K.G. Premshanker
Vs. Inspector of Police and Anr [2002] Insc 387 (12 September 2002)
M.B. Shah, Bisheshwar Prasad Singh & H.K. Sema.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 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:
"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 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.
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:
"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 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 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 (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.
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