REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO. 893 OF 2005

Ashish Chadha …Appellant

Versus

Smt. Asha Kumari & Anr.         …Respondents

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. The first respondent was the member of the Legislative  

Assembly of Banikhet Constituency from the year 1984 to  

1990 and 1994 to 2001. A complaint  dated 6.8.1998 was  

filed against her by one Shri  Kuldeep Singh, Ex-Municipal  

Councilor,  Dalhousie  alleging  interalia  that  the  first  

respondent  and  her  husband  Brijender  Singh  (since  

deceased)  had  in  connivance  with  Revenue  Officials

manipulated  the revenue records, forged documents  and  

got the land belonging to the Government transferred in the  

name of Brijender Singh.  The said complaint was inquired  

into by Vigilance Department and FIR came to be registered  

on 15.12.2001 against  the first respondent and Brijender  

Singh and others under Sections 420, 218, 467, 468, 471  

read with Section 120-B of the Indian Penal Code (for short,  

“the IPC”).   The Special  Judge,  Chamba framed charges  

against the first respondent and others on 4.1.2005  under  

Sections 420, 218, 467, 468, 471 read with Section 120-B of  

the  IPC.    The first respondent filed Criminal Revision No.  

20 of 2005 before the High Court of Himachal Pradesh at  

Shimla  challenging  the  order  dated  4.1.2005  framing  

charges. By the impugned order the High Court set aside the  

said order on the ground that the accused were denied an  

opportunity  of  being  heard  and  that  the  trial  court’s  

observation  that  there  was  prima  facie  case  against  the  

accused was made without applying mind to  the relevant  

record.  The High Court also transferred the matter from the  

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court of Special Judge Chamba to the Court of Special Judge  

Kangra at Dharmashala on the ground that the apprehension  

expressed by respondent no. 1 that she would not get fair  

trial in the Court at Chamba was well founded.  A direction  

was issued that the matter be proceeded with in accordance  

with the provisions of Sections 239 and 240 of the Code of  

Criminal Procedure (the “Code” for Short).  It may be stated  

here  that  the  original  complainant  Shri  Kuldeep  Singh  

expired in 2001.  The appellant was the elected Municipal  

Councilor of Dhalhousie Municipal Committee from 1995 to  

2000 and from 2000 till it was suspended in 2003. It is the  

case of the appellant that the State of Himachal Pradesh for  

political  reasons  was  not  interested  in  challenging  the  

impugned  judgment  though  in  this  case  there  is  illegal  

grabbing of Government forest land worth crores of rupees.  

He has, therefore, filed the instant appeal upon permission  

being granted by this Court in larger public interest.  

2. It is necessary to give brief background of the case.  

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3. One Raja  Laxman Singh the original  owner  of  85.10  

bighas  of  land situate  at  Mauza  Jandrighat  Bhatyat  (now  

Chuwari)  expired  on  20.5.1971.  His  properties  were  

inherited  by  one  Raja  Prem Singh  and  after  coming  into  

force of the Himachal Pradesh Ceiling on Land Holdings Act,  

1972, the said land vested in the State of Himachal Pradesh.  

Brijender Singh got married to respondent no. 1 in 1978.  

Between  1977 and  1978  revenue  records  were  tampered  

with in connivance with the revenue officials and the names  

of  the  domestic  servants  of  Brijender  Singh  namely  Piar  

Singh, Arjun Singh, Bemi Ram, Narvada Devi, Nand Lal and  

Laxmi  Devi  were  entered  in  revenue  records  as  non-

occupancy tenants in respect of 67.3 bighas of land. After  

protracted  litigation  the  aforesaid  persons  were  declared  

non-occupancy  tenants  of  67.3  bighas  of  land   and  

proprietary rights in respect  thereof  were conferred upon  

them vide mutations attested on 23.6.1987 and 8.12.1987.  

Thereafter Brijender Singh is stated to have fabricated two  

Wills – one of Arjun Singh and other of Piar Singh.  On the  

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basis thereof Brijender Singh is stated to have got the land  

of Piar  Singh and Arjun Singh mutated in his favour vide  

mutation dated 29.7.1994.  The first respondent is stated to  

have  obtained  three  General  Power  of  Attorneys  on  

29.1.1993 and 30.1.1993 from Narvada Devi, Nand Lal and  

Bemi Ram authorizing her to sell their land in favour of her  

husband Brijender Singh for consideration.   On the basis of  

the said General Power of Attorneys the first respondent is  

stated  to have made two sales  in  favour  of  her  husband  

Brijender Singh. Thus, in short,  the allegation against the  

first  respondent  and  her  husband  Brijender  Singh  is  that  

they conspired to get wrong entries made in the revenue  

records and to secure illegal orders regarding conferment of  

proprietary  rights  in  favour  of  the  servants  of  Brijender  

Singh who finally  managed  to  become owner  of  the  said  

land. This was done by using forged Power of Attorneys and  

fictitious Wills with connivance of Revenue Officials.

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4. We have heard learned counsel for the parties at some  

length.  We have also gone through the written submissions  

tendered by them.  

5. At the outset we must refer to the preliminary objection  

raised by counsel for respondent no. 1.  Counsel submitted  

that the original complainant has expired and as such the  

present  appellant  has  no locus  to  file  the  instant  appeal.  

Counsel  submitted  that  the  appellant  has  a  personal  

grievance against respondent no.1.  He is the son of Smt.  

Chadha a member of legislative assembly.  Smt. Chadha had  

filed  election  petition  against  respondent  no.1.   It  was  

dismissed.  The appellant has filed the present petition to  

settle  Smt.  Chadha’s  political  scores.   Counsel  submitted  

that the appeal is politically motivated and deserves to be  

dismissed on that ground also.  Ms. Arora learned counsel  

for the appellant has vehemently opposed this submission.

6. So  far  as  the  preliminary  objection  is  concerned  we  

may usefully  refer  to  the  judgment  of  this  Court  in  PSR  

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Sadhanantham v.  Arunachalam1.   There  the  State  not  

having  filed  an  appeal  against  the  judgment  of  the  High  

Court acquitting the accused who had allegedly committed  

the murder of her brother, the petitioner filed petition in this  

Court  under  Article  136  of  the  Constitution  of  India  

challenging the said judgment of acquittal.  Objection was  

raised to the maintainability of the said petition.  Dealing  

with the scope of Article 136, this Court observed that in  

express terms it does not confer a right of appeal on a party  

as  such,  but  it  confers  wide  discretionary  power  on  the  

Supreme Court  to  interfere  in  suitable  cases.   This  court  

further  observed  that  it  is  true  that  strict  vigilance  over  

abuse of the powers of this court should be maintained and  

in the criminal jurisprudence this strictness applies a fortiori,  

but in the absence of an independent prosecution authority  

easily accessible to every citizen, a wider connotation to the  

expression ‘standing’ is necessary for Article 136 to further  

its mission.  No dogmatic proscription of leave under Article  

136 to a  non-party  applicant  can be laid down inflexibly.  1 (1980) 3 SCC 141

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This court rejected the objection raised to the maintainability  

of the petition.

7. In our view the preliminary objection raised by counsel  

for the first respondent is liable to be rejected in the light of  

the above judgment.  The allegations made against the first  

respondent are serious.  There is a prima facie case against  

the  first  respondent.   By  the  impugned order  the  charge  

framed against not only the first respondent but against all  

the  accused  is  quashed.   It  is  true  that  the  matter  is  

remanded, but while remanding the matter the High Court  

has expressed that there is no prima facie case against the  

first  respondent,  thus  frustrating  the  purpose  of  remand  

order.  We, therefore feel that interference by this Court is  

necessary.  We do not think that the petition is politically  

motivated.  But assuming there is political rivalry between  

the first respondent and the appellant’s aunt in our opinion  

since the charge is about grabbing of government land in  

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the larger public interest the appeal cannot be dismissed in  

limine.  The preliminary objection is, therefore, rejected.   

8. We shall now go to the other submissions advanced by  

the counsel.   Ms.  Arora learned counsel  for  the appellant  

submitted that the High Court has erroneously come to the  

conclusion  that  the  first  respondent  had  been  denied  an  

opportunity of being heard.  In fact the first respondent was  

given  adequate  hearing.   At  the  penultimate  stage  an  

application for change of counsel was made by her.  Counsel  

submitted that this shows mala fides and motive to delay  

the proceedings.   Counsel  submitted that  at  the stage of  

charge, the trial court has to peruse the police report and  

the documents submitted with it and consider whether prima  

facie case is made out or not.  The trial court has rightly  

come to the conclusion that there is prima facie case and  

framed  the  charge.   The  High  Court  however,  while  

exercising its  revisional  jurisdiction  wrongly went  into the  

material,  analysed  the  facts  and  made  observation  that  

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there was no prima facie case.  In this connection counsel  

relied on  State of Orissa v.  Debendra Nath Padhi2 and  

Munna Devi V.  State of Rajasthan3.  Counsel submitted  

that  the  High  Court  wrongly  transferred  the  case  to  the  

Special Judge, Kangra on the basis of baseless allegations  

made  by  respondent  no.1.   Counsel  urged  that  for  the  

aforementioned reasons the impugned judgment and order  

deserves to be quashed.

9. Mr.  P.S.  Patawalia,  learned  senior  counsel  for  

respondent  no.1  submitted  that  the  allegations  made  

against  the  first  respondent  and  her  husband  Brijender  

Singh have already been adjudicated by various courts in  

Himachal Pradesh.  The State of Himachal Pradesh through  

its officer denied the contention that the names of servants  

of Brijender Singh were recorded as non-occupancy tenants  

in  connivance  with  Revenue  Officials.  The  High  Court  

therefore, dismissed that writ petition.  Counsel submitted  

2 (2005) 1 SCC 568  3 (2001) 9 SCC 631.

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that  thereafter  a  civil  suit  was  filed  in  the  court  of  Civil  

Judge,  Dalhousie  by  a  MLA making the same allegations.  

Again the State of Himachal Pradesh denied the allegations.  

The suit therefore came to be dismissed. Counsel submitted  

that Shri Kuldeep Singh gave written complaint on 6.8.1998.  

The FIR came to be lodged on 15.12.01.  This delay casts  

shadow of doubt about is genuineness.  Counsel submitted  

that  by  the  impugned  order  the  High  Court  has  merely  

remanded the matter to the trial court.  This is not a case,  

therefore, where this court should interfere in its jurisdiction  

under  Article  136  of  the  Constitution  of  India.   In  this  

connection  the  counsel  relied  on  Mathai  alias  Joby vs.  

George & Another4 and  Jamshed Harmusji  Wadia vs.  

Port of Mumbai5.

10. Counsel  further  submitted  that  respondent  no.1  got  

married to Brijender Singh on 19.4.79.   She was, therefore,  

not  present  in  Himachal  Pradesh  when the  names  of  the  

4 (2010) 4 SCC 358 5 (2004) 3 SCC 214

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tenants  were  recorded  in  the  revenue  records.   This  

important  fact  is  not  noted  by  the  trial  court.   Counsel  

submitted that the record of the case shows that before the  

land vested in the Government, the non-occupant tenants  

were  already  in  possession  of  the  land  and  were  paying  

annual  rent.   Smt.  Narbada  Devi  in  her  bail  application  

before  the  Sessions  Court  stated  that  she  had  issued  

General  Power  of  Attorney in  favour  of  respondent  no.  1  

without  any fear  or  coercion.   The report  of  the forensic  

expert states that signatures of the persons who gave Power  

of  Attorneys  were not  forged and none of  the said three  

persons had made any complaint with regard to the non-

receipt of sale amount.

11. Counsel  submitted  that  the  trial  court  did  not  allow  

respondent no.1 to engage a counsel and framed the charge  

in  the  absence  of  her  counsel  which  has  caused  great  

prejudice to her.  In this connection counsel relied on Netraj  

Singh vs. State of M.P6.  Counsel submitted that the High  6 (2007) 12 SCC 520.    

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Court has rightly invoked the revisional jurisdiction, because  

respondent no.1 was deprived of her legitimate right under  

Section 303 of the Code to engage a counsel of her choice.  

Council submitted that in the circumstances no interference  

is necessary with the impugned order.

12. Counsel for respondent no. 1 is right in submitting that  

though the discretionary power vested in this Court under  

Article 136 is apparently not subject to any limitations, it has  

to be used sparingly and in exceptional cases. But we have  

no manner of doubt that this indeed is an exceptional case  

where interference under Article 136 is called for.  In our  

opinion, the High Court has completely misdirected itself in  

reversing the trial court’s order framing charge.  The High  

Court’s  judgment  is  tainted  with  legal  infirmities  and has  

resulted in miscarriage of justice. Following are the reasons  

for this conclusion of ours.  

13. The  High  Court  has  in  its  revisional  jurisdiction  

appraised the evidence which it could not have done.  It is  

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the  trial  court  which  has  to  decide  whether  evidence  on  

record is sufficient to make out a prima facie case against  

the accused so as to frame charge against him.  Pertinently,  

even the trial court cannot conduct roving and fishing inquiry  

into the evidence.  It has only to consider whether evidence  

collected  by  the  prosecution  discloses  prima  facie  case  

against  the  accused or  not.   In  this  connection,  we may  

usefully refer  to the observations of  this  court in  Munna  

Devi  vs. State of Rajasthan & Anr.  7    

“We find substance in the submission made on  behalf of the appellant. The revision power under  the  Code  of  Criminal  Procedure  cannot  be  exercised in a routine and casual manner. While  exercising  such  powers  the  High  Court  has  no  authority  to  appreciate  the  evidence  in  the  manner as the trial and the appellate courts are  required  to  do.  Revisional  powers  could  be  exercised only when it is shown that there is a  legal bar against the continuance of the criminal  proceedings or the framing of charge or the facts  as stated in the first information report even if  they are taken at the face value and accepted in  their  entirety  do not  constitute  the offence  for  which the accused has been charged.”

7 (2001) 9 SCC 631

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14. Ignoring  the  above  settled  position  in  law,  the  High  

Court  has  noticed  that  fake  entries  were  made  in  the  

revenue  records  during  the  years  1973-1974;  that  

respondent no. 1 was married to Brijender Singh in 1978  

and  that  there  is  no  evidence  that  before  her  marriage,  

respondent no. 1 was not residing in her parent’s house in  

Madhya Pradesh as is her case but was residing in Chamba  

with  her  prospective  in-laws.    The  High  Court  has  then  

concluded  that  it  cannot  be  held,  prima  facie,  that  

respondent no. 1 was a conspirator in bringing about the  

fake entries in the revenue records in the years 1973-1974.  

It cannot be forgotten that it is also the prosecution case  

that  respondent  no.  1  obtained three  Power  of  Attorneys  

from three of the tenants in January, 1993 and, on the basis  

thereof,  she  made  two  fraudulent  sales  in  favour  of  her  

husband,  Brijender  Singh.   Two  Wills  are  stated  to  have  

been  fabricated  by  her  husband  Brijender  Singh  to  get  

Government  land transferred in  his  name.   The facts  are  

inextricably  interwoven.   Brijender  Singh,  the  husband of  

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respondent  no.  1  is  stated  to  be  deeply  involved  in  the  

alleged conspiracy.  In such circumstances, the High Court  

should have left the final adjudication to the trial court by  

not  quashing  the  charge.   The  High  Court  unnecessarily  

observed  that  the  charge  is  vague.   It  overstepped  its  

revisional  jurisdiction.   It  is  contended  that  the  State  of  

Himachal Pradesh had taken a stand that concerned revenue  

entries  are  genuine.   In  our  opinion,  whether  concerned  

revenue  entries  are  genuine  or  not  will  also  have  to  be  

decided by the trial court after perusing the evidence led by  

the parties.  

15. Besides, the tenor of High Court’s order suggests that  

the High Court  has formed an opinion that  there was no  

prima facie case against respondent no. 1.  A prima facie  

opinion  of  the  High  Court  in  such  a  strongly  worded  

language is likely to influence the trial court.  If the High  

Court  wanted  to  remand  the  matter  on  the  ground  that  

respondent  no.  1  was  denied  opportunity  to  engage  a  

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counsel  it  should  have  stopped  at  that.  By  expressing  

opinion on merits of the case, the High Court almost decided  

the matter in favour of respondent no. 1 thus frustrating the  

remand and virtually acquitting respondent no. 1.   

16. We  are  also  not  impressed  by  the  submission  that  

respondent no.1 was denied her right to be defended by a  

lawyer of her choice.  From the impugned order and from  

the order of learned Special Judge it is clear that the Special  

Judge  conducted  the  proceedings  for  framing  charge  on  

6.12.2003,  12.12.03,  3.1.2004,  14.1.2004,  7.2.2004,  

15.3.2004,  5.4.2004,  26.4.2004,  10.5.2004,  4.6.2004,  

12.7.2004,  6.12.2004,  8.12.2004,  10.12.2004  and  

4.1.2005.  From the Special Judge’s order it is clear that Mr.  

Malhotra was appearing for respondent no.1 and also for her  

husband Brijender Singh.  It is pertinent to note that during  

the  course  of  the  hearing  the  State  filed  its  reply  on  

4.12.2004.  The case was posted for consideration of charge  

on  8.12.2004.  On  8.12.2004  co-accused  Brijender  Singh  

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raised an objection that copy of the reply dated 7.2.2004  

was not supplied to him.  He was permitted to inspect the  

record. Shri Malhotra submitted that he was not in a position  

to argue the case on charge.  The request for adjournment  

was disallowed. Shri Malhotra then submitted that he was  

ready to argue the case even on behalf of respondent no. 1.  

In fact, he advanced arguments. He, however, stated that  

he  would  make  further  submissions  on  10.12.2004  after  

inspection of the record.  The case was then adjourned to  

10.12.2004.  On that  day neither  the counsel  for  the first  

respondent  was  present  nor  the  first  respondent  was  

present.  Respondent no. 1 made a telegraphic request for  

adjournment on the ground that her mother was ill.  That  

application was rejected.  On 4.1.2005, Shri Malhotra who  

had been appearing for respondent no. 1 stated that he had  

no instructions to appear for respondent no. 1.  Respondent  

no. 1 filed an application that she wanted to be defended by  

a counsel of her choice.  Learned Special Judge rejected the  

prayer and framed the charge observing that Shri Malhotra  

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had advanced arguments on behalf of respondent no. 1 and  

since State’s reply dated 4.12.2004 did not disclose any new  

facts  adjournment  was  not  necessary.   Learned  Special  

Judge rejected the contention of respondent no. 1 that Shri  

Malhotra  was  not  her  counsel  because  order  sheet  of  

8.12.2004  made  it  clear  that  Shri  Malhotra  had  moved  

application  for  exemption  from  personal  appearance  on  

behalf of respondent no. 1.  

17. The manner in which the proceedings were conducted  

on  behalf  of  respondent  no.  1  leads  us  to  conclude  that  

respondent no. 1 wanted to delay the framing of charges.  

Shri Malhotra had appeared for respondent no. 1 and also  

for her husband Brijender Singh.  He had made exemption  

application on behalf of respondent no. 1.  Respondent no.  

1’s  desire  to  change  the  horse  in  the  midstream  was  

obviously not genuine but was a dilatory tactic.  The High  

Court wrongly came to the conclusion that respondent no.1  

was not given a chance to engage a counsel of her choice.  

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We have no hesitation in observing that, in this case, there  

is no violation of Section 303 of the Code or Article 22 (1) of  

the Constitution of India.   

18. It is also significant to note that while the order was  

being dictated  by learned Special  Judge,  respondent  no.1  

moved an application for transfer of the case since allegedly  

an opportunity of being heard through an advocate of her  

choice  was  denied  to  her.   This  application  was  rightly  

rejected by Special Judge for want of jurisdiction.  Learned  

Special Judge then framed charges against respondent no.1  

and other  accused.   Respondent  no.1 then requested the  

High  Court  to  transfer  her  case  from the  file  of  learned  

Special Judge Chamba to the Court of Special Judge, Kangra  

on the ground that she had reasonable apprehension that  

she will not get a fair trial.  The High Court, in our opinion,  

wrongly transferred the case as desired by respondent no.1.  

Apprehension expressed by respondent no.1 that she would  

not get a fair trial was baseless.  We have already noted the  

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number of dates on which learned Special Judge adjourned  

the  proceedings.   It  is  only  when  he  was  satisfied  that  

respondent  no.1  was  purposely  seeking  adjournment  and  

that  Mr.  Malhotra,  counsel  appearing for  respondent  no.1  

had argued her case that learned Special Judge refused to  

grant further adjournment. We do not find any material to  

substantiate the fear expressed by respondent no.1 that she  

would not get a fair trial.  The High Court, therefore, should  

not have transferred the case to the Special Judge, Kangra.  

Needless to say that such transfers ordered merely on the  

say-so of  a  party  have a  demoralizing effect  on  the trial  

courts.   Unless  a  very  strong  case  based  on  concrete  

material is made out, such transfers should not be ordered.  

We must  also  note that  the High Court  has  quashed the  

charge not only against respondent no.1 but also against all  

the  accused  when  no  such  prayer  was  made.   Reliance  

placed by the High Court on the judgment of learned Single  

Judge of Calcutta High Court in Bimal Chand Dhandhia vs.  

State8 is  totally  misplaced.   In  that  case,  learned  Single  8 1976 CRI.L.J. 1594

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Judge of the Calcutta High Court has observed that learned  

Magistrate  had  failed  to  proceed  in  accordance  with  the  

procedure established by law in framing the charges against  

the  accused.    No  such  case  is  made  out  here.   It  was  

improper for the High Court to go beyond the scope of the  

prayers  made  by  respondent  no.1  and  quash  even  the  

charges framed against all other accused.  

19. In view of the above, we are of the opinion that the  

impugned order has resulted in miscarriage of justice.  It will  

have  to  be,  therefore,  set  aside  and  is,  accordingly,  set  

aside.   We confirm the order framing charge dated 4.1.2005  

passed by learned Special Judge, Chamba and direct him to  

proceed further in accordance with law.   We make it clear  

that if any observations made by us touch the merits of the  

case,  they should be treated as prima facie observations.  

Learned Special Judge shall deal with the case independently  

and in accordance with law.  

20. The appeal is disposed of in the aforestated terms.

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……………………………………………..J. (SWATANTER KUMAR)

……………………………………………..J. (RANJANA PRAKASH DESAI)

NEW DELHI DECEMBER 2, 2011

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