Shafiya Khan @ Shakuntala … vs State Of U.P. on 10 February, 2022


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Supreme Court of India

Shafiya Khan @ Shakuntala … vs State Of U.P. on 10 February, 2022

Author: Ajay Rastogi

Bench: Ajay Rastogi, Abhay S. Oka

                                                                   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)



                                             JUDGMENT

Rastogi, J.

1. Leave granted.

2. This appeal is directed against the order dated 8 th September,

2021 passed by the High Court of Judicature at Allahabad

declining to interfere in the criminal proceedings initiated against
Signature Not Verified

Digitally signed by
SATISH KUMAR YADAV
Date: 2022.02.10
17:54:04 IST
Reason:

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 11 th 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 11 th 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 8 th

December, 2017. After the appellant obtained succession

certificate in her name and no objection was given by her mother­

in­law 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 charge­

sheet came to be filed on 23 rd 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 brother­

in­law 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 mother­in­

law, 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 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.

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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
10
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 23 rd 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 19 th

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 9 th 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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