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CASE NO.:

Appeal (crl.) 935 of 2002

PETITIONER:

K.G. Premshanker

Vs.

RESPONDENT:

Inspector of Police and Anr.

DATE OF JUDGMENT: 12/09/2002BENCH:

M.B. SHAH, BISHESHWAR PRASAD SINGH & H.K. SEMA.

JUDGMENT:

J U D G M E N T

Shah, J.

Leave granted.

The appellant and others who are accused in CC No.513/95 filed

Criminal Miscellaneous Case Nos.2209/95, 2361/95 and 784/96

before the High Court of Kerala for quashing the prosecution against

them. Those petitions were rejected by the High Court by judgment

and order dated 11th June, 1998. Hence, this appeal.

The prosecution was launched against the present appellant

which arose out of an incident which occurred because of a news item

in the evening Daily "Sudinam" on 2nd February, 1988. The news

item was printed and published by one Madhavan at Kannur as per

which one tribal girl Manja, aged about 16 years was raped by one

Rajan. Manja and her parents lodged a complaint before the

Superintendent of Police, who transferred the complaint to the

appellant herein, who was a Superintendent of Police Kannur for

investigation. On that complaint, a case was registered in Crime

No.50/88 under Section 228A IPC and Section 7(1)(d) of the

Protection of Civil Rights Act. The case was entrusted to the Circle

Inspector of Police who arrested Madhavan and the printing press was

also searched on 12th February, 1988. It is contended that after the

arrest at about 8.00 p.m., Madhavan was taken in police jeep to the

police station and on the way he was assaulted by the policemen in the

jeep. At about 8.30 p.m., he was put in lock up and on 13th February,

1988, he was produced before the Magistrate at Kannur. He

complained that he was assaulted by the police and thereby he

sustained injuries. After recording the aforesaid statement, the

Magistrate enlarged him on bail. For taking treatment for the injuries

sustained by him, he went to hospital and got himself admitted there.

From there, he lodged an FIR which was registered as Crime No.52 of

1988 under Sections 143, 323, 324 etc. of IPC against the Sub-

Inspector of Police, Kannur and also six or seven unidentified

policemen. The case registered against Madhavan was quashed by the

High Court. As there was no progress in the FIR registered by

Madhavan, he moved the High Court for entrusting investigation to

the CBI. The High Court directed the Deputy Inspector General of

Police, Northern Range to investigate the case. Not being satisfied by

the said order, Madhavan preferred a Special Leave Petition before

this Court and by order dated 22nd December, 1989, this court directed

the Deputy Inspector General of Police, Central Range, to investigate

and file the report within two months. As there was no progress in the

matter within the prescribed time, Madhavan again moved this Court

and by order dated 24th September, 1992, this Court entrusted the

investigation to CBI and also awarded compensation of Rs.10,000/- to

Madhavan. After investigation, CBI moved the State Government for

sanction under Section 197 Cr.P.C. and thereafter filed report before

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the Chief Judicial Magistrate, Ernakulam against 12 accused including

the present appellant on 27th April, 1995, for the offences punishable

under Sections 324, 341, 342, 357, 219 and 166 IPC. The Chief

Judicial Magistrate took cognizance of the said report.

Appellant and others filed separate applications for dropping

the proceedings on the ground that a final report was filed by the CBI

beyond the period of limitation prescribed under Section 468 Cr.P.C.

and that no application for condoning delay was filed. Those

applications were dismissed by the Chief Judicial Magistrate on

27.9.1995 and the delay in filling final report by the CBI was

condoned. The said order was challenged before the Additional

Sessions Judge, Ernakulam who directed the Magistrate to dispose of

the said applications afresh. That order was challenged by filing the

impugned miscellaneous applications before the High Court.

The High court after considering the various decisions cited,

held that learned Sessions Judge has only remitted the matter to the

Chief Judicial Magistrate to consider the petition to be filed by the

CBI under Section 473 Cr.P.C. for condoning delay. The Court also

held that it was not a fit case for exercise of the jurisdiction under

Section 482 Cr.P.C.

The appellant raised additional contention, before the High

Court, that the de facto complainant Madhavan had filed a suit for

the damages for the alleged acts, before the Sub Court, Tellicherry

against the appellant and other accused and the trial court has

dismissed the suit against which he had preferred the appeal before

the High Court. It was, therefore, contended that as the suit was

dismissed, the decision rendered by the Civil Court will prevail and

therefore the criminal prosecution pending against the appellant and

others is required to be dropped. The court rejected the said

contention. Hence, this appeal.

This Court on 9th November 1998, passed the following order :

"Since we are of the view that the Judgment of this

Court in V. M. Shah v. State of Maharashtra and anr.

[(1995) 5 SCC 767] which has been relied upon by Mr.

Gopal Subramanium, learned senior counsel appearing

for the petitioner, requires reconsideration, we refer this

petition to a larger Bench for disposal. Let the record be

placed before Hon. the Chief Justice for necessary

orders."

Thereafter, on 12th October, 1999, it was pointed out to this

Court that the appeals filed against the dismissal of the suit are

pending in the High Court of Kerala and therefore the court directed

that it would be appropriate to await the judgment in those appeals

before proceeding further with the case. The court adjourned the

hearing of the matter and requested the High court to dispose of the

said appeals expeditiously.

At the time of hearing of these appeals, it is pointed out that the

appeals are allowed and the judgment and decree in OS Nos. 42/89

and 235/90 passed by the Subordinate Judge were set aside and the

matters were remitted to the trial court to try the suit from the stage of

framing of issues.

The net result of the aforesaid decree passed by the High court

is that at present both criminal prosecution for the offences as stated

above and civil suits for damages are pending at trial stage.

In the background of the aforesaid facts, we would refer to the

observations made in V.M. Shah's case (Supra) which are as under:

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"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 Section 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."

Further, the learned senior counsel- Shri Dholakia appearing for

the appellant submitted that apart from the aforesaid judgment, this

Court (three Judge Bench) in M/s. Karam Chand Ganga Prasad and

another. v. Union of India and ors. [(1970) 3 SCC 694] held

thus:

"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.."

The aforesaid observations are to be read in context of the facts

that Delhi High Court after elaborately hearing the arguments 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 was inappropriate for the High Court to pronounce on the

questions arising for decision in the writ petitions. The Court

observed that the High Court after entertaining the writ petitions and

hearing arguments on merits of the case should not have dismissed the

petitions merely because certain consequential proceedings had been

taken on the basis that the exports in question were illegal. If

appellants were 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. In context of

those facts, the Court observed that the decisions of the civil courts

are binding on criminal courts but the converse is not true.

It is the submission of learned senior counsel Mr. Dholakia that

in view of the well-settled principle, the High court ought to have

dropped the prosecution against the appellant as civil court has

dismissed the suit for damages filed against appellant.

Learned Additional Solicitor General Shri Altaf Ahmed

appearing for the respondents submitted that the observation made by

this Court in V.M. Shah's case that "the finding recorded by the

criminal Court, stands superseded by the finding recorded by the civil

Court and thereby the finding of the civil Court gets precedence over

the finding recorded by the criminal Court" is against the law laid

down by this Court in various decisions. For this, he rightly referred

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to the provisions of Sections 41, 42 and 43 of the Evidence Act and

submitted that under the Evidence Act to what extent judgments given

in the previous proceedings are relevant is provided and therefore it

would be against the law if it is held that as soon as the judgment and

decree is passed in a civil suit the criminal proceedings are required to

be dropped if the suit is decided against the plaintiff who is the

complainant in the criminal proceedings.

In our view, the submission of learned Addl. Solicitor General

requires to be accepted. Sections 40 to 43 of the Evidence Act

provide which judgments of Courts of justice are relevant and to what

extent. Section 40 provides for previous judgment, order or a decree

which by law prevents in a court while taking cognizance of a suit or

holding a trial, to be relevant fact when the question is whether such

court ought to take cognizance of such suit or to hold such trial.

Section 40 is as under:

"40. Previous judgments relevant to bar a

second suit or trial. The existence of any judgment,

order or decree which by law prevents any Courts 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 41 provides for relevancy of certain judgments in

probate, matrimonial, admiralty or insolvency jurisdiction and makes

it relevant or conclusive as provided therein.

Section 41 reads thus:

"41. Relevancy of certain judgments in probate,

etc., jurisdiction.A final judgment, order or decree of a

competent Court, 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.

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;

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;

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 case;

and 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.

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Section 42 with illustration reads thus :

"42. Relevancy and effect of judgments, orders

or decrees, other than those mentioned in section 41

Judgments, orders or decrees other than those mentioned

in section 41, 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.

Thereafter, Section 43 in terms provides that judgments, orders

or decrees, other than those mentioned in Sections 40, 41, 42 are

irrelevant unless the existence of such judgment, order or decree, is a

fact in issue, or is relevant under some provisions of the Act.

The final judgment, order or decree of a competent Court, in

exercise of probate, matrimonial, admiralty or insolvency jurisdiction

would be relevant if it confers upon or takes away from any person

any legal character or it 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. It further specifically provides that

such judgment or decree is conclusive proof of what is provided

therein such as legal character etc. As against this under Section 42,

the relevancy of the judgments, orders and the decrees in previous

proceedings is limited if they relate to matters of public nature

relevant to the enquiry and such judgments, orders or decrees are not

conclusive proof of that which they state. Illustration to Section 42

makes the position clear.

In the facts of the present case, Section 42 would have some

bearing and the judgment and decree passed in civil Court would be

relevant if it relates to matter of public nature relevant to the enquiry

but such judgment and decree is not a conclusive proof of that which

it states.

In this regard, we would first refer to the decision rendered by

the Privy Council in Emperor v. Khwaja Nazir Ahmad [AIR (32)

1945 Privy Council 18]. The Privy Council considered whether the

High Court had power under Section 561 Cr.P.C. to quash all

proceedings taken in pursuance of FIR for the offence punishable

under Section 420 and prohibit the investigation on the ground that

similar charges were levelled against the respondent four years earlier.

Some of the charges were actively disproved and the rest held to be

unfounded in an enquiry held as a consequence of application to

remove the respondent from his post of Receiver of the property.

After considering the evidence which was recorded in the enquiry, the

High Court quashed the proceedings and in that context the Privy

Council observed that all this may be good ground for rejection of

acquisition and dismissal of any prosecution launched upon if such a

prosecution ultimately takes place and if the courts are then satisfied

that no crime has been established and thereafter court observed

thus:

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" 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."

Further, in M.S. Sheriff and anr. v. State of Madras and ors.

[AIR 1954 SC 397] the Constitution Bench of this Court dealt with

exactly similar situation, where two sets of proceedings arising out of

the same facts were pending, namely, two civil suits for damages for

wrongful confinement and another two criminal prosecutions under

Section 344 IPC for wrongful confinement. In that context, it was

contended that simultaneous prosecution of these matters will

embarrass the accused and the Court considered the question whether

criminal prosecution should be stayed. In that context, it was held

thus:

"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 decisions 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 one 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."

Shri Altaf Ahmed, learned Additional Solicitor General, further

referred to the full bench decision of Lahore High Court in B.N.

Kashyap v. Emperor [AIR 1945 Lahore 23] wherein the Full Bench

considered the following question:

" When there are concurrent proceedings covering

the same ground before a criminal Court and a civil

Court, the parties being substantially the same, would the

judgment of the civil Court, if obtained first, be

admissible in evidence before the criminal Court in proof

or disproof of the fact on which the prosecution is

based?"

In that context while deciding the said question the court

observed thus:

"In other words, the short point to decide is

whether the finding on certain facts by a civil Court is

relevant before the criminal Court when it is called upon

to give a finding on the same facts or vice versa? The

Evidence Act being exhaustive, the answer to this

question depends upon the correct interpretation of the

relevant provisions contained in that Act regardless of the

fact whether the conclusion at which one ultimately

arrives is in accordance with what was characterized

before us during the arguments at the Bar to a

commonsense view of things or not. In construing a

statute like the Evidence Act, where any fact intended to

be established has to be in accordance with the scheme of

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the Act, found to be relevant under a provision contained

in the Act before it can be allowed to be proved, any

argument based on plausibility can have no effect. I must

therefore ignore any other consideration and confine

myself strictly to the provisions of the Act."

Thereafter, the Court referred to Sections 42 and 43 of the

Evidence Act. After considering the said questions, the Court

observed as under:

"Under S.40 of the Act, previous judgments are

admissible in support of a plea of res judicata in civil

cases or of autre fois acquit or autre fois convict in

criminal cases. Judgments such as those whose

relevancy we have been called upon to determine do not

fall under this category. Nor can they fall under S.41 of

the Act which only makes a final judgment of a

competent Court, in the exercise of probate, matrimonial,

admiralty or insolvency jurisdiction, conferring upon,

taking away from or declaring any person to be entitled

to any legal character or to be entitled to any specific

thing absolutely, relevant when the existence of any such

legal character or the title to any such thing is relevant.

They do not also fall within the purview of S.42 of the

Act as they do not relate to matters of a public nature.

Section 43 of the Act positively declares judgments

other than those mentioned in Ss. 40, 41 and 42 to be

irrelevant unless their existence is a fact in issue or is

relevant under some other provision of the Act. It is

quite clear that the mere existence of a judgment in the

present case is not relevant. Learned counsel for the

petitioner saw this difficulty and wishes to rely on S.11

of the Act. But I cannot see how could that section have

any application when the existence of that judgment as

apart from any finding contained therein or even the

finding itself could neither be inconsistent with any fact

in issue or a relevant fact. Nor could such judgments

either by themselves or in connection with other facts

make the existence or non-existence of any fact in issue

or relevant fact in any subsequent proceedings highly

probable or improbable. This section only refers to

certain facts which are either themselves inconsistent

with, or make the existence or non-existence of, the fact

in issue or a relevant fact highly probable or improbable

and has no reference to opinions of certain persons in

regard to those facts. It does not make such opinions to

be relevant and judgments after all of whatever authority

are nothing but opinions as to the existence or non-

existence of certain facts. These opinions cannot be

regarded to be such facts as would fall within the

meaning of S.11 of the Act unless the existence of these

opinions is a fact in issue or a relevant fact which is of

course a different matter."

Finally, after considering the various decisions, the Court held

thus:

"There is no reason in my judgment as to why the

decision of the civil Court particularly in an action in

personam should be allowed to have that sanctity. There

appears to be no sound reason for that view. To hold that

when a party has been able to satisfy a civil Court as to

the justice of his claim and has in the result succeeded in

obtaining a decree which is final and binding upon the

parties, it would not be open to criminal Courts to go

behind the findings of the civil court is to place the latter

without any valid reason in a much higher position than

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what it actually occupies in the system of administration

in 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. The fact is that the issues in the

two cases although based on the same facts (and strictly

speaking even parties in the two proceedings) are not

identical and there appears to be no sufficient reason for

delaying the proceedings in the criminal Court, which,

unhampered by the civil Court, is fully competent to

decide the questions that arise before it for its decision

and where in the nature of things there must be a speedy

disposal."

In Kharkan and others v. The State of U.P. [(1964) 4 SCR

673], the Court observed thus:

"the earlier judgment can only be relevant if it

fulfils the conditions laid down by the Indian Evidence

Act in Sections 40 to 43. The earlier judgment is no

doubt admissible to show the parties and the decision but

it is not admissible for the purpose of relying upon the

appreciation of evidence"

What emerges from the aforesaid discussion is (1) the

previous judgment which is final can be relied upon as provided under

Sections 40 to 43 of the Evidence Act; (2) in civil suits between the

same parties, principle of res-judicata may apply; (3) in a criminal

case, Section 300 Cr.P.C. makes provision that once a person is

convicted or acquitted, he may not be tried again for the same offence

if the conditions mentioned therein are satisfied; (4) if the criminal

case and the civil proceedings are for the same cause, judgment of the

civil Court would be relevant if conditions of any of the Sections 40 to

43 are satisfied, but it cannot be said that the same would be

conclusive except as provided in Section 41. Section 41 provides

which judgment would be conclusive proof of what is stated therein.

Further, the judgment, order or decree passed in a previous civil

proceeding, if relevant, as provided under Sections 40 and 42 or other

provisions of the Evidence Act then in each case, Court has to decide

to what extent it is binding or conclusive with regard to the matter(s)

decided therein. Take for illustration, in a case of alleged trespass by

'A' on 'B's property, 'B' filed a suit for declaration of its title and to

recover possession from 'A' and suit is decreed. Thereafter, in a

criminal prosecution by 'B' against 'A' for trespass, judgment passed

between the parties in civil proceedings would be relevant and Court

may hold that it conclusively establishes the title as well as possession

of 'B' over the property. In such case, 'A' may be convicted for

trespass. The illustration to Section 42 which is quoted above makes

the position clear. Hence, in each and every case, first question which

would require consideration is whether judgment, order or decree

is relevant?, if relevant its effect. It may be relevant for a limited

purpose, such as, motive or as a fact in issue. This would depend

upon facts of each case.

In the present case, the decision rendered by the Constitution

Bench in M.S. Sheriff's case (supra) 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's case

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(Supra) 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's case 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's case as well as Sections 40 to 43

of the Evidence Act.

In the present case, after remand by the High Court, civil

proceedings as well as criminal proceedings are required to be decided

on the evidence, which may be brought on record by the parties.

In the result, the appeal is dismissed.