Section 61 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 36 says an admission of an instrument in evidence cannot be questioned later in the same suit on the ground of insufficient stamp, except as section 61 provides. Section 61 is that exception. It lets a higher court look again at an order of admission, record a declaration and send the matter to the Collector, who may then prosecute.
Where a Court in its civil or revenue jurisdiction, or a Criminal Court in a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898, admits an instrument as duly stamped or not requiring a stamp, or on payment of duty and penalty under section 35, the Court to which appeals lie or references are made may take that order into consideration, of its own motion or on the Collector's application. If it finds the instrument should not have been admitted without duty and penalty, or without a higher duty and penalty, it may record a declaration, determine the duty, call for the instrument and impound it. The Collector may then prosecute, subject to two provisos.
Why section 61 matters
This article follows the consolidated text of the Act consulted (latest amendment shown: Act 13 of 2021); later amendments should be checked. Stamp duty on most instruments is fixed by the law and schedule of the State where the instrument is executed, so the State of execution must be checked. This article explains the central Act only. Section 61 names the Code of Criminal Procedure, 1898 (V of 1898), printed as in the original and not brought up to date; the reader should check the current law for the corresponding provision, and no replacement is named here. If an order admitting a document in a case has been questioned, our legal dispute resolution team can advise on how section 61 applies.
Section 61 closes Chapter VI. It is the only exception to the finality that Section 36 gives to an admission, and it connects with the admission rules in Section 35 and the prosecution rule in Sections 43 to 45.
Sub-section (1): the order that can be reviewed
"When any Court in the exercise of its civil or revenue jurisdiction or any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (V of 1898), makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under section 35, the Court to which appeals lie from, or references are made by, such first-mentioned Court may, of its own motion or on the application of the Collector, take such order into consideration."
| Element | Text |
|---|---|
| First-level court | A court in its civil or revenue jurisdiction, or a Criminal Court in a proceeding under Chapter XII or Chapter XXXVI of the 1898 Code |
| The order | Admitting an instrument in evidence (i) as duly stamped, (ii) as not requiring a stamp, or (iii) upon payment of duty and a penalty under section 35 |
| The reviewing court | The Court to which appeals lie from, or references are made by, the first court |
| How it starts | Of its own motion, or on the Collector's application |
| Action | It "may" take the order into consideration |
The two chapters of the 1898 Code are the same two that appear in section 33, proviso (a), and section 35, proviso (d). So, for criminal courts, section 61 is limited to proceedings under those chapters.
Sub-section (2): the declaration
"If such Court, after such consideration, is of opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under section 35, or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty with which such instrument is chargeable, and may require any person in whose possession or power such instrument then is, to produce the same, and may impound the same when produced."
In steps:
- Opinion. The reviewing court forms the opinion that the instrument should not have been admitted without duty and penalty under section 35, or without a higher duty and penalty than were paid.
- Declaration. It "may" record a declaration to that effect.
- Duty. It may determine the amount of duty with which the instrument is chargeable.
- Production. It may require anyone in whose possession or power the instrument is to produce it.
- Impounding. It may impound the instrument when produced.
Each step is a power ("may"), not a duty. The order of admission is not set aside by this sub-section; see proviso (b) below.
Sub-section (3): the Collector is told
"When any declaration has been recorded under sub-section (2), the Court recording the same shall send a copy thereof to the Collector, and, where the instrument to which it relates has been impounded or is otherwise in the possession of such Court, shall also send him such instrument."
Two things go to the Collector: a copy of the declaration, and the instrument, if it has been impounded or is otherwise in the Court's possession. The word "shall" makes both mandatory.
Sub-section (4): prosecution by the Collector
"The Collector may thereupon, notwithstanding anything contained in the order admitting such instrument in evidence, or in any certificate granted under section 42, or in section 43, prosecute any person for any offence against the Stamp-law which the Collector considers him to have committed in respect of such instrument."
The Collector's power overrides three things: the order of admission, any section 42 endorsement, and section 43 (under which a penalty already paid bars prosecution unless the Collector thinks there was an intention to evade). The offences are those in Chapter VII, for example Section 62.
Proviso (a): no prosecution if the sum is paid
"No such prosecution shall be instituted where the amount (including duty and penalty) which, according to the determination of such Court, was payable in respect of the instrument under section 35, is paid to the Collector, unless he thinks that the offence was committed with an intention of evading payment of the proper duty."
So if the amount the reviewing court determined is paid to the Collector, no prosecution is instituted, unless the Collector thinks the offence was committed with an intention of evading payment of the proper duty.
Proviso (b): the order and the endorsement stand
"Except for the purposes of such prosecution, no declaration made under this section shall affect the validity of any order admitting any instrument in evidence, or of any certificate granted under section 42."
The declaration has effect for prosecution. For everything else, the admission order and the section 42 endorsement remain valid.
Worked example
In a civil suit, a trial court admits a lease deed on payment of duty and a penalty under section 35. On appeal, the appellate court of its own motion takes the order into consideration, and forms the opinion that a higher duty and penalty should have been paid. It records a declaration, determines the duty, requires the lease deed to be produced and impounds it. Under sub-section (3) it sends a copy of the declaration and the deed to the Collector. Under sub-section (4) the Collector may prosecute. If the amount the appellate court determined is paid to the Collector, proviso (a) bars the prosecution unless he thinks there was an intention to evade the proper duty. The admission of the lease in the suit remains valid under proviso (b).
Practical points
- The reviewing court is the one to which appeals lie, or references are made, from the first court.
- A party can bring the Collector's attention to the order, since the Collector may apply to the reviewing court.
- The declaration does not undo the admission; it operates for the prosecution.
- Check the current law for the Code of Criminal Procedure references.
Need help with a stamp question in a pending case?
A declaration under section 61 can lead to a prosecution, so timing and advice matter. Our legal dispute resolution team can help you assess the position and respond.
Key takeaways
- Section 61 is the one exception to the finality of an admission under section 36.
- The Court to which appeals lie or references are made may take an admission order into consideration, of its own motion or on the Collector's application.
- It may record a declaration, determine the duty, call for the instrument and impound it.
- The Collector may then prosecute, notwithstanding the admission order, any section 42 certificate or section 43.
- No prosecution is instituted if the determined amount is paid, unless the Collector thinks there was an intention to evade the proper duty, and the declaration does not affect the validity of the admission or the section 42 endorsement.
Read next
- Sections 36 and 37 of the Indian Stamp Act, 1899: admission once made not to be questioned
- Section 62 of the Indian Stamp Act, 1899: penalty for executing an instrument not duly stamped
- Section 60 of the Indian Stamp Act, 1899: reference by other courts
- Consequences of not paying stamp duty
Disclaimer: Based on the consolidated text of the Indian Stamp Act, 1899 published by the Department of Revenue, whose latest amendment shown is Act 13 of 2021, as consulted on 2 October 2026. Only the central text is covered: stamp duty on most instruments is fixed by the law and schedule of the State where the instrument is executed, and State amendments, rules, notifications and later amendments should be checked. This article is general information, not legal advice; check the official text before acting.