The District Magistrate's power to call for records under Section 435 of the Code of Criminal Procedure is not affected by government instructions on the separation of judiciary and executive.

S.P.Singh, J.

1. Sri Kedar Nath Goenka, resident of Monghyr Town, has moved this Court in revision challenging the propriety and validity of the orders dated 1-2-65 and 8-2-65 passed by Sri V/s. Prasad, the then Subdivisional Magistrate, Sadar, Monghyr, in a Criminal Proceeding instituted against the petitioner, his son and his employee. The relevant facts are these:

2. On a Sunday, the 24th January, 1965, one Murlidhar Singh, Area Karamchari of Monghyr Sadar Anchal, filed a petition of complaint against Sri Kedar Nath Goenka and his son alleging that on 19-1-65 they got a Mohogny tree, standing in khas Mahal land bearing plot No. 151, cut by their men and removed the same. The Subdivisional Magistrate passed the following order at the foot of the petition :-

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"O. C. Town P. S. Please institute a case under Sec.379/ 109 I. P, C. and investigate--V. Prasad. 24-1-65."

On receipt of this petition along with the aforesaid order of the Sub Divisional Magistrate, the Officer-in-charge of the town Police Station made the following endorsement at the bottom of the complaint petition :

"Received at 12/10 hours and registered case No. 29 dated 24-1-65 under Sec.379/109 I. P. C. and took up investigation. Sd. Pandey S. I. 24-1-65."

On the same day on receipt of a requisition from the Officer-in-charge of town police station, the Sub Divisional Magistrate issued a non-bailable warrant of arrest against the petitioner and his son, returnable on the same day. Not only that, he went to the police station in his car, picked up a police officer from there and went to the Goenka Dharamshala and found there the logs of the tree loaded on a truck. He effected the seizure of the logs, caused the arrest of the Kapilshewar Singh, a servant of the petitioner and himself became a witness to the seizure.

3. On 25-1-65 the petitioner moved the District Magistrate of Monghyr for staying the proceeding, calling for the record and for withdrawal of the case. The District Magistrate, after hearing the petitioner, passed the following order on 25-1-65.

"Petitioner heard. Call for the record from the S. D. O. Sadar by 2-2-65. Meanwhile, the order issuing warrant of arrest against the petitioner and further proceedings are stayed. Local police should be informed in case the warrants of arrest have already issued, to stay their execution till further orders".

This order of the District Magistrate, even though conveyed to the Sub Divisional Magistrate, was not complied with by the latter. On the contrary, on 1-2-65 he recorded the following order questioning the legality and propriety of the order passed by the District Magistrate-

"1-2-65 Memo No. 360C/Bidhi, dated 25-1-65 of the District Magistrate received on 29-1-65 is put up before this court to-day. One petition filed on 29-1-65 on behalf of one Krishna Ballav Singh is also put up to-day. The District Magistrate vide his aforesaid memo has called for the record of Town P. S. case No. 27, D/- 24-1-65 and has stayed the execution of warrant of arrest against Kedar Nath Goenka and others and the further proceedings of this Court. From the names of the parties it appears that there is a clerical mistake regarding number of the Town P. S. case under reference, So, it is taken that it refers to Town P. S. Case No. 29 dated 24-1-65.

The petitioner Krishna Ballav Singh has filed the aforesaid petition against this order of the District Magistrate. In nutshell he has stated that the orders of the District Magistrate in calling for the record of the court of justice and in staying execution of warrant of arrest and further proceedings pending before this court are inherently illegal and without jurisdiction. He has further stated that the District Magistrate has sent a copy of his order to the police direct and the police in good faith has stayed the execution of warrant of arrest. He has further contended that on the whole the above order and the said act of the District Magistrate in a way amounts to cont