BNSS Remedies Must Be Exhausted Before Moving High Court For FIR Registration: Gauhati High Court Reiterates
The Gauhati High Court has held that a writ petition seeking registration of an FIR cannot be entertained where the petitioner has directly invoked the Court's writ jurisdiction without first availing the statutory remedy under the Bharatiya Nagarik Suraksha Sanhita, 2023.
Justice Manish Choudhury observed, “Without availing such statutory remedy provided under the BNSS, the petitioner has directly invoked the writ jurisdiction of this Court seeking for initiation of criminal proceedings with registration of the FIR. Thus, in the considered view of this Court, such a recourse to writ proceeding in the first instance is contrary to the settled principles of law.”
The observation came in a writ petition filed under Article 226 of the Constitution seeking a direction to the respondent authorities to register and investigate a case on the basis of an FIR sent by the petitioner to the Officer-in-Charge, Lanka Police Station.
The case of the petitioner was that the Lanka Municipal Board had invited quotations for supply of sand gravel. The petitioner quoted Rs.925 per cubic metre and claimed that his rate was the lowest. However, the Municipal Board accepted the tender of another person at Rs.1,250 per cubic metre. The petitioner also claimed that the beneficiary had not filed the Tax Clearance Certificate along with the tender documents.
The petitioner had earlier approached the High Court seeking a criminal investigation into the alleged irregularities in the tender process. That writ petition was dismissed as he had not filed any FIR before approaching the Court, though liberty was granted to take recourse to the appropriate provisions of law.
Thereafter, he stated that he sent an FIR by registered post to the Officer-in-Charge of Lanka Police Station, but it was not registered. The State submitted that the petitioner ought to have approached the jurisdictional Magistrate under the BNSS.
The High Court noted that the Code of Criminal Procedure, 1973 has since been replaced by the BNSS and that the provisions contained in Section 175 of the BNSS are akin to the provisions contained in Section 156 CrPC.
The Court also referred to Sections 173(4) and 175(3) of the BNSS while considering the statutory remedy available to a person aggrieved by non-registration of an FIR.
Section 173(4) allows an aggrieved person to approach the Superintendent of Police if the police refuse to record information disclosing a cognizable offence; if that remedy fails, Section 175(3) enables an approach to the Magistrate seeking an investigation.
Examining the case, the Court found that the petitioner had not approached the jurisdictional Judicial Magistrate seeking registration of the FIR.
“From the pleaded case of the petitioner, it has not emerged that the petitioner had, at any point of time, approached the jurisdictional Judicial Magistrate seeking registration of the FIR.”
The Court noted that the prayer in the writ petition was for a direction to initiate investigation with registration of the FIR “without any previous approach to the jurisdictional Magistrate” to avail the statutory remedy provided under Section 173(4) read with Section 175(3) of the BNSS.
Accordingly, the High Court found the writ petition to be premature.
“In view of the settled position of law, as outlined above, and the fact situation obtaining in the case, this Court finds the present writ petition as a premature one and therefore, it is not a one to be entertained.”
While not entertaining the petition, the Court granted liberty to the petitioner to avail the remedy under the BNSS by approaching the Superintendent of Police first and thereafter the jurisdictional Magistrate under Section 173(4) read with Section 175(3), following the procedure and formalities laid down in those provisions.
The Court further clarified, “none of the observations made hereinabove shall be construed as observations or an expression of opinion on the merits of the case or as to whether or not the facts disclose the commission of any criminal offence.”
Case Title: Satyabrata Dey v. State of Assam & Ors.
LL Citation: 2026 LiveLaw (Gau) 131
Case No.: WP(C)/4405/2026