Whether re-trial on discovery of fraud violates the embargo on review by criminal court (Section 362 of the CrPC) ?

The High Court of Allahabad had the occassion to deal with this question recently. The facts of the case are extremely peculiar. It was a prosecution with respect to a dowry death offence. However, during the trial, in place of PW 1 to 4, certain planted witnesses appeared and deposed at trial. These witnesses did not support the prosecution case and deposed in favour of the accused. Since no evidence was forthcoming against the accused, they were acquitted. It was later discovered that PW1 to 4 were not the real witnesses but impersonators and fraud had been played upon the Court.

The real PW1 then moved an application seeking re-opening of the trial. The trial court, in view of the clear fraud practised upon it, ordered re-registration of the case. This order was challenged by the Accused before the High Court. It was argued that re-trial violated the clear embargo on a criminal court forbidding it from reviewing its own order. (S.362 of the CrPC)

The High Court negatived this contention and held that fraud vitiates all proceedings and S.362 CrPC would not be a bar to a re-trial in case the earlier proceedings are vititated due to fraud. One of the provisions that weighed with the court was S.44 of the Indian Evidence Act which robs a fraudulent judgment of all its efficacy and binding effect.

The relevant observations of the Court are as under :

“Section 44 of the Evidence Act enables a party otherwise bound by a previous adjudication to show that it was not final or binding because it is vitiated by fraud. The provision therefore gives jurisdiction and authority to a court to consider and decide the question whether a prior adjudication is vitiated by fraud.



38. It is abundantly, clear that the judgment obtained from the learned trial court was obtained by playing fraud upon the court.Witnesses as produced before the learned trial court were impersonated showing themselves to be a prosecution witness i.e. complainant his wife and others. If such type of fraud permitted to be played whole system of administration of justice would be jeopardize. If the acquittal was obtained by playing fraud upon the Court, it is no acquittal in the eyes of law and no sanctity or credibility can be attached and given to be so called findings. It seems to be nothing but a travesty of truth, fraud on the legal process and the resultant decision of courts that ‘coram non judis and non est.


43. Power of Section 362 Cr.P.C. are defined but at the same time when a fraud is played upon the Court, Court cannot became a silent spectator. Even for the sake of argument it is expected that the learned trial court was not having such power than this Court in exercise of inherent power also can quash the earlier judgment of the learned trial court which was obtained by the accused after playing fraud upon the court. It is a case where the bar of section 362 Cr.P.C. would not come into play.

44. Accordingly, I am of the view that the learned trial court has rightly passed the impugned order and issued necessary direction. Revision is devoid of any merit and is liable to be dismissed and is accordingly dismissed.”

The title of the judgment is Bimal Kumar v. State of U.P. through Principal Secretary (CRIMINAL REVISION No. – 477 of 2006) Allahabad High Court. 

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