IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.259 of 2006 AMOD KUMAR PATHAK @ AMOD PATHAK & ORS Versus STATE OF BIHAR & ANR ----------- 5. 30.7.2008. Heard the learned counsel for the parties. This revision has been filed for setting aside the order dated 17.2.2006 passed by Sri Harendra Nath Tiwary, 9th Addl. Sessions Judge, Muzaffarpur in Cr. Revision No.186 of 2004 as well as order dated 24.7.2006 passed by S.D.J.M. (East), Muzaffarpur in Trial No.1526 of 2006. It appears from the record that the opposite party no.2 Soni Devi filed a complaint case bearing no.1209 of 2004 against six persons including these petitioners under sections 498A, 323, 406 and 379 I.P.C and ¾ of the Dowry Prohibition Act. The Magistrate after enquiry under section 202 Cr.P.C. vide order dted 10.11.2004 took cognizance only against Pramod Pathak and Bhagya Narayan Pathak and refused to take cognizance against these petitioners. The complainant filed a revision before the Sessions Judge, Muzaffarpur which was ultimately heard by Additional Sessions Judge vide Cr. Revision No.186 of 2004. The learned Additional Sessions Judge vide impugned order dated 17.2.2006 allowed the revision and directed the lower court to make further enquiry under section 398 of the Cr.P.C. In the light of direction given by the learned Additional Sessions Judge, the Sub Divisional Judicial Magistrate vide order dated 24.7.2006 also took cognizance against these petitioners and issued - 2 - N.H./ summons. The submission of the learned counsel for the petitioners is that since the cognizance had already been taken against some of the accused persons upon the complaint filed by the opposite party no.2, no order for further enquiry can legally be passed under section 398 of the Cr.P.C. It is further submitted that the order for further enquiry can be passed only in case the complaint is dismissed under section 203 or sub section (4) of section 204 of the Cr.P.C. Considered the submission of the learned counsel for the petitioners as also the provision enshrined under section 398 of the Cr.P.C. It is quite apparent from the order and above discussion that section 398 of the Cr.P.C. is not applicable in this case as the Magistrate had already taken cognizance against some of the accused persons and the complaint case was not dismissed. The learned Additional Sessions Judge has wrongly entertained the revision and passed order giving direction to the court below for further enquiry in order to summon these petitioners. Accordingly, this application is allowed. The impugned both orders are hereby set aside. However, this order will not bar the court to summon the petitioners or any other persons under section 319 Cr.P.C. if evidence comes against them. ( Ghanshyam Prasad )