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1963 DIGILAW 65 (ORI)

KASINATH PANIGRAHI v. STATE

1963-05-01

R.L.NARASIMHAM

body1963
JUDGMENT : Narasimham, C.J. - This is a petition in revision against an order passed by the Additional District Magistrate of Ganjam (Judicial) setting aside an order of discharge, passed by a First Class Magistrate (Executive) of Chatrapur in a commitment proceeding for an offence u/s 395 Indian Penal Code. The learned Magistrate by his order dated 31-1-1951 held that no prima facie case was made out against the accused persons and discharged them u/s 207A Code of Criminal Procedure. On that day the scheme of separation of the Judiciary from the Executive was not in operation in the District of Ganjam. Against the order of discharge, a revision petition a u/s 438 Code of Criminal Procedure was filed before the Additional District Magistrate (Executive) Ganjam on 10-3.1961. During the pendency of that petition the scheme of separation was introduced in the district of Ganjam on 25.10-1961. Thereupon the said revision petition appears to have been transferred to the Additional District Magistrate (Judicial), who, after hearing the parties, passed final orders directing the commitment of the accused. 2. Mr. Misra for the Petitioner rightly contended relying on the Executive Instructions dealing with allocation of functions between the Judiciary any the Executive that the Additional District Magistrate (Judicial) had no jurisdiction to revise a final order passed by the Executive Magistrate. This is clear from a perusal of the said Executive Instructions, dealing with Sections 435,436 and 438 of the Code of Criminal Procedure, which are as follows : Sl. Judicial Executive Concurrent Jurisdiction Remarks. No. Magistrate Magistrate If the matter relates to an order passed by the Executive Magistrate with power under this section, will be exercised by the Executive District Magistrate. If the Original order is passed by the Judicial Magistrate, the powers under this section will be exercised by the Judicial A.D.M. It was pointed out by this Court in 24 (1963) C.L.T. 164 that the aforesaid Executive Instructions cannot have the effect of amending the provisions of the Code of Criminal Procedure and non compliance with the same may not render the orders of District Magistrates or Additional District Magistrates illegal if their acts could be otherwise justified by the provisions of the Code. But the principle of that decision may not apply herein view of the language of Section 10(2) of the Code of Criminal Procedure so far as Additional District Magistrates (Judicial) are concerned. But the principle of that decision may not apply herein view of the language of Section 10(2) of the Code of Criminal Procedure so far as Additional District Magistrates (Judicial) are concerned. That sub-section says that the Additional District Magistrates shall exercise only such powers as the State Government may direct. Hence these Instructions defining the powers of an Additional District Magistrate (Judicial) would obtain some statutory force, being in the nature of directions contemplated by Sub-section (2) of Section 10 of the Code of Criminal Procedure. Hence where the Additional District Magistrate (Judicial) exercises jurisdiction in contravention of the Executive Instructions, defining his jurisdiction his order will become invalid. 3. I must therefore uphold Mr. Misra?s contention and set aside all orders passed by the Additional District Magistrate (Judicial) from 25-10-1961. Criminal Revision Petition No. 6 of 1961 is therefore restored to the file of the Additional District Magistrate (Executive) Ganjam, to the stage at which it was on 13th September 1961, and all orders passed subsequent to that date are quashed. The Additional District Magistrate (Executive) may then dispose of the petition according to law. 4. These observations also apply to the connected Criminal Revision Petition No. 4: of 1961, between the same parties, which was filed before the Additional District Magistrate on 31st May 1961 prior to the introduction of the scheme of separation. In that case also all orders passed by the Additional District Magistrate (Judicial) subsequent to 25th October, 1961 are set aside and the revision petition is restored to the file of the Additional District Magistrate (Executive) who may then dispose of it according to law, after hearing it analogously with Criminal Revision petition No. 6 of 1961.