Brishketu Saran Sinha, J. 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. 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 sufficient ground for proceeding against the accused, the Court possesses a comparatively wider discretion and it has to determine whether the materials on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible. Mr. Braj Kishore Prasad submits that in this case even with unrebutted materials on the record a conviction cannot be said reasonably to be possible. 7. Mr. Braj Kishore Prasad submits that in this case even with unrebutted materials on the record a conviction cannot be said reasonably to be possible. 7. I have already stated the facts which have been taken notice of by the learned Magistrate in the impugned order in which he has further stated." The P.Ws. have categorically stated that abovenamed accused persons have murdered the nephew of the complainant namely Dukhan Mistry." If this statement of the learned Magistrate is correct, then undoubtedly the impugned order cannot be challenged. However, Mr. Braj Kishore Prasad has read to me the statement of the three witnesses, namely, Narendra Lal, Jagdish Mistry and Baldeo Prasad. Jagdish Mistry at the end of his deposition has stated that the petitioners and another murdered the deceased. However, taking the deposition as a whole it seems to me that that is his inference from the fact that the petitioners and another person assured the deceased that nothing would happen and took him away in their car when he was last seen alive. The other witness Narendra Lal has said that it is his inference that the petitioners and one another murdered the deceased. Similarly Baldeo Prasad has said that it is his suspicion that the petitioners and another person murdered the deceased. Therefore, on an examination of the relevant materials all that can be said is that the deceased was last seen alive in the company of these petitioners who took him away. There is nothing further to indicate that the deceased was killed by these persons. In view of this evidence all that can be said is that there might be suspicion attached to the conduct of the petitioners but it cannot be said that if this evidence remains unrebutted, then it would end up in conviction of the petitioners. 8. Mr. Kamta Prasad Gupta appearing on behalf of the State, however, relied upon the decision of the Supreme Court in the case of State of Bihar V. Ramesh Singh where it was pointed out that at the initial stage of framing charge if there is strong suspicion, then charges should be framed against the accused person That was a case where, one Smt. Tara Devi died because of burn injuries in her kitchen. The question was whether she had committed suicide or had been burnt. The question was whether she had committed suicide or had been burnt. On the materials it had been found that the husband had strained relationship with his wife and had become friendly with another woman. Taking all those circumstances into account it was held that there was strong suspicion that the accused might have killed his wife and, therefore, in those circumstances the charges were directed to be framed against the person concerned. In the instant case there is nothing to indicate that there was any animosity between the petitioners and the deceased apart from the fact that the petitioners are Muslims and the deceased was a Hindu and the deceased was last seen going with them in car when communal riot had started in the city of Biharsharif. 9. I am, therefore, of the view that even if all the materials on the record remain unrebutted the case will not end up in the conviction of the petitioners and it would be an abuse of the processes of the court to permit the trial to go on. 10. It was next contended on behalf of the State that some further evidence might be forthcoming. In view of the proviso to section 202(2) of the Code in a case Which is exclusively triable by the court of session, as the present case is, no new witnesses can be examined at the sessions trial apart from those whose evidence has been put on record at the enquiry before the learned Magistrate. 11. In the result, this application is allowed and the impugned processes issued against the petitioners is quashed and set aside. Application allowed.