ASIM KUMAR MONDAL, J. - (1.) THIS is an application under Section 482 of the Code of criminal Procedure, 1973 for quashing the proceedings being C. Case No.6573 of 2009 pending before the Judicial Magistrate, 5th Court, Alipore, South 24-Parganas under Section 380/385 of the Indian Penal Code.
(2.) THE petitioner Nikita Hitesh Shah filed the instant revisional application challenging the order dated 24th September, 2009 passed by the Ld. Magistrate 5th Court, Alipore, South 24-Parganas wherein Ld. Magistrate has passed an order issuing process against the petitioners under Section 380/385 of the Indian Penal Code. Petitioner No.1 Nikita Hitesh Shah is the married wife of the opposite party No.2 Dr. Hitesh Shah. The petitioner No.1 stated that she was subjected to cruelty during her stay at matrimonial home and thereafter she was compelled to leave her matrimonial home on or about May, 2009. The opposite party No.2, husband of the petitioner No.1 did not provide any maintenance to the wife and as such petitioner No.1 was constrained to filed and application under Section 125 of the Code of the Criminal Procedure before the Ld. Family Court, Bandra, Mumbai. It is submitted that as a counter blast to the said application for maintenance, the present opposite party No.2 in gross abuse of the process of criminal law filed a complaint case before the Ld. Chief Judicial Magistrate, Alipore, South 24-Parganas. Ld. Chief judicial Magistrate, Alipore South 24-Parganas transferred the case to the Court of Ld. Judicial Magistrate, 5th Court, Alipore South 24- Parganas for hearing and disposal Ld. Judicial Magistrate, 5th Court, Alipore South 24-Parganas mechanically and without application of his judicial mind passed the impugned order dated 24th September, 2009 directing issuance of process against the petitioners under Section 380/385 of Indian Penal Code.
(3.) LD . Magistrate while passing the impugned order did not comply with the mandatory provisions of Section 202 of the Code of Criminal Procedure. Admittedly, the petitioners are residing outside the Territorial Jurisdiction of the Ld. Magistrate. The order directing issuance of process against the petitioners without complying mandatory provisions under Section 202 of the Criminal Procedure Code is totally illegal and misuse of the process of law.;