Whether trial court can recall order of acquittal if it is obtained by impersonating witnesses?

An application was moved by the opposite party no.3 i.e. complainant on 26.5.2006 stating that the persons produced before the court as P.W.1, P.W.2, P.W.3 and P.W. 4 are forged. Real persons were not produced before the Court. Judgment was obtained after playing fraud upon court which should be set aside. Retrial of the accused should be held. 

 As pithily stated in Jennison v. Baker (1972) 1 All ER 997 "The law should not be seen to sit by limply, while those who defy it free, and those who seek its protection lose hope." 
Courts have to ensure that accused persons are punished and that the might authority of the State are not used to shield themselves or their men. It should ensured that they do not wield such powers which under the Constitution has to held only in trust for the public and society at large. If deficiency in investigation prosecution is visible or can be perceived by lifting the veil trying to hide realities or covering the obvious deficiencies, courts have to deal with the same was an iron hands appropriately within the framework of law. It is as much the duty of prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice, (See Shakila Abdul Gafar Khan Vasant Raghunath Dhoble (2003) 7 SCC 749). 
41. Learned trial court has rightly held that the prosecution agency i.e. concerned police of concerned police station was also in connivance with accused and produced the witnesses who has impersonated themselves as P.W.1, P.W.2, P.W. 3 and P.W.4. 
42. In the case of Tribhuvan vs. State of U.P. 1992 (LCR R) Lucknow Criminal Report 165; a Division Bench of this Court has held that in Para 13 and 14. 
"13. The power to recall a judgment in such a situation has been held to be available to the High Court in the case of Prem Singh vs. State, Full Bench decision of Jammu & Kashmir High Court reported in (1982 Cr. LJ 297). Relying upon the decision of Madras and Calcutta High Courts it was held that where the conditions laid down by law as precedent and requisite to the hearing of the case are not observed, the court acts without jurisdiction and its order is, therefore, void ab initio and the case can be reheard and that such rehearing would not be barred by Section 369 Cr.P.C. This corresponds to Section 362 of the present Code. 
14. In this case a revision was also filed, decided in absence of the revisionist and the question whether such an order can be recalled and revision reheard was under consideration. The Full Bench answered accordingly in affirmative." 
43. Power of Section 362 Cr.P.C. are defined but at the same time when a fraud is played upon the Court, Court cannot became a silent spectator. Even for the sake of argument it is expected that the learned trial court was not having such power than this Court in exercise of inherent power also can quash the earlier judgment of the learned trial court which was obtained by the accused after playing fraud upon the court. It is a case where the bar of section 362 Cr.P.C. would not come into play. 
44. Accordingly, I am of the view that the learned trial court has rightly passed the impugned order and issued necessary direction. Revision is devoid of any merit and is liable to be dismissed and is accordingly dismissed.
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 

Case :- CRIMINAL REVISION No. - 477 of 2006

 Bimal Kumar  Arun Kumar Dixit Vs  State of U.P. through Principal Secretary,

Dated: 10.3.2017 
Hon'ble Anil Kumar Srivastava-II,J. 

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Whether court can lift veil In Case Of Termination Of employee on probation?

In the instant case as we have stated already hereinbefore that though the impugned order was made under the camouflage or cloak of an order of termination simpliciter according to the terms of the employment, yet considering the attendant circumstances which are the basis of the said order of termination, there is no iota of doubt in inferring that the order of termination had been made by way of punishment on the ground of misconduct and adverse entry in service record without affording any reasonable opportunity of hearing to the petitioners whose services are terminated and without complying with the mandatory procedure laid down in Article 311(2) of the Constitution of India.

The position is now well settled on a conspectuous of the decisions referred to hereinbefore that the mere form of the order is not sufficient to hold that the order of termination was innocuous and the order of termination of the services of a probationer or of an ad-hoc appointee is a termination simpliciter in accordance with the terms of the appointment without attaching any stigma to the employee concerned. It is the substance of the order i.e. the attending circumstances as well as the basis of the order that have to be taken into consideration. In other words, when an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in innocuous terms, it is incumbent on the court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the Court, in such case, will lift the veil and will see whether the order was made on the ground of misconduct inefficiency or not.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 230 and 231 of 1982

Decided On: 07.05.1986

Jarnail Singh and Ors.
Vs.
State of Punjab and Ors.

Coram:
A.N. Sen and B.C. Ray, JJ.

 citations: 1986 AIR 1626, 1986 SCR (2)1022

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When court can lift the veil to find out to find out real reason of making an appointment on temporary basis

 Hence, the power under
subsection
(2) of Section 5 is held to be discretionary.
18. The exercise of discretion under subsection
(2) of
Section 5 has to be by keeping in view the object of
enactment and the exigencies of the administration. If the
exercise of discretion is found to be arbitrary, unreasonable,
capricious or is a colourable exercise of power to defeat the
protection in service granted by the statutory provisions,

then the Court is empowered even to invoke the principles
of “lifting of veil” to find out the real reason of making an
appointment on temporary basis, and if the action is not
found to be bona fide, an appropriate direction can be
issued to provide protection in service by treating the
appointment on probation, even if it is shown to be on
temporary basis or for a fixed period. This is the view
propounded by the Full Bench, which is in conformity with
the object and the provisions of the MEPS Act. The ratio of
the decision of the Full Bench cannot be construed as
creating absolute bar to the jurisdiction of the School
Tribunal under Section 9 of the MEPS Act, to consider and
decide the question as to whether in the given facts and
circumstances of the case, an order of appointment on
temporary basis or for a fixed period in a permanent
vacancy cannot be treated as one on probation and the
employee is entitled to protection in service, in a challenge

to the order of termination. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4404/2011

Abdul Rafique Abdul Hamid, Vs  The Yavatmal Islamia Anglo Urdu Education Society, Yavatmal, 

R. K. DESHPANDE, J.
DATE : 13 th FEBRUARY, 2014 .
Citation;2014(3) MHLJ 99 Bom

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Doctrine of Lifting the veil- what cannot be done directly cannot be done indirectly

WHAT CANNOT BE DONE DIRECTLY-CANNOT BE DONE INDIRECTLY:

28. It is a settled proposition of law that what cannot be done directly, is not permissible to be done obliquely, meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of ;quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud.; An authority cannot be permitted to evade a law by ;shift or contrivance;.

Supreme Court of India

State Of T.Nadu & Ors. vs K Shyam Sunder & Ors. on 9 August, 2011

Bench: J.M. Panchal, Deepak Verma, B.S. Chauhan

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