IMPORTANT POINT
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.

JUDGMENT

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, obtained by the State.

2. 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 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 and 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 discharge or not.

3. 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 accused 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 ad vantage or to injure the rights Or interests of another. In Webster it is defined as, deception in order to gain by anothers loss; croft; trickery; guile; any artifice or deception practicised 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 connivance or with intent to deceive another. In Administrative Law it has been extended to failure to disclose 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 or wilful device resorted to with intent to deprive another of his right or in some manner to do him an injury (Blacks 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 str