The Supreme Court of India.
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New Delhi: The Supreme Court has said when the FIR alleges a dishonest conduct on the part of the accused which, if supported by materials, would disclose commission of a cognisable offence, investigation should not be thwarted by quashing the case.
A bench of Justices J B Pardiwala and Manoj Misra said 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 whether the FIR and consequential proceedings should be quashed or not.
The court allowed an appeal filed by Somjeet Mallick and set aside the Jharkhand High Court's order to quash the criminal proceedings against the accused. The appellant alleged 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 bench said, "to test whether an FIR discloses commission of a cognisable 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".
In the case, the FIR alleged that the accused took appellant’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.
In the case, the bench said 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 pointed out to commit an offence, unless the penal statute provides otherwise, mens rea is one of the essential ingredients.
However, 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 said.
The court restored the quashing petition and asked the High Court to decide it afresh in accordance with law and in the light of the observations.