CHAUHAN, J. - (1.) THE accused petitioner, Mahesh Rawat, has challenged the order dated 9. 6. 1998 passed by the Special Judge (Essential Commodities Act Cases), Jaipur whereby the learned Judge has directed initiation of denovo trial.
(2.) THE brief fact of the case are that the petitioner was running shop No. 555 near the Airport at Sanganer, and was appointed as a retail dealer of essential commodities by grant of licence under Essential Commodities Act (`e. C. Act', for short ). Allegedly from 18. 6. 1996 to 22. 7. 1996 the said shop was inspected by the Assistant District Supply Officer, Jaipur. According to his report, certain irregularities and ommissions were discovered at the shop. THE said report was submitted to the Deputy Commissioner on 23. 7. 1996. THEreafter, a criminal complaint was filed before the concerned court for offences under Sections 3/7/8 of the E. C. Act. In order to substantiate its case, the prosecution examined sixteen witnesses and the defence examined a single witness. However, when the case was about to be finally argued, the Presiding Officer was transferred. THErefore, the case could not be decided finally by the learned Judge, who had recorded the entire evidence of the trial. A new Presiding Officer stepped in. Vide order dated 9. 6. 1998, the learned Judge directed that a denovo trial be held. Hence, this petition before this Court. Mr. M. K. Sharma, the learned counsel for the petitioner, has vehemently contended that according to Section 12-A of the E. C. Act a summary trial has to be held by the Special Judge. According to Section 262 of the Criminal Procedure Code (`the Code', for short) the procedure for summary trial is the same as for a summons case. However, according to Section 326 (3) of the Code, in case the Presiding Officer is changed during the proceedings, then "denovo" trial has to recommence. According to the learned counsel, such a procedure should be followed where the trial Court has followed the procedure for holding a summons trial. However, in the present case, procedure for holding a warrant case has been followed by the learned Judge. For, instead of recording the substance of the testimony of the 16 witnesses, their entire examination-in-chief and cross-examination have been recorded in detail. Moreover the statement of the accused has been recorded under Section 313 of Code. Since the procedure of the warrant trial has been followed, there is no need for denovo trial to be restarted. In order to substantiate this contention, the learned counsel for the petitioner has relied upon the case of Mukesh vs. State of Raj. 1998 RCC 341. The learned counsel for the petitioner has also taken this Court through the certified copy of the testimonies of the witnesses in order to prove that the testimonies were recorded as they would have been recorded in a warrant case. On the other hand Mr. B. K. Sharma, learned Public Prosecutor, has supported the impugned order. We have heard both the learned counsels and have gone through the record submitted by the learned counsel for the petitioner. A bare perusal of the testimonies recorded by the learned trial Court clearly reveals that the testimonies have been recorded as though they were recorded in a warrant case. Moreover, the statement of the accused persons have been recorded under Section 313 of the Code. In the case of Mukesh (Supra) this Court dealt that a case where under the Essential Commodities Act, the entire procedure adopted by the learned trial Court was that of a warrant case. This Court held that where the procedure for warrant case has been followed, a denovo trial need not to be ordered upon the transfer of the Presiding officer. Considering the record of this case and the above noted case law, this Court is satisfied that the impugned order is unsustainable.
(3.) IN the result, this petition is allowed and the impugned order dated 9. 6. 1998 is quashed and set aside. The learned trial Court is directed to decide the case on the basis of the evidence produced by the prosecution and by the defence and was recorded by the previous Presiding Officer. The case shall be decided within a period of two months from the date of receipt of the certified copy of this judgment. It seems that there is some confusion with regard to the whereabouts of the record of this case. According to this Court, in compliance of the order dated 18. 2. 2002, the record was sent back to the learned trial court. However, according to the trial court record has not been received by them so far. Thus, it is unknown as to where the record is. But, as the petitioner has the certified copy of the record, he is directed to submit the same before the trial Court and the trial Court is directed to decide the case on the basis of such record. With these directions, the appeal is disposed of. . ;