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Synopsis

The Supreme Court recently observed that a petition to quash the FIR does not become infructuous on submission of a police report under Section 173 (2) of the CrPC.

However, when a police report has been submitted, particularly when there is no stay on the investigation, the court must apply its mind to the materials submitted in support of the police report before taking a call on whether the FIR and consequential proceedings should be quashed or not, court said. 

This is all the more so, when the FIR alleges an act which is reflective of a dishonest conduct of the accused, the bench of Justices J B Pardiwala and Manoj Misra said.

In a judgment on October 14, 2024, setting aside the Jharkhand High Court's order to quash the criminal proceedings, the top court said at the stage of deciding whether a criminal proceeding or FIR, as the case may be, is to be quashed at the threshold or not, the allegations in the FIR or the police report or the complaint, including the materials collected during investigation or inquiry are to be taken at their face value so as to determine whether a prima facie case for investigation or proceeding against the accused, is made out.

The court again emphasised the correctness of the allegations is not to be tested at this stage.

The bench pointed out that it is a trite law that FIR is not an encyclopedia of all imputations. 

"Therefore, to test whether an FIR discloses commission of a cognizable offence, what is to be looked at is not any omission in the accusations but the gravamen of the accusations contained therein to find out whether, prima facie, some cognizable offence has been committed or not," the bench said.

At this stage, the bench underscored, the court is not required to ascertain as to which specific offence has been committed. 

"It is only after investigation, at the time of framing charge, when materials collected during investigation are before the court, the court has to draw an opinion as to for commission of which offence the accused should be tried. Prior to that, if satisfied, the court may even discharge the accused. Thus, when the FIR alleges a dishonest conduct on the part of the accused which, if supported by materials, would disclose commission of a cognizable offence, investigation should not be thwarted by quashing the FIR," the bench said.

Court noted in the case at hand, the FIR alleged that the accused took the original complainant’s Truck/Trailor on hire for a period starting from July 14, 2014 up to March 31, 2016, at a monthly rent of Rs 33,000 but, after payment of first month rent, the rent was not paid despite false assurances. 

The allegation that rent was not paid by itself, in ordinary course, would presuppose retention of possession of the vehicle by the accused. In such circumstances as to what happened to that Truck becomes a matter of investigation. If it had been dishonestly disposed of by the accused, it may make out a case of criminal breach of trust, the bench opined.

"Therefore, there was no justification to quash the FIR at the threshold without looking into the materials collected during the course of the investigation," the court added.

To commit an offence, unless the penal statute provides otherwise, mens rea is one of the essential ingredients, the court said.

"Existence of mens rea is a question of fact which may be inferred from the act in question as well as the surrounding circumstances and conduct of the accused," it said. 

As a sequitur, when a party alleges that the accused, despite taking possession of the Truck on hire, has failed to pay hire charges for months together, while making false promises for its payment, a prima facie case, reflective of dishonest intention on the part of the accused, is made out which may require investigation, the bench said.

"In such circumstances, if the FIR is quashed at the very inception, it would be nothing short of an act which thwarts a legitimate investigation," the bench added.

The court opined the high court ought to have considered the materials collected during investigation before taking a call on the prayer for quashing the FIR, the cognizance order and the proceedings in pursuance thereof.

The court noted the affidavit filed by the State only indicated that they were not able to trace out the Truck/Trailor. 

"In these circumstances, we have no option but to remit the matter to the High Court to decide the quashing petition afresh in accordance with law after considering the materials collected by the investigating agency during the course of the investigation," the bench said.

The top court allowed the appeal and restored the quashing petition to its original number to be decided afresh by the high court in accordance with law and in the light of the observations made by it.

The appellant Somjeet Mallick filed an application under Section 156(3) of the CrPC, alleging though the Truck had been in possession of the accused since July 2014, rent including arrears amounting to Rs 12,49,780 was not paid despite repeated false assurances.

The court of CJM on November 12, 2016, directed the police to institute a case and investigate.

During the investigation when despite notice under Section 41A CrPC the accused did not appear, the police applied to the CJM for issuance of NBW against the accused.

The accused approached the high court under Section 482 CrPC which quashed the order of cognizance and all further proceedings in the case concerned while leaving it open to the original complainant to take recourse to civil remedies.

The appellant contended the high court did not consider the materials collected during investigation which resulted in filing of charge sheet. 

He also argued the high court failed to consider that the whereabouts of the truck was not known. Otherwise also, since the Truck was not returned, it could be taken that it had been misappropriated or disposed of by the accused in violation of the agreement, thereby disclosing commission of an offence of criminal breach of trust, he claimed.

Case Title: Somjeet Mallick Vs State of Jharkhand & Others