Case Note & Summary
The petitioner, an accused in a non-cognizable information report (NCR), filed a criminal writ petition before the Bombay High Court challenging the legality of his arrest and remand. The dispute arose after the Taloja Police Station registered an NCR on 1 July 2025 under Section 174 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) for offences under Sections 115(2) and 352 of the Bharatiya Nyaya Sanhita, 2023 (BNS), based on a complaint by respondent No.2 regarding an incident of abuse and beating. Subsequently, on 19 July 2025, the same police station registered FIR No.257 of 2025 at 21:16 hours for cognizable offences under Sections 118(2), 351(2), 324(4), and 3(5) of the BNS, on the same set of facts. The petitioner was arrested on 21 July 2025 and was granted police custody remand by the Judicial Magistrate First Class, Panvel, till 24 July 2025. The petitioner contended that the registration of the FIR after the NCR without obtaining the Magistrate's order under Section 174(2) BNSS was illegal and violative of Articles 21 and 22 of the Constitution. He prayed for a writ of habeas corpus, quashing of the remand order dated 21 July 2025, and immediate release. The petitioner relied on the decision of the Bombay High Court in Asif Khan Pathan v. State through PP and others, 2023 SCC OnLine Bom 2217, which held that Section 155(2) of the Code of Criminal Procedure, 1973 (analogous to Section 174(2) BNSS) is mandatory and that no police officer shall investigate a non-cognizable case without the order of a Magistrate. The court heard the parties, added the original complainant as respondent No.2, and commenced dictation of the order at 5:30 p.m. on 24 July 2025. The provided text does not contain the final operative decision of the court.
Headnote
A) Criminal Procedure - Investigation of Non-Cognizable Case - Mandatory Magistrate's Order - Bharatiya Nagarik Suraksha Sanhita, 2023, Section 174(2) - The petitioner challenged registration of FIR No.257/2025 on the same facts as earlier NCR No.1171/2025 without Magistrate's permission under Section 174(2) BNSS, and sought quashing of remand order and release. The court considered the mandatory nature of Section 174(2) and the precedent in Asif Khan Pathan v. State through PP and others, 2023 SCC OnLine Bom 2217, which held that no police officer shall investigate a non-cognizable case without Magistrate's order, and that subsequent information disclosing cognizable offence requires permission under analogous Section 155(2) CrPC. Held that the safeguard prevents registration of FIR by ignoring NC complaints and requires Magistrate's order before investigation (Paras 6-8).
Issue of Consideration
Whether registration of FIR No.257 of 2025 on the same facts as earlier NCR No.1171 of 2025 without order of Magistrate under Section 174(2) of BNSS rendered the arrest and remand of the petitioner illegal.
Law Points
- No police officer shall investigate a non-cognizable case without order of Magistrate
- Section 174(2) BNSS mandatory
- subsequent FIR on same facts requires Magistrate's permission
- registration of FIR ignoring NC complaint impermissible
- writ of habeas corpus available for illegal arrest
- Articles 21 and 22 protected
Case Details
2025 LawText (BOM) (07) 87
Criminal Writ Petition No. 4055 of 2025
Ravindra V. Ghuge, Gautam A. Ankhade
Saurabh Bhutala, Harshad Sathe, S.V. Gavand, Mayur Mohite, Jayesh Bhosale, Ganesh Shelar
The State of Maharashtra (Through Taloja Police Station) and Ajaykumar Ramvilas Sharma (Original Complainant, added as Respondent No.2)
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Nature of Litigation
Criminal writ petition under Article 226 of the Constitution of India seeking a writ of habeas corpus and quashing of remand order.
Remedy Sought
Petitioner sought declaration that his arrest and detention dated 21.07.2025 were illegal, quashing of remand order dated 21.07.2025 passed by JMFC Panvel, and immediate release from custody.
Filing Reason
Petitioner alleged that after registration of a non-cognizable information report (NCR) on 01.07.2025, the police registered a first information report (FIR) on 19.07.2025 for cognizable offences on the same facts without obtaining Magistrate's order as required under Section 174(2) of BNSS, leading to his illegal arrest.
Previous Decisions
NCR No.1171 of 2025 registered on 01.07.2025 for offences under Sections 115(2) and 352 BNS; subsequently FIR No.257 of 2025 registered on 19.07.2025 for offences under Sections 118(2), 351(2), 324(4), 3(5) BNS; petitioner arrested on 21.07.2025 and remanded to police custody till 24.07.2025 by JMFC Panvel.
Issues
Whether the registration of FIR No.257 of 2025, based on the same incident as NCR No.1171 of 2025, without an order from the Magistrate under Section 174(2) of BNSS, was legal?
Whether the arrest and subsequent remand of the petitioner were illegal and in violation of Articles 21 and 22 of the Constitution and Section 174(2) BNSS?
Submissions/Arguments
Petitioner argued that registration of FIR on same facts after NCR without Magistrate's order under Section 174(2) BNSS is illegal and violates Articles 21 and 22, relying on Asif Khan Pathan v. State through PP and others, 2023 SCC OnLine Bom 2217.
Ratio Decidendi
As per the precedent relied upon, Section 174(2) BNSS is mandatory and no police officer shall investigate a non-cognizable case without Magistrate's order; subsequent FIR on same facts requires such permission.
Judgment Excerpts
The Petitioner was an Accused in a Non-cognizable Information Report (for short 'NCR'), which was registered U/s. 174 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
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.
Procedural History
On 1 July 2025, NCR No.1171 of 2025 was registered under Section 174 BNSS for offences under Sections 115(2) and 352 BNS based on complaint of respondent No.2. On 19 July 2025 at 21:16 hours, Taloja Police Station registered FIR No.257 of 2025 for offences under Sections 118(2), 351(2), 324(4), 3(5) BNS. Petitioner was arrested on 21 July 2025 and produced before JMFC Panvel, which granted police custody remand till 24 July 2025. Petitioner filed Criminal Writ Petition No.4055 of 2025 seeking habeas corpus and quashing of remand order. On 24 July 2025, the High Court heard the matter, added original complainant as respondent No.2, and commenced dictation of order.
Acts & Sections
- Bharatiya Nagarik Suraksha Sanhita, 2023: 174, 174(2)
- Bharatiya Nyaya Sanhita, 2023: 115(2), 118(2), 351(2), 352, 324(4), 3(5)
- Constitution of India: Article 21, Article 22
- Code of Criminal Procedure, 1973: 155(2)
