Sections 44 and 45 of the Indian Evidence Act 1872: Fraud, Collusion and Expert Opinions

Section 44: Fraud or Collusion in Obtaining Judgment, or Incompetency of Court, May Be Proved

Section 44 operates as an important qualification to the relevancy of judgments under Sections 40, 41 and 42. Even where the adverse party proves a judgment, order or decree that is relevant under those provisions, the other party is permitted to attack it on the specific grounds recognised by Section 44.

What does Section 44 permit a party to prove?

The provision recognises three principal grounds of challenge:

1. Incompetency of the Court: the Court that delivered the judgment, order or decree lacked legal competence or jurisdiction to do so.
2. Fraud: the judgment, order or decree was procured through fraud affecting the judicial process or the basis on which the adjudication was obtained.
3. Collusion: the result was obtained through a collusive arrangement rather than a genuine adversarial adjudication.

Connection with Sections 40, 41 and 42

Section 44 expressly applies where the judgment, order or decree relied upon is relevant under Sections 40 and 41 or Section 42. Thus, relevancy of an earlier adjudication does not prevent a party from raising the statutory objections allowed by Section 44.

Section 45: Opinions of Experts

Ordinarily, a witness gives evidence about facts rather than personal opinions. Section 45 creates a statutory rule of relevancy for expert opinion where the Court has to decide a matter requiring specialised knowledge.

Subjects covered by expert opinion

Before the Bharatiya Sakshya Adhiniyam, 2023 came into force, Section 45 expressly covered expert opinion concerning foreign law, science, art, identity of handwriting and finger impressions. Depending on the issue before the Court, this could include medical, scientific, forensic, handwriting and fingerprint expertise.

Who is an expert?

An expert under Section 45 is a person specially skilled in the subject on which the Court requires assistance. The relevance of the opinion arises from the witness's specialised skill or knowledge in the particular field. The provision makes the opinion relevant evidence; the Court must still evaluate the basis, reasoning and reliability of that opinion with the other evidence in the case.

Illustrations to Section 45

The statutory illustrations explain the operation of the section:

Electronic evidence and Section 45A

Under the pre-Bharatiya Sakshya Adhiniyam legal framework, electronic evidence also had a specialised expert provision. Section 45A of the Indian Evidence Act treated the opinion of an Examiner of Electronic Evidence referred to in Section 79A of the Information Technology Act, 2000 as a relevant fact when the Court had to form an opinion on information transmitted or stored in a computer resource or other electronic or digital form. Section 45A further treated such an Examiner as an expert.

Practical distinction between Sections 44 and 45

Section 44 concerns the legal vulnerability of specified earlier judgments, orders or decrees when incompetency, fraud or collusion is alleged. Section 45 concerns assistance given to the Court by persons with specialised knowledge. The two provisions therefore deal with different forms of relevant evidence, even though they appear consecutively in the Act.

Related Provisions of the Indian Evidence Act 1872

For the surrounding statutory scheme, see Sections 40 and 41 on previous judgments, Section 42 on other judgments, orders or decrees, Section 43 on judgments other than those mentioned in Sections 40 to 42, and Sections 46, 47 and 47A concerning opinion evidence.