Writ Petition Cannot Mandate Arrest or Direct Investigation Where Alternative Remedies under BNSS Exist

In brief

The question

1. Whether the High Court should exercise its writ jurisdiction under Article 226 to direct the arrest of an accused and monitor a criminal investigation when statutory alternative remedies exist

The court held

The Court declined to entertain the writ petition and refused to issue directions for the arrest of Respondent No. 4

It also directed

The Court held that the petitioner has an effective alternative remedy under the BNSS to seek redress for "improper investigation" by approaching the Superintendent of Police or the jurisdictional Magistrate

The petition was disposed of with liberty granted to the petitioner to pursue these statutory remedies and produce supporting materials before the Magistrate to monitor the investigation of Golaghat P.S. Case no. 64/2025

01Facts

The petitioner, Sikhamoni Saikia, filed a writ petition under Article 226 of the Constitution seeking a direction to the police to arrest her husband (Respondent No. 4) and recover a minor girl

p. 2

The petitioner alleged that her husband, an Assistant Teacher, eloped with a minor girl born in 2008 and was living with her as his wife

p. 2

An FIR was registered on 06.04.2025 as Golaghat P.S. Case No. 64/2025 under Sections 61(2), 318(3), 316(4), and 336(2) of the Bharatiya Nyaya Sanhita (BNS), 2023

p. 3

The petitioner approached the High Court grieving that despite the registration of the FIR, the police had failed to arrest the accused or recover the minor

p. 3

02Issues

i.1. Whether the High Court should exercise its writ jurisdiction under Article 226 to direct the arrest of an accused and monitor a criminal investigation when statutory alternative remedies exist

pp. 4 / paras. 8-10

ii.2. Whether a police officer is legally mandated to arrest an accused in every case involving a cognizable offence punishable by up to seven years of imprisonment

p. 7 / para. 14

03Law Applied

Section 173(4) and Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (formerly Sections 154(3) and 156(3) of the CrPC), which empower a Magistrate to order and monitor investigations

p. 6, 7

High Courts should discourage writ petitions for FIR registration or investigation grievances when a Magistrate has the implied power to ensure proper investigation as per Sakiri Vasu v. State of Uttar Pradesh [2008] 2 SCC 409

p. 4

The power to arrest under Section 35(1)(b) BNSS (formerly Section 41(1)(b) CrPC) is discretionary and must be exercised with circumspection rather than mechanically as per M.C. Abraham v. State of Maharashtra [2003] 2 SCC 649

p. 8, 9

Provisions in the judgment · 15 · Linked ones open on LawLens

Bharatiya Nyaya Sanhita, 2023 Section 61 Section 316 Section 318 Section 336

Code of Criminal Procedure, 1973 Section 36 Section 41 Section 154 Section 156 Section 190 Section 200 Section 482

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 35 Section 173 Section 175 Section 210

04Reasoning

The Court reasoned that the BNSS provides a comprehensive hierarchy for grievances regarding stagnant investigations. Under Section 173(4) and 175(3) of the BNSS, an aggrieved person must first approach the Superintendent of Police and subsequently the jurisdictional Magistrate, who possesses the authority to monitor the investigation and ensure proper conduct

p. 6, 9

Regarding the prayer for arrest, the Court noted that under Section 316(4) of the BNS, the offence is punishable by up to seven years; thus, Section 35(1)(b) of the BNSS governs, which requires the police to be satisfied of specific necessity (such as preventing tampering or further offences) before making an arrest

p. 7, 8

The Court emphasized that it is the duty of the police to investigate, and the judiciary should not ordinarily interfere or direct an arrest as it would infringe upon the discretionary statutory powers of the investigating officer

p. 8