SOMJEET MALLICKversusSTATE OF JHARKHAND & OTHERS

                 [2024] 10 S.C.R. 893 : 2024 INSC 772

                            Somjeet Mallick
                                    v.
                      State of Jharkhand & Others
                     (Criminal Appeal No. 4190 of 2024)
                                14 October 2024
                [J.B. Pardiwala and Manoj Misra,* JJ.]

                            Issue for Consideration
       Whether the High Court was justified in quashing the FIR, the
       cognizance order and the proceedings in pursuance thereof without
       considering the materials collected during investigation.

                                   Headnotes†
       Code of Criminal Procedure, 1973 – s.482 – Penal Code,
       1860 – ss.406, 420 – Appellant alleged that as per agreement
       between the parties, the Truck/Trailor was rented to the
       accused-respondents for plying for 21 months at monthly
       rent but after payment of first month’s rent, the rent
       was not paid despite assurances – Chargesheet filed
       and cognizance was taken by CJM while the application
       u/s.482, CrPC filed by respondents was pending before the
       High Court – High Court quashed the FIR, the cognizance
       order and the proceedings without considering the materials
       collected during investigation:
       Held: At the stage of deciding whether a criminal proceeding or FIR
       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 – Correctness of the
       allegations is not to be tested at this stage – Mens rea, an essential
       ingredient to commit an offence is a question of fact to be inferred
       from the act in question as well as the surrounding circumstances
       and conduct of the accused – Thus, when the appellant alleged
       that the accused despite taking possession of the Truck on hire
       failed to pay hire charges for months together making false
       promises for its payment, a prima facie case, reflective of dishonest

* Author
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       intention on the part of the accused is made out also as regards
       whether the Truck had been dishonestly disposed of, making out
       a case of criminal breach of trust which requires investigation –
       A petition to quash the FIR does not become infructuous on
       submission of a chargesheet u/s.173 (2), CrPC, but when a
       chargesheet has been submitted, and if there is no stay on the
       investigation, the Court must apply its mind to the materials in
       the police report before quashing the FIR and consequential
       proceedings – More so, when the FIR alleges an act reflective
       of a dishonest conduct of the accused – Quashing of FIR at
       the very inception would thwart a legitimate investigation –
       Impugned order set aside – Quashing petition remitted to High
       Court to decide the same considering the materials collected during
       investigation. [Paras 16, 17, 19, 20, 22, 23]
       Criminal Law – FIR – Quashing – FIR not to be quashed, if
       discloses cognizable offence:
       Held: FIR not an encyclopedia of all imputations – 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 – At this stage, Court is not required
       to ascertain as to which specific offence has been committed – It
       is only at the time of framing charge, when materials collected
       during investigation are before the Court, that it has to draw an
       opinion as to for which offence the accused should be tried –
       Prior to that, if satisfied, the Court may 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. [Para 17]

                                  List of Acts
       Code of Criminal Procedure, 1973; Penal Code, 1860.

                               List of Keywords
       Quashing; Quashing petition; Cognizance order; Materials
       collected during investigation; Truck on hire; Hire charges;
       Truck rented; Dishonest intention; Mens rea question of fact;
       Cognizance; Chargesheet; Police report; FIR not encyclopedia;
       Criminal breach of trust.
[2024] 10 S.C.R.                                                    895

                Somjeet Mallick v. State of Jharkhand & Others


                                        Case Arising From

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 4190
      of 2024
      From the Judgment and Order dated 01.02.2024 of the High court of
      Jharkhand at Ranchi in CRMP No. 3796 of 2018
                                Appearances for Parties
      Konark Tyagi, Sagar Sarda, Advs. for the Appellant.
      Rahul Shyam Bhandari, Ms. G. Priyadarshini, Satyam Pathak,
      Prabhakar Pahepuri, Dr. Ratneshwar Chakma, Vishnu Sharma,
      Ms. Madhusmita Bora, Shiv Ram Sharma, Pawan Kishore Singh,
      Dipankar Singh, Mrs. Anupama Sharma, Advs. for the Respondents.
                     Judgment / Order of the Supreme Court
                                           Judgment
      Manoj Misra, J.
1.    Leave Granted.
2.    This appeal impugns judgment and order of the High Court1 dated
      01.02.2024 passed in Cr. M.P. No.3796 of 2018 whereby, exercising
      powers under Section 482 of the Code of Criminal Procedure, 1973,2
      the High Court quashed the order dated 20.02.2020, by which
      cognizance was taken, and all further proceedings in connection
      with Case No.78 of 2016, registered at P.S. Sakchi, corresponding
      to G.R. No.1627 of 2016, pending in the court of Chief Judicial
      Magistrate,3 Jamshedpur.
      Factual Matrix
3.    The appellant (original complainant) filed an application, under
      Section 156(3) CrPC, alleging that the second and third respondents
      (original accused) offered to take appellant’s Truck (Trailor No.
      NL 01K 1250) on a monthly rent of Rs.33,000, exclusive of driver’s/
      helper’s salary, for plying it between Tata Steel Jamshedpur and


1    High Court of Jharkhand at Ranch
2    CrPC
3    CJM
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       Kalinganagar; pursuant to that offer, an agreement was entered
       into between the appellant and the accused on 10.07.2014 thereby
       letting the vehicle to the accused for a period up to 31.03.2016 with
       effect from 14.07.2014; and, in furtherance thereof, possession of
       the Truck was given to the accused. In return, they paid one month
       rent, after deducting TDS. But thereafter, 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.
4.     On the aforesaid application under Section 156(3) CrPC, the learned
       CJM vide order dated 12.11.2016 directed the police to institute a
       case and investigate.
5.     During investigation when despite notice under Section 41A CrPC the
       accused did not appear, the police applied to the CJM for issuance
       of NBW4 against the accused. The said application was allowed vide
       order dated 30.06.2017.
6.     Aggrieved with the order dated 30.06.2017, the second and third
       respondents filed application under Section 482 CrPC for quashing
       the aforesaid order as well as proceedings pursuant to the FIR5
       registered as Case No.78 of 2016 at P.S. Sakchi.
7.     In the application under Section 482 CrPC it was, inter alia, alleged
       that no agreement was executed; that appellant intended to let out
       his Truck parked inside Tata Steel Factory, but, despite payment of
       advance rent of one month, necessary papers concerning the Truck
       were not provided, therefore, no agreement was executed; and even
       if it is taken that agreement was executed, no offence punishable
       under Sections 406 and 420 IPC is made out.
8.     While the application under Section 482 CrPC was pending before
       the High Court, on a police report, cognizance was taken by CJM
       on 20.02.2020 and processes were issued under Section 204 CrPC.
       Consequently, respondent nos. 2 and 3 (original accused) sought
       amendment in their prayer before the High Court so as to include
       the prayer to quash the cognizance order.


4    Non-bailable Warrant
5    First Information Report
[2024] 10 S.C.R.                                                         897

                Somjeet Mallick v. State of Jharkhand & Others


9.    The High Court vide impugned order 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.
      Reasoning of the High Court
10. The High Court reasoned thus:
      a.     There is no allegation of entrustment in the FIR, therefore,
             offence of criminal breach of trust, punishable under Section 406
             IPC,6 is not made out.
      b.     Admittedly, one month rent was paid, therefore, dishonest
             intention from the very beginning was not there. The application
             is only for recovery of rent, which can be realised by taking
             recourse to appropriate civil proceeding. Hence, no offence
             punishable under Section 420 IPC is made out.
11. Aggrieved by the order of the High Court, original complainant is
    before us.
12. We have heard learned counsel for the parties and have perused
    the materials on record.
      Submissions on behalf of Appellant
13. On behalf of the appellant, it was submitted:
      a.     The FIR did disclose that after making payment of one month
             rent, no rent was paid despite false assurances. In such
             circumstances, a case for investigation was made out.
      b.     The High Court did not consider the materials collected during
             investigation which resulted in filing of charge sheet. As charge
             sheet was submitted, the High Court ought to have considered
             the materials collected during investigation before concluding
             whether offence has been committed or not.
      c.     The High Court failed to consider that whereabouts of the
             Truck was not known. Otherwise also, since the Truck was not
             returned, it could be taken that it has been misappropriated or
             disposed of by the accused in violation of the agreement, thereby
             disclosing commission of an offence of criminal breach of trust.


6    The Indian Penal Code, 1860
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       Submissions on behalf of Accused-respondents
14. On behalf of accused respondent(s), it was submitted:
       a.   The FIR did not disclose commission of any offence, therefore
            the High Court was justified in quashing the entire proceeding.
       b.   There was no specific allegation in the FIR regarding disposal
            or misappropriation of the Truck, hence no case of criminal
            breach of trust was made out.
       c.   The offence of cheating is not made out inasmuch as dishonest
            intention from the very beginning is not disclosed by the
            averments in the FIR.
       d.   The High Court was justified in quashing the cognizance order
            and further proceedings.
       Submissions on behalf of State
15. On behalf of State, it is submitted through an affidavit that the
    original complainant had informed that as per agreement between
    the parties, the Truck/Trailor was rented to the accused for plying.
    However, Truck’s present location was neither known to the original
    complainant nor could be ascertained despite hectic efforts.
       Analysis
16. Before we proceed to test the correctness of the impugned order, we
    must bear in mind that 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, as the case may be, are to be taken at their face value
    so as to determine whether a prima facie case for investigation or
    proceeding against the accused, as the case may be, is made out.
    The correctness of the allegations is not to be tested at this stage.
17. To commit an offence, unless the penal statute provides otherwise,
    mens rea is one of the essential ingredients. 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.
    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
[2024] 10 S.C.R.                                                       899

            Somjeet Mallick v. State of Jharkhand & Others


     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. 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.
18. It is 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. At this stage, 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.
19. No doubt, a petition to quash the FIR does not become infructuous
    on submission of a police report under Section 173 (2) of the CrPC,
    but 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. More so, when the FIR alleges an act which is reflective of
    a dishonest conduct of the accused.
20. In the instant case, the FIR alleges that the accused took original
    complainant’s Truck/Trailor on hire for a period starting from
    14.07.2014 up to 31.03.2016 at a monthly rent of Rs.33,000/- but,
    after payment of 1st 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
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       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.
21. In our view, 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.
22. To peruse the police report and to understand as to what type
    of investigation was carried out by the police, on 19.07.2024 we
    required the State to place the charge-sheet on record. However,
    unfortunately, though the State filed its affidavit, the charge-sheet was
    not produced. The affidavit filed by the State only indicates 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.
23. Accordingly, the appeal is allowed. The impugned order of the High
    Court is set aside. The quashing petition shall be restored to its
    original number and shall be decided afresh by the High Court in
    accordance with law and in the light of the observations above. All
    contentions and pleas are kept open for the parties to urge before
    the High Court.
24. Pending application(s), if any stand disposed of.

       Result of the case: Appeal allowed.



       †
           Headnotes prepared by: Divya Pandey