STATE OF RAJASTHAN Vs. AKHLESH CHANDRA SHARMA

JUDGEMENT

(1.) Two applications, one under section 482 Cr. P. C. and the other under section 439 (2) Crimial P.C. came for decision. Both the above applications art disposed of by one single order as the matter to be decided in both these applications is common.

(2.) Brief facts leading to these petitions are that on 8th Jan., 1982, one Shri Kishan Chand lodged an FIR at Police Station, Manak Chowk that he and his friend Amar Chand had been doing some business of brokerage in precious stones. Kushal Chand was the partner of the firm know n as 'Ratna Deep'. The allegations in the FIR were that on 10th Novembar, 1981, the accused Akhlesh Chand along with his cousin brother Naresh Chand came to them and told that they wanted diamond rings, ear-tops etc. for a customer. Thereafter, several items of Jewellery worth about Rs. 2,50,000.00 were entrusted to the accused. Subsequently, the accused did not return the aforesaid articles and committed criminal breach of trust in respect of the same. On the above information the police registered a case under section 406 IPC against the accused persons Akhlesh Chandra and Naresh Chandra. Application submitted by Akhlesh Chandra for anticipatory bail under section 438 Cr. P. C. was dismissed right upto the Supreme Court while Naresh Chandra was released on anticipatory bail.

(3.) It appears that certain proceedings under sections 82 and 83 Cr. P. C. were initiated against the accused Akhlesh Chandra and he was ultimately arrested on 27th March, 1983. On 28th March. 1981, he was produced before the Judicial Magistrate No. 13, who remanded the accused to police custody up til 2nd April. 1983. During this period the accused moved an application for getting him medically examined. On the said application the Magistrate passed an order on 28th March, 198 3, that the accused may be forwarded to the Medical Jurist. S M. S. Hospital for doing needful and report on 30th March, 83. It appears that on 29th March, 1983 the accused was produced before the Medical Jurist but the Medical Jurist made a report to the court to mention the nature of the medical examination (injury, poison, alcohol, age and sex). The Medical Jurist sought a clarification regarding the nature of medical examination. The case of the prosecution is that on 29th March, 1983, the accused gave an information under section 27 of the Evidence Act that he had sold the valuable articles to a broker of Jodhpur and he could get the same recovered. In pursuance of that information the Investigating Officer took the accused to Jodhpur on 30th March, 1983 by Bus and reached Jodhpur on the same day at 3 p.m. On March 31, 1983, the Investigating Officer attempted to make recovery on the basis of information given by the accused but the case of the prosecution is that the accused did not cooperate in the recovery. At that time a radiogram message was received at about 4 p. m. by the Investigating Officer asking him to return to Jaipur along with the accused. The Investigating Officer in these circumstances was left with no choice and had to return to Jaipur. He returned back to Jaipur along with the accused in the morning of 1st April, 1983. It appears that on 2nd April, 1983 the Presiding Officer of the Court of Judicial Magistrate No. 13 was on leave and as such the police sought a further police custody remand from the Chief Judicial Magistrate. The Chief Judicial Magistrate, however, declined to grant further police custody remand and by an order dated 2nd April, 1983, directed the accused to be taken to judicial custody.