This application by the two petitioners is directed against the order dated 6.6.1981 passed in Suit No. 141 C of 1981 by the Judicial Magistrate, Biharsharif. By this order the learned Magistrate has issued processes against the petitioners and one Javed Khan for offences under sections-302, 364 and 201 of the Indian Penal Code.

2. The relevants facts are that the complainant Chhote Lal Mistry on 28-5-1981 filed a complaint petition before the Chief Judicial - Magistrate in which he alleged that the petitioners and another person namely, Javed Khan had committed offences under the aforesaid provisions.

It was stated in that petition that on 30.4.1981 the deceased Dukhan Mistry, nephew of the complainant, went as usual to work at A.K. Industries but did not return the same evening. On 1.5.1981, communal riot in the city of Biharsharif, which had begun the previous day, had spread resulting in an order of curfew being clamped on the whole town. Thus the complainant was unable to search his nephew. After curfew was relaxed, the complainant went to A.K. Industries where he was told that his nephew Dukhan, on 30.4.1981, after finishing his work had left A.K. Industries and had not turned up thereafter. On 16-5-1981 the complainant lodged information before an Information Centre established by the administration regarding the fact that his nephew was missing. In course of enquiry the complainant himself met Jagdish Mistry and Narendra Lal, who told him that on 30-4-1981 they had met the deceased near a Shiva Temple and the deceased told them that he wanted to go home but because of the riot Jagdish Mistry and Narendra Lal dissuaded him from moving. In the meantime the two petitioners and Javed Khan came in a car bearing number 584 which was being driven by petitioner no.1. Javed Khan asked the deceased to go home with him and as there was complete peace and there was nothing to be afraid when the doctor i.e. petitioner no 1 was in the car. The deceased accompanied them. Thereafter the deceased has been missing.

3. The learned Chief. Judicial Magistrate transferred this complaint petition to the court of Shri A.P. Sharma, Judicial Magistrate 1st class, Biharsharif under section-In of the Code of Criminal Procedure (hereinafter) referred to as the Code' for enquiry or trial in accordance with law. Shri Sharma took the statement of the complainant on solemn affirmation and then, examined under section-202 of the Code five witnesses in support of the complainant's case which included Jagdish Mistry, Narendra Lal and Baldeo Prasad. According to Narendra Lal and Jagdish Mistry, Baldeo Prasad was also present when the deceased went away with the petitioners and others in the car on the fateful evening of 30.4.1981. On a consideration of the materials on the record, the learned Judicial Magistrate has issued processes against the petitioners.

4. In support of this application it has been submitted that on the materials on record the Magistrate was not justified in issuing processes against the petitioners as there was not sufficient materials to proceed with in the matter.

5. Under the provisions of the Code of Criminal Procedure, after enquiry is conducted by the learned Magistrate under section-202, he has two options, either to issue processes against the accused persons named or to dismiss the application. In the instant case, on a consideration of the materials the learned Magistrate has chosen to issue processes.

6. There can be no doubt that in determining whether processes should be issued Or not, the learned Magistrate concerned has not got to see whether the case will end in conviction or acquittal. All that he is to consider is whether there is sufficient material to proceed with in the matter. In the case of State of Karnataka V.L. Muniswamy and others Chandrachud, J., as he then was, speaking for the Court, observed that in a proceeding under section 203 of the old Code for determining whether there is suffi