The admissibility of civil court judgments in criminal proceedings and their relevance under the Evidence Act Sections 40 to 43.

1. 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 retrial. The case was retried 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, hut 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 Munsifs judgment was not merely relevant, but also conclusive proof of the respondents 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 respondents 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 respondents innocence, it is not apparent why a judgment the other way, should not be conclusive proof of his guilt.

2. What the Sessions Judge relied on was a judgment of the Bombay High Court, reported in In re Marker [1917] 41 Bom. 1. Marker was prosecuted for breach of trust in regard to certain sums of money. He had already been sued civilly for recovery of those sums, but the suit had been dismissed. A copy of the civil Courts judgment was produced before the Magistrate, who declined to admit it in evidence, holding, with reference to Sections 40 to 43, 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 Markers 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 Judges 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, Marker 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 the 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, 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 Under Section 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 thoroughl