S. Malik, J.
1. This is an application under Section 561-A of the Code of Criminal Procedure.
2. The relevant facts are that there was a report against two accused, of whom the applicant was one of theft. The police after investigations charge-sheeted the co-accused but submitted a final report against the applicant. The final report was accepted by the Magistrate concerned. Therefore an application was moved on behalf of the informant not to accept the final report and to try the applicant also in the case under Section 378 of the Indian Penal Code. That application was also rejected Thereafter the co-accused namely. Ramai alias Makhnoo, was tried by the Magistrate concerned and was convicted under Section 379 of the Indian Penal Code. Makhnoo went, up in appeal against his conviction and sentence. -The learned Additional Sessions Judge who heard the appeal, set aside the judgment of the learned Magistrate and remanded the case for a fresh trial with the direction that the applicant be also tried.
3. To my mind, it has been rightly argued on behalf of the applicant that the learned Sessions Judge has no jurisdiction to pass such an order. Section 423 of the Code of Criminal Procedure lays down the powers of an appellate court and also an order that may be passed by the appellate court while disposing of an appeal. It was argued on behalf of the State that Clause (d) of Sub-section (1) of Section 423 of the Code of Criminal Procedure which runs as follows:
Make any amendment or any consequential or incidental order that may be just or proper.
Empowers an appellate court to pass an order of the nature passed by the learned Sessions Judge in this case. I do not agree with this contention. A perusal of Section 423 of the Code of Criminal Procedure will show that an appellate court can make any amendment or pass any consequential or incidental order that may be just or proper in the appeal in respect of the parties to the appeal. There is nothing in Section 428 of the Code of Criminal Procedure empowering an appellate court to pass an order in respect of a third party who was not a party to the appeal and who was not before the court.
4. In view of the reasons discussed, the application is allowed and the proceedings pending against the applicant in the court of the Judicial Magistrate, Ballia under Section 379 of the Indian Penal Code are hereby quashed.