DHANJISHAW RATTANJI KARANI Vs. BOMBAY MUNICIPALITY

JUDGEMENT

(1.) The judgment first set out the pleadings and discussed issues of facts and proceeded : In the course of the evidence which was led on behalf of the plaintiff, Mr. Maneksha tendered the certified copy of the judgment of the Appeal Court dated September 2, 1941. Mr. Joshi objected to the whole of the judgment going in except the last paragraph thereof which contained the finding and the order of the Appeal Court. Mr. Maneksha relied upon a passage from Sarkar on Evidence, 6 Ed., at p. 124, which says that "in a suit for damages for malicious prosecution, the order of the Criminal court acquitting the plaintiff is admissible in evidence. Although the reasonings in the judgment and the conclusions drawn from them are not binding or conclusive, yet the judgment may be looked into for the purpose of seeing; what the circumstances were which resulted in the acquittal." He also cited the case of Rai Jung Bahadur V/s. Rai Gudor Sahoy (1897) 1 C.W.N. 537 in support of that proposition. In that case the order of the criminal Court acquitting the plaintiff had been put in in order to show that the proceedings had terminated in favour of the plaintiff. It does not appear, however, what were the contents of the order or whether it was possible to sever that part of the order which contained the judgment and the reasoning of the Court from the part of the order which contained the finding and the order of acquittal. The Court held that the order of the criminal Court acquitting the plaintiff was admissible in evidence, and with that proposition I have not the slightest quarrel. But when it is sought to be argued on the authority of that case that the whole of the judgment of the criminal Court would be admissible in evidence, I am not prepared to accept that argument. It would be only in those exceptional cases where the circumstances which resulted in the acquittal of the plaintiff became relevant that the judgment could be looked at by the Court, but ordinarily it would not be relevant at all and hence not admissible in evidence. Such circumstances might become relevant for instance where the conviction had been procured by the prosecutor by false or perjured evidence. But apart from such circumstances I am of opinion that the judgment or that part of the order which contained the judgment and the reasoning of the Court would not be relevant and admissible in evidence. Mr. Maneksha also relied upon the observations of our Appeal Court in Gulabchand V/s. Chunilal : "Now it appears to us that the existence of the judgment of course is a fact in issue, and the result of the judgment, the order of the Magistrate of acquittal, is also a fact in issue." In that case, on the record before the Subordinate Judge there was no satisfactory evidence of the absence of the plaintiff at the scene of the offence, but the lower appellate Court treated the judgment of the Magistrate and the evidence given before the Magistrate as evidence in the case and came to the conclusion that the plaintiff was not present at the time when the alleged offence was committed. The question before the Appeal Court was whether the lower appellate Court was right in so treating the judgment of the Magistrate, and the Appeal Court held that he was wrong in doing so. The Appeal Court discussed the applicability of Secs.43, 13 and 11 of the Indian Evidence Act; and cited with approval the following passage from Ameer Ali's Evidence Act, Note to Section 43 (p. 427): Therefore, if a party indicted for any offence has been acquitted, and sues the prosecutor for malicious prosecution, the record is conclusive evidence for the plaintiff to establish the fact of acquittal, although the parties are necessarily not the same in the action as in the indictment, but it is no evidence whatever that the defendant was the prosecutor, even though his name appear on the back of the bill, or of his malice or of want of probable cause; and the defendant, notwithstanding the verdict, is still at liberty to prove the plaintiff's guilt. It appears from the judgment that the Appeal Court considered the record of the case and the judgment of the Magistrate only relevant for the purpose of proving the fact of the acquittal, viz. the termination of the proceedings in favour of the plaintiff and for no other purpose whatever. This fortifies me in my conclusion that the judgment or that part of the order which contained the judgment and the reasoning of the Court would not be relevant and admissible in evidence. I am further fortified in this conclusion of mine by a ruling given by B.J. Wadia J. in, the case of Aminuddin Salebhai Tyabji V/s. Kurban Hussein Abdul Hussein (1937) O.C.J. suit No. 1906 Of 1932. That was an action for malicious prosecution and at the hearing counsel for the plaintiff tendered the judgment of the Chief Presidency Magistrate acquitting the plaintiff in evidence. Counsel for the defendant objected to its being admitted in evidence contending that the judgment was not relevant under the Indian Evidence Act. Counsel for the plaintiff contended that the judgment could be looked at by the Court, evidently relying on the authorities referred to by me above. The Court, however, upheld the objection and thereupon counsel for the plaintiff only tendered in evidence the order of the Chief Presidency Magistrate's Court, i.e. the last paragraph of the judgment.

(2.) Holding as I do that the judgment or that part of the order which contained the judgment and the reasoning of the Court would not be relevant and admissible in evidence except in the exceptional cases where the circumstances which resulted in the acquittal of the plaintiff were relevant-which was not the case here-I would have upheld Mr. Joshi's objection and admitted only the last paragraph of the judgment which contained the finding and order of the Appeal Court in evidence. Mr. Joshi, however, contended that he would rely upon the judgment of the Honorary Presidency Magistrates Court delivered on June 16, 1941, which convicted the plaintiff, as evidence on which I might find that there was reasonable and probable cause for the prosecution.

(3.) As I have already observed, 1 was not prepared to admit in evidence the whole of the judgment of the Appeal Court but only the last paragraph thereof which contained the finding and the order of the Appeal Court. My observations on the admissibility of the judgment would have been apposite if the judgment of the Appeal Court was the only piece of evidence which was going to be tendered in evidence before me. In so far however as Mr. Joshi intimated to me that he was going to rely on the judgment of the Magistrate as a part of his evidence, I was called upon to consider the question of the admissibility of the judgment of the Appeal Court having regard to that position taken up by Mr. Joshi.