The Magistrate has the discretion to order investigation under Section 156(3) Cr.P.C without taking cognizance, as empowered by the word 'may' in Section 190 Cr.P.C.

1. At request of learned counsel for the petitioner, petition-in-hand is treated as petition under Section 561-A Cr.P.C, necessary note as such be recorded in the title of the petition.

2. Petitioner is aggrieved of order passed by the learned Sessions Judge, Jammu dated 23.02.2013 in terms whereof order of trial Court (C.J.M.), Jammu has been reversed.

3. Hindu Educational Society, Kashmir is registered Society registered under the Societies Registration Act of Smvt. 1998 vide Registration No. 18394/9 dated 25.01.1945. It has its registered office at Raipur Bantalab, Jammu. Said Society is a minority community Institution and has been in existence since 1943. It imparts education and major institutions owned by the Society at present are Gandhi Memorial College, Srinagar and Gandhi Memorial College of Education, Jammu.

4. Basically petitioner along with respondents 5 and 6 has filed a complaint against respondents 1 to 3 alleging therein that said respondents have committed criminal breach of trust in respect of the property of the Society as they have withdrawn and mis-appropriated an amount of Rs.45.00 lac lying in the Central Bank of India, Talab Tillo Branch, Extension Counter, Gandhi Memorial College, Bantalab, Jammu.

5. Complaint was presented before learned Chief Judicial Magistrate, Jammu, who after hearing learned counsel for the complainants has passed order dated 17.10.2012, same is reproduced herein below:-

"Sh. P.N. Goja, Advocate for the complainant. Ld counsel submitted that the case as projected in the complaint is of public importance and needs thorough investigation through Crime Branch. I have also gone through the contents of the case wherein serious allegations of dishonest misappropriation of Rs.45 lac on the part of potential accused persons have been made. The complaint as such, is sent to the Crime Branch, Jammu with the direction to the I/C to verify the allegations and in case cognizable offence appears to have been committed then FIR shall be registered and investigation conducted under law. A copy of this order along with complaint in original shall be forwarded to the I/C, Crime Branch, Jammu through CPO for compliance An index of the file shall be prepared and consigned to records."

6. As against the above order, respondents Nos. 1 and 2 filed Revision Petition. Learned Sessions Judge, Jammu after referring to Sections 200, 202, 204 and 156 (3) Cr.P.C has OPENED that the proper course open to the Magistrate was first to take cognizance then to have got the preliminary inquiry conducted under Section 202 Cr.P.C. and thirdly should have sent it for investigation under Section 156(3) Cr.P.C. He further observed that unless the complainant is examined, the Magistrate is not competent to issue the process and when the Magistrate is satisfied that there is a sufficient material and ground for proceedings then he will issue the process only thereafter Magistrate can proceed under Section 156(3) Cr.P.C. The Magistrate has committed illegality. He has not examined the complainant. He has simply sent the case to the Crime Branch which he ought not to have done. The order drawn by the trial Court is without application of mind, no material existed which would satisfy the Magistrate for passing such order. Order is set aside and complainant is free to seek redressal of his grievance by approaching the appropriate forum.

7. Learned Revisional Court has mis-directed itself in making observations and in framing opinion on wrong assumptions. Furthermore has entertained the revision against an interlocutory order which is barred in view of clear mandate of Section 435 (4-a) Cr.P.C.

8. Section 190 Cr.P.C provides that Magistrate may.

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any police officer; and

(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committ

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