Custodial Death | Lalita Kumari Judgment Does Not Say Deceased's Kin Can Directly Invoke A.226 Over Failure In Lodging FIR: Gujarat HC

The Gujarat High Court dismissed a petition seeking immediate registration of an FIR in an alleged custodial death case of a man, while permitting the kin of the deceased to take recourse to the statutory remedies available to them under BNSS.

In doing so the court observed that while Supreme Court's Lalita Kumari v. Government of Uttar Pradesh judgment mandates registration of an FIR when a cognizable offence is disclosed, it does not provide a separate mechanism if police refuses to lodge an FIR nor there is a mandate provided that on failure of lodging an FIR the next of kin can directly invoke Article 226 jurisdiction of the high court.

In doing so the court referred to a recent Supreme Court decision in Sujal Vishwas Attavar v State of Maharashtra, wherein it was observed by the apex court that Writ Jurisdiction under Article 226 of the Constitution cannot be invoked at the first instance to seek direction for registration of an FIR.

Justice DN Ray observed that if allegations are taken at face value wherein the case alleged that "despite the custodians of personal liberty being themselves accused of gross violation of the same and violence against members of the society, they were supposed to protect", the question would be whether due to non-registration of FIR by police against their own ilk can the court's writ jurisdiction be invoked to implement mandate of Lalita Kumari judgment

Referring to various decisions the court said:

"The line of the aforesaid decisions, culminating in Attavar's case are to the effect that once, for whatever reason, despite the disclosure of a cognizable offence, in the information provided by the informant to the police authorities, the police refuse to lodge an FIR following the mandate of Lalita Kumari (Supra), there is no mechanism provided in Lalita Kumari. There is no mandate in Lalita Kumari(Supra) or in any other judgment of the Hon'ble Apex Court by which, on the failure to lodge an FIR, a potential victim/next of kin can approach a High Court directly under Article 226 of the Constitution of India. Instead, the procedure prescribed under the Cr.P.C/(now B.N.S.S.) is the statutory remedy provided by Parliament. In fact, as held in Subramanyam (Supra), not only should a writ Court not interfere unless it can be shown that the petitioner has exhausted his statutory remedy, but there are instances where upon such interference, the decision of the Hon'ble High Court has been quashed and set aside by the Apex Court"

The court said that where custodial death is concerned, the only issue was whether the High Court can make an exception to the well settled position and direct the registration of an FIR.

The court observed that even if it holds that the Commissioner of Police maybe biased in an alleged custodial death case and would not be inclined to register an FIR which would tarnish the image of their own department, it however cannot automatically include the Magistrate to whom an appeal from the decision of the Commissioner of Police would lie, in the same bracket.

"Although none of the decisions of the Hon'ble Apex Court, relying upon Sakiri Vasu (Supra) have considered the said aspect in as many words or have considered the strain put upon the statutory remedy by the event of a custodial death, that by itself does not pursuade me to carve out a “custodial death” as an exception to the statutory process envisaged to redress a situation where Lalita Kumari(Supra) is not followed in letter and spirit.
While it is also true that Lalita Kumari not only mandates the law within the meaning of Article 141 of the Constitution of India, but it also mandates, under Article 144 of the Constitution of India, that every civil or other authority, acting in aid of the Hon'ble Supreme Court shall follow the mandate of Lalita Kumari (Supra) to register an FIR in a cognizable offence disclosed on the face of the allegations of the proposed informant. The fear and the mischief is to the effect that the moment there is an allegation against the police authorities which is brought before the police authorities, instead of registering an FIR which would lend credence to the version of the informant, the police authorities would simply investigate whatever else and in whatever manner it would choose, to stifle the inconvenient truth"

In Sakiri Vasu the apex court had held that an aggrieved person must avail the statutory remedies provided under criminal law before approaching the High Court.

The court said that on such a premise it would have ordinarily thought that the most natural and effective remedy would have been a writ petition to implement the directions of Lalita Kumari. However the court found there were a catena Supreme Court decisions which follow the earlier decision of Sakiri Vasu which holds that the remedy for non-registration of an FIR is merely statutory in nature and the involvement of the writ Court to implement Lalita Kumari (Supra) has been deprecated.

It thus said:

"Lalita Kumari mandates the lodging of an FIR. But the remedy, if such FIR is not lodged, is not provided in Lalita Kumari. It is ironic that even if a Supreme Court mandate is violated by the authorities, various Benches of the Supreme Court, relying upon Sakiri Vasu (Supra), a decision of a smaller Bench prior to the Constitution Bench decision in Lalita Kumari(Supra), have said that the procedure laid down in the CrPC/BNSS has to be followed and the writ court should not be approached prior to that, solely because an alternative remedy exists in the statute. Therefore, respectfully following the line of decisions of the Hon'ble Apex Court as tabulated in Attavar (Supra), the present petition has to be dismissed and is accordingly, dismissed.".

The petitioner alleged that on May 19 the deceased was taken for medical treatment to Sola Civil Hospital, but due to the unavailability of ICU beds, they were referred to another hospital. When the relatives took him to Sardar Vallabhbhai Patel Institute of Medical Sciences and Research, the petitioner's father died after a few hours.

As per reports, the petitioner's father was booked by the police in a cow slaughter case. He was arrested on May 18 in an FIR lodged under BNS, Gujarat Animal Preservation Act and the Prevention of Cruelty to Animals Act. The petitioner alleged that during police custody, the deceased was subjected to physical assault and administered unidentified substances.

On May 20, an inquest proceeding was conducted by SDM-cum-Deputy Collector, Ahmedabad City (West) between 16:05 hours and 16:40 hours. Further, the Chief Judicial Magistrate of Ahmedabad Rural in Mirzapur was also informed regarding the death of the deceased while in custody.

The petitioner conteded that medico-legal records indicated that the incident occured at Vejalpur Police Station and contained a recommendation for postmortem examination, which according to the petitioner, disclosed the commissioner of cognizable offence warranting immediate registration of an FIR.

From May 20 to 22, the ACP in charge recorded statements of police officers, collected medical documents, drew a panchnama and seized the CCTV footage from the police station.

The counsel for the petitioner contended that despite grave allegations pertaining to custodial violence and death, no FIR was registered against the concerned police officials. It was also submitted that during the interregnum, the family was pressurised to settle the matter.

The counsel further noted that a complaint was forwarded to the Police Commissioner, and that such action sufficiently satisfied the requirement under Section 173(4) of BNSS, which empowers any aggrieved person to approach a Magistrate if a police officer fails to register an FIR.

The counsel argued that merely because the petitioner had availed one statutory remedy, it would not deprive him of invoking the extraordinary jurisdiction of the court.

The State argued that when the writ petition was affirmed on May 21, till then no complaint or representation was submitted before the Police. It was argued that a complaint was lodged only on 22 May, and therefore, at the time of filing the present proceedings, no cause of action had arisen against the authorities on account of alleged inaction.

The petition was dismissed permitting the petitioner recourse to alternative remedies.

Case Title: Tofik Shaikh v State of Gujarat, R/SCR.A/7352/2026

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