New Delhi: The Supreme Court has said when a First Information Report (FIR) alleges dishonest conduct by an accused and materials disclose commission of a cognisable offence then the investigation cannot be thwarted by quashing the FIR.
A bench of Justices JB Pardiwala and Manoj Misra said it was trite law that an FIR was not an encyclopedia of all imputations.
It further observed that while deciding if a criminal proceeding or an FIR should be quashed at the very threshold, the allegations in the FIR, including the materials collected during investigation, should be taken at face value to determine whether or not a prima facie case against the accused for investigation was made out.
“Thus, when the FIR alleges dishonest conduct on the part of the accused which, if supported by materials, would disclose commission of a cognisable offence, the investigation should not be thwarted by quashing the FIR,” the bench said in its verdict pronounced on October 14.
The top court’s decision came on an appeal filed by one Somjeet Mallick, who had challenged the February 1 order of the Jharkhand High Court, which quashed an FIR against an accused.
Mallick alleged that his truck was in possession of the accused since July 2014, however, its rent, including arrears amounting to Rs 12.49 lakh, had not been paid.
The bench noted the allegations in the FIR, which stated that the accused took Mallick’s truck on hire between July 14, 2014 and March 31, 2016 on a monthly rent of Rs 33,000, but did not continue paying the rent after the first month 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. 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 top court held.
It said that existence of “mens rea” (criminal intent) was a question of fact which may be inferred from the act in question and the surrounding circumstances apart from the accused’s conduct.
“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 altogether 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 noted.
In such circumstances, the court observed if the FIR was quashed at the very inception, it would be an act “thwarting a legitimate investigation”.
The top court further said that a petition seeking quashing of the FIR would not become infructuous on submission of a police report under provisions of the Code of Criminal Procedure. However, when a police report is submitted, the court must apply its mind to the materials before deciding if the FIR and proceedings thereafter ought to be quashed, it added.
“In our view, the high court ought to have considered the materials collected during the investigation before taking a call on the prayer for quashing of the FIR, the cognisance order and the proceedings in pursuance thereof,” the court said.
While setting aside the high court order, the apex court remitted the matter back to the high court to decide the quashing petition afresh in accordance with law and after considering the materials collected by the investigating agency.
