A judgment obtained by fraud may be set aside under Section 44 of the Indian Evidence Act.

JUDGMENT :

1. Heard Sri Sanjay Yadav, learned counsel for the applicant, Sri Arun Kumar Sharma, learned counsel for the opposite party no. 2 and Sri Sunil Kumar, learned A.G.A. for the State.

2. The instant bail cancellation application has been filed on behalf of the applicant (complainant) with the prayer to cancel the bail granted to opposite party no. 2 by this Court on 9.12.2022 passed in Criminal Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No. 10933 of 2022, in Criminal Case No. 2177 of 2018, relating to Case Crime No. 303 of 2018, under Sections 420, 467, 468, 471 IPC, Police Station Kurra, District Mainpuri.

RIVAL CONTENTIONS:

CONTENTIONS ON BEHALF OF THE APPLICANT:

3. Learned counsel for the applicant has stated that the said order is liable to be cancelled, as it was garnered by the opposite party no.2 by misleading the Court and concealing the fact of seven criminal antecedents of the applicant. Learned counsel has next stated that the said order itself indicates as follows:-

"Learned counsel for the applicant has stated that the applicant has been falsely implicated in the present case. The said sale deed has been executed in favour of his wife Sudha @ Neelam. A civil suit has been filed by the informant in the court of Civil Judge Junior Division, Mainpuri, wherein the wife of the applicant has categorically stated that she does not want to carry on the sale deed executed in her favour and the said property may be handed over to the informant. There is no other criminal history of the applicant except one case in which he has been acquitted vide order dated 15.12.2010. The said order is annexed as SA-1 dated 28.11.2022. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. Learned counsel for the applicant undertakes that he has co-operated in the investigation and is ready to do so in trial also failing which the State can move appropriate application for cancellation of anticipatory bail."

4. Learned counsel has placed reliance on the judgement of the Apex Court passed in A.V. Papayya Sastry & others vs. Government of A.P. & Others, Appeal (Civil) No. 5097 of 2004, wherein it has been held as follows:-

"It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Even the Chief Justice Edward Coke proclaimed "Fraud avoids all judicial acts, ecclesiastical or temporal".

5. It was also opined in the said judgement that a judgement, decree or order obtained by fraud by the first Court or by the final court has to be treated as a nullity by every Court, superior or inferior. It can be challenged in any Court at any time, in appeal, revision, writ or even in collateral proceedings. Lord Denning had observed that in the leading case of Lazarus Estates Ltd. v. Beasley, (1956) 1 All ER 341 : (1956) 1 QB 702 : (1956) 2 WLR 502, that "No judgment of a court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud."

6. Learned counsel has placed reliance on the judgement of the judgement of the Apex Court passed in Puran vs. Rambilas and another, 2001 SCC (Cri) 1124, wherein it was held as under:-

"11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.) reported in AIR 1978 SC 179. In that case the Court observed as under:-

"If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumsta