JUDGMENT

Bennett, J - This is an application in revision against an order passed by the learned Sessions Judge of Fyzabad allowing an appeal by the applicants who are Mahomedans, against an order passed against them under Section 107, Criminal P.C., but at the same time remanding the case for retrial. The reason for allowing the appeal was that the procedure was irregular and much inadmissible evidence was admitted from the record of another similar case against Hindus. I understand that a similar order under Section 107 was passed against them also.

2. The only question for consideration in the present application is whether the Sessions Judge had power to remand the case for re-trial. Power to pass such an order is expressly given only in Sub-section (1)(b) of Section 423, that is in the case of an appeal from a conviction, where the conviction is set aside. Clause (o) provides that in an appeal from any other order that order may be altered or reversed, and Clause (d) empowers a Court to make any amendment or any consequential or incidental order that may be just or proper. There is a difference of opinion between the Madras and the Allahabad High Courts whether in view of these provisions, an appellate Court has power to order a retrial in such a case as the present where an order under Section 107 has been set aside.

3. The Madras view is given in In re Narappa Reddy, A.I.R. 1934 Mad. 202. In this case it was held that the appellate Court has no jurisdiction to order a de novo trial. It can only alter or reverse the order under Section 423(1)(c) and under Clause (d) may pass any consequential order that may be just and proper. In Emperor v. Bhagwat Singh, AIR1926All403 a Bench of the Allahabad High Court held that it is competent to a Court hearing an appeal in a case under Section 107 to direct that the case be retried. The view taken 'in this case was that the order for retrial was an incidental order and therefore comes under Clause (d). In Emperor v. Katwaru Rai, AIR1932All680 the view taken by a single Judge was that although the person against whom an order has been passed under Section 107 has not been convicted of an offence, yet there is no reason why he should not be considered a ' 'convicted person" within the meaning of those words in Section 426(1), Criminal P.C. In that case the question for consideration was whether on an appeal under Section 406 the appellate Court had power to suspend, pending the decision of the appeal, the order relating to furnishing of security.

4. I feel some doubt whether it can be said that for the purpose of Section 423(1)(b) the applicant had been convicted and was appealing from his conviction. I also feel doubtful whether the order of retrial can be considered an incidental order. The reason why where an appellant has been convicted power is given to the appellate Court to order a retrial would appear to be that otherwise a retrial would be barred by Section 403. In a case where an order has been passed under Section 107 there is no bar under Section 403 to a retrial and it may be that it was considered that in the circumstances it should be left to the local authorities to decide whether fresh proceedings should be taken or not when the order is Bet aside. The position may have changed by the time the case comes 1mck from the appellate Court; the apprehension of a breach of the peace may by then have disappeared. Learned Counsel for the applicants concedes that in the present case if the local authorities have still good reason to apprehend a breach of the peace on a consideration of the present state of feeling between the applicants and the Hindus, they would be justified in initiating fresh proceedings against the former. At the same time he does not concede that there is now any ground for this apprehension. In my opinion the question is one for the local authorities to decide. For these reasons I do not think that the learned Sessions Judge had power to order a retrial. I