HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION Nos.8157 & 8158 of 2011 COMMON ORDER: These two Criminal Petitions are filed by the petitioners, under Section 482 Cr.P.C., seeking to quash the order dated 23.08.2011 made in Crl.M.P.No.2307 of 2011 in C.C.No.133 of 2010 on the file of the II Addl. Judicial Magistrate of First Class, Rajahmundry, East Godavari District. Since the point to be decided in both the matters are one and same, both the criminal petitions are being disposed of together by this common order. Briefly, the facts of the case are that one Murala Aruna filed a private complaint against her husband, 2nd respondent herein (A.1), and her in-laws (A.2 and A.3) alleging harassment for additional dowry before the II Addl. Judicial Magistrate of First Class, Rajahmundry, who forwarded the same to the S.H.O., Prakash Nagar P.S., Rajahmundry for investigation and report. Basing on the said complaint, the police registered Crime No.49 of 2010 against the 2nd respondent and his parents for the offences punishable under Sections 498-A of IPC and 3 and 4 of the Dowry Prohibition Act. After completion of investigation, the Inspector of Police, Prakash Nagar P.S., Rajahmundry laid charge sheet before the II Addl. Judicial Magistrate of First Class, Rajahmundry and the learned Magistrate took cognizance of the offences and numbered the same as C.C.No.133 of 2010. On appearance, the 2nd respondent-A.1 filed a petition in Crl.M.P.No.2307 of 2011 before the trial Court with a prayer to take the case on file against the petitioners herein, who are the counsel, relatives and close family associates of the complainant, for the offences under Sections 120-A, 120-B, 199, 504, 107, 175, 196, 182, 211, 385, 499 and 173 read with 34 & 35 of IPC, examine the witnesses and punish them, considering the Sections 468, 340 (1) and 195(1)(b)(ii) of Cr.P.C. The learned Magistrate, while ordering notice to the petitioners as well as to the Addl. Public Prosecutor, posted the case to 14.09.2011 for hearing as to maintainability, by an order dated 23.08.2011. The same is under challenge in these criminal petitions. The main grievance of the petitioners is that without deciding the maintainability of the petition, the learned Magistrate numbered the petition and issued notice to them by an order dated 23.08.2011 and hence the same is nothing but abuse of process of law. Heard both sides and perused the entire record. This Court is of the view that the learned Magistrate, without issuing notice to the petitioners, may independently decide the issue as to whether the petition is maintainable or not, after hearing the public prosecutor. Further, filing of an application under Section 340 of Cr.P.C. will arise only during the period of adducing evidence. The material placed before the Court, in any event, cannot be called as evidence. The learned Magistrate in an erroneous manner passed the order impugned herein considering the material available on record as evidence. Hence, the same is liable to be quashed. Accordingly, both the Criminal Petitions are allowed and the order dated 23.08.2011 passed by the II Addl. Judicial Magistrate of First Class, Rajahmundry, East Godavari District, in Crl.M.P.No.2307 of 2011 in C.C.No.133 of 2010, is hereby quashed. Miscellaneous petitions, if any, filed shall stand closed. _____________ RAJA ELANGO, J 22nd November, 2011 cbs HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION Nos.8157 & 8158 of 2011 (Allowed) 22nd November, 2011 cbs