Pushpendra Singh Bhati, J. - (1.) The petitioner has preferred this misc. petition under Section 482 Cr.P.C., 1973 seeking quashing of the F.I.R. No. 38/2018 registered at P.S. Mahila Thana, Churu for the offence under Sections 365, 366, 376(2)(n), 354 and 120-BI. P.C.
(2.) Brief facts as noticed by this Court are that on 17.4.2018, the complainant lodged a report alleging that 8 months ago, one Sharukh Khan had attempted to talk her on phone but she refused to do so. However, Sharukh threatened her that he will put her edited photos on internet and defame her. The complainant further alleged that on 14.2018, in the midnight, Sharukh' Khan called her and on being persuaded, she came out and thereafter forcibly taken in a vehicle towards Jhunjhunu. It is alleged that she was given water by Sharukh which she consumed and thereafter she became unconscious. Thereafter, she was raped by Sharukh Khan. On these allegation, aforesaid F.I.R. was registered. 3.1 Learned Counsel for the petitioner has shown various messages made by the complainant to the petitioner and has submitted that in her original statement given when she was recovered at the instance of missing report lodged by her husband, she stated that she has gone with Sharukh of her own freewill. Learned Counsel for the petitioner has further submitted that it was a case of consensual relationship which is reflected from the record and thus, it cannot be said that the offence against the petitioner is made out. 3.2 Learned Counsel for the petitioner has relied upon the judgment of Hon'ble Supreme Court in the case of Anand Kumar MohattaAnr. v. State (Govt. of NCT of Delhi) Department of HomeAnr., para 26 whereof reads as follows: "26. In State of HaryanaOrs. v. Bhajan LaiOrs., (1992) Supp (1) SCC 335, this Court has set out the categories of cases in which the inherent power under section 482 of Cr.P.C., 1973 can be exercised. Para 102 of the judgment reads as follows:- "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the un-controverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."" 3.3 Learned Counsel for the petitioner has relied upon the judgment of Hon'ble Supreme Court in the case of Shivashankar @ Shiva v. State of KarnatakaAnr. reported in 2018 Cr.L.R. (SC) 502, paras 3, 4 and 5 whereof are as follows: "3. The gravamen of the charge against the appellant-accused is that he has raped respondent No. 2-complainant. We find from the complaint filed by the complainant that respondent No. 2-complainant has lived with the appellant for period of about eight years. 4. Further, respondent No. 2-complainant has stated that the appellant "pretended to have loved me" on the promise of marriage, that he applied the Kumkum on her forehead, and tied the Arishina thread to her neck. She further stated that she has been treating the appellant as her husband for the past eight years, and now he is trying to escape from her and cheat her. 5. Though we are not here concerned with the question whether the appellant and the complainant-respondent No. 1 were, in fact, married, we have no doubt that they lived together like a married couple even according to the complainant." 3.4 Learned Counsel for the petitioner has relied upon the judgment of Hon'ble Supreme Court in the case of Prashant Bharti v. State of NCT of Delhi reported in 2013 AIR SCW 4428, para 19 whereof is as follows: "19. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Cr.P.C.") has been dealt with by this Court in Rajiv ThaparOrs. v. Madan Lal Kapoor (Criminal Appeal No. of 2013, arising out of SLP (Cri.) No. 4883 of 2008, decided on 23.1.2013) wherein this Court inter alia held as under: 22. The issue being examined in the instant case is the jurisdiction of the High Court under section 482 of the Cr.P.C., 1973 if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under section 482 of the Cr.P.C., 1973 at the stages referred to herein-above, would have far reaching consequences, inasmuch as, it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section-482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under section 482 of the Cr.P.C., 1973 to quash such criminal proceedings, for that would prevent abuse of process of the Court, and secure the ends of justice. 23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under section 482 of the Cr.P.C., 1973: (i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? (ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. (iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/ complainant? (iv) Step four, whether proceeding with the trial would result in an abuse of process of the Court, and would not serve the ends of justice? If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal-proceedings, in exercise of power vested in it under section 482 of the Cr.P.C., 1973 Such exercise of power, besides doing justice to the accused, would save precious Court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused." 3.5 Learned Counsel for the petitioner has relied upon the judgment of Hon'ble Supreme Court in the case of State of PunjabOrs. v. Inder Mohan ChopraOrs. reported in 2009 AIR SCW 1521, wherein the Hon'ble Supreme Court has dealt with the powers of quashing the F.I.R. in para 10, which is as follows:- "10. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: The Janata Dal etc. v. H.S. Chowdhary and others, etc., AIR 1993 SC 892, Dr. Raghubir Saran v. State of Bihar and another, AIR 1964 SC 1). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/F.I.R. has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R. that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the Police Station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding. [See : Mrs. Dhanalakshmi v. R. Prasanna Kumar and others, AIR 1990 SC 494, State of Bihar and another v. P.P. Sharma, I.A.S. and another, (1992) Suppl 1 SCC 222, Rupan Deol Bajaj (Mrs.) and another v. Kanwar Pal Singh Gill and another, (1995) 6 SCC 194, State of Kerala and others v. O.C. Kuttan and others, (1999) 2 SCC 651, State of U.P. v. O.P. Sharma, (1996) 7 SCC 705, Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada, (1997) 2 SCC 397, Satvinder Kaur v. State (Govt, of NCT of Delhi) and another, (1999) 8 SCC 728, Rajesh Bajaj v. State NCT of Delhi and others, AIR 1999 SC 1216, State of Karnataka v. M. Devendrappa and another, (2002) 3 SCC 89 and State of Andhra Pradesh v. Bajjoori KanthaiahAnr., 2008 (11) JT 574]." 3.6 Learned Counsel for the petitioner has relied upon the judgment of this Court in the case of Shankar Lal Sindhi v. State of RajasthanAnr. reported in 2008 (3) Cr.L.R. (Raj.) 1572, in which this Court has interfered on the ground that Section 164 Cr.P.C., 1973 statement of the prosecutrix, categorically denied any sexual assault and the F.I.R. was filed with delay. 3.7 Learned Counsel for the petitioner has relied upon the judgment of this Court in the case of Mohd. Irfan v. State of RajasthanAnr. reported 2016 (1) Cr.L.R. (Raj.) 62, para 3 whereof is as follows:- "3. On the basis of the above report, an F.I.R. No. 192/2015 was registered against the petitioner at the Police Station Nayashahar for the above offences. The complainant during the course of investigation was examined under Section 161 Cr.P.C., 1973 as well as under Section 164 Cr.P.C., 1973 and more or less, she repeated the allegations set out in the F.I.R. It appears that arising from the dispute of purchase of a plot which the complainant herself has stated in her F.I.R., the petitioner's father Mohd. Sadiq had earlier filed an F.I.R. No. 191/2015 against the complainant at the Police Station Nayashahar for the offences under Sections 385 and 504 I.P.C." 4. Learned Public Prosecutor has, however, submitted that as per the status report and the investigation carried so far, offence as alleged is made out against the petitioner. 5. After hearing the learned Counsel for the parties and after perusing the material available on record as well as case diary, this Court find that there is consistency in the allegations made in the F.I.R. and the statement of the prosecutrix recorded under Section 164 Cr.P.C., 1973 which indicates that rape was committed by the petitioner. There is no doubt that the case of consensual relationship was also reflected in certain documents but at this stage, where the Court is exercising its jurisdiction under Section 482 Cr.P.C., 1973 and going by the settled parameters laid down by the Hon'ble Supreme Court in the case of State of HaryanaOrs. v. Bhajan LaiOrs., this Court does not find that it is a fit case where quashing of the F.I.R. is warranted under Section 482 Cr.P.C., 1973 However, this Court finds that the whatsapp messages placed on record clearly reflect a consensual relationship and, therefore, this Court directs the Investigating Agency to make complete investigation note specifically in the case diary regarding the Whatsapp messages and if they are true then the facts of the case shall be probed in that direction too as on face these messages indicate consensual relationship and thus the prosecution cannot be allowed to prosecute the petitioner for complainant's equal participation in the relationship. 6. The precedent law cited by the learned Counsel for the petitioner at this stage do not apply because though this Court has power to quash the F.I.R. but after examining the F.I.R. and the case diary and looking to the allegations as alleged by the complainant in the F.I.R. as well as the statement recorded under Section 164 Cr.P.C., 1973 it is not a case for interference at this stage. 7. Without making any comments on the merits of the case including the aspect of consensual relationship and the allegations levelled by the petitioner, this Court dismiss the instant misc. petition with liberty to the petitioner to take up all the issues including that of consensual relationship at appropriate stage. Petition dismissed. ;