1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Chhotu Gurjar Vs. State of Rajasthan (S.B. Criminal Revision Petition No.1325/2009) S.B. Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C. Date of Order :- 11th November, 2009 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Jai Prakash Gupta, for the petitioner. Mr.Javed Chaudhary, public prosecutor. The petitioner has challenged the order dated 17.07.2009 passed by the Additional Sessions Judge (Fast Track) No.2, Beawar whereby while setting aside the conviction order dated 12.05.2008 passed by the Additional Chief Judicial Magistrate, Beawar, the learned Judge has remanded the case back for benovo trial to the learned trial court. Briefly stated that facts of the case are that the Food Inspector, Beawar namely Gauri Shankar filed a complaint against the accused-petitioner before the Court of ACJM, Beawar alleging therein that on 28.11.1992, at about 9:45 A.M., he took a sample of milk from the accused-petitioner. In analysis, the same was found to be adulterated. Hence, he prayed that the accused-petitioner be punished for the offence U/s 7/16 of the Prevention of Food Adulteration Act, 1954 ('the P.F. Act', for short). On filing of the complaint, the learned trial court took cognizance against the accused-petitioner. It framed the charge for offence under Section 7/16 of the P.F. Act against him. In order to prove its case, the prosecution examined three witnesses, and produced some 2 documents. The statement of the accused-petitioner was recorded under Section 313 Cr.P.C. After recording the evidence and after hearing both the parties, vide order dated 12.05.2008, the learned trial court convicted the accused-petitioner for offence under Section 7/16 of the P.F. Act and sentenced him. Since the accused-petitioner was aggrieved by the conviction order dated 12.05.2008, he filed an appeal before the learned Judge. The only contention raised by the accused-petitioner was that the mandatory provision of Section 16(A) of the P.F. Act has not been followed by the trial court. Therefore, the entire trial stood vitiated. According to Section 16(A) of the P.F. Act, ordinarily the trial is to be conducted in a summary proceeding. However, in cases where it appears to the trial court that the sentence of imprisonment for a term exceeding one year needs to be imposed, or it is of the opinion that it is undesirable to try the case summarily, after giving an opportunity of hearing to the prosecution and to the accused, the trial court may proceed as though it is a warrant trial. This contention of the petitioner was accepted by the appellate court and vide order dated 17.07.2009, the learned Judge set aside the conviction order dated 12.05.2008 and remanded the case back for a denovo trial. Hence, this petition before this Court. Mr. J.P. Gupta, the learned counsel for the accused- petitioner, has contended that the trial has been going on since 1993 i.e. for a period of more than sixteen years. Therefore, the accused- petitioner has been subjected to a prolong trial. Hence, he should not be subjected to another trial all over again. According to him, the conviction should be quashed and set aside. In order to buttress his 3 contention, he has relied upon the cases of Shankar Lal Vs. State of Rajasthan[1999 (1) RCC 302] and Man Singh Vs. State of Rajasthan [1991 (1)Prevention of Food and Adulteration cases 102]. On the other hand, Mr. Javed Chaudhary, the learned public prosecutor, has contended that the accused-petitioner was well aware during the trial that the court is proceeding not in a summary manner, but is proceeding as though it were a warrant trial. Therefore, it was for the accused-petitioner to protest while the criminal proceeding was continuing. Secondly, the accused-petitioner cannot be permitted to take the benefit of his own silence and the benefit of his own fault. Thirdly, the learned Judge has not committed any illegality in accepting the contention raised by the accused- petitioner himself. In case a mandatory provision has been flouted by the court, the learned Judge has no other option, but to remand the case back for the observation of and adherence to the law. Lastly, in none of the cases cited, this Court has given any reason for setting aside the conviction. Therefore, these cases suffers from vice of sub- silentio. Thus, they are not binding on this Court. Heard the learned counsel for the parties and perused the impugned order. Section 16(A) of the P.F. Act is read as under :- 16A. 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 4 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 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. A bare perusal of the second proviso of the said Section clearly reveals that the discretionary power has been given to the trial court to abandon the summary proceeding and to carry on the trial as though it were a warrant trial. Of course, the trial court is duty bound to hear both the parties and to pass a reasoned order before shifting from a summary proceeding to a warrant trial. Admittedly, this procedure was not followed by the trial court. Since the petitioner was aware of the fact that this procedure was not followed, it was his duty to point out the mistake that was being committed by the court. However, admittedly, the petitioner kept a studied silence over the entire issue. When the petitioner raised the contention, the learned Judge has accepted his contention and has remanded the case back for a denovo trial. Therefore, the learned Judge has not committed any illegality or perversity in accepting the petitioner's contention. Therefore, the petitioner possibly cannot have any grievance against the said judgment. 5 A bare perusal of the case law cited before this Court clearly reveals that neither in the case of Shankar Lal (supra) , nor in the case of Man Singh (supra), this Court has given any reason for quashing and setting aside the conviction order. A Judgment cannot be passed on the basis of sentiments, but have to be founded on provision of law. Therefore, the case law cited at the Bar suffers from the vice of sub-silentio. Hence, they are not binding on this Court. For the reasons stated above, this petition is devoid of any merit. It is, hereby, dismissed. However, the trial court is directed to complete the trial in a summary manner within a period of one year from the date of receipt of the certified copy of this judgment. (R.S.CHAUHAN)J. Manoj Solanki-