JUDGMENT & ORDER : 1. This revision petition has been filed by the petitioner U/S 397 read with Section 401 & 482 praying for setting aside and quashing the order dated 11.8.2015 passed by the learned Special Judge, Assam in connection with SVC PS Case No.8/2013. 2. The petitioner is presently working as Research Officer under Education Department and prior to his present posting he was functioning as I/C District Adult Education Officer of Karbi Anglong District and in the said capacity as Member Secretary of Zila Sakharata Abhiyan Samity (in short ZSAS). The said ZSAS was an entity constituted under the Societies Registration Act, 1860 and Executive Member of Karbi Anglong Autonomous Council in-charge of Education Department had functioned as the Chairman. The said projects were centrally sponsored project with 75% of the fund provided by the Central Govt. and 25% by the Karbi Anglong Autonomous Council which is a body constituted and governed under Sixths Schedule of the Constitution of India. On 9.3.2009 the petitioner handed over his charge as i/c District Adult Officer of Non-Formal Adult Education. On 3.12.2010 a letter was issued by the Deputy Commissioner of Karbi Anglong District to the Commissioner & Secretary, Education (Elementary & Secondary) Department asking him to take steps for refund of Rs.7,86,992/- under the ZSAS from the petitioner. After receipt of the said letter on 4.1.2011 the Commissioner & Secretary, Education (Elementary & Secondary) Department put the petitioner under suspension. Thereafter on 7.1.2011 the Deputy Commissioner of Karbi Anglong District wrote another letter referring to his earlier letter dated 3.12.2010 that unspent balance Rs,7,87,992/ is included in audit report as shown in the total amount ofRs.13.50 lakhs being the final state share of PLP programme. This means that the said amount of Rs.7,86,992/- is duly accounted for. Although the matter should have been ended with the subsequent letter issued by the Deputy Commissioner of Karbi Anglong District but it continued to linger in as much as the Commissioner & Secretary, Education (Elementary & Secondary) Department forwarded the matter for enquiry by the Sate Vigilance. After conducting a regular enquiry, an FIR was lodged on 29.8.2013 and on the strength of the said FIR by one Lakhi Narayan Prasad the CM Vigilance P.S.Case was registered as Vigilance Police Case No.8 /2013 U/S 120(B)/409 IPC read with Section13(1)(c)(d)/13(2) of P.C.Act, 1988. 3. After conducting a regular enquiry, an FIR was lodged on 29.8.2013 and on the strength of the said FIR by one Lakhi Narayan Prasad the CM Vigilance P.S.Case was registered as Vigilance Police Case No.8 /2013 U/S 120(B)/409 IPC read with Section13(1)(c)(d)/13(2) of P.C.Act, 1988. 3. Thereafter investigation was carried out and the Final Report was submitted. In the meantime, the Enquiry Report also submitted by the Enquiry Officer in Departmental Proceeding initiated against the petitioner on the same set of allegation. 4. On the other hand, the learned Special Judge before whom the Investigation Officer submitted Final Report by order dated 11.8.2015 rejected the Final Report and ordered further investigation of the case. Challenging the legality and validity of the aforesaid order the present revision petition has been preferred. 5. Heard the submission of the learned counsel for the petitioner Mr. S. Borthakur and also heard Mr. B. Sarma, learned Addl. P.P. for the State. 6. It has been vehemently contended by the learned counsel for the petitioner that the impugned order is bad in law as well as in facts, as because the learned Court has not applied its mind to the findings of the departmental proceedings as well as the findings of the investigating officer while filing the final report and has mechanically passed the order only on the basis of the statement of the IO. Both the findings of the departmental proceedings as well as the investigating officer has negated the criminal liability of the petitioner as about mis-appropriation to attract the offence charged U/S 409 IPC and any offence under P.C.Act any further proceeding with the investigation will be against the interest of justice. Over and above, the impugned order is not on the basis of the opinion of the Court but on the basis of statement of the informant and hence devoid of merit. 7. On the other hand, according to the learned Addl. P.P. Mr. Sarma the revisional Court should not interfere with the discretionary jurisdiction exercised by the Magistrate unless a jurisdictional error or an error of law is noticed (decision of Kishan Lal –vs- Dharmendra Bafana and ors referred below) 8. 7. On the other hand, according to the learned Addl. P.P. Mr. Sarma the revisional Court should not interfere with the discretionary jurisdiction exercised by the Magistrate unless a jurisdictional error or an error of law is noticed (decision of Kishan Lal –vs- Dharmendra Bafana and ors referred below) 8. Attention has been drawn to the various communications (Annexures to the petition) and submission has been made by the learned counsel for the petitioner that although the allegation against the petitioner was generated on the basis of the letter dated 3.12.2010 issued by the Deputy Commissioner, Karbi Anglong with regard to the contention about non-refund money of Rs. 7,86,992/- by the petitioner while giving charge on his transfer but by the subsequent letter dated 7.1.2011 issued by the said Deputy Commissioner, Karbi Anglong (with reference to his earlier letter dated 3.12.2010) clarified that the said amount has already been accounted for as it is stated that unspent balance included in the audit report shown in the total amount of Rs. 13.50 being the final State share of the PLP programme. The said letter virtually closed the earlier issue but the Commissioner & Secretary to the Govt. of Assam persists with the matter which resulted in filing of FIR by the Inspector of Police, State Vigilance Cell, Assam which was registered as SVC PS Case No. 8/13. 9. Further case of the petitioner is that on the strength of the FIR investigation was started and the departmental proceeding was also initiated against the petitioner and ultimately in the departmental proceeding submitted his report (with a copy to the petitioner) that they could not arrive at a conclusion regarding misappropriation of money by the petitioner. The relevant finding of the Departmental Proceeding conducted by the Department is produced below: “The chronology of events displayed an interesting turnaround of the factual scenario in the matter. Till the preparation of the C.A’s Audit Report, no explanation from any quarter was ever offered that there was no unspent amount as on 30.09.2008 to the tune of the amount reflected in the GOI certificate. It was also noticed that there was no contest from any quarter in regard to the accuracy of the Government of India certificate at any level. It was also noticed that there was no contest from any quarter in regard to the accuracy of the Government of India certificate at any level. However, once the said C.A’s Audit Report came into light, the sitting DAEO (who took the charge after Debajit Borah), the Deputy Commissioner and Director, NF & AE seemed to have endorsed the said audit report as the authentic depiction of the funds utilized and in the process, sought to nullify the original compliant of the unspent amount being kept by the delinquent officer illegally” On the other hand at page -38 of the inquiry officer reported his finding as follows: “ However, as regards the departmental proceeding, no proof or evidence was made available or furnished by the prosecution at the time of hearing in regard to the physical presence of the unspent amount o money in the hand of the delinquent office at the time of his handing over of charge on 9.3.2009 or thereafter. The witness appearing before the undersigned during the hearing also did not put forward any evidence that money was physically kept with him by the delinquent officer. Thus, the enquiry could not come to any definite conclusion in regard to the first allegation, i.e. relating to keeping of unspent amount of Rs.7,86,992/- with him by the delinquent officer”. 10. After the findings of the departmental authority as well as totality of other facts and circumstances, the investigating officer in the aforesaid case submitted his final report before the Special Judge, Assam with a finding that there was misappropriation of money by the petitioner and the case arouse out of misunderstanding. After submission of final report the learned Court issued notice to the informant and on 11.8.2015 after examining the informant on oath the learned trial Court refused the accept the FR and directed for further investigation. The aforesaid order has been challenged by this revision. 11. I have gone through the impugned order of the learned trial Court while rejecting the F.R. For better appreciation the aforesaid order is reproduced below: “State –vs- Debojit Borah and others –Accd. SVC PS Case No.8/2013 11.08.2015 Today is posted for necessary order. The occasion of passing out the order has arisen on the filing of the FR where upon this Court was pleased to issue notice to the complainant. SVC PS Case No.8/2013 11.08.2015 Today is posted for necessary order. The occasion of passing out the order has arisen on the filing of the FR where upon this Court was pleased to issue notice to the complainant. Accordingly the complainant caused his appearance and he was examined on oath. The complainant on oath stated as follows: “ I was the complainant/informant of the case. I participated in the SVC RE No.18/2011. The aforesaid RE was against the irregularities committed by accused Debojit Bora, who was in the capacity of i/c Adult Education, Karbianglogn. I have completed the aforesaid RE and at the conclusion of the RE I laid the FIR.; In the RE I have noticed the irregularities which were narrated in the FIR in the following manner: “ By paying in case huge amounts he has willfully violated the rule No.5 of Govt. of Assam Financial (Budget) department notifcationNio.BW.58/92/Pt.II/57 dtd. 19.11.2005 where in it is incorporated that All non salary and non wages payments are required to be made either through bank account of the payee concerned or Bank draft or other bank instrument. Further, the suspect officer had not deducted VAT during payment to the contractors concerned from their bill amounts as it is required by law. Thus he has willfully violated state sales tax law relating to VAT. The suspect officer also had not deducted TDS while paying contractors payments as required by law. And thus he has violated law relating to Income Tax. Most of the vouchers submitted against payments are evidently doubtful. For example 3 nos. copy of vouches and bill are enclosed for favour of kind notice as Annexure-VI. The payments could have been made easily through bank instruments, as most of the payees are found well adept in bank procedures and banking transactions. They have their own bank accounts. Therefore, it is clear that for convenience of misappropriation of Govt. Money the suspect officer had made all transactions in cash willfully violating Govt. Instruction and Govt. Rules. As audit officer was engaged from the Bureau of Investigation namely Sri Khanin Das for verification of accounts in connection to this RE. In his comment the audit officer commented that the suspect officer made payments of huge amounts to supplies in cash instead of bank instruments which is highly irregular. The vouchers were not countersigned and not passed for payment. In his comment the audit officer commented that the suspect officer made payments of huge amounts to supplies in cash instead of bank instruments which is highly irregular. The vouchers were not countersigned and not passed for payment. Purchased teaching materials of huge amounts without tender and without stock entry. Huge amount paid to M/s Tridev Printer Bamunimaidam, Guwahati for printing and supplying of PL Primers to Post literacy programme without supply order. The payments were also made in cash. The detailed expenditure bills were not produced, for expenditure of huge amounts made for various seminars etc. Copy of the audit report enclosed as Annexure-VII” On the basis of my ejhar a regular case was registered and the same was investigated into. Concenred I/O laid the FR, but I am not satisfied with the out come of the investigation and as such I am not agreed with the version of FR in as much as the investigating officer did not address the aforesaid irregularities committed by the accused. Therefore I seek further investigation of this case.” Considering the deposition of the informant in the light of the contention of FIR I am inclined to reject the version of FR and accordingly the same is not accepted. The CD along with the copy of the order be sent to the S.P. CM’s SVC, Assam, Guwahati with a direction to conduct further investigation of this case and to submit the same in FF. Further the S.P. is directed to endorse the further investigation of this case to an experience senior police officer. Fix 29.09.2015 for submission of status report.” 12. Apparently, on the basis of the statement of the informant the learned Court has directed for further investigation without going into the other facets of the case like result of departmental proceeding, reasons on the part of the IO for filing final report, what are the lacuna in the investigation required to be further investigated. Without discussing all about, the impugned order has been passed. It is to be noted here that further investigation implies supplementary investigation which is to be carried out having regard to the lacuna as pointed out by the learned Court. In the impugned order the learned Court neither pointed out any lacuna or any other relevant material aspect need to be investigated. It is to be noted here that further investigation implies supplementary investigation which is to be carried out having regard to the lacuna as pointed out by the learned Court. In the impugned order the learned Court neither pointed out any lacuna or any other relevant material aspect need to be investigated. By sending back the case diary with further direction to carry out the investigation by some other officer, virtually the learned Court has ordered for reinvestigation which is beyond his power and jurisdiction. 13. In Kishan Lal –vs- Dharmendra Bafna and ors, Manu/ SC/1296/2009, Hon’ble Apex Court held as follows- Para 11…………… “The investigation officer may exercise his statutory power of further investigation in several situations as for example when new facts come to its notice, when certain aspects of the matter had not been considered by it and found that further investigation is necessary to be carried out from different angles keeping in view of fact that new or further materials came to its notice. Apart from the aforementioned grounds, the leaned Magistrate or the superior Court can direct further investigation if the investigation is found to be tainted and /or otherwise unfair or is otherwise necessary in the need of justice. Para 13- We have noticed hereinbefore the order passed by the learned Magistrate. His order that “several kinds of issues were not disclosed and beyond from knots of doubt. “is vague in nature. It has not been pointed out that in what respect the investigation has not been carried out. What are the hidden truth required to be unearth had also not been pointed out. The learned Magistrate did not consider the fact that the investigation had been carried out by two different agencies and by responsible police officer. It has not been found that the investigating officer was in any way biased towards the complainant.” 14. The above pronouncement clearly indicates that for passing of an order for further investigation there should be clear finding on the part of the Court that the investigation is tainted and there are certain deficiencies in the investigation so far carried out and it requires further investigation to unearth the whole truth, which is not reflected in the impugned order. 15. 15. The power of the Magistrate to direct further investigation or reinvestigation and under what circumstances the Court can exercise such jurisdiction has been candidly dealt with by the Hon’ble Supreme Court in Vinay Tyagi –vs- Irsad Ali @ Deepak and ors, reported in (2013) 5 SCC 762 referring to large number of earlier decision. The relevant portion of the observation is reproduced below: “20. Having noticed the provisions and relevant part of the scheme of the Code, now we must examine the powers of the Court to direct investigation. Investigation can be ordered in varied forms and at different stages. Right at the initial stage of receiving the FIR or a complaint, the Court can direct investigation in accordance with the provisions of Section 156(1) in exercise of its powers under Section 156(3) of the Code. Investigation can be of the following kinds : (i) Initial Investigation. (ii) Further Investigation. (iii) Fresh or de novo or re-investigation. 21. The initial investigation is the one which the empowered police officer shall conduct in furtherance to registration of an FIR. Such investigation itself can lead to filing of a final report under Section 173(2) of the Code and shall take within its ambit the investigation which the empowered officer shall conduct in furtherance of an order for investigation passed by the court of competent jurisdiction in terms of Section 156(3) of the Code. 22. ‘Further investigation’ is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a ‘further investigation’. Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as ‘supplementary report’. ‘Supplementary report’ would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a ‘reinvestigation’, ‘fresh’ or ‘de novo’ investigation. 23. However, in the case of a ‘fresh investigation’, ‘reinvestigation’ or ‘de novo investigation’ .......................... 40. Having analysed the provisions of the Code and the various judgments as afore-indicated, we would state the following conclusions in regard to the powers of a magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code : 40.1. The Magistrate has no power to direct ‘reinvestigation’ or ‘fresh investigation’ (de novo) in the case initiated on the basis of a police report. 40.2. A Magistrate has the power to direct ‘further investigation’ after filing of a police report in terms of Section 173(6) of the Code. ........................ ....................... 41. Having discussed the scope of power of the Magistrate under Section 173 of the Code, now we have to examine the kind of reports that are contemplated under the provisions of the Code and/or as per the judgments of this Court. The first and the foremost document that reaches the jurisdiction of the Magistrate is the First Information Report. Then, upon completion of the investigation, the police are required to file a report in terms of Section 173(2) of the Code. It will be appropriate to term this report as a primary report, as it is the very foundation of the case of the prosecution before the Court. It is the record of the case and the documents annexed thereto, which are considered by the Court and then the Court of the Magistrate is expected to exercise any of the three options afore-noticed. Out of the stated options with the Court, the jurisdiction it would exercise has to be in strict consonance with the settled principles of law. The power of the magistrate to direct ‘further investigation’ is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. Out of the stated options with the Court, the jurisdiction it would exercise has to be in strict consonance with the settled principles of law. The power of the magistrate to direct ‘further investigation’ is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. To provide fair, proper and unquestionable investigation is the obligation of the investigating agency and the Court in its supervisory capacity is required to ensure the same. Further investigation conducted under the orders of the Court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt with as part of the primary report. This is clear from the fact that the provisions of Sections 173(3) to 173(6) would be applicable to such reports in terms of Section 173(8) of the Code. 51.We have already noticed that there is no specific embargo upon the power of the learned Magistrate to direct ‘further investigation’ on presentation of a report in terms of Section 173(2) of the Code. Any other approach or interpretation would be in contradiction to the very language of Section 173(8) and the scheme of the Code for giving precedence to proper administration of criminal justice. The settled principles of criminal jurisprudence would support such approach, particularly when in terms of such approach, particularly when in terms of such approach, particularly when in terms of 16. It has been clearly made out that power to direct further investigation is a significant one which should be exercised sparingly and satisfaction of the learned Magistrate is a condition precedent for directing further direction. In the instant case the learned Court basing only on the statement of informant without applying his mind to the matters on record and without forming an definite opinion has passed the impugned order, which is not legally sustainable in view of legal pronouncement as has been discussed above. 17. Moreover, communication made by the Deputy Commissioner coupled with the findings of the departmental proceedings apparently had denuded the allegation of misappropriation of any amount by the petitioner herein to constitute an offence under Section 409 IPC or other offence U/S 13 P.C.Act and on the basis of all aforesaid matters on record the Investigating Officer has rightly submitted the final report. As has been indicated in the departmental proceeding there are certain irregularities while disbursing the said money and the said aspect can be taken care of by the departmental proceeding as to the extent of irregularities committed by the petitioner and may arrive at a decision so as to take action upon the petitioner as per procedure. There is sharp distinction between the financial irregularities while disbursing the money and criminal liability. To constitute an offence of criminal breach of trust it is essential that the prosecution has to prove that the accused was entrusted with some property or dominion over the same and there was dishonest misappropriation or conversion for the said property for his own use. In the instant case, on the face of the record, no such finding is arrived at by the investigating officer nor the concerned department has raised such allegation and in such backdrop the allegation of the informant is itself cannot be maintained. From all the angles as discussed above, the direction of the learned Court for further investigation is not at all proper rather illegal. 18. In view of all findings and discussions above, this Court is unable to accept the objection raised by the State Respondents. The impugned order suffers from jurisdictional error as well as error of law as discussed above. Resultantly, the impugned order dated 11.8.2015 passed by the learned Special Judge, Assam in Vigilance Police Case No.8 /2013 120(B)/409 IPC read with Section13(1)(c)(d)/13(2) of P.C.Act, 1988 is quashed and set aside. Petition stands allowed. Return the LCR.