GARG, J. - (1.) THIS revision petition has been filed by the accused petitioner against the order dated 24. 9. 2001 passed by the learned Additional Chief Judicial Magistrate, Hanumangarh in criminal case No. 432/96 whereby the learned Magistrate allowed the application dated 9. 7. 2001 filed by the APP and ordered that the case be tried as warrant case and he further ordered that PW- 1 Ramgopal be summoned for further cross-examination.
(2.) IT arises in the following circumstances : (i) That a complaint under Sec. 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act of 1954) was filed in the lower court on 30. 5. 95 and on that day, the learned Magistrate took cognizance against the accused petitioner. IT appears that procedure of warrant trial otherwise than on a police report was adopted by the Magistrate and for that pre-charges evidence was recorded and statement of PW. 1 Ramgopal was recorded on 11. 8. 98 and thereafter the case was fixed for argument on charge. (ii) On 14. 1. 99, the learned Magistrate found the prima facie case for framing charges for offence under Sec. 7/16 of the Act of 1954 and accused petitioner was charged accordingly. Thereafter PW. 1 Ramgopal who was examined earlier was to be cross-examined and he was cross-examined again on 7. 10. 99 by the learned counsel appearing on behalf of the accused petitioner and one more witnesses PW. 2 was produced on behalf of the prosecution on 2. 10. 99. (iii) On 18. 5. 2001, statement of accused petitioner under Sec. 313 Cr. P. C. was recorded and one witness was examined in defence on 2. 6. 2001 and thereafter the file was put up for final arguments. On 9. 7. 2001, an application was filed by the learned App before the learned trial Magistrate stating that the procedure for trying the summons cases should have been adopted and since the evidence was recorded before charge and the case should have been tried after framing charge and, therefore, it was prayed that in the interest of justice, evidence recorded so far be treated as pre-charge evidence and therefore, the case be disposed of after framing charges. (iv) That application was disposed of by the learned trial Magistrate vide his order dated 24. 9. 2001 holding that as per provisions of Sec. 16-A of the Act of 1954, the trial of the present case should be conducted as summary trial, but since procedure for warrant trial has been adopted and PW. 1 Ramgopal has been examined at length and, therefore, mistake can be cured by accepting the application and further more an opportunity is given to the learned counsel for the accused petitioner to further cross-examine PW. 1 Ram Gopal. Aggrieved from that order, this revision petition has been filed by the accused petitioner and it has been argued that since he was facing trial for last 7 years and therefore, the order by which retrial was ordered is illegal as the case was already fixed for final arguments and, therefore, it was prayed that "the impugned order dated 24. 9. 2001 may kindly be quashed and the learned Magistrate be directed to pronounce the judgment. Any other order which the Hon'ble Court thinks fit and proper, be passed in favour of the petitioner. " I have heard both and perused the record of the case. In my considered opinion, the present application filed by the APP on 9. 7. 2001 and the impugned order which was passed on that application shows how in bad manner the proceedings are going on the lower Court. In the application dated 8. 7. 2001, the learned APP suggest that since pre-charge evidence was recorded, therefore, the evidence recorded earlier should be treated as pre-charge and case should be disposed of after framing charge. This application was devoid of any force as from the order- sheets it appears that the procedure which was adopted by the learned ACJM was of warrant trial, other wise on police report and in that case pre-charge evidence was to be recorded first and in this case, statement of PW. 1 Ram Gopal was recorded before framing charge and the charge was framed on 14. 1. 99 after the statement of PW. 1 Ram Gopal was recorded. On the basis of pre- charge evidence, charge was framed by the learned ACJM on 14. 1. 99 and when this being the position, what learned APP wants to suggest the Court, he knows well and noneelse. Not only this after the charge was framed as per procedure of warrant cases instituted on a complaint, PW. 1 Ram Gopal was further cross- examined by the learned counsel for the accused petitioner on 7. 10. 99. This is one aspect of the matter. By the impugned order, the learned Magistrate further ordered that if the learned counsel for the accused -petitioner wants to further cross- examine PW. 1 Ram Gopal, he can do so, but it appears that the learned counsel for the accused petitioner does not want to cross-examine further PW. 1 Ram Gopal and he wants verdict on the evidence recorded and when that was his intention, how he has filed this revision petition, it is beyond the scope of understanding and if he does not want to further cross-examine PW. 1 Ram Gopal and wants that arguments be heard, but he has approached this Court and this also shows slagness on the part of the accused petitioner. Apart from this since procedure for warrant case instituted otherwise on police report was adopted, therefore, the impugned order cannot be sustained and thus the order dated 24. 9. 2001 is liable to be set aside and this revision petition is liable to be allowed on this point.
(3.) BEFORE parting with the judgment the question arises whether trial of the case under the Act of 1954 should have been tried as summary trial as per Sec. 16-A or in other words procedure as found in Section 16 (1) being not adopted by the Court, whether trial stands vitiated in into or not. There is a Division Bench Judgment of this Court reported in Shyam Sunder Modi vs. State of Rajasthan (1 ). In that case, this Court observed that Sec. 16-A gives a mandate that all offences under Sub-Sec. 1 of Sec. 16 shall be tried in a summary way, but if case is conducted as warrant case and no prejudice is caused to the accused petitioner, that mistake can be considered as irregularity and not illegality. In another judgment Shyam Sunder vs. State of Rajasthan (2), has held that trial conducted in violation of Sec. 16a is not vitiated ipso facto if no prejudice is found to have been caused to the accused. ;