The main legal point established is that the order declining to send the complaint for institution of FIR is not an interlocutory order but an order of moment affecting the rights of the complainant, and the accused persons must be given the opportunity of hearing in accordance with Section 401(2) of the Criminal Procedure Code.

Arun Kumar, J.

Heard learned counsel for the petitioners and the learned counsel for the State.

2. The petitioners, accused persons of Complaint Case No. 104 of 2011 (arising out of Sasaram Town P.S.Case No. 1300 of 2014), have preferred this revision application against order dated 17.09.2014 passed by the Additional Sessions Judge-V, Rohtas at Sasaram in Criminal Revision No. 114 of 2014 thereby allowed the revision application filed by Opposite Party No. 2, Bhagwan Singh, complainant, setting aside order dated 29.01.2014 passed by the Chief Judicial Magistrate, Sasaram whereby the complaint case was transferred for enquiry and disposal under Section 192(1) of the Criminal Procedure Code (hereinafter referred to as the 'Code') to the court of Judicial Magistrate, 1st Class, Sasaram.

3. The brief facts giving rise to the case is that Bhagwan Singh, complainant, filed a Complaint Case No. 104 of 2014 against the accused persons, petitioners of the present application, Vice Principal of Shanti Prasad Jain College, Sararam and the Registrar of the Veer Kunwar Singh University respectively making accusation of committing embezzlement and misappropriation of money belonging to college fund. The specific accusation is that for the academic sessions 2006-2009 of BCA, the fees deposited by 64 students, Rs. 10,000/-each, out of the total money received, only Rs. 3,21,500/- was deposited in the Bank account of the college and rest amount was misappropriated. The audit report submitted by the Chartered Accountant on 24.09.2012 also recorded misappropriation of Rs. 10 lacs done by the accused persons. The complainant brought this criminal act to the knowledge of Manoj Kumar, Registrar of the University but no action was taken as he was hand in glove with the Vice Principal and financial irregularities and misappropriation continued and Sesam Trees of the College were also auctioned in the name of fictitious person and the woods, valued Rs. 15 lacs, was misappropriated. The complainant asserted in the complaint petition that written information in this regard was submitted to the Officer Incharge, Town Police Station Sasaram, but no action was taken. Therefore, the complainant made prayer in the complaint petition for giving direction to the S.H.O. of the concerned Police Station for lodging FIR and to proceed with the investigation. However, the learned Chief Judicial Magistrate, by order dated 29.01.2014, taking cognizance of the offence, transferred the case under Section 192(1) of the Code for enquiry and disposal, instead of sending the complaint, as prayed for, under Section 156(3) of the Code, to the police for institution of the FIR and to proceed with the investigation.

4. Learned counsel appearing on behalf of the petitioners submits that by the impugned order, the learned Additional Sessions Judge has set aside order dated 29.01.2014 which is not appropriate for the reason that it was an interlocutory order, so no revision lies against an interlocutory order. Moreover, the Judicial Magistrate, after receiving the complaint on transfer, also passed order dated 13.03.2014 calling for a report from the concerned police station. The learned Additional Sessions Judge has failed to appreciate that already cognizance of the offence was taken by the Chief Judicial Magistrate despite that interlocutory order was set aside; moreover, the complaint was filed out of malice at the instance of witness No. 1 of the complaint petition because of dispute relating to his promotion so he nursed grudge against the petitioner no. 1. Further, it is submitted that it is discretion of the court whether to proceed further for enquiry and trial under chapter XIV & XV of the Code or to send the Complaint for lodging FIR to the police for the purpose of investigation. Since the Chief Judicial Magistrate has taken first option to proceed in the matter for enquiry after taking cognizance so there is no illegality in the order dated 29.01.2014 and requ