IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.174 of 2007 PRIYANKA KUMARI, D/o Sri Krishna Kumar Achal, R/o Vill.-Mishraulia Jagadish, P.S.-Belsar, District- Vaishali …. Petitioner Versus 1. STATE OF BIHAR 2. Sushil Kumar Das, S/o Late Ram Sobhit Das 3. Madhu Das, W/o Late Ram Sobhit Das 4. Pradip Kr. Das, S/o Late Ram Sobhit Das 5. Manoj Kumar Das, S/o Late Ram Sobhit Das 6. Kunti Devi, W/o Pradip Kr. Das 7. Indu Devi, D/o Late Ram Sobhit Das All R/o Mohalla 506, G.T. Road South, Flat 201, 2nd Floor, D-Block, Mangaldeep Apt. P.S.+ District- Howrah. 8. Nageshwar Das 9. Shivnath Das. Both sons of Late Ram Das, Village-Piroi, P.S.- Bhagwanpur, District- Vaishali. …….. Opposite Parties. For the petitioner : Mr. Raghwanand, Advocate Mr. Ranjeet Kumar, Advocate For the O.Ps. : Mr. Nirmal Kumar Sinha, Advocate Mr. Arun Kumar, Advocate Mr. Sunil Kumar, Advocate. ----------- 9 25-06-2010 Heard both sides. Petitioner is aggrieved by the order dated 11.01.2007 passed by the learned Sub Divisional Judicial Magistrate, Vaishali, Hajipur in Complaint case No. C- 844/06 and T.R. No. 3026/06 (Priyanka Kumar Vs. Sunil Kumar Das) whereby the learned Magistrate on perusal of 2 the materials brought on record in course of enquiry conducted under section 202 Code of Criminal Procedure, has found and held that the materials on record justify taking cognizance of the case under section 498A of the penal code and under sections 3 and 4 of the Dowry Prohibition Act only. Learned counsel for the petitioner draws attention of the court to the averments made in the complaint and states that the learned court below erred in law in not taking cognizance under sections 313 and 328 of the Indian Penal Code. It appears from the statement of the complainant on oath that no such allegation was made by her when she was examined on oath on 1.05.2006. Learned counsel submits that the meticulous evaluation of materials/ witnesses at this stage is not permissible. Learned counsel for the opposite parties supports the impugned order. It is contended that a suit for divorce has already been filed by the husband against estranged wife (petitioner), which is pending in Howrah (Kolkata). It is further submitted that no such allegation 3 was made by the complainant or the witnesses during enquiry. Order summoning an accused seriously prejudice the prosecution, who is sought to be summoned. It has been found to be a sensitive exercise of jurisdiction. The order must reflect that the court has applied its mind. Magistrate cannot be said to be a silent spectator. He has to collate the evidence on record carefully to see whether any prima facie case is made out or not. This is the view expressed by the Hon’ble Supreme Court in the case of (1998) 5 Supreme Court Cases 749 (PEPSI FOODS LTD. AND ANOTHER VS. SPECIAL JUDICIAL MAGISTRATE AND OTHERS). This court on a consideration of the submissions and after going through the materials on record, is not inclined to interfere with the order impugned. This application is accordingly dismissed. Sujit (Kishore K.Mandal, J.)