Order.- Reference by the District Magistrate, North Arcot, to quash the order of the Sub-Divisional Magistrate, Cheyyar, directing re-trial of accused 5 Jadayandi and accused 7 Subramaniam in C.C. No. 371 of 1961 on the file of the Sub-Magistrate, Wallajah. Nine persons were charge-sheeted in C.C. No. 371 of 1961 on the file of the Sub-Magistrate, Wallaiah, with having committed affray punishable under section 160, Indian Penal Code. But the Sub-Magistrate, Wallajah acquitted three of the accused and convicted the rest and sentenced each of them to pay a fine of Rs. 15 and in default to suffer simple imprisonment for two days. Four of the convicted persons alone preferred an appeal to the Sub-Divisional Magistrate, Cheyyar, against their convictions and sentences. The Sub-Divisional Magistrate, Cheyyar, who heard the appeal set aside the convictions and sentences not only against the four persons who preferred appeals to him, but also as regards accused 5 Jadayandi and accused 7 Subramaniam and ordered retrial of all these six persons. In pursuance of the Judgment accused 5 and accused 7 also got refund of the fine amounts paid by them. The District Magistrate has made this reference to quash the order of the Sub-Divi.ional Magistrate so far as accused A-5 Jadayandi and accused 7 Subramaniam are concerned and to order recovery of the fine amounts from the said persons. The question for consideration in this case is whether the appellate Court has powers under section 423 (b),Criminal Procedure Code to set aside the conviction and sentence and order re-trial of persons who have not preferred an appeal against their convictions and sentences while deposing of an appeal preferred by the co-accused who have also been convicted and sentenced in the same case. It is clear from the wording of section 423 (b),Criminal Procedure Code that the powers of the appellate Court to acquit or discharge or order re-trial could be exercised only with regard to a person who has preferred an appeal. In Weekly Notes of Cases decided by the High Court, N.W.P. Volume, iii page 163 on a reference by a Sessions Judge under similar circumstances, the High Court set aside not only the order of the appellate Court but also of the trial Court and directed a fresh trial by a competent Court according to law. In Weekly Notes of Cases decided by the High Court, N.W.P. Volume, iii page 163 on a reference by a Sessions Judge under similar circumstances, the High Court set aside not only the order of the appellate Court but also of the trial Court and directed a fresh trial by a competent Court according to law. There is however no discussion in that judgment as to the powers of an appellate Court to order re-trial as regards a person who has not preferred an appeal. In Abdul Kadar v. King Emperor1, it was held that in the circumstances of that case the conviction of the non-appealing accused should also be set aside but a re-trial could not be ordered in the absence of the accused and the proper procedure to follow would be to issue a rule on the accussed and the Crown to show cause why the conviction should not be set aside and a retrial ordered. But this could be done only by a High Court by invoking its revisional jurisdiction while disposing a regular appeal. The Sub-Divisional Magistrate, Cheyyar, has no such powers of revision to give notice to the non-appealing accused and to order re-trial as was done in the above Calcutta case. The order of the Sub-Divisional Magistrate, Cheyyar, setting aside the conviction of accused 5 Jadayandi and accused 7 Subramanian and ordering their re-trial is without jurisdiction and is quashed. There may be cases in which it would not be proper and in fact would be illsgal to allow the conviction of a non-appealing accused to stand while acquitting or setting aside the conviction and ordering re-trial of an appealing accused. It is easy to conceive of such cases and it is sufficient to mention cases involving charges of conspiracy, rioting, dacoity etc. by way of illustration. Thus in the Privy Council case in Aratchige Dharmasena v. The King2 their Lordship expressed the opinion that if two persons are accused of a criminal conspiracy and convicted and on appeal one is sent for re-trial the other should be sent at the same time for re-trial also upon that charge so that both may be convicted or acquitted together. I do not say that the present case is one of that kind. I do not say that the present case is one of that kind. But if such a case arises, it is the duty of the lower appellate Court to make a reference to the High Court to exercise the powers of revision to pass suitable orders. In this case notices have been issued to both accused 5 Jadayandi and accused 7 Subramaniam and they have been served. In exercise of the powers of revision, I pass the same order which the learned Sub-Divisional Magistrate has passed, namely, to set aside the conviction of accused 5 and accused 7 and order their re-trial. I am thankful to Sri K. Narayanasw ami who helped me as amicus curiae in this case. K.S. ----------- Order accordingly.