JUDGMENT 1. - In this case the petitioner was found offering for sale and did actually sell to Hari Prakash, Food Inspector adulterated 'Desi Ghee' on 15.5.79 at his business premises, M/s. Shyam Sunder Narendra Kumar at Mandi Madar Gate, Ajmer. The Food Inspector filed the complaint on 20.8.79 in the court of Chief Judicial Magistrate,. Ajmer who read over and explained the substance of the accusation to the petitioner on 7.9.82 and before recording any evidence in the case made over the case on 22.11.1983 to Addl. Chief Judicial Magistrate No. 2, Ajmer for trial and disposal according to law. The learned Addl. Chief Judicial Magistrate, No. 2. Ajmer completed the trial of the petition and vide his judgment and order dated 8.2.89 found him guilty of the offence under section. 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act), convicted him therefor and sentenced him to undergo R.I. for six months and pay a fine of Rs. 2000/- for his guilt. The petitioner appealed to the Sessions Judge, Ajmer. 2. A number of objections appear to have been taken by the petitioner before the learned Sessions Judge against the judgment and order as made by the learned Magistrate against the petitioner. One of such objection was that since the offence under section. 7/16 of the Act was triable as a summary case as per Section 16A of the Act but more than one Magistrate conducted the trial in the present case. Relying on Man Singh v. State of Rajasthan, 1989 (2) R.L.R. 553 , the learned Judge accepted the contention of the petitioner and set aside the judgment and order of the learned Magistrate but instead of acquitting the petitioner of the offence under section. 7/16 of the Act he sent the case to the Chief Judicial Magistrate, Ajmer directing him to hold the trial of the petitioner and dispose of the case according to law and in the light of the decision of this court in Man Singh's case (supra). It is against such order of the learned Sessions Judge dated 10.5.91 that this petition under section. 397/401 Cr.PC has been filed in this court. 3. It is against such order of the learned Sessions Judge dated 10.5.91 that this petition under section. 397/401 Cr.PC has been filed in this court. 3. On 16.8.91 this Bench heard the parties and being of opinion that there was some conflict of opinion over the effect of non-compliance of the provision contained in Section 16A of the Act referred the following question for the opinion of a larger Bench - "If an offence under section. 16(1) of 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 irreqularity 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 ?" 4. After examining a number of cases including Ram Chandra v. State, 1980(1) F.A.C. 334 , Budh Ram v. State of Haryana, AIR 1986 P. & H. 130 (F.B.) , Brij Lal v. State of Punjab and Haryana, 1989 (1) F.A.C. 282 , Mahavir Prasad v. State of Punjab and Haryana, 1989 (1) F.A.C. 282 , Jaswant Singh v. Union of Territory Chandigarh, 1991 F.A.J. 154 , Mahendra Singh v. State of Haryana, 1991 F.A.J. 184 , Man Singh v. State of Rajasthan (supra), V.M. Abdul Rehman v. Emperor, AIR 1927 PC 44 , Pulkuri Kottaya and Ors. v. Emperor, AIR 1947 PC 67 , Gopal Sindhi and Ors. v. State of Assam, AIR 1961 S.C. 986 ; State of U.P. v. Bhagat Kishor Joshi, AIR 1964 S.C. 221 and Bimal Kumar Khalsa v. Union of India and Ors. AIR 1988 P. & H. 95 the larger Bench answered the above question in the following manner : "If in the light of the aforesaid case law we give a second look to the provisions of Section 16A of the Act and paraphrase the same, we find that the Legislature has provided for summary trial in cases where the cases relate to offences under section. 16(1) of the Act. But at the same time the Legislature has not ousted the jurisdiction of the Magistrate to have warrant trial of the case. The rider placed by the Legislation is that it is only in two eventualities that warrant trial can be held. 16(1) of the Act. But at the same time the Legislature has not ousted the jurisdiction of the Magistrate to have warrant trial of the case. The rider placed by the Legislation is that it is only in two eventualities that warrant trial can be held. One is where the Magistrate comes to the conclusion that nature of the cases is such where sentence of imprisonment for a term exceeding one year may have to be passed, and secondly for any other reason the Magistrate after hearing the parties records an order to the effect and in those cases he will have to re-call the witnesses. In first part of Section 16A the Legislature has made it essential that all offences under sub-sec. (1) of the Section 16 should be tried in a summary way. But in the proviso the Magistrate is required to apply his mind. either at the commencement of the trial or during course of the trial as to whether nature of the case is such that a warrant trial should be conducted in a case or not. Thus, in other words the Legislature in its own wisdom empowered -the courts to try the accused both, by following the procedure of summary trial and for warrant trial. In normal course he has no option left to try all the cases where the offences are one under sub-sec.(1) of Section 16 of the Act and if without recording the reason he proceeds with the trial, the trial is illegal; accused has a right to object the continuance of trial as a warrant case and the proceedings are bound to be quashed till the trial is not over. But in cases where the conviction is recorded and sentence is passed, in our humble opinion, question or prejudice will have to be looked into. Provisions of summary proceedings have been provided for early disposal of the cases. At times it is disadvantage of the accused as he has better chances of defence in a procedure followed by warrant trial procedure. In case sentence passed against the accused is one which is beyond the scope of what could be imposed by the Magistrate empowered. To try the cases summarily by following the summary trial procedure then ex-facie there is a prejudice writ large. In case sentence passed against the accused is one which is beyond the scope of what could be imposed by the Magistrate empowered. To try the cases summarily by following the summary trial procedure then ex-facie there is a prejudice writ large. There may be other instance also of showing the prejudice but in case no prejudice is caused and the accused has faced a protracted trial, in our opinion, it will be too late for him to challenge the trial on the ground that summary procedure has not been followed. Thus, distinction has to be drawn in cases prior to conviction and post-conviction. Prior to conviction we have no hesitation in holding that there is an absolute bar and the offence is under sub-sec. (1) of Section 16 of the Act, are to be tried in a summary manner only, provided the Magistrate does not come to the conclusion that nature of the case requires sentence exceeding one year to be passed in the case and secondly for any other reason to be mentioned during the process of the trial. But regarding the part of quashing the proceedings, in our opinion, there is no absolute bar as there are enabling provisions as mentioned above, in certain given circumstances and given cases. Therefore, post conviction for quashing the proceedings in cases where sentence for imprisonment exceeding one year has not been passed, it will be essential for the court to insist on the accused to show that prejudice has been caused to him because of court's failure to try the case summarily and this prejudice has to be looked into in the light of the decision of their Logships of the Supreme Court in State of U.P. v. Bhagwat Kishore Joshi (supra). Punjab and Haryana High Court itself in Subhash Chand v. State of Haryana, 1991 Cr.LJ 2481 held that no prejudice was caused to the accused by adopting warrant case procedure instead of summary procedure as the trial Court committed irregularity and not illegality; hence conviction was sustainable, even in cases where the trials are held in accordance with Chapter XXI of the Code of Criminal Procedure. When during the course of summary trial if the Magistrate thinks that it would be more appropriate to try the accused on the regular side, Sub-sec. (2) of Section 260 Cr.PC enables him to do so. When during the course of summary trial if the Magistrate thinks that it would be more appropriate to try the accused on the regular side, Sub-sec. (2) of Section 260 Cr.PC enables him to do so. Thus, for the purpose of giving interpretation to the provisions of Section 16A of the Act, in our opinion, after conviction, the error is to be considered as an 'irregularity' and not 'illegality." 5. On the receipt of the opinion of the larger Bench, as reproduced above, I heard the learned counsel for the parties at length and examined the facts of the case and the proceedings taken by the Magistrate in the light of the cases of Ram Dayal v. State of Rajasthan, 1992 (2) F.A.J. 91 , Hem Raj v. State of Rajasthan, 1995 R.C.C. 26 , Man Singh v. State of Rajasthan (supra), Abdul Rehman Antulay v. R.S. Nayak, AIR 1992 S.C. 1701 . Nor Man Mal v. State of Raj., 1995 F.A.C. (SC) 126 , relied upon by the learned counsel for the petitioner. The learned counsel has made as impassioned appeal to acquit the petitioner or to extend the benefit of the probationary provisions either under the Code of Criminal Procedure 1973 or the Probation of Offender's Act 1958 in view of the protracted trial of the petitioner who would again face such trial in case the impugned order is allowed to stand. The learned Public Prosecutor has, however, requested the court to keep in mind the nature of the offence the petitioner has been found guilty of and its far reaching effects on the health of the community at large, while considering the merits of the submissions made by the petitioner. 6. In view of the opinion of the larger Bench it is clear that a trial conducted in violation of Section 16A of the Act cannot be held to be vitiated without first finding out the prejudice, if any, caused to the accused. If on consideration of the entire facts and circumstances of the case including the opportunity availed of by the accused to meet the accusation and defend himself no prejudice is found to have been caused, the trial cannot be held as vitiated and a retrial ordered. 7. If on consideration of the entire facts and circumstances of the case including the opportunity availed of by the accused to meet the accusation and defend himself no prejudice is found to have been caused, the trial cannot be held as vitiated and a retrial ordered. 7. Viewed in the light of the observations made herein above, it is crystal clear that after having recorded the plea of not guilty of the petitioner, the learned Chief Judicial Magistrate had transferred the case to the learned A.C.J.M. No. 2, who, too, in view of the notification issued by the State Government, referred to in the order of the larger Bench, was fully competent to try the accused. The learned A.C.J.M. appears to have given full opportunity to the petitioner to cross-examine the prosecution witness and to produce his own evidence in defence. At no stage of the trial the petitioner even appears to have complained of any prejudice, having been or likely to be caused to him by conducting or in the conduct of the trial. In view of this position, no prejudice from violation of Section 16A of the Act has been caused to the petitioner and, therefore, the order under revision is bad on law and on facts of the case. 8. In the result the impugned order is set aside and the petitioner partly allowed. Since the learned Sessions Judge has not dealt with other objection of the petitioner against the judgment and order of conviction and sentence, as passed by the learned Addl. Chief Judicial Magistrate against him, the appeal of the petitioner shall stand restored on his file and the same shall be disposed of by him as expeditiously as possible. The petitioner shall be at liberty to raise and argue all the points before the learned Sessions Judge, as have been raised and argued before this Court save the one relating to the so-called prejudice allegedly caused to him. The petitioner is directed to appear before the learned Sessions Judge, Ajmer on 23.9.96. *******