IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.404 of 2007 NIRMAL KUMAR ROY Versus THE STATE OF BIHAR ----------- For petitioner:-Mr. R.S. Pradhan, Sr.Advocate Mr. A. N. Rai, Adv. For State:- Mr. Md. Ansarul Haque, APP For O.P. No.2:Mr. Rajesh Kumar, Adv. ----------- 6. 29-Jan-2010 Heard learned counsel for the petitioner and learned counsel for the State. 1. Petitioner was the complainant in C.R. No. 263-C of 2004 leading to Trial No.2244 of 2006 in the court of Sri M. P. Singh, Judicial Magistrate, Bettiah. His grievance is against order dated 4.9.2006 whereby the learned Magistrate applied himself to the evidence collected during inquiry as well as to the complaint petition and on a thorough scrutiny of facts he came to the opinion that the matter involved defalcation of public money and the complainant had chosen to ignore the instructions of his headquarter and instead of lodging FIR with the police so as to enable thorough investigation against all the guilty persons, had chosen to file a complaint petition. 2. The Magistrate, prima facie, doubted the 2 involvement of the complainant as he had passed the pay bill in question. According to learned counsel for the petitioner no amount could, however, be withdrawn. The court, ultimately, found a prima facie case under Sections 406 and 420 of the IPC against the complainant as well as two other persons and then directed the Officer Incharge of the concerned police station to send a letter to the headquarter of Bihar State Food and Civil Supplies Corporation Ltd., Sone Bhawan, Birchand Patel Path, Patna-1 to depute an officer for prosecuting the case. The Magistrate further directed the office to issue summons against all the three accused persons including complainant. 3. Learned counsel for the petitioner/complainant has submitted that in a complaint case the jurisdiction of the Magistrate was limited and he could not have chosen to make out 3rd case and could not have taken cognizance against complainant also without there being any investigation or other material before him. 4. On going through the order of the learned Magistrate minutely, this Court finds that the Magistrate has acted with prudence and has fully applied himself to the 3 relevant facts of the case but he appears to have overlooked the necessity of a thorough investigation in a case involving defalcation of the public money or attempted defalcation. 5. In the interest of justice, this Court is persuaded to interfere in the matter only to a limited extent. Without quashing the impugned order in totality, only that part whereby a prima facie case amounting to cognizance under Section 406 and 420 of the IPC was recorded by the learned Magistrate is found objectionable. He should have referred the complaint without his prima facie findings and observations to the concerned police station for instituting an FIR and conducting investigation in accordance with law within a reasonable time frame. To that extent, the impugned order is partially set aside and it is directed that the order passed by the Magistrate shall not be treated as an order of cognizance but shall only be an order for directing the police to lodge an FIR and proceed for investigation in accordance with law. For that purpose, the Magistrate will be justified in sending a letter to the Bihar State Food and Civil Supplies Corporation Ltd., Sone Bhawan, Birchand Patel Path, Patna-1 for deputing an officer to take proper steps in the matter after 4 the lodging of FIR and for securing proper investigation of the police case. 6. With this modification in the impugned order, this application is finally disposed of . perwez (Shiva Kirti Singh, J.)