PRASHANT KUMAR AGARWAL,J. - (1.) Apprehending their arrest the accused-petitioners have jointly filed this application under Section 438 Cr.P.C. for grant of anticipatory bail in respect of FIR No.380/2014 registered at Police Station Kotwali Sawaimadhopur for the offences under Sections 420, 467, 468, 471, 409, 385, 193, 195, 196, 197, 198, 167 and 120-B IPC. The allegation against the petitioners are that they entered into criminal conspiracy with co-accused-Dr. Makhhanlal Kanwat and prepared forged and fabricated injury reports to support the allegations made in FIR No.161/2013 registered at Police Station Shrimahaveerji, District Karauli for offences under Sections 498-A, 406 and 323 IPC at the instance of accused-petitioner-Dr. Hari Singh. The bail application filed by the petitioners for grant of anticipatory bail under Section 438 Cr.P.C. has been dismissed by the Sessions Judge, Sawaimadhopur vide order dated 5.4.2016. It is to be noted that benefit of anticipatory bail was granted to co-accused-Dr. Makhhanlal Kanwat by Sessions Judge, Sawaimadhopur vide order dated 5.2.2016.
(2.) Brief relevant facts for the disposal of this application are that accused-petitioner-Dr. Hari Singh, who is father of accused-petitioner-Smt. Savita, lodged FIR No.161/2013 on 18.11.2013 at Police Station Shrimaveerji, Karauli for the offences under Sections 498-A, 406 and 323 IPC and for offence under Section 4 of the Dowry Prohibition Act. Against husband of petitioner-Smt. Savita Shri Bhupendra Kumar Meena a Judicial Officer and his several family members with the allegation that accused-petitioner Smt. Savita was harassed and cruelty was committed upon her when their demand for dowry could not be fulfilled. It was also alleged that the dowry articles have not been returned despite demand was made. It was also alleged that Smt. Savita was beaten two times as averred in the FIR. Alongwith the FIR two injury reports of Smt. Savita prepared by co-accused Dr. Makhhanlal Kanwat were also filed before the police. It is said that after investigation the allegations made in the aforesaid FIR No.161/2013 have been found to be false and FR has already been submitted before the concerned Court which has been accepted. During the course of investigation of FIR No.161/2013, complainant-Shri Ajay Kumar, who is brother of Shri Bhupendra Singh, lodged present FIR with the allegations that both the injury reports filed alongwith FIR No.161/2013 are forged and fabricated which have been prepared by co-accused-Dr. Makhhanlal Kanwat at the instance of present petitioners. It is to be noted that at the relevant time Dr.Makhhanlal Kanwat was posted as Medical Jurist at Government Hospital, Sawaimadhopur whereas accused-petitioner-Dr.Hari Singh was posted as Chief Medical and Health Officer at Sawaimadhopur. It was alleged in the FIR as Dr. Makhhanlal Kanwat was posted under accused-petitioner-Dr. Hari Singh he prepared false and fabricated injury reports of accused-petitioner-Smt. Savita under the pressure and influence of accused-petitioner Dr. Hari Singh.
(3.) In support of the application, learned counsel for the petitioner submitted as below:- (1) The present FIR has mechanically been registered for offences 467,468 and 471 IPC, which all are non-bailable offences, without application of mind although no such offences can be said to be made out even prima facie if the allegations made in the FIR are accepted. It is an admitted fact that when the injury reports in dispute were prepared co-accused-Dr. Makhhanlal Kanwat was posted as Medical Jurist in Government Hospital, Sawaimadhopur and both the injury reports were prepared by him in that capacity and these bear his signatures and seal and also signatures of both the petitioners and in view of these admitted facts, it cannot be said that any false, fabricated and forged document was prepared within the meaning of Sections 463 and 364 IPC. Merely as alleged by the complainant that these injury reports were prepared showing injuries to petitioner-Smt. Savita although she sustained no injuries and at the relevant time co-accused was posted under accused-petitioner-Dr. Hari Singh, no false, fabricated and forged document can be said to have been prepared. It is well settled legal position that a document cannot be said to be forged and fabricated merely by the reason that it contains a false statement or fact. These reports cannot be said to be false and forged by this reason also that incident took place at Jaipur whereas these were got prepared at Sawaimadhopur where Dr. Hari Singh was posted. Injury report dated 14.5.2011 bearing No.746 of Smt.Savita can not be said to be fabricated by the reason that Injury Report bearing same date and number actually prepared in the name of one Shri Lekhraj. Similarly, I.R. dated 28.8.2013 cannot be labelled to be forged merely by the reason that co-accused was not on duty on that day and no other report was prepared by him. (2) Offences under Sections 420, 409 IPC are also not made out against petitioners even prima facie if the allegations made in the FIR are taken at their face value. It has not been made clear who has been cheated by petitioners and how and in what capacity some property or money was entrusted to petitioners or any of them which has dishonestly and fraudulently been misappropriated. Without entrustment of property, no offence under Section 409 IPC can be said to be made out. Similarly without inducement and delivery of any property fraudulently and dishonestly, offence under Section 420 IPC can be made out. (3) So far as offence under Section 385 IPC is concerned, although there is no allegation that some one was extorted or put in fear of injury etc. by petitioners or any of them to deliver any property but otherwise also it is a bailable offence. (4) So far as offence under Section 193 IPC is concerned, although fabrication of false evidence for the purpose of being used in judicial proceedings is punishable with imprisonment which may extend to seven years but it is a bailable and non-cognizable offence in which police cannot arrest without a warrant from a competent Magistrate. , (5) Offence under Section 195 IPC is also not made against petitioners, as none of the offences for which FIR No.161/2013 was lodged is punishable with imprisonment for seven years or upwards or for imprisonment for life. (6) Offences punishable under Sections 196, 197 and 198 IPC in the facts and circumstances of the case are non-cognizable and bailable and police have no right to arrest. (7) Offence under Section 167 IPC is also not made out against petitioners. Smt. Savita is not a public servant and no document has been prepared by petitioner-Dr. Hari Singh as contemplated under this provision. Otherwise also, the offence is bailable. (8) Application for grant of anticipatory bail in the present case cannot be said to be not maintainable by the reason that proceedings under Section 82 Cr.P.C. were ordered to be commenced against petitioners by the Court concerned vide order dated 12.5.2016 as before that present application was filed before this Court on 11.4.2016 and in compliance of order dated 4.7.2016 of this Court, petitioners appeared before the Investigating Officer and interrogation and investigation was made from them and the purpose to ensure their presence for investigation and trial was fulfilled. Otherwise also, the haste in which the proceedings under Section 82 Cr.P.C. was undertaken by the Court below shows that it was under the influence of Shri Bhupendra Singh and his father-Goverdhan Lal Meena both Judicial Officers so as to deprive the petitioners to exercise their right conferred upon them under Section 438 Cr.P.C. Material on record shows that arrest warrant under Section 37 of the Police Act were issued on 3.5.2016 returnable on 6.5.2016, report about property of petitioners were obtained within three days, statement of process server was recorded on 12.5.2016 and order under Section 82 Cr.P.C. declaring the petitioners as absconder was passed on the same day i.e. within less than ten days. (9) Initially after thorough investigation, no offence was found to have been committed by petitioners and co-accused-Dr. Makhhanlal Kanwat and negative final report was submitted before the Court concerned but that Court without any jurisdiction on the protest petition of the complainant did not accept the same and send the matter for re-investigation whereas it is a well settled legal position that Magistrate has no right to order reinvestigation in a case. It can easily be inferred that it was done under the influence of aforesaid Judicial Officers. ;