2025:BHC-AS:31112-DB

903-WP-4055-2025-(CR).odt

SUNNY
Digitally signed
by SUNNY
ANKUSHRAO
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ANKUSHRAO THOTE
THOTE Date:
2025.07.25
11:36:31 +0530
CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO. 4055 OF 2025

Jitendra Namdev Daravkar

Age. 38 yrs, Occ. Cable and Internet
provider, R/at. Village Ghot, At. Post
Koynavale, Tal. Panvel, Dist. Raigad,
At presently lodged in Taloja Police Station
Through his real brother & next friend
Mr. Pradip Namdev Daravkar,
Age : 45 years, Occ.: Business,
R/at. Village Ghot, At. Post Koynavale,
Tal. Panvel, Dist. Raigad, ...Petitioner
Versus
1 The State of Maharashtra
(Through Taloja Police Station)

2. Ajaykumar Ramvilas Sharma,

Age : 40 yrs. Occu : Service,
R/o. A-503, Smit CNS, Plot No.9,
Sec-35, Kharghar, Tal. Panvel,
Dist. Raigad ...Respondents

Mr. Saurabh Bhutala i/by Mr. Harshad Sathe, Advocate for the
Petitioner.
Mr. S.V. Gavand, APP for Respondent No.1/State.
Mr. Mayur Mohite a/w Mr. Jayesh Bhosale, Mr. Ganesh Shelar,
Advocate for Respondent No.2.
Mr. Sunil S. Gharat, PSI, Taloja Police Station, present.

CORAM : RAVINDRA V. GHUGE

&
GAUTAM A. ANKHAD, JJ.

DATE : 24th JULY, 2025

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ORAL JUDGMENT (Per : RAVINDRA V. GHUGE , J)

1. When this matter was called out, the original

Complainant approached the Court, contending that he has not been

impleaded as a Respondent. He desires to contest this Petition. The

learned Advocate for the Petitioner submits on instructions that he is

willing to add him. Leave to add the Original Complainant as

Respondent No.2. Addition be carried out forthwith. The learned

Advocate, Mr. Mohite appears on behalf of the added Respondent

No.2.

2. Rule. Rule made returnable forthwith and heard finally,

by the consent of the parties.

3. The Petitioner has put forth Prayer Clauses (A), (B) and

(C), as under :-

A. That in relation to FIR No.257 of 2025 dated

19.07.2025 registered with Taloja Police Station for
offences u/s. 118(2), 115(2), 352, 351(2), 324(4) and
3(5) of the Bharatiya Nyaya Sanhita, 2023, this
Hon’ble Court be pleased to issue a writ of Habeas
Corpus or any other appropriate writ, order or
direction declaring the arrest and detention of the
Petitioner dated 21.07.2025 as illegal,
unconstitutional, and violative of Articles 21 and 22 of
the Constitution, and of Section 174(2) of The
Bharatiya Nagarik Suraksha Sanhita, 2023,

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B. That this Hon’ble Court be pleased to quash and

set aside remand order dated 21/07/2025 passed by
the Ld. JMFC, Panvel, in FIR No.257 of 2025 dated
19.07.2025 registered with Taloja Police Station for
offences u/s. 118(2), 115(2), 352, 351(2), 324(4) and
3(5) of The Bharatiya Nyaya Sanhita, 2023,
remanding the Petitioner to Police custody till
24/07/2025, being violative of Section 174(2) of The
Bharatiya Nagarik Suraksha Sanhita, 2023,

C. This Hon’ble Court be pleased to direct the

immediate release of the Petitioner in FIR No.257 of
2025 dated 19.07.2025 registered with Taloja Police
Station for offences u/s. 118(2), 115(2), 352, 351(2),
324(4) and 3(5) of The Bharatiya Nyaya Sanhita,
2023,”

4. The learned Advocate for the Petitioner submits on

instructions that the Petitioner is not pressing Prayer Clause (D) and

the same may be treated as having been deleted. Ordered

accordingly.

5. Having considered the strenuous submissions of the

learned Advocates for the respective sides, we have commenced the

dictation of this order at 5:30 p.m.

6. The Petitioner was an Accused in a Non-cognizable

Information Report (for short ‘NCR’), which was registered U/s.

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174 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short

‘BNSS’). The complaint lodged by Respondent No.2, a cable

operator, was a narration of an incident that occurred on the terrace

of his customer. The Petitioner is alleged to have abused the

Complainant and used his hands to beat him. Based on such

complaint, Sections 115(2) and 352 of the Bharatiya Nyaya Sanhita,

2023 (for short ‘BNS’), were invoked. An NCR number 1171 of

2025 was registered on 1st July, 2025. A copy of the NCR is

tendered by the learned APP, which is taken on record and marked

as ‘X-1’, for identification.

7. The grievance of the Petitioner is that on 19th July,

2025, the Taloja Police Station, which had earlier registered the

NCR, registered a First Information Report (in short ‘FIR’) No.257

of 2025 at 21:16 hours. Sections 118(2), 351(2), 324(4) and 3(5) of

the BNS, were invoked and a cognizable offence was registered.

Based on the same, the Petitioner has been arrested. He was granted

three days Police Custody Remand (in short ‘PCR’), which is to end

today. The Petitioner is presented before the Magistrate for either a

PCR or a Magisterial Custody Remand (in short ‘MCR’).

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8. The Petitioner relies upon a reported Judgment of this

Court delivered at Goa in Asif Khan Pathan V/s. State through PP

and Others, 2023 SCC OnLine Bom 2217. In the said case, an NCR

was earlier recorded and subsequently, a cognizable offence was

registered in the form of an FIR. The Division Bench of this Court

at Goa has concluded in Paragraph Nos.32 to 48, as under :-

“32. This safeguard is provided in the Code itself so

that the Informant subsequently and after changing
his mind or on some ill advice, may try to lodge
another complaint on the same set of facts, on the
same event or Incident but by incorporating material
which would permit the Police to register FIR when a
non-cognizable case is already registered by it. The
wordings of Section 155(2) as quoted earlier are
mandatory. It specifically provides that no police
officer shall investigate a non-cognizable case without
the order of a Magistrate having the power to try such
a case or commit the case for trial.

33. The intention of the Legislature clearly goes to

show that when a non-cognizable case is registered
with regard to an incident, the Police are prevented
from investigating the same incident or the substance
of Information even if, subsequently, additional
information is placed before it either by the informant
or by the victim, without the leave of the Magistrate. It
is a safeguard provided under the law so as to protect
the complaints/information twisted or added after the
passage of some time so as to register an FIR by
ignoring NC complaints.

34. ……….
…………...
For example, if the information is received about
assault and it is registered as a non-cognizable case

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under Section 323 Cr. P.C. at the initial stage but

subsequently it comes to the knowledge of the Police
that due to such assault, in fact, a grievous injury is
caused, the officer-in-charge of the Police Station is
required to approach the concerned 155(2) with the
additional Magistrate under Section
material/information praying that he be permitted to
investigate the non-cognizable case. Once such
permission is granted, the Investigating officer is even
free to apply the correct provision of the IPC or any
other penal provision which comes within the ambit of
a cognizable case. This is only an example which is
disclosed to fulfill the condition imposed under
Section 155(2) of Cr. P.C.

35. Mr. Faldessai placed reliance in the case of

Mansingh (supra), to submit that the Police are
having powers to register FIR under Section 154 of
Cr. P.C. once information of cognizable offence is
disclosed, even if NC is registered on the earlier
occasion.

36. In Mansingh (supra), petition under Section 482

of Cr. P.C. was filed for quashing of FIR mainly on the
ground that such FIR was lodged on false and
fabricated material and only to take revenge. It is no
doubt true that the facts of the case discloses that the
informant initially went to the Police Station and
ventilated her grievance regarding the alleged
incident. Such information was registered as non-
cognizable case under Sections 323, 504 and 506 of
IPC and the Informant was told to approach the
concerned Magistrate. A few days after the alleged
Incident and registration of NC, the informant, after
consulting her husband and others, again visited the
Police Station and claimed that said Mansingh and
others abused her and her husband on caste,
assaulted her and her daughter-in-law with kicks, fist
blows and with the handle of axe. One of the accused
caught hold of the hand of daughter-in-law and tried
to molest her. The assailants also gave threats. The

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Police registered offence under various sections of

IPC and also under Section 3(1)(xi) of the SCST
(Prevention of Atrocities) Act. While arguing the said
matter, which is found recorded in para 5, it is clear
that the entire argument on behalf of Mansingh was
only on the contention that entire case is false and
fabricated and no such incident occurred on that day.
No ground was raised with regard to Section 155 (2)
of Cr. P.C. and the non-cognizable case registered
earlier. Thus, the decision in Mansingh (supra) is
distinguishable and not helpful to the Respondents.

37. In the present petition, the Petitioner has

specifically claimed in para 18 that FIR No. 41/2023
is based on the same facts for which the Petitioner
was earlier arrested under Section 151 and the NC
complaint was also registered as regards the same.
Again, in para 22 of the petition, the Petitioner has
referred to the observations of the Trial Court while
granting anticipatory bail to the Petitioner.

38. Grounds No. 2, 3 and 5 in the present petition are

specifically with reference to powers of the Police to
investigate a non-cognizable case without obtaining
permission from the Magistrate under Section 155(2)
of Cr. P.C.

39. In Tulsidas Gopal Naik v. State of Goa, 2022 SCC

OnLine Bom 6691, this Court while dealing with a
similar contention and on considering provisions of
Section 155 of Cr. P.C., observed in paras 25 and 29
which reads thus:-

“25. Perusal of the above provision clearly

goes to show that when the officer in-charge of
a police station considers any complaint as
non-cognizable and enters or cause to be
entered the substance of information in a book
to be kept by such officer in such form as the
State Government may prescribe and refer the
Informant to the Magistrate, he is not entitled

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to investigate into such matter without the

order of a Magistrate.

29. It is not an empty formality but certain

rights accrue in favour of the said party
against whom complaint or allegations are
made. The word "shall" used in Sub-section
(2) of Section 155 of Cr. P.C. clearly shows the
Intention of the Legislature and mandate that
the police officer shall not Investigate a non-
cognizable case without orders of the
Magistrate having power to try such case.
Therefore, once an opinion is formed in
writing and conveyed to the informant that his
case is non-cognizable case, the in-charge of
the police. station is certainly precluded from
carrying out any further investigation in such
non-cognizable case/complaint without the
order of the jurisdictional Magistrate. There is
a specific purpose for which Sub-section (2) of
Section 155 is Introduced. Such purpose
cannot be taken away only by saying that the
officer Incharge did not record substance of
information of non-cognizable case in the
book maintained in the police station."

40. In Tulsidas Gopal Naik (supra), it was contended

that initially the Police registered a non-cognizable
case on receiving the information and directed the
informant to approach the Magistrate, but due to
some pressure on the police officer from higher
authorities, he registered it as a cognizable offence.
The facts in the matter in hand are quite similar. The
wife of Respondent No. 3 went to the Police Station on
the day of incident itself and lodged her complaint,
which is already reproduced In para 26. This
information was considered as non-cognizable case
and the informant was advised to approach the proper
Court of law under Section 155 of Cr. P.C. On the next
date, l.e. on 20.03.2023, Respondent No. 3 filed
another complaint in connection with the same

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Incident and by giving some additional information,

which Police considered as containing ingredients for
registration of cognizable offence.

41. At this stage, it is necessary to note that

Respondent No. 3 went to the Police Station on the
next day even though he very well knew that his wife
lodged the complaint on the previous day and that it
was registered as a non-cognizable case. The question
remains as to whether the wife of Respondent No. 3
failed to disclose all the facts to the Police and/or on
the other side, the Police failed to record all the facts
disclosed by the wife of Respondent No. 3 while
registering NC complaint. On both counts, the law
provides a specific procedure. If the Informant was
not satisfied with the recording of her complaint by
the Police, which is not at all the case put forth in this
matter except claiming orally while arguing the
matter, the said Informant failed to approach the
Superintendent of Police under Section 154(3) of Cr.
P.C. The only inference is that whatever was disclosed
by the wife of Respondent No. 3 on 19.03.2023 and
considered as non-cognizable case was properly
recorded by the Police. The said Informant on
showing dissatisfaction on recording the information
correctly by the Police, ought to have approached the
Superintendent of Police with all the details. No such
procedure was adopted. Thus, it shows that the Police
recorded the information correctly as disclosed by the
informant on 19.03.2023, as non-cognizable case.

42. Secondly, when the Police on the next day i.e. on

20.03.2023, received some additional information
about the same incident which was provided to them
by Respondent No. 3, were very well aware that NC
complaint is registered in connection with the same
incident and thus, was duty-bound to approach the
concerned Magistrate under Section 155(2) of Cr.
P.C. for permission to Investigate. There was no
Impediment on the investigating agency to approach
the concerned Magistrate.

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43. The view taken by this Court in Tulsidas Gopal

Naik (supra) is applicable to the facts and
circumstances of this matter. There is no material to
deviate from such view.

44. The learned Counsel Mr. de Sa claimed that FIR is

lodged on the basis of false and fabricated material
and only to harass the Petitioner. Though, at this
stage, it is not for us to go into the veracity or
otherwise of the allegations in the complaint, we
cannot ignore that firstly, the information given to the
Police by the wife of Respondent No. 3 on 19.03.2023
was not in connection with any cognisable offence.
The Police recorded such information as a non-
cognizable case and advised the Informant to
approach the concerned Magistrate if so desired.
Secondly, Respondent No. 3, who is the husband of the
informant in the NC case, did not file any affidavit of
himself or of his wife stating that the Police did not
record the correct information. Even otherwise, we
are of the view that the option was available with the
wife of Respondent No. 3 to approach the
Superintendent of Police under Section 154(3) of Cr.
P.C., which has not been exercised. Thirdly, the
contents of the NC complaint and the contents of the
FIR lodged by Respondent No. 3 are quite similar and
in the sequence of events, except for a few additions,
which, according to us, appear to be belatedly
introduced only to bring the said material within the
ingredients of cognisable offences.

45. Even though we granted time to Respondent No. 3

to file a reply affidavit, no such affidavit was placed
on record. Thus, it is clear from the contents of the
non-cognizable case and the contents of the FIR that
it relates to the same Incident which occurred on
19.03.2023 at around 11 30 hours. However, by
adding some material to the complaint filed by
Respondent No. 3, the Police Officer/Respondent No.
2 registered it as an FIR without following the

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mandatory provision of Section 155(2) of Cr. P.C. The

mandatory provisions of Section 155(2) cannot be
bypassed in this manner to give the investigating
agencies power to investigate non-cognisable offences
without the permission of the magistrate simply based
upon belated additions to the original non-cognisable
complaint or the complaint which according to the
agencies had only disclosed an non cognisable
offence. That was not the ratio of the decision relied
upon by Mr. Faldessai.

46. The entire incident appears to be the differences

between the flat owners in a society wherein there are
only nine flats. The dispute appears to be in
connection with the parking space, disposal of
garbage, etc. It is unfortunate that the occupants of
only nine flats are unable to reside happily and
without any serious quarrel. Be that as it may, the
contention of the Petitioner needs to be accepted. The
FIR vide Crime No. 41/2023 registered at Old Goa
Police Station is clearly hit by the provisions of
Section 155(2) of Cr. P.C. and needs to be quashed
and set aside.

47. Similarly, we cannot brush aside Mr. de Sa's

contention that the said FIR was lodged only to wreak
revenge on the Petitioner who lodged some
complaints against Respondent No. 3 and his wife and
other flat owners. This does appear to be a case of a
counterblast. Because the initial complaint of the wife
was recorded as an NC based on which the Petitioner
was arrested but released under Section 151 of Cr.
P.C. by Respondent No. 2, the next day, additional
allegations were made with embellishments regarding
the very same incident. The Investigating agencies
should not have registered such FIR and sought to
investigate Into it without leave of the Magistrate
under Section 155(2) of CrPC. Neither the parties nor
the investigating agencies can achieve Indirectly,
what the law prohibits directly. These are matters of
liberty and Article 21 is clear when it provides that no

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person shall be deprived of liberty except otherwise

than by the procedure established by the law.

48. For all the above reasons, the FIR No. 43/2023
dated 20.03.2023 registered at Old Goa Police Station
for the offences punishable under Sections 323,
506(II), 354, 509, 427 of IPC against the Petitioner, is
hereby quashed and set aside. The Rule is made
absolute in above terms. Parties shall bear their own
cost.”

9. It was, thus, concluded that, if on the narration of

additional facts, the Police desires to register an FIR in the backdrop

of a non-cognizable offence having been registered with reference to

the same incident, he is required to approach the Magistrate under

Section 174 of the BNSS (earlier Section 155 of the Cr.P.C.),

seeking an order to investigate. Without such order of the

Magistrate, the officer is not expected to investigate a non-

cognizable case, which is later on converted into an FIR. Under

Section 174(2) of the BNSS, with the clear bar on investigating an

NCR without the order of a Magistrate, Sub-section 3 of Section

174 of the BNSS, permits a Police Officer, after receiving such

order, to exercise the same powers in respect of the investigation as

an officer in charge of a Police Station may exercise in a cognizable

case.

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10. The learned Advocate for the Complainant has

vehemently contended that the Petitioner herein has not prayed for

the quashing of the FIR. So also, he realised that his exact version

was not properly recorded by the Police Officer, when he had

lodged his complaint on 01/07/2025. He, therefore, had given a

statement on 03/07/2025, which was considered on 19/07/2025 and

an FIR was registered. The learned Advocate for the Petitioner

submits that he has invoked the Writ of Habeas Corpus. His arrest is

illegal on account of the illegal registration of the FIR in the light of

Article 22 of the Constitution of India.

11. What has been done by the Police Officer in the present

case is that, an NCR was registered on 1 st July, 2025. No steps were

taken to seek permission of the Magistrate U/s. 174 (1 and 2) of the

BNSS, to investigate into the said complaint. On 3 rd July 2025, the

Complainant tendered an additional statement in the nature of an

Application. The Police Officer recorded the said statement on 19th

July, 2025 and registered the FIR No.257 of 2025, and arrested the

Petitioner, in connection with the same offence.

12. In Tulsidas Gopal Naik (supra) and Asif Khan Pathan

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(Supra), this Court concluded that the Police could not have

investigated into an NCR, without the leave of the Magistrate and,

therefore, should not have registered an FIR, based on the same

incident. In the present case, the Police Officer initially recorded an

NCR and on receiving an additional statement dated 3 rd July, 2025

from the Petitioner, registered an FIR on 19 th July 2025, on the same

grounds and the same incident, albeit with the addition of a non-

metalic optic rod as being the weapon used to purportedly beat the

Complainant. Thus, the Complainant improvised his version about

the same incident, which was subject matter of the NCR and the

Police Officer registered an FIR, which was the basis for arresting

the Petitioner.

13. In view of the above, we conclude on the facts of the

case and in the light of the law laid down in Tulsidas Gopal Naik

(supra) and Asif Khan Pathan (Supra), that the FIR dated 19th July,

2025, could not have been registered. The arrest of the Petitioner is,

therefore, unsustainable and wrongful. This being a fit case, we are

invoking the Writ of Habeas Corpus to conclude that the Petitioner

has been detained without following the due procedure laid down in

law. Consequentially, this Writ Petition is allowed in terms of Prayer

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Clause (A), reproduced above. All consequential actions are

rendered illegal and the Petitioner shall set to freedom.

14. Since the dictation of this order has concluded at 6:00

p.m., the learned APP fairly submits that the Police Authorities

presently in the Court of the learned Magistrate, along with the

Petitioner, will not press for PCR. At this juncture, the learned

Advocate for the Petitioner submits on instructions received via

WhatsApp message that the learned Magistrate has granted an NCR

for 14 days. In view of our judgment, the said order of the learned

Magistrate shall lose it’s efficacy.

15. Rule is made absolute in the above terms.

(GAUTAM A. ANKHAD, J.) (RAVINDRA V. GHUGE, J.)

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