Full Judgment Text
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PETITIONER:
STATE OF MAHARASHTRA
Vs.
RESPONDENT:
DR. BUDHIKOTA SUBHARAO
DATE OF JUDGMENT16/03/1993
BENCH:
SAHAI, R.M. (J)
BENCH:
SAHAI, R.M. (J)
PANDIAN, S.R. (J)
CITATION:
1993 SCR (2) 311 1993 SCC (3) 339
JT 1993 (3) 379 1993 SCALE (2)36
ACT:
Criminal Procedure Code, 1973:
Section 397--High Court’s jurisdiction--Proceedings when
vitiated by ‘fraud’
Indian Evidence Act 1872. Section 44--Legal
proceeding--When vitiated by ’fraud’
Indian Contract Act 1872. Section 17--’Fraud’--What
is--Effect on legal proceedings.
Words and Phrases. ’Fraud’--Meaning of.
HEADNOTE:
The respondent, an ex Naval Officer and Computer Science
graduate was accused of leaking Atomic Energy Secrets and
charged for violating the provisions of the Atomic Energy
Act, 1962 and the official Secrets Act. 1923. Ultimately
when he was discharged for failure of the State to obtain
the necessary sanction under Section 197 Cr. P.C., and the
State challenged the correctness of the order by way of
revision, the respondent filed an application for the
declaration that the charge sheet be declared null and void.
In para 3 thereof it was stated that the charges were
vitiated by fraud as the Panchnama dated May 30, 1988 was
fabricated as it did not contain his signature and it was
ante dated. It was further averred that for three months
even the copies of the remand application filed by the
police were denied to him, and that orders thereon were not
supplied to him, and that the complaint was in contra on wit
the statement of witnesses. The High Court allowed this
application.
In the State’s appeal to this Court on the question whether
the High Court was justified in allowing the application
flied by the respondent for declaring that the charges
framed by the Additional Sessions Judge by his order dated
24/27th July, 1990 were null and void as they were obtained
by fraud, practised by the state.
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Allowing the appeal, setting aside the order of the High
Court dated 14th October, 1991, and dismissing the
application of the accused for declaring the order of the
Additional Sessions Judge framing the charges against him as
vitiated by fraud, this Court,
HELD:1. The High Court by its order passed on 25/26th March,
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1991 in Criminal Writ Petition No. 966 of 1990 had
specifically held that the question of framing charge had
become final. It could not be, therefore, re-opened. The
Division Bench had clearly held that it was not open to go
behind the order passed by the Single Judge on 3.4.1990
directing that the charges being framed against the accused
not only under Section 3 but under Section 5 as well. Nor
can any exception be taken to the finding of the Bench that
the said order could not be said to have been passed without
jurisdiction in as much as the Single Judge had jurisdiction
to decide the revision application preferred under the
provisions of the Code. [332B-C]
2. The question of fraud raised by the accused was negatived
by the, Division Bench and it was held that it was not
capable of being gone into as it did not form part of the
substratum of the case of the prosecution and was not
germane to the question of deciding as to whether he was
entitled to be discharged or not. [332D]
3. ’Fraud’ is false representation by one who is aware that
it was untrue with an intention to mislead the other who may
act upon it to his prejudice and to the advantage of the
representor. It has been defined statutorily in Section 17
of the Contract Act as including certain acts committed with
connivance or with intent to deceive another. In Ad-
ministrative Law it has been extended to failure to disclose
all relevant and material facts which one has a positive
duty to disclose. [332G-H]
4. Even the most solemn proceedings stand vitiated if they
are actuated by fraud. Such being the nature and
consequence of it the law requires not only strict pleading
of it but strict proof as well. [333B]
5. Facts which could be fished out from paragraphs averring
fraudulent submissions could not be said to be relevant for
alleging fraud. [334E]
6. Legal submissions cannot be equated to misrepresentation.
The pleadings in the instant case fall short of the legal
requirements to estab-
331
lish fraud. Various sentences extracted from different
judgments between the accussed and State in various
proceedings could not give rise to an inference either in
law or fact that the State was guilty of fraud.
[335H, 336A]
In the instant case the averments in paragraphs 3 and 4 to 8
of the application do not establish fraud. No foundation
giving rise to fraud was laid. It was complete
misapprehension under which the accused was labouring and it
was indeed unfortunate that the Single Judge of the High
Court not only entertained the respondent’s application but
adopted a course which amounted to reviewing and setting
aside orders of his predecessor without sufficient material
and accepting the claim that all earlier judgments were
liable to be ignored under Section 44 of the Evidence Act as
the proceedings were vitiated by fraud. The Single Judge
not only committed an error of procedure but misapplied the
law. [336B]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 277 of
1993.
From the Judgment and Order dated 14.10.1991 of the Bombay
High Court in Crl. Misc. Application No. 2260/91 in Crl.
Revision Application No. 123 of 1991.
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Altaf Ahmed, Addl. Solicitor General, B.R. Handa, Mrs.
Manjula Rao, S.M. Jadhav, A.S. Bhasme and A.M. Khanwilkar
for the Appellant.
Dr. B. Subha Rao Respondent-in-person.
The Judgment of the Court was delivered by
R.M. SAHAI, J. The short question that arises for
consideration in this appeal is if the High Court was
justified in allowing the application filed by the accused
for declaring that the charges framed by the Additional
Sessions Judge by order dated 24/27th July, 1990 were null
and void as they were obtained by fraud, practised by the
State.
Merits or otherwise of the application, alleging fraud
against the State, apart, what has left us completely
surprised is not so much the entertaining of the application
filed by the accused, for declaration that the charges
framed against him were nullity having been procured by
fraud as the procedure adopted by the learned Single Judge
of granting the prayer
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merely for failure of the State to file any reply by way of
counter-affidavit than by recording any finding that the
State was guilty of procuring the order framing the charges
by fraud. One of the objections raised by the State was
that since the High Court by its order passed on 25/26th
March 1991 in Criminal Writ Petition No. 966 of 1990 had
specifically held that the question of framing charge had
become final, therefore, it could not be re-opened, cannot
be said to be without substance as the Division Bench had
clearly held that it was not open to go behind the order
passed by the learned Single Judge on 3rd/4th April 1990
directing that the charges be framed against the accused not
only under Section 3 but under Section 5 as well. Nor can
any exception be taken to the finding of the Bench that the
said order could not be said to have been passed without
jurisdiction in as much as the learned Single Judge had
jurisdiction to decide the revision application preferred
under the provisions of the Code. Even the question of
fraud raised by the accused was negatived by the Division
Bench and it was held that it was not capable of being gone
into as it did not form part of the substratum of the case
of the prosecution and was not germane to the question of
deciding as to whether he was entitled to- be discharged or
not.
However, it is not necessary to rest the decision on this
ground as the learned Single Judge having allowed the
application as being vitiated by fraud it appears necessary
to examine if the pleading on fraud in the application filed
by the accused was sufficient in law to empower the High
Court to take cognizance of it and even if it was, did the
accuse succeed in proving it as even if the State did not
file any counter-affidavit the application could not be
allowed unless it was found as a fact that the State by its
acts or omissions acted-,deceitfully or it misled the court.
’Fraud’ is false representation by one who is aware that it
was untrue with an intention to mislead the other who may
act upon. it to his prejudice and to the advantage of the
representor. It is defined in Oxford Dictionary as, ‘ using
of false representations to obtain an unjust advantage or to
injure the rights or interests of another’. In Webster it
is defined as, ’deception in order to gain by another’s
loss; craft; trickery-, guile; any artifice or deception
practiced to cheat, deceive, or circumvent another to his
injury. It has been defined statutorily in Section 17 of
the Contract Act as including certain acts committed with
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connivance or with intent to deceive another. In
Administrative Law it has been extended to failure to
disclose
333
all relevant and material facts which one has a positive
duty to disclose. It is thus understood as deliberate act
or omission to mislead other to gain undue advantage. ’It
consists of some deceitful practice of wilful device,
resorted to with intent to deprive another of his right or
in some manner to do him an injury’ (Black’s Law
Dictionary). Effect of fraud on any proceeding, or
transaction is that it becomes nullity. Even the most
solemn proceedings stand vitiated if they are actuated by
fraud. Such being the nature and consequence of it the law
requires not only strict pleading of it but strict proof as
well.
Did the averments in the application made out case of fraud
? Were the statements of fact capable of giving rise to an
inference in law that the State was guilty of misleading the
court ? From the charge-sheet it is clear that it complied
with the requirements of law and mentions not only the
offence and the section but the particulars as to time,
place and person. Whether prosecution was possessed of
sufficient evidence to prove each of the charges is
different matter, but they were framed on basis of documents
seized from possession of the accused at the airport, search
of his residence, on the next day, interrogations of the
accused and examination of prosecution witnesses. In the
connected appeal No. 276 of 1993 [Arising out of S.L.P.
(Crl.) No. 986 of 1992] directed against the discharge of
the accused for failure to obtain sanction a very brief
summary has been given of various attempts made by the
accused to get an order of discharge, on merits, without
success. It is not necessary to recount all that here. Ul-
timately when the accused was discharged for failure of the
State to obtain sanction under Section 197 of the Criminal
Procedure Code (in brief ’the Code’) and the State
challenged the correctness of the order by way of revision
the accused filed the application for the declaration that
the charge-sheet be declared null and void. In paragraph 3
of the application it was stated that the charges were
vitiated by fraud as the Punchnama dated 30th May 1988 was
fabricated as it did not contain his signature and it was
ante-dated. It was further averred that three months even
the copies of the remand application filed by the police
were denied to the applicant and the orders thereon were not
supplied to him. It was also claimed that the complaint was
in contradiction with the statement of witnesses. May or
may not be so but that could be relevant when the merits
were gone into. It certainly, could not be taken as a
ground for claiming that the framing of charge was
fraudulent, especially, when these aspects had been thrashed
out once before the learned Single Judge who by his order
dated 3rd/4th
334
April 1990 held that the charges against the accused were
made out not only under Section 3 but under Section 5 of the
Act.
In the same paragraph the accused extracted certain
observations made by a learned Single Judge, in one of the
orders and claimed that they furnished guidelines to
distinguish between offences under Sections 3 and 5 of the
O.S. Act. According to him if honest and fair answer to the
question, if any charge was made out, Was given by the State
it would have exonerated the applicant but the State
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committed fraud by keeping the Trial Judge in the dark of
real facts and induced him to entertain erroneous opinion
and pass order on 24th July framing charges against him. In
paragraphs 4 to 8 various sentences from one or the other
judgment rendered for or against the accused by different
courts at one or the other stage were extracted and it was
claimed that the State either knowingly did not place
correct facts to substantiate those observations or
deliberately concealed the truth and made fraudulent
submissions inducing the Trial Judge thereby to frame the
charges. Emphasis was laid on the submissions advanced by
the State and it was stated that it was result of fraudulent
submissions that the Trial court was induced to frame
charges against the accused. No foundation giving rise to
fraud was laid. Facts which could be fished out from
paragraphs averring fraudulent submissions could not in our
opinion be said to be relevant for alleging fraud. For
instance in paragraph 4 it was stated,
"the Ld. Addl. Session Judge was deceived by
the aforesaid fraudulent and false submission
of the Respondent in February 1989 during the
judicial proceedings and the Ld. Addl.
Session Judge was induced to believe that the
applicant was also found and caught carrying
books on 30-5-1988 at the Sahar Airport Bombay
which books, as alleged by the Respondent,
could not have come into possession of the
Applicant even in the ordinary course, when
the applicant was holding the office of the
Captain of Navy. The respondent knew very
well that in the record of the Sessions Case
no. 1084/88 there were no books as alleged by
the Respondent and moreover the disputed
documents were not deposited in the Sessions
Court in February 1989 when the Learned Addl.
Session Judge was induced to believe the
fraudulent submissions of the
335
Respondent in February 1989. The above
mentioned fraudulent submissions of the
Respondent were clearly meant to deceive the
Session Court in February 1989 and to see that
the applicant was not discharged under Section
227 Cr. P.C.’
Similarly in paragraph 5 it was stated,
"It is significant to note that in February
1989 the documents were not deposited in the
Session Court though it was mandatory under
Section 209(c) Cr. P.C. to deposit the
documents in the Session Court after the Case
was committed to the Sessions on 22.9.1988 by
the Ld Magistrate. Thus in actual position
,
there were no documents in February 1989 for
’consideration’ of the Ld. Addl. Session
Judge as prescribed under the provisions of
Sec. 227 Cr. P.C. and the Respondent took
advantage of that situation and intentionally
made the aforesaid fraudulent submissions in
Feb. 1989 during the judicial proceedings
before the Ld. Addl. Session Judge Shri
Patel and caused circumstances to induce the
Ld. Session Judge Shri Patel to entertain
erroneous opinions and pass orders resulting
in miscarriage of justice’.
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In paragraph 7 it was stated as under
"The Ld. Addl. Session Judge Shri Patel
passed two orders dated 11-9-1989 and 11-10-
1989 to compel the Respondent to deposit the
documents in the Session Court and accordingly
the Documents were deposited in the Session
Court only on 11-10-1989; which conclusively
establishes that in February 1989 when
"Charges" were framed the "Documents" were not
with the Session Court and the fraudulent and
false evidence advanced in February 1989 by
the Respondent alone became the basis to frame
’Charges’ in February 1989."
We must confess our inability to appreciate the worth of
such averments to establish fraud. Legal submissions cannot
be equated to misrepresentation. In our opinion the
pleadings fell short of legal requirements
336
to establish fraud. Various sentences extracted from
different judgments between the accused and State in various
proceedings could not give rise to an inference either in
law or fact that the state was guilty of fraud. Suffice it
to say that it was complete misapprehension under which the
accused was labouring and it was indeed unfortunate that the
High Court not only entertained such application but adopted
a course which amounted to reviewing and setting aside
orders of his predecessor without sufficient material and
accept the claim that all earlier judgments were, liable to
be ignored under Section 44 of the Evidence Act as the
proceedings were vitiated by fraud. We are constrained to
say that the learned Judge not only committed an error of
procedure but misapplied the law.
In the result, this appeal succeeds and is allowed. The
order dated 14th October 1991 in Criminal Miscellaneous
Application No. 2260 of 1991 is set aside and the
application of the accused for declaring the order dated
24/27th February 1990 framing the charges against him as
vitiated by fraud, is dismissed.
N.V.K.
Appeal allowed.
337