Gauhati High Court
Sikhamoni Saikia vs The State Of Assam And 3 Ors on 6 May, 2026
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/10
GAHC010079812026
2026:GAU-AS:6531
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2318/2026
SIKHAMONI SAIKIA
W/O - SHIV PRASAD POUDEL, D/O - SRI BIPIN SAIKIA, R/O- BIPIN PHUKAN
NAGAR WARD NO. 3, P.O. AND P.S. - GOLAGHAT DIST. - GOLAGHAT,
ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE PUBLIC PORSECUTOR, GOVT. OF ASSAM
2:THE OFFICER-IN-CHARGE
OF GOLAGHAT POLICE OUT POST.
3:THE OFFICER-IN-CHARGE
OF GOLAGHAT SADAR POLICE STATION.
4:SHIV PRASAD POUDEL
S/O - SRI TARA PRASAD POUDEL R/O - BIPIN PHUKAN NAGAR WARD NO.
- 03
P.O.
P.S. AND DISTRICT - GOLAGHAT
ASSAM (ASSTT. TEACHER
HINDI HIGH SCHOOL
GOLAGHAT TOWN
DIST. - GOLAGHAT
ASSA
Advocate for the Petitioner : MS B R A SULTANA, LEGAL AID COUNSEL
Advocate for the Respondent : GA, ASSAM,
Page No.# 2/10 BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT & ORDER Date : 06.05.2026 Heard Ms. B.R.A. Sultana, learned Legal Aid Counsel for the petitioner and Mr. H. Sharma, learned Additional Senior Government Advocate for the respondent nos. 1, 2 & 3.
2. The petitioner has instituted the present writ petition under Article 226 of the Constitution of India seeking a direction to the respondent nos. 2 & 3 to arrest the respondent no. 4 and to recover a minor girl.
3. The projected case of the petitioner, in brief, is that her husband, who has been arraigned as the party-respondent no. 4 in this writ petition, is an Assistant Teacher of Golaghat Town Hindi High School. Alleging infidelity against the respondent no. 4, the petitioner had lodged a First Information Report [FIR] before the Officer In-Charge, Golaghat Police Station on 24.03.2025. It was inter-alia alleged that the respondent no. 4 had made a minor girl, whose date of birth is 03.05.2008, to elope with him on 28.02.2025, and thereafter, the respondent no. 4 started living with her somewhere, treating the minor girl, who was a student of Class-X, as his wife. The petitioner had alleged that the respondent no. 4 was assisted in the process by the parents of the minor girl. It had been alleged that by such act of the respondent no. 4, the lives of the petitioner and her children had been spoiled. The petitioner had further alleged that the Headmaster of the Hindi High School had illegally made Birth Certificates to change the date of birth of the minor girl in the Admit Card issued by the Assam Education Council.
4. On receipt of the FIR, the Officer In-Charge, Golaghat Police Station registered the same as Golaghat Police Station Case no. 64/2025 under Sections 61[2]/318[3]/316[4]/336[2] of the Bharatiya Nyaya Sanhita, 2023. It may be stated that on receipt of the FIR, initially, a General Diary [G.D.] Entry vide Golaghat Police Station G.D. Entry no. 21 dated 24.03.2025 was registered and a Woman Sub-Inspector [WSI] of Police Page No.# 3/10 was instructed to conduct an enquiry into the matter. Subsequently, the Officer In-Charge, Golaghat Police Station registered the FIR on 06.04.2025 and started investigation into the case.
5. The petitioner has raised a grievance to the effect that after registration of the case, no action had been initiated by police against the respondent no. 4 who has committed the offence of bigamy and in the process, spoiled the life of a minor girl. The respondent no. 2 and the respondent no. 3 have not been able to arrest the respondent no. 4 to recover the minor girl till date. It is in such background, the petitioner has to file the instant writ petition.
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 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 Page No.# 4/10 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 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 Page No.# 5/10 277, :-
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 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 Page No.# 6/10 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 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 No.# 7/10
[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. The offence under Section 316[4], BNS is a cognizable and non-bailable offence and it is punishable with imprisonment for seven years and fine. The offence under Section 318[3], BNS is a non-cognizable and bailable offence and it is punishable with imprisonment for five years, or fine, or both. The offence defined under Section 336[2], BNS is a non-cognizable and bailable offence and it is punishable with imprisonment for two years, or fine, or both.
The offence under Section 61[2], BNS is in connection with criminal conspiracy. Therefore, it is only the offence under Section 316[4], BNS out of the offences for which the FIR lodged by the petitioner registered as Golaghat Police Station Case no. 64/2025 is a cognizable and non- bailable offence and it is punishable with imprisonment with a maximum imprisonment of seven years.
14. Section 35[1][b], BNSS has provided that any police officer may without an order from a Magistrate and without a warrant, arrest any person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely :- [i] the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; [ii] the police officer is satisfied that such arrest is necessary - [a] to prevent such person from committing any further offence; or [b] for proper investigation of the offence; or [c] to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or [d] to prevent such Page No.# 8/10 person from making any inducement, threat or promise to any person acquinted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or [e] as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing. It has been provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
15. The provision of Section 35[1][b], BNSS is pari materia to provision of Section 41[1][b], CrPC.
16. It is a settled proposition that it is the obligation and duty of the police to investigate into the crime and the Courts ordinarily ought not to interfere and guide the investigating agency as to in what manner the investigation has to proceed and be carried out.
17. With regard to the provision of Section 41, CrPC, the Hon'ble Supreme Court in the case of M.C. Abraham vs. State of Maharashtra, [2003] 2 SCC 649, has observed as under :-
14. [.....] Section 41 of the Code of Criminal Procedure provides for arrest by a police officer without an order from a Magistrate and without a warrant.
The section gives discretion to the police officer who may, without an order from a Magistrate and even without a warrant, arrest any person in the situations enumerated in that section. It is open to him, in the course of investigation, to arrest any person who has been concerned with any cognizable offence or against whom reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned. Obviously, he is not expected to act in a mechanical manner and in all cases to arrest the accused as soon as the report is lodged. In appropriate cases, after some investigation, the Page No.# 9/10 investigating officer may make up his mind as to whether it is necessary to arrest the accused person. At that stage the court has no role to play. Since the power is discretionary, a police officer is not always bound to arrest an accused even if the allegation against him is of having committed a cognizable offence. Since an arrest is in the nature of an encroachment on the liberty of the subject and does affect the reputation and status of the citizen, the power has to be cautiously exercised. It depends inter alia upon the nature of the offence alleged and the type of persons who are accused of having committed the cognizable offence. Obviously, the power has to be exercised with caution and circumspection.
* * * * * * * * * *
32. It is not necessary that every investigation should result in arrest, seizure of the property and ultimately in filing of the charge sheet. The police, in exercise of its statutory power coupled with duty, upon investigation of a case, may find that a case is made out requiring it to file charge sheet or may find that no case as such is made out [......].
18. In view of the afore-stated provision contained in Section 35[1][b], BNSS and the observation made in M.C. Abraham [supra], it is evidently clear that no direction to police to arrest the respondent no. 4, as sought for by the petitioner, in the present writ petition, is called for.
19. The other grievance of the petitioner is that the minor girl has not been recovered till date despite initiation of investigation on 06.04.2025. Such an alleged failure could, at best, be attributable to an improper investigation. For redressal of such a grievance that proper investigation has not been conducted, it is open for the petitioner as an aggrieved person to file an application under Section 175[3], BNSS read with Section 173[4], BNSS by following due formalities before the jurisdictional Magistrate and if the petitioner does so, the Magistrate can ensure, if prima facie satisfied, a proper investigation in the matter and he can also monitor the investigation.
Page No.# 10/10
20. In view of such settled position of law and the fact situation obtaining in the case, this Court is not entertaining the writ petition. While not entertaining the present writ petition, it is observed that the petitioner has the liberty to avail those two remedies under the BNSS by approaching the Superintendent of Police first and then, 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.
JUDGE Digitally signed by Simanta Das DN: c=IN, o=Personal, postalCode=783384, l=Bongaigaon, st=Assam, street=TownAbhayapuri, Ward No4 Tengnamari , Simanta Das Bongaigaon, Bongaigaon Assam India 783384, title=8727, 2.5.4.20=caa9a1c0be943e0740ca5dfbbfb8695db6814b46202926d f0aea3036caed4e3c, serialNumber=d950a33227bd4a5ce185958e9d34bdfd7c09a2ca0a 1f463628d94fa581ffcb03, [email protected], cn=Simanta Das Date: 2026.05.12 18:08:34 +05'30' Comparing Assistant