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Jeevan antulay (Student) 19 October 2024

Related to res sub judice

Can i file an application under section 10 invoking dictrine of res sub judice against the 2 complaints filed under section 138 Negotiable instruments act in 2 different courts??

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7 Replies

T. Kalaiselvan, Advocate (Advocate) 19 October 2024

The doctrine of res judicata applies to criminal complaints. The doctrine of res judicata is a legal principle that prevents a person from being tried twice for the same reason. It applies to both civil and criminal cases.

In simpler words, the thing has been judged by the court, the issue before a court has already been decided by another court and between the same parties. Hence, the court will dismiss the case as it has been decided by another court. Res judicata applies to both civil and criminal legal systems

Subject to;

The parties and cause of action or indictment are the same
The matter is directly and substantially in issue in the previous suit
The court's decision was given on the merits of the case.

Jeevan antulay (Student) 19 October 2024

Then res subjudice won't apply to criminal cases ????

T. Kalaiselvan, Advocate (Advocate) 19 October 2024

You can interpret the explanation given here as per your understanding.

Henceforth when you post some questions, better give proper details so that we can help you understand the law properly

Jeevan antulay (Student) 19 October 2024

Res judicata says that the instiution of suit which has already been decided is barred . If it can be applied to civil and criminal cases. As per your opinion sir...

My question is Res subjudice can it be applied to both civil and criminal case such as cheque bounce??

Dr. J C Vashista (Advocate ) 20 October 2024

Section 10 of the Code of Civil Procedure, 1908 provides:


Section 10. Stay of suit No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India have jurisdiction to grant the relief claimed, or in any Court beyond the limits of ¹[India] established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. Explanation.--The pendency of a suit in a foreign Court does not preclude the Courts in ¹[India] from trying a suit founded on the same cause of action.

Section 10. Stay of suit

No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India have jurisdiction to grant the relief claimed, or in any Court beyond the limits of ¹[India] established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

Explanation.--The pendency of a suit in a foreign Court does not preclude the Courts in ¹[India] from trying a suit founded on the same cause of action.

Article 20 (2) of the Constitution of India provides protection against double jeopardy for being prosecuted and punishment for same offence, which explains:

Article 20(2) prohibits a person from being prosecuted and punished for the same offense more than once. This principle of double jeopardy prevents individuals from being subjected to multiple trials or punishments for the same offense. Once a person has been acquitted or convicted and punished for a particular offense, they cannot be tried or punished again for the same offense.

In the case of Venkataraman v. Union of India, the Supreme Court of India established that this provision deals exclusively with Judicial punishments and provides that no person is prosecuted twice by the judicial authorities. The most crucial landmark judgement came in the case of Maqbool Hussain v. State of Bombay, where the person accused was possessing some amount of gold, which was against lex loci at the time and gold was confiscated by the customs authority. And, later when the person was prosecuted before a criminal court, the court was confronted with the question whether this amounts to Double Jeopardy.

But, the Supreme Court observed that departmental proceedings, i.e. by Customs Authority, in this case, doesn’t amount to trial by a judicial tribunal, thus the proceedings before the criminal court is not barred in this case and the proceedings can go on. In a nutshell Departmental Proceedings are independent of trial by a judicial court or tribunal.

However, the prosecution may happen if the facts are distinct in subsequent proceedings. Same was established by the Supreme Court of India in case of A.A. Mulla v. State of Maharashtra and was observed that; Article 20 (2) would not be attracted in those cases where the facts are distinct in subsequent offence or punishment.

These safeguards provided under Article 20 are essential components of a fair and just legal system. They uphold the principles of fairness, protection against self-incrimination, and the prevention of arbitrary or excessive punishment. It's important to note that these protections are applicable in criminal proceedings and serve as a shield against certain violations of individual rights. However, reasonable restrictions and limitations can be imposed in the interests of public order, security of the State, or the proper administration of justice.

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Did you put the questions to your professor / coach / tutor ? If so, what is his / her advise ?

T. Kalaiselvan, Advocate (Advocate) 20 October 2024

Res sub judice is a legal principle that prevents the same subject matter from being tried in multiple courts at the same time.

In criminal cases the doctrine of 'double jeopardy' can be adopted by the accused for relief or defence

In jurisprudence, double jeopardy is a procedural defence (primarily in common law jurisdictions) that prevents an accused person from being tried again on the same (or similar) charges following an acquittal or conviction and in rare cases prosecutorial and/or judge misconduct in the same jurisdiction.

Before that, please note that the company cannot file two cases in two different courts for a single instrument under the NI act, there has to be an instrument to file the case agaqisnt the accused in each case, hence the doctrine of double jeopardy or the doctrine of res subjudice or even res judicata will not apply to this situation because they are two differnt cases with two different cause of actions.

Sankalp Tiwari 22 October 2024

The doctrine of res sub judice under Section 10 of the CPC is intended for avoiding the identical issue being tried by two courts. However, it is applicable only in regard to civil suits and not necessarily in regard to criminal complaints filed under Section 138 of the NI Act.

In cases of two different complaints under Section 138 NI Act in two different courts, res sub judice cannot generally be invoked because Section 138 cases are criminal in nature and often deal with different transactions (cheques), even if filed by the same party. However, if both complaints are based on the same cheque or transaction, then you might raise an argument that two separate proceedings can result in conflicting judgments, but this is at the discretion of the courts.

You can only then proceed when you can sift through all the details given in complaints. You have to ensure these are distinct and refer to different cheques or events. Otherwise, consolidation of cases would be more apt, not res sub judice.