McNair, J.:— This is a Reference under s. 438 of the Code of Criminal Procedure by the District and Sessions Judge of Midnapore. The facts are simple. One Mahadeo Singh, an employee of Thakur Shyam Narain Singh, had started on pilgrimage to Puri on one of his master's elephants. They stopped near a village named Kushmai to cook their food. The elephant, which was chained near by, somehow escaped into the jungle and was subsequently captured by Chaudhuri Bijoy, Krishna Deb. The captor informed the District Magistrate of the circumstances by a petition filed in his Court. The petitioner alleged that the elephant was causing damage to property and interfering with traffic and that the petitioner after much effort “bagged the said elephant in his own house at a cost of about Rs. 700”. The petitioner further stated that nobody claimed the elephant and he asked leave to keep it. The learned District Magistrate granted leave pending an enquiry, and the fact that the elephant was found was advertised, and the District Magistrate at once wrote to the Chief Secretary to the Government of Bengal stating the facts and asking for instructions. Thakur Shyam Narain Singh put in his claim to the elephant, which was admitted after investigation, and the District Magistrate ordered the elephant to be returned to him forthwith. The captor then claimed nearly Rs. 2,000 for his costs of the capture and for feeding the elephant. The District Magistrate considered this figure exorbitant and, after directing the captor to appear before him, he assessed the costs of capture at Rs. 150 and the costs of feeding the elephant at Rs. 100 a month. He then directed the owner to deposit that amount in Court within three days. The owner appealed to the District Judge, who has referred the matter to this Court, treating the appeal as a petition for revision. In his report the learned Sessions Judge says that the appeal filed before him was evidently taken under the impression that the learned District Magistrate was acting under s. 523 of the Code of Criminal Procedure. He, thereupon, called upon the Additional District Magistrate for a report. The Additional District Magistrate sent a report in which he said that the orders were purely executive in character as distinguished from judicial and cannot form the subject-matter of a criminal appeal. The learned Sessions Judge then sets out his reasons for saying that no appeal lay under s. 523, namely, that the seizure of the elephant was not by a police officer, nor was the elephant captured in circumstances creating suspicion of the commission of any offence. He then says that the question is whether the order passed by the learned District Magistrate is liable to revision by the High Court and, if so, whether it should be revised. He states his own view that the District Magistrate's order was passed by him in the capacity of a Magistrate. He considers that the District Magistrate's order was without jurisdiction and he argues that, because a District Magistrate derives his powers principally from the Criminal Procedure Code, he may be presumed to be acting under the Criminal Procedure Code, or in other words, that all his orders may be presumed to be judicial rather than executive, and his conclusion is that such orders are liable to revision by the High Court under ss. 435 and 438 of the Code of Criminal Procedure.

This opinion of the learned Sessions Judge seems to me to lose sight of the fact that the District Magistrate acts in a dual capacity. In this instance the fact that the learned District Magistrate at the outset wrote to the Political Secretary to the Government of Bengal asking for orders suggests that he was not acting in a judicial capacity, but possibly in an executive capacity. Again, there was no suggestion of a criminal offence and there, was no proceeding of a criminal nature. Section 5 of the Code of Criminal Procedure provides for the investigation of an offence under the Indian Penal Code according to the provisions contained in the Criminal Procedure Code and sub-s. (2) of the same section provides that all offences under any other law shall be similarly investigated subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying, or otherwise dealing with such offences. Section 6 enumerates the classes, of criminal Courts, Class III being Magistrates of the first class. Section 10 provides that in every district outside the presidency towns the Local government shall appoint a Magistrate of the first class, who shall be called the District Magistrate, and indeed, in this case the learned District Magistrate has been appointed by the Local Government under the provisions of s. 10. But because the learned District Magistrate has been invested with certain powers under s. 10, it does not follow that he has not other powers which are not contemplated by the Criminal Procedure Code, as is pointed out by the learned District Magistrate in his letter of explanation. He is in addition the Collector of the District. He is also the District Officer and in those capacities he has to perform many functions which are not covered by the Criminal Procedure Code. The provisions relating to Reference and Revision, which are relevant to this enquiry, are found in ss. 435 and 438. Section 435 provides that the High Court or any Sessions Judge or certain other officers may call for and examine the record of any proceeding before any inferior criminal Court situate within the local limits of its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceeding of such inferior Court. Section 438, under which this Reference has been made, empowers the Sessions Judge, on examining under s. 435 or otherwise the record of any proceeding to report for the orders of the High Court the result of such examination. It is quite clear that the word “proceeding” which is used in s. 438 must be a proceeding as referred to in s. 435, that is to say, a proceeding before any inferior criminal Court, and there is authority for this proposition. There was not in the present instance any “proceeding” so as to empower the learned Sessions Judge to report under s. 438. The Teamed District Magistrate has given his opinion that he was acting in an executive and not in a judicial capacity and it has been held in several reported cases that the Court will not interfere where the Magistrate or other officer is acting in an executive and not in a judicial capacity. The question arose before a Bench of this Court in the matter of Rohomon Sirkar where the High Court while considering that an order by a Magistrate professing to act under s. 17 of the Police. Act of 1861 was illegal, refused to interfere, on the ground that the order was one of an executive nature. The point of that decision is not that the order was illegal, but that the Court considered that it was an order of an executive nature with which this Court had no power to interfere. If an order under s. 17 of the Police Act is an executive order, it seems to the clear that an order of the nature now before us might be an executive order, but would certainly not be a judicial order. The learned Advocate-General, who opposes this Reference, has referred us to ss. 25, 26 and 27 of the Police Act. Section 25 empowers a police officer to take charge of unclaimed property and to dispose of it under the orders of the District Magistrate. Section 26 empowers the Magistrate to detain the property and to issue a proclamation requiring any person who has any claim thereto to appear and establish his right within six months. Section 27 provides for confiscation of the property if no claimant appears. It has been suggested that possibly these sections were in the mind of the District Magistrate when he issued the proclamation, to which I have already referred. The learned Sessions Judge, in his report, has stated that the real grievance of the petitioner is that though, if the animal were impounded, which it is suggested would have been the correct procedure, the charges payable by him could not have exceeded Rs. 93, yet he was being ordered to pay Rs. 550 by the District Magistrate. The learned District Magistrate suggests that the Cattle Trespass Act does not apply. The only Reference to the Cattle Trespass Act in the Code of Criminal Procedure is in s. 4, sub-s. (1)(o) where “offence” is defined as any act or omission made punishable by any law Tor the time being in force including any act in respect of which a complaint may be made under s. 20 of the Cattle Trespass Act of 1871. No Complaint has, in fact, been made in this case under s. 20 and it has also been pointed out to us that under s. 31 of the Cattle Trespass Act the Local Government has transferred the powers of the District Magistrate under that Act to the District Board so that the District Magistrate has no longer power to act under the Cattle Trespass Act unless a complaint has been made under s. 20.

The other point which arises, and which, in my opinion, prevents this Court from interfering is that the order, although the learned District Magistrate suggests that it was made in his executive capacity, was not, in my opinion, even an executive order. It was, it appears to me, merely advice. An inflated charge had been made by the captor. The owner objected to this strongly and the learned District Magistrate in the capacity apparently of an arbitrator, gave an opinion which seems to me very reasonable as to the probable costs of capture and feeding of the elephant. The order was not enforceable and it is only when an order has been made, and for non-compliance of that order some penalty has been exacted, that this Court will interfere. This proposition was stated very clearly by Jackson, J. in the case of Surja Narain Dass. The learned Judge there says:—

When the Code of Criminal Procedure authorises the making of orders by executive authorities with the view of preventing a breach of the peace or, for similar purposes, it has always been held, and is now enacted in the existing Code, that the propriety of such orders is not a matter of question in that state of things for the appellate judicial authorities. It is when the executive officers seek to enforce those orders by the infliction of penalties that the Courts have to step in and see whether the orders made were with authority or not.

In the case of Rohomaan Sirkar to which I have referred the Court refused to interfere upon an order made under s. 17 of, the Police Act. But there are authorities to show that the Court has interfered under ss. 19, 28 or 29 of the Police Act where the orders were not made in a judicial capacity because persons had been convicted and fined.

To sum up, we are unwilling to interfere in this Reference, because in the first place the order of the District Magistrate was not a judicial order and, secondly, because the order was not enforceable and no penalty had been exacted under it.

The Reference is rejected.

Khundkar, J.:— I agree. To the reasons already given by my learned brother in the judgment just now delivered by him, I may add that I entertain considerable doubt whether the order in question is an order at all. It was submitted by the learned Advocate-General that, at best, it was an executive order: but no law, proclamation or other direction has been cited which gives the District Magistrate any power, executive or otherwise, to assess the proper sum of money which ought to be paid by the owner of an animal to the coustodian thereof in circumstances similar to those which have happened in this case. The learned Magistrate was not acting under the Police Act, the Cattle Trespass Act, or even in pursuance of any rules framed or orders passed by the Government. He seems to have been acting in the role of an arbitrator more or Jess self-constituted.

The order was, as my learned brother has observed, merely a piece of advice. It was not in any way enforceable and it was open to the parties to ignore it altogether. At the time when the so-called order was made, the rights of the parties were regulated as indeed they are still by the civil law. That position has not in any way been altered or prejudiced by the. Magistrate having said that the captor of the elephant would make the elephant over to the owner upon the latter depositing the sum which the Magistrate thought fair.

Reference rejected.