# Smt. Nisha Khatoon v. State Of U.P. & Ors

- **Citation:** (2016) 8 ILRA 752
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-11
- **Bench:** Ajai Lamba, Ravindra Nath Mishra-Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-nisha-khatoon-v-state-of-u-p-ors-44383
- **Pages:** 8

## Headnote

Case Law discussed:
Madhuri Devi Vs. State of U.P. and others, Writ Petition No. 7590 (MB) of 2015 (Judgment dated 21.08.2015)

Headnote:
Criminal Procedure Code, 1973 - Section 173 - Charge-sheet - Non-mention of accused in charge-sheet -
Subsequent attempt by police to implicate such person by filing another charge-sheet - Legality - Held, once
investigation is concluded and charge-sheet is filed without showing a person either as accused or absconding
accused and without indicating that investigation against such person is pending, the investigating agency
cannot subsequently proceed against such person on the pretext of "human error" - Such action amounts to
abuse of authority and process of law.
Indian Penal Code, 1860 - Sections 420, 467, 468, 471, 323, 504, 506, 120-B - Allegation of conspiracy with
husband to forge identity and usurp property - Mere reflection of same residential address as that of
husband in personal documents cannot constitute cheating or forgery - Ingredients of alleged offences not
satisfied - Proceedings liable to be quashed.
Practice and procedure - Investigation - Filing of misleading charge-sheets without indicating pending
investigation against other persons - Deprecated - Police authorities directed to ensure that investigating
officers do not pick and choose accused after filing of charge-sheet - Responsibility to be fixed in case of
such lapses.

Result:
Petition allowed. FIR bearing Case Crime No. 189 of 2015, under Sections 420, 467, 468, 471, 323, 504, 506,
120-B IPC, Police Station Mahanagar, District Lucknow, quashed so far as it relates to the petitioner
(Smt. Nisha Khatoon). Costs of Rs. 15,000/- imposed to be paid to the petitioner after fixing responsibility
of erring police officials.

## Text

752 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 752
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.08.2016

BEFORE

THE HON'BLE AJAI LAMBA, J.
THE HON'BLE RAVINDRA NATH MISHRA-II, J.

Misc. Bench No.- 9503 Of 2016

Smt. Nisha Khatoon ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Dharmendra Kumar

Counsel for the Respondents:
Govt. Advocate

Case Law discussed:
Madhuri Devi Vs. State of U.P. and others, Writ Petition No. 7590 (MB) of 2015 (Judgment dated 21.08.2015)

Headnote:
Criminal Procedure Code, 1973 - Section 173 - Charge-sheet - Non-mention of accused in charge-sheet -
Subsequent attempt by police to implicate such person by filing another charge-sheet - Legality - Held, once
investigation is concluded and charge-sheet is filed without showing a person either as accused or absconding
accused and without indicating that investigation against such person is pending, the investigating agency
cannot subsequently proceed against such person on the pretext of "human error" - Such action amounts to
abuse of authority and process of law.
Indian Penal Code, 1860 - Sections 420, 467, 468, 471, 323, 504, 506, 120-B - Allegation of conspiracy with
husband to forge identity and usurp property - Mere reflection of same residential address as that of
husband in personal documents cannot constitute cheating or forgery - Ingredients of alleged offences not
satisfied - Proceedings liable to be quashed.
Practice and procedure - Investigation - Filing of misleading charge-sheets without indicating pending
investigation against other persons - Deprecated - Police authorities directed to ensure that investigating
officers do not pick and choose accused after filing of charge-sheet - Responsibility to be fixed in case of
such lapses.

Result:
Petition allowed. FIR bearing Case Crime No. 189 of 2015, under Sections 420, 467, 468, 471, 323, 504, 506,
120-B IPC, Police Station Mahanagar, District Lucknow, quashed so far as it relates to the petitioner
(Smt. Nisha Khatoon). Costs of Rs. 15,000/- imposed to be paid to the petitioner after fixing responsibility
of erring police officials.
(Delivered by Hon'ble Ravindra Nath Mishra-II, J.)
8 All. Smt. Nisha Khatoon Vs State Of U.P. & Ors.
753
(Delivered by Hon'ble Ravindra Nath Mishra-II, J.)

1. This petition seeks issuance of a writ in the nature of Certiorari quashing F.I.R./ Crime
No.189 of 2015, under Sections 420, 467, 468, 471, 323, 504, 506, 120-B I.P.C., Police Station
Mahanagar, District Lucknow.

2. Gist of the issue raised by the petitioner is recorded in order dated 3.5.2016. The order
reads as under :

"1.This petition seeks issuance of a writ in the nature of certiorari quashing F.I.R./
Crime No.189 of 2015, under Sections 420, 467, 468, 471, 323, 504, 506, 120-B I.P.C., Police
Station Mahanagar, District Lucknow.

2.The impugned F.I.R. has been read in extenso in court. Gist of the allegation is
that the petitioner alongwith co accused, enabled forgery of a Will dated 6.1.2002 and benefit of
that Will has been taken.

3.Learned counsel for the petitioner has pointed out that the chargesheet has
already been filed against co accused Mahmood Ali, husband of the petitioner. The petitioner is
sought to be arrested.In the chargesheet, however, the petitioner has not been depicted as
absconding accused or that investigation in her regard is pending.

4.Issue notice to serve respondent no.4 returnable on 11.7.2016.

5.List this case on 11.7.2016.

6.Arrest of the petitioner shall remain stayed till the next date of listing. Petitioner
is directed to join investigation.

7.Investigating officer is directed to file his affidavit as to under what
circumstances, the petitioner is being approached, although, investigation has been concluded and
the petitioner has not been shown as absconding accused.

8. We are issuing notice only on the limited issue that the petitioner has not been
shown as an absconding accused in the chargesheet, yet is sought to be arrested."

3. Charge sheet bearing No. 02 of 2016 dated 14.2.2016 is available on record. As per the
charge-sheet the only accused shown in the relevant column is Mehboob Ali. The column of
absconding accused is vacant, thereby indicating that there is no other accused to be arrested or
against whom investigation is pending. The gist of the investigation indicated on the front page of
the charge-sheet also does not mention the petitioner as one of the accused.
754 INDIAN LAW REPORTS ALLAHABAD SERIES

4. After the above extracted order was passed, it appears that another charge-sheet has been
prepared bearing No. 02A of 2016 dated 10.6.2016 in which the petitioner has been shown as the
accused.

5. Section 173 of the Code of Criminal Procedure is explicit and details the information to
be supplied to the Court in regard to the investigation conducted and concluded. Various columns
of the Charge-sheet are provided in Form 339 provided under Regulation 122 of the U.P. Police
Regulations. Form 339 appears to have been provided in context of provisions of Section 173
Cr.P.C.

6. The relevance of a charge-sheet and the information disclosed in the charge-sheet, for the
accused, the victim/complainant as also the Court has been noticed in judgement dated 21.08.2015
rendered by this Court in Writ Petition No. 7590 (MB) of 2015: Madhuri Devi Vs. State of U.P.
And others. The following has been held in this context:-

" 51. It needs to be mentioned that after completing investigation, the police officer
is required to make a clear report in terms of provisions of S. 173 CrPC. The information required
to be provided under sub section (2) of S.173 CrPC should be specific in its content,with relevant
basis for its conclusion.

xxxxx

55. At the point in time when report under S.173 CrPC is prepared, the
investigation is concluded. The investigating officer has collected sufficient evidence indicating
commission of offence (S.170 CrPC). The investigating agency knows what evidence has been
collected indicating culpability of particular accused, and what offence has been committed by that
accused. The report must categorise the offence committed by a particular accused, and the basis
for so concluding. The supporting evidence , viz. statements of the witnesses recorded under S. 161
Cr.P.C. and the evidence collected through scientific means is to be appended with the report.

56. It is the right of every accused to know as to on what basis he is being
prosecuted, so that he can prepare his defence. The summary of investigation must make all aspects
clear, in the interest of transparency, and effective and fair trial.

57. In case the report (charge sheet) is prepared objectively, and summarised as
observed herein above, it will assist the court in considering the evidence in context of the
ingredients of the offence(s) committed by an accused and frame Charge(s), as required by law.
This shall ensure fair, effective and speedy trial.

58. Likewise when no evidence is found against some accused or evidence collected
in the course of investigation indicates he is innocent, and that person/ accused is not forwarded
for trial, the report must clearly state the reasons for so concluding. This helps the court to
adjudicate, if an application is filed for proceeding against that person/accused. The court can
8 All. Smt. Nisha Khatoon Vs State Of U.P. & Ors.
755
refer to the basis, and reasons recorded by the investigating agency and decide whether to summon
the said person as additional accused. This comes to the aid of the court while deciding
application, if one is filed under Section 319 Cr.P.C also. This reduces the workload of the court
and avoids unnecessary litigation.

xxxxxx

62. In the same context in case a closure report/final report is to be filed because
there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the
accused to a Magistrate (S.169 CrPC), the investigating agency is required to file a reasoned
report. The basis for saying that offence has not been committed must be stated. The relevant
material must be placed on record. By doing this the credibility of the investigating agency is
demonstrated, and the court is guided by the reasons given by the agency, when the report is
challenged. If the reasons for filing such final report are available on record, the complainant is
also informed why the case initiated by him has been cancelled. If however the reasons are not
given in such report, or conclusion is based on surmises and conjectures, the complainant is
aggrieved and such reports are challenged by way of filing protest petitions."

7. We are faced with a circumstance, wherein the petitioner was aware that in the chargesheet (Annexure-7) she was not shown as an accused or absconding accused. The charge-sheet also
did not disclose that investigation as regards the petitioner is pending. Under the Circumstances, the
petitioner carried a genuine impression that she is not wanted or required in context of the criminal
proceedings, at issue. Subsequently, however, the petitioner was sought to be arrested and
therefore, she approached this Court.

8. The investigating officer, thereafter is stated to have undertaken further investigation.
Affidavit dated 8.7.2016 sworn by Sri Devi Charan Gupta, Sub-Inspector, Police Station
Mahanagar, District Lucknow indicates that even the petitioner has been found in association with
her husband in committing the offence. It has been stated in concluding portion of the affidavit that
on the basis of oral and documentary evidence even the petitioner is chargesheeted vide chargesheet bearing No. 02A of 2016 dated 10.6.2016 for commission of offence under Sections 420, 467,
468, 471, 323, 504, 506 and 120B I.P.C. The affidavit, however, does not explain the exact role
played by the petitioner in commission of the offence. The affidavit also does not furnish any legal
explanation as regards non-mentioning the name of the petitioner in the earlier charge-sheet
(Annexure-7) dated 14.2.2016 bearing No. 02 of 2016 (supra). It has merely been said that name of
the petitioner and other accused was not mentioned in the relevant column of the charge-sheet on
account of "human error".

9. Considering the peculiar facts of the case, vide order dated 11.7.2016, this Court directed
the Circle Officer concerned to review the investigation and file his affidavit, particularly in regard
to the alleged role played by the petitioner. The order reads as under:
756 INDIAN LAW REPORTS ALLAHABAD SERIES

"1. Short counter affidavit has been filed on behalf of investigating agency, in
court, which is taken on record. It has been stated that chargesheet has been prepared.

2. The query raised vide order dated 3.5.2016, however, has not been answered.

3. Let the Circle Officer incharge of the concerned Police Station review the
investigation and file his affidavit particularly in regard to the alleged role played by the petitioner.
Specific evidence indicating culpability of the petitioner would be brought on record, in case any
evidence is found.

4. An explanation would be furnished to the court as to under what circumstances,
while chargesheet had been prepared not indicating pending investigation, under what
circumstances at the present point in time, the petitioner is being harassed.

5. List this case on 11.8.2016.

6. Interim direction to continue till the next date of listing. "

(emphasised by us)

10. Short counter affidavit dated 11.8.2016 sworn by Sri Vishal Vikram Singh, Circle Officer,
Mahanagar, District Lucknow has been filed in Court, which is taken on record. In the affidavit it has been
stated that the petitioner is wife of Mehboob Ali Son of Late Ramjan Ali @ Paacho, resident of House No.
529/231, Rahim Nagar, Mahanagar, Lucknow. The Nikahnama and Marriage Card of the petitioner have
been enclosed with the affidavit.

11. The evidence collected in the course of investigation, as per affidavit, indicates that Mehboob
Ali is a relative of Nadir Ali, resident of House No. 529/225, Rahim Nagar, Mahanagar, District Lucknow.
Nadir Ali apparently had no children. After death of Nadir Ali, Mehboob Ali got forged identity cards
wrongly showing himself as son of Nadir Ali, also while mentioning his residence address as that of Nadir
Ali with the intention to take unlawful possession of the property of Nadir Ali. As against the petitioner it
has been alleged that the petitioner had knowledge of the facts and she got prepared Voter Identity Card,
Ration Card and Aadhaar Card showing herself to be resident of House No. 529/225, Rahim Nagar,
Mahanagar, Lucknow, which earlier belonged to Nadir Ali. Only on the strength of the said evidence, it
has been concluded that the petitioner was in association with her husband Mehboob and has committed
offences under Sections 420, 467, 468, 471, 323, 504, 506 & 120B I.P.C.

12. Considering the totality of the facts and circumstances of the case, it becomes evident that
investigation was concluded on 14.2.2016 and charge-sheet bearing No. 02 of 2016 was prepared and
finalized. There is not a whisper in the charge-sheet that the petitioner is an accused or an absconding
accused. It is only subsequently in abuse of authority vested in the investigating officer that the petitioner
was proceeded against. At this juncture, story developed by the investigating officer is to the effect that the
8 All. Smt. Nisha Khatoon Vs State Of U.P. & Ors.
757
petitioner was in conspiracy with her husband and therefore has shown her address as House No. 529/225,
Rahim Nagar, Mahanagar, Lucknow, which earlier was the address of Nadir Ali.

13. Even if the allegations made in the F.I.R. and the entire investigation conducted till date is
accepted in its entirety, we are of the considered opinion that the petitioner has not committed any offence.
The ingredients of committing offence are not satisfied, as against the petitioner, in so much as it is the
husband of the petitioner who allegedly forged his identity so as to allegedly incorporate and change his
address as House No. 529/225, Rahim Nagar, Mahanagar, Lucknow. The petitioner, admittedly had no
role to play in the said incident of changing the address of Mehboob Ali. The petitioner being the wife of
Mehboob Ali obviously was living with Mehboob Ali and, therefore, was required to reflect the same
address as that of her husband. In such circumstances, it cannot be said that the petitioner has committed
offence of cheating as defined under Section 415 I.P.C. read with Section 420 I.P.C.

14. So far as the provision of Section 467, 468 and 471 I.P.C. are concerned, it is not even the case
of the prosecution that the petitioner indulged in forgery of any document, as defined under Section 463
I.P.C. read with Section 464 I.P.C.. The case of the investigating agency is that Mehboob Ali so as to usurp
the property of Nadir Ali, took advantage of Nadir Ali being issue-less and therefore, changed his identity
while showing his own address as that of Nadir Ali. Only the residential address has been changed. In such
circumstances, by any stretch of imagination, it cannot be concluded that the petitioner has indulged in
forgery of any document. In such facts and circumstances it is evident that provisions of Sections 467, 468
& 471 I.P.C. are not attracted vis-a-vis the petitioner.

15. So far as offences under Sections 323, 504 & 506 I.P.C. are concerned, there is no such
allegation against the petitioner of which legal notice ought to be taken.

16. In view of the above considerations and discussion, we are of the view that continuance of
proceedings against the petitioner are not warranted by law. The ingredients of the alleged offences are not
satisfied. So as to secure ends of justice and so as to prevent abuse of process of the law, the petition
against the petitioner deserves to be allowed.

17. Considering the facts and circumstances of the case, we hereby allow the petition only vis-avis the petitioner (Smt. Nisha Khatoon). The impugned FIR bearing Case Crime No. 189 of 2015, under
Sections 420, 467, 468, 471, 323, 504, 506, 120-B I.P.C., Police Station Mahanagar, District Lucknow, a
copy of which is contained in Annexure-1 to the petition, so far as it relates to the petitioner, is hereby
quashed.

18. Before parting with the order, we must record that we are receiving a number of cases in
which charge-sheet is filed. In the column of absconding accused none is shown. In the narration of facts in
the charge-sheet it is not mentioned that investigation against a particular accused is pending.
Subsequently, however, on the whims of the police officials proceedings are initiated against certain
persons who are aliens to the charge-sheet. When explanation is sought by the Court, a lame excuse is
given by the police officials that on account of 'human error', the relevant column in the charge-sheet vis-avis the absconding accused was not filled.
758 INDIAN LAW REPORTS ALLAHABAD SERIES

19. Investigation is conducted by a police officer in discharge of his statutory duty. The statute vis.
provision of Section 173 Cr.P.C. and Form 339 provided under Regulation 122 of the U.P. Police
Regulations details the columns to be filled by the investigating officer. The investigation report thereafter
is required to be checked by the Circle Officer. Such lapses, as has been noticed in this case, clearly
indicate misconduct on the part of, not only the investigating officer, but also the Circle Officer who has
approved the charge-sheet. Such infirmities in the charge-sheet cannot be ignored while accepting 'human
error' theory because they adversely affect the person who is subjected to investigation at any subsequent
time, as the investigating officer chooses. Such infirmities also affect administration of criminal justice.

20. All the Superintendents of Police are required to take serious note of the law, as detailed in this
judgment, and ensure that the investigating officers do not pick & choose the accused on their whims after
charge-sheet is filed. We have come across cases in which even after months investigation was opened
against certain persons without there being any indication that investigation is even pending against them.

21. Such conduct on the part of the investigating agency also confuses the Court. The Court
accepts the charge-sheet and proceeds with trial on the premise that investigation is not pending.
Subsequently, however, while trial is going on, some more accused are forwarded, in context of whom a
second trial is required to take place in regard to the same incident.

22. Such conduct on the part of the investigating officers also causes trauma to the accused, who
are subsequently confronted with the investigation. By such conduct, the investigation is kept in limbo
which adversely affects administration of justice. Such practice on the part of investigating agency is
deprecated and the police agencies are required to ensure that such practice is stopped altogether. In case
such cases are found/detected, the police officer/official should be proceeded against with charge of
misconduct of serious nature.

23. In the case in hand, we find that charge-sheet dated 14th February, 2016 was filed against
Mahboob Ali. When the petitioner was proceeded against, the petitioner approached this Court. It is only
thereafter that in June 2016 i.e. after 4 months it is proposed that the petitioner is also an accused. Chargesheet dated 14th February, 2016, as noticed above, did not indicate at all that the petitioner is also an
accused against whom investigation is pending. The trauma to which the petitioner has been subjected by
the conduct of the investigating officer cannot be ignored by the writ-Court while accepting his
explanation of 'human error'.

24. Under the circumstances, we hereby impose costs in the sum of Rs.15,000/- (Rupees Fifteen
thousand) to be paid to the petitioner on or before 24th November, 2016. For the said purpose, an inquiry
be ordered by the Senior Superintendent of Police, Lucknow so as to fix responsibility of the person from
whose salary the cost amount would be deducted and paid to the petitioner.

25. Let a copy of this order be forwarded to the Director General of Police, U.P., Lucknow so that
appropriate directions are issued and misleading charge-sheets are not filed in future.
----------
8 All. Sharad Pathak Vs State Of U.P. & Ors.
759
(2016) 8 ILRA 759
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.08.2016

BEFORE

THE HON'BLE DR. DEVENDRA KUMAR ARORA, J.

Misc. Single No.- 210 Of 2014

Sharad Pathak ...Petitioner
Versus
State Of U.P.& Ors. ...Respondents

Counsel for the Petitioner:
Sanjay Misra, Advocate assisted by G.C. Verma, Advocate

Counsel for the Respondents:
C.S.C., Pankaj Patel, Addl. Chief Standing Counsel

Headnote:
Arms Act, 1959 - Sections 13 and 14 - Grant of arms licence - Refusal of licence - Grounds -
Absence of threat perception - Whether valid ground - Application by legal heir for licence of
firearm earlier held by father - Licensing authority rejecting application on ground that
applicant wanted licence only for status - Legality.

Petitioner applied for grant of licence of a Double Barrel Gun earlier possessed by his grandfather and later by
his father after his father's death. The District Magistrate rejected the application on the ground that there
was no threat perception to the petitioner and the licence was sought merely for prestige.

Held, the licensing authority is required to exercise its power objectively in light of Sections 13 and 14 of the
Arms Act. Refusal of licence can only be based on grounds contemplated under Section 14 such as prohibition
under law, unsoundness of mind, unfitness of the applicant, or necessity for maintaining public peace and
safety. Rejection merely on the ground that the applicant has no threat to life or seeks licence for status is not
a statutory ground and reflects arbitrary exercise of power. The licensing authority cannot deny grant of
licence on whims or fanciful considerations.

The impugned order dated 10.5.2013 passed by the District Magistrate, Sultanpur was therefore quashed and
the matter was remitted to the District Magistrate to reconsider the petitioner's application and pass
appropriate orders in accordance with law within three months.

Case Law discussed:

Ram Singh Yadav v. State of U.P.

Ram Prakash Srivastava v. Commissioner Jhansi Division

Chandraraj Tripathi v. State of U.P. and others