JUDGMENT Misra, J. - This is a reference made by the learned Sessions Judge of Fyzabad. 2. The facts giving rise to it are as follows. On a complaint made by Mohammad Mustaqim u/s 379 I.P.C. against four persons, Sukhraj, Ram Dular, Ram Bali and Rampal they were convicted by the Bench Magistrates, Sultanpur, on 20th August, 1943, and sentenced to pay a fine of Rs. 5 each. In default they were to under go vigorous imprisonment for one week An appeal against the conviction and sentence was filed by the accused persons in the Court of the District Magistrate, Sultanpur, and it was transferred to the Court of Khan Bahadur Mir Ali Raza, First Class, Special Magistrate, with appellate powers for disposal. The hearing in the Court of the Special Magistrate was fixed for 19th October, 1943, but on that date the Appellants did not appear and thereupon the Magistrate passed the following order:-- "Appellants are absent. No cause shown against the order. Appeal is dismissed. 3. Three days later on 22nd October, 1943, Sukhraj one of the Appellants, presented an application in the Court of the Deputy Commissioner, Sultanpur, accompanied by an affidavit to the effect that after his case was called, he went to bring his vakil, Babu Hari Kishan Varma, who was at that time appearing in the Civil Courts in another case, and that when he returned, he was informed that the appeal had been dismissed. It was said that the absence being accidental the Appellant ought to be excused, and it was prayed that the appeal should be restored and heard on merits. The learned District Magistrate forwarded the application to the Court of Khan Bahadur Mir Ali Raza, who ordered on 23rd October, 1943, that the application should be put up before him on 14th December, 1943. Meanwhile on 9th December, 1943, Sukhraj, Appellant, filed another application apparently unaccompanied by an affidavit stating that he was present in the Court of Mr. B.K. Chatterjee in connection with another case, and while he was there, his appeal was dismissed. He complained that legally there could be no order of dismissal for default and he prayed again that the order of 19th October should be set aside, that the appeal should be restored to its original number and that after notice to the complainant, it should be re heard and decided in the normal course. He complained that legally there could be no order of dismissal for default and he prayed again that the order of 19th October should be set aside, that the appeal should be restored to its original number and that after notice to the complainant, it should be re heard and decided in the normal course. This application as well as the earlier application were both laid before the Court on 14th December, 1943, and the applicant was then ordered to file a copy of the relevant order. The matter was eventually taken up by the learned Special Magistrate on 20th January, 1944, and the order passed by him was as follows-- "The ex parte order is set aside. Let notice issue to the Respondent for 12th February, 1944". Against the order of restoration of the appeal Mohammad Mustaqim went up in revision to the Court of the Sessions Judge, Fyzabad, and that Court, being of the opinion that Section 369, Code of Criminal Procedure debarred the learned Special Magistrate from reviewing his previous order, has recommended that the subsequent order, dated 20th January, 1944, be set aside. There is a further recommendation that though in his opinion the order passed by the appellate Court on 19th October, 1943, was on consideration of merits. it should be set aside, because it has occasioned a failure of justice. 4. The learned Counsel for Mohammad Mustaqim supports the reference, so far as the recommendation for setting aside the order of 20th January, 1944, is concerned, but as regards the order of the 19th October, 1943, he contends that as in the opinion of the learned Sessions Judge it did not in any manner offend against the provisions of Section 367 of the Code of Criminal Procedure, it must be regarded as a valid and final order, and it should not be set aside by this Court. 5. The matter must be decided on a consideration mainly of the provisions of Section 423 Code of Criminal Procedure The relevant portion of that section lays down that-- "the appellate Court shall send for the record of the case, and after perusing such record and hearing the Appellant or his pleader, if he appears, and the public prosecutor, if he appears, may, if it considers that there is no sufficient ground for interfering, dismiss the appeal." 6. Section 424 of the Code of Criminal Procedure then provides that-- "the judgment of the appellate Court shall conform to the rules contained in Chapter XXVI so far as may be practicable." 7. It is thus the duty of the appellate Court to examine the record and to dispose of the appeal in merits, and this duty is cast upon the Court of appeal notwithstanding that the Appellant does not appear. Where the appellate Court is not a High Court, Section 424 read with Section 367 of the Code of Criminal Procedure renders it necessary that the appellate judgment should embody inter alia the point of points for determination, the decision thereon and the reasons therefor. This mandatory direction has been given, because it is necessary that the lower appellate Courts should be safeguarded against any suspicion that the case was disposed of without proper consideration and because it is still more necessary that when the matter comes before the High Court in revision, it may have the views of both the trial Court and of the appellate Court on merits in order to enable it to form an opinion whether any irregularities or errors as contemplated by the revisional section of the Code exist. It is clear that the order of the 19th October, 1943, passed by the learned Special Magistrate does not conform to the directions contained in Section 367, nor does it appear that any consideration was given after a perusal of the record to the merits of the prosecution case. Indeed the explanation submitted by Khan Bahadur Mir Ali Raza shows that he only went through the judgment appealed against. There is, therefore, no doubt that the order of dismissal was not in conformity with Section 423 read with Section 367 Code of Criminal Procedure It is obvious that it causes serious injustice to the accused, as they were of right entitled to obtain a reconsideration of evidence at the hands of the higher Court and this was denied to them. 8. As regards the question whether the learned Magistrate had the right to restore the appeal by his order, dated 20th January, 1944, I must observe that the effect of Section 424 read with Section 369, Code of Criminal Procedure is that the Court becomes functus officio after pronouncing its judgment and it has no power to revise or review its previous order. If it does so, the subsequent order is clearly ultra vires and therefore illegal. 9. In the present case, the effect of setting aside the order of the 19th October, 1943, would be that the appeal must be decided on merits in conformity with the provisions of Section 423, Code of Criminal Procedure. 10. Accordingly I accept the recommendation made by the learned Sessions Judge, set aside both the orders, dated 19th October, 1943 and 20th January, 1944, and direct that the appeal of Sukhraj and others be heard by the District Magistrate himself or by some other stipendiary Magistrate subordinate to him possessing appellate powers and be decided according to law.