1. Petitioner and respondent No.1 were married to each other but due to strained relations have been residing separately, in the process respondent No.1 has filed complaint before the Court of Chief Judicial Magistrate, Sopore complaining therein that the petitioner (accused) has misappropriated various costly items as detailed in para 3 of the complaint. Learned Magistrate while examining the complainant and the witness as produced in support thereof, has taken cognizance vide order dated 23.6.2011 recording therein that the proceedings in terms of Section 202 Cr. P. C are imperative, therefore, directed SHO Police Station concerned to conduct the enquiry under Section 202 Cr. P.C and to seize the property/articles and to submit the report. In compliance thereof, police has seized various articles as mentioned in the report submitted before the Magistrate.

2. Before further proceedings could be conducted by the Magistrate, petitioner (accused) has filed the instant petition under Section 561-A Cr. P. C for quashment of the proceedings so initiated.

3. Learned counsel would contend that in the complainant-respondent has claimed to be the wife of the petitioner which means, according to the averments of the complaint, conjugal relationship subsists. When it is so offence punishable under Section 406 RPC is not made out, therefore, Magistrate should not have taken the cognizance. Supporting the submission has placed reliance on the judgment reported in KLJ 2004 1.

4. In the reported judgment reliance has been placed on the Full Bench judgment rendered by the High Court of Punjab & Haryana in the case captioned Vinod Kumar Sethi & others v. State of Punjab & another (AIR 1982 P&H 372), wherein it has been held "that the allegation of breach of trust between husband and wife so long as the conjugal relationship lasts and the matrimonial home subsists, cannot constitute an offence under section 406 RPC subject to any special written agreement." Applying the ratio of the said judgment and the position of the complaint being barred by limitation, cognizance taken and process issued has been quashed.

5. So far as present case is concerned, admittedly in the complaint as well as the statements of the complainant and the witness recorded, position of subsistence of the marriage is not denied but this case has otherwise peculiar features i.e. petitioner in this petition has specifically pleaded that he has divorced the respondent No.1 and in support of the said position has placed on record divorce deed dated 14th of June, 2011. What would be its impact on the complaint has to be looked into.

6. Learned Magistrate while taking cognizance appears not to have applied his mind properly because the procedure prescribed vis-a-vis complaints to Magistrates is governed by Chapter XVI of the Code of Criminal Procedure. The Magistrate while complying with the provisions of Section 200 Cr. P. C has proceeded under Section 202 Cr. P. C i.e. he has postponed the issue of process and has directed the police to conduct the enquiry but at the same time has directed the police to seize the articles. Police, seem not to have conducted the enquiry but instead has complied with the second part of the order i.e. has seized the articles. Learned Magistrate should not have directed the police to seize the articles. When Magistrate has postponed the issuance of process, then police had to conduct the enquiry and the police while conducting the enquiry was competent to exercise all the powers conferred by the Code of Criminal Procedure as is clear from sub-section (2) of Section 202 Cr. P. C. Section 202 does not empower the Magistrate to order seizure of the articles, instead empowers the Magistrate to order enquiry for the purpose of ascertaining truth or falsehood of the complaint. On receipt of the report Magistrate had to proceed further, either in accordance with Section 203 or in accordance with Section 204 Cr. P. C. It is not clear from the records as to whe

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