IN THE HIGH COURT OF DELHI CM(M) No. 1011/2007 # Daya Sapra ........ Petitioner ! through: Mr. Sunil Satyarathi, Advocate Mr. Raman Gandhi, Advocate VERSUS $ Vishnu Dutt Sharma ........ Respondent ^ through: Mr. J.S.Kanwar, Advocate RESERVED ON: 03.12.2007 % DATE OF DECISION: 14.12.2007 CORAM: * Hon'ble Mr.Justice Pradeep Nandrajog 1. Whether reporters of local papers may be allowed to see the judgment? Y 2. To be referred to the Reporter or not? Y 3. Whether judgment should be reported in Digest? Y : PRADEEP NANDRAJOG, J. * 1. An interesting question of law arises for consideration in the instant petition. It concerns the inherent power which a court of justice must possess to prevent misuse of its procedures in relation to an action initiation whereof may apparently be not inconsistent with the literal application of the law but otherwise would be manifestly unjust and unfair to the defendant amounting to an abuse of the process of law. In turn the question encompasses the scope of the principle of res CM(M) No. 1011/2007 Page 1 of 30 judicata: Is Section 11 of the Code of Civil Procedure 1908 exhaustive of the sweep of res judicata? How is the principle of res judicata impacted by Sections 40 to 43 of the Indian Evidence Act 1872? Do the inherent powers of the court permit it to striffle a suit, cause whereof was an essential part of a prosecution for an offence under Section 138 of the Negotiable Instruments Act 1881 in particular when the suit is sought to be litigated with the same quality and quantity of evidence as formed the basis of the prosecution for the offence under Section 138 of the Negotiable Instruments Act 1881? 2. Explaining res judicata and its twin effect, George Spencer Bower in his treaties “The Doctrine of Res Judicata” IInd Edition, page 1, has to say:- “I. In English jurisprudence a res judicata, that is to say a final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation, and over the parties thereto, disposes once and for all of the matters decided, so that they cannot afterwards be raised for re-litigation between the same parties or their privies. The effect of such a decision is two-fold. Parties estopped from averring to the contrary 2. In the first place, the judicial decision estops or precludes any party to the litigation from disputing, against any other party thereto, in any later litigation, the correctness of the earlier decision in law and fact. The same issue cannot be raised again between them, and this principle extends to all matters CM(M) No. 1011/2007 Page 2 of 30 of law and fact which the judgment, decree, or order necessarily established as the legal foundation or justification of the conclusion reached by the Court. Transit in rem judicatam 3. In the second place, by virtue of the decision the right or cause of action set up in the suit is extinguished, merging in the judgment which is pronounced. Transit in rem judicatam. The result is that no further claim may be made upon the same cause of action in any subsequent proceedings between the same parties or their privies.” 3. The term 'res judicata' and the term 'estoppel by record' have at times been used (indiscriminately if I may beg to use the expression) to signify either, or both, resultant effect of binding nature of a final judicial decision pronounced by a court of competent jurisdiction. Spencer Brown however explains that it would be advisable to distinguish the two as: estoppel per rem judicatam; and, transit in rem judicatam. 4. Two reasons support the jurisprudence of res judicata. First the general interest of the society/community in termination of disputes by according finality and conclusiveness to judicial decisions. Secondly to protect the right of individuals from vexatious multiplication of suits and prosecutions at the instance of an opponent. The former is public policy and is succinctly expressed in the maxim 'interest (or expedit) reipublicae ut sit finis litium'. The latter is private CM(M) No. 1011/2007 Page 3 of 30 justice and is reflected in the maxims 'nemo debet bis vexari pro una et eadem causa' and in connection with criminal litigation 'nemo debet bis vexari pro uno et eodem delicto'. 5. In para 13 of his publication, George Spencer Bower has following to write:- “13. The applicability of the rule both to civil and criminal proceedings, both to decisions of courts of record and to those of other judicial tribunals, and both to English and to foreign res judicatae, is justified by, and rests upon, the same theoretical basis of public policy and private justice.” 6. Since, in its applicability, the twin aspects of res judicata striffle the second action, the identity of the subject matter of the previous decision assumes significance. On the identity of the subject matter, in Chapter VI George Spencer Bower opines:- “184. It is of the essence of all estoppels that there shall be two statements of the same fact exhibiting inter se an essential contradiction or discrepancy; the result of the application of the doctrine of estoppel is always that the earlier statement is to be taken as the truth, precluding an assertion of the later. There can be no estoppel per rem judicatam unless a substantial discrepancy is shown to exist between the res judicata and the case set up in the subsequent proceedings; and no such discrepancy can be shown to exist unless these two relate to the same subject matter. 185. It follows that, in strictness, the burden is on the party setting up the estoppel of alleging and establishing this identity of subject-matter - that is to say, that his CM(M) No. 1011/2007 Page 4 of 30 opponent is seeking to put in controversy and re-agitate some question of law, or issue of fact, which is the very same question or issue which has already been the subject of a final decision between the same parties by a tribunal of competent jurisdiction. Where there are no pleadings or particulars, the identity of the subject matter of the two decisions must be established by evidence.” 7. A decision imports a two fold judicial act. In relation to the grant or refusal of a claim prayed for, it settles the question of law between the parties and additionally settles issues of fact between the parties. 8. In relation to the binding nature of the decision qua issues of fact between the parties it becomes imperative to view the previous action and the cause on which it is laid for only those issues of law and fact which are its essential foundation, without which the decision cannot stand, are alone capable of being used as the basis of res judicata between the parties when a second action is set up. Coleridge J, in the decision reported as R. V. Hartington, Middle Quarter (Inhabitants) (1855) 4 E & B 780 put the point with precision and lucidity when he wrote:- “the judgment concludes not merely to the point actually decided, but as to matter which it was necessary to decide and which was actually decided, as the groundwork of the decision itself, though not then directly the point at issue.................... is conclusive not merely of the facts directly decided but of those facts which are necessary steps to the decision.......... are so cardinal to it that CM(M) No. 1011/2007 Page 5 of 30 without them it cannot stand. Unless they are necessary steps, the rule fails and they are collateral facts.” 9. Sankey L.J. In the report published as Jaeger Co. Ltd. Vs. Jaeger (1929) 46 RPC 336 expressed as under:- “Every judgment is conclusive proof as against parties and privies of facts directly in issue in the case actually decided by the court and appearing from the judgment itself to be the ground on which it was based.” 10. Section 11 of the Code of Civil Procedure, 1908 has been held to be not the sole repository and exhaustive of the principle of res judicata. They decisions to said effect are numerous and I need not catalogue them. Suffice would it be to guide the anxious reader to AIR Commentaries by W.W.Chitaley & V.B.Bakhale on “The Code of Civil Procedure” under Note 3. 11. Applicability of the principles of res judicata to both civil and criminal proceedings have been recognised by George Spencer Bower. (Refer para 5 above.) Decision by courts of competent criminal jurisdiction have been held to be res judicata in subsequent civil actions in New Zealand. In the decision by Chapman J reported as Banks Vs. Wilson (1910) 29 N.2 L.R. 832 where a magistrate had dismissed, on merits, a complaint made under sections 9 and 10 of the Impounding Act 1908 asking for an award of damages for an alleged illegal impounding of cattle, the claimant was thereby held estopped for subsequently suing in a civil court for damages. Estoppel CM(M) No. 1011/2007 Page 6 of 30 per rem judicatam was applied. 12. The decision of the House of Lords 1982 A.C. 529 Hunter Vs. Chief Constable of the West Midlands Police & Ors. also affirmed the applicability of principle of res judicata in a subsequent civil action where the previous decision was of a competent court at a criminal trial. 13. The decision is interesting as it gave a broader horizon to what constitutes an abuse of the process of the court and used the first principle on which res judicata is founded i.e. public policy to hold that if facts warrant, public policy can be applied at a latter civil action in relation to a prior decision at a criminal trial to strike off a claim under inherent powers of the court. 14. The facts may be noted as reproduced in the head note in Hunter's case. 15. After bomb explosions in two Birmingham public houses on November 21, 1974 had killed 21 people and injured 161 others, the appellant and four others, Irish Republican supporters, were arrested by the Lancashire police and taken to Morecambe Police Station. On November 22, members of the Birmingham police interviewed the five men, and one of them made a signed statement. They were then taken to a Birmingham police station, where a sixth man was also taken CM(M) No. 1011/2007 Page 7 of 30 after his arrest at 10:30 p.m. that night. On November 23, at the Birmingham police station, three more of the men made signed statements and the two others made oral confessions regarding their parts in planting the bombs that had caused the explosions. On November 24, all six men were photographed, and the photograph of one man showed a mark that might have been a bruise under the right eye. On Monday, November 25, the six men appeared before a magistrates' court, and, although three of them complained to the solicitors assigned to them of assaults by the police, no marks were noticed on their faces save in the case of the man with black eye, which he said had been caused by a fall. After formal evidence, the six men were remanded in custody and taken to Winson Green Prison. When, three days later, on November 28, they again appeared at the magistrates' court, their faces showed injuries that indicated they had been seriously assaulted. They were again remanded in custody, and first the prison governor and then the Home Office held an inquiry as to how their injuries had been sustained. At the trial of the six men on 21 charges of murder, their counsel objected to the admission in evidence of their statements, which were an essential part of the prosecution case, on the ground that they had been induced by violence and threats by the police. After an eight day “trial CM(M) No. 1011/2007 Page 8 of 30 within a trial” (voir dire) in the absence of the jury, during which the police officers and the six men gave evidence, Bridge J. held that the prosecution had discharged the burden of proving beyond reasonable doubt that the men had not been assaulted by the police and that the statements had been voluntary and should be admitted in evidence. The trial then continued before the jury, and the six men again alleged that their statements had been induced by violence by the police. Bridge J. warned the jury that, if their allegations were, or might reasonably be, true, the statements were worthless. The jury convicted all six, and Bridge J. sentenced them to imprisonment for life. Leave to appeal was refused by the Court of Appeal (Criminal Division) on March 30, 1976. The six men issued writs against the chief constables of the West Midlands and the Lancashire police and also against the Home Office claiming damages against the police for injuries caused by assaults, which were the same allegations as had been made before Bridge J. at the voir dire and trial, and also against the Home Office in respect of assaults by prison officers and prisoners while they had been in Winson Green Prison. They relied, inter alia, on new medico-forensic evidence as to the photographs taken on November 24, which were said to reveal that some injuries had been sustained prior to that date, and statements CM(M) No. 1011/2007 Page 9 of 30 from the three prison officers that the six men had been bruised and injured on their arrival at the prison. The chief constables applied for the statements of claim against them to be struck out under R.S.C., Ord. 18, r. 19 and under the inherent jurisdiction of the court. Cantley J. dismissed the applications, but the Court of Appeal allowed an appeal by the chief constables and ordered that the statements of claim be struck out. 16. Dismissing the appeal against the decision of the Court of Appeal, the House of Lords speaking through Lord Diplock held: “That where a final decision had been made by a criminal court of competent jurisdiction it was a general rule of public policy that the use of a civil action to initiate a collateral attack on that decision was an abuse of the process of the court; and that such fresh evidence as the plaintiff sought to adduce in his civil action fell far short of satisfying the test to be applied in considering whether an exception to that general rule of public policy should be made, which, in the case of a collateral attack in a court of coordinate jurisdiction, was whether the fresh evidence entirely changed the aspect of the case.” 17. At page 539, Lord Diplock noted that in the civil action, on receipt of summons, the police sought the statement of claim to be struck of by pleading that what had happened at the murder trial gave rise to an estoppel per rem judicatam of a kind which in recent years it had been found convenient to describe as “issue estoppel”. The fact that even if what had CM(M) No. 1011/2007 Page 10 of 30 happened did not create as against the plaintiff in favour of the police what could be strictly classified as “issue estoppel” it nevertheless made the initiation of the present civil action against the police an abuse of the process of the court. 18. Noting thereafter that the trial judge Cantley J. dismissed the application for a summary rejection of the claim holding that estoppel by judgment was not attracted but Court of Appeal held to the contrary, at page 540 Lord Diplock held:- “Nevertheless it is my own view, which I understand is shared by all your Lordships, that it would be best, in order to avoid confusion, if the use of the description “issue estoppel” in English law, at any rate (it does not appear to have been adopted in the United States), were restricted to that species of estoppel per rem judicatam that may arise in civil actions between the same parties or their privies, of which the characteristics are stated in a judgment of my own in Mills v. Cooper (1967) 2 Q.B. 459, 468-469 that was adopted and approved by his House in Reg. v. Humphrys (1977) A.C. 1, the case in which it was also held that “issue estoppel” had no place in English criminal law.” 19. But it was held that the civil action was an abuse of the process of the court. Reasoning is to be found in the following passages :- “My Lords, collateral attack upon a final decision of a court of competent jurisdiction may take a variety of forms. It is not surprising that no reported case is to be found in which the facts present a precise parallel with those of the instant case. But the principle applicable is, in my view, simply and clearly stated in those passages from the CM(M) No. 1011/2007 Page 11 of 30 judgment of A.L.Smith L.J. in Stephension v. Garnett (1989) 1 Q.B. 677, 680-681 and the speech of Lord Halsbury L.C. in Reichel v. Magrath (1889) 14 App. Cas. 665, 668 which are cited by Goff L.J. in his judgment in the instant case. I need only repeat an extract from the passage which he cites from the judgment of A.L.Smith L.J.: “.....the court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shown that the identical question sought to be raised has been already decided by a competent court.” The passage from Lord Halsbury's speech deserves repetition here in full: “.....I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.” x x x x x My Lords, this is the first case to be reported in which the final decision against which it is sought to initiate a collateral attack by means of a civil action has been a final decision reached by a court of criminal jurisdiction. x x x x x This raises a possible complication that the onus of proof of facts that lies upon the prosecution in criminal proceedings is higher than that required of parties to civil proceedings who seek in those proceedings CM(M) No. 1011/2007 Page 12 of 30 to prove facts on which they rely. Thus a decision in a criminal case upon a particular question in favour of a defendant, whether by way of acquittal or a ruling on a voir dire, is not inconsistent with the fact that the decision would have been against him if all that were required were the civil standard of proof on the balance of probabilities.” 20. Referring to the probative weight of evidence and where the subsequent civil action was predicated on the same evidence as was considered at the criminal trial, Lord Diplock concluded the decision as under :- “There remains to be considered the circumstances in which the existence at the commencement of the civil action of “fresh evidence” obtained since the criminal trial and the probative weight of such evidence justify making an exception to the general rule of public policy that the use of civil actions to initiate collateral attacks on final decisions against the intending plaintiff by criminal courts of competent jurisdiction should be treated as an abuse of the process of the court. I can deal with this very shortly, for I find myself in full agreement with the judgment of Goff. L.J. He points out that on this aspect of the case Hunter and the other Birmingham Bombers fail in limine because the so-called “fresh evidence” on which they seek to rely in the civil action was available at the trial or could be reasonable diligence have been obtained then. He examines also the two suggested tests as to the character of fresh evidence which would justify departing from the general policy by permitting the plaintiff to challenge a previous final decision against him by a court of competent jurisdiction, and he adopts as the proper test that laid down by Earl Cairns L.C. in Phosphate Sewage Co. Ltd. v. Molleson (1879) 4 App. Cas. 801, 814, CM(M) No. 1011/2007 Page 13 of 30 namely that the new evidence must be such as “entirely changes the aspect of the case.” This is perhaps a little stronger than that suggested by Denning L.J. In Ladd v. Marshall (1954) 1 W.L.R. 1489, 1491 as justifying the reception of fresh evidence by the Court of Appeal in a civil action, viz., that the evidence “... would probably have an important influence on the result of the case, though it need not be decisive;....” The latter test, however, is applicable where the proper course to upset the decision of a court of first instance is being taken, that is to say, by appealing to a court with jurisdiction to hear appeals from the first-instance court and whose procedure, like that of the Court of Appeal (Civil Division), is by way of a rehearing. I agree with Goff. L.J. that in the case of collateral attack in a court of coordinate jurisdiction the more rigorous test laid down by Earl Cairns is appropriate. I need not repeat Goff L.J.'s critical examination of the “fresh evidence” which Hunter sought to adduce in his civil action for assault. It fell far short of satisfying either test. I would dismiss this appeal.” 21. Thus where:- a. The facts were directly in issue and formed the groundwork of the decision, in that, they were necessary steps at the adjudication of the criminal trial; b. The facts were decided by the Criminal court; c. The facts appear from the judgment itself to be the ground on which it was based; and d. The quality and quantity of the evidence at the civil CM(M) No. 1011/2007 Page 14 of 30 trial intended to be led was the same as at the criminal trial; would be the test to be applied and satisfied before the civil action can be thrown out as an abuse of the process of the court. 22. The interplay of Sections 40 to 42 of the Indian Evidence Act 1872 was considered by their Lordships of the Hon'ble Supreme Court in the decision reported as (2002) 8 SCC 87 K.G.Premshanker Vs. Inspector of Police & Anr. In para 30 and 31 it was held:- “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 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. 31. Further, the judgment, order or decree passed in a previous civil proceedings, if relevant, as provided under Section 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 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 CM(M) No. 1011/2007 Page 15 of 30 its title and to recover