— judgment summary

FIR-Registration Writ Barred Without Exhausting Section 175(3) BNSS Remedy — Allahabad HC (Amit Kumar Srivastava)

Advocate Akhil Singhfir registrationwrit jurisdictionsection 175(3) bnsssection 173(4) bnssarticle 226alternative remedyallahabad high courtlucknowuttar-pradeshindia

This article is for educational and legal awareness purposes only. It does not constitute legal advice or solicitation. Please consult a qualified advocate for advice on specific legal matters.

Overview

The Allahabad High Court has held that a writ petition under Article 226 of the Constitution of India seeking a direction to the police to register a First Information Report (FIR) is not maintainable unless the petitioner has first exhausted the statutory remedies available under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — approaching the Superintendent of Police under Section 173(4) BNSS, and, failing that, the jurisdictional Magistrate under Section 175(3) BNSS. The Court dismissed the writ petition, describing the statutory route as “the primary and preferred remedy” and cautioning against the “growing trend” of litigants approaching the High Court as a forum of first instance.

  • Case: Amit Kumar Srivastava v. State of U.P. and 10 others
  • Case No.: Criminal Misc. Writ Petition No. 23134 of 2025
  • Bench: Justice Chandra Dhari Singh and Justice Tarun Saxena
  • Date: 12 August 2026

Facts

The petitioner, a journalist, lodged a complaint at a police station in Uttar Pradesh alleging that he had been fired upon by unidentified assailants and that the attack was connected to his reporting work. He named several private individuals in the complaint. No FIR was registered. After representing the matter to the police hierarchy without result, the petitioner moved the High Court under Article 226, seeking a writ of mandamus directing registration of an FIR, relying principally on the Constitution Bench decision in Lalita Kumari v. State of U.P., (2014) 2 SCC 1, and on an earlier order of the same High Court.

The State opposed the petition. It placed on record a police inquiry report disputing that the incident had occurred as alleged, and submitted that the complaint itself was factually unsustainable. The parties were thus at variance on the basic question of whether the underlying incident had taken place at all.

This article expresses no view on that factual dispute — which the High Court itself did not adjudicate on merits — and confines itself to reporting the Court’s procedural ruling. No finding on the truth of the allegations, or on the conduct of any named or unnamed individual, should be inferred from this summary.

What the Court Held

  1. Disputed facts are, by themselves, a ground to decline writ jurisdiction. Where facts are seriously disputed between the parties, the High Court may decline to exercise its extraordinary jurisdiction under Article 226, a limitation the Court traced to Seth Chand Ratan v. Pandit Durga Prasad, (2003) 5 SCC 399, and Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, (1974) 2 SCC 706, among other decisions.

  2. Section 175(3) BNSS is the primary remedy, not a mere alternative. Relying on Sakiri Vasu v. State of U.P., (2008) 2 SCC 409, the Court held that a person aggrieved by non-registration of an FIR, or by a defective investigation, should approach the jurisdictional Magistrate under Section 175(3) BNSS rather than the High Court in the first instance. The Court described this remedy as “not merely an alternative, instead, it is the primary and preferred remedy that must be exhausted before approaching the High Court under Article 226.”

  3. The statutory sequence has two steps. Where the police decline to register an FIR, Section 173(4) BNSS provides the first remedy — a written complaint to the Superintendent of Police or a higher police officer. If that fails, Section 175(3) BNSS empowers the Magistrate to direct registration of an FIR and to monitor the investigation, including recommending a change of investigating officer.

  4. Lalita Kumari does not license bypassing this scheme. The Court held that while Lalita Kumari makes registration of an FIR mandatory once a cognizable offence is disclosed, that principle was intended to enforce the police’s registration duty — not to permit litigants to skip the statutory remedies under Sections 173(4) and 175(3) BNSS and approach the High Court directly.

  5. The statutory procedure is a substantive safeguard, not a technicality. The Court held: “The procedure prescribed under the BNSS/CrPC is not a mere technicality. It is a substantive safeguard that ensures that grievances are addressed at the appropriate level, with the Magistrate serving as an independent judicial officer who can direct registration, order investigation, and monitor the same.”

  6. Exceptions remain, but are narrow. The Court did not foreclose direct writ relief altogether — it preserved the position that a writ may lie “unless exceptional circumstances exist which warrant direct intervention,” identifying such circumstances as violation of a fundamental right, breach of natural justice, want of jurisdiction, or an illusory or ineffective statutory remedy. On the facts before it, no such exceptional circumstance was found.

  7. Petition dismissed. Taking into account the disputed facts and the availability of an unexhausted statutory remedy, the Court declined to issue a mandamus for FIR registration and dismissed the writ petition, leaving the petitioner to pursue the Section 175(3) BNSS route before the Magistrate.

Precedents Relied On

  • Lalita Kumari v. State of U.P., (2014) 2 SCC 1 — Constitution Bench authority that FIR registration is mandatory where information discloses a cognizable offence; distinguished here as not sanctioning a bypass of statutory remedies.
  • Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 — the Magistrate’s wide powers under Section 156(3) of the Code of Criminal Procedure, 1973 (the predecessor of Section 175(3) BNSS) to direct FIR registration and monitor investigation, and the corresponding rule that this remedy must ordinarily be exhausted before a writ is filed.
  • Seth Chand Ratan v. Pandit Durga Prasad, (2003) 5 SCC 399 — on declining writ jurisdiction where facts are disputed.
  • Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, (1974) 2 SCC 706 — on the discretionary, self-restrained character of Article 226 jurisdiction.

The Court also referred to a recent Supreme Court decision, Sujal Vishwas Attavar v. State of Maharashtra (cited in the judgment without a reporter citation), applying the same exhaustion principle specifically to the BNSS framework, describing it as a reaffirmation of the Sakiri Vasu line of authority.

Takeaway

The ruling is a reminder that the Lalita Kumari mandate — that an FIR must be registered when a cognizable offence is disclosed — operates alongside, not instead of, the statutory grievance ladder Parliament has built for enforcing that mandate. A complainant whose FIR is not registered must ordinarily climb that ladder: first a written complaint to the Superintendent of Police under Section 173(4) BNSS, then, if necessary, an application to the jurisdictional Magistrate under Section 175(3) BNSS, supported by the affidavit that provision requires. Only if that route is illusory, or a recognised exception (fundamental-rights violation, breach of natural justice, want of jurisdiction) is made out, does a direct writ under Article 226 become appropriate — and even less so where, as here, the parties dispute the very occurrence of the incident.

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