MOHAMMAD ASFAQKHAN MOHMAD ISHAHAQ KHAN vs STATE OF GUJARAT

Court
Gujarat High Court

R/SCR.A/2260/2026 JUDGMENT DATED: 28/10/2026
(GJHC240119372026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION - TO LODGE
FIR/COMPLAINT) NO. 2260 of 2026
FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
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Approved for Reporting Yes No
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MOHAMMAD ASFAQKHAN MOHMAD ISHAHAQ KHAN
Versus
STATE OF GUJARAT & ORS.
================================================================
Appearance:
MR. VAIBHAV SHETH, ADVOCATE for MS KINJAL R PATEL(7601) for the
Applicant(s) No. 1
MR. DHAWAN JAYSWAL, APP, for the Respondent(s) No. 1
===============================================================
CORAM: HONOURABLE MR.JUSTICE MOOL CHAND TYAGI

Date : 28/10/2026
JUDGMENT
1. The Petitioner herein had preferred with captioned petition
under Articles 21 & 226 of Constitution of India, seeking the
following main & interim reliefs:-
A) This Hon'ble Court may kindly be pleased to admit
and allow the present petition;
(B) This Hon'ble Court may kindly be pleased to issue a
writ of mandamus or a writ in the nature of mandamus
or any other appropriate writ, order or direction
directing the respondents to register the written
complaints dated 10.10.2025 and 28.11.2025 given by
the petitioner to respondent nos.2 and 3 respectively
disclosing the cognizable offences by lodging FIR under
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appropriate charges and investigation be done in
accordance with law in the interest of justice;
(C) Pending admission, hearing and final disposal of the
present petition, this Hon'ble Court may kindly be
pleased to call for call for explanation of respondent
nos.2 and 3 or inquiry done till date in pursuance to
written complaints dated 10.10.2025 and 28.11.2025
as may be deemed fit and expedient by this Hon'ble
Court in the interest of justice;
(D) Any other order/s which may be deemed fit and
expedient in the interest of justice may be passed by
this Hon'ble Court.”
2. Issue Rule to the respondents, returnable forthwith.
Learned APP accepts and waives service of Rule on behalf of all
the respondents. The report of Police Inspector, Ankleshwar ‘B”
Division Police Station, placed on record by the learned APP is
taken on record.
3. Heard learned counsels for the parties.
4. Learned counsel Mr. Vaibhav Sheth for learned counsel Ms.
Kinjal Patel appearing on behalf of the petitioner, vehemently
submitted that although the petitioner submitted written
complaints dated 10.10.2025 and 28.11.2025 clearly disclosing
the commission of a cognizable offence to respondent Nos.2 and
3, however, respondent Nos. 2 and 3 have taken no action
thereon. It was further submitted that respondent Nos. 2 and 3
ought to have registered an FIR pursuant to the said written
complaints, and consequently, the present petition deserves to
be allowed.
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5. Per contra, learned Additional Public Prosecutor appearing
on behalf of the respondent–State placed on record the report of
the Investigating Officer. He submitted that during the course of
investigation, the Investigating Officer recorded the statements
of witnesses and concluded that no cognizable offence is
disclosed. He, therefore, prayed for dismissal of the present
petition.
6. Having heard the learned counsels for the respective
parties and perused the material on record, it emerges that the
petitioner had made written complaints dated 10.10.2025 and
28.11.2025 to respondent Nos. 2 and 3, which did not culminate
in the registration of an FIR. Furthermore, the petitioner has
directly approached this Court by way of the present writ petition
without availing the statutory alternative efficacious remedies
available under the law.
7. In my considered view, the petitioner could have availed the
appropriate statutory remedies available under law prior to
approaching this Court directly for seeking directions of
registration of FIR and grant of police protection. At this
juncture, it would be apposite to refer to the judgment rendered
by the Hon’ble Apex Court in the case of Sakiri Vasu vs State Of
U.P. and Ors. reported in (2008) 2 SCC 409 , wherein the Hon’ble
Apex Court has observed as under:-
“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
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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 Cr.P.C. 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, firstly under Section 154(3) and Section
36 Cr.P.C. before the concerned police officers, and if that is of
no avail, by approaching the concerned Magistrate 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) Cr.P.C. or
other police officer referred to in Section 36 Cr.P.C. 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) Cr.P.C.
instead of rushing to the High Court by way of a writ petition
or a petition under Section 482 Cr.P.C. Moreover he has a
further remedy of filing a criminal complaint under Section
200 Cr.P.C. 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 Cr.P.C. 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 concerned police officers,
and if that is of no avail, under Section 156(3) Cr.P.C. before
the Magistrate or by filing a criminal complaint under Section
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200 Cr.P.C. and not by filing a writ petition or a petition under
Section 482 Cr.P.C.
28. It is true that alternative remedy is not an absolute bar to
a writ petition, but it is equally well settled that if there is an
alternative remedy the High Court should not ordinarily
interfere.”
8. Moreover, recently in Sujal Vishwas Attavar & Anr. v. The
State of Maharashtra & Ors. reported in 2026 INSC 442 , the
Hon’ble Apex 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.
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R/SCR.A/2260/2026 JUDGMENT DATED: 28/10/2026
(GJHC240119372026)
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.”
9. Having considered the ratio laid down by the Hon'ble Apex
Court in the aforesaid judgments, I am of the considered view
that the petitioner ought to have availed other efficacious
remedies available under the law before approaching this Court.
Thus, in light of the above discussion, the present petition, being
devoid of any merit, is liable to be dismissed and is accordingly
dismissed . However, the petitioner is at liberty to avail other
efficacious remedies available under the law. It is made clear that
this Court has not examined the merits of the case.
(MOOL CHAND TYAGI, J)
SIDDHARTH
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