102.Cri.WP.778.2026 1/5 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL WRIT PETITION NO. 778 OF 2026 Ganesh S/o. Madhkarrao Kakde Vs. State of Maharashtra thr. PSO PS Gittikhadan, Nagpur ______________________________________________________________________________ Office Notes, Office Memoranda of Coram, Appearances, Court's orders of directions Court's or Judge's order and Registrar's orders. Mr. A.N. Rangari, Advocate for the Petitioner. Ms. H.N. Jaipurkar, APP for the Respondent/State. ------------------------------- CORAM : URMILA JOSHI-PHALKE AND R AJ D. WAKODE , JJ. DATE : 05.10.2026 Heard Mr. A.N. Rangari, learned counsel for the petitioner. 2. The petitioner has approached this Court seeking quashing and setting aside of the notice dated 18th September, 2026 issued by the Police Sub-Inspector, Police Station, Gittikhadan, Nagpur. The contention is that the aforesaid notice has been issued by the respondent in clear violation of the statutory provisions of Section 174(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). 3. Learned counsel for the petitioner submits that the offences alleged against the petitioner are non-cognizable. Section 174 of the BNSS provides for the procedure to be followed by the police in cases where non-cognizable offences are alleged. Sub-section (2) of Section 174 of the BNSS clearly prohibits a police officer from investigating a non-cognizable case without an order of a Magistrate having the power to try such case or commit such case for trial. 2026:BHC-NAG:13321-DB 102.Cri.WP.778.2026 2/5 4. Learned counsel for the petitioner also relies upon the judgment of this Court in the case of Nitin Shivdas Satpute Vs. State of Maharashtra, through the Police Station Officer and Another, [2023 SCC OnLine Bom 2771], wherein the learned Single Judge, while dealing with a similar challenge, has held as under: “17. Before I part with the Judgment, I deem it appropriate to comment upon the scope of Section 155 of the Code, which reads as under: “155. Information as to non-cognizable cases and investigation of such cases - (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a noncognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable” 18. Sub-section (1) of Section 155 provides that when information is given to the officer in charge of a police station of commission of noncognizable offence, he shall enter the substance of the information in a book in the form prescribed by the State Government and shall refer the informant to the Magistrate. 102.Cri.WP.778.2026 3/5 19. Sub-section (2) of Section 155 provides that no Police Officer shall investigate non-cognizable case without the order of a jurisdictional Magistrate. 20. The experience shows that the Investigating Officer would seldom approach the jurisdictional Magistrate and seek permission to investigate a non-cognizable case. In fact, I haven’t come across a case where the investigating officer has approached the Magistrate to seek such permission. The usual practice is to leave the things to the informant to take the case further, if he so desires. 21. In my view, this mindset should change. In appropriate cases, the Investigating Officer should approach the jurisdictional Magistrate and seek permission to investigate the offence. The question may come in the mind of the investigating officer as to what parameters should be applied to determine an appropriate case. In my view, the appropriate case would be the one, in which the non-cognizable offence has been committed, not in the spur of moment but otherwise. In other words, the non-cognizable offence, which occurred in the spur of moment may be a case where the investigating agency need not approach the jurisdictional Magistrate to seek permission to investigate the crime and will be justified in leaving the things to be carried forward by of the informant, who may then file application under sub- section (2) of Section 155 of the Code with the jurisdictional Magistrate and seek direction against the investigating agency to investigate the offence. The informant/complainant may also file complaint under Section 200 of the Code in this regard. Thus, there are two options available to the informant/complainant, one is to submit application under sub-section (2) of Section 155 of the Code seeking direction to investigate the offence; and the other is to file complaint under Section 190/200 of the Code.” 5. In view of the aforesaid facts, we had called upon the learned APP appearing for the respondent-sole to seek instructions as to whether the respondent had obtained any such order from the jurisdictional Magistrate before conducting 102.Cri.WP.778.2026 4/5 an inquiry into the non-cognizable offence alleged against the petitioner. Learned APP, upon instructions from the Investigating Officer, submits that no order of the jurisdictional Magistrate has been obtained in the present case. 6. In view of the above, the inquiry conducted by the respondent-sole in pursuance of the non-cognizable offence alleged against the petitioner is clearly in violation not only of the statutory provision referred above but also of the judgment referred to supra. Paragraph 24 of the aforesaid judgment reads thus: “24. Considering the ambiguous status, I deem it necessary to issue directions to the Director General of Police, State of Maharashtra, Mumbai to issue Circular/Notification stating therein that in appropriate cases (which should be made identifiable), the investigating agency should approach the jurisdictional Magistrate under sub-section (2) of Section 155 of the Code, seeking permission to investigate the non- cognizable offence. The investigating officer should be mindful of the fact that even the noncognizable offences are punishable, and therefore, in appropriate cases, he is duty- bound to investigate even such offences and ensure that the investigation reaches logical end.” 7. The aforesaid paragraph clearly provides that the Director General of Police, State of Maharashtra, Mumbai, should issue clear directions, in the form of a Circular/Notification, stating therein that, in appropriate cases, the investigating agency should approach the jurisdictional Magistrate under sub-section (2) of Section 155 of the old Code [corresponding to Section 174(2) of the BNSS] seeking permission to investigate the non-cognizable offence. 102.Cri.WP.778.2026 5/5 8. The action taken by the respondent-sole in the present case is also in violation of such directions, if issued by the Director General of Police. 9. In view of the above, we allow the present writ petition and quash and set aside the notice dated 18th September, 2026 issued by the respondent-sole. 10. However, the respondent-sole shall be at liberty to approach the jurisdictional Magistrate seeking appropriate permission under Section 174(2) of the BNSS, if so advised. 11. The writ petition is accordingly disposed of. (RAJ D. WAKODE, J.) (URMILA JOSHI-PHALKE, J.) Vijaykumar Signed by: Mr. Vijay Kumar Designation: PA To Honourable Judge Date: 07/10/2026 10:22:12