SHAFIYA KHAN @ SHAKUNTALA PRAJAPATI vs STATE OF U.P.

SHAFIYA KHAN @ SHAKUNTALA  PRAJAPATI vs STATE OF U.P.

NON­REPORTABLE
   IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 200 OF 2022
(Arising out of SLP(Crl.) No(s).8283 OF 2021)
SHAFIYA KHAN @ SHAKUNTALA 
PRAJAPATI   ….APPELLANT(S)
VERSUS
STATE OF U.P. & ANR.  ….RESPONDENT(S)
J U D G M E N T
Rastogi, J.
1. Leave granted.
2.  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
(bother­in­law of the appellant).   
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3. 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.  
4.   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
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competent   authority   and   a   translated   copy   of   “Nikah   Nama”
(Marriage Certificate) was issued by the Languages Department,
Darul Uloom Nadwatul Ulama, Lucknow dated 11th  December,
2016.   
5.  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 motherin­law   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/­   of   her   late   husband   was
transferred by her to the bank account of her mother in­law.
However, the destiny was not humble to her and she was thrown
out of her matrimonial home by respondent no.2 with an eleven
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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.   
6.  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 chargesheet 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.  
7.   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.
8.         Counsel for the appellant submits that everything was
running smoothly in her life, but because of the untimely sad
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demise of her husband late Mohd. Shameem Khan, her brotherin­law 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.
9.  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 mother­inlaw,   sister­in­law   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
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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.
10.   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
brother­in­law on the basis of which the FIR was registered.  
11.   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   charge­sheet   are   made   out.     In   the   given
circumstances,   if   the   criminal   proceedings   at   this   stage   are
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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 charge­sheet
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. 
12.     Counsel submits that the principles have been well laid
down by this Court in State of Haryana and Others v. Bhajan
Lal  and  Others1
, 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
1 1992 Supp. (1) SCC 335
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appellant deserve to be quashed and set aside being an abuse of
the process of law.   
13.   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 charge­sheet 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.
14.   We have heard learned counsel for the parties and perused
the material available on record.
15.   The exposition of law on the subject relating to the exercise
of the extra­ordinary 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
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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   noncognizable offence, no investigation is permitted by a
police   officer   without   an   order   of   a   Magistrate   as
contemplated under Section 155(2) of the Code.
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(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.”
16.     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 Others2
.
17.    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
2 AIR 2021 SC 1918
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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.   
18.     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 wed­lock,
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
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prima facie foundation to support the nature of allegations which
were made.  
19.     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. 
20.   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
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completely overlooked by the High Court while dismissing the
petition filed at her instance under Section 482 Cr.PC.  
21.       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.
22.   Pending application(s), if any, stand disposed of.  
……………………………J.
(AJAY RASTOGI)
…………………………..J.
(ABHAY S. OKA)
NEW DELHI
FEBRUARY 10, 2022.
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