K. S. LODHA, J. - (1.)THIS application u/s. 482 Cr. P. C. has been filed by one of the accused Jeevan Ram, against the orders of the learned Chief Judl. Magistrate, Barmer, dated 6-9-1983 and 7-3-1984.
(2.)THE matter arises out of the trial of the petitioner along with some other accused persons for offence u/s. 7 (3) of the Essential Commodities Act, 1955 (hereinafter called 'the Act' ). THE complaint was lodged by a Enforcement Inspector, Chauhatan against the petitioner and three others in the Court of the Chief Judl. Magistrate in the month of July, 1980 and it was alleged that the accused persons had contravened the provisions of the Rajasthan Food Grains Regulation and Distribution Order, 1976 (hereinafter called 'the Order' ). THE complaint was registered and the accused persons were summoned. On the appearance of the accused persons, the learned Magistrate directed by his order dated 30-3-1981 that the Enforcement Inspector Shri Gajja Ram be summoned for evidence before framing of charge. After a number of adjournments, Gajja Ram and two other witnesses were examined on 23-6-1983 and the case was then adjourned for further evidence. However, when the case was thus pending for further evidence on 6-9-83, the learned Magistrate ordered that the case should be tried in a summary manner and, therefore, the particulars of the offences shall be stated to the accused persons and then only the prosecution evidence shall be recorded. THE case was then adjourned to 20-10-83. On that day, one of the accused was not present and, therefore, the case was adjourned to 21-10-83. On that day, again the case was adjourned to 3-11-83 and further to some more dates. Ultimately, the substance of the accusations were stated to the accused on 10-12-83 and the case was fixed for the prosecution evidence on 24-12-83. On 24-12-83, one of the accused was absent and, therefore, warrant of arrest was ordered to be issued against him and the witness Gajja Ram, who was present could not be examined. THE case was then adjourned to 7-1-84. Again to 10-1-84, 11-1-84, 20-1-84 and then to 3-2-84. On that day, an application was moved on behalf of the accused that summary trial of this case could not be held as the case had already proceeded as warrant trial and some of the witnesses had already been examined before the framing of charge. After hearing the parties on this application, the learned Magistrate by his order dated 7-3-84, rejected the same holding that u/s. 12-A (2) of the Act as it stood before its amendment in 1981, summary trial of such offences was mandatory unless the Magistrate had directed, after hearing the parties by an order in writing that summary trial was undesirable. It was further observed that such a discretion could have been exercised by the Magistrate either when he was of the opinion that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is for any other reason undesirable to try the case summarily but no such order was even recorded. Aggrieved of this order, the petitioner Jeevan Ram has come up to this Court praying that the order of summary proceedings may be quashed. 2. I have heard the learned counsel for the petitioner and the learned Public Prosecutor and have gone through the record.
It is contended by the learned counsel for the petitioner that when on 30-3-81, the learned Magistrate had clearly directed summoning of the witnesses before framing charge and had proceeded to record evidence before charge and had examined three witnesses after a number of adjournments, the mode of the trial could not thereafter be charged to summary proceedings. It was also contended by the learned counsel that even if the learned Magistrate had not recorded a clear order as envisaged by the proviso to section 12a (2) of the Act, in the circumstances of the case, he must be deemed to have acted under that proviso and therefore, subsequently that order could not have been reviewed. It was further contended that the course adopted by the learned Magistrate is prejudicial to the accused-petitioner in as much as it is likely to affect his right of appeal etc. The learned Public Prosecutor, on the other hand, supported the order of the court below.

Having heard the learned counsel for the petitioner and the learned Public Prosecutor, I am of the opinion that this is not a fit case for the exercise of powers u/s 482 IPC for a variety of reasons.

In the first place, as pointed out by the learned Chief Judicial Magistrate, the summary trial u/s 12-A of the Act is mandatory so far as the contravention of the Order is concerned. No doubt the proviso to s. (2) of s. 12-A gives power to the Magistrate to disputes with summary trial provided it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is for any other reason undesirable to try the case summarily. However, it has been enjoined upon the Magistrate that if he adopts that course, he shall do so only after hearing the parties and recording an order to the effect as pointed out above. In the present case, the learned Magistrate does not appear to have adhere to this proviso to s. 12-A of the Act when he directed summoning the witness Gajja Ram before charge on 30-3-81. He simply recorded the presence of the accused persons and directed that the witness may be summoned before charge. It is not at all borne out from the order-sheet dated 30-3-81 that the learned Magistrate had heard the parties on the question of the manner of the trial or does it show that the learned Magistrate was of the opinion that the nature of the case was such that a sentence of imprisonment for a term exceeding one year may have to be passed nor does it further show that the learned Magistrate had any other reason for departing from the procedure laid down u/s, 12-A. Therefore, when a mandatory provision was thus being contravened and the fact came to the notice of the learned Magistrate later, he could certainly have resorted to the provisions of summary trial as required by s. 12-A of the Act.

The conduct of the petitioner in not challenging the order dated 6-9-83 immediately by raising objection before the learned Magistrate himself or by approaching this Court also disentitled him to any relief u/s. 482 Cr. P. C. He set silent from 6-9-83 till 3-2-84 and in the meantime adjournments on a number of occasions had been taken. Not only this, the substance of the accusations had been stated to the accused persons in the meantime on 10-12-83 and the evidence of pro section was being summoned vide order dated 10-12-83 and thereafter also, the case was adjourned atleast on four occasions before the application objecting to the change of the mode of trial was filed. Not only this, it further appears that the other co-accused have not challenged the order passed by the learned Magistrate on 7-3-84. They have not come up before this Court and the petitioner has also not made them parties to this application. Therefore, also in their absence before this Court, it would not be proper to interfere with the order of the learned Magistrate.

(3.)SO far as the question of prejudice to the petitioner is concerned, this argument cannot be entertained in view of the mandatory provisions of s. 12-A.
For the reasons stated above, I do not find any force in this application and reject the same. .