JUDGMENT : STANLEY, J. This case comes before the Court on a reference by the learned Sessions Judge of Azamgarh, recommending that an order for compensation passed by the District Magistrate, against a complainant should be set aside as illegal. The complainant brought a charge against two persons of offences under sections 426 and 352 of the Penal Code, 1860, which was heard before a Magistrate of the third class. The accused were convicted, but upon appeal the learned District Magistrate set aside the conviction and holding that the complaint was frivolous or vexatious within the meaning of section 250 of the Criminal Procedure Code, ordered the complainant to pay Rs. 10 compensation. The learned Sessions Judge being of opinion that the District Magistrate had no authority to grant compensation, has made this reference to the Court. Being called upon for an explanation the District Magistrate submitted that the order in question could be legally passed under section 423(1)(d) and he relied upon what he terms “the opinion expressed by Mr. Justice Prinsep in his work on the Criminal Procedure Code.” By section 423(1)(d) an appellate Court is empowered to make any amendment or any consequential or incidental order that may be just or proper, and it is suggested that the order for compensation in question was an order within the meaning of this section. 2. It appears to me that in view of the language of section 250, it is only the Magistrate by whom the case is originally heard who can pass an order for compensation. The words of that section are “if the Magistrate by whom the case is heard discharges or acquits the accused and is satisfied that the accusation against him was frivolous or vexatious,” he may in his discretion by his order of discharge or acquittal direct the person upon whose complaint or information the accusation was made to pay to the accused or to each of the accused such compensation, not exceeding Rs. 50 as he may thiuk fit.” It was not intended by the legislature as it seems to me that any other tribunal than the original tribunal before whom the case came should have the power to grant compensation under this section. 50 as he may thiuk fit.” It was not intended by the legislature as it seems to me that any other tribunal than the original tribunal before whom the case came should have the power to grant compensation under this section. It would be inconvenient if, when the tribunal before whom a case is heard finds a charge to be proved, an appellate tribunal when reversing that finding could pass an order for compensation on the ground that the accusation which was established in the Court below was either frivolous or vexatious. It appears to me that the legislature intended that only the Magistrate by whom a case is in the first instance heard can pass an order for compensation. In reference to what is stated to be the opinion of Mr. Justice Prinsep in his work on the Criminal Procedure Code, I have referred to his work, and I find that in his note on section 250 he does not express an opinion on the question but after a reference to a case in the Madras High Court in which it was held that the appellate Court was not competent to award compensation under the provisions of the Code as it existed before the introduction of section 423(1)(d) merely adds the words, “but section 423(1)(d) of this Code which enables an appellate Court to make any consequential or incidental order that may be just or proper in a case under appeal.” The learned author does not here express an opinion but merely directs attention to the section which he quotes. In a later edition of his work, namely, the 13th edition at page 250, Sir Henry Prinsep has altered his previous comments substituting for the words which I have quoted from his earlier edition the following words: “It is doubtful whether under the terms of section 423(1)(d) of this Code, which enables the appellate Court to make any consequential or incidental order that may be just and proper, in the case under appeal this ruling has not become obsolete.” For the foregoing reasons I set aside the order of the District Magistrate in so far as he directs Rs. 5 to be paid as compensation to each of the opposite party.