when the original complainant has expired and as such the present appellant has no locus to file the instant appeal?

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
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