A JUDGMENT PER INCURIAM

October 22, 2014 - admin

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Published by : Advocate John S. Ralph

The judgment of the Kerala high court rendered in Mohan Das Vs P. Abdul Aseez reported in 2011(3) KHC 41 is per incuriam of the judge law and the statute.

The ratio decedendi in it is that a civil court’s judgment, arising out of the same transaction is binding on the criminal court.

Facts those lead to the verdict: A prosecution under section 138 of NI Act ended in a conviction that was confirmed in appeal. The civil suit on the same cheque ended in dismissal for want of proof of transaction. No appeal was filed. While the revision filed against the criminal court judgment was pending, the order of the civil court was produced before the high court by the accused and on the strength of it, the revision was allowed and the accused is acquitted.

The court went absolutely wrong in relying on the provisions of section 40 to 43 of the Evidence Act. The court has also misunderstood the decision rendered by the apex court in K.G Premshankar Vs IG of Police (A.I.R 2002 SC.3372) which declared the law on the subject by saying that the civil court judgment is not binding on the criminal court except under the provisions of section 40 to 43 of the Evidence Act.   In V.M Sha Vs state of Maharashtra (1995 5 SCC 767) the Supreme Court ruled that a civil court judgment is binding on the criminal court. The correctness of the judgment was doubted and it was thus a three judge bench was constituted to hear K.G. Premshankar and after elaborately discussing the law on the subject, the Supreme Court ruled that the binding nature of the civil court judgment on criminal court is subjected section 40 to 43 of the Evidence Act, which means that it should come in any of the provisions of the Evidence Act. By misinterpreting/ misunderstanding that judgment, the Kerala high court has rendered Mohan Das.

SECTIONS 40 – 43 OF THE EVIDENCE ACT AND THE IMPACT OF JUDGMENTS.

A brief discussion : Section 40 to 43 coming under the sub heading of judgments of courts of justice when relevant deals with the issue.

Section 40: Previous judgments relevant to bar second suit or trial; is based on the principal of res judicata. To be more precise res inter alias judicata which means when a proceeding has culminated in a judgment, the parties to that are precluded from re-agitating it. The theory is based on the concept of finality of judgments to prevent never ending litigation between parties on the same issue. In criminal cases it works as the principle of double jeopardy that is prevented U/s 300 of Cr.P.C. In the present case, this section has no relevance since there is no question of res judicata.

Section 41: Relevancy of certain judgments; the final judgments in probate, matrimony admiralty and insolvency which declares a person’s legal character against the whole world becomes relevant under this section. { For the student’s recollection it is wwwi. Judgments on Wills (probate) Wrecks (admiralty; ship wrecks) Wives (matrimony) }   The later part of the section makes conclusive the date and legal effect. This section deals with the legal character of a litigant in rem, i.e., against the whole world and not inter-parte. Hence this section is also not relevant in the case at hand.

Section 42: deals with the relevancy of judgments in matters relating to public nature which is relevant to the proceeding before the court. Under this section, a judgment though not inter-parte can be placed in evidence if it relates to matters of public nature. But it is not a conclusive proof as is stated in the latter part of the section which means that contra evidence can be adduced to disprove the fact considered in the judgment produced as evidence. Hence this section also is not applicable.

Section 43: specifically makes it clear that previous judgments other than those comes under 40 to 42 are irrelevant and further says that if the fact in issue is the existence of such judgment then it can be looked into under this section, and also declares that it can become relevant if comes under some other provisions of the Evidence Act. Illustration (d) the shortest one under this section will easily explain the purport of this section. ‘A’ obtained a decree against ‘B’; B’s son murders A in consequence. To show the motive, the existence of the civil court judgment can be produced under this section. Generally, the question should be whether a certain judgment existed or not. But the latter part of section 43 makes judgments relevant subject to other provisions of the Evidence Act. (This covers sections 11 and 13 of the evidence act and for brevity let us skip that part for the time being since they are to be considered in a totally different perspective and generally applies to matters of public nature) So it is clear that this section also will not help the situation in hand.

This being the statutory provisions, the courts cannot go beyond it. We are in a country governed by the rule of law. The Evidence Act further fortifies it by declaring under Section 5 that “evidence may be given in any suit or proceedings of the existence or non existence of every fact in issue and of other facts as are herein after declared to be relevant and of no others”. The words “ no others” ties the hands of the court and limits its powers within the boundaries and parameters of the Evidence Act. This is further strengthened by the first proviso to section 165 of the Act. Under the said section a judge can ask any questions to any party at any time, relevant or irrelevant but as per the first proviso “the judgment must be based upon facts declared by this act to be relevant and duly proved” Hence even when a party answers a question put by the judge prejudicially to his own pleadings / evidence, the court cannot render a judgment overlooking the Evidence Act.

When does it bind:

While considering the matters under chapter X of Cr.P.C, the Apex court has said that the judgment of the civil court is binding on the criminal court. This has a different rationale. On the one hand the proceedings before the executive magistrate, is in the form of a summary trial to prevent a nuisance and on the other hand generally it applies to matters of public nature though not always. Hence the result of a fully fledged trial before a civil court cannot be overlooked by the executive magistrate.

For all other purposes, the civil and criminal court has to come to its own finding on the evidence adduced before it.

Why this rule. For a common man it may sound irrational. But not to a legal man. We have seen the facts of the present case. Think about the vice versa. The Magistrate acquits the accused by finding that there was no transaction. Complainant files an appeal against acquittal before the high court. In the mean time he got a judgment in his favour from the civil court finding that there was transaction. The complainant produces the judgment before the high court in support of his appeal. Can the court convict the accused following the decision discussed herein ? If the answer is in the affirmative, it will violate all the principles of Evidence Act.

The rationale behind it. Hundreds of decisions have been rendered by the Apex court and other high courts before and after K.G.Premsanker, declaring that civil court judgment is not binding of criminal court. One of the most interesting among them was rendered in B.N.Kashyap Vs Crown reported in ILR (1944)25 Lah 408 FB. The court said that if a civil court’s judgment is given more weight to a criminal court judgment, then the jurisdiction of criminal court on the same issue will become redundant on production of a civil court judgment on the same issue between the parties. The court held “…..to place the Civil Court, without any valid reason, in a much higher position than what is actually occupies in the system of administration of this country and to make it master not only of cases which it is called upon to adjudicate, but also of cases which it is not called upon to determine and over which it has really no control” That is the crux of the rule.

The civil court will be determining the fate of the criminal court verdict without considering the matters before the criminal court. If this is allowed, the dismissal of a damage suit by the civil court on a serious offence like murder will straight away help the accused in getting an acquittal in appeal arising out of his conviction which will be an unpardonable folly. Virtually such folly has been done by the court in Mohandas. The court though discussed sections 40-43 it has not mentioned which of those sections is applicable to the case at hand. In para 17 of Mohandas, the court wrongly relied on an observation by the Apex Court in K.G Premsanker to the effect that the issue will depend upon facts of each case and applied it. What Supreme Court said in K.G.Premshanker was that relevancies of other judgments are guided by sections 40-43 of the Evidence Act and such relevancy depends upon the facts of each case. It never said that every court can take other judgments at its own whims and fancies on the facts of each case.

The inflexibility of the rules under sections 40 -43 of the Evidence Act has been spoken to by the Supreme Court in Kharkan Vs State of U.P reported in AIR 1965 SC 83 which declared that “the previous judgment is not admissible for the purpose of relying on the appreciation of evidence”. In Kumar Gopika Raman Vs Atal Singh AIR 1929 PC 99 the Privy Council observed that “ The Indian Evidence Act does not make a finding of fact arrived at on the evidence before the court in one case, evidence of that fact in another case” Hence Mohandas has violated the century old precedents, specific unambiguous provisions of the Indian Evidence Act and the three bench decision in K.G.Premsanker and hence need reconsideration by a larger bench.

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