Delhi HC quashes FIR registered u/s 409 IPC against police constable who lost pistol along with 5 live cartridges issued to him after finding no dishonest intention on his part
Justice Navin Chawla [22-04-2024]

Read Order: RAJAT KUMAR v. THE STATE (NCT OF DELHI) [DEL HC- CRL.M.C. 4608/2022]

LE Correspondent

New Delhi, April 26, 2024: The Delhi High Court has quashed an FIR registered against a police constable with the observation that dishonest intention or wilful conduct on part of the accused is a prerequisite to make out a charge of criminal breach of trust against a public servant under Section 409 read with Section 405 IPC.

The Single-Judge Bench of Justice Navin Chawla was considering a petition filed under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of FIR registered under Section 409 of the Indian Penal Code, 1860 and criminal proceedings emanating therefrom.

It was the case of the prosecution that on the night of 15.03.2014, a 9mm Pistol with 5 live cartridges, was issued to the petitioner, who is working as a constable with the Delhi Police. Later, he was contacted many times to deposit the weapon and ammunition in the Maalkhana but he failed to do so nor was he able to give a satisfactory reply in this regard. It was further stated that he tried to linger the matter by stating that he would be depositing the same after some time. Efforts for search of the weapon and cartridges were also made, however, it proved futile and no clue regarding the same came to light. As the petitioner failed to deposit the weapon and the cartridges, the present FIR was registered against him.

The petitioner, apart from being made an accused in the subject FIR and the consequent trial, also faced a Departmental Inquiry, which resulted in an order passed by the Disciplinary Authority. The Authority had ordered that two years approved service of the Constable be forfeited permanently entailing proportionate reduction in his pay with immediate effect. His suspension period from 21.03.2014 to 06.04.2015 was also decided as period not spent on duty for all intents and purposes.

Highlighting the interplay between the adjudication proceedings and criminal prosecution, the Bench referred to the judgements in Radheshyam Kejriwal v. State of West Bengal,[LQ/SC/2011/280] and Ashoo Surendranath Tewari v. The Deputy Superintendant of Police, EOW, CBI & Anr., [LQ/SC/2020/653].

“.... it is apparent that while there can be no dispute with the proposition that mere exoneration or finding to that effect of the Disciplinary Authority may not have a binding effect on the criminal prosecution, at the same time, in the peculiar facts of the present case, it is noticed that both the proceedings, that is, the criminal proceedings as also that of the Disciplinary Authority are premised on the loss of the weapon and the cartridges by the petitioner. The Disciplinary Authority, on appreciation of evidence, found that the same was accidental and there was no ill/mala fide intention on the part of the petitioner in the loss of the same”, the Bench said.

The High Court also clarified, “Dishonest intention or wilful conduct on part of the accused is, therefore, a prerequisite to make out a charge of criminal breach of trust against a public servant under Section 409 read with Section 405 IPC.”

Noting that the Disciplinary Authority had found that there was no dishonest intention on part of the petitioner and he was at best negligent or careless in the loss of the weapon and the cartridges, the Bench held, “In my view, therefore, continuation of the criminal proceedings against the petitioner would be against the interest of justice and should be liable to be quashed.”

Placing reliance upon State of Haryana & Ors. v. Bhajan Lal & Ors.,  the High Court exercised its inherent powers under Section 482 of the Cr.P.C. to quash the FIR and all the proceedings emanating therefrom.