R.L. Narasimham, C.J.
1. This is a revision against the order of Sri V. S. Rao, Magistrate, First Class, Cuttack, acquitting the accused persons who were tried in his court for offences under Sections 147 and 323 I. P. C. The material facts are as follows :
2. On the basis of the FIR lodged by the complainant on 28-3-1963 the police investigated a case under Sections 147 and 323 IPC and submitted final report, declaring the case to be true but the evidence to be insufficient for chargesheet. While the investigation was pending, however, the complainant filed a protest petition before the Executive S.D. O. who called for the case diary, heard the parties on 20-8-1963 and directed the filing of chargesheet against all the accused persons under Sections 147 and 323 IPC. In pursuance of this order, the Police submitted charge-sheet before the Judicial S. D. M. on 30-9-1963 and the S. D. M. Judicial after taking cognizance transferred the case for trial to the file of Sri V. S. Rao Magistrate First Class. That Magistrate examined the prosecution witnesses and closed the case for prosecution on 31-3-64. But on that day he passed an order to the effect that the Executive S. D. O. had no jurisdiction to call for charge-sheet after protest petition had been filed, and that this power was with the Judicial S. D. M. only under the allocation of functions made in the scheme of separation of the Judiciary from the Executive now In force in Orissa. Hence he observed that the initial order calling for chargesheet was without authority and that consequently the entire trial was illegal. Finally he passed the following order : Hence 'I hold the accused not guilty and acquit them under Section 251 Cr.P.C.' Apparently, the learned Magistrate has quoted a wrong section fin the aforesaid order because Section 251 Cr. P. C. does not refer to any power of the Magistrate to acquit an accused. It is the first section in Chapter XXI dealing with trial of warrant cases and merely describes procedure to be followed.
3. The learned Magistrate seems to have over-looked the fact that the administrative instructions issued in pursuance of the implementing of the scheme of separation of the Judiciary from the Executive cannot override the Code of Criminal Procedure, as pointed out by this Court in Kashinath v. Achyutananda Dash, 29 Cut LT 164. Here the Police after due investigation, submitted chargesheet, before the Judicial S.D.M. who took cognizance of the same and transferred the case for trial to Mr. Rao. The competence of the Judicial S. D. M. to take cognizance on the Police chargesheet is beyond question, and his power to transfer the case for trial to Mr. V. S. Rao who is also a judicial magistrate and to subordinate to him, is also unchallenged. Hence, there is no invalidity in the initiation of the case, so as to affect the jurisdiction of the trying magistrate to continue the trial.
4. It is true that in the administrative instructions it has been stated that though the S. D. O. (Executive) has the power to call for charge-sheet on receipt of report from the Police, nevertheless, when a protest petition is filed against police investigation he should send : it to the Judicial Magistrate who alone will have the power of calling for chargesheet if necessary. But these instructions deal with matters which arise prior to the taking of cognizance of Police report which stage was reached here only on 30-9-1963 when chargesheet was filed before the Judicial S. D. M. Even if the Executive S.D.O. committed a breach of executive instructions by calling for charge sheet after protest petition was filed, that cannot in any way affect the jurisdiction of the Judicial S.D.M. to take cognizance on Police report or to transfer the case for trial to Mr. V. S. Rao.
5. The question as to whether an order directing submission of charge-sheet is a judicial order or an administrative order, is not free from difficulty and it has been left open by me in State v. Awoo Bewa, 27 Cut LT 416.
6. The order of acquittal is therefore set aside and the learned Magistrate (or His successor in office as may be decided by the Judicial S.D.M.) is directed to proceed with the trial of the case and dispose of it according to law.