State of U.P. and Another v. Party

1. Heard learned counsel for the applicant as well as learned A.G.A. for the State.

2. Applicant has invoked the inherent jurisdiction of this Court under Section 528 B.N.S.S. for quashing the N.B.W. orders dated 23.04.2025 &

08.05.2025 passed by Court of Village Pindra, Varanasi against the applicant (Annexure No.9 of this Affidavit) and stay the further proceeding of Case No.1435 of 2017 (State versus Nandlal & others), arising out of Case Crime No.0450 of 2017, under Sections 323, 504 I.P.C., Police Station- Phoolpur, District Varanasi, pending in the court of Village Pindra, Varanasi. 2 NA528 No. 21760 of 2025

3. Opposite party no.2 has lodged an F.I.R., being Case Crime No. 0450 of 2017, dated 01.07.2017, levelling allegations of hurt, house trespass, criminal intimidation and intentional insult against the four named persons including one Bablu Jaiswal. It is submitted that the identity of the Bablu Jaiswal has illegally been attached with the present applicant and non-bailable warrant has been issued against him vide order dated

23.04.2025. Learned counsel for the applicant has laid emphasis on the police report dated 06.01.2025, wherein In-charge of the concerned police station has submitted the report that there is no documentary evidence to establish that Jitendra Kumar Jaiswal and Bablu Jaiswal, as named in the F.I.R., are the same person.

4. Learned A.G.A. has contended that, after inquiry, Police has submitted the report disclosing the identity of Bablu Jaiswal S/o Nandlal Jaiswal who is also named as Jitendra Kumar Jaiswal S/o Nandlal Jaiswal.

5. Having considered the rival submissions advanced by learned counsel for the applicant as well as learned A.G.A. for the State and upon perusal of report, it manifests that the police, in its report dated 06.01.2025, has indicated Jitendra Kumar Jaiswal nicknamed as Bablu Jaiswal; however, failed to produce any documentary evidence to substantiate the averment made in the report. The learned trial court has failed to examine the matter so as to ascertain the identity of the warrant accused, namely, whether Bablu Jaiswal S/o Nandlal Jaiswal and Jitendra Kumar Jaiswal S/o Nandlal Jaiswal are one and common person against whom warrant has been issued in Case Crime No. 0450 of 2017, dated 01.07.2017. Even identification parade has not been conducted with intent to ascertain the involvement of the present applicant in the occurrence of the offence as mentioned in the F.I.R. No reliable identification evidence has been adduced before the trial court in this respect. Needless to say that the Hon'ble Apex Court has repeatedly held that identity of the accused must be proved beyond reasonable doubt and any innocent person should not be penalized. If an accused shows that he is not the same person named in the F.I.R./warrant, the court must conduct an enquiry before proceedings. In this respect, it would not be out of context to refer the Section 54A inserted by Uttar Pradesh Act 1 of 1984 in Cr.P.C., Section 8 (w.e.f.

1.5.1984) and the central amendment inserting Section 54A in Cr.P.C. by 3 NA528 No. 21760 of 2025 Act 25 of 2005, Section 11 (w.e.f. 23.6.2006). For ready reference both the aforesaid amendments are quoted herein below: [U.P. Act No. 1 of 1984, Section 8, (w.e.f. 1.5.1984)] "54-A. Test identification of the accused- When a person is arrested on a charge of committing an offence and his test identification by any witness is considered necessary by any Court having jurisdiction, it shall be lawful for an Executive Magistrate acting at the instance of such Court, to hold test identification of the person arrested." [Act 25 of 2005, Section 11 (w.e.f. 23.6.2006)] "54A. Identification of person arrested Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the Court, having jurisdiction may, on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit.] [Provided that, if the person identifying the person arrested is mentally or physically disabled, such process of identification shall take place under the supervision of a Judicial Magistrate who shall take appropriate steps to ensure that such person identifies the person arrested using methods that person is comfortable with: Provided further that if the person identifying the person arrested is mentally or physically disabled, the identification process shall be video- graphed.[Inserted by Criminal Law (Amendment) Act, 2013]"

6. Provisions for test identification of the accused, as mentioned above, evinces that initially State of U.P. has promulgated Act No.1 of 1984 authorising the court concerned to identify the main accused in case there is any dispute with regard to identity of the accused who has been arraigned in the charge sheet. Subsequently, Central Government has inserted a new Section 54A in the year 2006 authorizing the officer-in- charge of the police station to move an appropriate application during 4 NA528 No. 21760 of 2025 course of investigation before the court concerned for the purposes of identification of a person or persons if their identification is necessary for the purposes of investigation. In the matter at hand there is a glaring identification dispute of the accused who is named in the FIR and arraigned in the charge sheet, and against whom warrant has been issued. Present applicant is denying his identity being as an accused who has been named in the FIR and arraigned in the charge sheet. In this backdrop of the fact, mere a police report dated 06.01.2025, who has submitted on its own to proceed with the warrant against the present applicant, would not be sufficient to initiate trial against the present applicant pretending his identity being an accused against whom warrant has been issued. I am of the view that learned court concerned should pass a judicial order with regard to the identity of the present applicant, namely, Jitendra Kumar Jaiswal son of Nandlal Jaiswal, being an accused person named as Bablu Jaiswal son of Nandlal Jaiswal. Summoning the present applicant without ascertaining his identity being an accused warranted would amount abuse of process of law, therefore, to secure the ends of justice, his identity should be ascertained first.

7. Resultantly, instant application u/s 528 BNSS succeed and allowed partly with the following directions:- (i) The present applicant shall appear before the court below and move a detailed application/objection for asserting mistaken identity, that he is not the same person who is wanted in F.I.R./charge sheet. (ii) Learned court, upon receiving the application, as mentioned in direction No. 1, shall direct the police verification, witness identification, call for supporting documents and then decide the said application in accordance with law, as early as possible, so that original criminal proceedings would not be impeded unnecessary. (iii) If the court is satisfied that the warrant was wrongly issued against the present applicant (wrong person), proceedings against him should be dropped. However, if the court is satisfied that the warrant was rightly issued against the person concerned, who is wanted in F.I.R./charge sheet, appropriate order should be passed, accordingly, to proceed further. 5 NA528 No. 21760 of 2025 (iv) Till the decision on the aforesaid application/objection, as mentioned in direction No. 1, no coercive action shall be taken against the present applicant, namely, Jitendra Kumar Jaiswal. September 15, 2025 Sumit K. (Dinesh Pathak,J.) SUMIT KUMAR High Court of Judicature at Allahabad

1. Heard learned counsel for the applicant as well as learned A.G.A. for the State.

2. Applicant has invoked the inherent jurisdiction of this Court under Section 528 B.N.S.S. for quashing the N.B.W. orders dated 23.04.2025 &

08.05.2025 passed by Court of Village Pindra, Varanasi against the applicant (Annexure No.9 of this Affidavit) and stay the further proceeding of Case No.1435 of 2017 (State versus Nandlal & others), arising out of Case Crime No.0450 of 2017, under Sections 323, 504 I.P.C., Police Station- Phoolpur, District Varanasi, pending in the court of Village Pindra, Varanasi. 2 NA528 No. 21760 of 2025

3. Opposite party no.2 has lodged an F.I.R., being Case Crime No. 0450 of 2017, dated 01.07.2017, levelling allegations of hurt, house trespass, criminal intimidation and intentional insult against the four named persons including one Bablu Jaiswal. It is submitted that the identity of the Bablu Jaiswal has illegally been attached with the present applicant and non-bailable warrant has been issued against him vide order dated

23.04.2025. Learned counsel for the applicant has laid emphasis on the police report dated 06.01.2025, wherein In-charge of the concerned police station has submitted the report that there is no documentary evidence to establish that Jitendra Kumar Jaiswal and Bablu Jaiswal, as named in the F.I.R., are the same person.

4. Learned A.G.A. has contended that, after inquiry, Police has submitted the report disclosing the identity of Bablu Jaiswal S/o Nandlal Jaiswal who is also named as Jitendra Kumar Jaiswal S/o Nandlal Jaiswal.

5. Having considered the rival submissions advanced by learned counsel for the applicant as well as learned A.G.A. for the State and upon perusal of report, it manifests that the police, in its report dated 06.01.2025, has indicated Jitendra Kumar Jaiswal nicknamed as Bablu Jaiswal; however, failed to produce any documentary evidence to substantiate the averment made in the report. The learned trial court has failed to examine the matter so as to ascertain the identity of the warrant accused, namely, whether Bablu Jaiswal S/o Nandlal Jaiswal and Jitendra Kumar Jaiswal S/o Nandlal Jaiswal are one and common person against whom warrant has been issued in Case Crime No. 0450 of 2017, dated 01.07.2017. Even identification parade has not been conducted with intent to ascertain the involvement of the present applicant in the occurrence of the offence as mentioned in the F.I.R. No reliable identification evidence has been adduced before the trial court in this respect. Needless to say that the Hon'ble Apex Court has repeatedly held that identity of the accused must be proved beyond reasonable doubt and any innocent person should not be penalized. If an accused shows that he is not the same person named in the F.I.R./warrant, the court must conduct an enquiry before proceedings. In this respect, it would not be out of context to refer the Section 54A inserted by Uttar Pradesh Act 1 of 1984 in Cr.P.C., Section 8 (w.e.f.

1.5.1984) and the central amendment inserting Section 54A in Cr.P.C. by 3 NA528 No. 21760 of 2025 Act 25 of 2005, Section 11 (w.e.f. 23.6.2006). For ready reference both the aforesaid amendments are quoted herein below: [U.P. Act No. 1 of 1984, Section 8, (w.e.f. 1.5.1984)] "54-A. Test identification of the accused- When a person is arrested on a charge of committing an offence and his test identification by any witness is considered necessary by any Court having jurisdiction, it shall be lawful for an Executive Magistrate acting at the instance of such Court, to hold test identification of the person arrested." [Act 25 of 2005, Section 11 (w.e.f. 23.6.2006)] "54A. Identification of person arrested Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the Court, having jurisdiction may, on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit.] [Provided that, if the person identifying the person arrested is mentally or physically disabled, such process of identification shall take place under the supervision of a Judicial Magistrate who shall take appropriate steps to ensure that such person identifies the person arrested using methods that person is comfortable with: Provided further that if the person identifying the person arrested is mentally or physically disabled, the identification process shall be video- graphed.[Inserted by Criminal Law (Amendment) Act, 2013]"

6. Provisions for test identification of the accused, as mentioned above, evinces that initially State of U.P. has promulgated Act No.1 of 1984 authorising the court concerned to identify the main accused in case there is any dispute with regard to identity of the accused who has been arraigned in the charge sheet. Subsequently, Central Government has inserted a new Section 54A in the year 2006 authorizing the officer-in- charge of the police station to move an appropriate application during 4 NA528 No. 21760 of 2025 course of investigation before the court concerned for the purposes of identification of a person or persons if their identification is necessary for the purposes of investigation. In the matter at hand there is a glaring identification dispute of the accused who is named in the FIR and arraigned in the charge sheet, and against whom warrant has been issued. Present applicant is denying his identity being as an accused who has been named in the FIR and arraigned in the charge sheet. In this backdrop of the fact, mere a police report dated 06.01.2025, who has submitted on its own to proceed with the warrant against the present applicant, would not be sufficient to initiate trial against the present applicant pretending his identity being an accused against whom warrant has been issued. I am of the view that learned court concerned should pass a judicial order with regard to the identity of the present applicant, namely, Jitendra Kumar Jaiswal son of Nandlal Jaiswal, being an accused person named as Bablu Jaiswal son of Nandlal Jaiswal. Summoning the present applicant without ascertaining his identity being an accused warranted would amount abuse of process of law, therefore, to secure the ends of justice, his identity should be ascertained first.

7. Resultantly, instant application u/s 528 BNSS succeed and allowed partly with the following directions:- (i) The present applicant shall appear before the court below and move a detailed application/objection for asserting mistaken identity, that he is not the same person who is wanted in F.I.R./charge sheet. (ii) Learned court, upon receiving the application, as mentioned in direction No. 1, shall direct the police verification, witness identification, call for supporting documents and then decide the said application in accordance with law, as early as possible, so that original criminal proceedings would not be impeded unnecessary. (iii) If the court is satisfied that the warrant was wrongly issued against the present applicant (wrong person), proceedings against him should be dropped. However, if the court is satisfied that the warrant was rightly issued against the person concerned, who is wanted in F.I.R./charge sheet, appropriate order should be passed, accordingly, to proceed further. 5 NA528 No. 21760 of 2025 (iv) Till the decision on the aforesaid application/objection, as mentioned in direction No. 1, no coercive action shall be taken against the present applicant, namely, Jitendra Kumar Jaiswal. September 15, 2025 Sumit K. (Dinesh Pathak,J.) SUMIT KUMAR High Court of Judicature at Allahabad