Gauhati High Court
Montosh Paul S/O- Late Bhupesh Ch. Paul vs The Union Of India And 7 Ors In The ... on 13 May, 2026
Author: Manish Choudhury
Bench: Manish Choudhury
GAHC010261392023
2026:GAU-AS:6574
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6812/2023
MONTOSH PAUL S/O- LATE BHUPESH CH. PAUL,
R/O- LUMDING TOWN, P.S- LUMDING,
DIST- HOJAI, ASSAM
VERSUS
1: THE UNION OF INDIA AND 7 ORS IN THE MINISTRY OF HOME
AFFAIRS THROUGH THE SECRETARY NORTH AVENUE, NEW
DELHI-01
2:THE STATE OF ASSAM
THROUGH THECHIEF SECRETARY
DISPUR-781005
3:THE PRINCIPAL SECRETARY /COMMISSIONER
TO THE GOVT OF ASSAM
HOME DEPARTMENT
DISPUR-781005
4:THE DIRECTOR GENERAL OF POLICE
ASSAM, B.K KAKOTY ROAD
ULUBARI GUWAHATI-07
5:THE DEPUTY COMMISSIONER
DIST- HOJAI ASSAM
PIN-782442
6:THE SUPERINTENDENT OF POLICE
HOJAIASSAM PIN-782442
7:OFFICER IN CHARGE
LUMDING HOJAI ASSAM
Page 1 of 10
8:SIBU MISHRA
MEMBER OF LEGISLATIVE ASSEMBLY
LUMDING CONSTITUENCY
P.O AND P.S- LUMDING
DIST- HOJAI ASSAM
Advocate for the Petitioner : MR. R P SARMAH, MR. D DOLEY
Advocate for the Respondent : DY.S.G.I., MS. H SARMA (r-8),MR A U
AHMED (r-8),DR. B AHMED (r-8),MR. K K PARASAR (r-1),GA,
ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT&ORDER
13.05.2026
Heard Mr. R.P. Sarmah, learned Senior Counsel assisted by
Mr. D. Doley, learned counsel for the petitioner; Mr. P.K. Medhi,
learned Central Government Counsel [CGC] for the respondent no. 1;
Mr. S.S. Roy, learned Junior Government Advocate, Assam for the
respondent nos. 2 - 6; and Mr. A.U. Ahmed, learned counsel for the
respondent no. 8.
2. In this writ petition, one of the grievances raised by the
petitioner is that at the time of institution of the writ petition, there
had been continuous harassments through different means to the
petitioner, and the family of the petitioner, which harassments,
according to the petitioner were meted out at the instance of the
respondent no. 8, who was then a Member of Legislative Assembly
[MLA]. The petitioner has stated that a number of complaints in the
form of First Information Reports [FIRs] were lodged before the
Police.
3. A reference of the complaints lodged by the petitioner is made
in the affidavit-in-opposition of the respondent no. 6, filed on
16.09.2024, in the following manner : -
Page 2 of 10
Complaint Email Date & Summery Action Taken
15.05.2023. Conspiracy to attack The complaint was enquired into vide
complainant Montosh Paul by local GDE No. 366 dated 15.05.2023 and no
MLA Sri Shibu Misra etc. cognizable offence was made out.
21.05.2023. Conspiracy to attack The complaint was enquired into vide
complainant by local MLA Sri Shibu GDE No. 504 dated 21.05.2023 and no
Misra through Auto drivers of Lumding. cognizable offence was made out.
26.05.2023. Information regarding The complaint was enquired into vide
alleged attack on Montosh Paul's GDE No. 634 dated 26.05.2023 and
residence by 35 goondas. registered vide Lumding Police Station
Case no. 131/2023 under Sections
120B/448/427/294/506, IPC was
registered on 09.06.2023.
27.05.2023. Repetition of email dated The complaint was enquired into vide
26.05.2023 GDE No. 634 dated 26.05.2023 and
registered vide Lumding Police Station
Case no. 131/2023 under Sections
120B/448/427/294/506, IPC was
registered on 09.06.2023.
27.05.2023. Information regarding The complaint was enquired into vide
alleged breach into property by Tina GDE No. 660 dated 27.05.2023 and no
Choudhary etc. cognizable offence was made out.
Lumding Police Station Non-FIR no.
25/2023 under Sections 107/145, CrPC
dated 27.05.2023 was registered.
28.05.2023. Repetition of email dated The complaint was enquired into vide
27.05.2023 against Tina Choudhury GDE No. 682 dated 28.05.2023 and no
cognizable offence was made out.
Lumding Police Station Non-FIR no.
25/2023 under Sections 107/145, CrPC
dated 27.05.2023 was registered.
29.05.2023. Information regarding The complaint was enquired into vide
locking out of premises of old AGP GDE No. 703 dated 29.05.2023 and
Office etc. Lumding Police Station Non-FIR no.
Page 3 of 10
29/2023 under Section 107, CrPC dated
16.06.2023 was registered.
30.05.2023. Repetition of Information The complaint was enquired into vide
given by email dated 29.05.2023. GDE No. 727 dated 30.05.2023 and
Lumding Police Station Non-FIR no.
29/2023 under Section 107, CrPC dated
16.06.2023 was registered.
4. It was the further grievance of the petitioner that the
investigation in the afore-mentioned cases are being carried out by
Police in tardy manner reflecting a lackadaisical attitude.
5. From the above Table, it is noticed that on the basis of the
FIRs, a number of cases - both FIR cases and non-
FIR cases - had been registered at Lumding Police Station at the
instance of the petitioner. It is not known whether the investigation
of the case, Lumding Police Station Case no. 131/2023 has been
completed in the meantime or not. Be that as it may. If the
petitioner has any grievance as regards the manner in which the
investigation in the afore-stated case is being carried out, the
petitioner has appropriate and adequate remedy under the provisions
of the Bharatiya Nagarik Suraksha Sanhita [BNSS], 2025 [previously,
Code of Criminal Procedure, 1973].
6. From the scheme contained in the erstwhile Code of Criminal
Procedure, 1973 ['the Code' or 'CrPC.', for short] [since repealed],
more particularly, Section 154 and Section 156 thereto, it was settled
that if a person had a grievance that the Officer In-Charge of the
concerned Police Station was not registering his/her FIR under
Section 154[1], CrPC, then he/she could approach the
Superintendent of Police under Section 154 [3] CrPC by an
application in writing. If that did not yield any satisfactory result in
the sense that either the FIR was not registered till then or that even
Page 4 of 10
after registering it, no proper investigation had been conducted, it
was open to the aggrieved person to file an application under Section
156[3], CrPC before the jurisdictional Magistrate. If an application
under Section 156[3], CrPC was filed before the Magistrate, the
Magistrate had the authority and jurisdiction to direct that the FIR be
registered and also, on reaching satisfaction, to direct that a proper
investigation be made in a case where, according to the aggrieved
person, no proper investigation had been made. The Magistrate
under the said provision also had the authority and jurisdiction to
monitor the investigation to ensure a proper investigation.
7. Section 156, CrPC reads as under :-
156. Police Officer's power to investigate cognizable case -
[1] Any officer in charge of a police station may, without the
order of a Magistrate, investigate any cognnizable case which
a Court having jurisdiction over the local area within the limits
of such station would have power to inquire into or try under
the provisions of Chapter XIII.
[2] No proceeding of a police officer in any such case shall at
any stage be called in question on the ground that the case
was one which such officer was not empowered under this
section to investigate.
[3] Any Magistrate empowered under Section 190 may order
such an investigation as above-mentioned.
8. It has been observed by the Hon'ble Supreme Court of India
in Sakiri Vasu vs. State of Uttar Pradesh and others, [2008] 2
SCC 409, that the Magistrate had very wide powers under Section
156[3] 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]. It has been observed that the High Court should
Page 5 of 10
discourage the practice of filing a writ petition under Article 226 of
the Constitution or a petition under Section 482, CrPC simply
because a person had a grievance that his/her FIR had not been
registered by the Police, or after being registered, proper
investigation had not been done by the police. For this kind of
grievance, the remedy lies under Sections 36, CrPC and Section
154[3], CrPC before the Police Officers concerned at first, and if that
is of no avail, under Section 156[3], CrPC before the Magistrate or by
filing a criminal complaint under Section 200, CrPC and not by filing a
writ petition or a petition under Section 482, CrPC. It has been
observed that an alternative remedy would not be an absolute bar to
prefer the writ petition but it is equally well settled that if there is an
alternative remedy, the High Court should not ordinarily interfere.
9. It has been observed as settled by the Hon'ble Supreme Court
of India in Sakiri Vasu [supra] that there was an implied power in
the Magistrate under Section 156[3], CrPC to order registration of a
criminal offence and/or to direct the Officer In-Charge of the
concerned Police Station to hold a proper investigation and take all
such necessary steps that might be necessary for ensuring a proper
investigation including monitoring of the same.
10. It is also apt to refer to the following observations of the
Hon'ble Supreme Court of India in Sudhir Bhaskarrao vs. Hemant
Yashwant Dhage, reported in [2016] 6 SCC 277, :-
2. This Court has held in Sakiri Vasu vs. State of U.P., 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. If such an application under Section 156[3] CrPC
Page 6 of 10
is made and the Magistrate is, prima facie, satisfied, he can
direct the FIR to be registered, or if it has already been
registered, he can direct proper investigation to be done which
includes in his discretion, if he deems it necessary,
recommending change of investigating officer, so that a proper
investigation is done in the matter. We have said this in Sakiri
Vasu case 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.
4. In view of the settled position in Sakiri Vasu case, the
impugned judgment of the High Court cannot be sustained and
is hereby set aside. The Magistrate concerned is directed to
ensure proper investigation into the alleged offence under
Section 156[3], CrPC and if he deems it necessary, he can
also recommend to the SSP/SP concerned a change of the
investigating officer, so that a proper investigation is done. The
Magistrate can also monitor the investigation, though he
cannot himself investigate [as investigation is the job of the
police]. Parties may produce any material they wish before the
Page 7 of 10
Magistrate concerned. The learned Magistrate shall be
uninfluenced by any observation in the impugned order of the
High Court.
11. The Code of Criminal Procedure, 1973 has since been replaced
by the Bharatiya Nagarik Suraksha Sanhita, 2023 ['the BNSS', for
short]. The provisions contained in Section 175, BNSS is akin to the
provisions contained in Section 156, CrPC.
12. Section 173 [4] and Section 175 [3] of the BNSS read as
under :-
173. Information in cognizable cases -
[1] * * * * * * * * *
[2] * * * * * * * * *
[3] * * * * * * * * *
[4] Any person aggrieved by a refusal on the part of an officer
in charge of a police station to record the information referred
to in sub-section [1], may send the substance of such
information, in writing and by post, to the Superintendent of
Police concerned who, if satisfied that such information
discloses the commission of a cognizable offence, shall either
investigate the case himself or direct an investigation to be
made by any police officer subordinate to him, in the manner
provided by this Sanhita, and such officer shall have all the
powers of an officer in charge of the police station in relation to
that offence failing which such aggrieved person may make an
application to the Magistrate.
175. Police Officer's power to investigate cognizable case
-
[1] * * * * * * * * *
Page 8 of 10
[2] * * * * * * * * *
[3] Any Magistrate empowered under Section 210 may, after considering the application supported by an affidavit made under sub-section [4] of Section 173, and after making such inquiry as he thinks necessary and submission made in this regard by the police officer, order such an investigation as above-mentioned.
[4] * * * * * * * * *
13. In view of such settled position of law and the fact situation obtaining in the case, this Court is not of the considered view that there is necessity to proceed further with the writ prayer with regard to the petitioner's contention regarding improper investigation. It is observed that the petitioner has the liberty to avail the remedy under Section 173[4] read with Section 175, BNSS to approach the jurisdictional Magistrate by following the procedure laid down in those provisions. The petitioner is also at liberty to produce any supporting material with regard to the claim that proper investigation is not being done in connection with Golaghat Police Station Case no. 64/2025.
14. The other relief sought for by the petitioner is in the form of a direction to the State respondents to provide police protection to the petitioner and his family members. In this connection, a detail report dated 02.02.2024 from the respondent no. 6 was placed before the Court through the learned State Counsel. Taking note of the submissions of the learned Senior Counsel appearing for the petitioner and the State Counsel to the effect that no subsequent incident has been reported till date, this Court is of the considered view that no further observation is required to be made with regard to the said relief. It is, however, observed that in the event there arises any cause of action in future for the petitioner to seek Police protection in view of any threat perception of serious nature, the Page 9 of 10 petitioner would be at liberty to seek recourse, as permissible under the law.
15. With the observations made above, the writ petition is disposed of.
JUDGE Comparing Assistant Digitally signed by Ananta Konwar Date: 2026.05.14 14:28:15 +05'30' Page 10 of 10