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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
(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.
GAUTAM A. ANKHAD, JJ.
THOTE
ORAL JUDGMENT
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:-
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, SUNNY THOTE 2 of 15
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. SUNNY THOTE 3 of 15 174 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’). SUNNY THOTE 4 of 15
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 SUNNY THOTE 5 of 15 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 noncognizable 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 SUNNY THOTE 6 of 15 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:-
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 noncognizable 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.
SUNNY THOTE 12 of 15
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 1st 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 3rd 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 SUNNY THOTE 13 of 15 (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 3rd July, 2025 from the Petitioner, registered an FIR on 19th July 2025, on the same grounds and the same incident, albeit with the addition of a nonmetalic 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 SUNNY THOTE 14 of 15 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.) SUNNY THOTE 15 of 15