Ashish Chadha Vs.
Smt. Asha Kumari & ANR.
Criminal Appeal No.
893 of 2005
SMT. RANJANA PRAKASH
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 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
is necessary to give brief background of the case.
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
On the 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
have heard learned counsel for the parties at some length. We have also gone
through the written submissions tendered by them.
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
far as the preliminary objection is concerned we may usefully refer to the judgment
of this Court in PSR 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 This court rejected the objection raised to the
maintainability of the petition.
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 9the larger
public interest the appeal cannot be dismissed in limine. The preliminary
objection is, therefore, rejected.
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
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 10there was no prima
In this connection counsel
relied on State of Orissa v. Debendra Nath Padhi2 and Munna Devi V. State of Rajasthan.
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.
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
The High Court therefore,
dismissed that writ petition. Counsel submitted 2 (2005) 1 SCC 568 3 (2001) 9
SCC 631. 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
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 3585 (2004) 3 SCC 214 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.
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. 13Court 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.
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.
High Court has in its revisional jurisdiction appraised the evidence which it
could not have done. It is 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
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 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.
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 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.
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
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 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
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 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.
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. 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.
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 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. State is totally misplaced. In that case, learned Single
8 1976 CRI.L.J. 1594 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.
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.
appeal is disposed of in the aforestated terms.
(RANJANA PRAKASH DESAI)