The Bombay High Court has ordered the immediate release of a man arrested in a cognizable offence arising from the same incident that had earlier resulted only in a non-cognizable report (NCR). The Court held the arrest unlawful as the police had failed to seek the prior permission of a Magistrate, as required under Section 174(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
The Petitioner was initially named in a non-cognizable complaint registered on July 1, 2025, for a scuffle involving a cable customer. However, after an additional statement was tendered on July 3, the police registered an FIR on July 19, 2025, invoking serious provisions under the Bharatiya Nyaya Sanhita, including Sections 118(2), 115(2), 352, 351(2), 324(4), and 3(5), and arrested him without obtaining a Magistrate’s sanction.
A Division Bench of Justices Ravindra V. Ghuge and Gautam A. Ankhad held that the subsequent registration of the FIR, without compliance with Section 174(2) BNSS, was illegal. Citing prior precedents from Tulsidas Gopal Naik and Asif Khan Pathan, 2022 SCC OnLine Bom 6691, the Court reiterated that once an incident is treated as non-cognizable, police cannot upgrade it into a cognizable case without judicial oversight.
The Court allowed the writ of habeas corpus, declared the arrest unconstitutional and violative of Article 21 of the Constitution, and directed that the petitioner be released immediately. It also held that any custody order passed by the Magistrate in the matter had no legal effect in view of the illegality in the arrest.
Appearances:
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.