24 July 2025 FIR >> Criminal Law   |   Writ Petition >> Criminal Law  

In a significant ruling of Jitendra Namdev Daravkar v/s The State of Maharashtra (Through Taloja Police Station) & Another, that underscores the procedural safeguards in criminal law, the High Court has declared the arrest and detention of a petitioner illegal, ordering his immediate release. The decision hinges on the principle that police cannot convert a non-cognizable report (NCR) into a First Information Report (FIR) for the same incident without prior judicial approval, even with additional information.

The case came before the Court through a writ petition seeking a writ of Habeas Corpus to challenge the petitioner's arrest and subsequent police custody. The original complainant, a cable operator, was also added as a respondent in the proceedings.

Background of the Case:

The sequence of events began on July 1, 2025, when a non-cognizable information report (NCR No. 1171 of 2025) was registered at Taloja Police Station. This NCR, filed by the complainant, alleged that the petitioner had abused and physically assaulted him on a customer's terrace, invoking Sections 115(2) and 352 of the Bharatiya Nyaya Sanhita, 2023 (BNS).

However, on July 19, 2025, the Taloja Police Station registered a fresh FIR (No. 257 of 2025) concerning the same incident. This FIR invoked more serious cognizable offenses under Sections 118(2), 351(2), 324(4), and 3(5) of the BNS. Based on this new FIR, the petitioner was arrested on July 21, 2025, and subsequently remanded to police custody for three days, ending on the day of the High Court's hearing.

The petitioner's legal team argued that his arrest was illegal and unconstitutional, violating Articles 21 and 22 of the Constitution and Section 174(2) of The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). They sought the quashing of the remand order and the immediate release of the petitioner.

Legal Precedent: The Mandate of Section 174(2) BNSS

The petitioner's argument heavily relied on a Goa Bench judgment of the High Court in Asif Khan Pathan V/s. State through PP and Others (2023 SCC OnLine Bom 2217). This precedent established that if a non-cognizable offense is initially registered, and subsequently, additional information leads to the disclosure of a cognizable offense from the same incident, the police must obtain an order from a Magistrate under Section 174(2) of the BNSS (formerly Section 155(2) of the Cr.P.C.) before investigating or registering an FIR.

The Asif Khan Pathan judgment, citing Tulsidas Gopal Naik v. State of Goa (2022 SCC OnLine Bom 6691), clearly emphasized the mandatory nature of this provision. It highlighted that this safeguard prevents informants from manipulating complaints by belatedly adding material to convert an NCR into an FIR, and it restricts police from investigating non-cognizable cases without judicial oversight.

In the present case, the complainant had tendered an "additional statement" on July 3, 2025, which the police then used on July 19, 2025, to register the FIR. This new version included the alleged use of a "non-metallic optic rod" as a weapon, improvising on the original NCR's narrative of the same incident.

Court's Finding and Verdict:

The High Court noted that the police had registered the NCR on July 1, 2025, but crucially, failed to seek the required permission from the Magistrate under Section 174 (1 and 2) of the BNSS to investigate the complaint. Instead, they directly registered an FIR based on the complainant's additional statement, leading to the petitioner's arrest.

Following the principles laid down in Tulsidas Gopal Naik and Asif Khan Pathan, the High Court concluded that the FIR dated July 19, 2025, could not have been legally registered without the Magistrate's order. Consequently, the arrest of the petitioner, based on this invalid FIR, was deemed "unsustainable and wrongful."

Invoking its power to issue a Writ of Habeas Corpus, the Court determined that the petitioner had been detained without adherence to due legal procedure. As a result, the writ petition was allowed, and all consequential actions stemming from the illegal FIR were rendered invalid. The Court ordered the immediate release of the petitioner.

The ruling was delivered at 6:00 PM, and the learned Public Prosecutor fairly submitted that the police authorities would not press for police custody remand. Even though the learned Magistrate had granted a 14-day Magisterial Custody Remand (MCR) based on a WhatsApp update received by the petitioner's counsel, the High Court clarified that this MCR order would lose its efficacy in light of its judgment.

The Rule was made absolute, underscoring the judiciary's commitment to upholding the rule of law and protecting individual liberties against procedural irregularities.

BHARATIYA NYAYA SANHITA, 2023  

BHARATIYA NAGARIK SURAKSHA SANHITA, 2023