P (PLP)

The opponents were unrepresented. TYABJI, C. J.‑This is a. reference made by the District Magistrate of Tharparker, who has forwarded to this Court the record and proceedings in the case Crown v. Muradally and another in which proceedings under section 110 of the Criminal Procedure Code are now pending in the Court of the Sub- Divisional Magistrate of Mirpurkhas. The learned District Magistrate of Tharparker has expressed the opinion that the proceedings now pending in the Court of the Sub-Divisional Magistrate, Mirmpurkhas are not legal. The material facts of this case are briefly as follows :‑

On the 31st March 1948, the Sub‑Divisional Magistrate of Sanghar passed an order under section 118 of the Criminal Procedure Code by which the two accused were bound down to be of good behaviour for a period of twelve months. An appeal against the order was made to the District Magistrate of Tharparkar (Mr. Agha), who allowed the appeal on the 16th June 1948, on the ground that the accused had not been allowed sufficient opportunity to cross examine the prosecution witnesses and to examine their witnesses in defence, and ordered: "I accordingly set aside the order of the learned Sub‑Divisional Magistrate Sanghar and direct that the proceedings shall be re heard from the stage where cross‑examination of the P. Ws. should begin, i.e., the P. Ws. should be re‑called and an opportunity given to the accused to cross‑examine them with an interval as the Magistrate may deem it expedient to engage a counsel if they wish to do so, and thereafter to give them an opportunity to call their defence if they so wish". He also transferred the case to the Court of the Sub‑Divisional Magistrate of Mirpurkhas. The Sub‑Divisional Magistrate of Mirpurkhas was of the view that the order passed by the District Magistrate was in excess of the powers conferred on him under section 423 of the Criminal Procedure Code, and referred the matter to the District‑ Magistrate. The District Magistrate, Mr. Kazi, the successor of Mr.‑ Agha, agreed with the Sub Divisional Magistrate of Mirpurkhas, and, in the reference made by him, has stated :‑ "The powers of an Appellate Court in dealing with an appeal against an order passed under section 118 Criminal Procedure Code are governed by section 423, clause (c) of Criminal Procedure Code, which authorises an appellate authority to alter or reverse the order 'appealed against. It does not authorize ordering a fresh or further enquiry or any other direction. The order of the District Magistrate is not therefore legal and any subsequent proceedings thereon may become null and void". He has, accordingly, made this reference. We are unable to agree with the learned District Magistrate that the order passed by Mr. Agha on the 16th June was one which was not authorised by section 423 of the Criminal Procedure Code. It is clear that the orders that an Appellate Court may pass on an appeal are stated in sub‑clauses (a), (b), (c), and ld) of clause (1) of section 423 of the Criminal Procedure Code, sub‑clause (a) deals with appeals from orders of acquittal. Sub‑clause (b) deals with appeals from convictions, sub‑clause (c) deals with appeals from any other orders. Sub‑clause (d) provides for amendments and consequential or incidental orders which may be made in addition to the specific orders which are mentioned in sub‑clauses (a), (b), and (c). It is obvious that an amendment or a consequential or incidental order under sub -clause (d)‑ maybe made in addition to any orders that may be made in any appeal falling within sub‑clauses (a), (b) and (c). In this case the District Magistrate, Mr. Agha, allowed the appeal clearly because he was of the view that the Sub‑Divisional Magistrate of Sanghar had not recorded the evidence in the proceeding before him in a proper manner. He, therefore, set aside the order passed. This clearly amounted to a reversal of l the evidence had not been properly recorded an the order appealed from is set aside, it is obvious that it may be necessary to pass an order consequential or incidental to the order sating aside the order passed, directing the lower Court to record the evidence in a proper manner and then pass a proper order. The cases have been brought to our notice by the learned Advocate‑General. In Emperor v. Bhagat Singh and others, (1926) I. L. R. 48 All. 501 (Watsh and Dalal JJ.) it was pointed out that on an appeal in a case under section 107 of the Criminal Procedure Code, the powers of the Appellate Court were contained' in sub‑clauses (c) and (d) of clause (1) of section 423 of the Criminal Procedure Code, and that an order to re‑hear the notice under section 107 of the Criminal Procedure Code was an incidental order following the reversal of the order binding over the appellants. . In a Lahore decision, Chandan v. Emperor (1929) A. I. R. Lah. 28, Zafar Ali, J. took a contrary view, holding that an order of retrial passed by a District Magistrate on an appeal from an order under section 110, Criminal Procedure Code, was bad in law, as jt did not fall within section 423 (1) (c) of the Criminal Procedure Code. We are unable to agree with this decision,, which, it appears to us, clearly overlooked the existence of sub ‑clause (d). We accordingly return this reference with the observation that the order passed by the District Magistrate on the 16th June 1948 was a perfectly legal order and that the Sub‑Divisional Magistrate of Mirpurkhas must therefore, proceed accordingly. K. M. A. Reference answered.