- (1.) THIS Cr. Misc. has been filed on behalf of the petitioners against the order dated 31.8.1999 passed by the Judicial Magistrate, Dhanbad in C.P. Case No. 702 of 1999 by which the petitioners have been summoned to face trial for the offence punishable under Sections 498/380/323/506 of the Indian Penal Code.
(2.) THE brief fact appearing from the Complaint is that the Complainant - Manzoor Alam was having strained relation with his wife and he had lodged this case against in -laws with the allegation that they had taken the wife of the Complainant in his absence. It is further alleged that they had also taken away ornaments and other valuables from the house and committed theft. When the Complainant went to enquire about the matter, the accused persons assured that wife of the Complainant shall be sent back within 2 -3 days but it was not done. When the Complainant chased to bring back his wife and the articles taken away by the accused persons, he was threatened and assaulted. It is submitted that relation between the Complainant and his wife was strained for which accused -petitioner -Md. Serajul Haque, who is father -in -law of the Complainant had lodged a case vide C.P.No.626 of 1999 under Section 498A I.P.C. against the Complainant. The Complainant has lodged this counter -case only to create pressure to settle the dispute. No case under Section 498 I.P.C. is made out against the accused persons because the wife of the Complainant had been living with her parents out of her sweet -will. The story of commission of theft, assault and threatening are false and fabricated. The learned Magistrate should not have passed order under Section 204 Cr.P.C., directing the petitioners to face trial for the offence alleged, without application of judicial mind. This is nothing but sheer abuse of the process of law and therefore, this Court has ample power under Section 482 Cr.P.C. to quash the impugned order and also the entire criminal prosecution of the petitioners arising out of C.P. Case No. 702/1999.
(3.) ON the other hand, Counsel appearing for the Opposite Party has vehemently opposed the argument and submitted that the learned Magistrate has rightly considered the statement of witnesses recorded on oath and also the statement given by the Complainant in his S.A. The averments made in the Complaint and the statement given by the witnesses during enquiry are sufficient for the purpose of issuance of process against the petitioners and therefore, the learned Magistrate has rightly passed the impugned order. It is not the stage when it is to be considered as to which offence is made out or which offence is not made out. It is also not the stage to decide that against which of the accused, evidence for his prosecution is available or not. The purpose of enquiry under Section 202 Cr.P.C. is only to the extent to pass order either under Section 203 or under Section 204 of the Cr.P.C. Since the learned Magistrate has found prima facie material to proceed against the petitioners, impugned order has been passed.;