R. M. SAHAI, J.

1. 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 July 24/27, 1990 were null and void as they were obtained by fraud, practised 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 of 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 March 25/26, 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 reopened, 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 April 3/4, 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

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 if 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 representator. It is defined in Oxford Dictionary as, using of false representations to obtain an unjust advantage or to injure the rights or interest of another. In Webster it is defined as, deception in order to gain by anothers loss; craft; trickery; guile; any artifice or deception practiced to cheat, deceive, or circumvent another to his injury. In 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 the 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 non only strict pleading of it but strict proof as well

4. Did the averments in the application make out a 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 an person. Whether prosecution was possessed of sufficient evidence to prove each of the charges is a 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 SLP (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. Ultimately 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 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 filled by the police were denied to the applicant and the orders thereon were not supplied to him. It was also claimed that the compliant 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 April 3/4, 1990 held that the charges against the accused were made out not only under Section 3 but under Section 5 of the Act

5. 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 Section 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 committed fraud by keeping the trial Judge in the dark of real facts and induced him to entertain erroneous opinion and pass order on July 24, 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 learned Additional Session Judge was deceived by the aforesaid fraudulent and false submission of the respondent in February 1989 during the judicial proceedings and the learned Additional Session Judge was induced to believe that the applicant was also found and caught carrying books on May 30, 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 of 1988 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 Additional Session Judge was induced to believe the fraudulent submissions of the 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 CrPC."

Similarly in paragraph 5 it was stated

"It is significant to note that in February 1989 the documents were not deposited in the Sessions Court through it was mandatory under Section 209(c) CrPC to deposit the documents in the Sessions Court after the case was committed to the Sessions on September 22, 1988 by the learned Magistrate. Thus in actual position, there were no documents in February 1989 for consideration of the learned Additional Session Judge as prescribed under the provisions of the Section 227 CrPC and the respondent took advantage of that situation and intentionally made the aforesaid fraudulent submissions in February 1989 during the judicial proceedings before the learned Additional Session Judge Shri. Patel and caused circumstances to induce the learned Session Judge Shri. Patel to entertain erroneous opinion and pass orders resulting in miscarriage of justice." *

In paragraph 7 it was stated as under

"The learned Additional Session Judge Shri. Patel passed two orders dated September 11, 1989 and October 11, 1989 to compel the respondent to deposit the documents in the Session Court and accordingly the documents were deposited in the Sessions Court only on October 11, 1989; which conclusively establishes that in February 1989 when charges were framed the documents were not with the Sessions Court and the fraudulent and false evidence advanced in February 1989 by the respondent alone became the basis to frame charges in February 1989." *

6. We must confess out inability to appreciate the worth of such averments to establish fraud. Legal submissions cannot be equated to misrepresentation. In our opinion there pleadings fell short of legal requirements 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 accepted 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

7. In the result, this appeal succeeds and is allowed. The order dated October 14, 1991 in Criminal Miscellaneous Application No. 2260 of 1991 is set aside and the application of the accused for declaring the order dated February 24/27, 1990 framing the charges against him as vitiated by fraud, is dismissed.