Law of Evidence

By Nizam Azeez Sait,

MODULE No. 14

RELEVANCY OF JUDGMENTS

This is the 14th Module of the subject ‘Law of Evidence’, covering Sections 34 to 38 of the Bharatiya Sakshya Adhiniyam (Sections 40 to 44 of the Evidence Act) in chapter II of part II dealing with ‘Relevancy of Facts’ under the sub title “Judgments of Court of Law when Relevant”.

MODULE INDEX

1. Introduction
2. Previous judgments relevant to bar a second suit or trial – Section 34
2.1 Doctrine of Res judicata

2.2. Double Jeopardy – Autre Fois Acquit and Autre Fois Convict

3. Relevancy of certain judgments in probate, etc., jurisdiction – Section 35

3.1. Judgment in rem
3.2. Scope of the Section
3.3. Probate Jurisdiction
3.4. Matrimonial Jurisdiction
3.5. Admiralty Jurisdiction

3.6 Insolvency Jurisdiction

4. Section 36: Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 35 – Judgments Relating to Matters of Public Nature
5. Section 37: Judgments, etc., other than those mentioned in sections 34 to 36, when relevant.

6. Conflict of Views on the Question of Admissibility of Judgments as Assertion of Right under section 11
7. Whether Civil Court Judgment is Binding upon Criminal Court or vice versa – And Criteria for Stay of Simultaneous Proceedings

8. Admissions of the Parties in the Previous Proceeding can be Proved in Subsequent Proceeding

9. Quashing of Criminal Case When Civil Case is Settled – Criteria
10. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved.

10.1. Fraud has to be Pleaded and Proved
10.2. Separate Suit to Set-Aside a Judgment Obtained by Fraud is not Necessary

1.Introduction

Judgment means the final decision made by the court on a material issue before the court. It is the adjudication of the matter in dispute. Sections 34, 35 and 36 of the Bharatiya Sakshya Adhiniyam (Sections 40, 41, and 42 of the Evidence Act) makes certain classes/ categories of judgments relevant. Section 37 of the Bharatiya Sakshya Adhiniyam (Section 43 of the Evidence Act) declares all other judgments irrelevant unless it is relevant under some other provision of the Act.  Section 38 of the Bharatiya Sakshya Adhiniyam (Section 44 of the Evidence Act) provides that fraud or collusion in obtaining the Judgment or jurisdictional incompetency of the court can be proved.

A judgment in one proceeding is relevant in another proceeding only if Sections 34, 35 or 36 of the Bharatiya Sakshya Adhiniyam (Sections 40, 41, or 42 of the Indian Evidence Act) is attracted.

Sections 34 of the Bharatiya Sakshya Adhiniyam (Section 40 of the Evidence Act) provides that the existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognizance of such suit, or to hold such trial. Section 34 of the Bharatiya Sakshya Adhiniyam (S.40 of the Evidence Act), can have application only if the judgment, order or decree prevents any Court under any law from taking cognizance of a suit or holding a trial. Therefore, the judgment, order etc must be one which prevents holding of a trial under Section 337 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (S.300 of Cr.P.C) or under Section 11 of CPC.

A final judgment, order or decree of a competent Court is relevant under Section 35 of the Bharatiya Sakshya Adhiniyam (Section 41 of the Evidence Act) only if it is passed in the exercise of probate, matrimonial admiralty or insolvency jurisdiction.

Section 36 of the Bharatiya Sakshya Adhiniyam (Section 42 Indian Evidence Act), deals with the relevancy of judgments, orders or decree other than those mentioned in Section 35 of the Bharatiya Sakshya Adhiniyam (Section 41 of the Evidence Act), the provision only if the judgment relates to matters of public nature relevant to the enquiry.

Section 37 of the Bharatiya Sakshya Adhiniyam (Section 43 of the Evidence Act) declares that judgments, orders or decrees other than those mentioned in (S.40, S.41 and S.42 of the Evidence Act) are irrelevant unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provisions of the Bharatiya Sakshya Adhiniyam.

Section 38 of the Bharatiya Sakshya Adhiniyam (Section 44 of the Evidence Act) provides that fraud or collusion in obtaining the Judgment or jurisdictional incompetency of the court can be proved.

Now we will deal each of these provisions.

2. Previous judgments relevant to bar a second suit or trial – Section 34

Section 34 of the Bharatiya Sakshya Adhiniyam (Section 40 of the Evidence Act) reads as under:

The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial.

The object of the provision is embodied in the maxim “Interest Republica Ut Sit Fins Litum” meaning, it is in the interest of state that there should be an end to litigation.

Section 34 effectuates the principles of the doctrines of Res judicata and autre fois acquit and autre fois convict.

2.1 Doctrine of Res judicata

Section 11 of the Code of Civil Procedure enunciates the rule of Res judicata.

Section 11 of the CPC reads as under: –

“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

In order to constitute res judicata, the following ingredients are essential;

  • there must be two suits – one former suit and the other subsequent suit;
  • the matter directly and substantially in issue must be the same either actually or constructively in both the suits;
  • the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit;
  • the parties to the suits or the parties under whom they or any of them claim must be the same in both the suits; and
  • the Court which decided the former suit must be competent to try the subsequent suit.
  • Res judicata must be pleaded and proved.
2.2. Double Jeopardy – Autre Fois Acquit and Autre Fois Convict

Art.20 (2) says that no person shall be prosecuted and punished for the same offence more than once. This is called the doctrine of double jeopardy. The objective of the Article is to avoid harassment, which may be caused by successive criminal proceedings, where the person has committed only one crime. There is a law maxim related to this, nemo debet bis vexari. This means that no man shall be put twice in peril for the same offence. There are two aspects of doctrine of jeopardy viz. Autrefois convict and Autrefois acquit. Autrefois convict means that the person has been previously convicted in respect of the same offence. Autrefois acquit means that the person has been acquitted on a same charge on which he is being prosecuted. Constitution bars double punishment for the same offence. The conviction for such offence does not bar for subsequent trial and conviction for another offence and it does not matter even if some ingredients of these two offences are common. Autrefois convict and Autrefois acquit is embodied in Section 337 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Section 300 of the Criminal Procedure Code).

Section reads as under:

Person once convicted or acquitted not to be tried for same offence.– (1) A person who has once been 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 other offence for which a different charge from the one made against him might have been made under sub-section (1) of 244 (S.221 CrPC), or for which he might have been convicted under sub-section (2) thereof.

(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of S 243 (S.220 CrPC).

(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) A person discharged under S 281 (S.258 CrPC) shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first – mentioned Court is subordinate.

(6) Nothing in this Section shall affect the provisions of S.26 of the General Clauses Act, 1897, (10 of 1897) or of S.208 of this Sanhita (S.188 CrPC).”

(See State of Jharkhand through SP, CBI v Lalu Prasad and others AIR 2017 SC 3389)

3. Relevancy of certain judgments in probate, etc., jurisdiction – Section 35

Section 35 (Section 41 of the Evidence Act) reads as:

(1) A final judgment, order or decree of a competent Court or Tribunal, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.

(2) Such judgment, order or decree is conclusive proof that—

  • any legal character, which it confers accrued at the time when such judgment, order or decree came into operation;
  • any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person;
  • any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and
  • anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.
3.1. Judgment in rem

Judgment in rem is an adjudication made upon the status of a person or thing by a competent court and pronounced to the world generally. Such judgments are binding on the whole world and not merely against the parties. It is relevant and admissible whether inter-partes or not. Judgment in rem generally declares status of a person or a thing. Judgments in probate, matrimonial, admiralty and insolvency are judgments in rem.

3.2. Scope of the Section

The first part of the Judgment makes certain judgments relevant. Ie, final judgments in the exercise of probate, matrimonial, admiralty and insolvency jurisdiction which confer upon or take away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely. The judgment, order or decree must be final and not interlocutory. This section applies to foreign judgments also provided the foreign court had jurisdiction. (See R Viswanathan v Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1.)

The second part of the section makes such judgments conclusive evidence in certain specified matters. Conclusiveness attaches to the extent:

(a) that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;

(b)  that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment order or decree declares it to have accrued to that person;

(c) that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and

(d) that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.

3.3. Probate Jurisdiction

As per 2(f) of the Succession Act  “probate” means the copy of a Will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator.

Under the Succession Act District Courts are vested with powers to grant Probates or Letters of Administration. Judgments rendered by a probate court is a Judgment in rem. When a Probate is granted to the Executor it is a declaration to the whole world that he entitled to administer the estate.

A three Judge Bench of the Supreme Court had the occasion to consider the legal effect of a judgment vis a vis S.41 of the Evidence Act (Section 35 of the Bharatiya Sakshya Adhiniyam) in Surinder Kumar and Others v. Gian Chand and Others, AIR 1957 SC 875  Kapur, J. speaking for the Bench, opined:

“The judgment of the Probate Court must be presumed to have been obtained in accordance with the procedure prescribed by law and it is a judgment in rem. The objection that the respondents were not parties to it is thus unsustainable because of the nature of the judgment itself.”

3.4. Matrimonial Jurisdiction

Various laws such as Hindu Marriage Act, Divorce Act, Special Marriages Act, Dissolution of Muslim Marriages Act etc confer matrimonial jurisdiction upon courts.

When a divorce decree is granted by a competent court it takes away the character of husband and wife from the parties. It is a conclusive declaration to the whole world that they cease to stand in the relation of husband and wife. It is a judgment in rem. Section 41 makes such judgment relevant and conclusive.

3.5. Admiralty Jurisdiction

Admiralty jurisdiction is governed in India by The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act 2017. The admiralty jurisdiction is vested in the High Courts and will extend up to territorial waters of their respective jurisdiction.

3.6.  Insolvency Jurisdiction

A judgment by a competent court adjudicating a particular person to be an insolvent or that he is discharged from insolvency, or the annulment of his insolvency is a judgment in rem and conclusive of his such status. Now in India corporate as well as personal insolvency is governed by Insolvency and Bankruptcy Code 2016.

4. Section 36: Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 35 – Judgments Relating to Matters of Public Nature

Section 36 of the Bharatiya Sakshya Adhiniyam (Corresponding to Section 42 of the Evidence Act) reads as under:

Judgments, orders or decrees other than those mentioned in section 35 are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.

Illustration –

A sues B for trespass on his land. B alleges the existence of a public right of way over the land, which A denies.

The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on the same land, in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists.

Judgments, orders or decrees other than those mentioned in Section 35 of the Bharatiya Sakshya Adhiniyam (Section 41) are relevant under this provision ie S 36, if they relate to matters of public nature relevant to the enquiry. There is a rider in the provision which says that such judgments, orders or decrees are not conclusive proof of that which they state.

By Section 36 of the Bharatiya Sakshya Adhiniyam (Section 42 of the Evidence Act), judgments relating to matters of a public nature are declared relevant, whether it be between the same parties or not.

Matters of public nature include matters which effect public at large. For example, right of public way, right of ferry, right to use river bank etc.

5. Section 37: Judgments, etc., other than those mentioned in sections 34 to 36, when relevant.

Section 37 of the Bharatiya Sakshya Adhiniyam (S. 43 of the Evidence Act), along with illustrations reads as:

Judgments or orders or decrees, other than those mentioned in sections 34, 35 and 36, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Adhiniyam.

Illustrations.

(a) A and B separately sue C for a libel which reflects upon each of them. C in each case says that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case, or in neither. A obtains a decree against C for damages on the ground that C failed to make out his justification. The fact is irrelevant as between B and C.

(b) A prosecutes B for stealing a cow from him. B is convicted. A afterwards sues C for the cow, which B had sold to him before his conviction. As between A and C, the judgment against B is irrelevant.

(c) A has obtained a decree for the possession of land against B. C, B’s son, murders A in consequence. The existence of the judgment is relevant, as showing motive for a crime.

(d) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.

(e) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under section 6 as showing the motive for the fact in issue.

Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Act.

Illustrations

 (a) A and B separately sue C for a libel which reflects upon each of them. C in each case says that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case, or in neither.

A obtains a decree against C for damages on the ground that C failed to make out his justification. The fact is irrelevant as between B and C.

(b) A prosecutes B for adultery with C, A’s wife.

B denies that C is A’s wife, but the Court convicts B of adultery.

Afterwards, C is prosecuted for bigamy in marrying B during A’s lifetime. C says that she never was A’s wife. The judgment against B is irrelevant as against C.

(c) A prosecutes B for stealing a cow from him. B is convicted.

A afterwards sues C for the cow, which B had sold to him before his conviction. As between A and C, the judgment against B is irrelevant.

(d) A has obtained a decree for the possession of land against B, C, B’s son, murders A in consequence. The existence of the judgment is relevant, as showing motive for a crime.

(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.

(f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under section 8 as showing the motive for the fact in issue.

This provision makes judgments not covered under Sections 34, 35, and 36  of the Bharatiya Sakshya Adhiniyam (Sections 40, 41, and 42 of the Evidence Act) irrelevant unless it is otherwise relevant under some other provision. Illustrations annexed to the section amply makes the provision clear.

6. Conflict of Views on the Question of Admissibility of Judgments as Assertion of Right under section 11

Now we will examine the conflict of judicial views on the question of admissibility of Judgments as assertion of right under section 11 of the Bharatiya Sakshya Adhiniyam (Section 13 of the Evidence Act).

Sections 34 to 37 of the Bharatiya Sakshya Adhiniyam (Sections 40 to 43of the Evidence Act) deal with the relevancy of judgments.

Section 37 of the Bharatiya Sakshya Adhiniyam (corresponding to Section 43 of the Evidence Act) reads as follows:

Judgments or orders or decrees, other than those mentioned in sections 34, 35 and 36, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Adhiniyam.

In Srinivas Krishna Rao Kango v. Narayan Devji Kango, reported in AIR 1954 SC 379AIR 1954 SC 379, a three judges bench of the Supreme Court held that the judgments are admissible under S. 13 of the Evidence Act (section 11 of the Bharatiya Sakshya Adhiniyam) as assertions and are recognised. It was held that such judgments are admissible as instances in which there was a claim and assertion that certain properties belong to joint family in a subsequent suit for partition for which very same properties are claimed as self – acquired properties.

In Sital Das v. Sant Ram, reported in AIR 1954 SC 606, a 4 judges bench reiterated the above view, in para 20, it is held thus:

“……But the judgment itself, we think, can be received in evidence under S. 13 of the Evidence Act (section 11 of the Bharatiya Sakshya Adhiniyam) as a transaction in which Kishore Das, from whom Ishar Das purports to derive his title, asserted his right as a spiritual collateral of Mangal Das and on that footing got a decree…..”

Both the above decisions were considered and followed in Tirumala Tirupati Devasthanams v. K. M. Krishnaiah reported in AIR 1998 SC 1132 where similar question came up for consideration. The Court held thus:

“In our view, this contention is clearly contrary to the rulings of this Court as well as those of the Privy Council. In Srinivas Krishna Rao Kango v. Narayan Devji Kango, AIR 1954 SC 379, speaking on behalf of a Bench of three learned Judges of this Court, Venkatarama Ayyar, J. held that a judgment not inter parties is admissible in evidence under S. 13 of the Evidence Act (section 11 of the Bharatiya Sakshya Adhiniyam) as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under S.40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected. Again B. K. Mukherjea, J. (as he then was) speaking on behalf of a Bench of four learned Judges in Sital Das v. Sant Ram, AIR 1954 SC 606 held that a previous judgment not inter parties, was admissible in evidence under S. 13 of the Evidence Act as a ‘transaction’ in which a right to property was ‘asserted’ and ‘recognised’. In fact, much earlier, Lord Lindley held in the Privy Council in Dinamoni v. Brajmohini 1902 ILR 29 Cal 190 (198) (PC) that a previous judgment, not inter parties was admissible in evidence under S. 13 to show who the parties were, what the lands in dispute were and who was declared entitled to retain them. The criticism of the judgment in Dinamoni v. Brajmohini and Ram Ranjan Chakerbati v. Ram Narain Singh 1895 ILR 22 Cal 533 (PC) by Sir John Woodroffe in his commentary on the Evidence Act 1931 p. 181) was not accepted by Lord Blanesburgh in Collector of Gorakhpur v. Ramsunder, reported in AIR 1934 PC 157 : 61 IA 286.”

But a contra view was taken by a three judges bench in State of Bihar v. Radha Krishna Singh, reported in AIR 1983 SC p.684. Wherein the court held as under:

 “Some Courts have used S.13 ( corresponding to section 11 of the Bharatiya Sakshya Adhiniyam) to prove the admissibility of a judgment as coming under the provisions of S. 43 (section 37 of the Bharatiya Sakshya Adhiniyam), referred to above. We are, however, of the opinion that where there is a specific provision covering the admissibility of a document, it is not open to the court to call into aid other general provisions in order to make a particular document admissible. In other words if a judgment is not admissible as not falling within the ambit of Ss.40 to 42 (sections 34 to 36 of the Bharatiya Sakshya Adhiniyam), it must fulfil the conditions of S. 43 (section 37 of the Bharatiya Sakshya Adhiniyam) otherwise it cannot be relevant under S. 13 of the Evidence Act (section 11 of the Bharatiya Sakshya Adhiniyam). The words “other provisions of this Act” cannot cover S. 13 (section 11 of the Bharatiya Sakshya Adhiniyam) because this section does not deal with judgments at all.

  It is also well settled that a judgment in rem like judgments, passed in probate, insolvency, matrimonial or guardianship or other similar, proceedings, is admissible in all cases whether such judgments are inter partes or not. In the instant case, however, all the documents consisting of judgments filed are not judgments in rem and therefore, the question of their admissibility on that basis does not arise. As mentioned earlier, the judgments filed as Exhibits in the instant case, are judgments in personam and, therefore, they do not fulfil the conditions mentioned in S. 41 of the Evidence Act (section 35 of the Bharatiya Sakshya Adhiniya)m.”

The above view in “Radha Krishna Singh” appears to be ‘perincurium’ and not a binding precedent as it was rendered without noticing the earlier larger bench decision of 4 judges in Sital Das v. Sant Ram.

But recently, in Parvathamma v V. S Krishnoji Roa and Others AIR 2020 Kar. 55 Karnataka High Court held that:

Reading of the judgments in Mahant Sital Das v. Sant Ram and others, AIR 1954 SC 606 and Shrinivas Krishnarao Kango v. Narayan Devji Kango and others, AIR 1954 SC 379, shows that in those cases though the judgments relied on were not inter – partes they were between the parties through whom the litigating parties claimed. Therefore, they are not applicable. Whereas the three Judges Bench of the Supreme Court in State of Bihar and others v. Sri. Radha Krishna Singh’s case (Air 1983 SC 684) relied upon by the first appellate court had the occasion to consider the mutual effect of S.13 and S.43 of the Act (sections 11 and 37 of the Bharatiya Sakshya Adhiniyam) and the effect of the judgments, which are not inter – partes. Examining all earlier case laws and the provisions of S.13 and S.43 of the Act (sections 11 and 37 of the Bharatiya Sakshya Adhiniyam) in the said case, the Hon’ble Supreme Court held as follows:

‘121. Some Courts have used S.13 (section 11 of the Bharatiya Sakshya Adhiniyam) to prove the admissibility of a judgment as coming under the provisions of S.43, (section 37 of the Bharatiya Sakshya Adhiniyam) referred to above. We are, however, of the opinion that where there is a specific provision covering the admissibility of a document, it is not open to the Court to call into aid other general provisions in order to make a particular document admissible. In other words if a judgment is not admissible as not falling within the ambit of S.40 to 42 (sections 34 to 36 of the Bharatiya Sakshya Adhiniyam), it must fulfil the conditions of S.43(section 37 of the Bharatiya Sakshya Adhiniyam) otherwise it cannot be relevant under S.13 of the Evidence Act (section 11  of the Bharatiya Sakshya Adhiniyam). The words ‘other provisions of this Act’ cannot cover S.13 (section 11 of the Bharatiya Sakshya Adhiniyam) because this section does not deal with judgments at all.’

7. Whether Civil Court Judgment is Binding upon Criminal Court or vice versa – And Criteria for Stay of Simultaneous Proceedings

The same set of facts may have civil as well as criminal consequences and may result in civil and criminal proceedings. The admissibility of a judgment in criminal proceedings vis ‘ vis the civil proceedings and vice versa has been a contentious area of law.

In M.S. Sheriff v. The State of Madras AIR 1954 SC 397: 1954 CriLJ 1019, a constitutional bench (5 judges) of the Supreme Court held that civil court judgment or criminal court judgments do not bind each other, otherwise than as provided. But some other smaller benches have expressed the view that civil court’s judgments are binding on criminal courts, without referring to ‘M.S Sheriff’. In, K.G. Premshanker v. Inspector of Police (2002) 8 SCC 87: AIR 2002 SC 3372, surveyed through various judgments on this point including ‘M.S Sheriff and rightly observed as under:

“….. if the criminal case and civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of S.40 to 43 (sections 34 to 37 of the Bharatiya Sakshya Adhiniyam)are satisfied, but it cannot be said that the same would be conclusive except as provided in S.41. S.41 (sections 35 of the Bharatiya Sakshya Adhiniyam) provides which judgment would be conclusive proof of what is stated therein.”

Now let us see some case law extracts on the point:

The Supreme Court 5 judges bench in M.S. Sheriff v. The State of Madras AIR 1954 SC 397, While allowing stay of simultaneous civil suit observed as follows:

“…….. we can see that the simultaneous prosecution of the present criminal proceedings out of which this appeal arises and the civil suits will embarrass the accused. We have therefore to determine which should be stayed.

 As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decision in the civil and criminal Courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of the Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.

Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interest demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it ….”

In, V.M. Shah v. State of Maharashtra, 1995 (5) SCC 767, a 2 judges bench laid down that the findings of the civil court get precedence over the findings recorded by the criminal court. The Court observed:

“11. As seen that the civil court after full – dressed trial recorded the finding that the appellant had not come into possession through the Company but had independent tenancy rights from the principal landlord and, therefore, the decree for eviction was negatived. Until that finding is duly considered by the appellate court after weighing the evidence afresh and if it so warranted reversed, the findings bind the parties. The findings, recorded by the criminal court, stand superseded by the findings recorded by the civil court. Thereby, the findings of the civil court get precedence over the findings recorded by the trial court, in particular, in summary trial for offences like S.630. The mere pendency of the appeal does not have the effect of suspending the operation of the decree of the trial court and neither the finding of the civil court gets nor the decree becomes inoperative.”

In Shanti Kumar Panda v. Shakuntala Devi, 2004 (1) SCC 438: AIR 2004 SC 115 it was held:

‘A decision by a criminal Court does not bind the civil Court while a decision by the civil Court binds the criminal Court. An order passed by the Executive Magistrate in proceedings under S.145/146 of the Code is an order by a criminal Court and that too based on a summary enquiry. The order is entitled to respect and wait before the competent Court at the interlocutory stage. At the stage of final adjudication of rights, which would be on the evidence adduced before the Court, the order of the Magistrate is only one out of several pieces of evidence.’

In, Karam Chand Ganga Prasad v. Union of India [(1970) 3 SCC 694], a 3 judges bench observed:

“A Division Bench of the Delhi High Court after elaborately bearing the arguments advanced in the case on the various issues arising for decision in the case rejected the writ petitions on the sole ground that in view of the pendency of the criminal proceedings before some Courts in the State of West Bengal, it is inappropriate for the High Court to pronounce on the questions arising for decision in the writ petitions. In our opinion the High Court seriously erred in coming to this conclusion. If the appellants are able to establish their case that the ban on export of maize from the State of Haryana had been validly lifted all the proceedings taken against those who exported the maize automatically fall to the ground. Their maintainability depends on the assumption that the exports were made without the authority of law. It is a well-established principle of law that the decisions of the civil courts are binding on the criminal courts. The converse is not true.”

In, K.G. Premshanker v. Inspector of Police (2002) 8 SCC 87: AIR 2002 SC 3372, the Supreme Court elaborately considered the precedents on the issue. After referring to S.40 to 43 of the Indian Evidence Act, 1872, and the judgment in M.S. Sheriff v. The State of Madras, 1954 SCR 1144, the Court held in para 32 -33:

“ In the present case, the decision rendered by the Constitution Bench in M.S. Sheriff case [AIR 1954 SC 397 : 1954 CriLJ 1019] would be binding, wherein it has been specifically held that no hard – and – fast rule can be laid down and that possibility of conflicting decision in civil and criminal courts is not a relevant consideration. The law envisages “such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for limited purpose such as sentence or damages”.

 Hence, the observation made by this Court in V.M. Shah case [(1995) 5 SCC 767: 1995 SCC (Cri) 1077] that the finding recorded by the criminal court stands superseded by the finding recorded by the civil court is not correct enunciation of law. Further, the general observations made in Karam Chand case [(1970) 3 SCC 694] are in context of the facts of the case stated above. The Court was not required to consider the earlier decision of the Constitution Bench in M.S. Sheriff case [AIR 1954 SC 397: 1954 CriLJ 1019] as well as S.40 to 43 of the Evidence Act (sections 34 to 37 of the Bharatiya Sakshya Adhiniyam).”

In, K.G. Premshanker, the Supreme Court also referred the judgment of the Privy Council in King Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18, wherein it has been held as under:

“… It is conceded that the findings in a civil proceeding are not binding in a subsequent prosecution founded [upon] the same or similar allegations. Moreover, the police investigation was stopped, and it cannot be said with certainty that no more information could be obtained. But even if it were not, it is the duty of a criminal court when a prosecution for a crime takes place before it to form its own view and not to reach its conclusion by reference to any previous decision which is not binding [upon] it.”

In, K.G. Premshanker, the Supreme Court further observed:

“….. if the criminal case and civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of S.40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in S.41. S.41 (sections 35 of the Bharatiya Sakshya Adhiniyam)provides which judgment would be conclusive proof of what is stated therein.”

Moreover, the judgment, order or decree passed in previous civil proceedings, if relevant, as provided under S.40 and S.42 (sections 34 to 36 of the Bharatiya Sakshya Adhiniyam) or other provisions of the Evidence Act then in each case the court has to decide to what extent it is binding or conclusive with regard to the matters decided therein. In each and every case the first question which would require consideration is, whether the judgment, order or decree is relevant; if relevant, its effect. This would depend upon the facts of each case.”

In P. Swaroopa Rani v. M. Hari Narayana, (2008) 5 SCC 765, the Supreme Court laid down the following proposition: –

“It is, however, well settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the facts and circumstances of each case. (See M.S. Sheriff v. State of Madras [AIR 1954 SC 397], Iqbal Singh Marwah v. Meenakshi Marwah [(2005) 4 SCC 370: 2005 SCC (Cri) 1101] and Institute of Chartered Accountants of India v. Assn. of Chartered Certified Accountants [(2005) 12 SCC 226 : (2006) 1 SCC (Cri) 544].)”

In Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), (2009) 5 SCC 528, it was held:

“If primacy is to be given to a criminal proceeding, indisputably, the civil suit must be determined on its own merit, keeping in view the evidence brought before it and not in terms of the evidence brought in the criminal proceeding.….. if judgment of a civil court is not binding on a criminal court, a judgment of a criminal court will certainly not be binding on a civil court.”

In Iqbal Singh Marwah v. Meenakshi Marwah [(2005) 4 SCC 370: 2005 SCC (Cri) 1101] the Supreme Court held as under:

“Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings is entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.”

In Syed Askari Hadi Ali Augustine Imam V. State (Delhi Admn.) [(2009) 5 SCC 528] the Supreme Court considered the earlier judgments on the issue and held that while deciding the case in Karam Chand [(1970) 3 SCC 694: AIR 1971 SC 1244], the Court failed to take note of the Constitution Bench judgment in M.S. Sheriff [AIR 1954 SC 397: 1954 CriLJ 1019] and, therefore, it remains per incuriam and does not lay down the correct law. A similar view has been reiterated by the Supreme Court in Vishnu Dutt Sharma v. Daya Sapra [(2009) 13 SCC 729, wherein it has been held by the Court that the decision in Karam Chand [(1970) 3 SCC 694: AIR 1971 SC 1244] stood overruled in K.G. Premshanker [(2002) 8 SCC 87: AIR 2002 SC 3372].

In Avitel Post Studioz Ltdand Others  v HSBC PL Holdings (Mauritius) Ltd, 2021 (4) SCC 713 (*Rohinton F. Nariman; Navin Sinha, JJ), the Supreme Court surveyed through all the above judgments on the issue and succinctly summed up the law as under:

Thus, in view of the above, the law on the issue stands crystallised to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject – matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of S.41 to 43 of the Evidence Act(sections 35 to 37 of the Bharatiya Sakshya Adhiniyam), 1872, dealing with the relevance of previous judgments in subsequent cases may be taken into consideration.” (See also Kishan Singh v. Gurpal Singh (2010) 8 SCC 775 and Guru Granth Saheb Sthan Meerghat Vanaras v. Ved Prakash, (2013) 7 SCC 622.)

8. Admissions of the Parties in the Previous Proceeding can be Proved in Subsequent Proceeding

In Seth Ramdayal Jat v Laxmi Prasad AIR 2009 SC 2463, the Supreme Court reiterated that:

It is now almost well settled that, save and except for S.43 of the Indian Evidence Act (section 37 of the Bharatiya Sakshya Adhiniyam) which refers to S.40, 41, and 42 (sections 34, 35 and 36 of the Bharatiya Sakshya Adhiniyam) thereof, a judgment of a criminal Court shall not be admissible in a civil suit.

What, however, would be admissible is the admission made by a party in a previous proceeding. The admission of the appellant was recorded in writing. While he was deposing in the suit, he was confronted with the question as to whether he had admitted his guilt and pleaded guilty of the charges framed. He did so. Having, thus, accepted that he had made an admission in the criminal case, the same was admissible in evidence.

9. Quashing of Criminal Case When Civil Case is Settled – Criteria

In ‘Rumi Dhar case’, (Rumi Dhar v. State of W. B., 2009 (6) SCC 364: 2009 (2) SCC (Cri) 1074), the Supreme Court observed that when settlement is arrived at between the creditors and the debtor, the offence, if committed, as such does not come to an end. Even a judgment rendered in the civil proceedings, when it is rendered on the basis of a settlement entered into between the parties, would not be of large relevance on the criminal offence. The judgment of the civil court is admissible only for limited purposes. (See also Central Bureau of Investigation v. Hari Singh Ranka 2019 (16) SCC 687)

In Narinder Singh v. State of Punjab2014 (6) SCC 466 , a two – Judge Bench  of the Supreme Court held that in the facts of the said case the proceedings under S.307 deserved to be quashed. The Bench laid down certain guidelines by which the High Courts would be guided in giving adequate treatment to the settlement between the parties and exercising its power under S.482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement as under:

‘29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any court.

While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.’

See also Gian Singh case, (Gian Singh v. State of Punjab, 2012 (10) SCC 303: and Dimpey Gujral v. State (UT of Chandigarh), (Dimpey Gujral v. State (UT of Chandigarh), 2013 (11) SCC 497, State of Rajasthan v. Shambhu Kewat, (State of Rajasthan v. Shambhu Kewat, 2014 (4) SCC 149,

10. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved.

Section 38 of the Bharatiya Sakshya Adhiniyam (Section 44 of the Evidence Act ), reads as under:

Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 34, 35 or 36 (section 40, 41 or 42 of the Evidence Act), and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion

It is a fundamental principle that “Fraud” and “collusion” vitiate even the most solemn proceedings. Fraud and justice never dwell together.

A “fraud” is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage. (See S.P. Changalvaraya Naidu v. Jagannath (1994 (1) SCC 1, Dr. Vimla v. Delhi Administration (1963 Supp. 2 SCR 585) and Indian Bank v. Satyam Febres (India) Pvt. Ltd. (1996 (5) SCC 550).

It is a fraud in law if a party makes representations, which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. (See Ram Chandra Singh v. Savitri Devi and Ors. (2003 (8) SCC 319).

In Lazarus Estate Ltd. v. Beasley (1956) 1 QB 702, Lord Denning observed at pages 712 & 713, “No judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.” In the same judgment Lord Parker LJ observed that fraud vitiates all transactions known to the law of however high a degree of solemnity (page 722). (See, the State of Andhra Pradesh and Anr. v. T. Suryachandr Rao (2005 (5) SCALE 621) and Bhaurao Dagdu Paralkar v. State of Maharashtra and Ors. (2005 (7) SCC 605)

10.1. Fraud has to be Pleaded and Proved

In, Union of India and Another v M/s K. C Sharma & Co and others, 2020 (15) SCC 209: 2020 (10) SCALE 1, a three judges bench of the Supreme Court reiterated that Fraud must be pleaded and Proved, The Court observed:

“It is fairly well settled that fraud has to be pleaded and proved. More so, when a judgment and decree passed earlier by the competent court is questioned, it is necessary to plead alleged fraud by necessary particulars and same has to be proved by cogent evidence. There cannot be any inference contrary to record. As the evidence on record discloses that fraud, as pleaded, was not established, in absence of any necessary pleading giving particulars of fraud, we are of the view that no case is made out to interfere….”

a. Separate Suit to Set-Aside a Judgment Obtained by Fraud is not Necessary

In, Ashrafi Lal v. Smt Koili 1995 (4) SCC 163: AIR 1995 SC 1440, (A. M. Ahmadi, C. J. I.; *S. C. Agrawal; N. Venkatachala, JJ.), a three judges bench of the Supreme Court reiterated that it is not necessary to Institute a separate suit to set-aside a decree obtained by fraud or collusion. The Court observed:

“The judgment of a competent Court is normally binding on the parties to the proceeding and it operates as res judicata in a subsequent proceeding between the same parties. An exception to the said rule is engrafted by S.44 of the Evidence Act (section 38 of the Bharatiya Sakshya Adhiniyam)which provides that any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under S.40, 41 and 42, (sections 34, 35 and 36 of the Bharatiya Sakshya Adhiniyam)and which has been proved by the adverse party was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion. The effect of the said provision is that a judgment delivered by a Court not competent to deliver it or a judgment which is obtained by fraud or collusion does not operate as res judicata and is not binding on the parties to the said proceedings. [See: Beli Ram and Brothers v. Chaudhri Mohammad Afzal. AIR 1948 PC 168]. A judgment can be avoided in a subsequent proceeding by a party which is able to show that it was delivered by a Court not competent to deliver it or it was obtained by fraud or collusion. Since such a judgment does not operate as res judicata it is not necessary to institute a proceeding for setting it aside. A party to a proceeding against whom a judgment in an earlier suit is relied can successfully avoid the said judgment if he can establish in the subsequent proceeding that the said judgment was delivered by a Court not competent to deliver it or that it was obtained by fraud or collusion.”

The Court was considering whether a minor can avoid a decree account of gross negligence on the part of his, next friend. The Court observed:

“The question for consideration is whether, apart from filing a separate suit for setting aside a decree on the ground of gross negligence on the part of his next friend, it is permissible for a minor to avoid a decree, if relied upon in a subsequent proceeding, on the ground that the said decree was obtained on account of gross negligence on the part of his, next friend in the previous suit. This would be permissible only if S.44, of the Evidence Act (section 38 of the Bharatiya Sakshya Adhiniyam) can be invoked. As pointed out earlier, the Privy Council in Talluri Venkata Seshayya v. Thadikonda Kotiswara Rao (AIR 1937 P. C. 1) (supra) has laid down that S.44, of the Evidence Act (section 38 of the Bharatiya Sakshya Adhiniyam) cannot be extended to cases of gross negligence. But in the said case the Privy Council has observed that the Court cannot treat negligence, or gross negligence, as fraud or collusion, unless fraud or collusion is the proper inference from the facts. In other words, in cases where an inference of fraud or collusion can be drawn from the negligence or gross negligence of the next friend it would be permissible for a minor to avoid the judgment or decree passed in the earlier proceeding by invoking S.44, of the Evidence Act (section 38 of the Bharatiya Sakshya Adhiniyam) without taking resort to a separate suit for setting aside the decree or judgment.”

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence.

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Exercise Questions

  1. Discuss the provisions dealing with Relevancy of judgments under the Evidence Act
  2. Whether Civil Court Judgment is binding on the criminal court or vice versa? Explain in view of the provisions in the Evidence Act and case law.
  3. How can a Judgment obtained by Fraud be avoided?