MAHESH ISHWARBHAI DABGAR vs STATE OF GUJARAT

Court
Gujarat High Court

R/SCR.A/3502/2026 JUDGMENT DATED: 29/10/2026
(GJHC240182842026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION - TO LODGE
FIR/COMPLAINT) NO. 3502 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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MAHESH ISHWARBHAI DABGAR
Versus
STATE OF GUJARAT & ORS.
================================================================
Appearance:
MR JK PARMAR(587) for the Applicant(s) No. 1
SHRIRAM K BHARGAW(9436) for the Applicant(s) No. 1
MR. ADITYA JADEJA, APP, for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE MOOL CHAND TYAGI

Date : 29/10/2026
JUDGMENT
1. The Petitioner herein had preferred with captioned petition
under Article 226 of Constitution of India read with Section 528
of Bhartiya Nagarik Suraksha Sanhita, 2023, seeking the following
main & interim reliefs:-
(A) That the Hon’ble Court may be pleased to admit this
Special Criminal Application.
(B) That this Hon'ble court may be pleased to allow this
present Special Criminal Application by issue writ of
mandamus or any other appropriate writ or order or
direction directing the respondent no.2, 3 and 4 to
register the FIR in pursuant to the written complaint
dated 24.12.2025 and 20.02.2026 of the petitioner in
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the interest of justice.
C)This Hon'ble court may be pleased to allow this
special Criminal Application by directing the respondent
no. 3 to call for the entire case papers in respect of
complaint with Dariyapur Police Station, Ahmedabad
and be pleased to direct him to investigate himself or
under his supervision through any officer in the interest
of justice.
(D) This Hon'ble Court may be pleased to direct the
respondent no. 2, 3 and 4 to consider the detailed
representation made to the respondent no. 3 and
investigate the matter looking to the gravity of offence
in representation submitted in the interest of justice.
E) Grant such other and further relief as deemed just
and proper by this Hon’ble Court in the interest of
justice.”
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 Sub Inspector, Dagbarvad
Police Station, Ahmedabad placed on record by the learned APP
is taken on record.
3. Heard learned counsels for the parties.
4. Learned counsel Mr. J.K.Pamar appearing on behalf of the
petitioner, vehemently submitted that although the petitioner
submitted written complaints dated 24.12.2025 and 20.02.2026
clearly disclosing the commission of a cognizable offence to
respondent Nos.2 to 4, however, respondent Nos. 2 to 4 have
taken no action thereon. It was further submitted that
respondents Nos.2 to 4 ought to have registered an FIR pursuant
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to the said written complaints, and consequently, the present
petition deserves to be allowed.
5. Per contra, the learned Additional Public Prosecutor
submitted the report of the Investigating Officer on record. He
submitted that, based on the complaint made by the petitioner, a
preliminary investigation was conducted, during which the
statement of one Maheshbhai Ishwarbhai was recorded. He
further submitted that upon completion of the investigation, it
came on record that no offence was made out. Further, the
learned APP pointed out that the petitioner has not merely made
two complaints, but has, in fact, made six complaints in all.
Therefore, he prayed for the rejection of the 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 complaint dated 24.12.2025 to
respondent No.2 for taking action for the offence punishable
under Sections 81, 83, 61, 189, 190, 199(2), 125, 316, 318, 111,
352, and 308(6) of BNSS., 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
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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
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
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(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
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
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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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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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