# Mohd. Azeem Idrishi v. State of U.P. & Anr

- **Citation:** (2026) 2 ILRA 813
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-09
- **Case number:** Application U/S 482. No. 8263 of 2025
- **Bench:** Tej Pratap Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-azeem-idrishi-v-state-of-u-p-anr-54207
- **Pages:** 8

## Text

2 All. Mohd. Azeem Idrishi Vs. State of U.P. & Anr.
813

55. In complaint cases, at the first instance, the court should direct serving of the
summons along with the copy of the complaint. If the accused seem to be avoiding the summons,
the court, in the second instance should issue bailable- warrant. In the third instance, when the
court is fully satisfied that the accused is avoiding the courts proceeding intentionally, the process
of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount,
therefore, we caution courts at the first and second instance to refrain from issuing non-bailable
warrants.

56. The power being discretionary must be exercised judiciously with extreme care and
caution. The court should properly balance both personal liberty and societal interest before
issuing warrants. There cannot be any straight-jacket formula for issuance of warrants but as a
general rule, unless an accused is charged with the commission of an offence of a heinous crime
and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of
law, issuance of non-bailable warrants should be avoided.

57. The Court should try to maintain proper balance between individual liberty and the
interest of the public and the State while issuing non-bailable warrant."

7. The inherent powers under Section 528 BNSS are to be exercised to prevent abuse of
process of court and to secure ends of justice (State of Haryana v. Bhajan Lal, 1992 Supp (1)
SCC 335). The matter at hand is the fit case for the exercise of the inherent powers of the High
Court vested under section 528 of BNSS.

8. The impugned order dated 13.01.2026 passed by learned Additional Distict Judge - XVI/
Special Judge (P.C.), Allahabad in Session Trial No. 354 of 2016 (State vs Faizan Hussain and
Others) arising out of Case Crime No. 03 of 2014 is hereby quashed. The Concerned Trial Court is
directed to pass a fresh order in the light of the observation made hereinabove.
----------
(2026) 2 ILRA 813
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.02.2026

BEFORE

THE HON'BLE TEJ PRATAP TIWARI, J.

Application U/S 482. No. 8263 of 2025
Alongwith
Application U/S 482. No. 8685 of 2025

Mohd. Azeem Idrishi ....Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

ISSUE FOR CONSIDERATION
Whether the arrest and prosecution of the applicants in connected criminal cases suffer from non-verification
of true identity, leading to wrongful apprehension of innocent persons due to factual error by police.
814 INDIAN LAW REPORTS ALLAHABAD SERIES
HEADNOTES
Criminal Law - Code of Criminal Procedure, 1973 - Section - 154, 161, 482, - Indian Penal Code,
1860 - Sections 328, 376D, 406, 420, 504, 506 - Prohibition of Unlawful Religious Conversion
Act, 2021 - Section 5(1) - Constitution of India - Article 21 - Bharatiya Nagarik Suraksha
Sanhita (BNSS) - Section 35: - Application u/s 482 CrPC - for quashing of entire criminal proceedings -
FIRs - offences of cheating, intentional insult, and criminal intimidation (in year 2004 case) and causing hurt
by poison, gang rape, criminal breach of trust, and unlawful religious conversion (in year 2024) - investigation
- arrest - Mistaken Identity - Non-verification of particulars in NBW - Applicant wrongly apprehended -
Violation of Article 21 - charge sheet - cognizance order - trial initiated - applicants pleaded mistaken identity,
no evidence under Section 161 Cr.P.C., and mechanical cognizance - State admitted factual confusion due to
identical names and incomplete particulars in NBW - Court finds that, arrest based on mistaken identity,
violating Article 21 - held - arrest must be justified, not routine; deprivation of liberty impermissible without
due verification - hence, impugned orders and proceedings quashed - applications allowed with direction to
police to take lawful action against erring officers, compliance report to be filed - applicants at liberty to seek
compensation under Article 226. (Para - 13, 14, 17, 19, 21, 22, 23)
Application Allowed. (E-11)

CASE LAW CITED
Joginder Kumar v. State of U.P., (1994) 4 SCC 260
Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273
Satendra Kumar Antil v. CBI, (2022) 10 SCC 51
Rudul Shah v. State of Bihar, (1983) 4 SCC 141

LIST OF ACTS
Code of Criminal Procedure, 1973 - Indian Penal Code, 1860 - Prohibition of Unlawful Religious Conversion
Act, 2021 - Constitution of India - Bharatiya Nagarik Suraksha Sanhita (BNSS).

LIST OF KEYWORDS
Criminal Case - FIR - Quashing of proceedings - Mistaken identity - non-bailable warrant (NBW) - Personal
liberty - Article 21 - Wrongful arrest - Compensation for unlawful detention - Police accountability.

CASE ARISING FROM
Criminal Case No. 312/2004 (State of U.P. v. Om Prakash) - arising from FIR No. 114/2004, P.S. Sidhauli,
Sitapur - S.T. No. 300/2025 (State of U.P. v. Mohd. Azeem Idrishi) - arising from Case Crime No. 0041/2024,
P.S. Gazipur, Lucknow.

APPEARANCE OF PARTIES
Counsel for Appellant(s): Shri Ratnesh Kant Agnihotri, Ranjana Agnihotri.
Counsel for Respondent(s): Shri Sandeep Tewari, GA.

(Delivered by Hon'ble Tej Pratap Tiwari, J.)

1. The present petitions have been filed under section 482 Cr.P.C. to quash the proceedings of
S.T. No. 300/2025 arising out of supplementary charge sheet no. 2, dated 02.08.2024 relating to
case crime no. 0041/2024 dated 28.01.2024, lodged under section 328, 376 D, 406 IPC and section
5(1) of the prohibition of Unlawful Religious Conversion Act, 2021 P.S. Gazipur, District
Lucknow pending in the court of special judge POCSO Act- III, Lucknow titled as (State of U.P.
versus Mohd. Azeem Idrishi) and in connected case also to quash the applicant's criminal
prosecution in Criminal Case No. 312/2004, bearing FIR No. 114 of 2004 (State of U.P. versus Om
Prakash) under Section 420, 504, 506 of Indian Penal Code, 1860 registered with Police Station
Sidhauli, District Sitapur along with the Cognizance Order dated 17.11.2006 and the Impugned
2 All. Mohd. Azeem Idrishi Vs. State of U.P. & Anr.
815
Order dated 01.07.2025 and all the consequential proceedings as against the applicants connected
with S.T. No. 300/2025 arising out of supplementary charge sheet no. 2, dated 02.08.2024 relating
to case crime no. 0041/2024 dated 28.01.2024, lodged under section 328, 376 D, 406 IPC and
section 5(1) of the prohibition of Unlawful Religious Conversion Act, 2021 P.S. Gazipur, District
Lucknow pending in the court of special judge POCSO Act- III, Lucknow titled as (State of U.P.
versus Mohd. Azeem Idrishi) and to stay the further proceedings.

Factual Matrix

2. Shorn of the details in Criminal case no. 312/2024, an FIR lodged on 25.09.2004 under
section 154 of Cr.P.C. against Om Prakash, as per the version of FIR, the accused has dishonestly
by fraudulent means obtained the sale deed dated: 06.02.1984 (Bainama) of the complainant Smt.
Suhagwati who is an illiterate woman. Om Prakash used the sale deed as security/guarantee in a
loan account amounting to Rs. 1,00,000/- (One Lakh Only) from Bhagirath Gramin Bank, Branch
Sidhauli, District Sitapur.

3. As per the version of the F.I.R. in Case Crime No. 0041 of 2024, the informant alleged that
she was raped by one Nihal, who also recorded a video of the incident. On the basis of the said
video, he threatened and extorted a sum of ₹3,00,000/- and on one occasion he came along with
one Azeem, whom the informant claims to have recognised by face, and that the said Azeem also
committed rape upon her by blackmailing her.

Issue

4. Both the cases are dealt with the same issue that the police officer without ascertaining the
true identity and verifying the identity of the real accused, arrested the innocent person due to
factual mistake.

5. Whether the arrest in both the cases suffers from non-verification of the true identity of the
accused, leading to the apprehension of an innocent person due to a factual error on the part of the
police.

Submission on behalf of applicants

6. Learned Counsel for the applicants submits that the applicants doesn't know the
complainant by any means. There was no interaction or contact between them. The bank at the
request of the guarantor has granted or agreed to grant to the Om Beej Bhandar, Sidhauli District
Sitapur (Borrower) banking facilities by way of overdraft and/or promote or loan account upto the
aggregate limit of Rs. 1,00,000/-. Om Prakash was the real accused whereas the applicants is Om
Prakash Vishwakarma, he is innocent and facing the malicious prosecution. Learned Counsel
submits that the applicants is not the proprietor of the company nor has any bank account in his
name, he is a clerk and falls under the category of indigent person(s).

7. Learned Counsel for the applicants submits that the investigating officer has failed to point
out any specific act of commission or omission on the part of the applicants. During investigation,
816 INDIAN LAW REPORTS ALLAHABAD SERIES
there is no evidence and material in the shape of statement under Section 161 Cr.P.C. against
applicants. The allegations are untrue, misconceived and concocted as against the applicants.

8. Learned Counsel for the applicants submits that the Learned Magistrate has passed order
dated 17.11.2006 and taken the cognizance in the most mechanical manner, without any application
of mind and in utter disregard to the settled principles of law. He further submits that the innocent
applicants places his reliance on the statements of P.W.-1 (Suhagwati, complainant) recorded on
09.01.2006, the complainant states "My Bainama got exchanged with Bhagauti Devi who was my
neighbour and Bhagauti Devi further gave my Bainama to his son namely Om Prakash who further
took loan on the basis of my Bainama". This statement clearly indicates that the real-accused
namely Om Prakash is the son of Sohan Lal & Bhagauti Devi, whereas the mother's name of the
innocent applicants is Ramrati, which shows that the applicants is wrongly identified as the real
accused.

Submission on Behalf of Opposite Party

9. Learned A.G.A. for the state submits that the investigating officer conducted a detailed
inquiry regarding the named accused Om Prakash son of Sohanlal resident of Moh. Prem Nagar,
police station Sidhauli, District Sitapur upon which it transpired that Om Prakash son of Sohanlal's
mother's name is Bhagwati Devi, who is permanent resident of Moh. Prem Nagar, police station
Sidhaulli, District Sitapur, who had died about 01 year and 06 months ago and at present his family
is residing in Lucknow and due to this reason the investigating officer could not get the correct
information regarding the actual accused Om Prakash.

10. Learned A.G.A. further submits that the factual mistake was caused, as the father's name
of the named accused/deceased Om Prakash and Om Prakash produced before the learned court
below was same and on the basis of the information given by the residents of the address
mentioned on the N.B.W, Om Prakash son of Sohanlal resident of Shambhunath Colony, Police
station Sairpur, District Lucknow, permanent resident of Village Kashipur, police station Sidhauli,
District Sitapur was arrested on 01.07.2025 and was produced before the learned court below.

Observation

11. Heard learned counsel for the applicants, learned counsel for opposite party no. 2, learned
A.G.A for the State and perused the record.

12. At the first instance, it would be appropriate to reproduce the relevant provisions of law
under which the present criminal misc. application has been preferred and the law relating to arrest
(Section 482 Cr.P.C.- Saving of inherent powers of High Court, Article 21 of the Constitution of
India and Section 35 of BNSS.)

Section 528 BNS/482 Cr.P.C:-
2 All. Mohd. Azeem Idrishi Vs. State of U.P. & Anr.
817

"Nothing in this Code shall be deemed to limit or affect the inherent powers of the High
Court to make such orders as may be necessary to give effect to any order under this Code, or to
prevent abuse of the process of any Court or otherwise to secure the ends of justice."

Article 21. Protection of life and personal liberty.- 'No person shall be deprived of his life
or personal liberty except according to procedure established by law'.

"Section 35. When police may arrest without warrant.

(1) Any police officer may without an order from a Magistrate and without a warrant,
arrest any person -

(ba) against whom credible information has been received that he has committed a
cognizable offence punishable with imprisonment for a term which may extend to more than seven
years whether with or without fine or with death sentence and the police officer has reason to
believe on the basis of that information that such person has committed the said offence"

13. The submissions advanced by the learned counsel for the parties emphasises though the
name of the applicants are identical to that of the accused person, the applicants are not the real
accused in the present case. The non-bailable warrant in question does not contain complete
identifying particulars, such as the name of the mother. Owing to such deficiency in the warrant
and lack of due verification, the police officials committed a factual mistake and apprehended the
applicants, who are an innocent persons.

14. The record does not disclose any material establishing the identity of the applicants as the
persons against whom the criminal proceedings were initiated. The deprivation of liberty of a
person on account of mistaken identity is impermissible in law and strikes at the very root of the
guarantee of personal liberty under Article 21 of the Constitution of India.

"45 In Rabindra Nath Ghosal vs. University of Calcutta reported in (2002) 7 SCC 478
the Supreme Court held:

The Courts having the obligation to satisfy the social aspiration of the citizens have to
apply the tool and grant compensation as damages in a public law proceedings. Consequently
when the Court moulds the relief in proceedings under Articles 32 and 226 of the Constitution
seeking enforcement or protection of fundamental rights and grants compensation, it does so under
the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on
the State which has failed in its public duty to protect the fundamental rights of the citizens. But it
would not be correct to assume that every minor infraction of public duty by every public officer
would commend the Court to grant compensation in a petition under Articles 226 and 32 by
applying the principle of public law proceeding. The Court in exercise of extraordinary power
under Articles 226 and 32 of the Constitution, therefore, would not award damages against public
authorities merely because they have made some order which turns out to be ultra vires, or there
has been some inaction in the performance of the duties unless there is malice or conscious abuse.
Before exemplary damages can be awarded it must be shown that some fundamental right under
818 INDIAN LAW REPORTS ALLAHABAD SERIES
Article 21 has been infringed by arbitrary or capricious action on the part of the public
functionaries and that the sufferer was a helpless victim of that act."

15. The Supreme Court in Joginder Kumar vs. State of U.P. reported in (1994) 4 SCC 260,
(paragraph 20). Extracted and reproduced below are the suggestions appearing in the paragraph.

"20. In India, Third Report of the National Police Commission at p. 32 also suggested:

"An arrest during the investigation of a cognizable case may be considered justified in
one or other of the following circumstances:

(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is
necessary to arrest the accused and bring his movements under restraint to infuse confidence
among the terrorstricken victims.

(ii) The accused is likely to abscond and evade the processes of law.

(iii) The accused is given to violent behaviour and is likely to commit further offences
unless his movements are brought under restraint.

(iv) The accused is a habitual offender and unless kept in custody he is likely to commit
similar offences again.

It would be desirable to insist through departmental instructions that a police officer
making an arrest should also record in the case diary the reasons for making the arrest, thereby
clarifying his conformity to the specified guidelines...'"

16. In the case of Satendra Kumar Antil vs. Central Bureau of Investigation reported in
(2022) 10 SCC 51, the Supreme Court also declared on section 41 by paragraph 23 therein,
reproduced below:-

"23. Section 41 under Chapter V of the Code deals with the arrest of persons. Even for a
cognizable offense, an arrest is not mandatory as can be seen from the mandate of this provision. If
the officer is satisfied that a person has committed a cognizable offense, punishable with
imprisonment for a term which may be less than seven years, or which may extend to the said
period, with or without fine, an arrest could only follow when he is satisfied that there is a reason
to believe or suspect, that the said person has committed an offense, and there is a necessity for an
arrest. Such necessity is drawn to prevent the committing of any further offense, for a proper
investigation, and to prevent him/her from either disappearing or tampering with the evidence.
He/she can also be arrested to prevent such person from making any inducement, threat, or
promise to any person according to the facts, so as to dissuade him from disclosing said facts
either to the court or to the police officer. One more ground on which an arrest may be necessary
is when his/her presence is required after arrest for production before the Court and the same
cannot be assured."
2 All. Mohd. Azeem Idrishi Vs. State of U.P. & Anr.
819

On this aspect, the judgment in Arnesh Kumar vs. State of Bihar reported in (2014) 8
SCC 273 was relied upon.

17. With reference to the suggestions in Third Report of the National Police Commission the
Supreme Court in Joginder Kumar vs. State of U.P. (supra) said, the guidelines are merely the
incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made
because it is lawful for the police officer to do so. An existence of the power to arrest is one thing.
The justification for the exercise of it is quite another. The police officer must be able to justify the
arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause
incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine
manner on a mere allegation of commission of an offence made against a person. It would be
prudent for a police officer, in the interest of protection of the constitutional rights of a citizen and
perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached
after some investigation as to the genuineness and bona fides of a complaint and a reasonable
belief, both as to the person's complicity and even so as to the need to effect arrest. Denying a
person of his liberty is a serious matter. The recommendations of the Police Commission merely
reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A
person is not liable to arrest merely on the suspicion of complicity in an offence. There must be
some reasonable justification in the opinion of the officer effecting the arrest that such arrest is
necessary and justified.

18. Looking to the cases cited above, and taking reference of related legal provision as well
facts and circumstances of the case, it is seen, that the Supreme Court has said that the
constitutional Courts can grant compensation. Reliance to be placed on the judgment of the case
Rudul Shah vs. State of Bihar reported in (1983) 4 SCC 141, paragraphs 1 and 11, reproduced
below.

" CHANDRACHUD, C.J.- This Writ Petition discloses a sordid and disturbing state of
affairs. Though the petitioner was acquitted by the Court of Session, Muzaffarpur, Bihar, on June
3. 1968 he was released from the jail on October 16. 1982, that is to say, more than 14 years after
he was acquitted. By this habeas corpus petition, the petitioner asks for his release on the ground
that his detention in the jail is unlawful. He has also asked for certain ancillary reliefs like
rehabilitation, reimbursement of expenses which he may incur for medical treatment and
compensation for the illegal incarceration.

11. Taking into consideration the great harm done to the petitioner by the Government of
Bihar, we are of the opinion that, as an interim measure, the State must pay to the petitioner a
further sum of Rs. 30,000 (Rupees thirty- thousand) in addition to the sum of Rs. 5,000 (Rupees five
thousand) already paid by it. The amount shall be paid within two weeks from today. The
Government of Bihar agrees to make the payment though, we must clarify, our order is not based
on their consent."

19. In view of the discussion made hereinabove and having taken the references of the case
laws and the legal provisions aforementioned, this court is of the considered view, that the
impugned Order dated 01.07.2025, Cognizance Order dated 17.11.2006, and all the consequential
820 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings as against the applicant in Criminal Case No. 312/2004 (State of U.P. versus Om
Prakash) and the proceedings against the applicant in S.T No. 300 of 2025, relating to case crime
no. 0041/2024 (State of U.P. versus Mohd. Azeem Idrishi) is liable to be set aside and the instant
applications deserves to be allowed.

20. Accordingly, the impugned orders mentioned above are set aside and the applications
stand allowed.

21. So far as the unlawful arrest of the applicants by the police is concerned, Police
Commissioner, Lucknow and Superintendent of Police, Sitapur are directed to take appropriate and
lawful action for such negligent act of the erring Police Officer/Officials and submit a compliance
report before this Court within two months from today.

22. As regards the nature of harm suffered by the applicants, the applicants are at liberty to
seek appropriate relief by way of invoking the writ jurisdiction under Article 226 of the
Constitution of India, in the light of the legal aspects discussed above.

23. Let a copy of this order be send to the Police Commissioner, Lucknow and Superintendent
of Police, Sitapur through Registrar (Compliance) of this Court.
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(2026) 2 ILRA 820
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.02.2026

BEFORE

THE HON'BLE TEJ PRATAP TIWARI, J.

Application U/S 482. No. 9472 of 2025

Nitesh Rastogi ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

ISSUE FOR CONSIDERATION
Whether the Chief Judicial Magistrate (CJM), has jurisdiction to transfer a criminal case from one Magistrate to
another under the BNSS/CrPC.
Whether the impugned transfer order dated 10.10.2025 is sustainable in law.

HEADNOTES
Criminal Law - Code of Criminal Procedure, 1973 - Section 15, 192, 194, 407, 408, 409, 410, 482
- Bharatiya Nagarik Suraksha Sanhita, 2023 - Sections 13, 13(2), 212, 447, 448, 450, 528 -
Indian Penal Code - Sections 170, 406, 411, 419, 420, 467, 468, 471, 506 : - Application u/s 482
CrPC - against the impugned transfer order, passed by the Chief Judicial Magistrate, whereby trial of Criminal
Case arising from FIR for offences under Sections 406, 419, 420, 506, 170, 467, 468, 471, 411 IPC, involving
recovery of 5.743 kg gold jewellery and forged IPS ID card, was transferred from Judicial Magistrate to
Additional Chief Judicial Magistrate - FIR - Recovery - Charge sheet - cognizance taken - trial initiated -
Applicant pleaded that CJM has no jurisdiction to transfer cases, power lies only with Sessions Judge, and