M.A.A.KHAN, J. - (1.) HEARD , Smt. Amrit Kaur respondent No. 2 filed a complaint under Section 498A and 406 IPC against the applicant and 8 others. The complaint was investigated by the police under Section 156 Cr.P.C. and in so far as the present applicant is concerned, the final report was submitted in his favour. The learned Magistrate, however, summoned the present applicant also as an accused of an offence under Section 498A and 406 IPC. But on a revision petition filed under Section 397 Cr.P.C. learned Add1. Sessions Judge No. 2, Alwar vide his order dt. 10.8.1998 held that no prima facie case for offence under Section 406 IPC was made out against the applicant but at the same time he further held that order of taking cognizance of offence under Section 498A IPC and summoning the present applicant as an accused thereunder was maintainable. Aggrieved by the order of the learned Add1. Sessions Judge, the applicant has filed this petition under Section 482 Cr.P.C.
(2.) IT was submitted by the learned Counsel for the applicant that the applicant was simply a brother -in -law (Sister's husband) of the husband of Smt. Amrit Kaur and has nothing to do with the internal affairs of his in -laws. In this behalf, the learned Counsel referred to the statement of several witnesses recorded under Section 161 Cr.P.C. in the course of investigation and highlighted the statements of the witnesses including the prosecutrix herself who had never stated that the present applicant had, in any manner, harassed or treated with cruelty Smt. Amrit Kaur for demand for dowry. I have gone through the impugned order made by the courts below. Learned Magistrate appears to have gone by the statement recorded under Sections 200 and 202 Cr.P.C, ignoring altogether the statement of those very witnesses recorded under Section 161 Cr.P.C. In order to take cognizance of an offence on the basis of protest petition, Magistrate is required to consider and take into account the result of the investigation as reported in the police report along with the material submitted therewith. Where the police submits a final report after thorough investigation of cognizable offence, the evidence collected by the investigation officer must be considered along with the report while considering the statement recorded under Sections 200 and 202 Cr.P.c. In the persent case it may be pointed out that the Learned Addl. Sessions Judge himself negatived complainant's case that any dowry item was handed over in trust to the present applicant. The present applicant was simply a Damad of that house wherein Smt. Amrit Kaur had entered as the wife of a son. In his position of Damad he could not have an occasion or opportunity or motive to harass or treat Smt. Amrit Kaur with cruelty for demand on account of dowry unless it was shown that the applicant was going to be benefited by such demand. It is not in evidence that the applicant was living along with his wife with his in -laws and that any demand for dowry, if fulfilled, would have also benefited him in any manner. In that sense of the matter, the impugned order relating to the applicant is found to be unjust causing injustice to the present applicant. Continuance of such order is likely to cause prejudice to the interest of the applicant and miscarriage of justice. The same deserves to be vacated.
(3.) IN the result, misc. petition succeeds and the impugned order of the learned Addl. Sessions Judge is set aside and the proceedings pending against the applicant are dropped.;