ASHISH CHADHAversusSMT. ASHA KUMARI & ANR.

               [2011] 13 (ADDL.) S.C.R. 417

                    ASHISH CHADHA                             A
                             v.
               SMT. ASHA KUMARI & ANR.
            (Criminal Appeal No. 893 of 2005)
                   DECEMBER 2, 2011
                                                              B
   [SWATANTER KUMAR AND RANJANA PRAKASH
                 DESAI, JJ.]

    CONSTITUTION OF /NOIA, 1950:
                                                              c
     Article 136 - Locus to file appeal and jurisdiction of
Supreme Court - Complaint alleging illegal transfer of
Government land - Order of Special Judge framing charges,
set aside by High and the case transferred to a different court
- Original complainant died - Special leave petition filed by 0
an Ex-Municipal Councillor with a petition for leave to file the
SLP - Held: Though in express terms, Article 136 does not
confer a right of appeal on a party as such, but it confers
discretionary power on Supreme Court to interfere in suitable
cases - In the instant case, the allegations made against E
respondent no. 1 are serious - There is a prima facie case
against /Jer - By t/Je impugned order not only the charge
framed against /Jer but also against all the accused has been
quashed - Though the matter has been remanded, the High
Court by observing that there is no prima facie case against F
respondent no. 1, has frustrated the purpose of remand order
- Besides, without there being any material on record, the High
Court has transferred the case to a different court - The High
Court's judgment is tainted with legal infirmities and has
resulted in miscarriage of justice - Therefore, interference by
Supreme Court is necessary in larger public interest - Code G
of Criminal Procedure, 1973 - s. 401.

    CODE OF CRIMINAL PROCEDURE, 1973:

                            417                               H
    418   SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A       s. 401 - High Court's power of revision - Scope of -
   Charge framed by Special Court set aside by High Court and
  the case remanded and transferred to a different court - Held:
   The High Court has completely misdirected itself in reversing
  the trial court's order framing the charge - .High Court in its
B revisional jurisdiction appraised the evidence which it could
  not have done - Ignoring the settled position in law, the High
  Court discussed the details of the facts and drew inferences
  - The High Court should have left the final adjudication to the
  trial court by not quashing the charge - Besides, the High
c Court unnecessarily observed that the charge is vague -
  Further, the High Court transferred the case to a different
  court, without there being any material on record for such an
  order - It overstepped its revisional jurisdiction - Order of the
  High Court has resulted in miscarriage of justice and, as such,
  is set aside - The order framing charge by Special Judge is
0
  confirmed and he is directed to proceed further in accordance
  with law - Constitution of India, 1950 - Article 136.

        s. 303 - Right of person against whom proceedings are
  instituted to be defended - Criminal proceedings against
E husband and wife - Both represented by one and the same
  Counsel - Proceedings for framing charges conducted on 15
  dates - On the date of framing the charge, the same counsel,
  who had argued the case on behalf of the wife, stated that he
  had no instructions to represent her - The wife also filed an
F application that she wanted to be defended by a counsel of
  her choice - Application rejected by trial court - Further
  application for transfer of the case also rejected - In revision,
  the High Court observing that the applicant had been denied
  opportunity to be defended by counsel of her choice,
G remanded the case, but to a different court - Held: The
  attempt of the applicant to change the counsel was a dilatory
  tactic - There is no violation of s. 303 of the Code or Article
  22 (1) of the Constitution - Constitution of India, 1950-Article
  22 (1).
H
    ASHISH CHADHA v. ASHA KUMARI & ANR.                  419


    ADMINISTRATION OF JUSTICE:                                  A
     Transfer of cases by High Court - HELD: 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
                                                                8
be ordered - Transfer petition.

      A complaint was filed against respondent no.1, who
had been the Member of the State Legislative Assembly,
her husband (since deceased) and others, stating that
they conspired to get wrong entries made in the revenue         C
records and to secure illegal orders regarding
conferment of proprietary rights in favour of the servants
of the husband of respondent no.1, who finally managed
to become owner of the said land. This was stated to
have been done by using forged Power of Attorneys and           D
fictitious wills with connivance of revenue officials. The
Special Judge, Chamba framed charges against
respondent no. 1 for offences punishable ulss 420, 218,
467, 468, 471 read with s. 120-B IPC. On a criminal
revision filed by respondent no.1, the High Court set aside     E
the order of the Special Judge on the ground that the
accused were denied an opportunity of being heard and
that the trial court's observation that there was a prima
facie case against the accused was made without
applying mind to the relevant record. The High Court also       F
transferred the matter 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. Meanwhile, the original complainant expired            G
and the appellant, an Ex-Municipal Councillor filed the
appeal upon permission being granted by the Supreme
Court in larger public interest.

   Respondent no.1 besides contesting the appeal on
merits, raised a preliminary objection that since the           H
   420    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A original complainant had died the appellant had no locus
   to file the instant appeal.

         Disposing of the appeal, the Court

       HELD: 1. So far as the preliminary objection is
B concerned, this Court in PSR Sadhanantham's case*, while
  dealing with the scope of Article 136 of the Constitution
  of India, 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
C 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
D 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. [Para 5-6] [426-H; 427-A-F]
E
       *PSR Sadhanantham v. Arunachalam (1980) 3 SCC
  141 - relied on.

       1.2 In the instant case, the allegations made against
  respondent no. 1 are serious. There is a prima facie case
F against her. By the impugned order the charge framed
  against not only respondent no. 1 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
G respondent no. 1, thus, frustrating the purpose of remand
  order. Therefore, interference by this Court is necessary
  in larger public interest. [Para 7] [427-H; 428-A-C]

     2.1 Though the discretionary power vested in this
H Court under Article 136 is apparently not subject to any
      ASHISH CHADHA v. ASHA KUMAR! & ANR.               421


  limitations, it has to be used sparingly and in exceptional   A
·cases. But there is no manner of doubt that the instant
 case is an exceptional one where interference under
 Article 136 is called for. The High Court has completely
 misdirected itself in reversing the trial court's order
 framing charge. The High Court's judgment is tainted           B
 with legal infirmities and has resulted in miscarriage of
 justice. [Para 12] [430-D-E]

     2.2 The High Court has in its revisional jurisdiction
appraised the evidence which it could not have done.
Ignoring the settled position in law, the High Court C
discussed the details of some selected facts and drew
inferences. The facts of the case are inextricably
interwoven. It is significant to note that respondent no. 1
made two fraudulent sales in favour of her husband who
is stated to have been deeply involved in the alleged D
conspiracy. In such circumstances, the High Court
should have left the final adjudication to the trial court by
not quashing the charge. Whether the revenue entries
are genuine or not will also have to be decided oy the trial
court after perusing the evidence led by the parties. The E
High Court unnecessarily observed that the charge is
vague. It overstepped its revisional jurisdiction. [Para 13-
14] [430-F; 431-D-H]

    Munna Devi vs. State of Rajasthan & Anr. (2001) 9 SCC       F
631 - relied on.

     2.3 Besides, the tenor of High Court's order suggests
that it 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         G
likely to influence the trial court. 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 her. [Para 15] [432-B-C]
                                                                H
                                                                  -
    422   SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A       3.1 It cannot be said 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 the Special
  Judge it is clear that the Special Judge conducted the
  proceedings for framing charge on 15 dates from
B 6.12.2003 to 4.1.2005. From the Special Judge's order it
  is clear that 'M' was appearing as counsel both for
  respondent no.1 and her husband, but on 4.1.2005, he
  stated that he had no instructions to appear for
  respondent no. 1. Respondent no. 1 filed an application
c that she wanted to be defended by a counsel of her
  choice. The Special Judge rejected the prayer and framed
   the charges observing that 'M' 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. The manner in which
0
   the proceedings were conducted on behalf of respondent
   no. 1, leads this Court to conclude that she wanted to
   delay the framing of charges. Her desire to change the
   counsel was obviously not genuine but was a dilatory
E 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. In the instant case, there is no
   violation of s 303 of the Code of Criminal Procedure, 1973
    or Article 22 (1) of the Constitution. [para 16-17] [432-D-
    H; 433-A-C-E-F]
F
      3.2 It is also significant to note that while the order
  was being dictated by the Special Judge, respondent no.1
  moved an application for transfer of the case stating that
  an opportunity of being heard through an advocate of
G her choice was denied to her. This application was rightly
  rejected by the Special Judge for want of jurisdiction.
  Respondent no.1 then requested the High Court to
  transfer her case from the file of the Special Judge,
  Chamba to the Court of Special Judge, Kangra on the
H
    ASHISH CHADHA v. ASHA KUMAR! & ANR.              423


ground that she had reasonable apprehension that she        A
would not get a fair trial. The High Court, wrongly
transferred the case, as the apprehension expressed by
respondent no.1 was baseless and there was no material
to substantiate it. Such transfers ordered merely on the
say-so of a party have a demoralizing effect on the trial   B
courts. Unless a very strong case based on concrete
material is made out, transfers should not be ordered.
[para 18] [ 433-G-H; 434-A-E]

    4.1 It must also be noted that the High Court has
quashed the charge not only against respondent no.1 C
but also against all the accused when no such prayer
was made. 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. [para 18] [434-E-G]                             D

    Bimal Chand Dhandhia vs. State 1976 Crl. L. J. 1594 -
held inapplicable.

     4.2 The impugned order has resulted in miscarriage     E
of justice, and is, therefore, set aside. The order dated
4.1.2005 framing charge by Special Judge, Chamba is
confirmed and he is directed to proceed further in
accordance with law. [para 19] [434-H; 435-A-B]

     Sadhanantham v. Arunachalam (1980) 3 SCC 141, F
State of Orissa v. Debendra Nath Padhi 2004 (6) Suppl. SCR
460 = (2005) 1 SCC 568, Mathai alias Joby vs. George &
Another 2010 (3) SCR 533 = (2010) 4 SCC 358, Jamshed
Harmusji Wadia vs. Port of Mumbai 2004 (1) SCR 483 =
(2004) 3 SCC 214; and Netraj Singh vs. State of M. P. 2007 G
(4) scR 370 =(2007) 12 sec 520 - cited.

                      Case Law Reference:
   (1980) 3 sec 141         cited           para 6
                                                            H
    424    SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.


A     2004 (6) Suppl. SCR 460 cited             para 8
      (2001) 9 sec 631          relied on       para 8 and 13
      2010 (3) SCR 533          cited           para 9
      2004 (1) SCR 483          cited           para 9
B
      2007 (4) SCR 370          cited           para 11
      1976 Crl. L. J. 1594      held inapplicable para 18

          CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
c No. 893 of 2005.
          From the Judgment & Order dated 29.04.2005 of the High
    Court of Himanchal Pradesh at Shimla in Criminal Revision
    Petition No. 20 of 2005.
D
         P.S. Patwalia, Meenakshi Arora, Suryanarayana Singh,
    Pragati Neekhra, Aman Pree! Singh Rahi, Naresh K Sharma,
    N.K. Srivastava for the appearing parties.

        The following Judgment of the Court was delivered by
E
       (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
F 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
G 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
H
     ASHISH CHADHA v. ASHA KUMARI & ANR.                   425
          (RANJANA PRAKASH DESAI, J.]
against the first respondent and others on 4.1.2005 under A
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 B
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 c
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 0
 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 E
 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.                  F

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

     3. One Raja Laxman Singh the original owner of 85.1 O
bighas of land situate at Mauza Jandrighat Bhatyat (now G
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
                                                             H
    426    SUPREME COURT REPORTS [2011] 13 {ADDL.) S.C.R.


A 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,
   Berni Ram, Narvada Devi, Nand Lal and Laxmi Devi were
   entered in revenue records as non-occupancy tenants in
B respect of 67.3 bighas of land. After protracted litigation the
  aforesaid persons were declared non-occupancy tenants of
  67 .3 big has 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
c to have fabricated two Wills - one of Arjun Singh and other of
   Piar Singh. 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
0 29.1.1993 and 30.1.1993 from Narvada Devi, Nand Lal and
  Berni 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
E 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
F of Attorneys and fictitious Wills with connivance of Revenue
  Officials.

       4. We have heard learned counsel for the parties at some
  length. We have also gone through the written submissions
G 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
H
       ASHISH CHADHA v. ASHA KUMAR! & ANR.                       427
            [RANJANA PRAKASH DESAI, J.]
  respondent no.1. He is the son of Smt. Chadha a member of              A
. 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.            B
  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
 Sadhanant!Jam v. Arunachalam'. There the State not having C
 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 D
 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
 powe~ on the Supreme Court to interfere in suitable cases. This
 court further observed that it is true that strict vigilance over E
 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 F
 mission. No dogmatic proscription of leave under Article 136
 to a non-party applicant can be laid down inflexibly. This court
 rejected the objection raised to the maintainability of the
 petition.
       7. In our view the preliminary objection raised by counsel        G
 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
 1.   (1980) 3 sec 141.                                                  H
    428     SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.

A 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
B 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 the larger public interest the appeal cannot
C 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
D 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.
E 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
F however, while exercising its revisional jurisdiction wrongly went
  into the material, analysed the facts and made observation that
  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 Rajasthan 3 . Counsel submitted that the High Court
  wrongly transferred the case to the Special Judge, Kangra on
G 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.

    2.   c2005) 1 sec 568.
H   3.   c2001) 9 sec 631.
      ASHISH CHADHA v. ASHA KUMAR! & ANR.                  429
           [RANJANA PRAKASH DESAI, J.]
       9. Mr. P.S. Patawalia, learned senior counsel for A
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 B
Singh were recorded as non-occupancy tenants in connivance
with Revenue Officials. The High Court therefore, dismissed
that writ petition. Counsel submitted 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 c
 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 D
 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 E
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 tenants
were recorded in the revenue records. This important fact is      F
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    G
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
4.   c2010) 4 sec 358.
5.   (2004) 3 sec 214.                                            H
     430     SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R


A 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
B 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.P. 6 Counsel submitted that the High Court
  has rightly invoked the revisional jurisdiction, because
  respondent no.1 was deprived of her legitimate right under
C 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
D 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 c&iied for. In our opinion, the
  High Court has completely misdirected itself in reversing the
E 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
F 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
G 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
    s.   c2001i 12 sec s20.
H   1.   c2004l 3 sec 214.
    ASHISH CHADHA v. ASHA KUMARI & ANR.                    431
         [RANJANA PRAKASH DESAI, J.]
    "We find substance in the submission made on behalf of         A
    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      B
    to do. Revisional powers could be exercised only when ii
    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     c
    do not constitute the offence for which the accused has
    been charged."
     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 D
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 E
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 F
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 G
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
                                                                   H
    432    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A 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
B 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
C 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.

0        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,
E   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
F   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
G   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
H   10.12.2004 after inspection of the record. The case was then
    ASHISH CHADHA v. ASHA KUMARI & ANR.                      433
         [RANJANA PRAKASH DESAI, J.]
adjourned to 10.12.2004. On that day neither the counsel for A
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 B
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 c
 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 D
 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          E
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            F
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.
     18. It is also significant to note thai while the order was
being dictated by learned Special Judge, respondent no.1             G
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          H
     434      SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A 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
B 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
c 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,
0
   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
E 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 Judge of the Calcutta High Court has
F 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
G 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.
H   8.   1976 CRl.L.J. 1594.
       ASHISH CHADHA v. ASHA KUMAR! & ANR.                 435
            [RANJANA PRAKASH DESAI, J.]
We confirm the order framing charge dated 4.1.2005 passed        A
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      B
accordance with law.

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

R.P.                                      Appeal disposed of.