An order passed by a Magistrate in his personal capacity as an executive officer is not revisable by the High Court under Section 435 of the Criminal Procedure Code.

1. This is a reference under S.438, Criminal P.C., by the Sessions Judge, Bhopal, recommending that the order dated 19-9-1951 passed by the Addl. District Magistrate, Bhopal, be set aside.

2. An application was made to the Sessions Judge, Bhopal, complaining that the A.D.M., Bhopal, by his order dated 19-9-1951, delivered possession of a portion of the premises belonging to the mosque out of plot Nos.185 and 186 to the New Bhopal Textiles Ltd., Bhopal, by dismantling the cistern of the mosque located in that area. The order was passed without any enquiry and without giving any opportunity to the mosque authorities to put forward their claim to the land in dispute. The action of the A.D.M. was illegal and irregular. The land forms part of the mosque premises and was all along in its possession. If the mill authorities had any manner of right to the land in dispute, they should have gone to the civil Court and claimed an adjudication on the question of their title. As the order of the Addl. District Magistrate is most unreasonable, it should be set aside and possession of the land should be restored to the applicant.

3. On receiving this application, the Sessions Judge, Bhopal, asked for a report from the A.D.M. For some time no report was submitted by the A.D.M. to the Court concerned, but finally the A.D.M. informed the Sessions Judge that the order under revision was passed by him in his administrative capacity as an executive officer and that it was not passed by him under the Cr.P.C. He further reported that he had no record of any proceeding and, therefore, he was unable to forward any such proceeding to the Court of Session as asked for.

4. The non-applicant was also noticed but the record of the Sessions Judge is silent as to the position that was taken up by him.

5. In this Court, notices were issued both to the non-applicant and the State and both of them entered appearance to show cause against the reference made by the Sessions Judge.

6. On behalf of the non-applicant an affidavit sworn by A.D.M. Nair of the New Bhopal Textiles Ltd., has been filed in this Court. In this affidavit, it is pointed out that plot No.186 on which the mosque stands was specially excluded from being made over to the Mills by the State, whereas plot No.185, which was never in possession of the mosque was given to the Mills along with other land. But the mosque authorities encroached on plot No.185 without any right and, therefore, the matter was brought to the notice of the Chief Commissioner as the head of the Administration of the State.

7. Even though a short history of the premises has been given by the official of the Textile Mill it was not shown how the Additional district Magistrate put the mill authorities in possession of the disputed site. It seems to me that an action was taken on the report made to the Chief Commissioner.

8. The applicant also filed an affidavit to the effect that the cistern was on plot No.186 which belongs to the mosque authorities and that plot No.185 is still lying unused and is not taken possession of by the mosque.

9. There is no material before me to find out whether the cistern was on plot No.185 or 186 and whether the mosque authorities had encroached upon any land belonging to the mill authorities.

10. While showing cause against the reference the learned Government Advocate contended that this Court has no jurisdiction to entertain the application in revision, because the order sought to be revised was not passed by the A.D.M., as a 'Court' and his proceedings, if any, are not that of an 'inferior Criminal Court' as contemplated by S.435, Criminal P.C. In support of his contention he relies on a string of rulings. On the other hand, the learned counsel for the applicant supports the reference by the Sessions Judge on the sole authority of Editor, Tribune v. Emperor, AIR 1942 Lah 171 (FB), which has been cited by the learned Sessions Judge in his reference. In reply the Government Advocate argued that th