised only to subserve the rendering of real and substantial justice, subject to the parameters laid down for the invocation of that power. 11. 11. A 5-Judge Bench of the Apex Court in Rupa Ashok Hurra v. Ashok Hurra & Anr. reported in (2002) 4 SCC 388 ), has opined that though the judges of the superior courts do their best, subject to of course the limitation of human fallibility, yet there are varied situations, which may arise in the rarest of rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice. That in such a case, it would not only be proper, but also obligatory both legally and morally to rectify the error, (see para. 42 of the SCC report in Rupa Ashok’s case supra.) That the duty to render justice shall have to prevail over the policy of uncertainty of judgment. Therefore, it was held by the Constitution Bench (5-Judge Bench) decision of the Apex Court in the Rupa Ashok’s case supra that in order to prevent abuse of the process and to cure a grave miscarriage of justice, court may reconsider its judgments in exercise of its inherent powers conferred under S.482 of the Cr.P.C. It is profitable to refer para. No.42 of the abovesaid decision in Rupa Ashok’s case supra, reported in (2002) 4 SCC 388 ), which reads as follows: “42. The concern of this Court for rendering justice in a cause is not less important than the principle of finality of its judgment. We are faced with competing principles — ensuring certainty and finality of a judgment of the Court of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principles of natural justice or giving scope for apprehension of bias due to a Judge who participated in the decision-making process not disclosing his links with a party to the case, or on account of abuse of the process of the court. Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty. Almighty alone is the dispenser of absolute justice — a concept which is not disputed but by a few. We are of the view that though Judges of the highest court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. We are of the view that though Judges of the highest court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question, we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in the public interest that a final judgment of the final court in the country should not be open to challenge, yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and would cause perpetuation of irremediable injustice.” 12. The true content and purport of the maxim, ex debito justitiae relates to and arises from the concept of justice. In the event there appears to be infraction of justice, the question there being a turn around and thereby maintaining a total silence by the courts of law would not arise. It has been held by a 3-Judge Bench of the Apex Court in the case Inder Mohan Goswasmi v. State of Uttranchal, reported in ( (2007) 12 SCC 1 = 2007 (4) KHC 360), that every High Court has inherent power to act ex debito justitiae by invoking its extra-ordinary powers under S.482 of the Cr.P.C. in appropriate and deserving cases. The English Courts have also invoked inherent powers to protect its process from abuse. In Conolly v. DPP reported in 1964 A.C. 1254, Lord Delvin has held that where particular Criminal proceedings constitute an abuse of the process of the court, the court is empowered to refuse to allow the indictment to proceed to trial. 13. The English Courts have also invoked inherent powers to protect its process from abuse. In Conolly v. DPP reported in 1964 A.C. 1254, Lord Delvin has held that where particular Criminal proceedings constitute an abuse of the process of the court, the court is empowered to refuse to allow the indictment to proceed to trial. 13. A 3-Judge Bench of the Apex Court in the celebrated case Giansingh v. State of Punjab, reported in ( (2012) 10 SCC 303 = 2012 AIR SCW 5333) has held that the power under S.482 of the Cr.P.C. in its very language saves inherent power of the High Court, which it had by virtue of it being a superior court to prevent abuse of process of any court or otherwise to secure the ends of justice. The non-obstante clause starting with the words, “Nothing in this Code.....” was held to be the provision is an overriding one and these words leave no manner of doubt and that none of the provisions of the Code limits or restricts the inherent power and guideline for exercise of such power is provided in S.482 of the Cr.P.C. itself, i.e., to prevent abuse of process of any court or otherwise to secure the ends of justice. It is also by now well established that there can never be any hard and fast categories of cases or any straight jacket formula, for deciding on the cases, which would warrant the invocation of the extra ordinary powers under S.482 of the Cr.P.C. and the main principle that could be laid down is the one incorporated in the Section itself, that is to prevent the abuse of the process of any court or to secure the ends of justice. 14. However, in the facts of this case, it is to be noted that rightly or wrongly, a considered decision has been rendered by a learned Single Judge of this Court dismissing the present leave petitions on the ground that those applications are not maintainable under S.378(4) of the Cr.P.C. and that the proper remedy of the petitioners is to file appeal before the Sessions Court concerned. The said view of the learned Single Judge has now been overruled by a considered verdict of the Division Bench of this Court in Omana Jose’s case supra. The said view of the learned Single Judge has now been overruled by a considered verdict of the Division Bench of this Court in Omana Jose’s case supra. So the issue is as to whether, merely because the said decision of this Court is wrong on merits, as held subsequently by the Division Bench of this Court, would be a ground for this Court to recall the order dismissing the said leave petitions. This question has to be answered specifically in the context of the provision engrafted in S.362 Cr.P.C. which bars reviewing or alteration of a judgment of a criminal court, once it is signed, at the only exception is one where the typographical, clerical errors or arithmetical error’s as sought to be corrected subsequently. 15. The scope and powers available under S.482 of the Cr.P.C. to recall judgment of a criminal court has been laid down in the decisions of the Apex Court in the cases as in State of Punjab v. Davinder Pal Singh Bhullar & Ors. reported in (2011) 14 SCC 770 ), wherein it has been held by a 2-Judge Bench of the Apex Court in para No.59 to 61 as follows: “59. It is evident from the above that inherent powers can be exercised only to prevent the abuse of the process of the court and to secure the ends of justice. However, powers can be used provided there is no prohibition for passing such an order under the provisions of Cr.P.C. and there is no provision under which the party can seek redressal of its grievance. Under the garb of exercising inherent powers, the criminal court cannot review its judgment. Such powers are analogous to the provisions of S.151 C.P.C. and can be exercised only to do real and substantial justice. 60. The rule of inherent powers has its source in the maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist. The order cannot be passed bypassing the procedure prescribed by law. The order cannot be passed bypassing the procedure prescribed by law. The court in exercise of its power under Section 482 Cr.P.C. cannot direct a particular agency to investigate the matter or to investigate a case from a particular angle or by a procedure not prescribed in Cr.P.C. Such powers should be exercised very sparingly to prevent abuse of process of any court. Courts must be careful to see that their decision in exercise of this power is based on sound principles. 61. To inhere means that it forms a necessary part and belongs as an attribute in the nature of things. The High Court under S.482 Cr.P.C. is crowned with a statutory power to exercise control over the administration of justice in criminal proceedings within its territorial jurisdiction. This is to ensure that proceedings undertaken under Cr.P.C. are executed to secure the ends of justice. For this, the legislature has empowered the High Court with an inherent authority which is repository under the statute. The legislature therefore clearly intended the existence of such power in the High Court to control proceedings initiated under Cr.P.C. Conferment of such inherent power might be necessary to prevent the miscarriage of justice and to prevent any form of injustice. However, it is to be understood that it is neither divine nor limitless. It is not to generate unnecessary indulgence. The power is to protect the system of justice from being polluted during the administration of justice under the Code. 62. The High Court can intervene where it finds the abuse of the process of any court which means, that wherever an attempt to secure something by abusing the process is located, the same can be rectified by invoking such power. There has to be a nexus and a direct correlation to any existing proceeding, not foreclosed by any other form under the Code, to the subject-matter for which such power is to be exercised.” 16. In yet another 2-Judge Bench judgment of the Apex Court in Vishnu Agarwal v. State of U.P. reported in (2011) 14 SCC 813 , the Apex Court held that in cases, where the judgment has been passed without giving opportunity of hearing to the accused party, recall of the judgment of criminal court is permissible in appropriate cases. In yet another 2-Judge Bench judgment of the Apex Court in Vishnu Agarwal v. State of U.P. reported in (2011) 14 SCC 813 , the Apex Court held that in cases, where the judgment has been passed without giving opportunity of hearing to the accused party, recall of the judgment of criminal court is permissible in appropriate cases. Therein, though the case was notified in the computer list and not in the main list of the High Court, the counsel for the revision petitioner had not appeared, as he had not noted the case and the appellant therein had pleaded that the matter was disposed of by the High Court, in his absence, without hearing him. It was held that the bar under S.362 of the Cr.P.C. cannot be considered in a rigid and over-technical manner so as to defeat the ends of justice and the application filed by the respondent therein was an application for recall of the order and not for review and that it was held therein that in a recall petition, the Court does not go into the merits of the matter, but simply recalls an order, which was passed without giving an opportunity of hearing. Accordingly, the impugned judgment of the criminal court which was rendered without hearing the affected party was recalled by the Apex Court in the decision of the Apex Court in Vishnu Agarwal’s case supra, by invoking the powers under S.482 of the Cr.P.C. 17. A similar situation was also considered by this Court in the case, Pushpangathan v. State of Kerala, reported in ( 2015 (3) KLT 105 ), wherein it has been held in paras 16 to 18 thereof as follows: ‘16. There cannot be any quarrel on the proposition that the bar created under S.362 Cr.P.C. has to be respected. But the concepts of recall, review and/or alteration are to be distinguished clearly. If we understand the said terms correctly, there will not be any difficulty to resolve the issue. Alteration and/or review prohibited by S.362 Cr.P.C. presupposes the continuance of the order under challenge and effectuation of the same with some changes in it. if a party wants to seek the indulgence of court to recall an order, he has to show a legal reason for challenging its existence and convince the court that the order complained of shall not be allowed to continue or operate. if a party wants to seek the indulgence of court to recall an order, he has to show a legal reason for challenging its existence and convince the court that the order complained of shall not be allowed to continue or operate. When an order is recalled, the whole thing is abrogated and the parties are relegated to the original position; i.e., to a stage anterior to passing any judgment or final order in the matter. Conceptually, review/alteration is done while the order is in existence or force. The exercise undertaken in a review/alteration is to closely examine the order sought to be reviewed so as to find out any illegality or impropriety. For doing so, the existence of the judgment or order must be recognized. When a judgment or a final order is recalled for valid reasons, the resultant legal effect is that the order itself is abrogated or uprooted and the parties will be relegated to a position that existed at the commencement of the proceedings. Therefore, I am of the view that S.362 Cr.P.C. does not affect the power of this Court to recall a judgment or order, if legal grounds are properly established by the party complaining. 17. Facts of the case in hand show that the order happened to be passed against the complainant in his absence for no fault attributable to him. The affidavit filed in support of the petition sworn to by the advocate clerk shows the reasons for non-appearance of the counsel. The judgment in the proceedings under S.482 Cr.P.C. resulted in termination of the complaint filed by the complainant before the learned Magistrate. The complainant suffered prejudice and his right to be heard has been adversely affected are points beyond any possible dispute. Hence, I am of the view that the petition is to be allowed. 18. According to the learned counsel for the 5th accused, the private complaint against the 5th accused (a police officer) was filed in contravention of S.64(3) of the Kerala Police Act, 1960 and it was hopelessly barred by limitation. Therefore, the ultimate fate of the complaint can be visualised even at this stage, contended the 5th accused. 18. According to the learned counsel for the 5th accused, the private complaint against the 5th accused (a police officer) was filed in contravention of S.64(3) of the Kerala Police Act, 1960 and it was hopelessly barred by limitation. Therefore, the ultimate fate of the complaint can be visualised even at this stage, contended the 5th accused. Then a further question may arise as to whether right of a person to be heard can be decided without hearing him, if there is high degree of probability that even if he is heard, the situation may not turn in his favour? Learned Authors, HWR Wade and CF. Forsyth, in their seminal work on Administrative Law, have dealt with the concept of “the right to fair hearing” elaborately. One question posed is what will be the effect where a fair hearing would make no difference? Learned Authors observed as follows: “Procedural objections are often raised by unmeritorious parties. Judges may then be tempted to refuse relief on the ground that a fair hearing could have made no difference to the result. But in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudged unfairly. Lord Wright once said (General Medical Council v. Spackman ((1943) AC 627) at 644; and see Annamunthodo v. Oilfields Workers’ Trade Union ((1961) AC 945) at 956 (Lord Denning).: If the principles of natural justice are violated in respect of any decision it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.” Whether the complainant will ultimately succeed or not cannot be a reason for discarding or negating his plea that his right to be heard has been infringed. It is an essential component of natural rights and it cannot be defeated or ignored. Therefore, I am of the view that the order passed by this Court on Crl.M.C.No.1612 of 2009 should be recalled for the aforesaid reasons. In the result, the petition is allowed. The order passed in the above Crl.M.C. on 13.8.2014 is recalled. It is an essential component of natural rights and it cannot be defeated or ignored. Therefore, I am of the view that the order passed by this Court on Crl.M.C.No.1612 of 2009 should be recalled for the aforesaid reasons. In the result, the petition is allowed. The order passed in the above Crl.M.C. on 13.8.2014 is recalled. Post the case for hearing in accordance with the roster.’ True that greater plentitude of power may be available in appropriate cases as can be seen from the legal principles laid down by the aforesaid Constitution Bench ruling of the Apex Court in Rupa Ashok Hurra’s case supra reported in ( (2002) 4 SCC 388 ). But the pertinent case is as to whether, in the facts of the particular case, it would be appropriate and legally right to correct to recall the previous orders of this Court rendered dismissing the Crl.L.P. as not maintainable, merely on the ground of subsequent change of law. True that, as of now, the petitioners have no other remedy but to invoke the provisions contained in S.378(4) of the Cr.P.C. for which they had filed the applications seeking leave of this Court. Identical relief in respect of the very same cause of action was sought for by them, which was dismissed as not maintainable as per the impugned orders. If, as a matter of fact, there is no bar for the petitioners in filing fresh criminal leave petition before this Court under S.378(4) of the Cr.P.C. on the very same grievance, then it is not necessary or appropriate for this Court to invoke its extra ordinary powers under S.482 of the Cr.P.C. so as to recall the previous orders in the leave petitions. Whereas, if it is to be held by this Court that in view of the concluded dismissal orders of this Court in the leave petitions, there is a bar for the petitioners to file fresh leave petitions and then only it is necessary and relevant to consider the present pleas. So the pertinent question to be answered is as to whether there is any legal bar for the petitioners in instituting fresh criminal leave petition under S.378(4) of the Cr.P.C. in respect of the very same cause of action, and in the light of the change of law declared by the Division Bench of this Court in Omana Jose’s case supra. In other words, the issue is as to whether there is any bar by way of res judicata or issue of estoppel, which would stand in the way of the petitioners in filing fresh Criminal Leave Petitions on the very same subject matter. 18. A 3-Judge Bench of the Apex Court in the celebrated case in Pritam Singh v. State of Punjab, reported in ( AIR 1956 SC 415 ), has held, more particularly in paras 15 and 20 thereof, has considered the effect of res judicata in criminal trials and acquittal of accused on certain charge and the issue as to whether the verdict is binding in all subsequent proceedings. It was held by the 3-Judge Bench of the Apex Court in Pritam Singh’s case supra that the effect of 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. Thus an acquittal of an accused in a criminal trial for offence under S.19(f) of Arms Act, is tantamount to a finding that the prosecution had failed to establish the possession of certain revolver by the accused therein, as alleged. The possession of that revolver was a fact in issue, which had to be established by the prosecution before he could be convicted for the offence under S.19(f) of the Arms Act. It was held that the said fact was found against the prosecution and could not be proved against the accused in the subsequent proceedings between the Crown and the accused, under a charge of murder, which is a different offence. The evidence against him in the latter proceedings would have to be considered regardless of the evidence of recovery of the revolver from him, etc. 19. The evidence against him in the latter proceedings would have to be considered regardless of the evidence of recovery of the revolver from him, etc. 19. Their Lordships of the Apex Court in 3-Judge Bench decision reported in ( AIR 1956 SC 415 ), placed heavy reliance on another celebrated judgment of the Privy Council in Sambasivam v. Public Prosecutor, Federation of Malaya, reported in (1950) A.C (Appeal Cases) 458, wherein it was held that 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, the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. It will be pertinent to refer to those observations of the Privy Council in Sambasivam v. Public Prosecutor, Federation of Malaya, reported in (1950) A.C (Appeal Cases) 458, which reads as follows: “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 form taking any steps to challenge it at the second trail”. 20. In the facts of Pritam Singh’s case supra, reported in ( AIR 1956 SC 415 ), the High Court in the impugned judgment therein had held that in the light of the circumstances attendant upon the recovery of the revolver and the previous acquittal of the accused for offence under S.19(f) of the Arms Act, the High Court was of the opinion that the said evidence could not be taken into consideration against the accused. The Pritam Singh’s case supra dealt with the appeal in that matter and their Lordships of the Apex Court held in para 20 of the decision in Pritam Singh’s case supra that the previous acquittal of the accused for the charge under S.19(f) of the Arms Act, would tantamount to a finding that the prosecution had failed to establish the possession of the revolver and that the 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 said fact has been found against the prosecution and their Lordships of the Supreme Court in Pritam Singh’s case supra held that having regard to the observations of Lord MacDermott in the aforecited Privy Council’s decision in Sambasivam’s case supra [(1950) A.C. 458], the said fact could not be proved against the accused (Pritam Singh) in any further proceedings between the Crown and him. It was thus opined by their Lordships of the Apex Court in Pritam Singh’s case supra that the High Court was right in rejecting the evidence regarding the recovery of revolved against the accused and the evidence against him can be considered regardless of the alleged recovery of the revolver, etc. 21. A Constitution Bench (5-Judges) of the Apex Court in the ruling in Manipur Administration v. Thokchom Bira Singh, reported in ( AIR 1965 SC 87 ), has held that the rule of issue estoppel in a criminal proceedings does not introduce any variation in the Code of Criminal Procedure and that S.403 of the Cr.P.C.1898 does not preclude its application in criminal trial. It was held therein that the rule of issue estoppel in a criminal trial is that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence, which might be permitted by the terms of S.403(2) of the Cr.P.C., 1898. The rule is not the same as the plea of double jeopardy or autrefois acquit and that the rule does not introduce any variation in the Code of Criminal Procedure either in investigation, enquiry or trial. It also 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 regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before a criminal court of competent jurisdiction. The rule thus relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent criminal court at a previous trial (see paras 7 and 11 of Manipur Administration’s case supra). Further it was held that S.403 of the Cr.P.C. 1898, 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 Supreme Court (in Pritam Singh’s case ( AIR 1956 SC 415 ) supra), which has accepted it as a proper one to be adopted, there is no reason for discarding it. It will be pertinent to refer to the observations of the Constitution Bench of the Apex Court in the ruling in Manipur Administration v. Thokchom Bira Singh, reported in ( AIR 1965 SC 87 ), in paras 6 to 12, which read as follows: ‘6. Before referring to the decision of this Court in AIR 1956 SC 415 it would be convenient to refer to and put aside one point for clearing the ground. S.403, Criminal Procedure Code embodies in statutory form the accepted English rule of autrefois acquit. This section runs : “403(1) A person who has been once tried” by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again, for the same offence, nor on the same facts for any offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237. (2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, sub-section (1). (3). A person convicted of any offence constituted by any act causing consequences which together with such act, constituted a different offence from that of which he was convicted may be afterwards tried for such last mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted. (4). A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5). Nothing in this section shall affect the provisions of Section 26 of the General Clauses Act, 1897, or Section 188 of this Code. Explanation- The dismissal of a complaint, the stopping of proceedings under Section 249, the discharge of the accused or any entry made upon a charge under Section 273, is not an acquittal for the purposes of this section.” Section 26 of the General Clauses Act which is referred to in S.403 enacts: “26. Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. “ We might also, in this connection, refer to Article 20(2) of the Constitution since it makes provision for a bar against a second prosecution in an analogous case. That provision reads: “20(2) No person shall be prosecuted and punished for the same offence more than once.” As has been pointed out by this Court in State of Bombay v. S.L. Apte, 1961-3 SCR 107 : ( AIR 1961 SC 578 ) both in the case of Art.20(2) of the Constitution as well as S.26 of the General Clauses Act to operate as a bar the second prosecution and the consequential punishment thereunder, must be for the same offence i.e., an offence whose ingredients are the same. It has been pointed out in the same decision that the Vth Amendment of the American Constitution which provides that no person shall be subject, for the same offence, to be twice put in jeopardy of life or limb, proceeds on the same principle. (7). It is common ground that the respondent cannot bring his case within the provisions of sub-s.(1) of S.403 and it was also common ground that the trial of the respondent would be permitted by sub-s.(2). It should, however, be noticed that sub-ss.(1) to (3) of this section deal with the trial of an accused for an offence and his conviction therefor. The question raised for decision in Pritam Singh’s case, ( AIR 1956 SC 415 ) however was different and was whether 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 the terms of S.403(2). (8) As Pritam Singh’s case, ( AIR 1956 SC 415 ) was based wholly on the decision of the Privy Council in Sambasivam v. Public Prosecutor, Federation of Malaya, (1950 AC 458) it would be necessary to examine the basis of the latter decision. The appellant - an Indian Tamil - was travelling on foot in the company of two Chinese. They met a party of three Malayans. A fight ensued between the two groups in the course of which one of the Chinese was killed. The Malayans alleged that they had been fired on by the Chinese and that the appellant had with him a revolver which he had held out and pointed at one of them. In connection with this incident the appellant was charged with carrying a fire-arm and being in possession of ten rounds of ammunition. Two charges were framed against the appellant; (1) of carrying a firearm, and (2) of being in possession of ammunition. He was acquitted of the second charge of being in possession of ammunition and that acquittal became final. In connection with this incident the appellant was charged with carrying a fire-arm and being in possession of ten rounds of ammunition. Two charges were framed against the appellant; (1) of carrying a firearm, and (2) of being in possession of ammunition. He was acquitted of the second charge of being in possession of ammunition and that acquittal became final. He was, later convicted of the offence of carrying a firearm and the appeal before the Privy Council related to the legality of this conviction, Diverse objections branching into several fields of law were raised before the Privy Council in support of the appeal but what is, however, of relevance now, is the one which related to the admissibility of the evidence of the prosecution witnesses who spoke of the revolver carried by the appellant being loaded with bullets and of the appellant carrying four more bullets in a bag. Their Lordships rejected all the other contentions raised on behalf of the appellant but allowed the appeal on the ground that this evidence regarding the revolver being loaded and of the appellant carrying a bag containing some bullets was inadmissible in law. In dealing with this Lord MacDermott speaking for the Board said: “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 and 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”. After pointing out that the prosecution witnesses were permitted to depose regarding the possession of ammunition by the appellant and that it was not possible to exclude the effect of this evidence on the prosecution case. Their Lordships held that the appellant was seriously prejudiced by the reception of this evidence and therefore allowed the appeal and directed his acquittal. The point in regard to which the observations in Sambasivam’s case, 1950 AC 458 were applied by this Court related to the use of the recovery of a revolver from the accused to sustain his conviction of the offence of murder. The point in regard to which the observations in Sambasivam’s case, 1950 AC 458 were applied by this Court related to the use of the recovery of a revolver from the accused to sustain his conviction of the offence of murder. Previous to the prosecution for an offence under S.302, Indian Penal Code the appellant before this Court had been tried before the Additional Sessions Judge, Faridpur under S.19(f) of the Indian Arms Act of an offence for possession of that revolver and had been acquitted. This Court speaking through Bhagwati J, extracted the observations we have quoted from the Judgment of Lord MacDermott and pointed out that on the basis of this decision the evidence relating to the recovery of the revolver from the accused should have been excluded. (9). It was not contended by learned Counsel for the appellant that if the principle laid down by this decision was correct, the acquittal of the respondent by the learned Judicial Commissioner by the order now under appeal was erroneous. The argument, however, was that the observations in Pritam Singh’s case, AIR 1956 SC 415 required reconsideration. This submission was rested on two separate lines of reasoning: (1) That the rule in Sambasivam’s case, 1950 AC 458 on which Pritam Singh’s case AIR 1956 SC 415 was based had been dissented from by the English Court of Criminal Appeal in 1963-3 All ER 510 and that similarly, that principle had been departed from by this Court in AIR 1963 SC 340 . (2) That the principle of Common Law which was applied by the Privy Council in Sambasivam’s case, 1950 AC 458 could have no application in a jurisdiction like ours where the principle of autrefois acquit is covered by a statutory provision framed on the tines of S.403 occurring in a code which is exhaustive. (10). As regards the first ground, it must, be pointed out that learned Counsel for the State admitted that there was nothing in Gurcharan Singh’s case, AIR 1963 SC 340 which militated against the acceptance of the rule laid down in Pritam Singh’s case, AIR 1956 SC 415 , Coming next to the point made regarding the decision of the English Court of Criminal Appeal in 1963-3 All. ER 510 we should make it clear that the decisions of the English Courts being merely of persuasive authority, decisions of such a court even if at variance with one of this Court do not by themselves justify an application to reconsider an earlier decision of this Court. Besides, a close examination of the judgment in 1963-3 All ER 510 through which learned Counsel for the State has taken us, does not disclose any dissent from the principle stated by LordMacDermott. The entire case before the Court turned upon whether there had been a specific finding on an issue of fact an issue directly raised regarding an ingredient of the offence charged at the later trial, when the accused was acquitted by the Court of Criminal Appeal in the former proceeding. Except that the Court did not expressly rule that the principle of issue estoppel applied in England, no exception was taken to its soundness and the decision proceeded on the basis of the facts not justifying the application of the principle, the conditions not being fulfilled. Learned Counsel is, therefore, not well-founded in his submission that the principle underlying Sambasivam’s case, 1950 AC 458 was dissented from in 1963-3 All ER 510. Besides it should be pointed out that the principle underlying the decision in Pritam Singh’s case, AIR 1956 SC 415 did come up for consideration before this Court on several occasions, but it was never dissented from though in some of them it was distinguished on facts (See Banwari Goadra v. State of Rajasthan, Crl. A. No.141 of 1960 D/ - 7-2-1961 (SC), Mohinder Singh v. State of Punjab, Crl.A.No.140 of 1961 D/-31-7-1963 : ( AIR 1965 SC 79 ) and Kharkan v. State of Uttar Pradesh; Crl.A.No.95 of 1961 D / - 29-8-1963 : ( AIR 1965 SC 83 ).’ (11). These two decisions in 1963-3 All. ER 510 and AIR 1963 SC 340 being out of the way, we shall address ourselves to the question as to whether what is termed “issue estoppel” which has been held by this Court in Pritam Singh’s case, AIR 1956 SC 415 to be applicable to criminal proceedings is excluded by reason of the provisions of the Criminal Procedure Code. ER 510 and AIR 1963 SC 340 being out of the way, we shall address ourselves to the question as to whether what is termed “issue estoppel” which has been held by this Court in Pritam Singh’s case, AIR 1956 SC 415 to be applicable to criminal proceedings is excluded by reason of the provisions of the Criminal Procedure Code. For this purpose learned Counsel invited our attention to S.5(1) which enacts: “All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.” This, however, in our opinion does not afford any assistance to the argument because Pritam Singh’s case, AIR 1956 SC 415 did not introduce any variation in the Code as regards either investigation, enquiry or trial. As we have pointed out earlier, 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 regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before a court of competent jurisdiction. Learned Counsel next drew our attention to the observations of the Privy Council in Yusofalli Mulla v. The King, 76 Ind App 158 at page 169 : ( AIR 1949 P.C. 264 at p. 267) where the following observations occur: “The last point urged by Mr. Page was that even if the case did not fall within the terms of S.403 of the Code of Criminal Procedure the appellant could nonetheless rely on the common law rule that no man should be placed twice in jeopardy.” After stating that even for the application of the Common Law rule of double jeopardy the earlier order had to be by a Court competent to pass a valid order of acquittal or conviction the judgment proceeded : “This argument therefore fails on the facts, and it is not necessary for Their Lordships to consider whether S.403 of the Code of Criminal Procedure constitutes a complete Code in India on the subject of autrefois acquit and autrefois convict, or whether in a proper case the common law can be called in aid to supplement the provisions of the section.” (12). As we have pointed out, we are not now concerned with any extension of the principle of autrefois acquit but as to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent Court at a previous trial. The reasoning of Lord MacDermott in Sambasivam’s case, 1950 AC 458 was not the first occasion when this rule as to issue-estoppel in a criminal trial was formulated or given effect to. That it is not the same as the plea of double jeopardy or autrefois acquit is also clear from the statement of the law by Lord MacDermott himself. The distinction between autrefois acquit and the objection to the reception of evidence to prove an identical fact which has been the subject of an earlier finding between the parties is brought out in the following passage from the judgment of Wright, J., in The Queen v. Ollis, 1900-2 QB 758 at pp. 768-769 : “The real question is whether this relevant evidence of the false pretence on July 5 or 6 ought to have been excluded on the ground that it was part of the evidence given far the prosecution at the former trial, at which the prisoner was charged with having obtained money from Ramsey on that false pretence, and was acquitted of that charge.” The learned Judge then went on to point out that if the acquittal at the first trial was based on the negativing of this basic fact the evidence would be inadmissible but if that acquittal was based on other circumstances the evidence would be admissible. That is why he said : “An objection in the nature of a plea of “autrefois acquit” cannot, of course be maintained, because on 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. “ Speaking of this type of estoppel Dixon, J., said in The King v. Wilkes, 77 CLR 511 at pp. “ Speaking of this type of estoppel Dixon, J., said in The King v. Wilkes, 77 CLR 511 at pp. 518-519 : “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 1900-2 QB 758 which in effect I have adopted in the foregoing statement....... 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 autrefois acquit and autrefois 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 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 re-litigation of issues which are settled by prior litigation.” This decision was rendered in 1948. The matter was the subject of consideration by the High Court of Australia after the decision in Sambasivam’s case, 1950 AC 458 in Marz v. The Queen, 96 CLR 62 at pp. 68-69. The question concerned the validity of a conviction for rape after the accused had been acquitted on the charge of murdering the woman during the commission of the act. In a unanimous judgment by which the appeal of the accused was allowed, the Court said : “The Crown is as much precluded by an estoppel by judgment in criminal proceedings as is a subject in civil proceedings............. In a unanimous judgment by which the appeal of the accused was allowed, the Court said : “The Crown is as much precluded by an estoppel by judgment in criminal proceedings as is a subject in civil proceedings............. ............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 process of reasoning by which the finding was reached in fact.................It is enough that an issue or issues have been distinctly raised or 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, therefore, 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. We might also point out that even before the decision of this Court this rule was applied by some of the High Courts and by way of illustration we might refer to the decision of Harries, CJ., in Manickchand Agarwalla v. The State, ( AIR 1952 Cal. 730 ). 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.’ 22. A 3-Judge Bench of the Apex Court in the case Masud Khan v. State of Uttar Pradesh, reported in ( AIR 1974 SC 28 ), para 4, has held that the issue estoppel arises only if the earlier as well as the subsequent proceedings were criminal prosecutions. A 3-Judge Bench of the Apex Court in the case Masud Khan v. State of Uttar Pradesh, reported in ( AIR 1974 SC 28 ), para 4, has held that the issue estoppel arises only if the earlier as well as the subsequent proceedings were criminal prosecutions. It was held therein that the proceedings in connection with Foreigners (Internment) Order para.5, are not criminal proceedings and hence where in a prosecution under S.14 of the Foreigners Act, the accused is acquitted on the ground that he is not a foreigner, that decision does not operate as issue estoppel to bar subsequent action against the same person under para 5 of the Foreigners (Internment) Order (1962). It will be profitable to refer to para 4 of the decision of the Apex Court in Masud Khan’s case supra, which reads as follows: “4. But that apart, this matter could be decided on another point. The question of issue estoppel has been considered by this Court in Pritam Singh v. State of Punjab ( AIR 1956 SC 415 ), Manipur Administration v. Thokchom, Bira Singh, (1964) 7 SCR 123 = ( AIR 1965 SC 87 ) and Piara Singh v. State of Punjab (1969) 1 SCC 379 = ( AIR 1969 SC 961 ). Issue estoppel arises only if the earlier as well as the subsequent proceedings were criminal prosecutions. In the present case while the earlier one was a criminal prosecution the present is merely an action taken under the Foreigners (Internment) Order for the purpose of deporting the petitioner out of India. It is not a criminal prosecution. The principle of issue estoppel is simply this: that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by law. Pritam Singh’s case, AIR 1956 SC 415 (supra) was based on the decision of the Privy Council in Sambasivam v. Public Prosecutor, Federation of Malaya, 1950 AC 458. Pritam Singh’s case, AIR 1956 SC 415 (supra) was based on the decision of the Privy Council in Sambasivam v. Public Prosecutor, Federation of Malaya, 1950 AC 458. In that case Lord MacDermott speaking for the Board said: “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.” It should be kept clearly in mind that the proceeding referred to herein is a criminal prosecution. The plea of issue estoppel is not the same as the plea of double jeopardy or autrefois acquit. In the King v. Wilkes, 77CLR 311 Dixon, J. referring to the question of issue estoppel said: “...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 trail which is brought is issue on a second criminal trial of the same prisoner... 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. 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 relittigation of issues which are settled by prior litigation.” The emphasis here again would be seem to be on the determination of criminal liability. In Marz v. The Queen 96 CLR 62 the High Court of Australia said: “The Crown is as much precluded by an estoppel by judgment in criminal proceedings as is a subject in civil proceedings... In Marz v. The Queen 96 CLR 62 the High Court of Australia said: “The Crown is as much precluded by an estoppel by judgment in criminal proceedings as is a subject in civil proceedings... The law which gives effect to issue estoppel is not concerned with the correctness of incorrectness of the finding which amounts to an estoppel, still less with the process of reasoning by which the finding was reached in fact... It is enough that an issue or issues have been distinctly raised or 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.” Here again it is to be remembered that the principle applies to two criminal proceedings and the proceeding with which we are now concerned is not a criminal proceeding. We therefore hold that there is no substance in this contention. The petition is dismissed.’ 23. Further their Lordships of the Supreme Court m 3-Judge Bench in the decision in Bhanu Kumar Jain v. Archana Kumar, reported in AIR 2005 SC 626 , has dealt with the distinction between ‘issue estoppel’ and ‘res judicata’. It has been held in para 30 thereof that there is a distinction between ‘issue estoppel’ and ‘res judicata’ and that res judicata debars a court from exercising its jurisdiction to determine the lis and that if it has attained finality between the parties, whereas the doctrine of issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in latter proceedings and that the doctrine of res judicata creates a different kind of estopped viz. Estoppel by Accord. It will be profitable to refer paras 29 to 35 of the judgment of the Apex Court in Bhanu Kumar Jain v. Archana Kumar, reported in ( AIR 2005 SC 626 ), which read as follows: ‘29. There is a distinction between ‘issue estoppel’ and ‘res judicata’ [See Thoday v. Thoday -1964 (l)All. ER 341] 30. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. There is a distinction between ‘issue estoppel’ and ‘res judicata’ [See Thoday v. Thoday -1964 (l)All. ER 341] 30. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz. Estoppel By Accord. 31. In a case of this nature, however, the doctrine of ‘issue estoppel’ as also ‘cause of action estoppel’ may arise. In Thoday (supra) Lord Diplock held: “...... “cause of action estoppel” is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e, judgment was given on it, it is said to be merged in the judgment...If it was determined not to exist., the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam.” 32. The said dicta was followed in Barber v. Staffordshire Country Council, (1996) 2 All ER 748. A cause of action estoppel arises where in two different proceedings identical issues are raised, in which event, the latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event the bar is absolute in relation to all points decided save and except allegation of fraud and collusion. [See C. (a minor) v. Hackney London Borough Council (1996) 1 All. ER 973]. 33. In such an event the bar is absolute in relation to all points decided save and except allegation of fraud and collusion. [See C. (a minor) v. Hackney London Borough Council (1996) 1 All. ER 973]. 33. It is true that the Madras High Court in Badvel Chinna Asethu (supra) held that two alternative remedies in succession are not permissible stating: “Assuming that it is open to a defendant in the appeal against the ex parte decree to object to the decree on the ground that he had not sufficient opportunity to adduce evidence in a case where he did not choose to avail himself of the special procedure, it does not by any means follow that, where he did actually avail himself of the special procedure and failed still it would be open to him to have the same question reagitated by appealing against the decree.” 34. Oldfield, J. in his concurring judgment stated: “...No case has been cited before us in which the question now under consideration, whether a party against whom a decree has been passed ex parte can proceed in succession under O.9 R.13, as well as by taking objection to the order placing him ex parte in his appeal against the substantive decree has been dealt with. On principle it would appear that he could only do so at the expense of the rules as to res judicata; and there can be no reason why the adjudication on his application under O.9 R.13, if there were one should not be conclusive against him for the purpose of any subsequent appeal. In the present case it is suggested that the facts that his application under O.9. R.13, was not carried further than the District Munsiffs Court and that he acquiesced in the District Munsiffs unfavourable order, would make a difference to his right to appeal against the decree on this ground. The answer to this is that the District Munsiffs order not having been appealed against, has become final. It seems to me that it would be a matter for great regret if a party could pursue both of two alternative remedies in succession and that the recognition of a right to do so would be a unique incident in our procedure. I am accordingly relieved to find that such a right has not been recognized by authority....” 35. It seems to me that it would be a matter for great regret if a party could pursue both of two alternative remedies in succession and that the recognition of a right to do so would be a unique incident in our procedure. I am accordingly relieved to find that such a right has not been recognized by authority....” 35. The aforementioned view was reiterated in the subsequent decisions of different High Courts in Marian Begum (supra) M/s. Mangilal Rungta, Calcutta (supra) and Dr. M.K. Gourikutty (supra).’ 24. It has been held by the Apex Court in the decision in Isabella Johnson v. Ussain, reported in ( AIR 1991 SC 993 ) that where, however the question is purely on law and relates to the jurisdiction of the court or decision of the court sanctioning something, which is illegal, by resort to rule of res judicata, the party affected by the impugned decision will not be precluded from challenging the validity of that Order under the technical rule of res judicata, for rule of procedure cannot supersede the law of the land. It was held therein that where a court has no jurisdiction in law cannot be conferred jurisdiction by applying the technical rule of res judicata. It has also been held that there can be no estoppel on a pure question of law. It will be profitable to refer to para 5 and 6 of the abovesaid judgment in Isabella Johnson’s case supra, which read as follows: (see KLT report). “5. Learned counsel for the appellant submitted that the learned Judge of the High Court was in error, as the earlier decisions of the Rent Controller to the effect that it was the City Civil Court and not the Rent Controller who had the jurisdiction to entertain the suit for eviction filed by the appellant against the respondent, constituted res judicata between the parties on the question of jurisdiction. It was submitted by him that, even if that decision was wrong, the issue of jurisdiction was finally decided between the parties and that decision was that it was the Civil Court and not the Rent Controller that had the jurisdiction to entertain and dispose of the suit for eviction. It was submitted by him that, even if that decision was wrong, the issue of jurisdiction was finally decided between the parties and that decision was that it was the Civil Court and not the Rent Controller that had the jurisdiction to entertain and dispose of the suit for eviction. He further submitted that the respondent could not be permitted to take inconsistent pleas as he was barred by the principles of estoppel from taking up the plea before the Civil Court that it was the Rent Controller who had the exclusive jurisdiction to entertain the suit. He placed reliance on a decision rendered by a Division Bench comprising two learned Judges of this Court in Avtar Singh and Ors. v. Jagit Singh & Anr., ( (1979) 4 SCC 83 ) which took the view that the Civil Court’s decision regarding lack of jurisdiction will operate as res judicata in a subsequent suit. In that case the Civil Court declined jurisdiction. The Civil Court took the view that it had no jurisdiction to try the suit in question and directed the return of the plaint for representation to the appropriate Revenue Court. When the claim was filed in the Revenue Court, the Court took the view that it had no jurisdiction to try the claim. Thereupon, a suit was again instituted in the Civil Court for the same relief. This suit failed throughout on the ground of res judicata. The High Court affirmed the dismissal and the Division Bench of this Court took the view that the High Court was right in taking the view that the principles of res judicata were applicable to the issue of jurisdiction. In our opinion, the contention of learned counsel for the appellant cannot be upheld. We find that in Mathura Prasad Bajoo Jaiswal and Ors. v. Dossibai N.B. Jeejeebhoy ( (1970) 3 SCR 830 at p. 835) a Bench comprising three learned Judges of this Court has taken the view that a decision on the question of jurisdiction of the court or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. The Court observed:- “It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The Court observed:- “It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression “the matter in issue” in S.11 of the Code of Civil Procedure means the right litigated between the parties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.” 6. The same view has been reiterated by a Bench comprising three learned Judges of this Court in Sushil Kumar Mehta v. Gobind Ram Bohra (dead) through his Lrs. ( (1990) 1 SCC 193 ). We find that the decision of three learned Judges of this Court in Mathura Prasad Bajoo Jaiswal and Ors. v. Dossibai N.B. Jeejeebhoy has not been noticed at all by the Division Bench comprising two learned Judges of this Court which delivered the judgment in Avtar Singh & Ors. v. Jagit Singh & Anr. and hence, to the extent, that the judgment in Avtar Singh’s case takes the view that the principle of res judicata is applicable to an erroneous decision on jurisdiction, it cannot be regarded as good law. v. Jagit Singh & Anr. and hence, to the extent, that the judgment in Avtar Singh’s case takes the view that the principle of res judicata is applicable to an erroneous decision on jurisdiction, it cannot be regarded as good law. In our opinion a court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata. It is well settled that there can be no estoppel on a pure question of low and in this ease the question of jurisdiction is a pure question of law.’ 25. It has also been held by the Apex Court in Sushil Kumar Mehta v. Gobind Ram Bohra, reported in (1990) 1 SCC 193 ), Para 26 of the said decision reads as follows: “26. Thus it is settled law that normally a decree passed by a court of competent jurisdiction, after adjudication on merits of the rights of the parties operates as res judicata in a subsequent suit or proceedings and binds the parties or the persons claiming right, title or interest from the parties. Its validity should be assailed only in an appeal or revision as the case may be. In subsequent proceedings its validity cannot be questioned. A decree passed by a court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the authority of the court to pass a decree which cannot be cured by consent or waiver of the party. If the court has jurisdiction but there is defect in its exercise which does not go to the root of its authority? such a defect like pecuniary or territorial could be waived by the party. They could be corrected by way of appropriate plea at its inception or in appellate or revisional forums, provided law permits. The doctrine of res judicata under S.11 C.P.C. is founded on public policy. such a defect like pecuniary or territorial could be waived by the party. They could be corrected by way of appropriate plea at its inception or in appellate or revisional forums, provided law permits. The doctrine of res judicata under S.11 C.P.C. is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. Thus the decision of a competent court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them. The reason is obvious; a pure question of law unrelated to facts which are the basis or foundation of a right, cannot be deemed to be a matter in issue. The principle of res judicata is a facet of procedure but not of substantive law. The decision on an issue of law founded on fact in issue would operate as res judicata. But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction of a court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res judicata in the subsequent suit. A question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court. Therefore, the doctrine of res judicata does not apply to a case of decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. A question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court. Therefore, the doctrine of res judicata does not apply to a case of decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the court inherently lacks jurisdiction.” 26. It has been held by a 3-Judge Bench of the Apex Court in Mathura Prasad Sarjoo Jaiswal and Ors. v. Dossibai N.B.Jeejeebhoy, reported in ( AIR 1971 SC 2355 ), paras.9 and 11, that a question relating to jurisdiction of a court cannot be deemed to have been finally determined by an erroneous decision of that Court. If by an erroneous interpretation of the statute, the Court holds that it has no jurisdiction, the question would not operate as res judicata. Similarly by an erroneous decision, if the Court assumes jurisdiction, which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise, because, if those decisions are considered as conclusive, it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the legislature. It will be profitable to refer paras 6 to 11 of the decision in Mathura Prasad Sarjoo Jaiswal’s case supra, which read as follows: “6. The authorities on the question whether a decision on a question or law operates as res judicata disclose widely differing views. In some cases it was decided that a decision on a question of law can never be res judicata in a subsequent proceeding between the same parties: Parthasardi v. Chinnakrishna, (1863) ILR 5 Mad. 304; Chamanlal v. Bapubhai, (1898) ILR 22 Bom. 669; and Kanta Devi v. Kalawati, AIR 1946 Lah 419. On the other hand Aikman, J., in-Chandi-Prasad-v-. Maharaja Mahendra Mahendra Singh, (1901) ILR 23 All. 5 held that a decision on a question of law is always res judicata. But as observed by Rankin, C.J., in Tarini Charan Bhattacharjee v. Kedar Nath Haldar, ILR 56 Cal 723 = (AIR 1928 Cal. 777) (F.B.). On the other hand Aikman, J., in-Chandi-Prasad-v-. Maharaja Mahendra Mahendra Singh, (1901) ILR 23 All. 5 held that a decision on a question of law is always res judicata. But as observed by Rankin, C.J., in Tarini Charan Bhattacharjee v. Kedar Nath Haldar, ILR 56 Cal 723 = (AIR 1928 Cal. 777) (F.B.). “Questions of law are of all kinds and cannot be dealt with as though they were all the same. Questions of procedure, questions affecting jurisdiction, questions of limitation may all be questions of law. In such questions the rights of parties are not the only matter for consideration.” We may analyse the illustrative cases relating to questions of law, decisions on which may be deemed res judicata in subsequent proceeding. In Bindeshwari Charan Singh v. Bageshwari Charon Singh, 63 Ind App 53 = ( AIR 1936 PC 46 ) the Judicial Committee held that a decision of a Court in a previous suit between the same parties that S.12-A of the Chota Nagpur Encumbered Estates Act 6 of 1876 which renders void a transaction to which it applies was inapplicable, was res judicata. In that case the owner of an impartible estate, after his estate was released from management, executed a maintenance grant in favour of his minor son B, but without the sanction of the Commissioner as required by S.12-A of the Act. B on attaining majority sued his father and brothers for a maintenance grant at the rate of Rs.4,000 per annum. The claim was decreed, and the plaintiff was awarded a decree for a grant of Rs.4,000/-inclusive of the previous grant of 1909, and the Court held that the grant of 1909 was valid in law. The father implemented the decree and made an additional maintenance grant upto the value of the decreed sum. In an action by the sons of B’s brothers challenging the two grants on the plea that the grants were illegal and not binding upon them, the Judicial Committee held that the plea was barred as res judicata in respect of bath the grants-in respect of the first because there was an express decision on the validity of the first grant in the earlier suit, and in respect of the second the decision in the first suit was res judicata as to the validity of the second grant which was made in fulfillment of the obligation under the Court’s decision. The Judicial Committee held that in respect of the first grant, the decision that S.12-A did not apply to the grant, was res judicata, and in respect of the second grant the constriction between the same parties of S.12-A was res judicata. Validity of the second grant was never adjudicated upon in any previous suit : the second grant was held valid because between the parties it was decided that to the grant of maintenance of an impartible zamindari S.12-A of the Chota Nagpur Encumbered Estates Act had no application. This part of the judgment of the Judicial Committee is open to doubt. 7. Where the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same parties: Tarini Charan Bhattacharjee’s case ILR 56 Cal. 723 = (AIR 1928 Cal. 777). It is obvious that the matter in issue in a subsequent proceeding is not the same as in the previous proceeding, because the law interpreted is different. 8. In a case relating to levy of tax a decision valuing property or determining liability to tax in a different taxable period or event is binding only in that period or event, and is not binding in the subsequent years, And therefore the rule of res judicata has no application; see Broken Hill Proprietary Co, Ltd. v. Municipal Council of Broken Hill, 1926 AC 94. 9. A question of jurisdiction of the Court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. Rankin C.J., observed in Tarini Charon Bhattacharjee’s case, ILR 53 Cal. 723 = (AIR 1928 Cal. 777). “The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recontesting that which has been finally decided. “ A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erronous interpretation, of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment operate as res judicata. “ A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erronous interpretation, of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment operate as res judicata. Similary by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise. 10. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier, proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression “the matter in issue” in S. 11, Code of Civil Procedure, means the right litigated between the parties, i. e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of the order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land. 11. In the present case the decision of the Civil Judge, Junior Division, Borilvli that he had no jurisdiction to entertain the application for determination of standard rent, is, in view of the judgment of this Court, plainly erroneous, see (1962) 3 SCR 928 = ( AIR 1966 SC 1939 ). 11. In the present case the decision of the Civil Judge, Junior Division, Borilvli that he had no jurisdiction to entertain the application for determination of standard rent, is, in view of the judgment of this Court, plainly erroneous, see (1962) 3 SCR 928 = ( AIR 1966 SC 1939 ). If the decision in the previous proceeding be regarded as conclusive it will assume the status of a special rule of law applicable to the parties relating^ to the jurisdiction of the Court in derogation of the rule declared by the Legislature.’ 27. A Division Bench of this Court in Swami Premananda Bharathi v. Swami Yogananda Bharathi, reported in ( 1985 KLT 144 ), has held in para 9 thereof that it is settled law that the decision of the court on a question of jurisdiction cannot be deemed to have been finally determined by erroneous decision of the court and such decision cannot operate as res judicata in subsequent proceedings, etc. 28. It has also been held by this Court in Anandan v. Railway Claims Tribunal, reported in ( 1997 (2) KLT 1 ), that where the Tribunal concerned dismisses the application on the ground of lack of jurisdiction prior to the insertion of the Amendment Act, then the subsequent application after amendment is maintainable. It has been held in para 4 of the decision in Anandan’s case supra, as follows: ‘4. According to the petitioners, Tribunal was not justified in dismissing the application for condonation of delay and consequently the original application on the ground of res judicata. It is their case that earlier application was dismissed by the Tribunal on the ground of lack of jurisdiction and not on merits. I am of the view that the counsel for the petitioners is correct in his contention that since the earlier application was dismissed for want of jurisdiction, there is no question of application of principle of res judicata. Only if a decision is taken on the basis of merits of the case, then the question of application of principle of res judicata arises. It is the contention of counsel for the petitioners since the Act was amended, question as to whether petitioners are entitled to get compensation for the loss of life of their son, on the basis of definition of ‘untoward incident? in S.123(c) of the Act, should have been considered by the Tribunal. It is the contention of counsel for the petitioners since the Act was amended, question as to whether petitioners are entitled to get compensation for the loss of life of their son, on the basis of definition of ‘untoward incident? in S.123(c) of the Act, should have been considered by the Tribunal. Therefore, the question to be considered is as to whether the Tribunal is legally justified in not entertaining the application in the nature of Ext. P2, and consequently the original application. I am of the view that the rejection of the petitioners’ application earlier by Ext.P1 order is of no consequence in considering the petitioners’ application for condonation of delay, as well as the original application preferred by them. It is pertinent to note that Ext.P1 order was passed by the Tribunal, holding that the application is itself not maintainable since the Tribunal lacked jurisdiction. In other words, the said order was passed on the basis of law then in force. Therefore, it cannot be contended that the principle of res judicata applies, when the petitioners have approached the Tribunal on the basis of the Amending Act, which confers jurisdiction on the Tribunals to decide the question as to whether petitioner’s son died on the basis of ‘untoward incident’. I have already held the Tribunal dismissed the application because of lack of jurisdiction and not on merits. Earlier application was filed under S.124 of the Railways Act. I have already held the Tribunal dismissed the application because of lack of jurisdiction and not on merits. Earlier application was filed under S.124 of the Railways Act. Petitioners have filed the present application claiming compensation under S.124-A of the Railways Act, which is extracted below: “124- A. Compensation on account of untoward incidents - When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who was killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident, Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to - (a) suicide or attempted suicide by him; (b) self-inflicted injury; (c) his own criminal act; (d) any act committed by him in a state of intoxication or insanity: (e) any natural course or disease or medical or survival treatment unless such treatment becomes necessary due to injury caused by the said untoward incident. Explanation- For the purpose of this section ‘passenger’ includes (i) a railway servant on duty; and (ii) a person who has purchased a valid ticket for travelling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.” By virtue of the above mentioned provision, the jurisdiction of the civil court has been taken away and the said jurisdiction has been vested in the Railways Claims Tribunal, as amended by Ss.13 & 15 of the Railways Claims Tribunal Act. ‘Untoward incident’ is defined in S.123(c) of the Act, as amended in 1994. As per S.17 of the Railways Claims Tribunals Act, the Tribunal can entertain an application under S.124-A of the Railways Act within one year of occurrence of the untoward incident. ‘Untoward incident’ is defined in S.123(c) of the Act, as amended in 1994. As per S.17 of the Railways Claims Tribunals Act, the Tribunal can entertain an application under S.124-A of the Railways Act within one year of occurrence of the untoward incident. Tribunal can also entertain the application under S.124-A beyond the said period, if it satisfies that applicant had sufficient case for not making the application within such period.’ 29. It has been held by a learned Single Judge of this Court in the case K. Karunakaran v. State of Kerala, reported in ( 1997 (2) KLT 1 28) that the freedom of Police investigating agencies to investigate into criminal offences and to proceed on fresh materials which are subject to S.300 of the Cr.P.C. should not be whittled down by the application of res judicata. It has been held therein, more particularly, paras 37, 39 and 43 thereof, that the principle of res judicata as indicated in S.11 of the C.P.C. is a technical rule available to civil litigation and that the said rule is founded on the public policy. That, however, as the said rule is founded on public policy, cannot be treated as inadmissible in dealing with criminal cases. That therefore while applying this rule, the courts should see whether test of technical rule should be satisfied strictly. Secondly, the provisions of the Cr.P.C. which give freedom to the investigating agencies to proceed on fresh materials, subject to S.300 of the Cr.P.C. should not be whittled down by such application. A perusal of the said judgment of this Court in K.Karunakaran’s case supra would make it clear that the facts of this ease dealt with the freedom and power of the Police investigating agencies investigating into cognizable criminal offences, so as to proceed on fresh materials, etc. A perusal of the said judgment of this Court in K.Karunakaran’s case supra would make it clear that the facts of this ease dealt with the freedom and power of the Police investigating agencies investigating into cognizable criminal offences, so as to proceed on fresh materials, etc. The contention raised therein by the accused, as can be seen from the reading of para 4 thereof, was that FI statement filed by the informant/de facto complainant concerned, was earlier found by a Division Bench of this Court as not to make out prima facie case of commission of any cognizance offence, which requires investigation and it was argued that the said finding of the Division Bench has concluded the issue and are no longer res integra for the Police authorities to commence the investigation and that S.L.P. filed against the Division Bench judgment was also dismissed by the Apex Court and therefore it was argued that the Division Bench of this Court has either rightly or wrongly decided the sustainability on the issue and that there is a bar in proceeding afresh in the FIR and the investigation pursuant to the alleged additional materials, etc. It is this argument that was repelled by this Court. It is also relevant to note that the entire issue projected by the accused therein was in respect of the freedom of the Police investigating authorities concerned so as to proceed on additional materials and it is to be noted that technical rules like issue of estoppel of res judicata, cannot be imported to the pre-trial stage like investigation. Para.37 thereof reads as follows: “37. The principle of res judicata as indicated in S.11 of the CPC 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 S.300 of the Crl.P.C. should not be whittled down by such application.” 30. 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 S.300 of the Crl.P.C. should not be whittled down by such application.” 30. In the instant case, if the aforementioned Crl.L.P.Nos.685/2013 and 635/2013 involved in these cases had been dismissed on merits, then certainly there would have been legal bar in instituting fresh criminal leave petitions by those petitioners on the very same subject matter and for challenging the very same impugned judgment, as principles enunciated in the doctrine of concept of res judicata could be importable in such situations. But in the cases on hand, the criminal leave petitions have been dismissed not on merits, but only on the ground of lack of jurisdiction. The said legal position has now undergone change by the pronouncement of authoritative Division Bench judgment in Omana Jose’s case supra reported in ( 2014 (2) KLT 504 ). As noted herein above, the principles of res judicata will not be applicable where the case decided purely on a question of jurisdiction. So the uphot of the above discussion is that there cannot be any legal bar for the petitioners in instituting fresh criminal leave petitions under S.378(4) of the Cr.P.C. before this Court, in spite of the earlier dismissal of their aforesaid criminal leave petitions in respect of the very same cause of action on the ground that this Court lacks jurisdiction in that regard. This is because as of now, the Division Bench of this Court has overruled the said view of the learned Single Judge and it has been categorically held by the Division Bench of this Court in Omana Jose’s case supra that the proper and right remedy of the aggrieved complainants like the present petitioners is to file an application to seek leave under S.378(4) of the Cr.P.C. so as to institute criminal appeal to impugn the judgment of acquittal, etc. In that view of the matter, there is no necessity or relevance for considering the plea of the petitioners for recalling the earlier order of this Court, whereby the criminal leave petitions on the very subject matter have been dismissed as not maintainable. 31. In that view of the matter, there is no necessity or relevance for considering the plea of the petitioners for recalling the earlier order of this Court, whereby the criminal leave petitions on the very subject matter have been dismissed as not maintainable. 31. Sri.B.Pramod and Sri.V.N.Ramesan Nambisan, learned Advocates appearing for the respective applicants would urge that their leave petitions were filed as early as in the year 2013 and that this Court may clarify that after the dismissal of their leave petitions on 4.11.2013 and 30.10.2013 respectively, they have filed the present criminal miscellaneous applications to recall those impugned orders, and those criminal miscellaneous applications have been filed on 18.11.2016 and 13.12.1016 respectively and that this Court may order that the period spent for the prosecution of their earlier leave petitions and the consequent criminal miscellaneous applications may be excluded by virtue of the enabling provisions contained in S.470 of the Cr.P.C, for the purpose of computing the period of limitation in filing the Criminal Leave Petitions. 32. From a perusal of the records it is seen that Crl.L.P.No. 683/2013 was filed on 30.10.2013 and Crl.L.P.No.635/2013 has been filed on 27.5.2013. Both the Criminal Leave Petitions have been dismissed as not maintainable as per the orders dated 4.11.2013 and 30.10.2013 respectively rendered by this Court. Later, the present applications Crl.M.A.No.7215/2016 in Crl.L.P.No.683/2013 has been filed on 19.11.2016 and Crl.M.A.No.7738/2016 in Crl.L.P.No.635/2013 has been filed on 13.12.2016. The judgment of the Division Bench in Omana Jose’s case supra was rendered on 11.4.2014. Therefore, evidently, there appears to be delay on the part of the petitioners in filing the present applications and it is not as if the proceedings have been pending before this Court right from the institution of the main criminal leave petitions, which have been filed in the year 2013. This Court need not go into any farther details of the matter, as it is for the petitioners to urge all such grounds for condonation of delay and for exclusion of time as envisaged in S.470 of the Cr.P.C. or by importing legal principles discernible from S.14 of the Limitation Act, at the time when they file their fresh criminal leave petitions and to satisfy this Court about those aspects. 33. 33. Accordingly, it is ordered that the present applications filed under S.482 of the Cr.P.C. seeking to recall the orders dismissing the leave petitions need not be entertained. However, it is made clear that the petitioners will be at liberty to file fresh leave petitions before this Court under S.378 of the Cr.P.C. as aforestated and it will also open to them to take up all the pleas including the one based on time exclusion at the time of consideration of the delay condonation application in filing the leave petitions. 34. The learned Advocates appearing for the petitioners would submit that this Court may direct the Registry to return back the certified copies of the impugned orders produced in the leave petitions. Accordingly, it is ordered that the certified copies of the impugned orders as attached to the present case papers may be returned to the respective Advocates of the respective petitioners concerned, by the Registry, if a request in that regard is made by them. However, the Registry will ensure that a photocopies of such impugned orders are kept in the case files. 35. Before parting with this case, this Court would place on record its sincere appreciation for the excellent assistance rendered to this Court in resolving this issue by Sri.Tom Jose Padinjarekara, learned Amicus Curiae, Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the State and also the respective learned Advocates appearing for the applicants/petitioners. With these observations and directions, the above Criminal Miscellaneous Applications stand disposed of.