V. S. DAVE, J. - (1.) DURING the course of hearing of D. B. Criminal Revision Petition No. 127/91, Shyam Sunder Modi vs. State of Rajasthan and another, several cases appear to have been cited before learned brother Hon'ble M. B. Sharma J. , who noticed conflicting opinions of various courts differently interpreting S. 16-A of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act of 1954") which provision deals with the powers of the court to try cases arising under the Act summarily. Hon'ble Justice Sharma referred the revision petition itself while framing the following questions:- "if an offence under S. 16 (1) of the P. F. A. Act which has to be tried in a summary manner has been tried as a warrant case, then whether merely because it has been, so tried, the proceedings are vitiated or it is a mere irregularity and it is further necessary for the accused to show that as a result of the trial of the case as a warrant case prejudice has been caused to him?"
(2.) AFTER the aforesaid question was referred two more revision petitions namely, Chhotulal vs. State of Rajasthan S. B. Cr. Revision Petition No. 20/90 and Govind Ram vs. State of Rajasthan S. B. Cr. Revision Petition No. 132/91 were also ordered to be tagged with the aforesaid revision petition, hence all the three revision petitions have come up for hearing before us. Facts leading to each of the revision petition are different, hence we refrain ourselves from going into the facts of each case and confine ourselves to the legal point referred to us by the learned Single Judge. For answering the question referred we deem it proper to briefly deal with the legislative history leading to the amendment in the Prevention of Food Adulteration Act whereby the provision of S. 16a of the Act of 1954 was introduced conferring the powers on the courts to try certain type of cases arising under the Act summarily. The Prevention of Food Adulteration Act was enacted with a view to prevent adulteration of food stuffs and manufacture, storing and sale of adulterated food stuff for human consumption which affected the people in their health. The object and purpose of the Act is to eliminate the danger to human life and health from the sale of unwholesome articles of food so as to eradicate the anti-social evil and for ensuring purity in the articles of food, in 1954. Ever since then the Act has been amended several times and by each amending Act changes were made in the law. Despite various amendments it was felt that the purpose for which the amended Act was enacted, is being frustrated by procedural delays and various other factors drastic changes were made in law by introducing an amending Act No. 34 of 1976. By this amending Act not only the definition of 'food' was enlarged but even 'adultrent' was also defined. Not only the procedure to be followed by the Food Inspectors was completely changed but provisions were also made about the seizure of adulterated food and account books not only about nominations of the Companies but also regarding finality to be attached to the certificates issued by the Central Food Laboratory and empowering the courts to try cases where the offences alleged are under sub-section (1) of Section 16 of the Act of 1954. More severe punishments were prescribed though made rational also. These all amendments were brought with a view to make the Law functionary and for eliminating the scope of showing leniency towards the offenders who indulged themselves in storing, selling and distributing adulterated 'food' and 'adultrent'. Distinction was sought to be drawn into the 'food' and 'adultrent' and 'not injurious to health'. Discretion of the courts was limited to cases of primary food and care was also taken to exempt certain food from the purview of the Act to meet the real hardship of genuine Traders. The Legislature in its own wisdom thought it proper to introduce provision to the effect that if the article of food is a primary food adulterated due to human agency the court could for adequate and special reasons, impose a sentence which of course cannot be less than 3 months' imprisonment. In this view of the fact that the discretion was given to the Magistrate, and imposition of sentence for a period even less than two years was also permissible. The legislature provided for summary disposal of the cases by empowering the court to try the cases summarily under the provisions of Ss. 262 to 265 (both inclusive) of the Code of Criminal Procedure and for this a new Section 16a was enacted which reads as under : "16a- Power of Court to try cases summarily Notwithstanding anything contained in the Code of Criminal Procedure, 1973, all offences under sub-sec. (1) of Sec. 16 shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of sec. 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial; Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year; Provided further that when at the commencement of, or in the course of, a summary trial under this section, 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, the Magistrate shall after hearing the parties, record an order to that effect and thereafter re-call any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code". This section empowers a Magistrate of the first class specially empowered in this behalf by the State Government, or by Metropolitan Magistrate to follow procedure laid down in Secs. 262 to 265 (both inclusive) of the Code of Criminal Procedure, 1973, as far as the same apply to trials. Legislature made it obligatory for the courts to try the cases falling under sub-s. (l) of Sec. 16 in a summary way. The Legislature used the words, "shall be tried in a summary way" which apparently means that the Legislature has given the mandate that all cases must be tried summarily where the offences are one under sub-sec. (1) of S. 16 of the Act and where the Magistrates have been empowered as required. To this mandate exception has been carved out in the proviso which empowers the Magistrate to follow the procedure of the protracted trial in cases where he is of the opinion that sentence of imprisonment for a term extended to one year, may be desirable in a given case. He can do so either at the commencement of the trial or in the course of the trial. However, after hearing the parties he has to record an order to that effect. After the aforesaid section was brought on statute a Notification was issued by the Government of Rajasthan in Law and Judicial Deptt. No. F. 3 (13) Judl/76, Jaipur, dated 5. 03. 1977 which reads as under: "in exercise of powers conferred by Section 16 (A) of the Prevention of Food Adulteration Act, 1954 (Central Act No. 37 of 1954), the State Government hereby empowers all Chief Judicial Magistrates, Addl. Chief Judicial Magistrates and Munsif-cum-Judicial Magistrates First Class functioning at Sub-Divisional Head Quarters to try summarily offences under sub-sec. (1) of S. 16 of the said Act". Thus, it is not in dispute that the State of Rajasthan has empowered all the Chief Judicial Magistrates, Addl. Chief Judicial Magistrates and Munsiff-Cum-Judicial Magistrates First Class functioning at Sub-Divisional Headquarters to try the cases summarily for offences under sub-s. (1) of S. 16 of the Act No. 37 of 1954. The question therefore, is that in case the Magistrates have been empowered by the aforesaid Notification and if they have not followed the procedure of summary trial in a case falling under sub-s. (l) of S. 16 of the said Act whether the trial is ab-initio void/illegal and the entire proceedings are required to be quashed or that it is essential for the accused to show whether any prejudice has been caused to him or not. The point came up for consideration before various courts. In Ram Chandra vs. State (1), Allahabad High Court considered the situation where an offence had been committed on 29-1-1975 prior to commencement of the amendment and introduction of S. 16-A of the Act providing for summary procedure of trials yet the case was tried summarily and the accused was convicted and sentenced. He challenged the same. The learned Magistrate in that case was empowered by the High Court who invested him with summary powers as contemplated by S. 260 (1) Cr. P. C. and not by the State Government. The court held that there is nothing on record to indicate that the Judicial Magistrate concerned in the instant case was empowered by the State Government to exercise summary powers and the Magistrate has no jurisdiction to try the applicant in a summary manner, the court held the entire proceedings to be without jurisdiction and void ab-initio. The Full Bench of Punjab and Haryana High Court in Budhram Vs. State of Haryana (2) considered the scope of S. 16a and 16 (1) on the first principles and held as under: "the Legislature, in my view, introduced summary trial primarily for the reason to enable the courts to expeditiously bring to book the offenders. Only a quick retribution can serve the objective of deterring them would be offenders from committing the given crime which was not only highly unsocial in character but it exhibited the tendency of assuming proportions. Since the summary trial inherently happens to be less fair than regular trial the Legislature proceeded to provide one benefit to offenders who are tried summarily that in their case the maximum dose of sentence would not increase more than one year rigorous imprisonment but if the offence was such that it required a dose of sentence higher than what could be awarded as a result of summary trial the Legislature authoriesd the Magistrate to say so in writing and then proceed to try the offender in accordance with the procedure prescribed by the Criminal Procedure Code. From the above, it is quite clear that the Legislature intended that all offences under S. 16 (1) of the Act be tried summarily by specially authorised Magistrates, unless such a Magistrate in writing opines that the accused deserved greater dose of sentence and so he be tried in accordance with the procedure prescribed by Criminal Procedure Code. But the Judicial Magistrates can hold summary trial only if they are specially so empowered. So, unless they are specially so empowered the question of their holding summary trial would not arise. However, once the Judicial Magistrates are specially so empowered, then they cannot discriminate between one case and the other; they shall have to try every offence under S. 16 (1) in the first instance in a summary way and if a given offence is such that the offender requires to be awarded greater sentence than could be awarded as a result of summary trial, then in that case after passing such an order in writing, would be entitled to try such offenders in accordance with the procedure prescribed by the Code for the given offence". After discussing as above the court held that, "the holding of summary trial for offences under S. 16 (1) of the Act is not mandatory till such time the Magistrates are empowered in this regard. Once they are so empowered then every case under S. 16 (1) in the first instance shall be tried in a summary way unless the Magistrates for the reasons mentioned in the said provision, consider it necessary to try the offences in accordance with the procedure prescribed by Cr. P. C". On the basis of the aforesaid law their Lordships of Punjab and Haryana High Court in subsequent cases held that the trial is vitiated in case the procedure for summary trial has not been followed.
(3.) IN Brijlal Vs. State of P& H (3), Mahaveer Prasad Vs. State of & P&h (4), Jaswant Singh Vs. Union Territory Chandigarh (5), and Mahendra Singh Vs. State of Haryana (6), the court quashed the entire proceedings due to illegality in trying cases as a warrant cases in view of the provisions of S. 16a of the Act. The cases were not sent even for re-trial. Hon'ble M. B. Sharma J. who referred this revision in Mansingh Vs. State of Raj. (7) held that offences under sub-s. (1) of S. 16 of the P. F. A Act are to be tried in a summary manner only. Thus, one view of the matter is that after the amendment in law it is obligatory to hold the summary trials in respect of the offences falling under sub-section (1) of S. 16 of the Act and if the same is not done, then it is an illegality and the entire proceedings are required to be quashed. So far as the first part is concerned, there is no difficulty in subscribing to the same view but we find little difficulty to agree with the second preposition that the entire proceedings are required to be quashed, particularly in cases where sentence imposed is for a period lesser than what could be imposed if the case would have been tried summarily. With utmost respect to the learned brother Judges who had taken this view, they have not addressed themselves on the question as to whether it is essential for the appellate court/revisional court that after conviction is recorded, to see as to whether in the given circumstances of each case any prejudice has been caused to the accused and in case he fails to satisfy that any prejudice has been caused whether it is still essential to quash the entire proceedings. The question of prejudice has been considered time and again by various courts in different circumstances and we deem it proper to refer them in this order. In V. M. Abdul Rehman Vs. King Emperor (8) and Pulukuri Kottayya Vs. Emperor (9), their Lordships held as under: "when a trial is conducted in a manner different from that prescribed by the court the trial is bad and no question of cured the irregularity arises but if the trial is conducted substantially in the manner prescribed by the court, some irregularity occurs in the course of such conduct, the irregularity can be cured under S. 465 Cr. P. C. " In Gopal Das Sindhi Vs. State of Assam (10), their Lordships held that, "if the Magistrate adopts a procedure prescribed for a case triable as a warrant case he commits an irregularity which, however does not vitiate the proceeding and is curable by a provision of section 465 Cr. P. C. when no prejudice to the accused is established". ;