# Smt. Nausheeda and others v. State of U.P. and others

- **Citation:** (2007) 2 ILRA 382
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-02-23
- **Case number:** Criminal Misc. Writ Petition No. 11998 of 2006
- **Bench:** Amitava Lala, V.C. Misra, Mrs. Poonam Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-nausheeda-and-others-v-state-of-u-p-and-others-40919
- **Pages:** 7

## Headnote

Sri V.K. Mishra, Government Advocate
Sri Vijay Shanker Mishra, Government
Advocate
Sri Neeraj Kant Verma,
Sri Lal Vijay Singh,
Sri S. Murtaza Ali, Addl.Govt.Advocate.

Constitution of India Art. 21 and 226Personal
Liberty-Writ
petitionchallenging the FIR-offence u/s 363,
366, 325, 504 and 506 IPC-the boy and
girl both found major-generally writ
court refused to interfere in respect of
heinous crime-but in social object court
can not give absolute go bye-No persons
shall be deprived from personal liberty
established by law-in absence of valid
age proof-person concerned to go for
ossification to determine actual age.

Held: Para 12,13 & 14

A boy and a girl are at liberty to choose
their own bride and bridegroom. This is
neither a crime nor disrespect to the
elders even within the social framework
of the country. No person shall be
deprived of his life or personal liberty
except
according
to
procedure
established by law under Article 21 of
the Constitution of India.

If
such
determination
supports
the
requisite age, then the right of marriage
of such persons cannot be said to be a
criminal offence. As soon as it is proved
by the medical test that both the boy and
girl are not minors, their willingness of
the marriage to each other cannot be
ignored. If it is ignored, the same will be
interference with the fundamental right
of such persons.

We normally refuse to pass any order in
respect of heinous crimes. But where the
question of social object is involved, we
can not give an absolute go bye.
Therefore, we cannot construe that the
writ petition is not maintainable and
deserves to be dismissed in limine
without the test of bonafide.
2 All] Smt. Nausheeda and others V. State of U.P. and others
383
Case law discussed:
2006 (56) ACC-234
2006 (54) ACC-235
2006 (55) ACC-424
2002 (1) JIC-937

## Text

382 INDIAN LAW REPORTS ALLAHABAD SERIES [2007

8. From the records, we do not find
that any ground had been taken by the
Insurance Company that there was any
breach of insurance policy. We have also
examined the records. We do not find that
any permission had been applied by the
Insurance Company under Section 170 of
the Motor Vehicle Act, 1988 and the same
was either refused or granted by the
Tribunal.

9. In view of our findings the
argument of the learned counsel for the
appellant that the accident took place due
to contributory negligence of drivers of
both the vehicles had not been considered
by the tribunal cannot be accepted.

Thus, the appeal fails and is
dismissed.

10. Office is directed to send back
the
records
of
the
court
below
expeditiously.

Parties shall bear their own cost
Appeal dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.02.2007

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE V.C. MISRA, J.
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Criminal Misc. Writ Petition No. 11998 of
2006

Smt. Nausheeda and others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Mohd. Aslam Ansari
Sri Mukhtar Alam
Counsel for the Respondents:
Sri V.K. Mishra, Government Advocate
Sri Vijay Shanker Mishra, Government
Advocate
Sri Neeraj Kant Verma,
Sri Lal Vijay Singh,
Sri S. Murtaza Ali, Addl.Govt.Advocate.

Constitution of India Art. 21 and 226Personal
Liberty-Writ
petitionchallenging the FIR-offence u/s 363,
366, 325, 504 and 506 IPC-the boy and
girl both found major-generally writ
court refused to interfere in respect of
heinous crime-but in social object court
can not give absolute go bye-No persons
shall be deprived from personal liberty
established by law-in absence of valid
age proof-person concerned to go for
ossification to determine actual age.

Held: Para 12,13 & 14

A boy and a girl are at liberty to choose
their own bride and bridegroom. This is
neither a crime nor disrespect to the
elders even within the social framework
of the country. No person shall be
deprived of his life or personal liberty
except
according
to
procedure
established by law under Article 21 of
the Constitution of India.

If
such
determination
supports
the
requisite age, then the right of marriage
of such persons cannot be said to be a
criminal offence. As soon as it is proved
by the medical test that both the boy and
girl are not minors, their willingness of
the marriage to each other cannot be
ignored. If it is ignored, the same will be
interference with the fundamental right
of such persons.

We normally refuse to pass any order in
respect of heinous crimes. But where the
question of social object is involved, we
can not give an absolute go bye.
Therefore, we cannot construe that the
writ petition is not maintainable and
deserves to be dismissed in limine
without the test of bonafide.
2 All] Smt. Nausheeda and others V. State of U.P. and others
383
Case law discussed:
2006 (56) ACC-234
2006 (54) ACC-235
2006 (55) ACC-424
2002 (1) JIC-937

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

Amitava Lala,J.-1. The writ petition is
made basically for the following reliefs
amongst others;

(A) Issue a writ, order or direction in the
nature of certiorari quashing the
impugned first information report
lodged at Case Crime No.257 of
2006
under
sections
363,366,352,504,506 I.P.C. Police
Station Gangoh, District Saharanpur
(Annexure No.1 to the writ petition).

(B) Issue a writ, order or direction in the
nature of mandamus commanding
the respondents not to arrest the
petitioners with reference to Case
Crime
No.257
of
2006
under
Sections 363,366, 352,504,506 I.P.C.
Police
Station
Gangoh,
District
Saharanpur.

2. An F.I.R. has been lodged on 2nd
September,2006 by one Safdar, the
respondent no.4 herein saying that Afzal
alias
Mohd.Afzal,
kidnapped
Km.Nausheeda, on 8th August,2006, who
is allegedly about 15 years of age.

3. In the writ petition, the concerned
girl Nausheeda is the petitioner no.1 when
the accused Afzal is the petitioner no.2
along with others. The writ petition is
supported by the affidavit of Nausheeda
herself describing her age is 22 years. The
writ petition is supported by various
annexures including annexure 3 which is
very relevant for the purpose of due
consideration.
Such
annexure
is
a
certificate of the concerned Chief Medical
Officer (hereinafter called as C.M.O.)
Saharanpur dated 22nd September, 2006
on the basis of the order dated 18th
September,
2006
of the
Additional
District
Magistrate,
Administration,
Saharanpur. It is stated therein that the
girl was present for examination. The
examination was done. According to her
own statement the age is 22 years. On the
physical appearance the C.M.O. certified
that her age is about 20/22 years.

4. A Division Bench consisting of
(Hon'ble Mr. Justice R.C.Deepak and
Hon'ble Mr. Justice V.D. Chaturvedi)
were divided in entertaining the writ
petition.

R.C. Deepak, J. was pleased to pass
the following interim order:

"In my opinion without expressing
anything on the merit of the case, it is fit
and proper in the interest of justice and
equity both that the investigation into the
case crime no. 257 of 2006 under Sections
363, 366, 352, 504, 506 IPC at Police
Station Gangoh, District Saharanpur shall
go on, but the arrest of the petitioners no.2
to 5 ( Afzal @ Mohd.Afzal, Imran,
Gulshana @ Gullo and Sabra ) shall not
be effected by the investigating agency till
the date fixed, provided they cooperate
with the investigation. The order is passed
accordingly.
Let a counter affidavit be filed by the
investigating officer within three weeks.
Notice be issued to respondent no.4 to file
counter
affidavit
within
the
period
indicated above.
The case shall appear on list on 1st
November, 2006."
384 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
5. In the process of delivering
judgment R.C. Deepak, J. relied upon the
following judgments:

AIR 1963 SC 1295 (Kharak Singh vs
State of U.P.), AIR 1975 SC 1375
(Govind Vs State of M.P.), AIR 1997 SC
568 (P.U.C.L. Vs Union of India), 2002
(1) J.I.C. 937 (Shamsher Aalam alias
Sheru Vs State of U.P.), 1994 (31) ACC
431(Joginder Kumar Vs State of U.P.)

On the other hand V.D. Chaturvedi,
J. felt as follows:

"In view of Hon'ble Supreme Court's
verdict
given
in
AIR
1957
529
(Paragraphs 5 &6) (Sohan Lal Vs
Union of India), AIR 1959 SC 942
(Paragraph 17) (Mahant Moti Das Vs
S.P. Sahi and others), AIR 1961 SC
1526 (Paragraph 7) (Union of India &
others Vs. Ghaus Mohd), AIR 1963 SC
516 (Paragraphs 4 & 5), (Bokaro &
Rangur Ltd. Vs State of Bihar &
another),
AIR
1964
SC
1419
(paragraph 7), (Thansingh Nathmal Vs.
Superintendent of Taxes & others) and
in AIR 1976 SC 386 (paragraph 18),
(D.L.F. Housing Construction Pvt. Ltd.
Vs Delhi Municipal Corporation &
others) the High Court in writ jurisdiction
cannot enter into the field of investigating
the facts and cannot adjudicate such
questions of disputed facts which require
the investigation and the evidence. The
questions of facts which invite the
investigation or enquiry or probe cannot
be decided in the writ jurisdiction."

6. His Lordship further held that
"the adjudication of such facts would also
be an interference in the investigation of
the offence."

7. Ultimately it was held that the
writ petition is not maintainable and
deserves to be dismissed in limine
without issuing Rule-Nisi.

8. In coming to conclusion V.D.
Chaturvedi, J. made the following
observations:

"I am further of the opinion that the
consent
expressed
by
the
victim
Km.Nausheeda either in the affidavit or
elsewhere, while she was in the custody
of the accused of Crime No.257 of 2006,
fails to inspire the confidence that the
alleged consent was free from fraud,
coercion,
misrepresentation,
under
influence or threat etc. At this juncture
such consent cannot be termed more than
a spurious consent.
Petitioner
Km.
Nausheeda
is
undisputedly in the custody of the
petitioner Afzal. So long as she lives in
his
custody,
her
continuous
sexual
exploitation by at least Afzal cannot be
prevented. If after the trial of Crime
No.257 of 2006, she is found minor or
that she was induced or enticed by Afzal
and others to go with them or that her
consent was not a free consent, her loss,
as a result of such sexual exploitation
would be an irreparable and the biggest
loss, which a unmarried girl of her age
may suffer in her life. She is a living
person and not a case property. Her
welfare and future is in peril. Only
suitable order may save her future and
protect her welfare.
Km. Nausheeda, being the victim of
a case under Sections 363,366 IPC is the
prime witness of Crime No.257/2006. Her
custody with the accused of such offence
would enable them to win over the prime
witness before her statement in the
investigation and in the trial. Thus the
2 All] Smt. Nausheeda and others V. State of U.P. and others
385
fairness of the investigation and the trial
is in jeopardy. It may defeat the ends of
justice. For the maintenance of the
administration of justice and to avert the
defeat of the ends of justice, it is
therefore, necessary that she be kept out
of the clutches of the accused of case
Crime No.257 of 2006. It is the high time
to pass a suitable and appropriate order
regarding her custody or for her living in
a healthy atmosphere under the care and
watch of a responsible person. Her natural
guardian is best person to whom her
custody may be restored. I do order that
her custody be restored forthwith to her
natural guardian."

9. In any event while R.C.
Deepak,J. was pleased to place the matter
before Hon'ble the Chief Justice to refer
the matter to the third Judge, keeping the
writ petition pending. V.D. Chaturvedi,
J. was pleased to send the matter to the
office to place the matter before the
Hon'ble Chief Justice to constitute a full
Bench for determination of the above
mentioned points.

Hon'ble the Chief Justice constituted
this Bench and forwarded the matter.

The
following
questions
are
formulated by the Bench after hearing the
matter on 15th December, 2006:

(a) What would be the wisdom of the
writ Court under this jurisdiction?
(b) What relief could be granted by
the writ Court?

10. We have carefully considered
the
submission
of
learned
counsel
appearing for the petitioners and learned
Government
Advocate.
Both
the
petitioners i.e., boy and girl, who were
directed to be personally present before
this Court were identified by learned
counsel appearing for the petitioners.
Irrespective of the consideration of issue,
this Court was pleased to direct the
petitioners on 15th December, 2006 to get
the age proof of both the boy and girl
through an ossification test. The part of
the order dated 15th December, 2006 is as
follows:

"For the purpose of getting age
proof, both the girl and the boy (petitioner
nos.1 and 2 herein) will be produced
before the C.J.M., Allahabad along with
their photographs, which will be attested
by the subordinate officer of the C.J.M.
concerned and then the petitioner nos.1
and 2 will be sent to the Chief Medical
Officer, Allahabad along with the attested
photographs for their identification and
completion of ossification test, report of
which will be produced before the Officer
of the Court within a period of one month
by the learned Government Advocate. If
any copy of the same is available with the
petitioners, they can also file the same."

11. From the ossification test report
it appears that as per the test dated 20th
December, 2006 the age of the boy is 22
years when the age of the girl is 19 years.
The F.I.R. was lodged on 2nd September,
2006 describing 8th August, 2006 is the
date of the incident. Hence it appears to
this Court that on the fateful day both the
petitioners were major.

12. Now we have to consider the
questions formulated by this Court.
According to us, both the questions, are
intermingled with each other. The relief
will be dependable upon the wisdom.
Therefore, the entire endeavour of this
Bench is confined to the question of
386 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
wisdom of the writ Court. It is well
known that the writ Court does not
interfere with the investigation or inquiry
or adjudicate the disputed question of
fact. At the same time it is also to be
remembered that writ Court possess
unfettered right under Article 226 of the
Constitution of India particularly in
respect of fundamental right of the
people. Therefore even within our self
restraint we should not forgetful about
proper utilization of the tool at least for
the sake of fundamental right, principles
of natural justice, question of jurisdiction
and ultra vires. A boy and a girl are at
liberty to choose their own bride and
bridegroom. This is neither a crime nor
disrespect to the elders even within the
social framework of the country. No
person shall be deprived of his life or
personal liberty except according to
procedure established by law under
Article 21 of the Constitution of India.
The question of crime, if any, arises when
one is underaged that too eloped by any
one by force for the purpose of marriage
or for some other reason. Even where a
consent of the minor is not backed by the
parents' consent, cannot be said to be a
consent in the eye of law. Therefore, court
has to visualise whether the consent is
valid or not. In the process the age is not
verified. Otherwise there would be
likelihood of infringement of fundamental
right.

13. It is a border line issue.
Therefore the writ Court can not dismiss
the writ petition in limine. After the age
verification, if the Court found that either
of them is underaged, then Court may not
interfere with the matter of investigation
under Sections 363, 366 of Indian Penal
Code
(hereinafter
called
as
I.P.C).
Normally age is to be verified from the
school certificate or from an authentic
document. If those are not available or
one is illiterate, it would be proper for the
Court to send him/her to medical expert
for the purpose of determination of age
scientifically.
If
such
determination
supports the requisite age, then the right
of marriage of such persons cannot be
said to be a criminal offence. As soon as it
is proved by the medical test that both the
boy and girl are not minors, their
willingness of the marriage to each other
cannot be ignored. If it is ignored, the
same will be interference with the
fundamental right of such persons.

14. Independently it is to be
remembered that in our State we have no
provision for granting anticipatory bail as
yet. Since such protection is not available
there is no other alternative for a person
aggrieved
but
to
invoke
the
writ
jurisdiction on the two fold grounds
i.e.,(i) to quash the F.I.R. and (ii) not to
arrest the petitioner/s. Even thereafter
very seldom, we pass an order quashing
the F.I.R. We normally pass order not to
arrest a person for a limited period on the
prima facie case within our self restraint.
We normally refuse to pass any order in
respect of heinous crimes. But where the
question of social object is involved, we
can not give an absolute go bye.
Therefore, we cannot construe that the
writ petition is not maintainable and
deserves to be dismissed in limine
without the test of bonafide.

15. In 2006 (56) ACC 234 Supreme
Court (Lata Singh Vs. State of U.P. and
another)
on
a
different
factual
background but on the question of
marriage, the Supreme Court held:
2 All] Smt. Nausheeda and others V. State of U.P. and others
387
".....this is a free and democratic
country, and once a person becomes a
major, he or she can marry whosoever
he/she likes......"

16. A Division Bench of our High
Court in 2006 (54) ACC 235 (Nitin
Agnihotri vs State of U.P. and others)
considered
the
question
of
girl's
willingness and ultimately directed the
police authorities to ensure peaceful
living
of
the
married
couple
and
prevented the parent of the family
members of the husband from giving any
threat.

17. A Division Bench of this High
Court in which one of us (Amitava Lala,
J.) is member, as reported in 2006 (55)
ACC 424 (Sayed Sadab Hasan and
another vs State of U.P.and others) it was
held:

"... once the girl become major she
has her own right to stay as per her will
and she cannot be protected even by
sending her to any home i.e. Nari Niketan
etc."

The
guardian's
prayer
as
a
complainant to allow to stay with her was
also refused by the Court.

18. In 2002 (1) JIC 937 (All)
(Shamsher Alam @ Sheru & Anr. Vs
State of U.P. & Ors.) this High Court
even quashed the F.I.R. in view of the
moot issue that when a person become
major and is not under the guardianship of
her father and she had left the paternal
home and married one out of her own
free-will, the allegations in the F.I.R. that
the boy has threatened to kidnap the girl,
does not prima facie constitute the
committal of offence.
19. In AIR 1997 SC 568 (People's
Union for Civil Liberties (PUCL) vs
Union of India and another) the
Supreme Court held right to privacy is a
part of the right to ''life' and ''personal
liberty' enshrined under Article 21 of the
Constitution of India. Although the
different facts were involved therein but
interference with the right to privacy was
a major issue. The right to privacy by
itself has not been identified under the
Constitution. As a concept it may be too
broad
and
moralistic
to
define
it
judicially. Whether right to privacy can be
claimed or has been infringed in a given
case would depend on the facts of the
each case.

20. In the well celebrated judgment
of the Supreme Court reported in 1994
(31) ACC 431 (Joginder Kumar Vs.
State of U.P.) it was held that the
existence of the power to arrest is one
thing. The justification for the exercise of
it is quite another.

21. We are considering the cause of
justification, which can not be equated
with probability. When there is a cause of
justification,
the
matter
cannot
be
dismissed in limine but will be disposed
of either way after justification of the
cause. Probability means you think that it
is very likely to happen when justification
means an acceptable position with
reason/s or explanation for it. Justification
means judge the cause and pass the order
when dismissal in limine means there is
no necessity of judging the case at all.

22. Hence in totality we respectfully
disagree
with
view
of
Hon'ble
Mr.Justice V.D.Chaturvedi, and we
respectfully agree with the view of
Hon'ble Mr.Justice R.C.Deepak, but
388 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
with a rider that in case of any doubt or in
absence of any valid age proof document,
persons concerned will be directed to go
for ossification being the valid scientific
test to determine the age and pass order
on such determination.

23. With the above view, the
reference is formally treated to be
disposed of. The matter is directed to be
sent back to the appropriate Division
Bench
for
the
purpose
of
final
adjudication.
 Reference decided.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.05.2007

BEFORE
THE HON'BLE R.P. MISRA, J.
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No.35617 of 2002

Suresh Dwivedi & another ...Petitioners
Versus
The District Magistrate, Hamirpur and
another

...Respondents

Counsel for the Petitioners:
Sri Mukesh Prasad

Counsel for the Respondents:
Sri Vishnu Pratap
S.C.

Mines and Minerals (Regulation and
Development Amendment Act, 1979Rule-4
(1-A)-Liability
of
royaltypetitioners doing business of purchase
and sale of morrum, gitt in their different
business premises-purchase of morrum
from open market from various leased
permit holder-whether liable to pay
royalty? Held-'No'.

Held: Para 17

From the record it is clear that no rules
were framed till the notice to the
petitioners have been given, therefore,
we are of the view that notice given by
the respondents to the petitioners itself
is bad in law and no action under Section
21 of the Act for contravention of Section
4(1-A) can be initiated against the
petitioners.
Case law discussed:
AIR 1987 M.P.-74
AIR 1995 SC-858
2004 (2) SCC-783

(Delivered by Hon'ble R.P. Misra, J.)

1. By means of the present writ
petition the petitioners have approached
this Court for quashing the impugned
notices dated 6.4.2002 and 22.2.2002
(Annexures 1 and 2 to the writ petition).

2. The petitioners who are traders of
sand/ morrum and gitti having their
business premises on different plots in
village Shitalpur and Kalauli in District
Hamirpur. The petitioners purchase the
minerals from open market and also from
various lease/permit holders from storing
and transporting for sale to various
customers to take the aforesaid minerals
for private consumption/use.

3. Notices dated 6.4.2002 and
22.2.2002 were received from the mines
officer by which the petitioners were
directed to clarify the position regarding
the genuineness of the stock of morrum.
According to the aforesaid notice, under
Section 4 (1-A) no person can stock or
transport minerals without permission,
otherwise action be taken under Section
21 of the Act. Section 4 of the Act under
the heading "Prospecting or mining
operations to be under license or lease"
has been amended by the Mines and
Minerals (Regulation and Development)