Relevancy of Judgments under Sections 34 to 38 of the Bharatiya Sakshya Adhiniyam, 2023: Judgments in Rem, Res Judicata, Double Jeopardy and Fraud

A judgment is somebody else's conclusion about somebody else's dispute. As a general rule it proves nothing in a later case, because the parties to the later case were not heard in the earlier one. Sections 34 to 38 set out the exceptions. Four classes of judgment are relevant — those that bar a second proceeding, those pronounced in the four jurisdictions that determine status, those concerning matters of public interest, and those whose existence is itself a fact in issue. Everything else is irrelevant, and Section 38 permits even a relevant judgment to be attacked for fraud, collusion or want of jurisdiction.

1. The General Rule

The starting point is Section 37, which is easier to grasp before the exceptions.

Section 37, BSA — Judgments, orders or decrees other than those mentioned in Sections 34 to 36, when relevant

Judgments, orders or decrees, other than those mentioned in Sections 34, 35 and 36, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Adhiniyam.

The rule rests on the same principle as res inter alios acta: a person is not to be prejudiced by proceedings to which he was not a party and in which he had no opportunity to be heard. A judgment between A and B decides the rights of A and B, and it decides nothing at all about C, however carefully the earlier court examined the question.

The two saving clauses in Section 37 are important in practice. The existence of a judgment is often itself a fact in issue — in a suit for malicious prosecution, in proceedings for contempt, in a claim founded on a decree, or where the question is whether a person has been convicted. And a judgment may be relevant under another provision: as a transaction under Section 11 where a right or custom is in question, as conduct under Section 6(2), or as an admission where a party made one in the earlier proceeding.

⚠ Existence and correctness are different questions

Section 37 permits proof that a judgment exists. It does not make the findings in that judgment evidence of the facts found. In a suit for malicious prosecution the plaintiff proves that he was prosecuted and acquitted; the acquittal establishes the fact of acquittal, not the fact that he was innocent. Confusing the two is the commonest error in this area, and it is what Section 37 is designed to prevent.

2. Section 34 — Judgments Barring a Second Suit or Trial

Section 34, BSA — Previous judgments relevant to bar a second suit or trial

The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit, or to hold such trial.

Section 34 is a provision of evidence serving a doctrine of substantive and procedural law. It does not say when a second proceeding is barred; that is determined elsewhere. What it does is make the earlier judgment relevant so that the bar can be proved.

Two great doctrines operate through it. On the civil side, res judicata under Section 11 of the Code of Civil Procedure, 1908 prevents a court from trying a suit in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, and has been heard and finally decided. On the criminal side, the rule against double jeopardy prevents a person once convicted or acquitted from being tried again for the same offence.

3. Res Judicata and the Relevancy of Judgments

Res judicata and Section 34 are frequently spoken of as though they were the same thing. They are not, and the distinction is worth keeping.

Res judicata is a rule of law contained in Section 11 of the Code of Civil Procedure. It determines that a court shall not try a particular suit or issue. Section 34 is a rule of evidence. It makes the earlier decree relevant so that the party pleading the bar may prove it. The bar exists whether or not the Adhiniyam says anything; Section 34 simply supplies the means of establishing it.

📖 Satyadhyan Ghosal v. Deorajin Debi, AIR 1960 SC 941

Held: The principle of res judicata is based on the need of giving finality to judicial decisions. What it says is that once a matter is finally decided by a competent court, no party can be permitted to reopen it in a subsequent litigation. In the absence of such a rule there will be no end to litigation and the parties would be put to constant trouble, harassment and expense. The principle applies as between two stages in the same litigation as well as between two separate proceedings.

Ratio: The classic statement of the rationale, and the authority for the proposition that the principle operates within a single litigation as well as between successive suits.

📖 Ishwar Dutt v. Land Acquisition Collector, (2005) 7 SCC 190

Held: The principle of res judicata is a procedural provision founded on the maxims that no man should be vexed twice for the same cause, that it is in the interest of the State that there should be an end to litigation, and that a judicial decision must be accepted as correct. The doctrine has no application unless the matter directly and substantially in issue in the subsequent proceeding was directly and substantially in issue in the former proceeding between the same parties, litigating under the same title, before a competent court, and was heard and finally decided.

Ratio: The conditions of the doctrine, and the maxims on which it rests.

The conditions of Section 11 of the Code of Civil Procedure are cumulative: the same matter directly and substantially in issue; the same parties or those claiming under them; litigation under the same title; a court competent to try the subsequent suit; and a matter heard and finally decided. Where any one fails, the bar does not operate, and the earlier decree is left with whatever relevance it has under Sections 35 to 37.

4. Double Jeopardy and Previous Judgments

The criminal counterpart operates on three levels — a constitutional guarantee, a statutory bar, and a judge-made doctrine of issue estoppel — and Section 34 makes the earlier judgment relevant to establish each.

Article 20(2), Constitution of India

No person shall be prosecuted and punished for the same offence more than once.

The statutory provision is wider than the constitutional one. The Bharatiya Nagarik Suraksha Sanhita, 2023 carries forward the rule, formerly in Section 300 of the Code of Criminal Procedure, 1973, that a person once convicted or acquitted of an offence by a competent court shall not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge might have been made. Section 26 of the General Clauses Act, 1897 supplies a further rule, that where an act constitutes an offence under two or more enactments the offender may be prosecuted under either but shall not be punished twice for the same offence.

📖 Maqbool Hussain v. State of Bombay, AIR 1953 SC 325

Held: The protection under Article 20(2) is available only where there has been a prosecution and punishment before a court of law or a judicial tribunal. Proceedings before customs authorities resulting in confiscation of goods are not a prosecution before a court or judicial tribunal, and a subsequent criminal prosecution for the same act is therefore not barred.

Ratio: Article 20(2) requires a prior prosecution before a court or judicial tribunal. Departmental or administrative proceedings do not attract the guarantee.

📖 State of Bombay v. S.L. Apte, AIR 1961 SC 578

Held: To operate as a bar, the second prosecution and the consequential punishment must be for the same offence — that is, an offence whose ingredients are the same. The crucial requirement is that the offences should be identical. Where the ingredients of the two offences are distinct, a prosecution for the second is not barred, although both arise from the same transaction.

Ratio: Identity of ingredients, not identity of facts, is the test under Article 20(2).

Beyond these lies the doctrine of issue estoppel, which is narrower than double jeopardy and operates differently. Where a fact has been distinctly put in issue and found in favour of the accused at a previous trial, the prosecution is not permitted to reagitate that finding in a subsequent trial, even for a different offence. The doctrine bars the reopening of a finding rather than the trial itself, and it was recognised in Indian law in Pritam Singh v. State of Punjab, AIR 1956 SC 415, following the decision of the Privy Council in Sambasivam v. Public Prosecutor, Federation of Malaya, [1950] AC 458.

5. Section 35 — Judgments in Rem

Section 35, BSA — Relevancy of certain judgments in probate, matrimonial, admiralty or insolvency jurisdiction

A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.

Such judgment, order or decree is conclusive proof — that any legal character which it confers accrued at the time when it came into operation; that any legal character to which it declares any such person to be entitled accrued to that person at the time declared; that any legal character which it takes away from any such person ceased at the time declared; and that anything to which it declares any person to be so entitled was the property of that person at the time so declared.

Section 35 is the provision that gives statutory form to the concept of a judgment in rem. It is confined to four jurisdictions, and within them a judgment binds not merely the parties but everybody. The reason is that these jurisdictions determine status, and a status cannot sensibly be true as between two people and false as between two others. A man cannot be validly married for one purpose and unmarried for another, or an insolvent as against one creditor and solvent as against the rest.

The section is examined separately, along with the distinction between judgments in rem and in personam.

6. Section 36 — Judgments Relating to Matters of a Public Nature

Section 36, BSA — Relevancy and effect of judgments, orders or decrees, other than those mentioned in Section 35

Judgments, orders or decrees other than those mentioned in Section 35 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.

Section 36 occupies the middle ground between the conclusive judgments of Section 35 and the irrelevant judgments of Section 37. A judgment about a public right — the public character of a road, the right of a community to worship at a shrine, a customary right of way, the existence of a right of ferry — is relevant against strangers, because the subject matter concerns the public at large, and the earlier court's conclusion is a piece of evidence about it.

The concluding words matter as much as the opening ones. Such a judgment is not conclusive. It goes into the scale with the other material and may be displaced. This is a genuine middle position, and it corresponds to the treatment of public rights elsewhere in the Adhiniyam: Section 11 makes transactions and instances relevant, Section 26(d) makes the opinion of a deceased person relevant, Section 30 makes official maps relevant, and Section 36 adds the earlier judicial conclusion — none of them conclusive, all of them going into the assessment.

7. Section 38 — Fraud, Collusion and Incompetency

Section 38, BSA — Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved

Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Section 35, 36 or 37, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

Section 38 is the safety valve. A judgment in rem binds the world, and a judgment barring a second suit shuts a litigant out entirely; the law would be intolerable if such judgments could not be attacked where they were procured dishonestly or pronounced by a court with no authority to pronounce them.

Three grounds are available, and each is distinct.

Want of competence goes to jurisdiction. A judgment delivered by a court that lacked jurisdiction over the subject matter, the parties or the territory is a nullity, and its want of authority may be shown whenever and by whomsoever it is relied upon. This is not an appeal against the judgment; it is a demonstration that there was never a judgment at all in the eye of the law.

Fraud means that the judgment was obtained by deceiving the court — by suppressing material facts, by fabricating documents, by concealing the existence of parties who ought to have been served, or by any of the many ways in which a court can be misled into pronouncing what it would not otherwise have pronounced.

Collusion covers the case where the proceeding was not a genuine contest at all. Where two parties agree to litigate a question with a predetermined outcome, in order to manufacture a judgment usable against a third person, the resulting decree is worthless against him and he may show the collusion.

📖 S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1

Held: A judgment or decree obtained by playing fraud on the court is a nullity and non est in the eye of law. Such a judgment or decree — by the first court or by the highest court — has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ, or even in collateral proceedings. A litigant who approaches the court is bound to produce all documents executed by him which are relevant to the litigation; if he withholds a vital document in order to gain advantage, he is guilty of playing fraud on the court as well as on the opposite party.

Ratio: The leading modern authority. Fraud vitiates everything, and a judgment procured by it may be attacked in any proceeding.

📖 A.V. Papayya Sastry v. Government of Andhra Pradesh, (2007) 4 SCC 221

Held: It is settled that a judgment, decree or order obtained by fraud has to be treated as a nullity, whether by the court of first instance or by the final court. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings. Fraud avoids all judicial acts, ecclesiastical or temporal, and no court is bound to give effect to a decision obtained by deceiving it.

Ratio: Restates and confirms the principle, and makes clear that it applies to the judgments of the highest court as much as to those of the lowest.

⚠ Section 38 is not an appeal in disguise

The section permits a judgment to be shown to be a nullity or to have been procured dishonestly. It does not permit a party to reopen a judgment on the ground that the earlier court decided the facts wrongly, or misapplied the law, or reached a conclusion that the present court would not have reached. Fraud means fraud on the court, not merely that the other side succeeded on evidence that turns out to have been unsatisfactory. Where the complaint is that the earlier decision was wrong, the remedy was an appeal, and Section 38 supplies no substitute for one.

8. The Five Sections Together

Section	What it covers	Effect	Binds whom
34	A judgment which by law prevents a court from taking cognizance of a suit or holding a trial	Relevant to establish the bar. The bar itself is created by other law — Section 11 CPC, Article 20(2), the BNSS	The parties to whom the bar applies
35	Final judgments in probate, matrimonial, admiralty or insolvency jurisdiction conferring, declaring or taking away legal character	Conclusive proof of the matters specified	Everybody — a judgment in rem
36	Judgments relating to matters of a public nature	Relevant but not conclusive	Everybody, but only as evidence
37	All other judgments	Irrelevant, unless the existence of the judgment is a fact in issue or is relevant under another provision	Nobody, as to the findings
38	Attack on a relevant judgment	Permits proof of want of competence, fraud or collusion	Available to any party against whom the judgment is proved

9. The Position Stated Shortly

The general rule is irrelevance. Section 37 makes judgments other than those in Sections 34 to 36 irrelevant, because a person should not be prejudiced by a proceeding to which he was not a party.
Existence and findings are different. A judgment may be proved to show that it exists without its findings becoming evidence of the facts found.
Section 34 is a rule of evidence serving rules of law. It makes the earlier judgment relevant so that res judicata or double jeopardy may be proved; it does not create either bar.
Res judicata requires five conditions under Section 11 of the Code of Civil Procedure, and failure of any one defeats the plea.
Double jeopardy operates on three levels — Article 20(2), the corresponding provision of the BNSS, and the judge-made doctrine of issue estoppel — and each is proved by making the earlier judgment relevant under Section 34.
Article 20(2) requires identity of ingredients, not merely of facts, and requires a previous prosecution before a court or judicial tribunal.
Section 35 judgments bind the world, because they determine status, which cannot vary between persons.
Section 36 judgments are relevant but not conclusive, and occupy the middle ground.
Section 38 permits attack for want of competence, fraud or collusion, but is not a substitute for an appeal.

10. Related Topics and Provisions

Topic or provision	Connection
Judgment in Rem and Judgment in Personam	The distinction on which Sections 35 and 37 rest
Judgments in Probate, Matrimonial, Admiralty and Insolvency Jurisdiction — Section 35	The four jurisdictions in detail, and the conclusive effect
Existence of Right or Custom — Section 11	Public rights, where a Section 36 judgment is one item among several
Statements Relating to Public Right or Custom — Section 26(d)	The neighbouring provision on public rights
Section 11, Code of Civil Procedure, 1908	Res judicata — the rule of law that Section 34 enables a party to prove
Article 20(2), Constitution of India	Protection against being prosecuted and punished twice for the same offence
Section 26, General Clauses Act, 1897	Where an act is an offence under two enactments, prosecution under either but no double punishment
Sections 74 to 77, BSA	Public documents and proof by certified copies, by which judgments are ordinarily proved