NIMESHKUMAR KUNDANKUMAR VARSADIYA vs STATE OF GUJARAT
- Court
- Gujarat High Court
R/SCR.A/6357/2026 (GJHC240334642026) JUDGMENT DATED: 01/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION - TO LODGE
FIR/COMPLAINT) NO. 6357 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
✔
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NIMESHKUMAR KUNDANKUMAR VARSADIYA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR NIRAV K PADHIYAR(5678) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
MS.MONALI BHATT, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 01/09/2026
JUDGMENT
1. The present application is filed for following reliefs:
A) This Honorable Court may be pleased to admit and allow the
present petition;
B) This Honorable 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, thereby directing respondent no.
2 and 3 to register the police complaint given by the petitioner as
First Information Report under the Provisions of Indian Penal Code
and anatomy act against the proposed accused persons mentioned
herein, in the interest of justice;
C) Pending admission, hearing and final disposal of this petition, this
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Honorable court may kindly be pleased to direct the Police
Authorities to register the Police Complaint dated 20.08.2022 and
29.11.2024 as First Information Report in the interest of justice;
D) Any other order/s that may be deemed fit and expedient in the
interest of justice may kindly be passed by this Honorable court;
2. Heard learned advocate Mr.Nirav Padhiyar for the
applicant.
2.1. It is submitted by learned advocate Mr.Nirav Padhiyar
that due to medical negligence the uncle of the present
petitioner died however, after recording the accidental
death no FIR is lodged though grievance is raised.
Learned advocate Mr.Nirav Padhiyar has relied on the
order dated 25.10.2024 passed by this Court whereby
the Police Inspector, Palanpur East Police Station is
directed to consider the representation 20.08.2022 made
by the petitioner, in accordance with law and entire
exercise was directed to be completed within 6 weeks
from the date of the order. Learned advocate Mr.Nirav
Padhiyar submits that despite the said directions issued
by this Court no final decision is taken and the
representation still remains undecided. It is submitted
that even the FSL report which is received on
24.10.2024 also suggests that there are some
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discrepancies in the CD which is submitted to the
Authority. It is submitted that submitted that the Police
Superintendent, Banaskantha has also communicated to
the Police Inspector, Palanpur East Police Station to
investigate the matter in the directions issued in the
communication. Learned advocate Mr.Nirav Padhiyar
submits that though the cognizable offence has been
disclosed in the representation, till date, same has not be
decided and in that background this application is
required to be allowed and direction is required to be
issued to the concerned Authority to lodge an FIR under
the provisions of IPC and Anatomic Act against the
proposed accused.
3. Having considered the submissions made by the learned
advocate Mr.Nirav Padhiyar it is the grievance of the
present applicant that FIR has not be lodged despite
detailed representation is made.
4. At this stage reference of the decision rendered by the
Apex Court in the case of Sujal Vishwas Attavar &
Anr. Vs State of Maharashtra and Ors. reported in
2026 SCC OnLine SC 798 is required made wherein
the following observations are made:
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5. At the outset, it would be apposite to reiterate the settled principle
of law governing the exercise of writ jurisdiction. While the
jurisdiction of the High Court under Article 226 of the Constitution of
India is wide, it is well established that such jurisdiction is
extraordinary, discretionary and subject to certain self-imposed
restrictions. In Radha Krishan Industries v. State of H.P.6, a co-
ordinate Bench of this Court has summarized the principles governing
the exercise of writ jurisdiction by the High Court in the presence of
an alternative remedy and held as under:
“27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution to issue writs
can be exercised not only for the enforcement of fundamental rights,
but for any other purpose as well.
27.2. The High Court has the discretion not to entertain a writ
petition. One of the restrictions placed on the power of the High
Court is where an effective alternate remedy is available to the
aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise where : (a) the
writ petition has been filed for the enforcement of a fundamental
right protected by Part III of the Constitution; (b) there has been a
violation of the principles of natural justice; (c) the order or
proceedings are wholly without jurisdiction; or (d) the vires of a
legislation is challenged.
27.4. An alternate remedy by itself does not divest the High Court of
its powers under Article 226 of the Constitution in an appropriate
case though ordinarily, a writ petition should not be entertained
when an efficacious alternate remedy is provided by law.
27.5. When a right is created by a statute, which itself prescribes the
remedy or procedure for enforcing the right or liability, resort must
be had to that particular statutory remedy before invoking the
discretionary remedy under Article 226 of the Constitution. This rule
of exhaustion of statutory remedies is a rule of policy, convenience
and discretion.
27.6. In cases where there are disputed questions of fact, the High
Court may decide to decline jurisdiction in a writ petition. However,
if the High Court is objectively of the view that the nature of the
controversy requires the exercise of its writ jurisdiction, such a view
would not readily be interfered with.”
(emphasis supplied)
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[See also: Thansingh Nathmal v. Superintendent of Taxes7 and
Whirlpool Corporation v. Registrar of Trade Marks8]
5.1. Similarly, very recently this Court in Rikhab Chand Jain v.
Union of India9 held as under:
“10. We may profitably refer, in this context, to the Constitution
Bench decision in Thansingh Nathmal v. Superintendent of Taxes
[(1964) 15 STC 468 (SC) : 1964 SCC OnLine SC 13 : AIR 1964 SC
1419]. In Thansingh Nathmal v. Superintendent of Taxes [(1964) 15
STC 468 (SC) : 1964 SCC OnLine SC 13 : AIR 1964 SC 1419.], this
court had the occasion to lay down a principle of law which is
salutary and not to be found in any other previous decision rendered
by it. The principle, plainly, is that, if a remedy is available to a
party before the High Court in another jurisdiction, the writ
jurisdiction should not normally be exercised on a petition under
article 226, for, that would allow the machinery set up by the
concerned statute to be bye-passed. The relevant passage from the
decision reads as follows (page 474 in 15 STC):
“… The jurisdiction of the High Court under article 226 of the
Constitution is couched in wide terms and the exercise thereof is not
subject to any restrictions except the territorial restrictions which are
expressly provided in the article. But the exercise of the jurisdiction
is discretionary; it is not exercised merely because it is lawful to do
so. The very amplitude of the jurisdiction demands that it will
ordinarily be exercised subject to certain self-imposed limitations.
Resort to that jurisdiction is not intended as an alternative remedy
for relief which may be obtained in a suit or other mode prescribed
by statute. Ordinarily the court will not entertain a petition for a
writ under article 226, where the petitioner has an alternative
remedy, which, without being unduly onerous, provides an equally
efficacious remedy. Again the High Court does not generally enter
upon a determination of questions which demand an elaborate
examination of evidence to establish the right to enforce which the
writ is claimed. The High Court does not therefore act as a court of
appeal against the decision of a court or Tribunal, to correct errors of
fact, and does not by assuming jurisdiction under article 226 trench
upon an alternative remedy provided by statute for obtaining relief.
Where it is open to the aggrieved petitioner to move another
Tribunal, or even itself in another jurisdiction for obtaining redress in
the manner provided by a statute, the High Court normally will not
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permit, by entertaining a petition under article 226 of the
Constitution, the machinery created under the statute to be by-
passed, and will leave the party applying to it to seek resort to the
machinery so set up.”
(emphasis ours)
12. That apart, the majority view in a previous Constitution Bench in
A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj
Wadhwani [1961 SCC OnLine SC 16 : AIR 1961 SC 1506.] reads thus:
“14…., we must express our dissent from the reasoning by which the
learned judges of the High Court held that the writ petitioner was
absolved from the normal obligation to exhaust his statutory remedies
before invoking the jurisdiction of the High Court under article 226
of the Constitution. If a petitioner has disabled himself from availing
himself of the statutory remedy by his own fault in not doing so
within the prescribed time, he cannot certainly be permitted to urge
that as a ground for the court dealing with his petition under article
226 to exercise its discretion in his favour. Indeed, the second
passage extracted from the judgment of the learned C.J. in State of
U.P. v. Mohammad Nooh [1957 SCC OnLine SC 21 : AIR 1958 SC
86.] with its reference to the right to appeal being lost ‘through no
fault of his own’ emphasizes this aspect of the Rule.”
(emphasis ours)
In essence, this court was of the opinion that once a petitioner has
due to his own fault disabled himself from availing a statutory
remedy, the discretionary remedy under article 226 may not be
available.”
6. In the same vein, this Court has duly considered the question as
to whether the remedy under Article 226 can be availed of if there
exists inaction and/or nonaction by the police in registering the FIR
relating to a cognizable offence. We may refer to few such
pronouncements:
6.1. In Sakiri Vasu v. State of U.P.10, a co-ordinate Bench of this
Court observed:
“11. In this connection we would like to state that if a person has a
grievance that the police station is not registering his FIR under
Section 154 CrPC, then he can approach the Superintendent of Police
under Section 154(3) CrPC by an application in writing. Even if that
does not yield any satisfactory result in the sense that either the FIR
is still not registered, or that even after registering it no proper
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investigation is held, it is open to the aggrieved person to file an
application under Section 156(3) CrPC before the learned Magistrate
concerned. …
25. … 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 CrPC. 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…
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) CrPC or other police
officer referred to in Section 36 CrPC. 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) CrPC instead of rushing to the High Court by way of a
writ petition or a petition under Section 482 CrPC. Moreover, he has
a further remedy of filing a criminal complaint under Section 200
CrPC. 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 CrPC 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.
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.”
(emphasis supplied)
[See also: All India Institute of Medical Sciences Employees' Union
(Regd.) v. Union of India11; Aleque Padamsee v. Union of India12;
M. Subramaniam v. S. Janaki13; and Anurag Bhatnagar v. State (NCT
of Delhi)14]
6.2. Following the law laid in Sakiri Vasu (supra), this Court in
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Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage15, observed as
under:
“2. This Court has held in Sakiri Vasu v. State of U.P. [Sakiri Vasu
v. State of U.P., (2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440 : AIR
2008 SC 907], that 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 done, then the remedy of the aggrieved
person is not to go to the High Court under Article 226 of the
Constitution of India, but to approach the Magistrate concerned under
Section 156(3) CrPC. … We have said this in Sakiri Vasu case [Sakiri
Vasu v. State of U.P., (2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440 :
AIR 2008 SC 907] because what we have found in this country is
that the High Courts have been flooded with writ petitions praying
for registration of the first information report or praying for a proper
investigation.
3. We are of the opinion that if the High Courts entertain such writ
petitions, then they will be flooded with such writ petitions and will
not be able to do any other work except dealing with such writ
petitions. Hence, we have held that the complainant must avail of his
alternate remedy to approach the Magistrate concerned under Section
156(3) CrPC and if he does so, the Magistrate will ensure, if prima
facie he is satisfied, registration of the first information report and
also ensure a proper investigation in the matter, and he can also
monitor the investigation.”
(emphasis supplied)
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 202316 (erstwhile Criminal
Procedure Code, 197317) provides a structured sequential mechanism
for initiating criminal prosecution. The statutory framework
contemplates that information relating to the commission of a
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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.
9. In the present case, it is evident from the record that the
complainant Company initially approached the Land Record
Authority, by way of complaints dated 13.06.2025 and 09.07.2025,
with copies thereof being sent to the police authority. However, it
did not avail any of the statutory remedies provided under BNSS and
instead directly invoked the writ jurisdiction of the High Court, inter
alia, seeking directions for registration of FIR. In our considered
view, such a recourse, in the first instance, is contrary to the settled
principles of law. Particularly in the absence of imminent danger of
violation of life or liberty of an individual. Article 226 is not a
panacea for all grievances.
5. As held by the Apex Court in the above case, if the
petitioner is having grievance that the FIR has not been
registered at the police station, his first remedy is to
approach the Superintendent of Police under section
154(3) of Cr.P.C and other police officer referred in
section 36 of Cr.P.C. If despite approaching the
Superintendent of Police or other police officer referred
in section 36, his grievance still persists, then he can
approach the learned Magistrate under section 156(3) of
Cr.P.C instead of rushing to the High Court by way of
writ petition and Article 226 is not panacea for all
grievances. It is also held that learned Magistrate has
very wide powers to direct registration of FIR and
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ensure proper investigation and for this purpose, he can
monitor the investigation to ensure that investigation is
done properly and in that background, this Court
ordinary would refuse to interfere in such matter.
Considering the above observation, this application
deserves to be dismissed.
6. Resultantly, this application is dismissed.
(M. K. THAKKER,J)
ARCHANA S. PILLAI
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