Gauhati HC Dismisses Writ Petition for FIR Registration as Premature, Directs Petitioner to Exhaust BNSS Remedies First

A Hojai resident skipped the Magistrate route entirely and filed a writ petition demanding FIR registration over alleged tender irregularities at Lanka Municipal Board. The Gauhati High Court refused to entertain it, holding the petition premature under settled law.

Justice Manish Choudhury, sitting singly at the Gauhati High Court, declined to entertain a writ petition filed under Article 226 of the Constitution of India by Satyabrata Dey, a resident of Lanka Town, District Hojai, Assam, who sought a direction to the police to register and investigate an FIR concerning alleged irregularities in a municipal tender process. The Court found that the petitioner had not approached the jurisdictional Judicial Magistrate under Section 173(4) read with Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, before invoking the extraordinary jurisdiction of the High Court. Relying on the Supreme Court's decisions in Sakiri Vasu v. State of Uttar Pradesh, [2008] 2 SCC 409, Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, [2016] 6 SCC 277, and the recent Sujal Viswas Attavar v. State of Maharashtra, [2026] 5 SCR 273, the Court dismissed the petition as premature while preserving the petitioner's liberty to avail of statutory remedies.

The Tender Dispute and the Earlier Writ Petition

The underlying dispute concerned a tender floated by the Lanka Municipal Board, District Hojai, Assam, under NIT No. LMB320/2022/153-157 dated 18 May 2022, for the supply of sand gravels. Satyabrata Dey submitted a tender quoting Rs. 925 per cubic metre, which he claimed was the lowest rate when the tender box was opened on 26 May 2022. He alleged that the Municipal Board nevertheless accepted the tender of one Chabi Tapadar at Rs. 1,250 per cubic metre — a rate higher than his own.

Dey further alleged that the successful tenderer had not filed a Tax Clearance Certificate along with the tender documents and had submitted it only on 27 May 2024, well after the last date for submission of documents.

Dey had earlier filed WP(C) No. 1332/2025 before the Gauhati High Court seeking a criminal investigation into these alleged irregularities. A Co-ordinate Bench dismissed that petition on 15 September 2025, noting that the petitioner had not filed any FIR before approaching the Court and that issuance of directions for a criminal investigation was therefore not warranted. The earlier bench did, however, grant the petitioner liberty to take recourse to the appropriate provisions of law.

The FIR That Was Not Registered

Acting on the liberty granted, Dey sent an FIR to the Officer In-Charge, Lanka Police Station on 18 September 2025 by registered post. The Officer In-Charge did not register it. Dey then filed an application under the Right to Information Act before the Superintendent of Police, Hojai on 23 June 2026, seeking information about the status of the FIR, but received no response.

With that factual backdrop, Dey filed the present writ petition — WP(C)/4405/2026 — seeking a direction to the respondent authorities to register and investigate the case on the basis of the FIR he had sent to Lanka Police Station.

The State's Objection and the Statutory Framework Under BNSS

Mr. S.S. Roy, learned Junior Government Advocate, Assam, appearing for the State respondents, submitted that where an FIR disclosing a cognizable offence had not been registered, the petitioner's remedy lay before the jurisdictional Magistrate under the Bharatiya Nagarik Suraksha Sanhita, 2023, which has replaced the Code of Criminal Procedure, 1973.

The Court set out the relevant provisions. Section 173(4) of the BNSS provides that any person aggrieved by a refusal by a police station to record information may send the substance of that information in writing and by post to the Superintendent of Police concerned. If the Superintendent is satisfied that the information discloses a cognizable offence, he must either investigate himself or direct a subordinate to investigate. If that too fails, the aggrieved person may make an application to the Magistrate. Section 175(3) of the BNSS then empowers a Magistrate, after considering such an application supported by an affidavit and making such inquiry as necessary, to order an investigation.

The Court noted that the provisions under Section 175 of the BNSS are akin to those under the erstwhile Section 156 of the Code of Criminal Procedure, 1973.

How the Court Reasoned: The Three-Tier Statutory Ladder

Justice Choudhury traced the consistent line of Supreme Court authority on this point. In Sakiri Vasu, the Supreme Court had held that a Magistrate under Section 156(3) CrPC possessed wide implied powers — including the power to order registration of an FIR and to monitor investigation — and that the High Court should discourage the practice of filing writ petitions or Section 482 petitions merely because a person's FIR had not been registered.

The sequence laid down was clear: the aggrieved person must first approach the Superintendent of Police under Section 154(3) CrPC (now Section 173(4) BNSS); if that yields no result, approach the Magistrate under Section 156(3) CrPC (now Section 175(3) BNSS); and if still aggrieved, file a criminal complaint under Section 200 CrPC. Invoking Article 226 or Section 482 CrPC at the outset was not the intended route.

In Sudhir Bhaskarrao Tambe, the Supreme Court reinforced this position, observing that the High Courts had been flooded with writ petitions seeking FIR registration and that allowing such a practice would leave those courts unable to attend to other work. The prescribed route was to approach the Magistrate under Section 156(3) CrPC in the first instance.

The Court also referred to Sujal Viswas Attavar v. State of Maharashtra, decided in 2026, where the Supreme Court reiterated that the extraordinary jurisdiction under Article 226 ought not to be invoked when alternative equally efficacious statutory remedies are available. The Supreme Court had observed in that case: “Article 226 is not a panacea for all grievances.” It had further held that entertaining a writ petition in such circumstances would result in the High Court acting as a forum of first instance, bypassing the statutory scheme entirely, which is impermissible save in special circumstances such as those identified in Radha Krishan Industries v. State of Himachal Pradesh, [2021] 6 SCC 771.

Applying these principles to the present case, Justice Choudhury found that the petitioner had at no point approached the jurisdictional Judicial Magistrate before filing the writ petition. The prayer itself was for a direction to the respondent authorities to register and investigate the FIR — precisely the relief the statutory framework assigns to the Magistrate in the first instance. Invoking Article 226 without exhausting that remedy was contrary to settled principles of law.

The Court was careful to add that none of its observations were to be construed as an expression of opinion on the merits, or on whether the facts disclosed the commission of any criminal offence.

Outcome

The Gauhati High Court declined to entertain WP(C)/4405/2026 and recorded it as premature. It granted the petitioner liberty to avail of the remedy under the BNSS by first approaching the Superintendent of Police and thereafter the jurisdictional Magistrate under Section 173(4) read with Section 175(3) of the BNSS, following the procedure and formalities prescribed in those provisions.