Ashish Chadha vs Asha Kumari And Anr

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

2

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

3

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.

4

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

5

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.

6

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

7

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

8

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

9

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

10

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.

11

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

12

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.

13

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

14

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

15

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

16

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

17

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

18

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

19

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.

20

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

21

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

22

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.

23

.....................................................J.

(SWATANTER KUMAR)

.....................................................J.

(RANJANA PRAKASH DESAI)

NEW DELHI

DECEMBER 2, 2011