Report No. 185

Section 42

This section deals with the relevancy and effect of judgments, orders or decrees, other than those mentioned in Section 41 and declares them not 267 conclusive proof but only relevant if they relate to matters of public nature relevant to the inquiry.

There is an illustration below Section 42 which refers to a suit by A against B alleging existence of a public right pleaded by B over A's land. The fact that in a suit by A against C, C claimed a public right was relevant but not conclusive proof of the right of way.

This is a principle drawn from English law and is an exception to the general rule that persons not parties or privies to a judgment shall not be affected or prejudiced thereby.

The Supreme Court, in V. Shankarayya v. N.S. Pattadadevan, AIR 1995 SC 2187 applied Section 42 to a judgment relating to the validity of nomination and installation of a person to the office of Paddayya. An earlier judgment in that behalf of the Privy Council of a native State was treated as relevant, though not conclusive, under Section 42.

Vepa P. Sarathi summarises (Law of Evidence, 2002, p. 173) as follows as to the effect of Section 41 to 44 and Section 13:

"The result may be stated thus: (a) If a judgment comes under Section 41, it is relevant as well as conclusive even against a third party; (b) If it comes under Section 42, it is relevant as against a third party; (c) All other judgments are relevant as between the parties or their representatives only, under Section 40."

The author adds:

"The existence of such judgments, i.e. those mentioned in (c) would be relevant as against third parties, if such existence of a conclusion is relevant under some section of the Act relating to relevancy, as a fact in issue, or a motive under Section 8 or a transaction under Section 13."

We have already discussed about the relevancy of a judgment not inter partes while dealing with Section 13, as a 'transaction' in which a right, custom etc. is recognized etc.

The 69th Report deals with the relevancy of a judgment of a civil court in a criminal case and vice versa. Sri Sarathi also discusses Section 40 to 42 and also Section 43 this aspect (ibid p. 173) and states as follows:

"If the judgment of the civil court comes under Section 41 or Section 42, it would be relevant in a criminal case also. But if it does not come under these two sections, it cannot be relevant, because Section 40 cannot apply. The application of Section 40 depends upon Section 11 of the Civil Procedure Code and Section 300 of the Criminal Procedure Code.

Under Section 11, Civil Procedure Code, a judgment of a civil court in certain circumstances is relevant in another civil court, and under Section 300, Criminal Procedure Code, a judgment of one criminal court in certain circumstances is relevant in another criminal court, but the judgment of a civil court is not made relevant evidence under either of these two sections in a criminal court. The existence of a judgment, i.e. the conclusion in a judgment would, be relevant under the second part of section. 43 and as shown by illustration (d)."

Referring to the converse position, the author says:

"A judgment of a criminal court cannot come under Section 41 and 42. Thus it can never be relevant under these two sections. Under Section 40, as shown above, a judgment of a criminal court can only be relevant in another criminal case and not in a civil case. The existence of a judgment of a criminal court, however, may be relevant under the second part of Section 43."

In Anil Behari v. Shrimati Latika Bala, AIR 1955 SC 566, it was held that the judgment of a criminal court convicting a person for murder of the testator (his father) is no proof of that fact of intestacy in a proceeding to revoke a probate. The judgment was relevant only to show that that was a trial resulting in the conviction and sentence of the son. The question of murder by him is to be decided again in the case relating to grant of probate.

However, under Section 145 CrPC, judgment of a criminal court was treated as relevant in a latter civil case to prove certain facts under Section 13 (Dinomoni v. Brojomohini, ILR 29 Cal 187). This case has been discussed in extenso under Section 13.

We agree with para 16.47 of the 69th Report that no amendment is necessary in Section 42.