STATE OF HIMACHAL PRADESH v. BIR SINGH — 1998 DIGILAW 224 (HP)

JUDGMENT R.L. Khurana, J.—The sole question arising for determination in the present appeal preferred by the State under Section 378, Code of Criminal Procedure, assailing the acquittal of the respondent, as recorded by the learned Additional Sessions Judge, Una, vide impugned judgment, dated 15.7.1994, is:— "Whether the provisions contained in Section 16-A of the Prevention of Food Adulteration Act, 1954 (for short, the Act), are mandatory in nature and non-compliance thereof would vitiate the trial." 2. The respondent was sent up for trial before the learned Judicial Magistrate 1st Class (2), Amb, for the offence punishable under Section 16(1)(a)(i) of the Act for having been found selling adulterated turmeric powder (Haldi) to the general public. Upon such trial, the respondent was convicted for the offence and sentenced to imprisonment for one year and fine of Rs. 2,000/-, vide judgment dated 30.3.1993. 3. On appeal, the learned Additional Sessions Judge without going into the merits of the case, set aside the conviction and sentence imposed upon the respondent on the ground that the learned Magistrate had failed to follow the mandatory provisions contained in Section 16-A of the Act and as such the trial stood vitiated. In coming to such conclusion, the learned Additional Sessions Jude had placed reliance on and followed the ratio laid down by a learned single Judge of the Allahabad High Court in State of U.P. v. Shiv Dass, 1972 FAJ 163. 4. Admittedly, the offences falling under sub-section (1) of Section 16 of the Act, are punishable with imprisonment which may extend to three years and with fine which shall not be less than one thousand rupees. Therefore, all such offences under the Code of Criminal Procedure, are required to be tried as per the procedure laid down in Chapter XIX thereof, that is, as a warrant case. 5. Section 16-A was inserted into the Act by the Prevention of Food Adulteration (Amendment) Act, 1976, being Act No. 34 of 1976 with effect from 1.4.1976 providing that all offences under sub-sections (1) of Section 16 shall be tried in a summary way. 5. Section 16-A was inserted into the Act by the Prevention of Food Adulteration (Amendment) Act, 1976, being Act No. 34 of 1976 with effect from 1.4.1976 providing that all offences under sub-sections (1) of Section 16 shall be tried in a summary way. Section 16-A, reads : “16-A. Power of Court to try cases summarily.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under sub-section (1) of Section 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 Sections 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 j thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code." 6. The "Objects and Reasons" appended to the Amendment Act No. 34 of 1976 by virtue of which Section 16-A came to be inserted read: “The Committee is of the opinion that cases involving food adulteration should be tried and the offenders punished as quickly as possible. To achieve this object, the Committee has added this new clause which provides for summary trial in cases which do not involve heavy punishment, i.e., offences which come under sub-section (1) of Section 16 of the Act. It has, however, been ensured that such offences are tried by a Judicial Magistrate of the First Class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate. It has, however, been ensured that such offences are tried by a Judicial Magistrate of the First Class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate. It has also been provided that if the Magistrate, in the course of summary trial is of the opinion that it is undesirable to try the case summarily or that a sentence of imprisonment for a term exceeding one year may have to be passed, he shall record an order to that effect and thereafter, proceed to hear or rehear the case in the manner provided by the Code of Criminal Procedure." 7. Vide notification No. HFW-E(4)-S/76, dated 1.11.1997, all Judicial Magistrates 1st Class in the State of Himachal Pradesh have been empowered by the State Government to try all offences under sub-section (1) of Section 16 of the Act within their respective jurisdiction in a summary way. 8. By virtue of this Notification, therefore, the learned Judicial Magistrate, 1st Class (2) Amb, was competent to try the offence against the respondent in a summary way within the meaning of Section 16-A of the Act. However, in spite of being so empowered instead of proceeding with the trial in a summary way, he proceeded with the trial by following the procedure prescribed for trial of warrant cases under Chapter XIX of the Code of Criminal Procedure. 9. In Budh Ram v. State of Haryana, 1984 (2) FAC 179, one of the question referred to the Full Bench of the High Court of Punjab and Haryana, was: "Whether the provisions of Section 16-A of the Act envisaging trial of offences under Section 16(1) of the Act in the first instance in a summary way is mandatory in character." 10. The Full Bench held that once the Judicial Magistrates have been specially empowered, every case under Section 16(1) of the Act in the first instance shall mandatorily be tried in a summary way unless the Magistrate for the reasons mentioned in the said provision considered it necessary to try the offender in accordance with the procedure prescribed by the Code of Criminal Procedure. 11. 11. It will not be out of place to quote the observations made by the Full Bench in paragraphs 56 and 57 of its judgment: ".........The Legislature, in my view, introduced summary trial primarily for the reasons to enable the Courts to expeditiously bring to book the offenders. Only a quick retribution can serve the objective of deterring the would be offenders from committing the given crime which was not only highly unsocial in character but it exhibited the tendency of assuming menacing 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 authorised 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 Section 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 Magistrate 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 and they shall have to try every offence under Section 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." 12. In Ram Kumar v. State of Haryana, 1995(2) Shim. L.J. 1189, the accused herein was being prosecuted for an offence under Section 16(1) of the Act. In Ram Kumar v. State of Haryana, 1995(2) Shim. L.J. 1189, the accused herein was being prosecuted for an offence under Section 16(1) of the Act. On the complaint having been filed, the Chief Judicial Magistrate summoned the accused for 25.3.1988 and adopted the summary procedure as contained in Section 16-A of the Act. Though the accused had been attending the Court since 25.3.1988, no prosecution witness was examined except one on 6.8.1993. On that day, the learned Magistrate passed an order that henceforth the Court would adopt the warrant procedure instead of summary procedure. Such order reads: "One PW is present but vide order dated 25.3.1989, the accused was given a notice under Section 16(1)(a) read with Section 7 of the P.F. Act. Since the punishment for committing offence punishable under Section 16(1)(a) can be more than one year, so I do not think it proper to try the case in summary way. Thus, I order the case to be tried as warrant case. One PW is present and examined. Prosecution closed pre-charge evidence. Now to come up on 13.3.1993 for consideration of charge." 13. The accused sought the quashing of the complaint by approaching the High Court of Punjab and Haryana under Section 482, Code of Criminal Procedure. Two contentions were raised therein, namely, (a) more than six years had passed since the sample was taken and the accused had been facing trial without any substantial proceedings taken by the trial Court and as such the accused has been deprived of his fundamental right to speedy trial, and, (b) while switching over from a summary procedure to a warrant procedure, the mandatory provisons of Section 16-A of the Act were violated. 14. A learned Single Judge following the ratio laid down in the case of Budh Ram v. State of Haryana (supra) held: "The Legislature in its wisdom has specifically enacted Section 16-A of the Act and they were conscious of the fact that a person guilty of an offence under Section 16(1)(a) could be punished for a maximum imprisonment of three years and a fine of not less than one thousand rupees. However, it is provided under Section 16-A itself, under what circumstances the Magistrate could depart from a summary procedure and could resort to the procedure of a warrant case. However, it is provided under Section 16-A itself, under what circumstances the Magistrate could depart from a summary procedure and could resort to the procedure of a warrant case. According to the second Proviso to Section 16-A of the Act, the Magistrate could depart from the summary procedure only when it appeared to him that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may not have to be passed or that it was for any other reason undesirable to try the case summarily. In that event, it was mandatory for the Magistrate to hear the parties and record the order to that effect and thereafter, recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code. In the case in hand, the Chief Judicial Magistrate has failed to comply with the specific provisions of the statute as provided under Section 16-A. He has failed to give any reasons to indicate as to what was the nature of the case that a sentence of imprisonment for a term exceeding one year may have to be passed. He has not even given any other reason which, according to him, could by undesirable to try the case summarily. While switching over to warrant procedure, he has simply stated that........Since the punishment for committing offence punishable under Section 16(1)(a) can be more than one year, so I do not think it proper to try the case in summary way. It is not discernible either from the order or from the record of this case as to whether before switching over to warrant procedure, the Magistrate gave any hearing to the parties which is requirement of Section 16-A of the Act. The petitioner has specifically alleged in the petition that he was not given any opportunity of hearing by the Magistrate before passing the impugned order. More so, the specific assertion made in the petition in this regard has not even been denied in the written statement filed on behalf of the State. The question of mandatory nature of the provisions of Section 16-A of the Act is not res Integra. More so, the specific assertion made in the petition in this regard has not even been denied in the written statement filed on behalf of the State. The question of mandatory nature of the provisions of Section 16-A of the Act is not res Integra. The mandatory nature of Section 16-A of the Act has been interpreted by a Full Bench of this Court as far back as in the year 1984, in Budh Ram and another v. State of Haryana, 1984 (II) F.A.C. 179. It has been ruled in Budh Rams case (supra) that every case under Section 16(1) in the first instance shall mandatorily be tried in a summary way unless the Magistrate for the reasons mentioned in the said provision considered it necessary to try the offender in accordance with the procedure prescribed by the Criminal Procedure Code. The Magistrate was bound to form his judicial opinion in accordance with the specific provisions of the statute provided under Section 16-A of the Act before switching over from the summary procedure to a warrant case procedure, which is lacking in the case in hand and this mistake on the part of the Magistrate has snatched away the Constitutional guarantee of the petitioner of speedy trial emanating from Article 21. The provision of Article 21 of the Constitution of India remind us that right of speedy trial is an inalienable Fundamental Right of a citizen. The accused could not be deprived of a speedy trial by the mistake of the Magistrate who committed an illegality in not trying the case in a summary manner but resorted to the warrant procedure without giving any reasons as was required of him in accordance with the second Proviso to Section 16-A. It was due to his negligence that the trial could not be completed speedily in this case. Now, looking at facts of this case in this backdrop it is apparent on the face of the record that the complaint was filed in the Court in the year 1988, consequent to which the accused was summoned, but the trial of the accused lingered on till the year 1993 when vide his order, dated August 6, 1993 the Chief Judicial Magistrate ordered that the case be tried as a warrant case but not in a summary manner without adopting the summary procedure provided under Section 16-A of the Act. In this way, the trial has prolonged for more than five years for no fault of the accused, and to be precise, rather the trial has not virtually started due to the mistake of the Court. It seems that the Chief Judicial Magistrate did not even bother to have cursory glance at the provisions of Section 16-A of the Act, before passing the impugned order, dated August 6, 1993. The order of the Chief Judicial Magistrate, Bhiwani, viewed from all angles, is liable to be quashed as he has not complied with the mandatory provisions of Section 16-A of the Act inasmuch as (a) in not giving reasons holding that the nature of the case was such that a sentence of imprisonment for a term exceeding one year may have to be passed or it was necessary to switch over to the warrant procedure for any other reason; and (b) in not giving an opportunity of being heard to the accused before adopting the procedure of a warrant case. In the peculiar circumstances of this case, when the trial has lingered on for such a long time not on the basis of the fault of the accused, but due to the wrong procedure adopted by the Magistrae and looking into the percentage of adulteration in milk, i.e. there was deficiency of 0.6 per cent milk fat and 0.5 per cent milk solids not fat, I think no useful purpose would be served to add to the agony of the accused-petitioner more for a longer time." 15. A similar question also arose before a Division Bench of the Kerala High Court in Chandak v. Food Inspector, 1990(1) FAC 76, and it was held that the provisions contained in Section 16-A of the Act are merely discretionary. It was observed in paragraph 5 of the judgment in the following terms: "The provision in Section 16-A that all offences under Section 16(1) shall be tried in a summary way, need be understood only as may, according to the discretion of the Magistrate. Under Section 16(1), the penalty can go up to imprisonment for a period of three years. In a case tried in the summary way, the sentence cannot go beyond a term of imprisonment for three months under Section 262(2) of the Code of Criminal Procedure. Section 16-A of the Prevention of Food Adulteration Act is an exception to that. Under Section 16(1), the penalty can go up to imprisonment for a period of three years. In a case tried in the summary way, the sentence cannot go beyond a term of imprisonment for three months under Section 262(2) of the Code of Criminal Procedure. Section 16-A of the Prevention of Food Adulteration Act is an exception to that. Even there the sentence of imprisonment cannot go beyond one year when tried summarily. If all such cases are to be tried summarily, without any discretion in that respect to the Magistrate, the provision for maximum sentence will become meaningless.” 16. A somewhat similar view has been taken by a learned Single Judge of the Allahabad High Court in Nathi Lal v. State of U.P., 1980 Cr.L.J. (NOC) 79, wherein it was held that under Section 16-A of the Act though summary trial is permissible, resort to it should not ordinarily be made and that since the offences being serious social crimes, true correct and verbatim record of statements is essential to do justice to the accused. 17. Again in M/s. Prag Vanaspati Products, Aligarh and another v. III Additional District & Sessions Judge and others, 1996 FAJ, 49, it has been held by a learned Single Judge of the Allahabad High Court that if the Magistrate specially authorised to try the case under Section 16-A has not passed specific order for trying the case as a warrant trial, on that ground the proceedings would not vitiate for non-compliance of the provisions of Section 16-A of the Act inasmuch as the Magistrate is also empowered to try the case as a warrant trial also and the accused would be given full opportunity to contest the case in the regular trial and his case would not be prejudiced at all. Non-mentioning of reason or non-passing of such order to that effect as provided in the second proviso to Section 16-A of the Act would only amount to an irregularity and would not vitiate the entire proceedings. 18. A similar view has been taken by the Rajasthan High Court in Rajendra alias Rajan v. State of Rajasthan, 1988(2) FAC 249. It was held: "The first contention of the learned Counsel for the petitioner is that by virtue of Section 16-A of the Act, the case could have been tried summarily but had not so been tried. 18. A similar view has been taken by the Rajasthan High Court in Rajendra alias Rajan v. State of Rajasthan, 1988(2) FAC 249. It was held: "The first contention of the learned Counsel for the petitioner is that by virtue of Section 16-A of the Act, the case could have been tried summarily but had not so been tried. It is also contended that if the law prescribes a particular procedure for trial of cases then the same procedure must be followed. It appears that such a plea was not raised before the trial Court or before the appellate Court. Be that as it may, there can be no dispute that the Chief Judicial Magistrate has been authorised to try cases appears to have been tried by the learned Magistrate having jurisdiction in the matter, though instead of trying the case summarily a procedure of warrant cases has been adopted, the question is whether in such case can it be said that the trial can be held by the learned Magistrate without jurisdiction. Under Section 16-A of the Act all offences under sub-section (1) of Section 16 of the Act 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 Sections 262 to 265 (both inclusive) of the Code of Criminal Procedure shall as far as may be apply to such trial. The second proviso to Section 16-A of the Act empowers the Magistrate who is authorised to try the cases summarily that when ^.t the commencement of or in the course of a summary trial under Section 16-A of the Act, 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 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, recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the Code of Criminal Procedure. Thus, even if at the commencement of the summary trial the Magistrate thinks it undesirable to try such a case summarily, he shall after hearing the parties record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the Code of Criminal Procedure. Thus, the question is if the Magistrate without hearing the parties and without regarding (sic) the order of affording opportunity to the parties on the question tries the case straightway as a warrant case, whether it renders the judgment of the learned Magistrate without jurisdiction? A look at Chapter XXXV of the Code of Criminal Procedure will show that the said chapter contains the provisions in respect of irregular proceedings. Under Section 461, Cr.P.C. if any Magistrate not being empowered by law in this behalf does any of the things mentioned in clauses (a) to (q) of Section 461, Cr.P.C. then his proceedings shall be vitiated. It has already been said earlier that the Chief Judicial Magistrates in Rajasthan have been empowered to try cases summarily. Section 465, Cr.P.C. is relevant. Sub-section (1) of Section 465, Cr.P.C. provides that subject to the provisions herein before contained, no finding; sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission, or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code, or any error or irregularity in any sanction for the prosecution unless in the opinion of that Court a failure of justice has in fact been occasioned thereby. Therefore, even if the accused should have been tried summarily by virtue of Section 16-A of the Act by the Magistrate authorised in that behalf, and the learned Magistrate at the commencement of the proceedings does not give an opportunity to the parties of hearing on that question and does not record an order that it will be undesirable to try the case summarily, and instead of trying the case summarily tries it as a warrant case, the accused will have to show that by adoption of that procedure failure of justice has been occasioned. In the instant case, no such failure of justice has been occasioned. In the instant case, no such failure of justice has been occasioned. No such objection was taken by the accused in the trial of the case or even at the appellate stage, and even today, the learned Counsel for the petitioner could not show that any failure of justice has been occasioned by not trying the case summarily but trying it as a warrant case it may be stated that the trial of the cases as warrant case is more beneficial to the accused than trying it summarily.....” 19. The High Court of Orissa in M/s. Razak Rice and Oil Mills v. Bharat Narayan Patnaik, 1998 Cr.L.J. 648, where the Magistrate instead of adopting the summary trial as required under Section 16-A of the Act, had proceeded with the case by adopting the procedure meant for the trial of a warrant case, has held that the trial did not vitiate since no prejudice was shown to have been caused to the accused in the conduct of his defence by adopting warrant procedure. In coming to such conclusion, the learned Judge of the High Court of Orissa had placed reliance on the decision of the Supreme Court in Gopal Dass Sindhi and others v. State of Assam and another, AIR 1961 SC 986. 20. In Gopal Dass Sindhis case (supra), the offence under Section 488, Indian Penal Code, was required to be tried as a summons case. However, the Magistrate adopted the procedure prescribed for the trial of a warrant case. It was held that the Magistrate had committed only an irregularity which was curable under Section 537, Code of Criminal Procedure, 1898 (corresponding to Section 465, Code of Criminal Procedure, 1973) and it would not vitiate the trial unless prejudice is shown to have been caused to the accused. This view was again reiterated in Supdt and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and others, 1979 SCC (Cr) 1038. 21. Under Section 16-A of the Act, the Magistrate, while trying an offence in a summary way is required to follow the procedure, as far as may be, laid down in Sections 262 to 265 of Chapter XXI, Code of Criminal Procedure. Section 262(1) provides that the procedure specified in the Code of Criminal Procedure for trial of summons case shall be followed in the case of trial of a case in a summary way. 22. Section 262(1) provides that the procedure specified in the Code of Criminal Procedure for trial of summons case shall be followed in the case of trial of a case in a summary way. 22. The Privy Council in Pulukuri Kottaya and others v. Emperor, AIR 1947 PC 67, has held that when a trial is conducted in a manner different from that prescribed under the Code of Criminal Procedure, the trial is bad, and no question of curing an irregularity arises. However, if the trial is conducted substantially in the manner prescribed by the Code of Criminal Procedure and some irregularity occurs in the course of such conduct, the irregularity can be cured under Section 537 (now Section 465) of the Code of Criminal Procedure. It was further observed that the distinction drawn in many cases in India between an illegality and an irregularity is one of degree rather than of kind. 23. The above ratio was followed by the Supreme Court in Santa Singh v. The State of Punjab, AIR 1976 SC 2386, wherein the question was whether non-compliance with the requirement of Section 235(2) of the Code of Criminal Procedure was an irregularity curable under Section 465 of the Code or it was an illegality which would vitiate the sentence. It was held that non-compliance of Section 235(2) of the Code of Criminal Procedure could not be regarded as a mere irregularity, since such non-compliance goes to the root of the matter and is of such a character that it would vitiate the sentence. It was further held that when no opportunity is given to the accused to produce material and make submissions in regard to the sentence to be imposed on him, failure of justice must be regarded as implicit and Section 465 of the Code of Criminal Procedure cannot, in the circumstances, have any application. 24. In Prem Sahu v. The State of Madhya Pradesh, 1977 Cr. L.J. (NOC) 129, the offence involved was the one under Section 7 of the Essential Commodities Act, 1955. Such offence, prior to the coming into force of the Essential Commodities (Amendment) Act No. 18 of 1981, vide Section 12-A was required to be tried in a summary way by the Magistrate. However, instead of trying the case in a summary way, the Magistrate proceeded with the trial as a warrant case. 25. Such offence, prior to the coming into force of the Essential Commodities (Amendment) Act No. 18 of 1981, vide Section 12-A was required to be tried in a summary way by the Magistrate. However, instead of trying the case in a summary way, the Magistrate proceeded with the trial as a warrant case. 25. It was held that where an offence under the Essential Commodities Act, 1955, is to be tried summarily by the competent Magistrate and is tried by him as a warrant case, the trial is not null and void. Unless the course adopted has prejudiced the accused, the defect, if any, is curable under Section 537 (now Section 465), Code of Criminal Procedure. 26. A contrary view has been taken by a learned Single Judge of the Punjab and Haryana High Court in Nohar Chand v. The State of Punjab, 1984(1) Recent Cr.R. 388. In the said case the scope of Section 12-A(2), Essential Commodities Act, 1955, as in force prior to the amendment vide Amendment Act 18 of 1981, the provisions of which are pari materia the provisions contained in Section 16-A of the Act, came to be considered. It was held that the accused had to be tried in a summary way and if, however, the Magistrate decides to try the case in a regular way as a warrant case, he should hear the parties and record reasons for not trying the case in a summary manner. Failure to hear the parties and to record the reasons would prejudice the accused and the charge was liable to be quashed. 27. It may be noted that by virtue of the Amendment Act No. 18 of 1981, two major changes were introduced in the Essential Commodities Act, 1955 with regard to the trial of offences under Section 7 of the said Act, namely: (a) the offences under the Act were made triable only by the Special Court; and (b) while empowering such Special Courts to try the offences in a summary way, the discretion given earlier for converting such summary trial into the one for trial of warrant cases was taken away. Under the present provisions as contained in Section 12-AA(f) of the Essential Commodities Act, 1955, as inserted vide Amendment Act No. 18 of 1981, the Special Court has to try the offences only in a summary way. 28. Under the present provisions as contained in Section 12-AA(f) of the Essential Commodities Act, 1955, as inserted vide Amendment Act No. 18 of 1981, the Special Court has to try the offences only in a summary way. 28. Dealing with the scope if Section 12-AA(f) of the Essential Commodities Act, 1955, a Division Bench of the Calcutta High Court in Jnan Prakash Agarwala v. State of West Bengal, 1992 FAJ 501, has held: “.....a case tried in a summary way by following the provisions for trial of summons case cannot be converted into one for trial of warrant cases under the existing provisions. Had the Legislature intended to do so> it could have specifically conferred such authority on the Court as it has done in Section 6 of the Prevention of Corruption Act, 1988, and Section 16-A of the Prevention of Food Adulteration Act. No such provision has been introduced by the Legislature in the Essential Commodities Act and it has retained its only mandate in clause (f) of Section 12-AA that all offences under the Principal Act shall be tried in a summary way." 29. Reliance was sought to be placed by the learned Assistant Advocate-General on a decision of a learned Single Judge of this Court in M/s. Indian Spices Corporation, Chandigrh v. State of Himachal Pradesh, 1989 (1) Shim. L.C. 260. 30. In the said case, one Naresh Kumar accused was being prosecuted for the offence under Section 16(1) of the Act. While proceeding with the case, the learned Magistrate followed the procedure prescribed for the trial of a summons case. Notice of accusation was given to the accused. During the course of the proceedings on an application having been made by the accused, firm Messrs. Indian Spices Corporation, Chandigarh, was impleaded as a co-accused under Section 20-A of the Act. The said firm preferred a petition before this Court under Section 482, Code of Criminal Procedure, for quashing the order of the learned Magistrate summoning it as a co-accused. 31. While rejecting the petition, the learned Single Judge of this Court, insofar as trial of the case as a summons case is concerned, observed in paragraph 5 of the judgment as under: "It may further be stated that the trial Court has started trying this case as a summon case, which is patently illegal. 31. While rejecting the petition, the learned Single Judge of this Court, insofar as trial of the case as a summons case is concerned, observed in paragraph 5 of the judgment as under: "It may further be stated that the trial Court has started trying this case as a summon case, which is patently illegal. It is apparent that for the offence under Section 16(l)(a)(i) of the Act for which the accused are being tried, carries maximum punishment up to three years and as such obviously, it is a warrant case and the same is required to be tried as such, that is, a warrant case instituted otherwise than on police report and as such the provisions of Section 244 onwards of the Code of Criminal Procedure are attracted thereto. The notice of accusation given to the accused Naresh Kumar dated June 10, 1987, therefore, is quashed and the trial Court is directed to proceed in the case in accordance with the provisions of Section 244 of the Code of Criminal Procedure." 32. It may be noticed that the provisions contained in Section 16-A of the Act never came to be noticed and considered in the said case. Therefore, the ratio therein cannot be applied to the present case. 33. Having noticed the different views touching the interpretation as to the scope and ambit of Section 16-A of the Act, it is clear that though the Legislature with a view to expeditiously bring to book the offender under the Act introduced summary trial and intended that all offences under Section 16(1) of the Act be tried summarily by specially authorised Magistrates, however, at the same time under the second proviso to the said Section 16-A, discretion has been given to such Magistrates to try such offences by following the procedure laid down for the trial of a warrant case, if they are of the opinion 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. Such discretion can be exercised by the Magistrates either at the time of commencement of the trial or at any time, during the course of summary trial. 34. Such discretion can be exercised by the Magistrates either at the time of commencement of the trial or at any time, during the course of summary trial. 34. On the basis of the language used in the section and in view of the "Objects and Reasons" for the enactment of Section 16-A of the Act, the only interpretation is that the specially-empowered Magistrates shall have to try every offence under Section 16(1) of the Act in the first instance in a summary way and if in a given situation they intend to try the case as a warrant case, reasons therefor would be recorded after giving the parties an opportunity of being heard. However, failure of the Magistrates to record reasons and/or affording an opportunity to the parties of being heard would not vitiate the trial. Such failure would only be an irregularity curable under Section 465, Code of Criminal Procedure, unless prejudice is shown to have been caused to the accused thereby. 35. A perusal of the record shows that the accused had put in appearance before the learned Magistrate for the first time on 22.5.1990 on which date all the copies as provided for under Section 207, Code of Criminal Procedure, were supplied to him and the case was adjourned to 24.7.1990 for the notice of accusation. In other words, the learned Magistrate proceeded to try the case in a summary way by following the procedure prescribed for trial of a summons case. The case was then being adjourned for one reason or the other and was posted for 17.12.1990, for notice of accusation. The case was then adjourned to 1.3.1991 for the same purpose, that is, for notice of accusation. On 1.3.1991, since the Food Inspector was not present, notice of accusation was not given and notice was ordered to be issued to the Food Inspector for his appearance on 1.4.1991. It was on this date that instead of giving a notice of accusation to the accused, the learned Magistrate adjourned the case for pre-charge evidence. In other words, the procedure for trial of a warrant case was adopted. 36. It may be stated that at no stage during the course of the trial, any objection was raised by the accused as to the procedure adopted by the learned Magistrate for trying the case as a warrant case. In other words, the procedure for trial of a warrant case was adopted. 36. It may be stated that at no stage during the course of the trial, any objection was raised by the accused as to the procedure adopted by the learned Magistrate for trying the case as a warrant case. Such objection for the first time was raised by him only at the appellate stage before the learned Additional Sessions Judge. 37. The objection raised by the accused was upheld by the learned Additional Sessions Judge, who without going into the merits of the case, allowed the appeal, and set aside the conviction and sentence imposed upon the accused by the learned Magistrate by holding that "the conviction of the accused was illegal due to adoption of procedure prescribed for warrant case without specifying any reason to adopt such course." No finding was, however, recorded by the learned Additional Sessions Judge on the question whether any prejudice had been caused to the accused due to adoption of the procedure prescribed for the trial of a warrant case on the failure of the learned Magistrate to record reasons for adopting the procedure prescribed for the trial of a warrant case. 38. It has been held above that such failure of the Magistrate to record reasons for not trying the case in a summary way is only an irregularity curable under Section 465, Code of Criminal Procedure, unless some prejudice is shown to have been caused to the accused. 39. No prejudice is shown to have been caused in the present case. The accused on the other hand had the opportunity and benefit of a detailed trial. Resultantly, the impugned order dated 15.7.1994 of the learned Additional Sessions Judge cannot be sustained and is liable to be set aside. 40. The present appeal is, therefore, allowed. The impugned order dated 15.7.1994 of the learned Additional Sessions Judge, acquitting the accused on a technical ground, without going into the merits of the case, is set aside and the appeal being Criminal Appeal No.18/94(93) on the files of the learned Additional Sessions Judge, is remanded for disposal on merits in accordance with law. 41. The parties through their Counsel are directed to appear before the learned Additional Sessions Judge, Una, on 5.1.1999. The records of the two courts below be returned forthwith so as to reach well before the date fixed. 41. The parties through their Counsel are directed to appear before the learned Additional Sessions Judge, Una, on 5.1.1999. The records of the two courts below be returned forthwith so as to reach well before the date fixed. Appeal allowed.