IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER S.B. CRIMINAL MISC. APPLICATION NO.206/2008 IN S.B.CRIMINAL MISC. PETITION NO.1426/2005. Vikas Lakhara Vs. State of Rajashan. 7.2.2008. HON'BLE MR. JUSTICE DALIP SINGH Shri Dileep Singh Jadoun } Shri Pawan Sharma, } for the petitioner. Shri B.S.Chhaba, Public Prosecutor. Heard the learned counsel for the parties. The petitioner is the accused in the petition filed by the wife Smt. Neha against the order passed by the learned Magistrate dated 6.7.2004 by which the cognizance was taken only in respect of the offence under Sections 324 read with 34 IPC and not for the offence under Section 498A IPC. The revision filed by the complainant was also dismissed by the learned revisional court vide order dated 30.6.2005 and petition under Section 482 Cr.P.C. was filed. After hearing the petitioner as well as the learned Public Prosecutor as the accused was not a party to the petition under Section 482 Cr.P.C. the said petition filed by Smt. Neha, after going through the record was allowed and the direction was given for setting aside the order passed by the learned Magistrate as well as the revisioinal court and for taking cognizance under Section 498A as prima facie there was material for taking cognizance under Section 498A IPC against the accused. In this petition the accused petitioner has submitted that the petitioner has been prejudiced on account of the misc. Petition filed by Smt. Neha the complainant being allowed vide order dated 2.8.2007 without the petitioner having been heard. With a view to afford an opportunity to the petitioner the learned counsel for the petitioner was heard in the matter so as to make out a case on merits to recall the impugned order. Learned counsel for the petitioner submitted that there was no material before the court for taking cognizance for the offence under Section 498A IPC as none of the witnesses had submitted any thing with regard to cruelty on account of demand for dowry towards the complainant wife. In view of the above submission, the learned counsel for the petitioner was asked to read the statement of Smt. Neha the wife under Section 161Cr.P.C. In her statement under Section 161 Cr.P.C. Neha has clearly stated as under : "मुन् ना तेजेन् ि ने कहा कȧ तेरे ǒपहर वालɉ ने कह Ǒदया इस पर मɇने कहा Ǒक मेरȣ माँ ने झुमकȧ व पायजेब दे दȣ है इस पर मेरȣ नन् द सुिशला ने कहा Ǒक तेरे माता ǒपता ने िसंगल बेड Ǒदया है । कम से कम डबल बेड तो देते हमे घाǑटया फिनचर Ǒदया है ।" It has further been submitted by Neha “ "इस पर नाराज होकर मेरȣ नन् द सुिशला व मेरे पित ने मेरे सा थ मारपीट कȧ । इस पर मɇने कहा Ǒक पेरे माता ǒपता ने सगाई मे 25 हजार Ǿपये नकद व कपडɅ सभी को Ǒदये है दलहे को एक सोने कȧ ु चैन, एक अंगुठȤ सोने व एक सुट पहनने का Ǒदया था इतने पर भी तुम लोग सन् तुं ट नहȣ हो È या इस पर मेरे पित व मेरȣ नन् द सुिशला ने मुझसे और 50 हजार Ǿपया लाने को कहा ।" The above submission of the wife Smt. Neha forms part of the chargesheet and was recorded during the investigation. In view of the fact that the above evidence had been gathered during the investigation and was available on the chargesheet it could not stated by the learned Magistrate that there was no material for holding that a charge under Section 498A IPC is not made out. So far as the merits of the statement or its truthful or otherwise is concerned the same is to be considered during the trial and the learned Magistrate taking cognizance cannot weigh the same at the stage of taking cognizance. In the facts and circumstances I find no good ground to re- call the order. Consequently, this petition is dismissed. (DALIP SINGH),J. Ramchandrkhatri,PS