Gujarat HC Dismisses Writ for FIR in Custodial Death, Directs Petitioner to Magistrate Under BNSS
The Gujarat High Court dismissed a writ petition seeking FIR registration in a custodial death case, holding that the statutory remedy before the Magistrate under Section 175(3) BNSS must be exhausted first.
The High Court of Gujarat, in a judgment pronounced on 29 May 2026, dismissed a writ petition filed under Article 226 of the Constitution of India by Tofik Shaikh, son of the deceased Jairuddin Gyasuddin Shaikh, who had allegedly died following custodial assault at Vejalpur Police Station, Ahmedabad. Justice D.N. Ray, sitting singly, held that despite the gravity of custodial death allegations, the petitioner was required to first exhaust the sequential statutory remedies available under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — specifically approaching the Magistrate under Section 175(3) — before invoking the extraordinary writ jurisdiction of the High Court. The petition was heard finally at the admission stage itself, with the consent of both parties, given the urgency of the matter.
The Custodial Death and the Petition Before the High Court
On 18 May 2026, Jairuddin Gyasuddin Shaikh was arrested at approximately 16:30 hours by Vejalpur Police Station in connection with a case registered under the Bharatiya Nyaya Sanhita, the Gujarat Animal Preservation Act, 1954, and the Prevention of Cruelty to Animals Act, 1960.
The petitioner alleged that while in police custody on 18 May 2026, his father was subjected to physical assault and administered certain unidentified substances. On 19 May 2026, at around 12:40 hours, the deceased was taken to Sola Civil Hospital, Ahmedabad. Due to non-availability of beds in the ICCU, MICU, and casualty ward, the attending medical officer directed the family to shift him elsewhere. He was then referred to Asarwa Civil Hospital, Ahmedabad, where he arrived at approximately 01:46 hours.
Subsequently, at about 10:28 hours on 19 May 2026, the deceased was admitted to Sardar Vallabhbhai Patel Institute of Medical Sciences and Research (SVP Hospital), Ahmedabad, where medico-legal case papers were prepared. He collapsed at approximately 11:54 hours and was declared dead by the attending doctors. An Accidental Death case, A.D. No. 18 of 2026, was registered at about 18:30 hours on the same day.
On 20 May 2026, the Officer-in-Charge of Vejalpur Police Station informed the Sub-Divisional Magistrate, West Zone, Ahmedabad, who conducted an Inquest Panchnama between 16:05 and 16:40 hours, which was also video-graphed. The Police Inspector also informed the Chief Judicial Magistrate, Ahmedabad Rural, Mirzapur, about the death in custody. A postmortem examination was conducted by a panel of five doctors from the Department of Forensic Medicine, B.J. Medical College, Ahmedabad, between 18:05 and 19:30 hours on 20 May 2026.
The petitioner contended that the medico-legal case papers recorded that the incident had occurred at Vejalpur Police Station and contained an endorsement stating “Ask for Postmortem”, which he argued disclosed a cognizable offence requiring mandatory FIR registration. Despite this, no FIR was registered against any police official. The petitioner also alleged that substantial pressure was exerted upon the family to arrive at a settlement. On 21 May 2026, the petitioner filed the present writ petition under Article 226 seeking directions to register an FIR and for an independent investigation.
Between 20 and 22 May 2026, the ACP, ‘M’ Division, Ahmedabad City, who had taken over the investigation of the accidental death case, recorded statements of various police officials, collected medical documents from the three hospitals, drew a panchnama of the place of occurrence, and seized CCTV footage of the police station.
The Legal Contest: Mandatory FIR Registration Versus Exhaustion of Statutory Remedies
Mr. Robin Bhatt, appearing for the petitioner, relied primarily on the Supreme Court's Constitution Bench decision in Lalita Kumari v. Government of Uttar Pradesh, reported in 2014 (2) SCC 1, which held that registration of an FIR under Section 154 of the Code of Criminal Procedure (now Section 173 of the BNSS) is mandatory where the information discloses commission of a cognizable offence. He argued that the allegations here prima facie disclosed cognizable offences and that the authorities were under a statutory obligation to register the FIR forthwith. He further relied on Nilabati Behera v. State of Orissa, reported in 1993 (2) SCC 746, for the proposition that custodial violence and deaths constitute a direct infringement of fundamental rights under Article 21, and that the State bears strict responsibility for protecting persons in custody.
Mr. Bhatt also submitted that a complaint had been addressed to the Police Commissioner, which satisfied the requirement under Section 173(4) of the BNSS, and that availing one statutory remedy did not preclude the petitioner from invoking the writ jurisdiction of the High Court.
Mr. Hardik Dave, Public Prosecutor, assisted by Ms. Maithili Mehta, Additional Public Prosecutor, opposed the petition on multiple grounds. He pointed out that the petition was affirmed on 21 May 2026, whereas the complaint was lodged only on 22 May 2026, meaning no cause of action had arisen at the time of filing. He argued that the petitioner had not availed the subsequent statutory remedies under the BNSS — specifically approaching the Superintendent of Police under Section 173(4) and thereafter the Magistrate under Section 175(3) — before rushing to the High Court.
The State relied on a line of Supreme Court decisions: Sakiri Vasu v. State of Uttar Pradesh, reported in (2008) 2 SCC 409; M. Subramaniam v. S. Janaki, reported in (2020) 16 SCC 728; Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, reported in (2016) 6 SCC 277; and Radhakrishna Industries v. State of Himachal Pradesh, reported in (2021) 6 SCC 771. These decisions collectively hold that the High Court should not ordinarily entertain writ petitions seeking FIR registration when statutory remedies remain available, and that doing so would make the High Court a forum of first instance.
The State also relied on a recent Gujarat High Court decision in Vishal Pradeepbhai Thakker v. State of Gujarat, reported in 2025:GUJHC:55543, which had rejected a similar writ petition in a custodial death case on the ground that the petitioner had not approached the Magistrate under Section 175(3) of the BNSS before filing the writ petition.
The State further submitted that the authorities had complied with statutory requirements under Section 196 of the BNSS and with Supreme Court directions applicable to custodial deaths, including intimation to the Judicial Magistrate, the National Human Rights Commission, and the SDM. The State also contended that the deceased had informed doctors at two hospitals that he had consumed a large quantity of medicines for blood pressure, diabetes, and thyroid ailments, which it argued negated the allegations of custodial violence.
How Justice D.N. Ray Reasoned Through the Tension
Justice Ray acknowledged the gravity of custodial death as a category of offence. Drawing on Nilabati Behera, the Court observed that “a custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law.” The Court accepted that if the allegations in the petition were taken at face value, the custodians of personal liberty were themselves accused of gross violation of the same.
The central question the Court framed was whether, in a case of custodial death where the police refuse to register an FIR against their own personnel, the writ jurisdiction under Article 226 could be activated to implement the mandate of Lalita Kumari.
Justice Ray identified what he described as an irony in the existing legal framework: Lalita Kumari mandates registration of an FIR where a cognizable offence is disclosed, but provides no mechanism for enforcement when the police refuse to comply. The remedy for non-registration, as held by multiple Supreme Court benches following Sakiri Vasu, lies in the statutory framework of the CrPC/BNSS, not in a writ petition.
The Court considered whether custodial death warranted a special exception to this settled position. It examined whether approaching the Commissioner of Police and thereafter the Magistrate would be an illusory remedy, on the premise that both might be partisan. Justice Ray accepted that the Commissioner of Police might be biased in a matter implicating his own department. However, he declined to extend that reasoning automatically to the Magistrate. The Court held that it could not include the Magistrate — who is an independent judicial authority — in the same bracket as the police hierarchy.
Justice Ray further noted that none of the Supreme Court decisions following Sakiri Vasu had carved out custodial death as an exception to the statutory process, and that this alone did not persuade him to do so. He observed that the most recent Supreme Court pronouncement on the subject — Sujal Vishwas Attavar v. State of Maharashtra, reported in 2026 INSC 442, decided on 4 May 2026 — had categorically reiterated that the extraordinary jurisdiction under Article 226 ought not to be invoked when alternative equally efficacious statutory remedies are available, save where the urgency of circumstances warrants otherwise.
The Court also noted the concern expressed in Sudhir Bhaskarrao Tambe and M. Subramaniam that if High Courts entertain such writ petitions directly, they would be flooded with them and unable to attend to other work. Justice Ray concluded that, respectfully following the line of decisions tabulated in Attavar, the petition had to be dismissed.
The Court was candid about the tension it perceived: Lalita Kumari is a Constitution Bench decision binding under Article 141 and also commands compliance under Article 144, yet the remedy for its violation has been consistently held by smaller benches to lie in the statutory framework rather than in writ jurisdiction. Justice Ray did not resolve this tension but followed the binding line of authority.
Preservation of Evidence: ACP's Statement Made Part of the Judgment
After the judgment was pronounced, counsel for the petitioner requested directions for preservation of CCTV footage, Station Diary entries, medical papers, call records, and other relevant documents. In response, Public Prosecutor Mr. Dave, upon instructions from ACP A.B. Valan of ‘M’ Division, Ahmedabad City — who was present in court — placed a statement on record which Justice Ray directed to be made part of the judgment.
The ACP's statement confirmed that CCTV footage from Vejalpur Police Station covering the period from 18 May 2026 at 14:00 hours to 19 May 2026 at 00:10 hours had already been directed to be preserved by letter dated 20 May 2026 and had been seized by drawing a panchnama dated 26 May 2026 during the investigation of A.D. No. 18 of 2026. All Station Diary entries and medical papers from Sola Civil Hospital, Asarwa Civil Hospital, and SVP Hospital had been collected and made part of the investigation papers. The ACP further stated that the Call Detail Records of the deceased and three named police officers for the period 18 to 19 May 2026 would be collected from the concerned mobile operators within one week.
Outcome
The Special Criminal Application (Direction — to Lodge FIR/Complaint) No. 7352 of 2026 was dismissed. Liberty was reserved to the petitioner to pursue such alternative remedies as may be available in accordance with law, and any such recourse was directed to be considered on its own merits by the competent forum. The Court expressly stated that nothing in the judgment should be construed as an expression of opinion on the merits of the case or on whether the facts disclosed the commission of any offence, cognizable or otherwise.