Bombay High Court
Sitaram Ramchandra Kale And Ors vs The State Of Maharashtra And Anr on 9 July, 2026
34-APL-532-2021 (CR).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.532 OF 2021
1] Sitaram Ramchandra Kale ]
2] Jayant Raghunath Kale ]
3] Ankush Dnyandev Kale ]
4] Rajendra Baban Kale ]
5] Ranjit Ankush Kale ]
6] Amol Sitaram Kale ]
7] Narayan Dnyandev Kale ]
8] Rekha Vishnu Kale ]
9] Seema Rajendra Kale ]
10] Vishnu Dnyandev Kale ] Applicants
versus
1. The State of Maharashtra ]
2. Mr. Chandrakant Pandurang Kale ] Respondents
.....
Mr. Rahul Anand Hande a/w Mr. Machindra Sawant, for the Applicants.
Mr. Anand Shalgaonkar, A.P.P, for Respondent No.1 - State.
Mr. Anant Wadgaonkar a/w Mr. Ashish A. Chavan i/b Mr. Abhijit B.
Kadam, for Respondent No.2.
Digitally
.....
signed by
SHAILAJA
SHAILAJA SHRIKANT
SHRIKANT HALKUDE
HALKUDE Date:
2026.07.16 Shailaja
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CORAM: SANDESH D. PATIL, J.
DATED: 9th JULY 2026.
ORAL JUDGMENT:
1. Rule. By consent of learned counsel for the parties, the
application is taken up for final disposal. Learned A.P.P waives service
for respondent No.1 – State and learned counsel for respondent No.2
waives service for respondent No.2.
2. Heard learned counsel for the parties.
3. The applicants have preferred this application for quashing and
setting aside of R.C.C. No.126 of 2021 pending before the Joint Civil
Judge, Junior Division and Judicial Magistrate First Class at Vaduj,
District Satara arising out of C.R. No.0339 of 2020 registered with
Vaduj Police Station, District Satara on 24th October, 2020 at the
instance of respondent No.2 for the offences punishable under sections
452, 427,323, 143, 147, 148 and 149 of the Indian Penal Code, 1860
(for short “I.P.C“).
4. It is the contention of the applicants that the incident in question
took place on 1st October, 2020 at about 11.00 a.m. The allegations are
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that the accused persons had assaulted a person namely Sarvendra
Kumar at about 11.30 a.m. when he was on the farm. The said
Sarvendra Kumar who was the employee of respondent No.2 – original
complainant, therefore, lodged NCR bearing No.0681 of 2020 on 1 st
October, 2020 under sections 323, 427, 504, 506 r/w 34 of the I.P.C.
Later on, respondent No.2-original complainant lodged First
Information Report (for short “F.I.R”) on 24th October, 2020 for the
offence which took place on the same day i.e on 1 st October, 2020 for
the offences punishable under sections 452, 427, 323, 143, 147, 148
and 149 of the I.P.C. The said F.I.R was registered as C.R. No.0339 of
2020.
5. A short question which arises whether an F.I.R for the the same
set of allegations is maintainable, once NCR is registered and whether
without permission from the Magistrate under section 155 (2) of the Cr.
P.C., such F.I.R could have been registered.
6. Learned counsel drew my attention to the copy of Non-Cognizable
Report (for short “NCR”) which finds place on page 50 of the
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application. It is noticed that the said NCR was lodged by one Mr.
Sarvendra Kumar on 1st October, 2020 for the offence which had taken
place on the same day at about 11.00 a.m or thereabout. The said NCR
was lodged at 4.15 p.m at Vaduj Police Station. NCR was numbered as
0681 of 2020. It was the contention of the said Sarvendra Kumar that
the accused had entered upon the property in question, which was
under his cultivation, and had committed the offences alleged in the
said NCR. He submitted that thereafter, after a period of more than
twenty three days, the owner of the property i.e respondent No.2
lodged F.I.R under the provisions mentioned in F.I.R No.0339 of 2020 in
respect of the incident which occurred on the same day i.e on 1 st
October, 2021 at 11.00 a.m. He submits that thus once NCR is lodged,
there could not have been an F.I.R registered for the same offence. He
drew my attention to the provisions of section 155 (2) of the Code of
Criminal Procedure, 1973 (for short “Cr. P.C”) and stated that such F.I.R
could not have been registered.
7. Learned A.P.P appearing for respondent No.1 – State and learned
counsel appearing for respondent No.2, on the other hand, stated that
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this course can be adopted and they relied on the judgment in case of
Mansingh s/o Dhondibhau Shitole versus The State of Maharashtra and
others1, more particularly on paragraph 8 of the judgment and
submitted that the said F.I.R could have been registered and that there
was no embargo. They also relied on the judgment in case of T.T.
Antony versus State of Kerala and others 2 and submitted that there is no
embargo for registration of fresh F.I.R. They submitted that second F.I.R
could have been definitely registered for the same offence. They
submitted that application is maintainable and that going by Mansingh
s/o Dhondibhau Shitole’s judgment (supra), same could have been
done. He also relied on the judgment in State of Rajasthan vs. Surendra
Singh Rathore3.
8. Learned A.P.P strenuously argued that judgment in case of State of
Rajasthan (supra) is very important. He relied upon paragraph 9 of the
said judgment, which is reproduced below;
“9. From the above conspectus of judgments, inter alia, the following
principles emerge regarding the permissibility of the registration of a
second FIR:
1 Criminal Application No.175 of 2017
2 (2001) 6 SCC 181
3 2025 INSC 248Shailaja
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34-APL-532-2021 (CR).doc9.1 When the second FIR is counter-complaint or presents a rival
version of a set of facts, in reference to which an earlier FIR already
stands registered.
9.2 When the ambit of the two FIRs is different even though they may
arise from the same set of circumstances.
9.3 When investigation and/or other avenues reveal the earlier FIR or
set of facts to be part of a larger conspiracy.9.4 When investigation and/or persons related to the incident bring to
the light hitherto unknown facts or circumstances.9.5 Where the incident is separate; offences are similar or different.
9. Admittedly, the present case does not involve a counter-complaint
or a rival version of the same occurrence. The second F.I.R. merely
narrates the very same incident, which is stated by two different
informants in respect of an occurrence that took place on the same date
and at the same time. It is also not a case where the scope or subject
matter of the two F.I.Rs. is distinct or relates to different transactions.
Furthermore, it cannot be contended that the investigation had brought
to light any new or previously unknown facts or circumstances
warranting the registration of a fresh F.I.R. Such a situation could have
arisen only if permission had been sought from the learned Magistrate
to conduct further investigation and, pursuant thereto, additional facts
or different facets of the same incident had emerged. In such
circumstances, the legal position might have been different. In the
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present case, however, no such permission was obtained from the
learned Magistrate before registering the impugned F.I.R. Consequently,
the reliance placed by the respondents on the judgment in the case of
State of Rajasthan (supra) would not come to the rescue of the
respondents.
10. In this case, admittedly NCR was registered against the accused
persons/applicants by one Mr. Sarvendra Kumar on 1 st October, 2020
for the offences punishable under sections 323, 427, 504, 506 r/w 34 of
the I.P.C on 1st October, 2020 with Vaduj Police Station in respect of the
same incident which took place at 11.00 a.m on the same day. The said
NCR was registered at 4.15 p.m. Admittedly, provisions of section 155
(2) of the Cr. P.C were not followed and on 24 th October, 2020 after a
period of almost twenty three days, respondent No.2, who appears to be
either the employer or the landlord of Mr. Sarvendra Kumar had lodged
F.I.R on 24th October, 2020 bearing No.0339 of 2020 under sections
452, 427, 323, 143, 147, 148, 149 of the I.P.C for the incident which
took place on 1st October, 2020 at 11.00 a.m. It appears that the
contents of both NCR as well as F.I.R are different, however, time of the
incident is one and the same. It cannot be disputed that offence which
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is allegedly committed by the applicants is of the same date and of the
same time. In these premises, it would be profitable to rely upon the
judgment of Division Bench of this Court in case of Jitendra Namdev
Daravkar Vs. The State of Maharashtra and another 4. This court had in
paragraph 8 of the said judgment relied on the judgment of this court in
Asif Khan Pathan versus State of Maharashtra, through P.P and others5.
The Division Bench while deciding Criminal Writ Petition No.4055 of
2025 had extracted the contents of the said judgment of Asif Khan
Pathan , more particularly in paragraph 8, which read thus;
“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.
4 Criminal Writ Petition No.4055 of 2025
5 2023 SCC OnLine Bom 2217Shailaja
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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 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 ofShailaja
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34-APL-532-2021 (CR).docNC, 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 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:-
“25. Perusal of the above provision clearly goes to show
that when the officer in-charge of a police station
considers any complaint as non-cognizable and enters or
cause to be entered the substance of information in a
book to be kept by such officer in such form as the State
Government may prescribe and refer the Informant toShailaja
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34-APL-532-2021 (CR).docthe Magistrate, he is not entitled to investigate into such
matter without the order of a Magistrate.
29. It is not an empty formality but certain rights accrue
in favour of the said party against whom complaint or
allegations are made. The word “shall” used in Sub-
section (2) of Section 155 of Cr. P.C. clearly shows the
Intention of the Legislature and mandate that the police
officer shall not Investigate a noncognizable case without
orders of the Magistrate having power to try such case.
Therefore, once an opinion is formed in writing and
conveyed to the informant that his case is non-cognizable
case, the in-charge of the police. station is certainly
precluded from carrying out any further investigation in
such non-cognizable case/complaint without the order of
the jurisdictional Magistrate. There is a specific purpose
for which Sub-section (2) of Section 155 is Introduced.
Such purpose cannot be taken away only by saying that
the officer Incharge did not record substance of
information of non-cognizable case in the book
maintained in the police station.”
40. In Tulsidas Gopal Naik (supra), it was contended that initially
the Police registered a non-cognizable case on receiving the
information and directed the informant to approach the Magistrate,
but due to some pressure on the police officer from higher
authorities, he registered it as a cognizable offence. The facts in the
matter in hand are quite similar. The wife of Respondent No. 3 went
to the Police Station on the day of incident itself and lodged her
complaint, which is already reproduced In para 26. This
information was considered as non-cognizable case and the
informant was advised to approach the proper Court of law under
Section 155 of Cr. P.C. On the next date, l.e. on 20.03.2023,
Respondent No. 3 filed another complaint in connection with the
same Incident and by giving some additional information, which
Police considered as containing ingredients for registration of
cognizable offence.
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41. At this stage, it is necessary to note that Respondent No. 3 went
to the Police Station on the next day even though he very well knew
that his wife lodged the complaint on the previous day and that it
was registered as a non-cognizable case. The question remains as to
whether the wife of Respondent No. 3 failed to disclose all the facts
to the Police and/or on the other side, the Police failed to record all
the facts disclosed by the wife of Respondent No. 3 while registering
NC complaint. On both counts, the law provides a specific
procedure. If the Informant was not satisfied with the recording of
her complaint by the Police, which is not at all the case put forth in
this matter except claiming orally while arguing the matter, the said
Informant failed to approach the Superintendent of Police under
Section 154(3) of Cr. P.C. The only inference is that whatever was
disclosed by the wife of Respondent No. 3 on 19.03.2023 and
considered as non-cognizable case was properly recorded by the
Police. The said Informant on showing dissatisfaction on recording
the information correctly by the Police, ought to have approached
the Superintendent of Police with all the details. No such procedure
was adopted. Thus, it shows that the Police recorded the
information correctly as disclosed by the informant on 19.03.2023,
as non-cognizable case.
42. Secondly, when the Police on the next day i.e. on 20.03.2023,
received some additional information about the same incident which
was provided to them by Respondent No. 3, were very well aware
that NC complaint is registered in connection with the same incident
and thus, was duty-bound to approach the concerned Magistrate
under Section 155(2) of Cr. P.C. for permission to Investigate. There
was no Impediment on the investigating agency to approach the
concerned Magistrate.
43. The view taken by this Court in Tulsidas Gopal Naik (supra) is
applicable to the facts and circumstances of this matter. There is no
material to deviate from such view.
44. The learned Counsel Mr. de Sa claimed that FIR is lodged on the
basis of false and fabricated material and only to harass the
Petitioner. Though, at this stage, it is not for us to go into the veracity
or otherwise of the allegations in the complaint, we cannot ignore
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that firstly, the information given to the Police by the wife of
Respondent No. 3 on 19.03.2023 was not in connection with any
cognisable offence. The Police recorded such information as a
noncognizable case and advised the Informant to approach the
concerned Magistrate if so desired. Secondly, Respondent No. 3, who
is the husband of the informant in the NC case, did not file any
affidavit of himself or of his wife stating that the Police did not record
the correct information. Even otherwise, we are of the view that the
option was available with the wife of Respondent No. 3 to approach
the Superintendent of Police under Section 154(3) of Cr. P.C., which
has not been exercised. Thirdly, the contents of the NC complaint and
the contents of the FIR lodged by Respondent No. 3 are quite similar
and in the sequence of events, except for a few additions, which,
according to us, appear to be belatedly introduced only to bring the
said material within the ingredients of cognisable offences.
45. Even though we granted time to Respondent No. 3 to file a reply
affidavit, no such affidavit was placed on record. Thus, it is clear from
the contents of the non-cognizable case and the contents of the FIR
that it relates to the same Incident which occurred on 19.03.2023 at
around 11 30 hours. However, by adding some material to the
complaint filed by Respondent No. 3, the Police Officer/Respondent
No. 2 registered it as an FIR without following the mandatory
provision of Section 155(2) of Cr. P.C. The mandatory provisions of
Section 155(2) cannot be bypassed in this manner to give the
investigating agencies power to investigate non-cognisable offences
without the permission of the magistrate simply based upon belated
additions to the original non-cognisable complaint or the complaint
which according to the agencies had only disclosed an non cognisable
offence. That was not the ratio of the decision relied upon by Mr.
Faldessai.
46. The entire incident appears to be the differences between the flat
owners in a society wherein there are only nine flats. The dispute
appears to be in connection with the parking space, disposal of
garbage, etc. It is unfortunate that the occupants of only nine flats
are unable to reside happily and without any serious quarrel. Be that
as it may, the contention of the Petitioner needs to be accepted. The
FIR vide Crime No. 41/2023 registered at Old Goa Police Station is
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clearly hit by the provisions of Section 155(2) of Cr. P.C. and needs to
be quashed and set aside.
47. Similarly, we cannot brush aside Mr. de Sa’s contention that the
said FIR was lodged only to wreak revenge on the Petitioner who
lodged some complaints against Respondent No. 3 and his wife and
other flat owners. This does appear to be a case of a counterblast.
Because the initial complaint of the wife was recorded as an NC
based on which the Petitioner was arrested but released under
Section 151 of Cr. P.C. by Respondent No. 2, the next day, additional
allegations were made with embellishments regarding the very same
incident. The Investigating agencies should not have registered such
FIR and sought to investigate Into it without leave of the Magistrate
under Section 155(2) of CrPC. Neither the parties nor the
investigating agencies can achieve Indirectly, what the law prohibits
directly. These are matters of liberty and Article 21 is clear when it
provides that no person shall be deprived of liberty except otherwise
than by the procedure established by the law.
48. For all the above reasons, the FIR No. 43/2023 dated 20.03.2023
registered at Old Goa Police Station for the offences punishable under
Sections 323, 506(II), 354, 509, 427 of IPC against the Petitioner, is
hereby quashed and set aside. The Rule is made absolute in above
terms. Parties shall bear their own cost.”
11. Although the contents of the F.I.R and the NCR are different, it
cannot be lost sight of the fact that both the NCR as well as F.I.R relate
to the same set of facts. Thus, the present case is squarely covered by
the judgment of this Court in case of Jitendra Namdev Daravkar
(supra). Reliance placed by learned counsel for respondent No.2 on
the judgment in case of T.T. Antony vs. State of Kerala and others 6 are
6 (2001) 6 SCC 181
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of no avail because that judgment relates to two F.I.Rs maintainable
from the point of view of two different persons and two set of different
allegations. In this case, it is nobody’s case that there were two sets of
different allegations of two different parties. Allegation was one and the
same. The allegation was that Sarvendra Kumar was assaulted by the
accused on 1st October, 2020 at about 11.00 a.m. Thus, the entire
exercise is to circumvent provisions of section 155 (2) of the Cr. P.C. I
am in agreement with the consistent view of this court in case of Asif
Shaikh Pathan and Jitendra Namdev Daravkar (supra). In case of Asif
Shaikh Pathan and Jitendra Namdev Daravkar (supra), the Courts have
considered that judgment in the matter of Mansingh s/o Dhondibhau
Shitole is distinguishable on the facts of that case. As stated above, I
am in agreement with the judgment of Division Bench of this Court in
Asif Shaikh Pathan and Jitendra Namdev Daravkar (supra). Hence,
there is merit in the matter. Since no permission was taken from the
Magistrate before registering of the F.I.R and further because apparently
the said exercise was carried out only to circumvent provisions of
section 155 (2) of the Cr. P.C, F.I.R in question which is lodged is not
maintainable. Resultantly, I am inclined to allow the present
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application. Hence, order;
:ORDER:
(a) The application is allowed.
(b) R.C.C. No.126 of 2021 arising out its C.R. No. 0339
of 2020 an FIR lodged with Vaduj Police Station, Satara
vide FIR dated 24/10/2020, at the instance of present
Respondent No.2, for an offence punishable u/s 452, 427,
323, 143, 147, 148, 149 of IPC against the Applicants
above-named, which is presently pending before the Court
of Joint Civil Judge, Junior Division and Judicial
Magistrate of First Class at Vaduj, District Satara is
quashed and set aside.
(c) Rule is made absolute in the aforesaid terms.
12. Criminal Application stands disposed of.
[SANDESH D. PATIL, J.]
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