ORDER
A.B. Qadir Parray, J.
1. This petition has been filed under the provisions of Section 561-A, Cr. P.C. by the petitioner as far back as on 14-4-1988. Notices were issued to the parties and even records have been called. For a pretty long time, no body appears in these proceedings. The matter came up for perusal and consideration.
2. From the perusal of the file, it transpires that one Mst. Sakeena, complainant before the Court of learned Chief Judicial Magistrate, Srinagar had lodged a complaint on 10-3-1988 under Section 406 against her husband, petitioner herein, alleging that she at the time of her marriage had taken the marriage gifts certain movable property, the list of which was enclosed with the complaint. Out of the wedlock between the complainant and the accused, a child is also born, but the non-applicant/accused had turned her out from the house. It is alleged that the non-applicant accused is going to misappropriate the property taken by her to her in-laws.
3. After having recorded the statement of the complainant by the learned Magistrate, he had deferred to take cognizance and had referred the matter to respondent No. 2. Officer In charge Police Station Kothibagh under Section 202, Cr. P. C. for making enquiry into the matter. The learned Magistrate had also referred copy of the complaint along with list of articles and the statement of the complainant for action on 10-3-1988 and had directed the Officer Incharge, Police Station Kothibagh to report on 25-3-1988.
4. It seems that the report of the Officer Incharge, Police Station Kothibagh had been submitted to the Court, wherein besides making narration of the facts, as submitted by the petitioner in her complaint, it has been observed that in case the articles were allowed to be left at the place of non-applicant husband, there was apprehension of being misappropriated of the said property as such the officer incharge had seized the property vide seizure memo and produced the same before the Court. The Court had in turn vide order dated 28-3-1988 pending objections from the non-applicant/ accused, handed over the property to the complainant Mst. Sakeena on supardnama.
5. The petitioner before me in those proceedings is the husband of the complainant. He instead of approaching the said Court of Judicial Magistrate, Srinagar had filed the present petition under Section 561-A, Cr. P. C. for quashing the proceedings.
6. The averments made in the petition in hand by the petitioner are that the relatives of the respondent No. 1 are trying to coerce the petitioner to dispose of entire property at Anantnag and to come and live at the parental house of the respondent No. 1 at Srinagar. The complaint does not disclose any offence having been committed by the petitioner. The procedure which has been adopted by learned Chief Judicial Magistrate, Srinagar is being questioned by the petitioner in this petition on the ground that the learned Magistrate has not taken cognizance of the case. The enquiry officer under the provisions of Section 202, Cr. P. C. (Officer 1/C, Police Station Kothibagh) had not only searched the house of the petitioner, but has also taken away a part from the goods, all the items wrongly mentioned by the complainant in her list of property attached with the complaint. It is being averred that the Officer Incharge was neither empowered to conduct the search nor to seize the goods from the house of the petitioner and that too in absence of the petitioner, and without having any warrant of search, the Officer Incharge had transgressed his limitations.
7. It is further averred in the petition that the learned Magistrate had without taking cognizance of the case, handed over the goods seized illegally by the Officer Incharge to the complainant, respondent No. 1 herein and he had no jurisdiction to do so before taking cognizance in the case, and the cognizance of the case is still not taken in the matter and so on.
8. Thus two questions arise viz :
(i) Whether the Magistrate was empowered to send the matter for enquiry under Section 202, Cr. P. C?
(ii) Whether the Magistrate was empowered to make disposal of the property alleged to have been seized under the proceedings conducted by the Officer Incharge Police Station, Kothibagh under Section 202, Cr. P. C?
Section 202 of Cr. P. C. reads as under :
202. Postponement for issue of process: (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, or which has been transferred to him under Section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and either inquire into the case himself or, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint.
9. It is further provided under proviso (2) of the said section that:
(2) If any inquiry or investigation under this section is made by a person not being a Magistrate or a police officer, such person shall exercise all the powers conferred by this Code on an officer-in-charge of a police station except that he shall not have power to arrest without warrant.
10. So on the plain reading of Section 202, Cr. P. C. I do find that the learned Chief Judicial Magistrate, Srinagar is authorised under law to defer taking of cognizance and to refer the matter for investigation/enquiry to be made by :
(i) any Magistrate Subordinate to him; or
(ii) such other person as he thinks fit for purpose of ascertaining truth or falsehood of the complaint.
11. In the present case, the learned Chief Judicial Magistrate, Srinagar had under the powers vested in him by the Code deferred the taking of cognizance of the offence under Section 406, RPC complained before him by the respondent No. 1 complainant and has asked the Officer In-charge, Police Station Kothibagh to enquire/investigate into the matter and police officer, Incharge Police Station Kothibagh in the capacity of his being a police officer and having power under the Code of Criminal Procedure, proceeded on spot, investigated/enquired into the matter and on enquiry it was found that the movable property which is alleged to have been entrusted/taken by the complainant as marriage gifts by her at the time of her marriage to her in-laws/husband and as per list, the property was found in possession of the petitioner herein, husband of the complainant. After identifying the articles, the same had been seized in the capacity of police officer.
12. Thus the powers which have been exercised by the Officer Incharge not only under the directions of the Magistrate/Code and by virtue of the powers vested in the person or Officer Incharge, Police Station Kothibagh to whom enquiry/investigation was assigned under Section 202, Cr. P. C. So none of the powers have been exercised by the Officer Incharge, Police Station Kothibagh, which he was not authorised by the Code or the Magistrate, while enquiring/investigating into the offence.
13. It may be recalled that an Officer Incharge of Police Station has been prohibited specifically under the Code itself that he cannot, make arrest without warrant, but the fact remains that he is empowered to seize the articles of offence/subject-matter of the complaint. He is not prohibited to seize them and to make inventory/seizure memo of the same.
14. It may also be not out of place to mention here that the person of the Officer Incharge of a Police Station is empowered by the Code to conduct search in respect of the properties/things which are alleged to have been misappropriated or the police officer making such enquiry/investigation has reasonable grounds for believing that anything necessary for the purpose of an investigation into any offence which he is authorised to to investigate may be found in any place and that such things cannot in his opinion be otherwise obtained without undue delay, such officer after recording in writing the grounds of his belief and specifying in such writing, so far as possible the thing for which search is to be made, search, or cause search to be made, for such thing in any place.
15. So the search which has been conducted by the seizure memo which has been made by the investigating officer under the provisions of Section 202, Cr. P. C. being the Officer Incharge of a Police Station, was not only authorised by the Court, but also he had powers under the Code itself to conduct seizure of the property which is found to be the bone of contention in the complaint. So the powers exercised by the Officer Incharge, Police Station Kothibagh while investigating/enquiring under Section 202, Cr. P. C. was within his competence to seize the articles which were complained about being misappropriated by the non-applicant/petitioner herein. So there is nothing illegal which would warrant interference by this Court to quash the proceedings on this count.
16. Now remains the second question, whether the Magistrate was empowered to dispose of the property in the case, of which he has not taken cognizance till date.
17. It may be noted that the provisions of Disposal of Property under Chapter XLIII, Section 516-A of Cr. P. C. provides as under:-
516-A: Order for custody and disposal of property pending trial in certain cases; when any property regarding which any offence appears to have been committed or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and if the property is subject to speedy or natural decay, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.
18. Thus plain reading of Section 516-A, Cr. P. C. fully empowers the Magistrate to make disposal of the property even in cases, wherein cognizance has not been taken, but the property has been produced regarding which any offence appears to have been committed.
19. Here in the present case, the report of the investigating officer is that he was apprehending that the property, if left with the non-applicant, petitioner, would have been misappropriated, the Magistrate has no doubt to take cognizance of the report furnished by the Officer Incharge, Police Station who was authorised by him to investigate and enquire into the matter under the provisions of Section 202, Cr. P. C. So the report is yet to be considered by the Magistrate. Under the provisions of Section 202, Cr. P. C. the Magistrate is no doubt empowered after the perusal of the report of the investigating officer that no sufficient grounds for taking of cognizance against the non-applicant exist, he can dismiss the complaint after recording his reasons for the same. The petitioner instead of approaching this Court should have approached the Court of learned Chief Judicial Magistrate showing that no case was made out, for which cognizance should be taken or further proceedings be taken. Instead of approaching the said Court, the petitioner has approached this Court under the provisions of Section 561-A, Cr. P. C. which reads :
561-A: Saving of inherent power of High Court:- Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
20. Thus from the above discussions and conclusions arrived at, I do not find that any abuse of the process of Court has been committed by the learned Chief Judicial Magistrate and thus the petition under Section 561-A, Cr. P. C. is misconceived. The Magistrate has to apply his mind to the report submitted by the Officer Incharge and also to the statement of the complainant and other material which has been brought before him to have the logical conclusion of the complaint.
21. For the foregoing reasons, the petition under Section 561-A, Cr. P. C. is dismissed. Records be sent back to the Court of learned Chief Judicial Magistrate, Srinagar who shall proceed in the matter after applying his mind to the report submitted by the Officer Incharge, Police Station Kothibagh and other material which has been brought on record. The petition be consigned to records.