The petitioners went straight to the High Court, asking it to hand the investigation of an alleged assault to the CBI. The Court held that they had come to the wrong door, and too soon. Where a citizen alleges an offence, the law lays down a path, a complaint to the police, then to the Superintendent, then to the Magistrate, and the writ jurisdiction is not to be used to leap over it at the first instance. Worse for the petitioners, the conduct they described, being beaten and dragged by unarmed men, amounted at most to the non-cognizable offence of hurt, in which the police cannot investigate at all and only a Magistrate can act. On that footing, the petition was dismissed as not maintainable.
New Delhi: The Delhi High Court has dismissed as not maintainable a writ petition by a group of advocates seeking a direction to the CBI, or another independent agency, to register an FIR and conduct a monitored investigation into an alleged assault on protesting advocates at the premises of the Bar Council of India, holding that the petitioners have an alternate efficacious remedy available to them and cannot invoke the writ jurisdiction at the first instance [Kunal Yadav and Others v. Manan Kumar Mishra and Others].
Justice Girish Kathpalia, deciding the petition, in which Senior Advocate Prashant Bhushan appeared for the petitioners, on the preliminary question of maintainability, held that no case was made out for issuing a mandamus.
The background
The petition arose out of events surrounding a demonstration by young advocates outside the Bar Council of India office in August 2026, itself linked to a wider controversy over a BCI directive concerning the enrolment of a batch of NALSAR University law graduates, which was later modified and followed by a public apology from the BCI Chairman. According to the petitioners, an assault took place on the intervening night of August 20 and 21, 2026, and they sought an independent, court-monitored investigation into it, including into the role of the first respondent, the BCI Chairman, a Senior Advocate and Member of Parliament, of BCI officials and staff, of unidentified assailants, and of police personnel present, together with directions to preserve the CCTV footage and to decide their representation.
These are the petitioners’ allegations, and they were neither examined nor established; the Court decided only the preliminary issue of whether the writ petition was maintainable, and expressed no view on the truth of the assault alleged.
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The alternate efficacious remedy
The Court held that where an alternate efficacious remedy is available, the writ jurisdiction is not ordinarily to be invoked at the first instance. On the settled framework, a person aggrieved by the non-registration of an FIR must first place the complaint before the officer in charge of the police station, then, on inaction, before the jurisdictional Superintendent of Police, and thereafter seek the supervisory intervention of the Magistrate under Section 175(3) of the BNSS; approaching the High Court directly, bypassing that structure, is contrary to settled principles, particularly in the absence of any imminent danger to life or liberty.
On the facts, the Court found that the petitioners had lodged a complaint with the SHO on August 22, 2026, but had set up no case that the SHO was guilty of negligence or inaction, had admittedly not approached the concerned Deputy Commissioner of Police, the equivalent in Delhi of the Superintendent of Police, and had not approached the Magistrate under Section 223 BNSS, without a whisper in the petition as to why those were not efficacious remedies.
A non-cognizable offence
The Court then held that, in any event, the complaints did not disclose a cognizable offence. The only allegation, it noted, was that the alleged aggressors, none said to be armed, had beaten, slapped, thrashed and dragged the petitioners, which at most constituted the offence of causing hurt under Section 114 of the Bharatiya Nyaya Sanhita, a non-cognizable offence. In consequence, under Section 174 of the BNSS, only the concerned Magistrate could act, and no police officer could investigate such an offence, so that a direction to the CBI or the police to register and investigate the case did not arise.
The Court rejected as fallacious the argument that a Magistrate could not direct the seizure of the CCTV footage, pointing to the powers available under the relevant chapter of the BNSS, and noted that the petitioners had themselves pleaded that the videos were in the public domain. The proper course, it held, was a complaint case before the Magistrate under Section 223 BNSS, which was the efficacious remedy available to the petitioners.
Disapproval of the police-bias submission
Before parting with the case, the Court recorded its respectful disapproval of the submission that, because the first respondent is a Member of Parliament from the ruling dispensation, the Delhi Police would not act fairly while the CBI would. No basis had been offered for that apprehension, the Court held, and in its absence it was not fair to tarnish the entire Delhi Police force, particularly when the petitioners’ own case failed to make out a cognizable offence. The apprehension also failed on its own logic, the Court observed, since the CBI, against whom the mandamus was sought, is itself a government body; one should resist the temptation to discredit a government organisation by general, sweeping and baseless allegations, which only generate counterproductive cynicism and distrust.
As to the prayer directing the BCI to decide the petitioners’ representation, the Court held that, no case having been made out on the other prayers, there was no occasion to grant it; in any event, the demands in that representation, the Chairman’s resignation, accountability of BCI members, welfare of advocates, legal-education reforms and a no-confidence motion, had no bearing on the prayer for an investigation into the alleged incident. The petition was accordingly dismissed as not maintainable.
Why it matters
The decision is a reminder that the extraordinary writ jurisdiction is not a substitute for the ordinary criminal process, and that a demand for a CBI investigation cannot be used to leapfrog the statutory hierarchy. Where a person complains of an offence, the law provides a graded remedy, the police station, the Superintendent, and the Magistrate under Section 175(3) BNSS, and a High Court will ordinarily decline to act as a forum of first instance, save in cases of imminent danger to life or liberty or where the statutory remedies are shown to be inefficacious. The petitioners here had not exhausted, or even attempted, most of that path, and offered no reason why it would not answer.
The characterisation of the offence is what proved decisive. On the petitioners’ own account, the conduct alleged, an assault by unarmed persons, was hurt simpliciter, a non-cognizable offence in which, by statute, the police may not investigate without an order and the Magistrate is the appropriate authority. That classification collapses the case for a police or CBI investigation at the threshold: one cannot obtain a mandamus to compel an investigation that the law does not permit the police to undertake in the first place, and the remedy the statute does provide, a complaint before the Magistrate, was available and unused.
The Court’s censure of the police-bias argument carries a broader message about litigation strategy. A bare assertion that one investigating agency will be partial and another impartial, unsupported by material, was held to be an unfair aspersion on an institution, and self-defeating besides, since the preferred agency is no less an arm of the State. Nothing in the order forecloses the petitioners’ remedy: they remain free to pursue a complaint before the Magistrate, where the merits of their allegations, untouched by this order, can be examined in accordance with law.
Case Title: Kunal Yadav and Others v. Manan Kumar Mishra and Others [W.P.(Crl) 2850/2026]
Bench: Justice Girish Kathpalia, High Court of Delhi at New Delhi
Judgment Reserved: September 18, 2026 | Pronounced: September 21, 2026
Appearances: Senior Advocate Prashant Bhushan, with Advocates, for the petitioners; Additional Standing Counsel Amol Sinha for the State; Advocates for the BCI and the Union.
Status: Petition dismissed as not maintainable. Alternate efficacious remedy of a complaint before the Magistrate under Section 223 BNSS held available; allegations not examined on merits.