correct litigation strategy- feedback needed

943 votes

your brother has been missing since 2013 no fir or effective investigation your lawyer plans to file a written to high court but it's better to lodge a fir under various sections of bnss will affect the remedy under the high court

Advocate Spiti Sarkar LawRato

632 votes

In this situation, the safer legal strategy is to first exhaust the statutory remedy before the Magistrate under BNSS, unless there is a special urgency requiring constitutional intervention. Under BNSS, the old Section 154 CrPC procedure is now substantially covered by Section 173 BNSS: information disclosing a cognizable offence must be recorded as an FIR; if the police station refuses, the informant may approach the Superintendent of Police under Section 173(4) BNSS; and if even that fails, the proper remedy is an application before the Magistrate under Section 175(3) BNSS for direction to register FIR and investigate. The Allahabad High Court has recently been treating such writ petitions for FIR registration as generally not maintainable where this alternate remedy exists, and has observed that the remedy lies before the Judicial Magistrate under Section 175(3) BNSS, supported by affidavit. However, a direct Article 226 writ is not legally barred. The High Court has wide powers, especially where there is gross police inaction, disappearance of a person, suspected abduction/murder/trafficking, violation of Article 21, or need for a habeas corpus / mandamus / SIT-CBI investigation. But for a prayer limited to “register FIR and investigate,” the High Court may decline interference on the ground of alternate remedy and ask you to approach the Magistrate first. This is consistent with the principle in Sakiri Vasu v. State of U.P., where the Supreme Court held that the Magistrate’s power to order investigation is the ordinary remedy when police fail to act, and with Lalita Kumari v. Govt. of U.P., where FIR registration was held mandatory if the information discloses a cognizable offence. Recent Allahabad High Court decisions also show that the Magistrate is not mechanically bound to order FIR in every case; he may conduct inquiry and may even treat the application as a complaint, depending on facts. Therefore, practically, file a detailed Section 175(3) BNSS application first, annexing the GD entry, all representations, postal receipts, missing-person details, suspicion, last-seen facts, call records, photographs, and a prayer for FIR, investigation by senior officer/SIT, CDR, CCTV, witness statements, and progress reports. If the Magistrate rejects it or police still remain inactive despite an order, then Article 226 becomes much stronger. If the High Court declines the writ only due to alternate remedy, it should not prejudice future Magistrate proceedings; rather, you can rely on that order to show that the High Court itself left the statutory remedy open.

Advocate Lalit Saxena LawRato

694 votes

Your concern is serious. Since your brother has been missing since 2013 and police registered only a GD without FIR for 13 years, you have strong grounds for judicial intervention. 1. Approach Magistrate First: As per Section 173(3) of BNSS [earlier 156(3) CrPC], you should first file an application before the jurisdictional Magistrate for directions to register FIR and monitor investigation. This is the statutory 'alternate remedy' available. 2. Direct Writ Under Article 226: You can directly approach Allahabad High Court under Article 226 for 'Habeas Corpus' or 'Mandamus' seeking CBI investigation or FIR registration. High Courts entertain writs directly in cases of inordinate delay, police inaction, or violation of fundamental rights. 13 years of inaction is a valid ground to bypass alternate remedy. 3. Effect of HC Dismissal: If High Court declines writ citing 'alternate remedy available', it does not bar you from approaching the Magistrate later. The dismissal is not on merits. You can still file 173(3) BNSS application. However, if HC dismisses on merits after hearing, then it may affect. Strategy: Best to first file 173(3) BNSS before Magistrate. If Magistrate fails to give relief, then writ becomes stronger. Simultaneous with writ, you can also approach NHRC or State Human Rights Commission. Keep all representation copies and postal receipts as proof of 13 years of follow-up.

Advocate Shamma Perween LawRato

679 votes

since it is already registered on GD now question arises what has been shown on GD, missing person report or else depending upon that can proceed to file mandamus writ if the case second happens. filing any 226 will not work

Advocate Hariom Dubey LawRato

867 votes

You should approach the Magistrate first under Section 175(3) of the BNSS. 1. Exhaust Local Remedies: Courts generally require you to use available legal paths before coming to the High Court. 2. Effective Power: Under Section 175(3) of BNSS , a Magistrate can order the police to register an FIR. 3.Case Monitoring: The Magistrate has the power to monitor the investigation to ensure it is done properly. 4.High Court’s Stance: The Allahabad High Court often rejects direct petitions if the petitioner has not gone to the Magistrate first. No, a dismissal by the High Court will not negatively affect your case before the Magistrate.

Advocate Sapna Chaudhary LawRato