Previous judgments relevant to bar a second suit or trial
Section 40 of the Indian Evidence Act, 1872 deals with 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. The Act came into force on 01 Sep 1872. Repealed by section 170 of the Bharatiya Sakshya Adhiniyam, 2023 (47 of 2023) with effect from 1 July 2024, but conduct before that date is still charged, tried and appealed under it.
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 40, The Indian Evidence Act, 1872 (Act 1 of 1872).
Now in the Bharatiya Sakshya Adhiniyam
BSA 34 Previous judgments relevant to bar a second suit or trial Text carried over almost unchanged 100%
Measured by comparing the text of the two provisions, not taken from an official correspondence table — there is no machine-readable one. See both texts side by side before relying on it.
Both regimes are live. The repealed enactment still governs what happened while it was in force. We never redirect one to the other.
Cross-references
Extracted from the operative text of the enactments themselves. Every destination below exists in our corpus.
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Vishnu Dutt Sharma vs Daya Sapra
Court's Decision & Legal Precedent
The principle of res judicata and the concept of abuse of process of law do not operate to bar continuation of a civil suit merely because the accused has been acquitted in a related criminal proceeding arising from the same transaction. A judgment in a criminal proceeding, even if it results in acquittal, does not have binding effect on a parallel civil suit as the standards of proof, burden of proof, causes of action, and legal issues are fundamentally different between criminal and civil proceedings. The applicability of reverse burden provisions and statutory presumptions in criminal law must be strictly interpreted and applied with due regard to the presumption of innocence and constitutional rights of the accused, whereas in civil proceedings no such strict compliance is required. A creditor has the right to pursue both criminal and civil remedies concurrently, and the continuation of such proceedings is neither barred by law nor constitutes an abuse of process, provided the civil suit was not barred at the time of its filing.
On this section: Provides relevance of previous judgments that bar a second suit or trial. The court held that a criminal judgment is relevant only if it legally prevents the court from taking cognizance, which is not the case here.
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Guru Granth Saheb Sthan Meerghat Vanaras vs Ved Prakash
Court's Decision & Legal Precedent
No hard and fast rule can be laid down requiring a civil suit to be automatically stayed during the pendency of a related criminal proceeding. The possibility of conflicting decisions in civil and criminal courts is not a relevant consideration for staying proceedings. Whether civil proceedings should be stayed during pending criminal proceedings depends on case-specific factors, particularly whether there is likelihood of embarrassment to the accused. Once a civil defendant has filed their written statement and issues have been framed, proceeding with the civil trial does not prejudice their criminal defence, and therefore stay is not justified. The law does not make the decision of one court binding on the other except in limited circumstances specified in Sections 40-43 of the Indian Evidence Act.
On this section: Comprehensively analyzed to determine relevancy and effect of judgments passed by civil and criminal courts when both courts deal with the same subject matter; Section 41 concerns conclusive proof regarding probate, matrimonial, admiralty, or insolvency jurisdiction; Section 42 addresses relevancy of other judgments of public nature; Section 40 and 43 address conditions when courts can take cognizance
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Judgments citing this section
These may be obiter dicta or a precedent, for you to study. These are the judgments where this section is quoted.
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… Articles 20 to 22 deal with personal liberty of citizens and others. Article 20(2) expressly provides that no person shall be prosecuted or punished for the same offence, more than once. The protection against double jeopardy is also supplemented by statutory provisions contained in Section 300 of the CrPC, Section 40 of the Indian Evidence Act, 1872, Section 71 of the IPC and Section 26 of the General Clauses Act, 1897. Article 20(2) of the Constitution of India reads as under: " 20. Protection in respect of conviction for offences .— - (1) xxx xxx xxx - (2) No person shall be prosecuted and punished for the same …
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… Sections 40 to 44 of the Indian Evidence Act, 1872 which deal with "judgments of Courts of justice when relevant" throw considerable light on the subject which is under consideration before us. Sections 40 to 44 of the Indian Evidence Act are as follows: "Judgments of courts of justice when relevant 40. 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 …
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… It is the specific contention that, in view of the fact that she had conceded about the divorce and claimed benefits based on that, there is a clear acceptance of the 'Talaq' pronounced on 26-01-2015. 11 In this regard, the provision contained in Section 40 of the Indian Evidence Act, 1872 may be of relevance. It contemplates a situation where any previous judgment becomes a bar to a second suit or trial. The wording of Section 40 is that, existence of any judgment, order or decree would prevent the court from taking cognizance of a suit or from holding a trial, when …
Questions about Section 40
What have the courts held on Section 40 of the Indian Evidence Act?
Vishnu Dutt Sharma vs Daya Sapra (05 May 2009) is the leading judgment on this section among those set out below: Provides relevance of previous judgments that bar a second suit or trial. The court held that a criminal judgment is relevant only if it legally prevents the court from taking cognizance, which is not the case here. Another 1 judgment on this section is set out below, all of them from the Supreme Court. They run from 2009 to 2013.
How do I find court cases under Section 40 of the Indian Evidence Act?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: IEA 40, section 40 IEA, section 40 of the Indian Evidence Act. People searching for it also type evidence act section 40 to 44 and evidence act 1872 section 40. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 2 reported judgments on this section are set out on this page, beginning with Vishnu Dutt Sharma vs Daya Sapra (05 May 2009).
What should I read with Section 40 of the Indian Evidence Act, and has it changed?
2 other provisions in this corpus refer back to it. For anything done on or after 1 July 2024 the provision to read is BSA 34 (Previous judgments relevant to bar a second suit or trial), which replaced it; conduct before that date is still charged, tried and appealed under this section.
When did Section 40 of the Indian Evidence Act come into force?
Section 40 of the Indian Evidence Act, cited as IEA 40, came into force on 01 Sep 1872, having been enacted on 15 Mar 1872. It is no longer in force.
Other sections of this Act
- 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant1207 words
- 14. Facts showing existence of state of mind, or of body of bodily feeling1080 words
- 92. Exclusion of evidence of oral agreement809 words
- 8. Motive, preparation and previous or subsequent conduct773 words
- 65B. Admissibility of electronic records743 words
- 3. Interpretation-clause667 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Recovered from the consolidated text published by India Code (item e51341fa-7528-4327-9a57-5d194e16db6f). This page is not a substitute for legal advice.