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2004 DIGILAW 301 (JHR)

DRONENDU JHA v. STATE OF JHARKHAND

2004-03-19

VIKRAMADITYA PRASAD

body2004
Judgment : VIKRAMADITYA PRASAD, J. ( 1 ) THIS petition has been filed under Sections 439 and 440 of the Code of criminal Procedure on the ground that when earlier bail application No. 4810 of 2003 was rejected then certain submissions made by the learned counsel for the petitioner was not recorded therein and without looking to the other materials available on record to the bail application. The order passed in B. A. No. 4810 of 2003 reads as follows : "heard both the sides. The petitioner is the husband of the deceased wife who died in an unnatural death within two years of marriage. Allegedly she was tortured. A demand of Rs. two lakhs was also made. The postmortem report reveals the death is due to hanging. In view of the aforesaid fact, at present, I am not inclined to enlarge the petitioner, namely, Dronendu Jha, on bail. His prayer for ball is rejected at this stage. " ( 2 ) TWO questions arise (I) What Is the scope of this petition whether this petition can be treated as petition for regular bail (ii) whether this petition is required to be answered that a Court if had not considered certain submissions made by the learned counsel for the petitioner, should re-appraise the order passed in a criminal proceeding. As by the order impugned the bail was rejected at that stage, at any subsequent time the petitioner on some new facts could have renewed his prayer for bail by filing a fresh bail application, which the petitioner has not done, rather this petition has been filed under Sections 439 and 440 of the Code of. Criminal Procedure for reviewing and/or recalling the order (supra ). ( 3 ) THE learned counsel for the petitioner has referred to certain judgments of the Apex court arguing that the Court may consider these facts again which were not considered earlier passing the impugned order. The question therein was that certain grounds taken by the petitioner in that case were not taken into consideration by the Court. Therefore, the Apex Court said that matter may be considered by the Court itself and not by the Apex Court because it did not involve any substantial question of law. The apex Court also said that when certain points were moved and not considered then in that circumstance it can be placed before that very Court. Therefore, the Apex Court said that matter may be considered by the Court itself and not by the Apex Court because it did not involve any substantial question of law. The apex Court also said that when certain points were moved and not considered then in that circumstance it can be placed before that very Court. ( 4 ) WHEN final order is passed then it is presumed that all the contentions raised by either side, were considered and after considering the same, final order has been passed. In some cases so many submissions may be made and it is not necessary for the court to incorporate all the submissions made by the learned counsel for either sides in the order but it does not mean that those submissions have not been considered while passing the final order. Particularly in Bail cases if all the points raised by the learned counsel for either sides are answered In the way, in which trial Court answered the questions, then in that case the defence or the prosecution is likely to be prejudiced or benefited. Therefore, salient grounds are recorded in the order for allowing the bail or rejecting the bail. No decision could be shown to me by the learned counsel for the petitioner that the bail orders must be a very elaborate like ajudgment of acquittal or conviction. ( 5 ) IN the Instant case, the instances which were existing against the petitioner at that time, were shortly incorporated in the order impugned. ( 6 ) THE learned counsel for the petitioner submits that during the course of investi gation even the neighbourers have not heard anything and the-complainant had also not made any grievance prior to the date of occurrence regarding the demand of dowry. Though, I do not wish to examine the merits of the case and express any opinion in this Cr. M. P. But I wish to say that three circumstances (I) the petitioner being the husband of the deceased wife who died an unnatural death within two years of marriage (ii) Allegedly she was tortured and (iii) a demand of Rs. 2 Lakhs was also made and the postmortem report revealed the death is due to hanging were considered. M. P. But I wish to say that three circumstances (I) the petitioner being the husband of the deceased wife who died an unnatural death within two years of marriage (ii) Allegedly she was tortured and (iii) a demand of Rs. 2 Lakhs was also made and the postmortem report revealed the death is due to hanging were considered. The period of two years is such a short period during which complain or counter complain between both the families is not expected in every case that is why there was no panchayati or no earlier complain. I wish to put a question if the death of a girl is caused in an unnatural circumstance just in the morning of the marriage, whether the prosecution Is duty bound to show a document of panchayati or earlier complain. Perhaps not. ( 7 ) THE learned counsel for the petitioner raised a question that presumption under section 113 (b) of the Evidence Act is rebuttable and the presumption existing in this case should have been considered at the time of disposal of the bail petition. I find myself in serious disagreement with this argument of the learned counsel for the petitioner. If considering the evidence of all the witnesses available on record the bail Court holds that the presumption has been rebutted then in fact the bail Court works as the trial Court, which Is not the business of the bail Court. ( 8 ) IN the aforesaid circumstance, I do not find any merit in the argument raised by the learned counsel for the petitioner and the grounds taken in this Criminal miscellaneous Petition. If certain observations have been made by the Court below saying the absence of torture, which refusing discharge prayer then in that circumstance, he may move for revision of order. Cr. M. P. is, thus, not maintainable and is dismissed. Petition dismissed. --- *** --- .