# Ashish Sharma and another v. State of U.P. and others

- **Citation:** (2012) 2 ILRA 919
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-29
- **Case number:** Civil Misc. Recall Application No.247150 of 2011
- **Bench:** Amitava Lala, Sanjay Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-sharma-and-another-v-state-of-u-p-and-others-42218
- **Pages:** 7

## Headnote

Constitution of India, Article 226-Writ
Court-where within definition of 'Court'
for purposes of initiating of proceeding
under Section 195 (3) with Section 340
Cr.P.C.-Writ Court decided Writ Petition
being
satisfied
with
documentary
evidence regarding age of girl and boygranted protection-recall application on
allegation of fraud-affidavit filed by
applicant is counter to affidavit by
petitioner-can not be determining aspect
of fraud unless established by Courthaving power of evidence and recording
specific finding-admittedly no FIR as yet
filed against the petitioner-application
for initiation of criminal proceedingrejected-writ court is not court of
evidence-can not be termed as court
under provisions of Section 195 readwith
340 Cr.P.C.

Held: Para 10

Proceedings under Section 195 is to be
proceeded under Section 340 Cr.P.C.
therefore,
at
the
time
of
making
application both the sections will be
conjointly read. Sub-Section 3 of Section
195 Cr.P.C. speaks about the meaning of
the 'Court', which means a Civil, Revenue
or
Criminal
Court,
and
includes
a
Tribunal constituted by or under a
Central,
Provincial
or
State
Act
if
declared by that Act to be a 'Court' for
the
purposes
of
this
Section.
The
applicant has made out a case under
Sections 193, 196, 199, 200, 463, 471
and 475 IPC, but no FIR has been lodged
nor any complaint case was filed nor the
applicant proceeded before the Criminal
Court to obtain an order. Law is well
settled by now that the term 'Court'
indicates that there must be power to
record evidence and to come to a judicial
determination
on
the
evidence
so
recorded.
The
words
used
in
the
provision are important. The Writ Court
is not the Court of evidence. Thus, the
Writ Court under no circumstances can
be said to be the 'Court' under the
provisions of Section 195 read with
Section 340 Cr.P.C.
Case law discussed:
1976 (3) SCC 234; 2006 (5) SCC 475; AIR
2010 SC 3196; 2011 (6) SCC 396; Civil Misc.
Writ Petition No. 16299 of 2012 (Niresh Kumar
Srivastava and another Vs. State of U.P. and
others)

## Text

2 All] Ashish Sharma and another V. State of U.P. and others
919
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2012

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Recall Application No.247150 of 2011
And
Criminal Misc. Application No. Nil of 2011
In
Civil Misc. Writ Petition No. 43896 of 2011

Ashish Sharma and another ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Amit Jaiswal
Sri Manoj Kumar Gautam

Counsel for the Respondents:
Sri Seema Mishra
C.S.C.

Constitution of India, Article 226-Writ
Court-where within definition of 'Court'
for purposes of initiating of proceeding
under Section 195 (3) with Section 340
Cr.P.C.-Writ Court decided Writ Petition
being
satisfied
with
documentary
evidence regarding age of girl and boygranted protection-recall application on
allegation of fraud-affidavit filed by
applicant is counter to affidavit by
petitioner-can not be determining aspect
of fraud unless established by Courthaving power of evidence and recording
specific finding-admittedly no FIR as yet
filed against the petitioner-application
for initiation of criminal proceedingrejected-writ court is not court of
evidence-can not be termed as court
under provisions of Section 195 readwith
340 Cr.P.C.

Held: Para 10

Proceedings under Section 195 is to be
proceeded under Section 340 Cr.P.C.
therefore,
at
the
time
of
making
application both the sections will be
conjointly read. Sub-Section 3 of Section
195 Cr.P.C. speaks about the meaning of
the 'Court', which means a Civil, Revenue
or
Criminal
Court,
and
includes
a
Tribunal constituted by or under a
Central,
Provincial
or
State
Act
if
declared by that Act to be a 'Court' for
the
purposes
of
this
Section.
The
applicant has made out a case under
Sections 193, 196, 199, 200, 463, 471
and 475 IPC, but no FIR has been lodged
nor any complaint case was filed nor the
applicant proceeded before the Criminal
Court to obtain an order. Law is well
settled by now that the term 'Court'
indicates that there must be power to
record evidence and to come to a judicial
determination
on
the
evidence
so
recorded.
The
words
used
in
the
provision are important. The Writ Court
is not the Court of evidence. Thus, the
Writ Court under no circumstances can
be said to be the 'Court' under the
provisions of Section 195 read with
Section 340 Cr.P.C.
Case law discussed:
1976 (3) SCC 234; 2006 (5) SCC 475; AIR
2010 SC 3196; 2011 (6) SCC 396; Civil Misc.
Writ Petition No. 16299 of 2012 (Niresh Kumar
Srivastava and another Vs. State of U.P. and
others)

(Delivered by Hon'ble Amitava Lala, J.)

Amitava Lala, J.-- These are the
applications of the respondent no.4 to
recall the order passed by this Bench on
04.08.2011 in connection with marriage
between petitioner nos. 1 and 2 and
interference with their private life and to
proceed under Section 340 of the Code
of
Criminal
Procedure,
1973
(hereinafter in short called as ' Cr.P.C.').
Like few others, in this State also, even
in 21st century so many factors are
involved in connection with the life and
security
of
the
married
couples.
Casteism, religionism, 'honour' killings,
920 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
forcible departure of the boy and girl
from each other even by the parents or
family members, threat, pressure and
many
other
nature
of
transgress,
infringes their life and personal liberty
as guaranteed under Article 21 of the
Constitution of India. As a result
whereof, we have started believing that
such actions are not in the garb of but in
the wake of violation of Article 21.

2. This Court framed out a
common order expressing its feelings,
but only with a positive rider that where
no First Information Report (hereinafter
referred to as the 'FIR') has been lodged
or inquiry or necessary police actions
are taken by either of the parties, it is
expected that no coercive action will be
taken
against
the
newly
wedded
couples, who are otherwise entitled to
choose the better half to marry and
settle. Even the Supreme Court has
proceeded to the extent of justifying the
cause of living together in the judgment
reported in 1976 (3) SCC 234 (Gian
Devi Vs. Supdt., Nari Niketan, Delhi),
and held as under :

"7. It is the case of the petitioner
that she was born on June 5, 1994. As
against that, the plea of Sheesh Pal
Singh, father of the petitioner, is that
she was born on April 20, 1956.
Whatever may be the date of birth of the
petitioner, the fact remains that she is at
present more than 18 years of age. As
the petitioner is sui juris no fetters can
be placed upon her choice of the person
with whom she is to stay, nor can any
restriction be imposed regarding the
place where she should stay. The court
or the relatives of the petitioner can
also not substitute their opinion or
preference for that of the petitioner in
such a matter. The fact that the
petitioner has been cited as a witness in
a case is no valid ground for her
detention in Nari Niketan against her
wishes. Since the petitioner has stated
unequivocally that she does not want to
stay in Nari Niketan, her detention
therein cannot be held to be in
accordance with law. We accordingly
direct that the petitioner be set at
liberty."

3. In 2006 (5) SCC 475( Lata
Singh Vs. State of U.P and another)
the Supreme Court has also held as
follows :

"17. The caste system is a curse on
the nation and the sooner it is destroyed
the better. In fact, it is dividing the
nation at a time when we have to be
united to face the challenges before the
nation
unitedly.
Hence,
inter-caste
marriages are in fact in the national
interest as they will result in destroying
the caste system. However, disturbing
news are coming from several parts of
the country that young men and women
who undergo inter-caste marriage, are
threatened with violence, or violence is
actually committed on them. In our
opinion, such acts of violence or threats
or harassment are wholly illegal and
those who commit them must be severely
punished. This is a free and democratic
country, and once a person becomes a
major he or she can marry whosoever
he/she likes. If the parents of the boy or
girl do not approve of such inter-caste
or
inter-religious
marriage
the
maximum they can do is that they can
cut off social relations with the son or
the daughter, but they cannot give
threats or commit or instigate acts of
violence and cannot harass the person
2 All] Ashish Sharma and another V. State of U.P. and others
921
who undergoes such inter-caste or
inter- religious marriage. We, therefore,
direct that the administration/police
authorities throughout the country will
see to it that if any boy or girl who is a
major undergoes inter-caste or interreligious marriage with a woman or
man who is a major, the couple are not
harassed by any one nor subjected to
threats or acts of violence, and any one
who gives such threats or harasses or
commits acts of violence either himself
or at his instigation, is taken to task by
instituting criminal proceedings by the
police against such persons and further
stern action is taken against such
persons as provided by law."

4. The Supreme Court has further
held in AIR 2010 SC 3196 (S
Khushboo
Vs.
Kanniammal
&
Another), as follows:-

"21. While it is true that the
mainstream view in our society is that
sexual contact should take place only
between marital partners, there is no
statutory offence that takes place when
adults
willingly
engage
in
sexual
relations outside the marital setting,
with the exception of 'adultery' as
defined under Section 497 IPC. At this
juncture, we may refer to the decision
given by this Court in Lata Singh v.
State of U.P. and Anr. (AIR 2006 SC
2522) wherein it was observed that a
live-in
relationship
between
two
consenting adults of heterogenic sex
does not amount to any offence (with the
obvious exception of 'adultery'), even
though it may be perceived as immoral.
A major girl is free to marry anyone she
likes or "live with anyone she likes". In
that case, the petitioner was a woman
who had married a man belonging to
another
caste
and
had
begun
cohabitation with him. The petitioner's
brother had filed a criminal complaint
accusing her husband of offences under
Sections 366 and 368 IPC, thereby
leading to the commencement of trial
proceedings. This Court had entertained
a writ petition and granted relief by
quashing
the
criminal
trial.
Furthermore, the Court had noted that
'no offence was committed by any of the
accused and the whole criminal case in
question is an abuse of the process of
the Court'.

5. In the judgment reported in
2011 (6) SCC 396 [Bhagwan Dass Vs.
State (NCT of Delhi)], it has further
been held by the the Supreme Court as
under:-

"28.Before parting with this case
we would like to state that `honour'
killings have become commonplace in
many parts of the country, particularly
in
Haryana,
western
U.P.,
and
Rajasthan. Often young couples who fall
in love have to seek shelter in the police
lines or protection homes, to avoid the
wrath of kangaroo courts. We have held
in Lata Singh's case (supra) that there is
nothing
`honourable'
in
`honour'
killings, and they are nothing but
barbaric and brutal murders by bigoted,
persons with feudal minds. In our
opinion honour killings, for whatever
reason, come within the category of
rarest of rare cases deserving death
punishment. It is time to stamp out these
barbaric, feudal practices which are a
slur on our nation. This is necessary as
a
deterrent
for
such
outrageous,
uncivilized behaviour. All persons who
are planning to perpetrate `honour'
922 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
killings should know that the gallows
await them."

6. However, such western culture
has not been accepted by our society,
but that does not necessarily mean that
right of major boy and girl to choose
their better half will be interfered with
in all possible manner.

7. Following the ratio of the
aforesaid judgements of the Supreme
Court, a Division Bench of this Court
presided over by one of us (Amitava
Lala, J.) has delivered a judgement
dated 03.04.2012 in Civil Misc. Writ
Petition No. 16299 of 2012 (Niresh
Kumar Srivastava and another Vs.
State of U.P. and others) and held as
follows:

"From
the
aforesaid
three
judgments, precisely we get three
relevant points. Firstly, if one is sui
juris, no fetter can be placed upon
choice of the person with whom she is to
stay nor any one can restrict her.
Secondly, any person cannot give
threats or commit or instigate the acts
of violence and cannot harass the adult
person who undergoes inter-caste or
inter-religion marriage. Administration/
policy authorities can be directed to see
to it so that the couple, upon being
major, should not be harassed by any
one.
Thirdly,
live-in
relationship
between two
consenting
adults of
heterogenic sex does not amount to any
offence. It will not be unnecessary to
say that there are many States in our
country where castism or religionism is
so deep-rooted even in the 21st Century
that one can go to the extent of honour
killing upon being forgetful that their
interference might cause unhappiness in
the life of their children. Such type of
activities are totally in violation of the
preamble of the Constitution of India in
connection with human dignity of an
individual. The country is one and it is
pluralistic in nature. No secular idea
can be ignored. No person shall be
deprived of his life and personal liberty
except according to the procedure
established by law as per Article 21 of
the Constitution of India. Liberty and
reasonable restriction are inbuilt in
such Article.

Against this background, according
to us, there should not be any
deprivation of the interests of any adult
particularly an adult girl in connection
with her living. Administration/police
authorities are directed to protect their
interest to that extent.

It is made clear that the boy and
the
girl
are
not
debarred
from
proceeding
before
the
appropriate
Court of law in case of any exigency.
Generally,
the
police
and
the
administration will be much more alert
and sensitive in dealing with such type
of
issues.
Repeated
awareness
programme is needed to be made to
uproot the social evil and minimise the
incidents."

8. Normally, in such type of writ
petitions, we call upon the learned
counsel appearing for the petitioners to
identify the petitioners i.e. boy and girl
having been present before the Court
and verify the documents available
before the Court or adopts the other
methodology i.e. ossification test etc.
apart from our own examination in the
Court. After that identification and
2 All] Ashish Sharma and another V. State of U.P. and others
923
verification, the following orders are
passed:

"Marriage is definitely wishes of a
boy and girl to continue with their
conjugal relationship provided they
have attained the age of marriage, as
required by law. We have been fortified
with several writ petitions in which
more or less identical reliefs are
claimed for protection of their marital
relationship, which is allegedly being
interfered with and harassed by their
parents or relatives, who are private
respondents. The writ jurisdiction is not
made to resolve such type of dispute
between the two private parties. We
otherwise strongly believe family law is
no law. It is a social problem, which
can only be uprooted socially and not
by the intervention of the writ Court in
the garb of violation of Article 21 of the
Constitution of India unless it is
established beyond doubt.

If there is any real grievance of
married couple against their parents or
relatives who are allegedly interfering
with their conjugal rights which goes to
such extent that there is threat of life,
they are at liberty to lodge any criminal
complaint or file F.I.R. whichever is
required under the law to the police and
in
case
of
refusal,
may
make
appropriate
application
before
the
appropriate court of criminal law by
way of applications under Sections 155
or 156 of the Criminal Procedure Code.
Similarly, in case the parents or
relatives, find that illegally their son or
daughter was eloped for the purpose of
marriage
although
he
or
she
is
underage or not inclined or they are
behaving violently, they are equally at
liberty to take steps in a similar manner.

But, when neither of the actions are
taken amongst each other, a fictitious
application
with
certain
vague
allegations, particularly by the newly
married couple, under writ jurisdiction
of the High Court, appears to be
circuitous way to get the seal and
signature of the High Court upon their
respective
marriages
without
any
identification of their age and other
necessary aspects required to be done
by the appropriate authority/authorities.
It is well settled by now that every
marriage is required to be registered by
the appropriate registering authority
upon due verification of the ages etc. of
respective parties. We cannot also allow
to develop the disputed questions of fact
under the writ jurisdiction nor we can
draw any inference by the colourful
presence of the newly wedded couple in
the Court as per the respective advices.
If we do so, it will be wrong
presumption by using excessive power
of the Court in this jurisdiction.

However, where no F.I.R. has been
lodged or necessary police actions are
taken by either of the parties, it is
expected that no coercive action could
be taken against each other.

In
case
the
party/parties
approaches/ approach the appropriate
court of law or the authority concerned,
raising his/her/their grievances, the
same will be considered strictly in
accordance with law.

If this order is obtained by fraud or
suppression of material facts, then the
law
will
take
its
own
course
independently.
924 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

Accordingly, the writ petition is
treated to be disposed of, however,
without any order as to costs. "

9.

However,
by
inadvertent
mistake
in
some
of
the
orders
observation regarding fraud or forgery
has not been incorporated, but that will
not vitiate the due process of law.
Fraud or forgery frustrates the entire
proceeding. But the fraud or forgery
has to be established at first. Therefore,
to establish the same, one has to
proceed before the appropriate Court of
law and only thereafter the person
concerned
can
get
relief.
Mere
description of fraud or forgery to recall
the order cannot be held to be a
fraudulent act on the part of the
petitioners. The applicant may say that
at the time of passing the order, he did
not get any opportunity of hearing,
therefore, his case has to be heard. But
on the basis of affidavit filed in support
of the recall application, we have
granted such opportunity and have
carefully gone through the application
of the applicant. According to us, filing
of such application supported by
affidavit can, at best, be treated as oath
versus oath, but not an absolute
determination of fraud or forgery. The
writ petition is supported by two valid
documents necessary for the purpose of
its disposal. The age of the girl is
supported by a certificate of Board of
High
School
and
Intermediate
Examination, U.P. of the year 2007,
giving her date of birth as 20th August
1991, therefore, the girl seems to be a
major. The age of the boy is supported
by Voter Identity Card issued by
Election Commission of India, giving
his year of birth as 1986. Having so,
the High Court cannot make a robbing
inquiry
about
validity
of
such
documents,
place
of
marriage,
residence, defects in father's name etc..
Scope of the writ petition is limited
about the adult marital relationship
only for their protection.

10. Proceedings under Section
195 is to be proceeded under Section
340 Cr.P.C. therefore, at the time of
making application both the sections
will be conjointly read. Sub-Section 3
of Section 195 Cr.P.C. speaks about the
meaning of the 'Court', which means a
Civil, Revenue or Criminal Court, and
includes a Tribunal constituted by or
under a Central, Provincial or State Act
if declared by that Act to be a 'Court'
for the purposes of this Section. The
applicant has made out a case under
Sections 193, 196, 199, 200, 463, 471
and 475 IPC, but no FIR has been
lodged nor any complaint case was
filed nor the applicant proceeded
before the Criminal Court to obtain an
order. Law is well settled by now that
the term 'Court' indicates that there
must be power to record evidence and
to come to a judicial determination on
the evidence so recorded. The words
used in the provision are important.
The Writ Court is not the Court of
evidence. Thus, the Writ Court under
no circumstances can be said to be the
'Court' under the provisions of Section
195 read with Section 340 Cr.P.C.

11. In totality, the applications are
dismissed, however, without imposing
any cost.

12. In any event, passing of this
order will not prevent the applicant
from proceeding before the appropriate
2 All] Anees Kumar Hajela V. State of U.P. and others
925
Court/forum/authority independently in
accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2012

BEFORE
THE HON'BLE SUNIL HALI, J.

Civil Misc. Writ Petition No. 45956 of 2008

Anees Kumar Hajela

 ...Petitioner
Versus
State of U.P. & others
 ...Respondents

Counsel for the Petitioner:
Sri R.C.Singh
Sri Arun Kumar Mishra

Counsel for the Respondents:
C. S. C.
Sri M.Tripathi,
Sri Neeraj Tiwari
Sri P. K. Tripathi

Constitution
of
India,
Article
226appointment
of
Principle
and
other
teachers-recognized by U.P. Education
Board-unaided institution-managed by
U.P.
State
Electricity
Board-certain
vacancy advertised by Electricity Board
initiating selection process-questioned
held-once institution recognized by U.P.
Education Board only U.P. Secondary
Education Service Selection Board 1982empowered for such exercise-U.p. Rajya
Vidyut
Parishad
Shiksha
Sewa
Viniyamawali has no application.

Held: Para 12

It is trite law that that in order to
establish an educational institution in
the State of UP which are non aided in
their character is regulated by the
Intermediate Education Act 1921. When
the Electricity Board seeks recognition of
its institution under the provisions of U.
P. Intermediate Education Act, 1921 it
binds itself with the conditions of the
recognition and the provisions of the Act
under which it seeks recognition. Once
the institution becomes a recognised
institution,
the
provisions
of
U.
P.
Intermediate Education Act, 1921 will be
applicable. It is admitted case of the
parties that the Board has sought
recognition of the Institution under the
Act as such it is deemed to be recognised
Institution. Since the recognition has
been granted under the Act of 1921 the
Board cannot escape the consequence of
the Act and rules framed therein.
Case law discussed:
1998 (1) AWC 681

(Delivered by Hon'ble Sunil Hali, J.)

1. All the aforesaid writ petitions
raise common questions of facts and law
and hence for convenience they are
being disposed of by a common order.

2. U.P. State Electricity Board
Inter College, Parichha (hereinafter
referred
as
an
Institution)
is
an
Intermediate College run and managed
by U.P. Rajya Vidyut Parishad. The
Institution is recognised under the
provisions
of
U.P.
Intermediate
Education Act 1921 and the regulations
framed thereunder and the provisions of
U.P. Secondary Education (Services
Selection Board) Act 1982 and the rules
framed therein are applicable. The
Institution does not receive grant from
the State of UP and liability to pay the
salary rest with the U.P. Electricity
Board. It is also not in dispute that the
U.P. Electricity Board is a State within
the meaning of Article 12 of the
Constitution of India.

3. The dispute in these writ
petitions is as to whether the regulation
framed by the U.P. Electricity Board
under Section 79(c) of the Electricity