Patna High Court
Binit Kumar (Assistant Engineer Under … vs The State Of Bihar Through Chief … on 10 March, 2026
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.1419 of 2019
Arising Out of PS. Case No.- Year-0 Thana- District- Gaya
======================================================
Binit Kumar (Assistant Engineer under Suspension), S/o Suraj Prasad, Water
Resources Department, Chief Engineer Office, Katari Hill Road Gaya, R/o-
Surya Niwas, Tilha Mahavir Asthan, Beldari Tola, P.S.- Civil Line, Distt.-
Gaya
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Secretariat
Building, Patna
2. The Director General of Police, Government of Bihar, Secretariat Building,
Patna
3. The Inspector General of Police, Patna, Bihar
4. The Deputy Inspector General of Police, Patna, Bihar
5. The Senior Superintendent of Police, Patna, Bihar
6. The Superintendent of Police, Patna, Bihar Bihar
7. The Officers-in-charge, Beur P.S., Patna, Bihar
8. Smt. Prabha Singh, w/o Shri P.C Chowdhary, 1st Floor, H. No. 30, Opp.
Nam Ghar, Madhav Dev Pur, Rehabari, Guwahati
9. Kiran Kumari, w/o Brajendra Kumar, R/o- Rajkiya Polytechnic, Barauni,
Distt.- Begusarai, Bihar
10. Vibha Sinha, w/o Vijay Kumar Singh, Zircon Computer, Lal Kothi
Compound (Next to Hotel Royal Surya), P.S.- Civil Lines, Gaya, Bihar
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Prakash Tiwari, Advocate.
For the State : Mr. Sheo Shankar Prasad, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV JUDGMENT
Date : 10.03.2026
The present criminal writ petition has been preferred
by the petitioner seeking issuance of appropriate writ or order
directing the respondent police authorities to find out/trace out
the father of the petitioner, namely, Suraj Prasad Singh, who is
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missing since 19.03.2013.
2. The factual background of the present writ petition
is that on 19.03.2013, the wife of the Petitioner filed a missing
report to the officer incharge, Beur police station, Patna, stating
that her father-in-law, Shri. Suraj Prasad Singh has gone missing
and she has suspicion that Prabha Singh, Kiran Kumari and
Vibha Sinha have abducted him with intent to get registration of
sale deed in regard to the house of her father-in-law, Suraj
Prasad Singh, who is 85 years old. The persons against whom
the Petitioner has doubt for abduction are his sisters, who have
eagle eye on the property of his father as per allegation made by
the petitioner.
3. It is further alleged in the petition that the three
sisters, who are Respondent nos.8, 9 and 10 herein, have given
false affidavit in the registration office at Purnia that the
Petitioner has died on 12.04.2010. This false affidavit has been
given by Respondent no.8, 9 and 10 while some property of the
Petitioner at Purnia were being alienated. It is further stated in
the petition that despite several requests to the officer-in-charge
of Beur police station and higher police officers, neither father
of the Petitioner was recovered nor any FIR has been lodged. It
is also stated that no police official of the Beur Police station
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has ever visited Gowhati to find out or trace his father-in-law as
is evident from the information received under the R.T.I.
4. The matter is still at the stage of admission.
5. I heard learned counsel for the Petitioner and
learned counsel for the State.
6. Learned counsel for the Petitioner submits that in
view of failure of the police to trace out his father till date and
failure of the police to lodge FIR, the Petitioner has been
constrained to move this Court for want of any efficacious
alternative remedy.
7. However, learned counsel for the State vehemently
submits that the the petition is not maintainable, in view of the
availability of the efficacious alternative remedy to the
Petitioner. As per allegation it is a case of missing, though the
Petitioner has suspicion that his father has been abducted by his
sisters with intent to grab his property. But there is no clear case
established as per the averment made in the missing report or in
the writ petition that the father of the Petitioner is in illegal
confinement by any state authority or individual. At most, it is a
case for lodging of FIR and conducting proper investigation by
the police. But for this, the Petitioner has efficacious alternative
remedy by way of application under Section 156(3) Cr.PC/
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175(3) B.N.S.S. read with Section 97 Cr.PC/Section 100
B.N.S.S.
8 I considered the submission advanced by both the
parties and perused the material on record.
9. As per the record, the father of the petitioner has
been missing and the Petitioner has suspicion that his sisters
have abducted his father with intent to grab his property. But
there is no clear case of illegal confinement of his father either
by any state authority or individual. The grievance of the
Petitioner is on account of failure of the police to lodge FIR and
recover the victim/father of the Petitioner.
10. Here I find that efficacious alternative remedy is
available to the petitioner by way of moving appropriate
application before the Jurisdictional Judicial Magistrate.
Section 156(3) Cr.PC/ 175(3) B.N.S.S. read with Section 97
Cr.PC/Section 100 B.N.S.S. are wide enough covering the
power of the Jurisdictional Magistrate to direct the Officer-in-
charge of concerned police station to take all such necessary
steps that may be necessary for ensuring proper investigation
including monitoring the same. Section 156(3) Cr.PC
[equivalent to Section 175(3) B.N.S.S.] reads as follows:
” Any Magistrate empowered under section 190 may
order such an investigation as above-mentioned.”
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11. Section 97 Cr.PC/Section 100 B.N.S.S. reads as
follows:
“If any District Magistrate, Sub-divisional
Magistrate or Magistrate of the first class has
reason to believe that any person is confined under
such circumstances that the confinement amounts
to an offence, he may issue a search-warrant, and
the person to whom such warrant is directed may
search for the person so confined; and such search
shall be made in accordance therewith, and the
person, if found, shall be immediately taken before
a Magistrate, who shall make such order as in the
circumstances of the case seems proper.”
12. Section 156(3) Cr.PC/ 175(3) B.N.S.S. empowers
the Judicial Magistrate to order lodging of FIR and proper
investigation.
13. Such view is settled by Hon’ble Supreme Court in
Sakiri Vasu v. State of U.P., (2008) 2 SCC 409, where it has
been held as follows:-
“11. In this connection we would like to state that if a
person has a grievance that the police station is not
registering his FIR under Section 154 CrPC, then he can
approach the Superintendent of Police under Section 154(3)
CrPC by an application in writing. Even if that does not
yield any satisfactory result in the sense that either the FIR
is still not registered, or that even after registering it no
proper investigation is held, it is open to the aggrieved
person to file an application under Section 156(3) CrPC
before the learned Magistrate concerned. If such an
application under Section 156(3) is filed before the
Magistrate, the Magistrate can direct the FIR to be
registered and also can direct a proper investigation to be
made, in a case where, according to the aggrieved person,
no proper investigation was made. The Magistrate can also
under the same provision monitor the investigation to ensure
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…………………………………………………………….
15. Section 156(3) provides for a check by the Magistrate
on the police performing its duties under Chapter XII CrPC.
In cases where the Magistrate finds that the police has not
done its duty of investigating the case at all, or has not done
it satisfactorily, he can issue a direction to the police to do
the investigation properly, and can monitor the same.
16. The power in the Magistrate to order further
investigation under Section 156(3) is an independent power
and does not affect the power of the investigating officer to
further investigate the case even after submission of his
report vide Section 173(8). Hence the Magistrate can order
reopening of the investigation even after the police submits
the final report, vide State of Bihar v. J.A.C. Saldanha
[(1980) 1 SCC 554].
17. In our opinion Section 156(3) CrPC is wide enough to
include all such powers in a Magistrate which are necessary
for ensuring a proper investigation, and it includes the
power to order registration of an FIR and of ordering a
proper investigation if the Magistrate is satisfied that a
proper investigation has not been done, or is not being done
by the police. Section 156(3) CrPC, though briefly worded,
in our opinion, is very wide and it will include all such
incidental powers as are necessary for ensuring a proper
investigation.
18. It is well settled that when a power is given to an
authority to do something it includes such incidental or
implied powers which would ensure the proper doing of that
thing. In other words, when any power is expressly granted
by the statute, there is impliedly included in the grant, even
without special mention, every power and every control the
denial of which would render the grant itself ineffective.
Thus where an Act confers jurisdiction it impliedly also
grants the power of doing all such acts or employ such
means as are essentially necessary for its execution.
……………………………………………………………
24. In view of the above mentioned legal position, we are of
the view that although Section 156(3) is very briefly
worded, there is an implied power in the Magistrate under
Section 156(3) Cr.PC to order registration of a criminal
offence and/or to direct the officer in charge of the police
station concerned to hold a proper investigation and take all
such necessary steps that may be necessary for ensuring a
proper investigation including monitoring the same. Even
though these powers have not been expressly mentioned in
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7/20Section 156(3) Cr.PC, we are of the opinion that they are
implied in the above provision.
25. We have elaborated on the above matter because we
often find that when someone has a grievance that his FIR
has not been registered at the police station and/or a proper
investigation is not being done by the police, he rushes to
the High Court to file a writ petition or a petition under
Section 482 Cr.PC. We are of the opinion that the High
Court should not encourage this practice and should
ordinarily refuse to interfere in such matters and relegate the
petitioner to his alternating remedy, first under Section
154(3) and Section 36 Cr.PC before the police officers
concerned, and if that is of no avail, by approaching the
Magistrate concerned under Section 156(3).
26. If a person has a grievance that his FIR has not been
registered by the police station his first remedy is to
approach the Superintendent of Police under Section 154(3)
Cr.PC or other police officer referred to in Section 36 Cr.PC.
If despite approaching the Superintendent of Police or the
officer referred to in Section 36 his grievance still persists,
then he can approach a Magistrate under Section 156(3)
Cr.PC instead of rushing to the High Court by way of a writ
petition or a petition under Section 482 Cr.PC. Moreover, he
has a further remedy of filing a criminal complaint under
Section 200 Cr.PC. Why then should writ petitions or
Section 482 petitions be entertained when there are so many
alternative remedies?
27. As we have already observed above, the Magistrate has
very wide powers 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). The
High Court should discourage the practice of filing a writ
petition or petition under Section 482 CrPC simply because
a person has a grievance that his FIR has not been registered
by the police, or after being registered, proper investigation
has not been done by the police. For this grievance, the
remedy lies under Sections 36 and 154(3) before the police
officers concerned, 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.
(Emphasis supplied)
14. Section 97 Cr.PC/Section 100 B.N.S.S. empowers
the Judicial Magistrate to issue search warrant to recover any
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person if he has reason to believe that such person is confined
under such circumstances that the confinement amounts to an
offence and if the person is recovered, he shall be immediately
taken before a Magistrate.
15. Search and recovery of the victim of any offence is
part of investigation and police is duty bound to do proper
investigation, if required. The Jurisdictional Magistrate can
issue search warrant for recovery of the victim and he can even
monitor the efforts being taken by the police to search and
recover the victim.
16. In Showkat Ahmad Mir vs. Nighat Begum case,
High Court of Jammu and Kashmir and Ladakh at Srinagar
in Case No. CRM(M) No. 240 of 2022, has held as follows:-
“8) A perusal of the aforesaid provision reveals that a
Magistrate of the first class is vested with power to issue a
search warrant in respect of a person who is confined
under such circumstances that his/her confinement
amounts to an offence. After the production of confined
person before the Magistrate, an order, as is deemed
proper by the Magistrate in the circumstances, has to be
passed.
9) Thus, two things are essential before a Magistrate can
issue a search warrant under Section 97 of Cr. P. C; one is
that a person should be confined and second is that the
confinement of such person should amount to an offence.”
(Emphasis supplied)
17. In Jaishree v. State of U.P., (2024 SCC OnLine
All 162), High Court of Allahabad has held as follows:-
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9/20“9. The power to direct search for persons wrongfully
confined is provided under Section 97 of the Criminal
Procedure Code, 1973 whereas Section 98 provides the
procedure to compel restoration of abducted females. In a
situation where the husband seeks to assert that the wife,
without reasonable cause, is refusing to return to her
matrimonial home, it would be open for him to seek the
remedy of restitution of conjugal rights under Section 9 of
the Hindu Marriage Act, 1955. The recourse to the latter
remedy may be sought where the detention does not
amount to an offence and to the former if it does. While
invoking either of these remedies, all the issues relating to
facts can be agitated and examined, whereas a writ of
habeas corpus may not be issued where facts are disputed
or are not clearly established.
10. The exercise of the extraordinary jurisdiction for
issuance of writ of habeas corpus would be dependent on
the jurisdictional fact where the petitioner establishes a
prima facie case that the detention is unlawful, which
apparently is not demonstrated from the facts which are on
record in the present case.
11. In view of the other remedies available for the
purpose, under criminal and civil law, exigence of a writ
of habeas corpus at the behest of a husband to regain his
wife would be rare and may not be available as a matter of
course and the power in this regard may be exercised only
when a clear case is made out.”
(Emphasis supplied)
18. Here, it would also profitable to refer to some
judgments delivered by some High Courts where victims were
missing but there was no allegation of any illegal confinement.
Here, the High Courts have held that in such circumstances, the
writ of habeas corpus is not maintainable and such missing
cases are required to be registered under penal provisions as
well as Code of Criminal Procedure to be dealt with as regular
cases by the competent Court of Law and the extraordinary
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jurisdiction of Constitutional Courts cannot be invoked for the
purpose of dealing with such cases.
19. In Selvaraj v. State, (2018 SCC OnLine Mad
14215), High Court of Madras has held as follows:-
“13. The Courts are frequently witnessing that
Man/Women Missing cases are mostly converted as
Habeas Corpus Petitions under Article 226 of the
Constitution of India. Mainly, two aspects are to be
considered in such cases. Right of every citizen for free
movement is also enshrined in Part III of the Constitution
as a fundamental right. Personal liberty means that any
person on attaining the age of majority is at liberty to
move to a place of his choice. It is not necessary that a
person has to inform each and every one of his desire or
decision to his kith and kin or to the other persons. Way of
life is also a part of personal liberty and a citizen of this
Country shall choose a path or way of his own choice for
leading his life as per his own mind set and wishes.
Merely because a person was not found in his usual
dwelling place, that does not mean that always an element
of “illegal detention” is involved. For establishing an
“illegal detention”, it is necessary that substantial
materials are to be furnished by the person, who
approaches the Courts by filing Habeas Corpus Petitions.
Thus, the personal liberty includes free movement of a
citizen of his own choice and no other person has got any
right to interfere with the right of a person to move freely
anywhere at his own choice. A Man/Women voluntarily
moving from their dwelling house to any other place of
his/her own choice, then his/her family members or other
person concerned with such a person can file a case for
Man missing and on receipt of any such complaint, the
Police having jurisdiction has to investigate the matter in
the manner known to law. Under these circumstances,
question of entertaining a Habeas Corpus Petition by the
High Courts would not arise at all. Thus, it is a condition
precedent that a person filing a Habeas Corpus Petition
should establish that there is a prima facie case of “illegal
detention” or atleast a strong and reliable suspicion in
respect of such “illegal detention”. In the absence of any
of these illegal ingredients, no Habeas Corpus petition can
be entertained under Article 226 of the Constitution of
India.
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11/20………………………………………………………………………………….
20. The constitutional Courts across the country
predominantly held in catena of judgments that
establishing a ground of “illegal detention” and a strong
suspicion about any such “illegal detention” is a condition
precedent for moving a Habeas Corpus petition and the
Constitutional Courts shall be restrained in entertaining
such Habeas Corpus petition, where there is no allegation
of “illegal detention” or suspicion about any such “illegal
detention”. Man/Women missing cases cannot be brought
under the provision of the Habeas Corpus petition.
Man/Women missing cases are to be registered under the
regular provisions of the Penal Code, 1860 and the Police
officials concerned are bound to investigate the same in
the manner prescribed under the Code of Criminal
Procedure. Such cases are to be dealt as regular cases by
the competent Court of Law and the extraordinary
jurisdiction of the Constitutional Courts cannot be invoked
for the purpose of dealing with such Man/Women Missing
cases ”
(Emphasis supplied)
20. In Mamonikakoty v. State of Assam, (2021 SCC
OnLine Gau 2584), Gauhati High Court has held as follows:-
“15. On overall consideration of the cases referred herein
before, it appears that the Constitutional Courts across the
Country have held that establishing a ground of illegal
detention and a strong suspicion about any such illegal
detention is a condition precedent for moving a habeas
corpus petition. Thus, the legal proposition would be that
the Constitutional Courts would not entertain habeas
corpus petitions where there is no allegation of illegal
detention or suspicion regarding illegal detention. Thus,
missing person cases would not come within the ambit of
a habeas corpus petition, but such cases are required to be
registered under the regular provisions of the Penal Code,
1860 and the police and other investigating agencies
would investigate the same in the manner prescribed
under the Code of Criminal Procedure. ”
(Emphasis supplied)
21. In Jaymati Sahu v. State of Chhattisgarh, (2022
SCC OnLine Chh 737), High Court of Chhattisgarh at Bilaspur
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has held as follows:-
“14. Thus, the constitutional Courts across the country
predominantly held in catena of judgments that
establishing a ground of “illegal detention” and a strong
suspicion about any such “illegal detention” is a condition
precedent for moving a Habeas Corpus petition and the
Constitutional Courts shall not entertain a Habeas Corpus
petition, where there is no allegation of “illegal detention”
or suspicion about any such “illegal detention”. Cases of
missing persons cannot be brought under the provision of
the Habeas Corpus petition. Cases of missing persons are
to be registered under the regular provisions of the Penal
Code, 1860 and the Police officials concerned are bound
to investigate the same in the manner prescribed under the
Code of Criminal Procedure. Such cases are to be dealt as
regular cases by the competent Court of Law and the
extraordinary jurisdiction of the Constitutional Courts
cannot be invoked for the purpose of dealing with such
cases of missing persons.
15. It is seen in the instant case that the petitioner has not
made any averment in the entire writ petition that her
daughter Juhi Sahu has been illegally detained either by
the official respondents or by the respondent No. 7.
Averrment made in the writ petition, as a whole, do not
disclose the illegal detention of Juhi Sahu by private or
official respondents. The petitioner only apprehends that
the respondent No. 7 and his family members might have
murdered Juhi Sahu. As such, unlawful detention of the
petitioner’s daughter, either by private person or
custody/control/detention by the respondents is not
pleaded, established or urged before this Court, only
apprehension of alleged criminal act by respondent No. 7
and his family members has been expressed. As already
observed in the above-stated paragraphs, a writ of habeas
corpus is not to be issued as a matter of course and clear
grounds must be made out for issuance of a writ of habeas
corpus. In the instant case, the petitioner has miserably
failed to plead and establish the necessary ingredients for
issuance of the writ of habeas corpus and as such, the
extraordinary writ cannot be issued at the instance of the
petitioner for production of a missing person, as it is the
case of the petitioner herself that her daughter is missing
since 10-2-2019.”
(Emphasis supplied)
22. In Nimananda Biswal v. State of Odisha, (2023
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SCC OnLine Ori 5628), High Court of Orissa at Cuttack
has held as follows:-
“10. Writ of habeas corpus cannot be issued in a casual
and routine manner. Though it is a writ of right, it is not a
writ of course. The writ of habeas corpus is festinum
remedium and power can be exercised in clear case.
Illegal confinement is a pre-condition to issue a writ of
habeas corpus. It cannot be issued in respect of any and
every missing person more so when no named person is
alleged to be responsible for the ‘illegal detention’ of the
person for whose production before the Court, a writ is to
be issued. On the basis of a habeas corpus petition, the
power under Article 226 of the Constitution of India is not
to be exercised for tracing a missing person engaging an
investigating agency empowered to investigate a case
under Cr. P.C.
11. In this case, the petitioner has not established a prima
facie case of ‘unlawful detention’ of his daughter by any
particular person, rather it is submitted on his behalf that
his daughter has been missing. Therefore, we are of the
considered view that a petition seeking the issuance of the
writ of habeas corpus cannot be entertained to trace out a
missing person and for such purpose, the petitioner can
pursue other effective remedy.”
(Emphasis supplied)
23. In Simmi Bai v. State, (2025 SCC OnLine MP
893), High Court of Madhya Pradesh has held as follows:-
“16. Cases of missing persons cannot be brought under
the provision of the Habeas Corpus petition. Cases of
missing persons are to be registered under the regular
provisions of the Penal Code, 1860 and the Police officials
concerned are bound to investigate the same in the manner
prescribed under the Code of Criminal Procedure. Such
cases are to be dealt as regular cases by the competent
Court of law and the extraordinary jurisdiction of the
Constitutional Courts cannot be invoked for the purpose
of dealing with such cases of missing persons. Thus, the
constitutional Courts across the country predominantly
held in catena of judgments that establishing a ground of
“illegal detention” and a strong suspicion about any such
“illegal detention” is a condition precedent for moving a
habeas corpus petition and the constitutional Courts shall
Patna High Court CR. WJC No.1419 of 2019 dt.10-03-2025
14/20not entertain a habeas corpus petition, where there is no
allegation of “illegal detention” or suspicion about any
such “illegal detention”.
(Emphasis supplied)
24. In Babita v. State of Rajasthan, (2025 SCC
OnLine Raj 5227), High Court of Rajasthan has held as
follows:-
“13. The writ of Habeas Corpus is to secure release of
person illegally detained either by State or a private
individual. A prima facie case of illegal detention has to be
made out for invoking the writ of Habeas Corpus. The
scope of Habeas : orpus has been enlarged with time, but
there cannot be traitjacket formula for interference in writ
in the nature of labeas Corpus. It is a trite law that in
ordinary course the high court should not interfere in writ
jurisdiction, if there is an alternative remedy available.
The writ jurisdiction in the case of a missing person
cannot be invoked as a matter of routine to know the
status of the investigation or on being dissatisfied with the
manner of investigation. Criminal procedure law provides
remedies for supervision of investigation and if required,
for issuance of direction for effective investigation and
such matters are to be dealt with by the competent court of
law.”
(Emphasis supplied)
Availability of Efficacious Alternative Remedy And
Entertainaibility/Maintainability of Writ Petition Under
Article 226 Of The Constitution.
25. Now question arises, whether the writ petition is
maintainable in view of the availability of the efficacious
alternative remedy to the Petitioner. Here, it may be pointed out
that maintainability and entertainability of a writ petition are
distinct concepts. The objection as to maintainability goes to the
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root of the matter and if such objection is found to be of
substance, the Court is rendered incapable of even receiving the
lis for adjudication. However, the question of entertainability is
entirely within the realm of discretion of the High Court, as writ
remedy is discretionary. Writ Petition, despite being
maintainable may be not entertained by a High Court for many
reasons or relief could even be refused to the Petitioner, despite
setting up a sound legal point, if grant of the claimed relief
would not further public interest. It may be further pointed out
that availability of efficacious alternative remedy is not an
absolute bar to maintainability of a writ petition. However, the
Court can still refuse to entertain the writ petition, if the
Petitioner has efficacious alternative remedy as held by Hon’ble
Supreme Court in Godrej Sara Lee Ltd. Vs. Excise and
Taxation Officer-cum-Assessing Authority and Others as
reported in (2023) SCC OnLine SC 95. Relevant paragraph of
the judgment reads as follows:
“4. Before answering the questions, we feel the urge
to say a few words on the exercise of writ powers
conferred by article 226 of the Constitution having come
across certain orders passed by the High Courts holding
writ petitions as “not maintainable” merely because the
alternative remedy provided by the relevant statutes has
not been pursued by the parties desirous of invocation of
the writ jurisdiction. The power to issue prerogative writs
under article 226 is plenary in nature. Any limitation on
the exercise of such power must be traceable in the
Constitution itself. Profitable reference in this regard may
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16/20be made to article 329 and ordainments of other similarly
worded articles in the Constitution. Article 226 does not,
in terms, impose any limitation or restraint on the exercise
of power to issue writs. While it is true that exercise of
writ powers despite availability of a remedy under the
very statute which has been invoked and has given rise to
the action impugned in the writ petition ought not to be
made in a routine manner, yet, the mere fact that the
petitioner before the High Court, in a given case, has not
pursued the alternative remedy available to him/it cannot
mechanically be construed as a ground for its dismissal. It
is axiomatic that the High Courts (bearing in mind the
facts of each particular case) have a discretion whether to
entertain a writ petition or not. One of the self-imposed
restrictions on the exercise of power under article 226 that
has evolved through judicial precedents is that the High
Courts should normally not entertain a writ petition, where
an effective and efficacious alternative remedy is
available. At the same time, it must be remembered that
mere availability of an alternative remedy of appeal or
revision, which the party invoking the jurisdiction of the
High Court under article 226 has not pursued, would not
oust the jurisdiction of the High Court and render a writ
petition “not maintainable”. In a long line of decisions,
this court has made it clear that availability of an
alternative remedy does not operate as an absolute bar to
the “maintainability” of a writ petition and that the rule,
which requires a party to pursue the alternative remedy
provided by a statute, is a rule of policy, convenience and
discretion rather than a rule of law. Though elementary, it
needs to be restated that “entertainability” and
“maintainability” of a writ petition are distinct concepts.
The fine but real distinction between the two ought not to
be lost sight of. The objection as to “maintainability” goes
to the root of the matter and if such objection were found
to be of substance, the courts would be rendered incapable
of even receiving the lis for adjudication. On the other
hand, the question of “entertainability” is entirely within
the realm of discretion of the High Courts, writ remedy
being discretionary. A writ petition despite being
maintainable may not be entertained by a High Court for
very many reasons or relief could even be refused to the
petitioner, despite setting up a sound legal point, if grant
of the claimed relief would not further public interest.
Hence, dismissal of a writ petition by a High Court on the
ground that the petitioner has not availed the alternative
remedy without, however, examining whether an
exceptional case has been made out for such entertainment
Patna High Court CR. WJC No.1419 of 2019 dt.10-03-2025
17/20would not be proper.
(Emphasis supplied)
26. It has been also held by Hon’ble Supreme Court in
Whirlpool Corporation Vs. Registrar of Trade Marks,
Mumbai and Ors. as reported in (1998) 8 SCC 1 that power to
issue prerogative writs under Article 226 of the Constitution is
plenary in nature and is not limited by any other provision of the
Constitution. The High Court has discretion to entertain or not
to entertain a writ petition and the High Court has imposed upon
itself certain restrictions, one of which is that if an effective and
efficacious alternative remedy is available to the Petitioner, the
High Court would not normally exercise its jurisdiction.
However, this restriction is not an absolute bar to
maintainability of the writ petition. The High Court can
entertain the writ petition in the following three contingencies,
namely the writ petition has been filed for enforcement of any
of the Fundamental Rights or where there has been any violation
of Principle of Natural Justice or where the order or proceedings
are wholly without jurisdiction or the vires of an Act is
challenged. The relevant paragraph of the judgments reads as
follows:
“14. The power to issue prerogative writs under
Article 226 of the Constitution is plenary in nature and is
not limited by any other provision of the Constitution.
Patna High Court CR. WJC No.1419 of 2019 dt.10-03-2025
18/20This power can be exercised by the High Court not only
for issuing writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari for
the enforcement of any of the Fundamental Rights
contained in Part III of the Constitution but also for “any
other purpose”.
15. Under Article 226 of the Constitution, the High
Court, having regard to the facts of the case, has a
discretion to entertain or not to entertain a writ petition.
But the High Court has imposed upon itself certain
restrictions one of which is that if an effective and
efficacious remedy is available, the High Court would not
normally exercise its jurisdiction. But the alternative
remedy has been consistently held by this Court not to
operate as a bar in at least three contingencies, namely,
where the writ petition has been filed for the enforcement
of any of the Fundamental Rights or where there has been
a violation of the principle of natural justice or where the
order or proceedings are wholly without jurisdiction or the
vires of an Act is challenged. There is a plethora of case-
law on this point but to cut down this circle of forensic
whirlpool, we would rely on some old decisions of the
evolutionary era of the constitutional law as they still hold
the field.”
(Emphasis supplied)
27. In Radha Krishan Industries vs. State of
Himachal Pradesh and Others as reported in (2021) 6 SCC
771 Hon’ble Supreme Court has further held as follows after
referring to relevant Judicial precedents:
“27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution
to issue writs can be exercised not only for the
enforcement of fundamental rights, but for any other
purpose as well.
27.2. The High Court has the discretion not to
entertain a writ petition. One of the restrictions placed on
the power of the High Court is where an effective alternate
remedy is available to the aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise
where : (a) the writ petition has been filed for the
enforcement of a fundamental right protected by Part III
of the Constitution; (b) there has been a violation of the
Patna High Court CR. WJC No.1419 of 2019 dt.10-03-2025
19/20principles of natural justice; (c) the order or proceedings
are wholly without jurisdiction; or (d) the vires of a
legislation is challenged.
27.4. An alternate remedy by itself does not divest
the High Court of its powers under Article 226 of the
Constitution in an appropriate case though ordinarily, a
writ petition should not be entertained when an efficacious
alternate remedy is provided by law.
27.5. When a right is created by a statute, which itself
prescribes the remedy or procedure for enforcing the right
or liability, resort must be had to that particular statutory
remedy before invoking the discretionary remedy under
Article 226 of the Constitution. This rule of exhaustion of
statutory remedies is a rule of policy, convenience and
discretion.
27.6. In cases where there are disputed questions of
fact, the High Court may decide to decline jurisdiction in a
writ petition. However, if the High Court is objectively of
the view that the nature of the controversy requires the
exercise of its writ jurisdiction, such a view would not
readily be interfered with.
28. These principles have been consistently upheld
by this Court in Chand Ratan v. Durga Prasad, (2003) 5
SCC 399, Babubhai Muljibhai Patel v. Nandlal Khodidas
Barot, (1974) 2 SCC 706] and Rajasthan SEB v. Union of
India, (2008) 5 SCC 632] among other decisions.”
Present Case
28. Coming to the case on hand, I find that the
Petitioner is seeking lodging of FIR and recovery of the
victim/his father, for which efficacious alternative remedy is
available to the Petitioner and there is no pleading or allegation
of any exceptional circumstances warranting interference by this
Court.
29. Under such facts and circumstances it would be
desirable for the Petitioner to move an appropriate application
Patna High Court CR. WJC No.1419 of 2019 dt.10-03-2025
20/20
under Section 156(3) CrPC/Section 175(3) B.N.S.S. before
Judicial Magistrate for lodging of FIR and proper investigation
including recovery of the victim.
30. Hence, the present writ petition is dismissed with
liberty to the petitioner to move the jurisdictional magistrate
with an appropriate application. In case, such application is
moved, the concerned magistrate is duty bound to pass order as
per law.
(Jitendra Kumar, J.)
S.Ali/-
AFR/NAFR AFR CAV DATE 26.02.2026 Uploading Date 10.03.2026 Transmission Date 10.03.2026