The Supreme Court while hearing an appeal relating the accusations of bigamy, cheating and forgery raised against a widowed wife with a minor child, the Court expressed that the complainant did not submit any evidence to support the bald claims stated in the complaint, which served as the foundation for the filing of a FIR.

The court stated that in the given circumstances the continuance of the proceedings against Shafiya Khan, a widow with a minor child will only be a mental trauma to her which has been entirely overlooked by the Allahabad High Court while dismissing the petition under Section 482 of Criminal Code of Procedure, 1973.

Appellant – Shafiya Khan @ Shakuntala Prajapati

Respondent- State of UP and Anr

Date of judgment- 10 February 2022

Bench- Division Bench

Judges- Ajay Rastogi, Abhay S. Oka

Citation- AIR 2022 SC 1055, (2022) 4 SCC 549

Facts

• A girl born into a Hindu family named Shakuntala Prajapat married Shiv Gobind Prajapati when she was still a minor (17 years old) in May 2009. However, they never lived together, and the marriage was never consummated. In the divorce petition submitted by Shiv Gobind Prajapati, it was acknowledged that the marriage was never consummated and was dissolved through the village panchayat in 2014 between the families of the appellant and Shiv Gobind Prajapati, who thereafter married another woman, Suman Prajapat.
• The appellant, thinking her marriage was annulled, while studying in Lucknow, met Mohd. Shameem Khan and later got married to him on December 11, 2016 according to Sharia Law in the presence of her late husband’s entire family. A certificate of marriage was issued by the competent authority, and a translated copy of “Nikah Nama” (Marriage Certificate) was issued by the Languages Department, Darul Uloom Nadwatul Ulama, Lucknow dated December 11, 2016.
• The appellant was living a happy life with her late husband and gave birth to a male child on September 23, 2017. Unfortunately, her husband died on December 8, 2017. After the appellant obtained a succession certificate in her name and her mother-in-law made no objections to Mohd. Shameem Khan’s employer, she was hired on compassionate grounds by the King George Medical University in Lucknow as an auxiliary nurse midwife (A.N.M.).
• Additionally, because she was the legally wedded wife of the deceased (late Mohd. Shameed Khan), his terminal expenses were paid to her. The fact is that the entire gratuity amount of Rs. 4,60,000 from her late husband was transferred by her to the bank account of her mother-in-law. 
• However, she was thrown out of her matrimonial house by her late husband’s brother with her 11-month-old baby on August 19, 2018. Thereafter, her brother-in-law made all kinds of false, malicious, and senseless allegations against the appellant and even asked her employer to remove her from employment.  
• After more than a year had passed, the appellant’s brother-in-law filed an F.I.R. against her for the offences of Sections 494 (marrying again during the lifetime of a husband or wife), 495 (same offence with concealment of a former marriage from the person with whom subsequent marriage is contracted), 416 (cheating by personation), 420 (cheating and dishonestly inducing delivery of property), and 504 (intentional insult with After the charge sheet was filed on March 23, 2021, under Sections 494, 504, 506, 467 (forgery of valuable security, will, etc.), 468 (forgery for purpose of cheating), and 471 (using as genuine a forged document or electronic record) of Indian Penal Code 1860, anticipatory bail was granted to the appellant. The learned trial judge then took cognizance of the charge sheet and summoned the appellant.

Arguments in the case

Appellant’s Arguments

• Counsel for the appellant submitted that everything was going well in the appellant’s life, but after the demise of her late husband, Mohd. Shameem Khan, her brother-in-law was persistent in pressuring her to turn up all the benefits she was receiving as a result of the loss of her late husband and was interested in seeking a compassionate appointment in her place. This was the main cause of all baseless accusations made against her, including that forgery was committed in preparing the Nikah Nama.
• He further argued that the complainant’s brother (Mohd. Shameem Khan) during his lifetime had never made any complaint against the appellant in reference to their matrimonial relationship, and after his saddening demise, all sorts of allegations were levelled against her by the brother-in-law and the FIR was registered.
• Counsel further submitted that the allegations made in the complaint by respondent no. 2 (the brother-in-law), on the basis of which a FIR was filed, are unsupported by any evidence, and even if the FIR’s allegations were taken at face value, prima facie, none of the offences that have been levelled against the appellant in the charge-sheet can be made out.
• Counsel argued that if the criminal proceedings against the appellant are allowed to proceed at this point, it would be an obvious abuse of the legal system and mental harassment to the appellant, especially since she must not only maintain her employment but also care for her young son as she is the only provider in the family.
• In addition, the High Court dismissed the petition preferred at her instance under Section 482 of the Code of Criminal Procedure and had not even considered looking into the prima facie allegations made in the FIR that led to the filing of a charge-sheet, by just quoting certain passages from the judgments of this Hon’ble Court.

Respondent’s Arguments

• The opposite counsel alleged that the appellant, before the annulment of her first marriage, on 11^th December, 2016, entered into marriage with the late Mohd. Shameem Khan, and thereafter she started to harass him mentally and physically, which led to the respondent no. 2’s brother’s sudden death during his service on 8^th December, 2017.
• After Mohd. Shameem Khan died, her behaviour abruptly changed, and she even tried to throw out her mother-in-law, sister-in-law, and respondent no. 2 (her brother-in-law) from the house. She used to threaten and abuse the family members.
• He further argued that she forged documents, created a false Nikah Nama, applied for the job on the basis of compassion, and received all of the terminal benefits while depriving the legitimate dependents of the late Mohd Shameem Khan (the brother of respondent no. 2) of their benefits.

Judgment

After reviewing the case’s circumstances, the judges noted that the complainant had not submitted any evidence to support the claims stated in the complaint, which served as the foundation for the registration of a FIR. Undisputed facts show that the appellant married the late Mohd. Shameem Khan on December 11, 2016 and that a boy was born from this union on December 8, 2017. Throughout their marriage, the appellant’s late husband (Mohd. Shameem Khan) never complained of any kind, and she was given his terminal benefits and a compassionate appointment in his place as an auxiliary nurse midwife (A.N.M.). The complainant (her brother-in-law) brought up a variety of issues about the marriage between them as well as the terminal benefits she received, but there was not even a presumptive basis to support the charges that were made.

Even the charge sheet against her does not reveal how the marriage certificate was forged, despite the Nikah Nama being duly registered and issued by a competent authority.

The judges stated the court is of the considered opinion that no offence of any kind has been alleged as stated in the FIR made out against the appellant in the given circumstances and after reviewing the complaint on the basis of which the FIR was registered and other materials submitted on record, and that if the court allows the criminal proceedings to continue, it will be nothing more than a clear abuse of the legal system and will cause mental trauma to the appellant that has been completely overlooked by the High Court while dismissing the petition filed at her instance under Section 482 of the Code of Criminal Procedure. The appeal was allowed, and the criminal proceedings initiated against the appellant are quashed.

Findings on the Case

• The Supreme Court concluded after carefully deliberating the arguments that the law on the subject of the exercise of the extraordinary power under Article 226 of the Constitution or the inherent power under Section 482 of the Criminal Procedure Code is well established and, to the greatest extent possible, that this Court has defined sufficiently channelled guidelines to provide an exhaustive list of the numerous types of cases in which such power should be used.

The power to halt criminal proceedings should only be used sparingly and cautiously, and that too in the rarest of cases. The court’s investigation into the certainty, genuineness, or otherwise of the allegations made in the FIR or complaint was not justified, and the inherent powers do not confer arbitrary jurisdiction on the court to act according to its whims and fancies, the court added. 

• Section 198 of the Code of Criminal Procedure stated that

 Prosecution for offences against marriage.

(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860 ) except upon a complaint made by some person aggrieved by the offence: Provided that-

(a) Where such person is under the age of eighteen years or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf; (b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub- section (4) may make a complaint on his behalf;

(c) where the person aggrieved by an offence punishable under section 494 or section 495] of the Indian Penal Code (45 of 1860 ) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father’ s or mother’ s brother or sister ² , or, with the leave of the Court, by any other person related to her by blood, marriage or adoption][1]

We can understand that the above proceedings under Section 495 of the Indian Penal Code, 1860, are illegal and cannot be permitted to continue in view of the specific bar provided under Section 198 of the Code of Criminal Procedure, 1973. It was also stated that, while filing the charge sheet, Section 495 of the Indian Penal Code had been dropped by the investigating officer, as the complainant in the present case is not a person aggrieved enough to lodge an FIR or complaint under Section 494 of the Indian Penal Code. Hence, we can conclude that only the aggrieved wife or husband can make a complaint, and the exception stated under Section 198 of the Code of Criminal Procedure can make a complaint on her or his behalf.

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[1] The Code of Criminal Procedure, 1973, s 198

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Author: Tejaswini Choudhary

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