Rakesh Kainthla, Judge

1. The informant-respondent No. 4 made a complaint to the police that her husband had died in the year 1991. She has three daughters who are working at various places. She retired four years before the incident. She started participating in social and religious functions after her retirement. She met petitioner Sanjay Sharma alias Badka Bhau in July 2020. He called her on 19th August and inquired about her home. He came to her house and told her that he was a social worker. Many Politicians, Officers and Social Service Organisations knew him. His wife Anita Sharma was posted in the police department. He also played the recording of a song dedicated to him. He started visiting the house of respondent No. 4 with the members of his team and his wife. Respondent No. 4 allowed her to reside in her home in a room located on the upper floor. He also took respondent No. 4 with him to various places. He stated that he was also a property dealer and showed some property at Palampur. He said that people wanted to purchase the property and he would offer the property to respondent No. 4 at a low price. He and his wife visited the house of respondent No. 4 and asked her to make the payment in cash. Respondent No. 4 paid various amounts on different dates. He demanded various sums by saying that the cost of the land had increased. He asked respondent No. 4 to pay ₹5.00 lacs for the stamp duty. The money was paid but the sale deed was not executed. Petitioner Anita Sharma told respondent No. 4 that she would return the amount in case the petitioner-Sanjay Sharma would not execute a sale deed in her favour. Petitioner Sanjay Sharma visited the house of respondent No. 4 on 16.2.2021 and told her that his wife would also visit in the evening. All of them would take dinner together; however, the wife of the petitioner Anita did not arrive. Sanjay went to the bedroom of respondent No. 4 and raped her by showing a knife to her. Respondent No. 4 narrated the incident to her children, who advised her to report the matter to the police. The police registered the FIR and conducted the investigation.

2. The petitioner has filed the present petition for quashing FIR No. 57 of 2021, dated 21.3.2021, registered at Police Station Palampur, District Kangra, HP and the subsequent proceedings arising out of the same. It has been asserted that a bare perusal of the FIR shows that the informant/respondent No. 4 intended to purchase land from petitioner No. 1. Respondent No. 4 failed to pay the full amount required under the agreement. The petitioner had taken a loan from Kangra Central Cooperative Bank. The petitioner defaulted and the bank issued a notice dated 9.1.2020 to the petitioner. The petitioner could not comply with the conditions of the notice and the bank initiated proceedings against the petitioner. A possession notice was served upon the petitioner. The petitioner intended to dispose of the property for payment of the loan. The market value of the land was ₹45.00 lacs whereas an amount of ₹19.40 lacs was to be paid by the petitioner to the bank. Respondent No.4 showed her interest in purchasing the land. Petitioner No.1 and respondent No.4 agreed that respondent No.4 would pay ₹34.00 lacs to petitioner No.1 and petitioner No.1 would execute a sale deed in her favour. Respondent No.4 failed to pay the total amount and only paid a sum of ₹12.08 lacs. Hence, the petitioner could not execute the sale deed in favour of respondent No.4. The petitioner No.1 asked respondent No.4 to pay the remaining amount, however, respondent No.4 failed to do so. She tried to establish friendly relations with respondent No.1 to get the sale deed executed in her favour for the sum already paid by her. She used to send text messages to the petitioner. She had availed the services of the vehicle of the petitioner on 10.2.2021 for coming from Chandigarh to Palampur and paid ₹2,000/- for the same. She had travelled in the vehicle of petitioner No.1 from her home to Gaggal Airport and had taken the printout of her ticket at the kiosk of KD Sunny Rana, a friend of petitioner No.1. This visit is duly recorded in the CCTV of Airport Gate. She had also sent a pickle tin to her relative through petitioner No.1. Respondent No.4 concocted a false story of rape against the petitioner to pressurize the petitioner to return her money. There is a delay of one month and five days in reporting the matter to the police. One of the arteries of the petitioner is completely blocked and he is undergoing treatment for the same at PGI Chandigarh. He is unable to establish physical relations with any person and respondent No.4 has leveled false allegations to this effect. The dispute between the parties is civil. Petitioner No.1 intended to file a suit for specific performance against respondent No.4. She filed a false complaint against petitioner No.1 and his wife to preempt the action of petitioner No.1. Therefore, it was prayed that the present petition be allowed and the FIR and the consequent proceedings arising out of the same be ordered to be quashed.

3. The police filed a status report asserting that respondent No.4 had made a complaint to the police stating that the petitioners had taken a huge amount of money from respondent No.4 with intent to defraud her but they failed to execute the sale deed. Respondent No.4 supported her version in her statement made under Section 164 of Cr. PC. The challan has been filed before the Court after the completion of the investigation. The allegations disclose the commission of cognizable offence. Therefore, it was prayed that the present petition be dismissed.

4. I have heard Mr P.P. Chauhan, learned Counsel for the petitioners through video-conferencing, Mr Jitender Sharma learned Additional Advocate General for respondents No.1 to 3-State and Mr Vinod Chauhan, learned counsel for respondent No.4.

5. Mr. P.P. Chauhan, learned Counsel for the petitioners submitted that the petitioners are innocent and they were falsely implicated. Respondent No.4 had agreed to purchase the land from petitioner No.1 but she failed to pay the whole of the amount. The remedy of respondent No.4 lies in filing a suit for specific performance and not in filing an FIR. Respondent No.4 wrongly impleaded petitioner No.2 to pressurize the petitioners to return the money. He has relied upon the judgment of the Hon’ble Supreme Court in Kunti Vs. State of UP 2023 (6) SCC 109 [LQ/SC/2023/590 ;] in support of his submissions. He further submitted that the relationship between petitioner No.1 and respondent No.4 were cordial which is evident from the screenshot of the WhatsApp chat between them. Respondent No.4 had accompanied petitioner No.1 on the next date of the incident which falsifies her version that she was raped by petitioner No.1. Hence, he prayed that the present petition be allowed and the FIR and consequent proceedings arising out of the same be ordered to be quashed.

6. Mr. Jitender Sharma, learned Additional Advocate General for respondents No.1 to 3-State submitted that the allegations in the FIR constitute the commission of a cognizable offence. The Court is not to go into the veracity of the allegations made in the FIR. Respondent No.4 had specifically stated in the FIR that she was asked by petitioner No.1 to pay money to him for the sale of the land and the sale deed was not executed by petitioner No.1. Petitioner No.2 had also joined petitioner No.1 in making this representation and she is equally responsible. There is nothing on record to show that petitioner No.1 and respondent No.4 had gone to the Airport on the next date of the incident and even if it is so, the same will not mean anything in view of the positive statement made by respondent No.4 that petitioner No.1 raped her. Therefore, it was prayed that the present petition be dismissed.

7. Mr. Vinod Chauhan, learned counsel for respondent No.4 adopted the submissions of learned Additional Advocate General and submitted that FIR should be quashed in exceptional circumstances. He has relied upon the judgment of the Hon’ble Supreme Court in M/s Niharika Infrastructure Vs. State of Maharashtra 2021 SCC Online 315 in support of his submission.

8. I have given considerable thought to the submissions at the bar and have gone through the records carefully.

9. The principles of exercising the jurisdiction under Section 482 of Cr.P.C. were laid down by the Hon’ble Supreme Court in Supriya Jain v. State of Haryana, 2023 SCC OnLine SC 765 : (2023) 7 SCC 711 [LQ/SC/2023/711 ;] wherein it was observed at page 716:-

"17. The principles to be borne in mind with regard to the quashing of a charge/proceedings either in the exercise of jurisdiction under Section 397CrPC or Section 482CrPC or together, as the case may be, has engaged the attention of this Court many a time. Reference to each and every precedent is unnecessary. However, we may profitably refer to only one decision of this Court where upon a survey of almost all the precedents on the point, the principles have been summarised by this Court succinctly.

In Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 [LQ/SC/2012/789] : (2012) 4 SCC (Civ) 687 : (2013) 1

SCC (Cri) 986], this Court laid down the following guiding principles : (SCC pp. 482-84, para 27)

“27. …27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in the exercise of its inherent powers.

27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise to and constitute a “civil wrong” with no “element of criminality” and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

27.12. In the exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was the possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit a continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to deciding the admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.14. Where the charge sheet, reported under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

27.15. Coupled with any or all of the above, where the Court finds that it would amount to an abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.

27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.”

10. Similar is the judgment in Gulam Mustafa v. State of Karnataka, 2023 SCC OnLine SC 603 wherein it was observed:-

"26. Although we are not for verbosity in our judgments, a slightly detailed survey of the judicial precedents is in order. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, this Court held:

“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 FIR 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 uncontroverted allegations made in the FIR 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 FIR 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 FIR 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.

103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.”

(emphasis supplied)

11. It was laid down in CBI v. Aryan Singh, 2023 SCC OnLine SC 379, that the High Court cannot conduct a mini-trial while exercising jurisdiction under Section 482 of Cr.P.C. The allegations are required to be proved during the trial by leading evidence. It was observed:

10. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini-trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr. P.C., the Court is not required to conduct the mini-trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial based on the evidence led by the prosecution/investigating agency. Therefore, the High Court has materially erred in going into detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr. P.C., the Court has very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not”.

11. One other reason pointed out by the High Court is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been charge-sheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried.

12. This position was reiterated in Abhishek v. State of M.P. 2023 SCC OnLine SC 1083 wherein it was observed:

"12. The contours of the power to quash criminal proceedings under Section 482 Cr. P.C. are well defined. In V. Ravi Kumar v. State represented by Inspector of Police, District Crime Branch, Salem, Tamil Nadu [(2019) 14 SCC 568] [LQ/SC/2018/1616] , this Court affirmed that where an accused seeks quashing of the FIR, invoking the inherent jurisdiction of the High Court, it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. In Neeharika Infrastructure (P). Ltd. v. State of Maharashtra [Criminal Appeal No. 330 of 2021, decided on 13.04.2021], a 3-Judge Bench of this Court elaborately considered the scope and extent of the power under Section 482 Cr. P.C. It was observed that the power of quashing should be exercised sparingly, with circumspection and in the rarest of rare cases, such standard not being confused with the norm formulated in the context of the death penalty. It was further observed that while examining the FIR/complaint, quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made therein, but if the Court thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, and more particularly, the parameters laid down by this Court in R.P. Kapur v. State of Punjab (AIR 1960 SC 866 [LQ/SC/1960/96] ) and State of Haryana v. Bhajan Lal [(1992) Supp (1) SCC 335], the Court would have jurisdiction to quash the FIR/complaint."

13. It is apparent from these judgments that power under Section 482 of Cr.P.C. can be exercised to prevent the abuse of process or secure the ends of justice. The Court can quash the F.I.R. if the allegations do not constitute an offence or make out a case against the accused. However, it is not permissible for it to conduct a mini-trial to arrive at such findings.

14. It was submitted that there is an inordinate delay in reporting the matter to the police, which is fatal to the prosecution case. This is not acceptable. It was laid down by the Hon’ble Supreme Court in Chanchalpati Das v. State of W.B., 2023 SCC OnLine SC 650 that the delay in reporting the matter cannot be a ground to quash the FIR. It was observed:

“16. As regards inordinate delay in filing the complaint, it has been recently observed by this Court in Hasmukhlal D. Vora v. State of Tamil Nadu 2022 SCC Online SC 1732 that though inordinate delay in itself may not be a ground for quashing a criminal complaint, however unexplained inordinate delay must be taken into consideration as a very crucial factor and ground for quashing a criminal complaint.”

15. Calcutta High Court also held in Shreekant Sharma v. State of W.B., 2023 SCC OnLine Cal 1961 that the delay in sexual offences cannot be used to quash the FIR. It was observed:

"20. Next the issue under consideration for this Court is whether a delay in filing an FIR by the victim should be a cogent reason for quashing the investigation against the accused and the co-accused. This Court is inclined to answer in the negative as there is a catena of judgments by the Supreme Court, as well as High Courts which hold that delay in filing F.I.R. in cases of sexual assault, should not be equated with other cases to quash proceedings or hold an accused not guilty. The Supreme Court, in Satpal Singh v. State of Haryana, reported in (2010) 8 SCC 714 [LQ/SC/2010/743] held that:

“13. In a rape case, the prosecutrix remains worried about her future. She remains in a traumatic state of mind. The family of the victim generally shows reluctance to go to the police station because of society's attitude towards such a woman. It casts doubts and shame upon her rather than comfort and sympathise with her. The family remains concerned about the honour and reputation of the prosecutrix. After only having a cool thought it is possible for the family to lodge a complaint in sexual offences. (Vide Karnel Singh v. State of M.P. (1995) 5 SCC 518 [LQ/SC/1995/774] : AIR 1995 SC 2472 [LQ/SC/1995/774] ; and State of Punjab v. Gurmeet Singh (1996) 2 SCC 384 [LQ/SC/1996/111] : AIR 1996 SC 1393 [LQ/SC/1996/111] ).

14. This Court has consistently highlighted the reasons, objects and means of prompt lodging of FIR. Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same for reason that in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety. [vide State of Andhra Pradesh v. M. Madhusudhan Rao (2008) 15 SCC 582] [LQ/SC/2008/2177] .

15. However, no straight jacket formula can be laid down in this regard. In the case of sexual offences, the criteria may be different altogether. As the honour of the family is involved, its members have to decide whether to take the matter to court or not. In such a fact-situation, near relations of the prosecutrix may take time as to what course of action should be adopted. Thus, delay is bound to occur. This Court has always taken judicial notice of the fact that “ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon” [vide Satyapal v. State of Haryana (2009) 6 SCC 635 [LQ/SC/2009/774] : AIR 2009 SC 2190 [LQ/SC/2009/774] ].”

21. In State of Himachal Pradesh v. Prem Singh reported in (2009) 1 SCC 420 [LQ/SC/2008/2280] : AIR 2009 SC 1010 [LQ/SC/2008/2280] , the Supreme Court considered the issue at length and observed as under:—

“So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR.”

22. The Bombay High Court in State of Maharashtra v. Savala Sagu 1997 Bom CR Cri, 1997 Cri LJ 786 observed that:

“15. We wish to emphasise that any unmarried girl on account of her bashfulness and the circumstance that not only her own honour but that of her family was at stake, would have been extremely reluctant and loath to disclose to the police, her traumatic experience of being raped. It is only after an efflux of time when she is able to get over a part of her trauma, will she think of lodging the FIR. In our view, no mathematical time limit in lodging an FIR can be fixed in cases of rape. Courts in such cases should adopt a realistic approach rather than one which is unimaginative and theoretical. After all our conduct in life is governed by brass realities.”

23. In X v. State of Kerala Crl. A. No. 649 of 2021, decided on 01-07-2022, the Kerala High Court observed that:

“The delay in a case of sexual assault cannot be equated with a delay in a case involving other offences since several factors weigh on the mind of the victim and members of her family. In a tradition-bound society like ours, particularly in rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there was a delay in lodging the FIR.”

24. In the Supreme Court's decision of Tulsidas Kanolkar v. State of Goa, (2003) 8 SCC 590, [LQ/SC/2003/1064] where the victim of rape was a mentally challenged person and there was a delay in reporting the crime, the Court took into consideration the unusual circumstances while holding the accused guilty and observed that:

“We shall first deal with the question of delay. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. A delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is a possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, a satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of the prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of first information report does not in any way render prosecution version brittle.”

16. Therefore, the FIR cannot be quashed on the grounds of delay.

17. It was submitted that petitioner No.1 and respondent No.4 were in a relationship with each other. Reliance was placed upon the screenshot of the WhatsApp conversation between them. The authenticity of the WhatsApp conversation is still to be adjudicated. Respondent No.4 categorically stated in the FIR as well as in her statement under Section 164 of Cr.PC that petitioner No.1 had raped her after threatening her with the knife. This shows that the act of petitioner No.1 was without the consent of respondent No.4. The California Supreme Court has even gone to an extent in People Vs. John Z. 29 Cal. 4th 756: 60 P.3d 183: 128 Cal. Rptr. 2d 783 2003 Cal.) that the consent has not only to the actual act but has to persist throughout the act and if it is withdrawn during the act, continuation of the act by the accused will amount to the commission of the rape. Therefore, the consent of the informant cannot be inferred from the act that she was in relation with the petitioner.

18. It was laid down by the Hon’ble Supreme Court in Naim Ahamed vs. State (NCT of Delhi), 2023 SCC OnLine SC 89 that Section 114A of the Indian Evidence Act provides that when the victim states in a case of rape that she had not consented, the Court has to presume that there was no consent. It was observed:-

“10. It would be germane to note that the basic principles of criminal jurisprudence warrant that the prosecution has to prove the guilt of the accused beyond reasonable doubt by leading cogent evidence, however, considering the ethos and culture of the Indian Society, and considering the rising graph of the commission of the social crime - ‘Rape’, the courts have been permitted to raise a legal presumption as contained in Section 114A of the Indian Evidence Act. As per Section 114A, a presumption could be raised as to the absence of consent in certain cases pertaining to Rape. As per the said provision, if sexual intercourse by the accused is proved and the question arises as to whether it was without the consent of the woman alleged to have been raped, and if she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.”

19. It was laid down by the Hon’ble Supreme Court in Yedla Srinivasa Rao v. State of A.P. (2006) 11 SCC 615, [LQ/SC/2006/900] that in view of Section 114-A when the victim says that she had not consented, the Court has to presume the absence of the consent. It was observed:-

“15. In this connection, reference may be made to the amendment made in the Evidence Act. Section 114-A was introduced and the presumption has been raised as to the absence of consent in certain prosecutions for rape. Section 114-A reads as under:

"114-A. Presumption as to the absence of consent in certain prosecutions for rape.-In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent."

16. If sexual intercourse has been committed by the accused and if it is proved that it was without the consent of the prosecutrix and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent. The presumption has been introduced by the legislature in the Evidence Act looking to atrocities committed against women and in the instant case as per the statement of PW 1, she resisted and she did not give consent to the accused at the first instance and he committed the rape on her. The accused gave her assurance that he would marry her and continued to satisfy his lust till she became pregnant and it became clear that the accused did not wish to marry her."

20. This judgment was followed in Anurag Soni Vs State of Chhattisgarh, 2019 (13) SCC 1 [LQ/SC/2019/673] . Therefore, in view of the binding precedent of the Hon’ble Supreme Court, the Court cannot infer consent, when the victim stated that she had not consented to the sexual intercourse.

21. Respondent No.4 specifically stated in the FIR as well as in her statement under Section 164 of Cr.PC that petitioners No.1 and 2 told her that petitioner No.1 owned eight kanals of land and the land would be sold to respondent No.4. Respondent No.4 paid the amount on various dates at the petitioners’ asking but the petitioner no. 1 failed to execute the sale deed. The petitioners stated in their petition that the land was possessed by the Kangra Central Cooperative Bank. They have also filed a copy of the possession notice (Annexure P-3) dated 9.10.2020. It shows that the sale was not possible at the time of making the representations by the petitioners because the possession was taken by the bank under the provisions of the SARFAESI Act. Therefore, it cannot be said that it was a purely civil dispute between the parties. It shows that petitioner No.1 could not have executed the sale deed at the time of making representation regarding the sale. Hence, the judgment of Kunti (supra) will not apply to the facts of the present case.

22. It was submitted that the contents of the FIR are false and the same should be quashed. It was laid down by the Hon’ble Supreme Court in State of Maharashtra v. Maroti, (2023) 4 SCC 298 [LQ/SC/2022/1386 ;] : 2022 SCC OnLine SC 1503 that the High Court exercising the power under Section 482 of Cr.P.C. cannot examine the truthfulness, sufficiency and admissibility of the evidence. It was observed:

"21. If FIR and the materials collected disclose a cognizable offence and the final report filed under Section 173(2)CrPC on completion of investigation based on it would reveal that the ingredients to constitute an offence under the POCSO Act and a prima facie case against the persons named therein as accused, the truthfulness, sufficiency or admissibility of the evidence are not matters falling within the purview of exercise of power under Section 482CrPC and undoubtedly they are matters to be done by the trial court at the time of trial. This position is evident from the decisions referred to supra.

22. In the decision in M.L. Bhatt v. M.K. Pandita [M.L. Bhatt v. M.K. Pandita, (2023) 12 SCC 821: 2002 SCC OnLine SC 1300: JT (2002) 3 SC 89 [LQ/SC/2002/225] ], this Court held that while considering the question of quashing of FIR the High Court would not be entitled to appreciate by way of sifting the materials collected in course of investigation including the statements recorded under Section 161CrPC.

23. In the decision in Rajeev Kourav v. Baisahab [Rajeev Kourav v. Baisahab, (2020) 3 SCC 317 [LQ/SC/2020/212 ;] : (2020) 2 SCC (Cri) 51], a two-judge Bench of this Court dealt with the question as to the matters that could be considered by the High Court in quashment proceedings under Section 482CrPC. It was held therein that statements of witnesses recorded under Section 161CrPC being wholly inadmissible in evidence could not be taken into consideration by the Court while adjudicating a petition filed under Section 482CrPC. In that case, this Court took note of the fact that the High Court was aware that one of the witnesses mentioned that the deceased victim had informed him about the harassment by the accused, which she was not able to bear and hence wanted to commit suicide. Finding that the conclusion of the High Court to quash the criminal proceedings, in that case, was on the basis of its assessment of the statements recorded under Section 161CrPC, it was held that statements thereunder, being wholly inadmissible in evidence could not have been taken into consideration by the Court while adjudicating a petition filed under Section 482CrPC. It was also held that the High Court committed an error in quashing the proceedings by assessing the statements recorded under Section 161CrPC."

23. In the present case, the charge sheet has been filed and it is for the learned Trial Court to see the truthfulness or otherwise of the allegations. It was laid down by the Hon’ble Supreme Court in Iqbal v. State of U.P., (2023) 8 SCC 734 [LQ/SC/2023/819 ;] : 2023 SCC OnLine SC 949 that when the charge sheet has been filed, learned Trial Court should be left to appreciate the same. It was observed:

“At the same time, we also take notice of the fact that the investigation has been completed and charge-sheet is ready to be filed. Although the allegations levelled in the FIR do not inspire any confidence more particularly in the absence of any specific date, time, etc. of the alleged offences, yet we are of the view that the appellants should prefer a discharge application before the trial court under Section 227 of the Code of Criminal Procedure (CrPC). We say so because even according to the State, the investigation is over and the charge sheet is ready to be filed before the competent court. In such circumstances, the trial court should be allowed to look into the materials which the investigating officer might have collected forming part of the charge sheet. If any such discharge application is filed, the trial court shall look into the materials and take a call whether any case for discharge is made out or not.”

24. Therefore, there is no material to exercise the extraordinary jurisdiction under Section 482 of Cr.PC. in the present case.

25. In view of the above, the present petition fails and the same is dismissed.

26. The observation made hereinabove shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.