Our Indian Criminal Justice system works on the principle of ‘Fiat Justitia Ruat Caelum‘ which means `Let the Justice be done though the heavens fall’. Despite this Principle, the Wrongful/malicious Prosecution of innocent accused is a common practice in our democratic country. Beside, living in a harsh social stigma and absence of any statutory provision of compensation and rehabilitative measures, the innocent accused languish in jail for the years and later acquitted on one fine day for the offence which they haven’t committed. The term Wrongful Prosecution was defined in case of West Bengal State Electricity Board v. Dilip Kumar Ray, in the present case, court held that when a judicial proceeding is instituted in the court of law without any probable cause and with improper motive then that proceeding may termed as Wrongful/malicious Prosecution. In other words, wrongful prosecution means when one person knowingly files a false, baseless criminal case against the other person in order to victimize the accused person.

The term Wrongful/malicious Prosecution has been evolved during 18th century in England which says that when the person mis-use the due procedure of law. Later this term spread to different countries of the world including India. This term is most witnessed in the common law countries which have the influence of English laws. The elements of Wrongful Prosecution are the 1. Absence of any concrete base to held the accused person, 2. The Defendant acts in wrongful manner, 3. The accused person suffers damage due to which he languish in imprison for the years.

Infringement of Fundamental Human Rights of Innocent Accused Persons

An innocent individual sentenced and languished in imprisonment for the offence which he/she has never committed lead to the infringement of fundamental Human rights provided by the Indian Constitution and International Covenant of Civil and Political Rights. Article 21 of the Indian Constitution says that the individual should lead his/her life with dignity and also includes Right to shelter, proper clothing, basic necessities with minimum human self but the practice of Wrongful Prosecution takes away his right which is the most important fundamental human right. Article 19 of the Indian Constitution States the Freedom of Speech and Expression but this right is also curtailed due to Wrongful Prosecution. Apart from this, Article-14(6) of the International Covenant on Civil and Political Rights, 1966 confers an obligation on states to minimize the problems of miscarriage of justice arsing with the wrongful prosecution, at the same time the state should compensate the innocent accused person in the view of Article 9(5) of International Covenant on Civil and Political Rights. As per the 277 report of the law commission of India 168 states including India have ratified the ICCPR but not adopted in its Criminal Procedure Code. In the case of Hussainara Khatoon v. Home Secretary of Bihar, in the present case, Supreme Court of India held that under Article 21 of the Indian Constitution right to speedy trial also prevails and if no procedure provides this remedy then Article 21 the most important fundamental Human Right is foul. In Rudul Sah v. State of Bihar, which is also considered as landmark compensatory judgement in terms of wrongful/malicious prosecution. In this case for the first time Supreme Court of India provided the compensation of tune Rs 30,000 in 1980’s to accused innocent who was imprisoned for 14 years. For the first time in the Indian History, Delhi High Court in 2018 in the case of Babloo Chauhan v. State of NCT Delhi, held that there is inadequacy in the present legislative framework to provide the relief to the innocent accused persons in terms of Wrongful/malicious prosecution and High Court recommended the Law Commission of India the comprehensive examination of the above issue. Orrisa High Court in Nityananda Behera v. State of Orissa, 2020, set aside the judgement of sessions court pronounced in 1987, convicting the accused under section-302 of IPC. High Court in 2020 held that accused was wrongfully prosecuted and acquitted him from the charges. High Court also held that “we need reforms in the Prosecution system in India as Justice Delayed is Justice Denied. Right to Speedy trial enshrined under Article 21 of Indian Constitution should be upheld.”

Law Commission of India’s 277 report `Wrongful Prosecution (Miscarriage of Justice)-Legal Remedy

Justice B.S. Chauhan (Retd.) then Chairman of Law Commission of India opined that Article-14(6) of ICCPR is insufficient to overcome the practice of Wrongful prosecution in our Indian Criminal Justice System as it contains the limited definition of Wrongful prosecution. Law Commission proposed the recommendation to insert the new chapter in Indian Criminal Procedure Code to adjudicate the claims arising out of Wrongful prosecution in India and the compensation to be given by the state under new sections like 365A, 365C, 365D, 365E, 365F and 365H. These sections provide for the setting up of special courts at the district level to hear the matters of Wrongful prosecution and determining the compensation, who may file for the relief under the above sections, the procedure of appeal to High Court from the order of compensation by Special Court of Law etc.

The above are only the recommendations and till now it has not evolved out as a statute. Recently in Supreme Court of India, Public Interest Litigation has been filed titled as Ashwani Kumar Upadhyaya v. Union of India and ors, in which petitioner urged for issuing of guidelines to central and state governments for the mechanism of compensation in wrongful prosecution of innocent accused and urging for implementation of 277 Report of Law Commission of India. Petitioner further stated that till now central government has not taken any step towards the Law Commission of India’s report. The matters of Wrongful prosecution have been increasing day by day but central government failed to implement the recommendations to overcome the problem.

The Supreme Court of India as a Protector of Fundamental Human Rights should issue the guidelines to the Central Government for implementation of 277 Report of Law Commission of India.

India as a long-standing democratic country in the world which sets an example to the world, provides for certain rights enshrined by the Constitution of India. But the custodial violence a longstanding phenomenon has become a barrier and a limitation to the fundamental rights provided by the Constitution of India. Custodial violence is the worst of the civil society as well as for democratic country. The Custodial violence is the major obstacle of human rights violation. The practice of custodial violence is present not only in India but in other countries of the world. The custodial violence has become an issue of an hour. The treatment of accused in the police custody, the psychological and physical violence by police has led to violation of the rights of accused. The torture means the ill-treatment, physically beating to the accused unnecessarily without any cause.^[1*] It has been estimated that during 1995 at least 100 people died due to custodial torture in the police custody due to lack of medical care given to the accused. Whereas in 2019, 1731 people died in Police and Judicial Custody due to custodial torture by the police officers. Many of the above people are from the vulnerable sections of society. In the same year, one under trial prisoner in Tihar jail complaint that police personnel burn the symbol “OM” on his back which led him severe pain and no medical aid was given to him for 2 days.

[1* Roy Sudipto, Brutality in Police Custody in India, available at-www.heinonline.org, https://home.heinonline.org/, last assessed-12/1/2021.]

Moreover, a pregnant woman complaint of miscarriage by police personnel when she accused of kidnapping and taken to police custody, there policeman kicked in her belly. It has also been estimated that some of the deaths due to custodial torture by police are unreported and if reported they are wrongly said in report that accused die due to other reason than custodial torture. Custodial deaths of accused in the custody of police cannot be viewed in the isolation. When the law enforcement agencies like police officers became the culprits of violence and causes death of accused persons, leads to the abuse of their authority and they are backed by the silent state.

The word torture was first defined in the year 1884 which means torture or third degree by the way of physical beating, harassment, cruelty by the police officers in the custody. The human rights commission explained the torture in police custody is tying of accused with rope his hands and legs to suspend the circulation of his body and then beating with hot iron rod. Sometimes the police officers put red chilly powder in the eyes of accused or under trail and making him to feel suffocation etc. Some of the accused did not bear this type of third-degree torture, hence they die in the police custody.

In State of Uttar Pradesh v. Ram Sagar Yadav, AIR 1985 Page 374, in this case Supreme Court of India for first time recognised and amended section-302 of the Indian Penal Code, and include that under this section the custodial torture and violence should be included when the accused dies of torture by police in custody. The Hon’ble Bench of Supreme Court also said that if the court will not came to rescue the accused from custodial torture inflicted by police then people will start losing their faith in the law enforcement agencies as well as the Judiciary.

India Still Drafting an Act to Control Custodial Violence.

The International Conventions of United Nations are also against the Custodial Torture as the Custodial Torture is not only confined or performed in the India but also occurred in different countries of the world. On this International Convention on Torture was passed by the United Nations at the world level to resolve the issue of torture in the custody at the International level. They also recommended the signatories of the Untied Nations as well as the signatories of the International Convention against torture to make the new laws at the domestic level against the custodial torture in the police custody and to punish the police officers who inflicts the torture on the accused persons. India is also the signatory of the International Convention against torture. On the lines of International Convention against Torture, India also came up with a Bill i.e. Anti-Torture Bill, 2010, put before the Lok Sabha on April 26,2010 and passed by the Lok Sabha. When this bill is presented before Rajya Sabha, it was forwarded to the select committee for reforms in bill. Actually speaking, this bill was never passed in Rajya Sabha and this bill was lapsed in 2014 with the dissolution of Lok Sabha and Change of Government from U.P.A to N.D.A. In 2016, the Home Ministry in Parliament said that they are working on this bill to come up as an act and referred same to the Law Ministry to prepare the draft bill again.^[2*]

[2* Bhavni Sahai, Custodial Violence is the Barrier to Democratic System, available at-www.intolegalworld.com, https://www.intolegalworld.com/, last assessed-13/1/2021.]

In November 2017, the Law Commission of India recommended for preparing of New Draft bill of Protection of Accused from Torture and they also recommended certain amendments in the Anti-Torture Bill, 2010 and change of certain definitions and enhancing more and more punishments for torture by police personnel in the custody. But this draft is still on the papers and have not evolved out as an act. Apart from the law of Anti-Torture or Protection of Accused from Torture, 2017 bill, the Judiciary comes to provide the relief to the accused persons who faced torture in the police custody and punishing the police personnel involved in the torture.

Judiciary came to Rescue Accused Persons who faced Custodial Torture

Till the Parliament of India drafts an act on ending Custodial Violence, The Supreme Court in its landmark judgements gave detail guidelines to control the custodial violence. Some of the Important Judgements are,

In DK Basu v. State of West Bengal, AIR 1997 SC 610, this judgement is one of the landmark judgements which provides the Supreme Court of India to deal with the custodial violence. In this landmark judgement Supreme Court of India also started Public Interest Litigation for first time. Justice DK Basu, then Chairman of West Bengal Legal Services Authority and also a senior advocate addressed a letter to then Chief Justice of India P.N. Bhagwati calling upon the news published in the newspaper on custodial deaths and violence in police custody, this letter was later treated as a writ petition by CJI P.N. Bhagwati. In this case for first time in the history the concept of Public Interest Litigation came into being. The main issues involved in this case was rising of custodial deaths and torture in the police custody, arbitrary arrest by police, need of guidelines to come up for ending custodial violence in the country.

Supreme Court of India in 1996 decided this landmark case and issued 11 guidelines which are to be followed in all cases of arrest and detention of accused and these are:

1. The details of police personnel who performs interrogation of accused should be recorded in register.

2. The police officer while making arrest of accused should record time of arrest of accused and the said is to be signed by one family member of accused.

3. The police should inform the family member or nearest friend regarding the arrest of accused.

4. The arrested person should be aware of his rights.

5. The entry must be made in the case diary of police station regarding the arrest of accused.

6. The medical examination of arrested person should be made at the time of arrest.

7. The arrested person must go for medical examination for every 48 hours.

8. The copies of documents like arrest, memo etc are to be sent to the nearest Magistrate.

9. The arrested person must be allowed to meet his lawyer in the custody.

10. The arresting officer must communicate the arrest of accused person to a police control room of state and district with 12 hours of his arrest.

11. The police must notify the arrested person the place, date, time of arrest of accused to his family members or his nearest friend.

After the landmark judgement of this case many new cases filed in the Hon’ble High Courts and Supreme Court of India where the decision of D.K. Basu has been cited in every above case in High Courts and Supreme Court of India.

In Parkash Singh v. Union of India, AIR 1996 SC 310, this is also a landmark judgement of Supreme Court in which petitioner states that the police officers perform their duty in political manner and perform very rude attitude in the police custody where accused persons are lodged. Supreme Court of India in this case laid down that there is need of police reforms to control the rude attitude of police and there should be setting up of Police Complaints Authority in every state of India, which will take into consideration of police complaints of misconduct.

In D.r Uprendra Baxi v. State of Uttar Pradesh, AIR 1987 SC 191, in this case Supreme Court of India said that a serious attention is needed to end the custodial violence meted with accused girls and women in the police custody. The court further held that the way the girls and women are treated in very autocratic and brute manner in police custody calls for no mercy on the police personnel who performs this kind of custodial torture on them.

In Rudal Shah v. State of Bihar, AIR 983 SC 1086, the Supreme Court of India in this case granted monetary compensation to accused (petitioner) who was in jail for 14 years without any charge and he experienced custodial violence at that time when he was in jail during that period of time.

In 2015 Supreme Court in DK Basu v. State of West Bengal, (2015) 8 SCC 744 case, Supreme Court of India gave its revised guidelines on the basis of its landmark judgement of 1996 and held for setting up of State Human Rights Commission and filling up of vacancies in them. It also held that setting up of CCTVs cameras in all prisons within 1year, non-official visitors, the Judicial Magistrates should do surprise checks in prisons and Police stations.

Recently, Bombay High Court in 2020 in Ashok Kondaji Rokade v. State of Maharashtra, Criminal Writ Petition No.1548 of 2016, awarded Rs. 5 lakh compensation to the family of an allegedly juvenile victim of custodial death who was arrested on suspicion of pickpocketing at Shirdi temple. The two-judge bench of Justices TV Nalawade and Shrikant D. Kulkarni, while leaving the criminal trial to the trial court, concluded that the factual scenario determined that it was a case of custodial death and hence compensation was justified. The court also called out the erring police officials for not following the law and the guidelines laid down in the DK Basu v. State of West Bengal case during or at the time of arrest.

In June, 2020 Madras High Court took Sou-Motto cognizance in Registrar Judicial v. State of Tamil Nadu, 2020 SCC Online Mad 1249, in this case police took Jayaraj and his son Bennix into custody on June 19 for interrogation, as they had kept their mobile accessories shop open during the coronavirus-induced lockdown. A case was filed against them for not following the curfew under lockdown, and they were sent to custody. On June 22, Bennix complained of breathing problems and was admitted to a local government-run hospital. He died around 9 pm. Jayaraj, who was also hospitalised due to an illness, died the next day. Their family accused the police of assaulting them in custody. On June, 24th 2020, Madras High Court took sou-motto cognizance and permitted state government to conduct CBI Investigation of above alleged case of custodial death.

In 2020 Supreme Court of India gave directions to control custodial violence in Paramvir Singh Saini v. Baljit Singh and Ors., SLP Criminal No.3543 of 2020, the 3-Judge Bench, directed the Government to install CCTV cameras and recording equipment to Control Custodial Violence in the offices of Central Bureau of Investigation (CBI), National Investigating Agency (NIA), Enforcement Directorate (ED), Narcotics Control Bureau (NCB), and in any other agency which carries out interrogation and has power of arrest. The Supreme Court also held for the constitution of Oversight Committees at the State as well as at District level for ongoing installation and maintenance of CCTVs in Police Stations across all UTs and States while it directed Finance Departments of all UTs and States to allocate fund for it. All the parts of Police Stations should be covered under CCTV facility audio as well as visual taping and Station House Officer should be responsible for working conditions of CCTV cameras.

In order to control Custodial violence on the accused the National Human Rights Commission along with the Police Reforms Commission has set up an agenda point programme to strengthen the faith in people for law enforcement agencies. The commission also recommended the law commission of India for making procedures to held guilty the police personnel involved in custodial torture. The National Human Rights Commission organized many workshops in different states of India where the violation of accused in the police custody is rampant. In the workshops they talked about, humane treatment while treating the accused in the police custody. They also recommended for creating the separate subject on humane treatment of accused in custody which should be implemented when they trained new Police officers on different laws. In the End the most important Suggestion and Recommendation for Controlling the Custodial Deaths and Violence is that there should be proper Implementation of DK Basu v. State of West Bengal, 1996 and 2015 Judgement and its Guidelines.

The answer to the above short query has been given under Section-11 of the Code of Civil Procedure, 1908 which clearly states that once the matter has been finally decided by court of competent jurisdiction on merits, then no party can be allowed to reopen that matter again in subsequent litigation. The bare language of Section-11 states that “No court shall be allowed to try any suit involving of same parties with same question which has been tried by that court or any other court competent to try that suit earlier on merits.”^[1*] This means that the subsequent suits which are being filed in the courts, decided earlier by the court on merits will operates as Res-Judicata. This term itself very clear which means that Res is dispute and Judicata is adjudicated and this term collectively means that the dispute decided or has been adjudicated. This term is also known as Rule of Conclusiveness. This doctrine is based on the belief that in the larger interest of the public that all the matters involving disputes before civil courts and other courts in India may sooner or later may came to the end. This doctrine is also based on Justice, Equity and Good-Conscience which further means that there should not be multiplicity of disputes and the party which has been succeeded successfully may not be harassed by the opposite party by filing same suit of same question again in the court.

[1* https://lawtimesjournal.in/res-judicata-section-11-cpc]

The doctrine of Res-Judicata has long history in the legal systems of different parts of world and in India. This doctrine has the roots in Roman legal system and other ancient legal systems. U.S.A also inserted this doctrine in their seventh amendment. In England this doctrine is present but in a disorganised way but later England evolved this doctrine based on their legal systems. But its roots will be well understood by Hindu lawyer and Mohammedan Jurists. In Hindu Law this doctrine is earlier known as Purva Nyaya which means former judgement. This rule is harshly been used in earlier Hindu Laws and by Muslim Jurists in India. Later modern Indian legal system adopted this doctrine from the common law system of England and scrapped the ancient forms of Res-Judicata which is erroneous. The doctrine of Res-Judicata is being applied in civil suits, arbitration proceeding, taxation matters, industrial adjudications, writ petitions, administrative orders, interim orders, criminal proceedings etc. This doctrine is not exhaustive under Code of Civil Procedure,1908.

The Ingredients of Res-Judicata or the Rule of Conclusiveness are:

a) There must be Same Parties in Subsequent Suits– to prove the rule of Res-Judicata the parties in a subsequent suit must be same or between the same parties under whom they had a claim.

b) The Title of the Suit must be the same– another important ingredient is the title must be same by the contesting parties to prove the rule of Res-Judicata.

c) The Court has decided the matter on merits and should be competent to try that suit– the courts should hear all the parties on merits and should gave its judgement on merits.

d) The Subject-Matter of dispute must be same– the subject matter of dispute must be same in former and subsequent suits in order to attract this section-11, Code of Civil Procedure,1908.

Some Important Provisions of Res-Judicata.

Res-Judicata and Rule of Law– The Principle of Res-Judicata is broader Principle and has the universal application. This point has been proved in landmark Judgement of Supreme Court of India in Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457 in which the Petitioners has filed a writ petition in Allahabad High Court under Article-226 and they were dismissed. Later the Petitioners again file the substantive petitions in the Supreme Court of India under Article-32 of Indian Constitution. The Hon’ble Bench dismissed the petitions of Petitioners as they operate as Res-Judicata.

Res-Judicata and Res-Sub Judice– Res-Judicata under Sec-11 of the Code of Civil Procedure,1908 is bar on the matter and trail which has been already been adjudicated whereas Res-Sub Judice means bar on the fresh matter and trail because the earlier matter on same facts and same parties with same title is pending before the court of law.

Performa Defendant and Representative Suit under Section-11 of C.P.C.– the Defendant against whom no relief is sought but his/her presence is necessary for the complete adjudication of suit is known as Performa Defendant. As no relief is being sought against him, a finding does not operate as Res-Judicata in the subsequent suits. On the other hand, Representative suits are that kind of suits which are filed in the representative capacity as different from personal capacity. In Ahmad Adam Sait v. M.E. Makhri, AIR 1964 SC 107 it was held that where the persons litigate bona-fide for the public right and all litigating in such suits are barred by Res-Judicata in the subsequent suits.

Constructive Res-Judicata– this is also one of the important provisions of section-11 of Code of Civil Procedure, 1908. This provision means that if the party in a suit could have taken the plea against his opponent, at the same time he could not be allowed to take that plea in the subsequent suits with same subject-matter on the grounds that he had not taken that plea in the former suit. The Hon’ble Supreme Court of India has given the landmark judgement in State of Uttar Pradesh v. Nawab Hussian, (1977) 2 SCC 806, a direct question arose before the Hon’ble Supreme Court whereby in this case A Sub-Inspector of Police was dismissed from the service by the DIG (Director General of Police). He challenged the order of his dismissal in High Court in a Writ Petition saying that he was not given reasonable opportunity of being heard by the authorities and later he took the additional grounds that he was appointed by IGP (Inspector General of Police) and he was removed by the DIG (Director General of Police). The latter has no power to dismiss him. The State contended that the additional ground taken by him is Res-Judicata. The State High Court allowed the petition of Sub-Inspector of Police. But State of U.P. has filed a appeal in Supreme Court of India whereby Hon’ble Bench of Court said that suit Sub-Inspector of Police was barred by Constructive Res-Judicata as court said that the plea was within the knowledge of plaintiff and could be taken earlier.

Res-Judicata Between Co-Plaintiffs and Co-Defendants– As there is Res-Judicata between Plaintiffs and Defendant in the same way there is Res-Judicata between Co-Plaintiffs and Co-Defendants on the grounds that: there is a dispute of interest between Co-Plaintiffs or Co-Defendants, it is necessary to decide the conflict in order to give the relief to Plaintiff or Defendant, the question between co-defendants or co-plaintiffs has been decided, the co-defendants are necessary or proper parties in a suit. In the another landmark Judgement of Iftikar Ahmed and Syed Meharban Ali, (1974) 2 SCC 151, the Hon’ble Bench of Supreme Court said that if there is a conflict between plaintiffs and matter is to be decided in order to give relief to Defendant and further the matter is decided then it will operate as Res-Judicata between co-plaintiffs in subsequent suits in future.

Res-Judicata in Writ Petitions-though Res-Judicata does not applied in writ petitions but there is no right ground to prevent the decisions in the matters in writ proceedings under Article-32 or Article-226 of Indian Constitution from operating as Res-Judicata in the subsequent proceedings. In MSM Sharma v. Dr Shree Krishna, AIR 1960 SC 1186, for the first time the Supreme Court of India held that section-11 of Code of Civil Procedure,1908 will be applied to even writ petitions also. Hon’ble Bench held that once the petition filed under Article-32 or Article-226 of the Indian Constitution is dismissed then subsequent petitions will be barred by Res-Judicata. The decision will bind the parties to file the subsequent petitions in the court of law unless the decision is reversed in the appeal.

Doctrine of Res-Judicata in Criminal Proceedings-as stated above this doctrine has the universal application. This rule not only applied to civil, administrative matters etc but also applied to criminal matters also. In Bhagat Ram v. State of Rajasthan, AIR 1972 SC 1502, held that once a person is acquitted or convicted by the competent criminal court of law he cannot once again be tried for same offence as it is barred by the doctrine of Res-Judicata.

Res-Judicata in Interim Orders– the doctrine of Res-Judicata is applied in the different stages of the proceedings in a suit. In Ajay Mohan v. H.N. Rai, AIR 2008 SC 804 held that if there is interim order decided by the court during the pendency of the suit then it will operate as Res-Judicata at all the subsequent suits. For example, orders of maintainability of suits, question regarding jurisdiction of courts etc if decided once by the court then it will not be reopened in same proceedings. The only remedy for the aggrieved party is to file an appeal against the interim order of lower court in the higher court of law.

Types of Courts–

a) Courts of Exclusive Jurisdiction- the courts of exclusive jurisdiction like revenue courts, land acquisition courts, administrative courts etc, any subsequent plea in these courts will operate as Res-Judicata.

b) Courts of Limited Jurisdiction- a decision on issue which is finally decided by the court of limited jurisdiction will also operate as Res-Judicata in the subsequent suit irrespective of the fact that the court of limited jurisdiction is not competent to try that suit. In Nabin Majhi v. Tela Majhi, AIR 1978 Cal 440, Hon’ble Division Bench of Calcutta High Court held that courts of limited jurisdiction are the courts other than ordinary courts like revenue courts, land acquisition courts etc and the decision of that courts will operate as Res-Judicata in the subsequent suits. But a court of limited pecuniary jurisdiction cannot be said to be a court of limited jurisdiction. If the former court is unable to try the suit due to limited pecuniary jurisdiction then the subsequent suits filed will not operate as Res-Judicata. In P.V.N. Devoki Amma v. P.V.N. Kunhi Raman Nair, 1980 AIR (Kerala) 230, Hon’ble Bench Division Bench of Kerala High Court held that decisions rendered even by the civils courts of limited pecuniary jurisdiction operate as Res-Judicata, fact that such court rendering decision is not competent to try subsequent suit is immaterial. Hon’ble Bench also held that court of limited jurisdiction is wide enough to include a court whose jurisdiction is subject to pecuniary limitation. This above Judgement did not go with the view held by Hon’ble Bench of Calcutta High Court in 1978. Later on, Supreme Court of India in 1993, in Sulochana Amma v. Narayanan Nair, 1994 AIR (SC) 152, overruled the Judgement Nabin Majhi v. Tela Maghi (Supra) given by Calcutta High Court held that if this judgement is followed then there will be unending litigation which would lead to conflicting of decisions and also held that High Court of Calcutta took a very narrow view limiting the scope of Explanation VIII to decisions of the courts of special jurisdictions like insolvency, land acquisition, rent controller, land revenue tribunal etc. It also held that the view point given in same proposition by Kerala High Court is broader and stands approved. Hon’ble Bench of Supreme Court also held in this case if the decree passed by the Rent Controller shall operate as Res-Judicata but a decree of the District Civil Judge Junior Division will not operate as Res-Judicata because of limited pecuniary jurisdiction of Civil Judge Junior Division ,though there is same officer who decides the case as Rent Controller and also as a Civil Judge Junior Division.

C) Courts of Concurrent Jurisdiction- if the former suit is decided by the court of concurrent jurisdiction having competence to try the subsequent suits then decision given by it will operate as Res-Judicata in the subsequent suits.

Concluding Remarks

The above stated contentions are those where the rule of Res-Judicata is applied but there are some contentions where this rule is not applied as they are the exceptions to the rule of Res-Judicata or the rule of Conclusiveness and these are the cases in which the decree is obtained by fraud then the provision of sec-11 of Code of Civil Procedure,1908 will not applied, when the previous Special Leave Petition in the Supreme Court of India is dismissed without the speaking order there also sec-11 of Code of Civil Procedure,1908 will not applied, where the party waives off the plea of Res-Judicata or they did not informed the court in the subsequent proceedings that the matter is barred under sec-11 of Code of Civil Procedure,1908 then its provisions will not be applied, where the court which tries the suit is incompetent or having no jurisdiction to try the suit then in subsequent proceedings the matter will not be barred by doctrine of Res-Judicata, when there are change in the circumstances and there is change in law and that changed law created new rights and new facts then subsequent proceedings of suit will not be barred by Res-Judicata Principle. Mere Findings of the Court will not operate as Res-Judicata this view point has been given by Hon’ble Supreme Court of India in Ganga Bai v. Vijay Kumar and others, 1974 AIR (SC) 1126 held that Appeal in High Court will lie only against the decree and order passed by the lower court but not lie on the findings given by the lower court. Also, In Smt. Daropati Devi v. Sohan Lal and another, 1984 (1) RLR 414, in this case it was held that Plea must be taken by Respondents in their written statements that the suit is barred by Res-Judicata. If no Plea is taken by Respondents in written statements of Res-Judicata then there cannot be applicability of Doctrine of Res-Judicata

Lastly, by explaining all the important points above in this article regarding the rule of Conclusiveness or Principle of Res-Judicata, the reader will come to know that Principle of Res-Judicata is the backbone of Code of Civil Procedure,1908 and also this is one of the most important principle in the Code of Civil Procedure, 1908.

Introduction

Coronavirus has created Pandemic like situation in whole of the world. This Pandemic again strike India after 102 years. In 1918, the Spanish Flu strike Europe and other parts of world including India as Pandemic. India was most affected by this disease. This disease broke out mostly in Bombay that’s why in India it is Known as `Bombay Fever’. It took 3 years for India to be in normal situation. Around 13 million people in India lost their lives.

Coronavirus is a clubbed group of viruses that are mainly found in human beings as well as in animals. Coronavirus is also known as Covid-19 because this disease is formed in the year 2019. This disease is that type of disease which may communicable to another person. Medical studies and research have shown that one coronavirus positive person can make positive to more than one hundred persons. The vaccine of this disease is yet to come. This disease came first in China in November 2019 and subsequently transmitted to other countries of Asia as well as the whole world. Today, in every part of world where this disease is transmitted is suffering from huge setback of because of current increasing number of deaths and sufferings among people. Each and every country is forced to lockdown its daily activities because of transmission of this disease from one person to another. The same above sufferings among the people are there in India but in a controlled manner. In India number of positive Covid-19 cases are increasing day by day. The reason behind increasing of Covid-19 patients in India is increasing of daily tests to 1 Lakh approx. From past few days of June, 2020, India has witnessed biggest spike in positive cases to 9,000 approx. in one day with increasing number of deaths due to Coronavirus. At present India has more than 2,20,000 positive cases with more than 1,10,000 active cases and more than 6100 deaths reported in India^[1*]. Central Government of India has launched various measures to control this Epidemic i.e. one of the foremost and effective measure have been launched by our Worthy Government is `Social Distancing’. This measure has been effective as of now and lockdowns in various parts of India to reduce the impact of this deadly disease. India is under complete lockdown from 25th of March,2020 which is Phase-1 till 14th of April,2020. On 15th April, 2020 our Prime Minister Sh. Narendra Modi announced another lockdown of 19 days till 3rd May,2020. Again, on 3rd May,2020, Prime Minister Modi Ji announced lockdown till 17th May ,2020 with some ease in relaxations by diving into different zones. Now recently again lockdown has been extended from 17th April,2020 till 31 May,2020. In Lockdown Phase-4 there shall be complete lockdown from 7pm to 7am every day and from 8am to 6pm there is now ease in restrictions for opening of shops and businesses as per the guidelines of the respective states. On 31st May,2020 Government has the Lockdown has been extended to 30th June,2020 with some more relaxations like opening of Religious Places, Restaurants etc from 8th June,2020. Even in the containment zones essential activities are allowed to operate. Our country is going step by step of easing the restrictions. That’s why in India, Coronavirus is in a controlled manner as comparatively to different countries like USA, UK, Italy, Spain etc have been worst affected in terms of deaths reported due to this Epidemic.

[1* www.covid19india.org.]

Decongestion of Prisons Amid Covid-19

During the Lockdown various debates have become the hot topics of Coronavirus that how the economy will gain the momentum Post-lockdown and the losses incurred by the government and people during the lockdown. One of the foremost questions came to be developed is the working of courts during the Covid-19. As the pendency of the cases is increasing day by day and certain important matters which needs to be listed on urgent basis and required the urgent decision that how will it work if the legal systems of our country will be closed down by making the urgent cases on stand still. Also, the questions on how the Public Interest Litigations which redefines the rights of individuals and curbs the arbitrariness of any action whether done by executive or any other agency would be filed if the courts are closed down. These above topics became the main themes not only in India but in other parts of the country where the lockdown continues due to Covid-19 like situation. In fact, all the answers to these above questions have been given affirmatively by Hon’ble Supreme Court of India on 18th of March 2020 by taking Suo-Motu Petitions In Re: Contagion of Covid-19 Virus in Prisons^[2*] whereby Hon’ble Bench has directed the working of Supreme Court that it will work on only Extreme Urgent Matters as well as will entertain the Public Interest Litigations also Hon’ble Bench of Supreme Court directed its staff and litigants to restrict to coming to court and `Work from Home’ method become suitable to restrict to coming to court. Also, Hon’ble Bench of Supreme Court of India directed all the High Courts of India to direct its staff and litigants to restrict physically coming to the courts and `Work from Home’ method suitable to restrict physically coming to court. It also directed to restrict the taking up of matters involving of Extreme Urgency and the listing of Public Interest Litigation petitions in the High Courts and its Subordinate courts.

[2* Suo-Motu Petition (C) No.1/2020, Supreme Court of India, www.sci.com.]

Again, on 23rd March 2020 Supreme Court of India taken up the Suo-Motu petition Re: Contagion of Covid-19 Virus in Prisons^[3*] whereby it directed the all the High Courts and Subordinate Courts to it to enable the feature of Video Conferencing for hearing the petition of urgency as well as for hearing of Public Interest Litigation petitions. It also directed to reduce the overcrowding of prisons in India by following social distancing scheme as it has been thought that prisons are more prone to Coronavirus due to large number of prisoners lodged in the prisons. Hon’ble Bench of Supreme Court of India made the categories of prisoners to be released from the prison on parole basis during the Covid-19 period. Hon’ble Bench specifies that the prisoner whose sentence is not more than 5 years or 7 years in case of senior citizen and the crimes done by him/her does not fall under NDPS act in large quantity, Rape, POSCO, Acid Attack cases, UAV act cases etc will not be considered for parole for Covid-19 period. Hon’ble Bench of Supreme Court also directed all the High Courts of India to make High-Powered Committee to specify the categories of prisoners to be released on parole during Covid-19 period. Subsequently all the High Courts of India have made High-Powered Committee for the release of categories of prisoners on temporary bail during Covid-19. Each High Court in India is under the discretion given by Hon’ble Supreme Court of India that which category of prisoner is to be released on parole and which are to be left out.

[3* Ibid 2]

Each High Court of State has made its High-Powered Committee on the directions of Hon’ble Supreme Court of India in Re: Contagion of Covid-19 Virus in Prisons^[4*] to determine the release the categories of prisoners to decongest the jails in India. On the directions of High-Powered Committee of each High Court, the Magistrates of each district started making the list of prisoners to be release on temporary bail and jail superintendents started releasing prisoners. On 7th April Hon’ble Bench of Supreme Court of India responding to Public Interest Litigation in Vishvendra Tomar v. Union of India and others^[5*] said that it will not direct the High-Powered Committee of High Courts to consider the release the prisoners accused in special offences like economic offence. But Hon’ble Bench gave the liberty to Petitioner to give representation to Government and High-Powered Committee to release economic offence category prisoners. After the decision of above Public Interest Litigation, High Court of Delhi and its High-Powered Committee gave further relaxation to the categories of prisoners to be released on temporary bail amid Covid-19. Recently High Court of Bombay and its High-Powered Committee decided to release half the population of prisoners on temporary bail during Covid-19. “Apart from this High-Powered Committee of Punjab headed by Hon’ble Mr Justice R.K Jain has decided to extend the temporary bail prisoners to another six-weeks as this pandemic is still going on and it is not safe for the prisoners to return to jail.”^[5*] In May, 2020, Punjab and Haryana High Court increased its number of Hon’ble Benches to hear all kinds of urgent matters on Video Conferencing feature with 2 Division Benches and 11 Single Benches are working on regular days.

[4* Ibid 3.]

[5* Diary No.10829 of 2020,www.sci.com.]

[6* Covid-19: Punjab Extends Parole of Convicts to Decongest Jails, www.timesofindia.com]

Conclusion

In the end I would like to express my view point and suggestion that Hon’ble Supreme Court of India and High-Powered Committees made by the respective state High Courts for temporary release of prisoners amid Covid-19, have taken a great step to decongest the prisons. I would like to give suggestion to jail authorities in India that certain categories of prisoners which could not be released on temporary bail during this pandemic to ensure them a healthy environment in prison so that they can be protected from Covid-19. Apart from this, during the lockdown amid Covid-19 situation, every sector in India like aviation sector, industrial sector or any other sector, suffered from great set- back and most affected by this pandemic are the daily wage workers, as they are not getting work to perform, subsequently they are not being paid. That’s why Government of India has announced a huge package of Rs 20 Lakh Crore to help small industries, needy people etc. Recently Prime Minister Cares Fund has released Rs 3100 crore to help daily wage workers who are going to their home states by special Shramik trains launched by Central Government.

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