JUDGMENT : Narasimham, C.J. - This is a revision against an order of the Subdivisional Magistrate of Athgarh directing the issue of processes against the four Petitioners for an offence u/s 427 Indian penal Code. 2. The case has had an interesting history and has involved several prominent persons of Athgarh town as will be clear from the following facts. The opposite party is a member of the Orissa Legislative Assembly and is the Chairman of the Panchayat Samiti of Athgarh block; On 21-8-1961 he lodged information at Athgarh police station against the four Petitioners and two other persons named Dr. Abhiram Misra and Sri P. Sahu the then Subdivisional Officer of Athgarh alleging that at the instigation of the Subdivisional Officer the other persons trespassed into his compound broke down a stone wall which he had constructed and put up a new boundary wall after encroaching into his area. The Police registered a case as G.R. case No. 160 of 1961 and took up investigation, but as the Subdivisional Officer himself was named as one of the accused the Superintendent of Police rightly thought that the matter should be reported to the District Magistrate. Further investigation by the Police was therefore stopped and the help of the District Magistrate was sought. The District Magistrate directed the A.D.M. (Executive) to hold a judicial enquiry. Then the A.D.M. (Executive), Shri P.K. Mohapatra held an enquiry and submitted a lengthy report dated 25-10-1961 saying that there was a bona fide boundary dispute between Dr. Abhiram Misra on the one hand and the opposite party, on the other, that the Sub-divisional Officer Athgarh had started a miscellaneous case for the cancellation of the lease said to have been granted to the opposite party from Government, and that there were proceeding u/s 107 and 144 Code of Criminal Procedure between Dr. Abhiram Misra and the opposite party. He also pointed out that from enquiries made from the Revenue Kanungo and the Amin it appeared that there was a boundary dispute between the two persons as their plots lay adjacent to each other. He also made some adverse comments on the credibility of the witnesses examined by the opposite party. The learned District Magistrate accepted that report and directed the Police to submit final report mistake of fact or mistake of law. The District Magistrate's order was passed on 11-1-1962. He also made some adverse comments on the credibility of the witnesses examined by the opposite party. The learned District Magistrate accepted that report and directed the Police to submit final report mistake of fact or mistake of law. The District Magistrate's order was passed on 11-1-1962. While the aforesaid enquiry was pending, the opposite party had lodged information on 22-8-1961 against Dr. Abhiram Misra and others for an offence u/s 379 Indian Penal Code. That was registered as G.R. case No. 122 of 1961. He again lodged another information on 2-9-1961, against Dr. Abhiram Misra and some other persons, alleging an offence u/s 379/34 Indian Penal Code. That was also registered as G.R. case No. 126 of 1961. In all these cases, the Police submitted final report in view of the order of the District Magistrate on the main case. Thereupon the opposite party filed three protest petitions before the S.D.M. (Judicial) in the aforesaid 3 cases, challenging the submission of final report by the Police. The S.D.M. rightly treated these protest petitions as complaints, but without examining the complainant on solemn affirmation and without even discussing the reasons given by the A.D.M. (Executive) in his inquiry in the previous case, he straight away issued summons against the Petitioner observing that the order of the District Magistrate directing the A.D.M. (Executive) to hold a judicial enquiry and the judicial enquiry held by the latter were both illegal. 3. The S.D.M. Athgarh had clearly misconceived the position. Though separation of the Judiciary from the Executive has been introduced in Athgarh, the Code of Criminal Procedure as not been amended. Government in consultation with the High Court merely issued executive instructions allocating the functions under the Code which should be exercised Judicial Magistrates, those which should be exercised by the Executive Magistrates and those which are meant to be concurrent. But these executive instructions cannot have the effect of amending the provisions of the Code of Criminal Procedure itself, and so long as the District Magistrate functions as "District Magistrate" and the A.D.M. (Executive) also exercises functions as "Additional District Magistrate" under the Code, their action cannot be held to be illegal, even if they do not strictly conform to the executive instructions regarding allocation of functions issued by Government. It is undoubtedly expected of all Executive Officers that they would strictly conform to those instructions and if they do not do so the matter may have to be taken up on an administrative level. But it will not be correct to say-so long as they function as Magistrates under the Code-that their orders are illegal. 4. Here if the facts are further scrutinised, it will be noticed that the holding of a judicial enquiry by the A.D.M. (Executive) was correct. In the executive instructions regarding allocation of functions, though the power u/s 157 Code of Criminal Procedure is shown as exercisable by the Judicial Magistrate, nevertheless it is pointed out that the Executive Magistrate should get a copy of the F.I.R Similarly though the power u/s 159 Code of Criminal Procedure is shown as concurrent, it is pointed out in the remarks column that the power to direct investigation or to depute a Magistrate to hold a preliminary enquiry will ordinarily be exercised by the Executive Magistrate. 5. Thus when the Superintendent of Police reported the matter to the District Magistrate mainly because the Subdivisional Officer himself was implicated as an accused the District Magistrate had undoubted jurisdiction u/s 159 Criminal Procedure Code to stop investigation and direct an enquiry to be made by a fairly senior Officer above the rank of Subdivisional Officer. Her rightly chose the A.D.M. (Executive) for that purpose. There is nothing illegal in his action in ordering an enquiry to be made by the Executive A.D.M. or in the letter holding such an enquiry. Similarly on receipt of his report, the District Magistrate as justified in ordering the Police to submit final report. 6. It is true that when a protest petition is filed it should be treated as a complaint by the Subdivisional Magistrate and proceeded with, under Sections 201, 202 or 203 Code of Criminal Procedure. He should have held a judicial enquiry if he thought such a course advisable. But here, after thorough enquiry by the A.D.M. (Executive) there was no necessity for holding a further enquiry or for issuing process against the Petitioners. Both parties are highly respectable persons and there is a boundary dispute between them as regards their plots which lie adjacent to each other. But here, after thorough enquiry by the A.D.M. (Executive) there was no necessity for holding a further enquiry or for issuing process against the Petitioners. Both parties are highly respectable persons and there is a boundary dispute between them as regards their plots which lie adjacent to each other. The opposite party's possession of the land itself is somewhat doubtful, and as admitted by him in the preliminary enquiry, the Subdivisional Officer has already started proceedings for annulling the lease granted to him. There are also other disputes between the parties u/s 107 and 144 Code of Criminal Procedure. If there fore the opposite party felt aggrieved by the conduct of the Petitioners he could have sought his redress in the Civil Court. It was not proper for him to utilise the machinery of the criminal court or to implead the Subdivisional Officer as an accused in his F.I.R. 7. I would, therefore, allow this revision, and quash the order of the Subdivisional Magistrate, Athgarh, issuing process against the Petitioners u/s 427 Indian Penal Code. Final Result : Allowed