JUDGMENT Stephen and Carnduff, J. - The Petitioner before us lodged a complaint under secs. 379 and 3/1, 7/1, 9/4 of the Indian Penal Code against three persons, who were convicted before a Deputy Magistrate. On appeal to a Joint-Magistrate the convictions were set aside, and the Appellate Court found the case entirely false and called on the Petitioner to show cause why he should not pay Rs. 25 compensation to each of the Appellants under sec. 250 of the Criminal Procedure Code. No cause being shown, the order to pay compensation was made absolute. A motion to set aside this order was rejected by the District Magistrate. We have issued a rule to show cause why the order for compensation should not be set aside on the ground that the Court had no jurisdiction to make an order on appeal granting compensation. The question we wish to refer is, has an Appellate Court power to order compensation under sec. 250 of the Criminal Procedure Code ? 2. The question turns on the construction of secs. 250 and 423 of the Code. The former, as far as it is relevant, runs as follows :--"If in any case instituted by complaint or upon information given to a police-officer or to a Magistrate a person is accused before a Magistrate of any offence triable by a Magistrate, and 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, the Magistrate may in his discretion direct the complainant to pay compensation to the accused." But, before making such direction, "the Magistrate is to (a) record and consider any objection which the complainant may urge ;" (b) and if he directs compensation "state in writing, in his order of discharge or acquittal, his reasons for awarding compensation ;" and by sub-sec. (3) a complainant who has been ordered by a Magistrate of the second or third class to pay compensation, may appeal from that order as if he had been convicted on a trial held by such Magistrate. On the terms of this section there can be no doubt that the only person who has power to award compensation under it is the Magistrate by whom the case is heard. But it is contended that this power is conferred on the Appellate Court by sec. On the terms of this section there can be no doubt that the only person who has power to award compensation under it is the Magistrate by whom the case is heard. But it is contended that this power is conferred on the Appellate Court by sec. 423 (1) (a) of the Code. This section enables an Appellate Court to take certain steps in cases of (a) acquittals, (b) convictions, and (c) other orders, and (d) to "make any amendment or any other consequential or incidental order that may be just or proper." The question is whether the order of the Appellate Court in this case is "consequential" as it is not suggested that it is "incidental," a term which seems to exclude any final order. It has been held by the High Court of Allahabad that it is not consequential, see Balli Pande v. Chittan ILR 28 All. 625 (1906): and by this Court in the recently reported case of Kari Singh v. Tufani Dhanuk 14 C.W.N. 212 (1909), that it is. The difference of opinion depends largely on first impression, as the only authority referred to by either Court is a passage in Sir Henry Prinsep's edition of the Criminal Procedure Code in a note to sec. 250, at p. 250 of the 13th Edition, which seems to us, as we gather that it did to Stanley, C. J., to be carefully framed so as to raise the question but not to express any opinion as to its proper answer. Under these circumstances and looking at secs. 250 and 423 only, we agree rather with the Allahabad decision than with that of this Court. Primarily we should suppose a consequential order to be an order that is the necessary consequence of the Court's decision, as an order that an Appellant whose conviction is set aside should be discharged from his bail bond, or that any part of a fine imposed on him should be repaid : and we incline to suppose that an order which depends on the consideration of a question that has not been previously considered is not within the terms of sec. 423. We are the more inclined to take this view on consideration of sec. 423. We are the more inclined to take this view on consideration of sec. 106 (3), which is referred to by the Judges in this Court in the case above cited as an example of the policy of the present Code of enlarging the powers of the Appellate Court. That enactment expressly enables the Appellate Court to bind a person down under sec. 106. This seems to show that an order to this effect is not a consequential order under sec. 423; and a power to bind down seems to be very much on the same footing as a power to award compensation to an accused person. 3. It has been argued before us that if the Appellate Court has power to award compensation under sec. 250, the person against whom such order is made loses some of the safeguards provided by that section. In the first place, it is said that the provisions of sec. 250 (1) (a) would not apply to the Appellate Court, so that that Court could not be obliged to record or consider objections which the complainant might have been in a position to urge against the making of the order. In the second place, if payment of compensation is directed by a second or third-class Magistrate, the complainant cannot, if he cares to appeal, be made to pay compensation unless there are two decisions against him ; whereas, if compensation is directed in the first instance by an Appellate Court, there is only one. Neither of these arguments seems to us to carry any weight. On the other hand, in the present case it is no doubt "inconvenient," to borrow a phrase from Stanley, C. J., that, where one tribunal has found a charge to be proved beyond all reasonable doubt, another should find it to be not only false, but frivolous and vexatious. 4. We regard the matter, however, as one of the first impression, subject to the views expressed in the two decisions we have mentioned, and the indication given in sec. 106 (3) of the meaning to be attached to the word "consequential" in sec. 423. 5. We, therefore, refer the above-mentioned question to a Full Bench of this Court. If the answer is Yes, the rule in this case will be discharged. 106 (3) of the meaning to be attached to the word "consequential" in sec. 423. 5. We, therefore, refer the above-mentioned question to a Full Bench of this Court. If the answer is Yes, the rule in this case will be discharged. If it is No, the rule will be made absolute, the order set aside, and any money paid under the order and in the hands of lower Court must be refunded. The Chief Justice 6. On general principles, has not the Court of appeal all the powers of the first Court ?] 7. In view of the specific provisions of the Criminal Procedure Code, the powers of the Appellate Court are not co-extensive with that of the original Court. 8. An order under sec. 250 is not a "consequential or incidental order" as the making of it would involve a fresh judicial proceeding and a fresh exercise of judicial mind and the consideration of fresh evidence even. Chatterjee, J. 9. Besides in an appeal from a conviction the complainant is no party and a fresh proceeding upon notice to the complainant would be necessary. 10. The power under sec. 250 is specifically given to the trying Magistrate. If the Criminal Court of appeal had all the powers of the original Court where was the necessity for the elaborate provisions of sec. 423 defining its powers ? 11. The Appellate Court's powers are to remedy or rectify errors. On appeal from a conviction, it is concerned with the question whether the accused is guilty or not and not whether the complaint is in addition frivolous and vexatious. Compare sec. 106 (3). An order under this section would be consequential on the main order and yet the Legislature which enacted this provision at the same time as sec. 423 (d) was careful to specifically give the power to make an order under sec. 106 to the Appellate Court. Sec. 522 also seems to contemplate an order which would be consequential on the main order in the case. Moreover that section gives powers to the "Court" a term comprehensive enough to include an appeal Court. See also secs. 545, 562, 553. 12. Decisions passed anterior to the enactment of sec. 423, cl. (d), are all in my favour and I submit sec. 423 (d) has not amplified the powers of the Appellate Court in this respect. Moreover that section gives powers to the "Court" a term comprehensive enough to include an appeal Court. See also secs. 545, 562, 553. 12. Decisions passed anterior to the enactment of sec. 423, cl. (d), are all in my favour and I submit sec. 423 (d) has not amplified the powers of the Appellate Court in this respect. The difficulty was created by a note in Sir H. Prinsep's Commentary, 12th Edition, omitted in the present edition. Chief Justice 13. Suppose an order of acquittal is set aside on appeal and the accused convicted, will not the Appellate Court have power to set aside the order under sec. 250 ?] 14. Yes ; because the order in that case would be incidental to the order of conviction. 15. The powers of the Appellate Court under the Code are not so wide as that conferred by 57 and 58 Vict., Ch. 16, sec. 2 (2). 16. Besides, where a conviction has been had in the original Court, the case for an order under sec. 250 is so obviously weakened that the Legislature might very well have considered it inexpedient to give the Appellate Court power to make an order under sec. 250 when setting aside the order of conviction. 17. The Judgment of the Court was as follows:-- The question referred to the Full Bench is whether an Appellate Court can order compensation such as is contemplated by sec. 250 of the Code of Criminal Procedure, 1898. 18. Sec. 250, being confined by its terms to the Courts of Magistrates trying cases in the first instance, does not confer the requisite power. But it is suggested that cl. (d) of sec. 423 (1) does. Sec. 423 (1), which defines the powers of an Appellate Court in disposing of an appeal, begins by setting forth those powers in precise terms, and concludes with cl. (d), which enables it to "make any consequential or incidental order that may be just or proper." 19. Now, in a Criminal Court, this phrase cannot be construed so liberally as to embrace any and every ancillary order which is capable of being described as "consequential or incidental." Otherwise an Appellate Court affirming, for instance, a conviction of kidnapping a woman, might add, and enforce, a direction that the offender should pay her, by way of maintenance, a monthly allowance. This can hardly be. 20. This can hardly be. 20. It would seem, therefore, that " consequential or incidental " orders, within the purview of the provision, must fall under one or other of two heads. 21. First, there are orders which follow as a matter of course, being the necessary complements to the main orders passed without which the latter would be incomplete or ineffective. Such are directions as to the refund of fines realised from acquitted Appellants, or, on the reversal of acquittals, as to the restoration of compensation paid under sec. 250 ; and for these no separate authority is needed. 22. Secondly, there are orders which, though ancillary in character, require more than the support of a Criminal Court's inherent jurisdiction, and could not be passed without express authority. 23. An order mulcting a complainant to compensate an accused for having been frivolously or vexatiously charged seems to fall under the second head. It does not necessarily follow or arise out of an order of discharge or acquittal, and it is not, pet se, an order "consequential or incidental" there to. For the issue primarily before the Court is whether the accused has been proved to be guilty or not, and the question whether the complaint against him was merely frivolous or vexatious is another matter importing fresh considerations. The making of an award for compensation would, consequently, seem to need express authority, and an order therefor is not "consequential or incidental" to an order of discharge or acquittal, unless the discharging or acquitting Court has, aliunde, power to make it. In an original Court it is, by virtue of sec. 250, "consequential or incidental" to an order of discharge or acquittal made there ; but it is not quoad a like order passed on appeal. 24. If this be so, then the clause can be relied upon only if it be sufficient to extend to an Appellate Court, to be exercised by it, mutatis mutandis, the special power given to an original magisterial Court alone by sec. 250. But it falls short of this, and, so far as appears, it never occurred to the learned Judges who decided Hari Chand v. Fakir Sadruddin 3 Bom. L.R. 841 (1901) that it could be appealed to in this connection. It does not, like sec. 2 of the Supreme Court of Judicature (Jurisdiction) Act, 1894 (57 and 58 Vict., c. 16) or Or. L.R. 841 (1901) that it could be appealed to in this connection. It does not, like sec. 2 of the Supreme Court of Judicature (Jurisdiction) Act, 1894 (57 and 58 Vict., c. 16) or Or. XLI, r. 33 of the Code of Civil Procedure, 1908, invest an Appellate Court with authority to "make any order which ought to have been given or made" by the Court below ; nor does it, like sec. 107 of the latter, confer upon Appellate Courts "the same powers" as Courts of Original Jurisdiction. It does not amplify the powers of Appellate Courts : but what it does is to modify the exhaustive character, which without it, sec. 423 (1) would apparently have, and so to prevent any conflict between its special provisions and the general provisions of, e.g., sec. 517 or sec. 522. 25. And, as the exercise of the power in questions by an Appellate Court would involve such an extreme measure of contempt for the judgment of the inferior Court concerned that it could but seldom be used with propriety, it can readily be understood why the Legislature should not have thought it worth while--if, indeed, it did not think it actually inexpedient--to extend it to such a Court. For these reasons the majority of the Full Bench are of opinion that the answers to the question referred should be in the negative.