Justice Jobin Sebastian considered the question as to whether mere filing of an undetected report by the police would confer a right upon the accused to seek quashing of FIR and answered it in the negative.

Referring to various precedents, the Court came to the conclusion that delay in investigation, by itself, is not a ground to quash criminal proceedings. It added:

“an inordinate delay in the investigation and trial not attributable to the accused amounts to a violation of Article 21 and warrants the quashing of criminal proceedings if there are compelling and exceptional circumstances. In essence, the quashing of criminal proceedings on the ground of inordinate delay in the investigation is not automatic… the Court must undertake a balancing exercise by considering the nature and gravity of the offence, the reasons for the delay, the conduct of the parties, and the actual prejudice caused to the accused, and determine whether quashing the proceedings or granting any other appropriate relief is necessary in the interests of justice.”

The Court was considering a plea preferred by the sole accused in a crime alleging commission of offences under Section 354 [Assault or criminal force to woman with intent to outrage her modesty] and 354A [Sexual harassment and punishment for sexual harassment] IPC. The complaint was given to the Police Chief, Chhattisgarh, who forwarded it to the Police Chief, Kerala and thereafter to the Paravoor SHO.

The allegation was that he befriended the de facto complainant on Facebook and invited her to Dubai with an intention to subject her to sexual assault. It is further alleged that pursuant to the invitation, she went to Dubai for around 2 weeks where the accused/petitioner arranged a stay for her in a beach resort. It is alleged that the accused subjected her to sexual assault and outraged her modesty during the said period.

The petitioner pointed out that after the crime was registered in 2018, the investigating officer issued notices to the complainant to appear for recording her statement before the police and the magistrate, but she did not respond to the same or cooperate with the investigation. Subsequently on 29.06.2019, the police filed an undetected report before the jurisdictional magistrate.

The petitioner argued that the continued pendency of the FIR despite filing of the undetected report would cause serious prejudice to him and adversely affect his future prospects, including job opportunities. He thus sought to quash the FIR.

The amicus curiae submitted that filing of an undetected report does not preclude the police from reopening the investigation upon receiving new materials. However, inordinate delay in completing the investigation for several years could infringe the fundamental rights of an accused under Article 21 of the Constitution. He relied on Robert Lalchungnunga Chongthu @ R.L. Chongthu v. State of Bihar.

After hearing the parties, the Court noted that the main reason for the police to file an undetected report was because the complainant was not cooperating with the investigation. It remarked that though filing of undetected report by itself is not a ground to quash FIR, inordinate delay not attributable to the accused and affecting his fundamental rights can be a reason to quash FIR.

The Court noted that the investigation had reached a standstill in 2019 with no progress thereafter. The complainant was an adult and educated woman, who had accepted the petitioner's invitation to Dubai on her own and therefore, it cannot be believed that she did not know the consequences of the same, the Court opined. It further added that since the reason for the investigation to be stalled was the non-cooperation of the complainant, the continuation of the FIR would cause prejudice to the petitioner.

Thus, the Court allowed the plea and quashed the FIR.

Counsel for the petitioner: M. Rajesh

Counsel for the respondents: V.R. Ramlal – Public prosecutor

Amicus Curiae: K. Rakesh