Shafiya Khan @ Shakuntala Prajapati vs State Of U.P. & Anr.

Ajay Rastogi, J

Leave granted.

This appeal is directed against the order dated 8th September, 2021 passed by the High Court of Judicature at Allahabad declining to interfere in the

criminal proceedings initiated against the appellant at the instance of respondent no.2/complainant (botherÂ​inÂ​law of the appellant).

The case of the appellant is that she was born in a Hindu family and was married in May 2009 when she was a minor (17 years) to one Shiv

Gobind Prajapati with whom she never stayed and the marriage was never consummated. In the divorce petition which was filed by Shiv Gobind

Prajapati, it was admitted that the marriage was never consummated and this marriage was dissolved through Village Panchayat in 2014 between the

families of the appellant and Shiv Gobind Prajapati, who thereafter married another woman, Suman Prajapati and this marriage being voidable under

Section 5 of the Hindu Marriage Act, 1955 and Section 3 of Prohibition of Child Marriage Act, 2006 was dissolved and annulled by the families of the

appellant and Shiv Gobind Prajapati.

The appellant treating her marriage to be annulled for all practical purposes, while doing her studies in Lucknow, met Mohd. Shameem Khan and

they got married on 11th December, 2016 under Sharia law in presence of entire family of her late husband, including respondent no.2/complainant,

against the wishes of her family. A certificate of marriage was issued by the competent authority and a translated copy of “Nikah Namaâ€

(Marriage Certificate) was issued by the Languages Department, Darul Uloom Nadwatul Ulama, Lucknow dated 11th December, 2016.

From this marriage, the appellant gave birth to a male child on 23rd September, 2017 and was living happily with her late husband. Unfortunately,

her husband passed away on 8th December, 2017. After the appellant obtained succession certificate in her name and no objection was given by her

mother inÂlaw to the employer of Mohd. Shameem Khan, she got employment in King George Medical University, Lucknow, as Auxiliary Nurse

Midwife (A.N.M.) on compassionate grounds by an order dated 19th May, 2018 w.e.f. 28th April, 2018 and being the legally wedded wife of the

deceased (late Mohd. Shameed Khan), his terminal dues were paid to her. The fact is that the entire gratuity amount of Rs.4,60,000/Â of her late

husband was transferred by her to the bank account of her mother inÂlaw. However, the destiny was not humble to her and she was thrown out of

her matrimonial home by respondent no.2 with an eleven months old child on 19th August, 2018 and thereafter respondent no.2 made all kinds of

malafide, false and frivolous allegations against the appellant, including to the employer of the appellant to remove her from employment.

After more than a year, at the instance of respondent no.2, a written complaint/FIR came to be registered against the appellant for offences under

Sections 494, 495, 416, 420, 504 & 506 IPC at PS Bazar Khala, District Lucknow, U.P. on 9th July, 2019. Anticipatory bail was granted to the

appellant and after charge sheet came to be filed on 23rd March, 2021 under Sections 494, 420, 504, 506, 467, 468 and 471 IPC, the learned trial

Judge took cognizance of the same and summoned the appellant.

At this stage, the appellant approached the High Court of Judicature at Allahabad under Section 482 Cr.P.C. for quashing of the proceedings, but

that came to be dismissed by the High Court under impugned order dated 8th September, 2021, which is the subject matter of challenge in the appeal

before us.

Counsel for the appellant submits that everything was running smoothly in her life, but because of the untimely sad demise of her husband late

Mohd. Shameem Khan, her brother inÂlaw left no stone unturned to pressurize her for handing over all the terminal benefits which she received on

account of death of her late husband and was interested to seek compassionate appointment in her place. This was the primary reason for which all

uncalled for allegations were levelled against her, including the forgery committed in preparing Nikah Nama.

It was alleged in the complaint that before annulment of first marriage, the appellant had entered into marriage with late Mohd. Shameem Khan on

11th December, 2016, and thereafter she started to harass his late brother mentally and physically and that was the reason for which his brother

suddenly died during his service on 8th December, 2017. It was further alleged that immediately after his death, there was a sudden change in the

behaviour of the appellant and she tried to oust her motherÂin law, sisterÂinÂlaw and respondent no.2/complainant from the house. Every day, she

used to threaten and abuse the family members and by committing a forgery, she obtained the job on compassionate grounds and took all the terminal

benefits and the genuine dependents of late Mohd. Shameem Khan (brother of the complainant) were deprived of his terminal benefits and this Nikah

(marriage) was solemnized by her without any divorce from her previous husband, on the basis of which the FIR was registered and charges were

framed against her.

Counsel for the appellant further submitted that it is not a case of the complainant that his brother (deceased) had ever made any complaint of any

nature during his lifetime against the appellant in reference to the matrimonial relationship between the appellant and her late husband (Mohd.

Shameem Khan) and after his untimely demise, all sort of allegations were levelled by her brotherÂinÂlaw on the basis of which the FIR was

registered.

Counsel further submits that there is no iota of evidence to support what is alleged in the complaint by respondent no.2 on the basis of which FIR

has been registered and even if what is being stated in the FIR is taken on its face value, prima facie, none of the offences which have been levelled

against the appellant in the chargeÂsheet are made out. In the given circumstances, if the criminal proceedings at this stage are allowed to continue

against her, it will be nothing but a clear abuse of the process of law and a mental harassment to the appellant, more so, when she has not only to

sustain her employment, but being the only bread winner of her family, she has to take care of her minor son also and further submits that the High

Court has not even looked into the prima facie allegations levelled in the FIR on the basis of which chargeÂsheet came to be filed and just after

quoting certain passages from the judgments of this Court, dismissed the petition preferred at her instance under Section 482 Cr.PC.

Counsel submits that the principles have been well laid down by this Court in State of Haryana and Others v. Bhajan Lal and Others 1992 Supp.

(1) SCC 335, and which have been consistently followed in the later years and taking the test as laid down by this Court, what being alleged in the

complaint on the basis of which FIR has been registered, even if prima facie taken into consideration, no offence is made out of the kind levelled

against her. In the given circumstances, the present proceedings initiated against the appellant deserve to be quashed and set aside being an abuse of

the process of law.

Counsel for the State and the counsel for the complainant jointly submit that after the FIR was registered, investigation was made and only

thereafter the chargeÂsheet was filed. It can at least be presumed that a prima facie case against her is made out. The High Court has appreciated

the material available on record and found no reason to interfere in its inherent jurisdiction under Section 482 Cr.PC and the impugned judgment needs

no further interference of this Court.

We have heard learned counsel for the parties and perused the material available on record.

The exposition of law on the subject relating to the exercise of the extraÂordinary power under Article 226 of the Constitution or the inherent

power under Section 482 Cr.PC are well settled and to the possible extent, this Court has defined sufficiently channelized guidelines, to give an

exhaustive list of myriad kinds of cases wherein such power should be exercised. This Court has held in para 102 in State of Haryana and Others v.

Bhajan Lal and Others (supra) as under :

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law

enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under

Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein

such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be

possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of

myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety

do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence,

justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section

155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the

commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non cognizable offence, no investigation is permitted

by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever

reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is

instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing

efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for

wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.â€​

The principles laid down by this Court have consistently been followed, as well as in the recent judgment of three Judge judgment of this Court in

Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and Others AIR 2021 SC 1918.

It is no doubt true that the power of quashing of criminal proceedings should be exercised very sparingly and with circumspection and that too in

rarest of the rare cases and it was not justified for the Court in embarking upon an enquiry as to the reliability or genuineness or otherwise of the

allegations made in the FIR or the complaint and that the inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its

whims and fancies.

Adverting to the facts of the instant case, there was no material placed on record by the complainant to justify the bald allegations which were

made in the complaint on the basis of which FIR was registered. There are undisputed facts on record that the appellant’s marriage was

solemnized with late Mohd. Shameem Khan on 11th December, 2016 and from this wedÂlock, a male child was born on 23rd September, 2017 and

her husband untimely passed away on 8th December, 2017 and until their period of matrimonial relationship, no complaint of any kind was ever made

by her late husband (Mohd. Shameem Khan) and after she was paid his terminal benefits and got a compassionate appointment in his place as an

A.N.M. by an order dated 19th May, 2018 w.e.f. 28th April, 2018, all sort of issues were raised by the complainant (brother of her deceased husband)

of making such false allegations with reference to her marriage and also for the terminal benefits which she received and there was not even prima

facie foundation to support the nature of allegations which were made.

Although it is true that it was not open for the Court to embark upon any enquiry as to the reliability or genuineness of the allegations made in the

FIR, but at least there has to be some factual supporting material for what has been alleged in the FIR which is completely missing in the present case

and documentary evidence on record clearly supports that her Nikah Nama was duly registered and issued by competent authority and even the

charge sheet filed against her does not prima facie discloses how the marriage certificate was forged.

In the given circumstances and going through the complaint on the basis of which FIR was registered and other material placed on record, we are

of the considered view that no offence of any kind as has been alleged in the FIR, has been made out against the appellant and if we allow the

criminal proceedings to continue, it will be nothing but a clear abuse of the process of law and will be a mental trauma to the appellant which has been

completely overlooked by the High Court while dismissing the petition filed at her instance under Section 482 Cr.PC.

Consequently, the appeal is allowed. The criminal proceedings initiated against the appellant in reference to FIR No.0227 of 2019 dated 9th July,

2019 under Sections 494, 495, 416, 420, 504 & 506 IPC lodged at PS Bazar Khala, District Lucknow, U.P. are hereby quashed and set aside.

Pending application(s), if any, stand disposed of.