Bullemma vs Golusu Appalanarasayya

This case has had a somewhat remarkable history. The petitioner charged the respondent, his wife and others with the offences of robbery and

defamation. Ultimately the respondent alone was convicted of the latter offence and his conviction was upheld by the Sessions Judge in appeal.

The petitioner then filed a suit for damages for defamation against the respondent and another person. A copy of the judgment confirming the

conviction was produced, but the District Munsif held, quite rightly, that he was not bound to follow it and that he had to arrive at a decision

independently on the evidence before him. In the result, he dismissed the suit. The next thing that happened was that this Court, in revision, set

aside the conviction and ordered a re-trial. The case was re-tried and ended again in the conviction of the respondent. The latter tried to get

admitted in evidence a copy of the judgment of the Civil Court, but the Magistrate rejected it, being of opinion that it was irrelevant for the purpose

of the trial. An appeal was again preferred, which was on this occasion successful. The Sessions judge set aside the conviction, holding that the

Munsif''s judgment was not merely relevant, but also conclusive proof of the respondent''s innocence. To the material sections of the Evidence Act,

which lay down the law as to the admissibility of judgments, he made no reference. It would be interesting to know how he would have dealt with

the matter, if the judgment had been one awarding damages against the respondent. We venture to doubt whether he would have gone so far as to

hold that it was conclusive proof of the respondent''s guilt and that the Magistrate should at once have convicted him on it, without any further

evidence. And yet, if a judgment one way might be conclusive proof of the respondent''s innocence, it is not apparent why a judgment the other

way should not be conclusive proof of his guilt.

What the Sessions judge relied on was a judgment of the Bombay High Court, reported in In re Markur ILR (1914) 41 B. 1. Markur was

prosecuted for breach of trust in regard to certain sums of money. He had already been sued civilly for the recovery of those sums, but the suit had

been dismissed. A copy of the Civil Court''s judgment was produced before the Magistrate, who declined to admit it in evidence, holding, with

reference to Sections 40 to 43 of the Evidence Act, that it was irrelevant and inadmissible. The matter was taken up to the High Court, which

decided, without any reference to those sections, that the judgment should have been admitted. The Judges did not actually say, in so many words,

that it was conclusive proof of Markur''s innocence; indeed, Heaton, J., conceded that it could not be used to prove or disprove the facts in

dispute in the case. But it is impossible not to agree in the Sessions Judge''s observation that the whole tenor of their argument indicates that, in

their opinion, it ought to have been treated as conclusive proof and that, on it, Markur should, at once, have been discharged by the Magistrate. If,

however, it was not to be used to prove or disprove the charge, it is difficult to see on what ground that Magistrate could have acted on it, as if it

were conclusive. With great respect, we cannot follow this decision. The matter, it seems to us, is governed by Sections 40 to 43 of the Evidence

Act and, if a judgment is not admissible under any of those sections, it must be left out of consideration altogether. The judgment in question was

not one to which Section 40 applied; for it was not a bar to the prosecution. Nor was it a judgment in rem u/s 41. It did not relate to a matter of a

public nature as required by Section 42. Nor was its existence a fact in issue in the prosecution or relevant under any other section of the Act--

Section 43. Heaton, J., put his decision on a quite different ground--the ground of public policy.

We cannot,"" he said, ""have Criminal Courts trying over again matters which have been thoroughly dealt with and finally decided by a Civil Court

of competent jurisdiction.

It is not easy to see how such a rule is to be enforced, unless the judgment of the Civil Court is, in law, a bar to or conclusive against the

prosecution. And what of cases in which the Criminal Court has decided the controversy first and convicted? Can we not have the Civil Court

trying over again a matter which has been decided by a Court of competent jurisdiction and coming to a different conclusion? The truth is that,

although the civil suit and the prosecution may be based on exactly the same cause of action, the parties are, strictly speak ing, not the same, the

burden of proof is differently placed and different considerations may come in. The result may, there-lore, be a conflict in decision. For instance, A

is tried for murdering B, but acquitted, because a confessional statement by him is, in a criminal trial, inadmissible in evidence. C, B''s widow, sues

him for damages for the murder and gets a decree, the confessional statement being admissible in a civil suit. In the matter of defamation, again,

there is a good deal of difference between a suit for damages and a criminal prosecution. The prosecution is governed by the provisions of the

Indian Penal Code, the'' suit by the English law of slander and libel. A defence which is open to the accused in the prosecution is not open to him

as the defendant in the suit. The question of special damage may arise in the suit, but cannot arise in the prosecution. It has often been said in this

Court that, where a civil suit and a criminal complaint have been filed, which raise the same issues between the same parties, the hearing of the

complaint should be stayed until the suit has been decided. And this has been put on the ground that it will avoid a possible conflict in decision. Our

brother Jackson, J., has pointed out in a judgment, in which we entirely concur, Gnanasigawani Nadar v. Vedamuthn Nadar (1926) 52 M.L.J. 80,

that the risk of such a conflict is one that is inherent in the division of causes into criminal and civil. The judgment of neither Court is binding on the

other and each must decide the cause on the evidence before it. If they arrive at different conclusions, it is regrettable, but unavoidable. The ruling

in In re Markur ILR (1914) 41 B. 1 was relied on in another case in this Court in In re P.S. Velayutham Chetty (1922) 72 I.C. 172. The headnote

states that the Bombay ruling was followed. The fact, however, remains that Krishnan, J., disposed of the Criminal Revision Petition on the merits

and not on the decision in the civil proceeding. What he said was that, if he accepted the civil judgment as the basis of his judgment in the criminal

case, he would have to find that the conviction was wrong. What he refrained from saying was that it could be accepted as the basis of his

judgment. The headnote therefore seems to be inaccurate. If he had been satisfied that the Bombay ruling was unimpeachably correct he could and

would have allowed the revision petition without considering the evidence in the criminal case.

It is not, we think, necessary to refer to any other unilings. We are satisfied that the judgment relied on by the Sessions Judge was not admissible

in evidence under any of the relevant sections of the Evidence Act. It is a judgment in personam and not in rem and is not conclusive proof, in the

subsequent judicial proceeding, of anything material. The order of the Sessions Judge must be set aside. He will dispose of the Criminal Appeal on

its merits.