Ranavat, J. - (1.)THIS revision petition has been filed by the accused Ram Swaroop against an order of the District Magistrate Sikar, dated the 20th of March 1950, by which he ordered the Police to submit a challan against the accused under section 161 Penal Code and section 5 of the Anti Corruption Act.
(2.)AFTER completing investigation against the accused Ram Swaroop, the Police sent a final report to the Sub-Divisional Magistrate at Neem-ka-Thana that no case was made out against him. The Sub-Divisional Magistrate ordered that the case be struck off the file on the 15th of March, 1950, but as the accused was Govt. servant he sent a report to the District Magistrate for his information, upon which the Distt. Magistrate made the order which is impugned in this revision.
Mr. Chatterjee, who has appeared on behalf of the accused, has argued that the Distt. Magistrate had no jurisdiction to revise an order of the Sub-Divisional Magistrate, made under section 173 of Cr. P. C. He has put his reliance on a case reported in A. I. R. 1928 Patna, 586, wherein it was held that "an Order of the District Magistrate directing a Police Officer to submit a charge sheet is a judicial one and not passed as an executive head of the district. . . . . . . . . . . The District Magistrate has no power, under the Criminal Procedure Code , to pall for a charge sheet after a final report is put up before a magistrate empowered to take cognizance of the offence under section 173 and is disposed 6f by him. "

The Government Advocate has argued that the case reported in A. I. R. 1928, Patna, 585, has been overruled by A. I. R. 1933, Patna, 242, which is a Division Bench, case and that the District Magistrate was competent to order the Police to submit a charge sheet against the accused as the executive head of the district.

It may be observed that the order made by the Sub-Divisional Magistrate Neem-ka-Thana on a final report submitted by the Police under section 173 Cr. P. C. striking off the case from' the file was made in his executive capacity, but the order made by the District Magistrate asking the police to submit a charge sheet against the accused can not be construed to be an executive order, because the District Magistrate by that order has also issued a process against the accused for his arrest under section 204 Cr. P. C. , which means that the District Magistrate took cognizance of the case under section 190 (1) (c) Cr. P. C. and ordered issue of process after satisfying himself that there was room for supposing that an offence had been committed by the accused. Moreover, an order putting a person on his trial must be considered to be a judicial order. It has been observed by Mr. Justice Jawala Prasad in 1928 Patna, 585, that "it seems to me that such an order must be a judicial one as calling upon the accused to take his trial and fettering his liberty. . . . . . . . . . . . " It is clear that the order of the Dist. Magistrate was a judicial one and was not an executive one. It is therefore open to the accused to challenge its correctness in revision.

Since the order of the Sub-Divisional Magistrate, Neem-ka-Thana was an executive one it was capable of being revised by him or by any other executive authority competent to do so. The District Magistrate's order, therefore, can not be held to be ultra tires. 1928 Patna 585 has been overruled by the decision of a Division Bench of the same High Court in 1933 Patna, 242. It may be remarked that after the District Magistrate having satisfied himself that there was a prima facie case against the accused and taken cognizance of the case under section 190 (1) (c) Cr. P. C. , and after he had ordered issue of a process for the arrest of the accused, it was not necessary for him to send the case back to the Police for further investigation with a direction to submit a charge sheet against the accused. On taking cognizance of the case the District Magistrate ought to have informed the accused that he was entitled to have the case tried by another court and if the accused had objected to be tried by the District Magistrate, this case ought to have been transferred to some other court.

This revision is partially accepted and the order of the District Magistrate remanding the case to the Police for further investigation is set aside. The District Magistrate is directed to transfer this case to some other court for trial according to law if the accused objected to be tried by him, or to try the case himself if the accused does not raise any such objection. .