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Judgment
Date : 07.08.2026 Heard Mr. S.C. Das, learned counsel for the petitioners; and Mr. N. Das, learned Additional Senior Government Advocate, Assam for the respondent nos. 1 – 5.
Having regard to the issues raised in this writ petition preferred under Article 226 of the Constitution of India, the writ petition is taken up for final consideration at the motion stage itself, finding no necessity to issue any notice to the respondent nos. 6 – 8, in view of the order to be passed.
The petitioner has stated that she is a widow residing at Village – Anandanagar, Bilasipara Revenue Circle, District – Dhubri along with her three children. It is stated that the husband of the petitioner, Late Jamal Ali Sk died on 22.10.2021, leaving the petitioner and her children. It is stated that Late Jamal Ali Sk owned and possessed a number of landed properties, residential houses, ponds, etc. After his death, the respondent no. 6 who is a brother of Late Jamal Ali Sk along with his six sons started harassing the petitioner’s family with an aim to grab the landed properties. It is mentioned that the said respondents are repeatedly threatening the petitioner and her family members to vacate the landed properties so that the said respondents can illegally and forcibly occupy the landed properties. Aggrieved by such actions on the part of the said respondents, the petitioner instituted a title suit, Title Suit no. 117/2025 before the Court of learned Civil Judge, Junior Division, Bilasipara, Dhubri [‘the Trial Court’, for short] against the two sons of the respondent no. 6 as the defendants, that is, the respondent no. 7 and the respondent no. 8, and the title suit is presently pending before the Trial Court.
It is further stated that due to repeated threats coming from the respondent no. 6 and his sons, the petitioner’s son lodged a First Information Report [FIR] before the Officer In-Charge, Bilasipara Police Station on 02.07.2026. Though after receipt of the FIR, the Police personnel visited the place of occurrence, no effective legal action was taken against the accused persons named in the FIR. The Police did not even register the FIR. Thereafter, a family member of the petitioner submitted a representation before the respondent no. 5 on 09.07.2026 seeking an immediate enquiry into the matter and to extend the Police protection to the family of the petitioner for safeguarding the lives and the landed properties.
In this writ petition, the petitioner has inter alia sought for a direction in the nature of mandamus to the respondent authorities to conduct a fair, impartial and expeditious investigation into the FIR, already lodged by the petitioner’s son, and to provide immediate and adequate Police protection to the petitioner’s family. A direction has also been sought for personal supervision of the respondent no. 3 into the investigation.
Mr. Das, learned Junior Government Advocate, Assam appearing for the State respondents has submitted that if the FIR, stated to have been filed before the Officer In-Charge, Bilasipara Police Station on 02.07.2026, has not been registered till date, the petitioner/informant ought to have approached the jurisdictional Superintendent of Police, that is, the respondent no. 3 at first and if there is no effective action by the respondent no. 3, the petitioner/informant could have approached the jurisdictional Magistrate as per the provisions of the Bharatiya Nagarik Suraksha Sanhita [BNSS], 2023. Instead of approaching the said authorities at first, the petitioner has approached this Court invoking the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution. It is his submission that when there is an effective, adequate and statutory remedy available, a writ petition under Article 226 of the Constitution like the present one is not to be entertained. He has further submitted that the petitioner seeking protection, ought to have approached the jurisdictional Superintendent of Police who after assessing the threat perception would have taken an appropriate decision in the matter.
From the plaint filed in Title Suit no. 117/2025, a copy of which has been annexed to the writ petition, it is noticeable that the petitioner and her daughter and two sons, who are all majors, have instituted the suit as plaintiffs for declaration of title, interest, confirmation of possession, partition and permanent injunction. Two sons of the respondent no. 6 herein are the defendant nos. 1 & 2 whereas the jurisdictional District Commissioner and the jurisdictional Circle Officer are impleaded as defendant nos. 3 & 4. Suit land involved is 1 Bigha 4 Katha. In the connected application filed under Order 39, Rule 1 & 2, CPC r/w Section 151, CPC, which has been registered as Misc. [J] Case no. 216/2025, the Trial Court deemed it fit to hear the other before considering the prayer of injunction and observing so, issued notices to the other sides, by an Order dated 23.12.2025.
It was observed by the Hon’ble Supreme Court of India in Sakari Vasu vs. State of Uttar Pradesh and others, [2008] 2 SCC 409, that the Magistrate had very wide powers under Section 156[3], Code of Criminal Procedure, 1973 [‘the CrPC’, or ‘the Code’, for short] to direct registration of an FIR and to ensure a proper investigation, and for this purpose, he can monitor the investigation to ensure that the investigation is done properly [though he cannot investigate himself]. It was observed that the High Court should discourage the practice of filing a writ petition under Article 226 of the Constitution or a petition under Section 482, CrPC simply because a person had a grievance that his/her FIR had not been registered by the Police, or after being registered, proper investigation had not been done by the police. For this kind of grievance, the remedy would lie under Sections 36, CrPC and Section 154[3], CrPC before the Police Officers concerned at first, and if that was of no avail, then under Section 156[3], CrPC before the Magistrate or by filing a criminal complaint under Section 200, CrPC, and not by filing a writ petition or a petition under Section 482, CrPC. It has been observed that an alternative remedy would not be an absolute bar to prefer the writ petition but it is equally well settled that if there is an alternative remedy, the High Court should not ordinarily interfere. There was an implied power in the Magistrate under Section 156[3], CrPC to order registration of a criminal offence and/or to direct the Officer In-Charge of the concerned Police Station to hold a proper investigation and take all such necessary steps that might be necessary for ensuring a proper investigation including monitoring of the same.
In Sakiri Vasu [supra], the Hon’ble Supreme Court has made the following observations :-
11.In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154[3] CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156[3] CrPC before the learned Magistrate concerned. If such an application under Section 156[3] is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.
* * * * *
17.In our opinion Section 156[3] CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156[3] CrPC, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.
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24.In view of the abovementioned legal position, we are of the view that although Section 156[3] is very briefly worded, there is an implied power in the Magistrate under Section 156[3] CrPC to order registration of a criminal offence and/or to direct the officer in charge of the police station concerned to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156[3] CrPC, we are of the opinion that they are implied in the above provision.
25.We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 CrPC. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters and relegate the petitioner to his alternating remedy, first under Section 154[3] and Section 36 CrPC before the police officers concerned, and if that is of no avail, by approaching the Magistrate concerned under Section 156[3].
26.If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154[3] CrPC or other police officer referred to in Section 36 CrPC. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156[3] CrPC instead of rushing to the High Court by way of a writ petition or a petition under Section 482 CrPC. Moreover, he has a further remedy of filing a criminal complaint under Section 200 CrPC. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?
27.As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly [though he cannot investigate himself]. The High Court should discourage the practice of filing a writ petition or petition under Section 482 CrPC simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154[3] before the police officers concerned, and if that is of no avail, under Section 156[3] CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC.
It is also relevant to refer to the following observations of the Hon’ble Supreme Court of India in Sudhir Bhaskarrao Tambe vs. Hemant Yashwant Dhage, [2016] 6 SCC 277, :-
2.This Court has held in Sakiri Vasu vs. State of Uttar Pradesh, that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156[3] CrPC. If such an application under Section 156[3] CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.
3.We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156[3], CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.
The Code of Criminal Procedure, 1973 has since been replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 [‘the BNSS’, for short]. The provisions contained in Section 175, BNSS is akin to the provisions contained in Section 156, CrPC.
Section 173 [4] and Section 175 [3] of the BNSS, which are of relevance, are quoted hereinbelow for ready reference :-
173. Information in cognizable cases –
[1] * * * * *
[2] * * * * *
[3] * * * * *
[4] Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section [1], may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Sanhita, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence failing which such aggrieved person may make an application to the Magistrate.
175. Police Officer’s power to investigate cognizable case –
[1] * * * * *
[2] * * * * *
[3] Any Magistrate empowered under Section 210 may, after considering the application supported by an affidavit made under sub-section [4] of Section 173, and after making such inquiry as he thinks necessary and submission made in this regard by the police officer, order such an investigation as above-mentioned.
[4] * * * * *
In Sujal Viswas Attavar and another vs. State of Maharashtra and others, [2026] 5 SCR 273, the question considered was whether under Article 226 of the Constitution of India, a direction could be given to the State authorities to register an FIR without the applicant first having taken recourse to the alternative remedies provided in law. In the case under reference, the FIR was registered under various provisions of the Bharatiya Nyaya Sanhita [BNS], 2023 pursuant to an interim order dated 17.12.2025 passed by the jurisdictional High Court in a writ petition preferred by the complainant. Aggrieved by such registration, the accused persons approached the Hon’ble Supreme Court contending that the registration of the FIR was a direct consequence of the directions issued in writ proceedings, and was therefore, contrary to law since alternative remedies available under the statutory framework had not been exhausted. The Hon’ble Supreme Court has referred to the decisions in Sakiri Vasu [supra] and Sudhir Bhaskarrao Tambe [supra] amongst others.
Finding that the complainant did not avail any of the statutory remedies provided under the BNSS and had instead directly invoked the writ jurisdiction of the High Court inter alia seeking directions for registration of the FIR, the Hon’ble Supreme Court has observed as under :-
7.Keeping in view the above exposition of law, we find that the extraordinary jurisdiction under Article 226 of the Constitution of India ought not to have been invoked when alternative equally efficacious statutory remedies were available. If a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being conducted, then the remedy does not ordinarily lie in invoking the writ jurisdiction in the first instance, but in seeking recourse to the statutory framework, unless of course the urgency of the circumstances warrant otherwise.
8.The Bharatiya Nagarik Suraksha Sanhita 2023 [erstwhile Code of Criminal Procedure, 1973] provides a structured sequential mechanism for initiating criminal prosecution. The statutory framework contemplates that information relating to the commission of a cognizable offence is first placed before the officer-in-charge of the police station and an FIR is registered under Section 173[1] BNSS. In the event of refusal to register the FIR, recourse lies before the jurisdictional Superintendent of Police under Section 173[4] BNSS and, thereafter, before the Magistrate, under Section 175[3] BNSS.
9.In the present case, it is evident from the record that the complainant company …… did not avail any of the statutory remedies provided under BNSS and instead directly invoked the writ jurisdiction of the High Court, inter alia, seeking directions for registration of FIR. In our considered view, such a recourse, in the first instance, is contrary to the settled principles of law. Particularly in the absence of imminent danger of violation of life or liberty of an individual. Article 226 is not a panacea for all grievances.
10.It is not the case of the complainant company that it had approached the concerned Superintendent of Police or Magistrate prior to filing the writ petition, nor has any material been placed on record to show that such remedies were unavailable or inefficacious. Entertaining a writ petition, in the said circumstances, would in effect, result in the High Court, acting as a forum of first instance thereby bypassing the statutory scheme in its entirety. This is impermissible, save and except in special circumstances as mentioned in Radha Krishan Industries vs. State of Himachal Pradesh, [2021] 6 SCC 771, which are conspicuously absent in the present case.
11.The High Court is not bound to entertain a writ petition merely because a case of alleged inaction or negligence is made out against a statutory authority. Ordinarily, where a statute provides a complete and efficacious remedy, the same must be exhausted before invoking constitutional jurisdiction [See : Sakiri Vasu (supra) and Sudhir Bhaskarrao Tambe (supra)]. In the present facts, the complainant company, has not exhausted the sequential statutory remedies available under BNSS. There is, therefore, no foundation to invoke the extraordinary jurisdiction of the High Court for the reason that efficacious and efficient alternative remedies exists. Hence, at this stage, we find the instant writ petition to be premature, and, therefore, not fit to be entertained.
From the pleaded case of the petitioners, as narrated above, it has not emerged that the petitioner/informant had, at any point of time since 02.07.2026, approached the jurisdictional Superintendent of Police and/or the jurisdictional Judicial Magistrate seeking registration of the FIR. The prayer made in this writ petition is for a direction to the respondent authorities to register the FIR and to cause a fair, impartial and expeditious investigation into the FIR without any previous approach to the jurisdictional Superintendent of Police and the jurisdictional Magistrate to avail the statutory remedy available under the law. Without exhausting such statutory remedy provided under the BNSS, the petitioner has directly invoked the writ jurisdiction of this Court for the reliefs, mentioned above. Thus, in the considered view of this Court, such a recourse to writ jurisdiction in the first instance is contrary to the settled principles of law. As regards the other direction for providing Police protection to the family to the petitioner and the landed properties, this Court is of the considered view that from the materials on record, the petitioner has not been able to make out a prima facie case for such a direction due to failure on her part, firstly, to take recourse as per the statutory procedure, and secondly, to approach the competent authority who is empowered to assess the threat perception before a direction to provide police protection.
In view of the settled position of law, as outlined above, and the fact situation obtaining in the case, this Court finds the present petition as one which is not to be entertained. It is accordingly observed. While not entertaining the present writ petition, it is observed that the petitioner as aggrieved person has the liberty to avail the remedy under the BNSS by approaching the jurisdictional Magistrate under Section 173[4] r/w Section 175[3], BNSS by following due procedure and formalities as laid down in those provisions.
It is further observed that none of the observations made hereinabove shall be construed as observations or an expression of opinion on the merits of the case of the petitioner, stated to have mentioned in the FIR lodged, or as to whether or not the facts therein disclosed the commission of any criminal offence.