Finality of Quashing Orders Under Section 528 BNSS: Recall Barred by Section 403 BNSS/Section 362 CrPC Absent Prima Facie Fraud on the Court

1. Introduction

In ASHWINI PAL v. STATE NCT OF DELHI AND ANR (Delhi High Court, decided on 22-05-2026), the Court considered whether it could recall a prior order by which it had quashed a grave FIR (Sections 376(2)(n)/313/506 IPC) under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

The recall application was filed by Respondent No. 2 (the complainant/prosecutrix) roughly six months after the quashing order dated 03.12.2024. She alleged that the quashing was obtained through fraud, coercion, and misrepresentation and that the marriage—relied upon when quashing was granted—was merely a device to evade prosecution.

The key legal issues were:

  • Whether Section 403 BNSS (corresponding to Section 362 CrPC) bars recall/review of a final criminal order quashing proceedings under Section 528 BNSS.
  • Whether allegations of post-quashing matrimonial cruelty and breach of settlement expectations can justify recall.
  • Whether the applicant established, at least prima facie, that the quashing order was procured by fraud on the Court.

2. Summary of the Judgment

Justice Amit Mahajan dismissed the recall application and upheld the quashing order. The Court held that:

  • Section 362 CrPC / Section 403 BNSS embodies a strong bar against substantive review/recall once a final order is signed, save for clerical/arithmetic errors.
  • Recall cannot be sought merely because of subsequent matrimonial discord or alleged violation of expectations underlying settlement.
  • The “fraud vitiates all” principle did not assist the applicant because she failed to show that the quashing order dated 03.12.2024 was itself procured by fraud on the Court, as opposed to being followed by later adverse conduct.
  • Allegations of subsequent cruelty/assault/threats may give rise to independent remedies, but do not reopen the concluded quashing proceedings.

3. Analysis

3.1 Precedents Cited

A. Authorities governing quashing on settlement (context of the original quashing order)

  • Narinder Singh v. State of Punjab, (2014) 6 SCC 466: Cited as part of the framework on when High Courts may quash criminal proceedings despite non-compoundability. The Delhi High Court noted that grave offences are ordinarily not quashed merely because parties settle, but the power may be exercised on “peculiar facts.”
  • Parbatbhai Aahir v. State of Gujarat, (2017) 9 SCC 641: Reinforced the structured approach to quashing under inherent powers, emphasizing careful scrutiny where the offence has serious societal impact. It supported the proposition that quashing is discretionary and must align with the ends of justice.
  • Kapil Gupta v. State of NCT of Delhi, 2022 SCC OnLine SC 1030: Referred to in the original quashing order to situate the High Court’s discretion in compromise-based quashing and the safeguards/considerations required.
  • Pramod Suryabhan Pawar v. State of Maharashtra, AIR 2019 SC 4010: Used to underline that “rape on false promise to marry” requires that the promise be false from inception and made in bad faith. The Court reiterated the distinction between (i) an inherently false promise inducing consent and (ii) a later breakdown of relationship. This principle weakened any attempt to re-characterize a consensual relationship as rape purely because the relationship deteriorated.

B. Authorities on the statutory bar to recall/review in criminal proceedings (core to the present decision)

  • Hari Singh Mann v. Harbhajan Singh Bajwa, AIR 2001 SC 43: The Court relied on this to restate that, once a final order is signed, the court becomes functus officio and cannot alter/review it except for clerical/arithmetic mistakes. This was the foundational authority for rejecting recall jurisdiction.
  • Raghunath Sharma v. State of Haryana, 2025 INSC 723: Extensively quoted to emphasize that Section 482 CrPC (and by parity, Section 528 BNSS) cannot be invoked to defeat the express prohibition in Section 362 CrPC (and corresponding Section 403 BNSS). Critically, it held that violations of compromise terms are “foreign to law” as a basis to recall a quashing order.
  • Sanjeev Kapoor v. Chandana Kapoor (as quoted in Raghunath Sharma): Used to reiterate that the criminal court has no power to alter/review a final order disposing of a case, preserving finality in criminal adjudication.
  • Sooraj Devi v. Pyare Lal (as quoted): Cited for the categorical proposition that inherent power cannot be exercised to do what is specifically prohibited by the Code; “save as otherwise provided” does not include inherent powers.
  • Sankatha Singh v. State of U.P. (as referenced in the extracted passage): Supports the broader doctrine that inherent powers cannot override express prohibitions.
  • Simrikhia v. Dolley Mukherjee; State of Punjab v. Davinder Pal Singh Bhullar; Gian Singh v. State & Anr. of Punjab; Telangana Housing Board v. Azamunnisa Begum (as listed in the extracted passage): These decisions were mentioned as authorities following/approving the bar against using inherent powers to circumvent Section 362.
  • State Of Kerala v. M.M Manikantan Nair; State v. K.V. Rajendran; State Of Madhya Pradesh v. Man Singh; NARAYAN PRASAD v. STATE of Bihar (as quoted/referred within the extract): These authorities collectively reaffirm that recall amounts to review/alteration and is barred; any correction lies with the appropriate forum as per law, not via inherent power recall.

3.2 Legal Reasoning

(i) Statutory finality: Section 362 CrPC / Section 403 BNSS

The Court began with the text of Section 362 CrPC (corresponding to Section 403 BNSS), which prohibits alteration or review of a signed final order disposing of a criminal proceeding, except to correct clerical/arithmetic errors. The Court treated this as a jurisdictional bar: once the quashing order was signed, the Court became functus officio.

By adopting the reasoning in Hari Singh Mann v. Harbhajan Singh Bajwa, AIR 2001 SC 43 and the detailed exposition extracted from Raghunath Sharma v. State of Haryana, 2025 INSC 723, the Court emphasized that inherent power (Section 482 CrPC / Section 528 BNSS) cannot be used as an indirect route to review.

(ii) Fraud exception: narrow gateway, not satisfied on the facts

The applicant invoked the proposition that fraud vitiates judicial acts. The Court accepted that the only limited inquiry could be whether the quashing order was procured by fraud on the Court. However, it held that the applicant’s material did not cross that threshold.

The Court highlighted the contemporaneous record underpinning quashing (03.12.2024):

  • The applicant personally appeared and stated the relationship was consensual.
  • She said the complaint was due to “misunderstandings” when marriage was refused.
  • She acknowledged the parties had already married on 31.05.2024.
  • She stated she was happily residing with the respondent and did not wish to pursue the FIR.
  • She had also filed a sworn affidavit of no objection.
  • The Court independently examined the permissibility of quashing in such offences, rather than acting mechanically.

On this basis, the Court found that the quashing order was not founded on a mere “future promise” of good marital conduct. Instead, it rested on the applicant’s voluntary statements, the admitted factum of marriage, and the Court’s own legal scrutiny.

(iii) Subsequent misconduct ≠ retroactive fraud; breach of settlement terms is not a recall ground

The applicant’s allegations—cruelty, assault, threats, abandonment, NCW complaints, hospitalization—were treated as post-quashing events. Even if assumed correct, they did not prove that the applicant’s statements on 03.12.2024 were knowingly false then, or that the respondent had committed fraud upon the Court to procure the quashing order.

The Court also noted the parties’ extensive rival allegations about later events and consciously refused to adjudicate their truthfulness in a recall proceeding, reinforcing that recall jurisdiction is not a forum for trying new factual disputes.

Importantly, the Court warned that allowing recall whenever a marriage later deteriorates would undermine finality and defeat the purpose of quashing on settlement/reconciliation, exposing quashing orders to perpetual uncertainty.

(iv) Relevance of “false promise to marry” doctrine in the background

The Court reiterated (consistent with Pramod Suryabhan Pawar v. State of Maharashtra, AIR 2019 SC 4010) that not every breach of promise amounts to rape; the promise must be false from inception and directly induce consent. It also treated the factum of marriage prior to quashing as significant in assessing the contemporaneous bona fides.

3.3 Impact

  • High threshold for recall of quashing orders: The decision strengthens the message that quashing orders under Section 528 BNSS (like Section 482 CrPC) attain finality, and cannot be reopened due to later relationship breakdowns.
  • Fraud allegation must target the quashing proceeding itself: Applicants must show prima facie that the Court was deceived at the time of the order—later misconduct is not enough.
  • Channeling disputes into fresh proceedings: The Court explicitly left open the complainant’s remedies for alleged later cruelty/assault/threats, ensuring that the bar on recall does not immunize subsequent conduct, but directs it to appropriate legal forums.
  • Predictability in compromise-based quashing: By rejecting recall based on later events, the judgment promotes certainty for settlements and reconciliations recorded in court, especially in intimate-partner disputes where future volatility is common.

4. Complex Concepts Simplified

  • Quashing (Section 528 BNSS): A High Court’s power to end criminal proceedings to prevent abuse of process or secure justice, even for some non-compoundable offences, in exceptional circumstances.
  • Non-compoundable offences: Offences that ordinarily cannot be “settled” privately to end prosecution. Courts may still quash in rare cases, but with caution.
  • Functus officio: Once a court passes and signs a final order disposing of a criminal case, it generally has no power to revisit the merits.
  • Section 362 CrPC / Section 403 BNSS bar: Courts cannot alter or review final criminal orders (except clerical/arithmetic correction). Inherent powers cannot override this.
  • “False promise to marry” in rape law: The key is whether the promise was dishonest from the start and induced consent. A later breakup or change of mind does not automatically make prior consent invalid.
  • Fraud on the Court: Not merely unfair behavior later; it means deceiving the court at the time of the order so that the judicial act itself is tainted.

5. Conclusion

The Delhi High Court’s ruling crystallizes a stringent principle of finality in criminal procedure: a quashing order under Section 528 BNSS, once passed and signed, cannot be recalled merely because the relationship later collapses or because one party alleges that the settlement’s spirit was breached. Only a narrowly framed and prima facie credible case of fraud upon the Court at the time of quashing can even attempt to cross the bar imposed by Section 403 BNSS (corresponding to Section 362 CrPC).

At the same time, the judgment maintains a crucial balance: it does not foreclose the complainant’s right to pursue fresh legal remedies for alleged subsequent acts. It simply refuses to convert those later disputes into a mechanism for reopening a concluded quashing order.