K.S. Lodha, J.
1. This application under Section 482 Cr. PC has been filed by one of the accused Jewan Ram against the orders of the learned Chief Judl. Magistrate, Burner, dated 6-9-83 and 7-3-84.
2. The matter arises out of in the trial of the petitioner along with some other accused person for offence under Section 70 of the Essential Commodities Act, 1955 (Hereinafter called 'the Act'). The complaint was lodged by Enforcement Inspector, Chauhtan against the petitioner and three others in the Court of the Chief Judl. Magistrate in the month of July, 1980 and it was alleged that tae accused persons had contravened the provisions of the Rajasthan Food Grains Regulation and Distribution Order, 1976 (hereinafter called 'the Order'). The complaint was registered and the accused persons were summoned. On the appearance of the accused persons, the learned Magistrate directed by his order dated 30-3-81 that the Enforcement Inspector Shri Gijja Ram be summoned for evidence before framing of charge. After a number of adjournments, Gajja Ram and two others witnesses wee examined on 23-6-83 and the case was then adjourned for further evidence. However, when the case was thus pending for further evidence on 6-9-83, the learned Magistrate ordered that the case should be tried in a summary manner and, therefore, the particulars of the offences shall be stated to the accused persons and then only the prosecution evidence shall be recorded. The case was then adjourned to 20-10-83. On that day, one of the accused was not credent and, therefore, the case was adjourned to 21-10-83. On that day, again the case was adjourned to 3-11-83 and to some more dates. Ultimately, the substance of the allegations were stated to the accused on 10-12-83 and the case was fixed for the prosecution evidence on 4-12-83. On 24-12-83, one of the accused was absent and, therefore, warrant of arrest was ordered to be isssued against him and the witness Gajja Ram, who was present could not be examined. The case was then adjourned to 7 1-84. Again to 10-1-84, 11-1-84, 20-1-84 and then to 3-2-84. On that day an application was moved on behalf of the accused that summary trial of this case could not be held as the case had already proceeded as a warrant trial and some of the witnesses had already been examined before the framing of charge. After heating the parties on this application, the learned Magistrate by his order dated 7-3-84, rejected the same holding that under Section 12A(2) of the Act as it stood before its amendment in 1981, summary trial of such offences was mandatory unless the Magistrate had directed, after hearing the parties by an order in writing that summary trial was undesirable. It was further observed that such a discretion could have been exercised by the Magistrate either when he was of the opinion 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 but no such order was ever recorded. Aggrieved of this order, the petitioner Jeewan Ram has come up to this Court praying that the order of summary proceedings may be quashed.
3. I have heard the learned Counsel for the petitioner and the learned Public Prosecutor and have gone through the record.
4. It is contended by the learned Counsel for the petitioner that when on 30-3-81, the learned Magistrate had clearly directed summoning of the witnesses before framing charge and had proceeded to record evidence before charge and had examined three witnesses after a number of adjournments, the mode of the trial could not thereafter he changed to summary proceedings. It was also contended by the learned Counsel that even (sic) Magistrate had not recorded a clear order he envisaged by the (sic) Section 17A(2) of the Act, in the circumstances of the case he must be deemed to have acted under that proviso and therfore subsequently that order could not have been reviewed. It was under contended that the course adopted by the learned Magistrate is prejucicial to the accused petitioner inasmach as it is likely to affect his right of appeal etc. The learned Public Prosecutor, on the other hand supported of the order of the court below.
5. Having heard the learned Counsel for the petitioner and the learned Public Prosecutor I am of the opinion that this is not a fit case for the exercise of powers under Section 482 Cr. P.C. for a variety of reasons.
6. In the first place as pointed out by the learned Chief Judl. Magistrate, the summary trial under Section 12A of the Act is mandatory so LT as the contravention of the Order is concerned. No doubt the proviso to Section (2) of Section 12A gives power 10 the Magistrate to dispense with summary trial provided it appears to the Magistrate that the nature of the case is such that sentence of imprisonment for a term exceeding one year may have to be passed or that is for any other reason an desirable to try the case summarily. However it has been enjoined upon the Magistrate that if he adopts that Course, he shall do so only after hearing the parties and recording an order to the effect as pointed out above. In the present case, the learned Magistrate does not appear to have adhered to be proviso to Section 12A of the Act when he directed summoning the witness Gajja Ram before charge on 30-3-81. He simply recorded the presence of the accused persons and directed that the witness any he summoned before charge. It is not at all born out from the order-sheet dated 30-3-81 that the learned Magistrate bad heard the parties on the question of the manner of the trial nor does it show the that learned Magistrate was of the opinion that the nature of the case was such that a sentence of imprisonment for a term exceeding one year may have to be passed nor does it further show that the learned Magistrate had any other reason for departing from the procedure laid down under Section 12A. Therefore, when a mandatory provision was then being contravened and the fact came to the notice of the learned Magistrate later, he could certainly have resorted to the provisions of summary trial as required by Section 12A of the Act.
7. The conduct of the petitioner in not challenging the order dated 6-9-83 immediately by raising objection before the learned Magistrate him self or by approaching this Court also disentitled him to am relief under Section 482 Cr. PC. He sat silent from 6-9-83 till 3-2-84 and in the mean time adjouments on a number of occasions had been taken. Not only this the subs-tance of the accusations had been stated to the accused persons in the meantime on 10-12-83 and the evidence of the prosecution was being summoned vide order dated 10-12-83 and thereafter also, the case was adjourned at least on four occasions before the application objecting to the change of the mode of trial was riled Not only this, it further appears that the nth co-accused have not challenged the order passed by the learned Magistral 7-3-84. They have not come up before this Court and the petitioner ha at not made them parties to this application. Therefore, also in their in the absence before this Court, it would not be proper to interfere with the order of learned Magistrate.
8. So far as the question of prejudice to the petitioner is concerned, this argument cannot be entertained in view of the mandatory provisions of Section 12A. of the Act.
9. For the persons stated above, I do not find force in this application and reject the same.