TMI Blog2011 (12) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the said land. This was done by using forged Power 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 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 Sadhanantham v. Arunachalam (1980) 3 SCC 141. There the State not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portunity 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 there was no prima facie case. In this connection counsel relied on State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568 and Munna Devi V. State of Rajasthan (2001) 9 SCC 631. 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 subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 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. Per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... 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