What are “Relevant Under Some Other Provisions of this Act” in Sec. 43?

Taken from: Relevancy of a Civil Case Judgment in Criminal Cases: Does a Civil Court Judgment Bind a Criminal Court?

Saji Koduvath, Advocate Kottayam

Relevant Provisions Fall under “Some Other Provisions of this Act” in S. 43

Following provisions are pointed out frequently, in this regard –

  • Sec. 5 (Facts in issue);
  • Sec. 8 (which refers to motive, preparation and previous or subsequent conduct);
  • Sec. 11 (which says when facts not otherwise relevant become relevant);
  • Sec. 13 (when existence of right or custom is in question then any transaction or particular instances where the right or custom is claimed, recognized etc. become relevant),
  • Sec. 54 Explanation (2), when a previous conviction is relevant as evidence of bad character), etc.
  • Sec. 58 (Admitted Facts)

Import of “Relevant under other provisions of this Act”

  • The relevancy of a previous judgment (in a subsequent case) is governed by Sections 40 to 43 of the Indian Evidence Act, 1872.
  • Section 43, inter alia, permits the production of earlier judgments that are deemed “relevant under other provisions of this Act.”
  • There are divergent views on the applicability of Sections 5, 8, 11 and 13, Evidence Act, under this clause in Section 43.
    • First view—Sections 5, 8, 11 and 13 being delineate the general provisions, and the relevance of prior judgments is primarily governed by Sections 40 to 43, the previous judgments will not be liberally permitted (invoking the clause “relevant under some other provisions of this Act”).
    • Second view—The phrase “relevant under some other provisions of this Act” as stated in Section 43, must be interpreted to encompass its complete and comprehensive significance.
  • Differences of opinion also exist as to the admissibility of a judgment not inter parties, under Section 13.
  • The legitimate view, it appears, is the following –
    • (i) Previous judgments can be admitted in evidence (invoking the clause “relevant under some other provisions of this Act”) if they fall under Sections 5, 8, 11 and 13. Nevertheless, the admissibility of the previous judgments being essentially governed by Sections 40 to 43, they cannot be allowed to be freely imported, invoking the general provisions.
    • (ii) The probative value of the previous judgment has to be determined by the court, even if such a previous judgment is marked in evidence as ‘relevant’.
    • (iii) In any case, the use of the previous judgment is definitely relevant in certain contexts. For instance:
      • A motive for an offence (Section 8) – i.e., to see whether the judgment provoked anger in the accused.
      • The sentence or damages to be imposed

Disputes of Title, be adjudicated in Civil Procedure

In Smt. Janak Vohra v. DDA, 103-2003-DLT 789, it was held that in case of disputed questions of title, and mutation being asked for, it is appropriate that the disputes of title be adjudicated in appropriate civil procedure and no direction be issued to mutate the property in the name of a party. (Referred to in Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528)

Land Acquisition judgments, not inter partes, Relevant under S. 11 and 13

In The Land Acquisition Officer, City Improvement Trust Board v. H. Narayana, 1976 – 4 SCC 9; AIR 1976 SC 2403 our Apex Court approved the view that in land acquisition cases judgments, not inter partes, are relevant, under Sec. 11 and 13 Evidence Act, if such judgments relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case.

Order directed rectification of Trust Deed Relevant under Sec. 11

In Commissioner of Income Tax, Kanpur v. Kamla Town Trust, 1996-7 SCC 349, it was held that the Order that directed rectification of Trust Deed would be relevant under Sec. 11 Evidence Act.

Judgment not inter partes admissible to find what lands involved

In State of Bihar v. Radha Krishna Singh, 1983-3 SCC 118, our Apex Court approved the view of the Calcutta High Court as under:

  • “129. In Gadadhar Chowdhury v. Sarat Chandra Chakravarty [AIR 1941 Cal 193 : (1940) 44 Cal WN 935 : 195 IC 412 : 72 Cal LJ 320] it was held that findings in judgments not inter partes are not admissible in evidence. In this connection a Division Bench of the Calcutta High Court observed as follows : ‘Though the recitals and findings in a judgment not inter partes are not admissible in evidence, such a judgment and decree are, in our opinion, admissible to prove the fact that a decree was made in a suit between certain parties and for finding out for what lands the suit had been decreed.’
  • 130. This, in our opinion, is the correct legal position regarding the admissibility of judgments not inter partes.” (Quoted in V. Kalyanaswamy v. L. Bakthavatsalam, 2020-9 SCALE. 367)

Criminal proceeding will have precedence over the Civil proceeding

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

  • “10. It is, however, now well settled that ordinarily a criminal proceeding will have primacy over the civil proceeding. Precedence to a criminal proceeding is given having regard to the fact that disposal of a civil proceeding ordinarily takes a long time and in the interest of justice the former should be disposed of as expeditiously as possible.” (relied on: M.S. Sheriff v. State of Madras, AIR 1954 SC 397.)

Also Read:

Relevancy of a Civil Case Judgment in a Criminal Case – Abstract Propositions

1. Independent evidence/finding needed. 

  • M.S. Sheriff v. State of Madras, AIR 1954 SC 397 (Vivian Bose, J.)
  • State of Rajasthan v. Kalyan Sundaram Cement Industries, AIR 1996 SC 2823,
  • K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87 (MB Shah, J.)
  • Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370  (G.P. Mathur, J.)
  • P. Swaroopa Rani v. M. Hari Narayana, (2008) 5 SCC 765,
  • Seth Ramdayal Jat v. Laxmi Prasad, (2009) 11 SCC 545 (SB Sinha, J.)
  • Radheshyam Kejriwal v. State of West Bengal, (2011) 3 SCC 581.

2. It is not correct to say – a judgment of a civil court shall be binding on the criminal court.  

  • K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87
  • Seth Ramdayal Jat v. Laxmi Prasad, (2009) 11 SCC 545 (SB Sinha, J.)

3. 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 (even) while dealing with the same subject-matter.

  • Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370,
  • Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, 2021-4 SCC 713 (R.F. Nariman, J.)

4.  Sections 41 to 43 of the Evidence Act deal with relevancy alone (Not conclusive except as provided in Section 41).

  • K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87
  • Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, 2021-4 SCC 713

5.  Criminal liability must be proved beyond reasonable doubt, while civil liability is based on preponderance of probabilities; different principles and different standards of proof.

  • Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370
  • P. Swaroopa Rani v. M. Hari Narayana, (2008) 5 SCC 765
  • Radheshyam Kejriwal v. State of West Bengal, (2011) 3 SCC 581.

Sec. 11 and 13, Evidence Act – Not Attracted to Sec. 43

In State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Syed Murtaza Fazalali, A. Varadarajan, V. Balakrishna Eradi, JJ.) it was held as under:

  • “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 sections 40 to 42, it must fulfil the conditions of s. 43. Otherwise, it cannot be relevant under s. 13 of the Evidence Act. The words “other provisions of this Act” cannot cover s. 13 because this section does not deal with judgments at all.“

The same principle also applies to Sec. 11.

It is Not Correct – Civil Decisions Bind Criminal Courts (and Converse)

Our Apex Court had (earlier) observed in V. M. Shah v. State of Maharashtra, (1995) 5 SCC 767, that the finding recorded by the criminal court stands superseded by the finding recorded by the civil court. A Two Judge Bench, in KG Premshanker v. Inspector of Police, doubted the correctness of V. M. Shah case and required reconsideration by a larger Bench. Hence, in KG Premshanker v. Inspector of Police, (2002) 8 SCC 87, the Three-Judge Bench (M.B. Shah, Bisheshwar Prasad Singh, H.K. Sema, JJ.) overruled V. M. Shah v. State of Maharashtra, holding that the finding recorded by a criminal court stands superseded by the finding recorded by the civil court is not correct.

KG Premshanker v. Inspector of Police, (2002) 8 SCC 87, also considered Karam Chand Ganga Prasad v. Union of India, 1970-3 SCC 694, wherein it was observed that the decisions of the civil court will be binding on the criminal courts, but the converse is not true. KG Premshanker v. Inspector of Police, (2002) 8 SCC 87, also overruled Karam Chand Ganga Prasad.

Referring KG Premshanker v. Inspector of Police (2002) 8 SCC 87, it is held in Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528 (Mukundakam Sharma, SB Sinha, JJ.) as under:

  • “It is, however, significant to notice a decision of this Court in M/s Karam Chand Ganga Prasad & Anr. etc. v. Union of India & Ors. [(1970) 3 SCC 694], wherein it was categorically held that the decisions of the civil court will be binding on the criminal courts, but the converse is not true, was overruled, stating:
    • “33. Hence, the observation made by this Court in V.M. Shah case 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 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 (M.S. Sheriff v. State of Madras, AIR 1954 SC 397) as well as Sections 40 to 43 of the Evidence Act.”
  • 11. Axiomatically, 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. We have noticed hereinbefore that Section 43 of the Evidence Act categorically states that 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 provisions of the Act. No other provision of the Evidence Act or for that matter any other statute has been brought to our notice.”

Sans Sec. 41 – 43, No Legal Principle – Findings of Civil Court Bind  Cril. Court

Except as provided in Sections 41 to 43 of the Evidence Act, there is no general legal principle that findings of a civil court are binding on a criminal court, and vice versa.

In Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited (Rohinton Fali Nariman, Navin Sinha, Indira Banerjee, JJ.) 2021-4 SCC 713, the principles in K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87: AIR 2002 SC 3372, are followed and held as under:

  • “18. 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 Sections 41 to 43 of the Evidence Act, 1872, dealing with the relevance of previous judgments in subsequent cases may be taken into consideration.”

It is further pointed out in Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, 2021-4 SCC 713 –

  • “Moreover, the judgment, order or decree passed in previous civil proceedings, if relevant, as provided under Sections 40 and 42 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.”

Judgment of a Court is relevant if only conditions u/s 40 to 43 are satisfied

The position of law is laid down in K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87: AIR 2002 SC 3372, as under:

  • “30. 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.”

Court has to Decide – To what extent previous Judgment is Binding

K.G. Premshanker v. Inspector of Police continued as under:

  • “31. 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.
  • 32. In the present case, the decision rendered by the Constitution Bench in M.S. Sheriff case 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”.
    • **Note: Sec. 42 Evidence Act pertains to public right. Illustration also makes it clear. It is obvious that the Apex Court referred to it only to show that the earlier decision may be relevant – to show “motive or as a fact in issue” (under Section 43).
    • That is, where the prosecution case is that ‘the civil court decree made the accused increase enmity towards the victim’, the previous civil court decision may be relevant under “some other provision” stated in Section 43 (as “motive or as a fact in issue“).
  • Sec. 42 Evidence Act reads as under:
    • “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.”

Case to be determined on Evidence, not on Previous Judgment

In Seth Ramdayal Jat v. Laxmi Prasad, AIR 2009 SC 2463, 2009 (11) SCC 545, it is pointed out that the observation in Shanti Kumar Panda v. Shakuntala Devi [(2004) 1 SCC 438] that a judgment of a civil court shall be binding on the criminal court (but the converse is not true) may not be entirely correct being in conflict with a Three-Judge Bench decision of the Apex Court in K.G. Premshanker vs. Inspector of Police and anr. [(2002) 8 SCC 87]. It is observed in Seth Ramdayal Jat v. Laxmi Prasad as under:

  • “Mr. Sharma also relies upon a decision of this Court in Shanti Kumar Panda v. Shakuntala Devi [(2004) 1 SCC 438] to contend that a judgment of a civil court shall be binding on the criminal court but the converse is not true. Therein it was held:
  • “(3) 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 Sections 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.”
  • With respect, the ratio laid down therein may not be entirely correct being in conflict with a Three-Judge Bench decision of this Court in K.G. Premshanker vs. Inspector of Police and anr. [(2002) 8 SCC 87].”

A judgment in rem (Section 43) is conclusive in criminal and civil proceedings

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

  • “Rendition of a final judgment which would be binding on the whole world being conclusive in nature shall take a long time. As and when a judgment is rendered in one proceeding subject to the admissibility thereof keeping in view Section 43 of the Evidence Act may be produced in another proceeding. It is, however, beyond any cavil that a judgment rendered by a probate court is a judgment in rem. It is binding on all courts and authorities. Being a judgment in rem it will have effect over other judgments. A judgment in rem indisputably is conclusive in a criminal as well as in a civil proceeding.” (Surinder Kumar v. Gian Chand, AIR 1957 SC 875, is relied on)

Civil or Criminal proceedings be stayed – Depends upon each case

In M.S. Sheriff v. State of Madras, AIR 1954 SC 397, the Constitution Bench considered whether a civil suit or a criminal case should be stayed in the event both are pending; and it was opined that the criminal matter should be given precedence.

 In P. Swaroopa Rani v. M. Hari Narayana @ Hari Babu, AIR 2008 SC 1884, it was held as under:

  • “13. 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 fact and circumstances of each case.” (Quoted in: Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528)

No Statutory Provision nor any Legal Principle – Findings in one treated as Final

Standards of proof required in the two proceedings are entirely different

In Iqbal Singh Marwah v. Meenakshi Marwah (R.C.Lahoti CJI, B.N. Agrawal, Hotoi Khetoho Sema, G.P. Mathur & P.K. Balasubramanyan, JJ.), 2005-4 SCC 370, (relying inter alia on M.S. Sheriff v. State of Madras, AIR 1954 SC 397) it was held as under:

  • “32. 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 standards of proof required in the two proceedings are 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.”

End Notes:

Sec. 11 Civil Procedure Code, 1908, reads as under:

  • Res Judicata -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.
  • Explanation I– The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
  • Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
  • Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
  • Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
  • Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
  • Explanation VI– Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
  • Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
  • Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.

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Sec. 65B

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