STATE OF MAHARASHTRA Vs. MUNAFKHA LUKMANKHA MUSALAMAN

JUDGEMENT

(1.) THE point that arises in this revision application is whether an order passed by an appellate Court setting aside the order of conviction of the trial Court and directing a retrial can be said to be the proper order.

(2.) ACCUSED No. 1 was the servant of accused No. 2 who was the owner of a shop. In that shop 20 bags of cement were found stocked when a search was taken by P. S. I. On 11-3-1965. The bags were seized and both the accused were charged for contravention of clause (9), (13) and (14) of the Bombay Cement Control Order of 1959 punishable under section 24 of the Industries Development and Regulation Act, 1951 and also for the contravention of clause 3 of Cement Quality Control Order 1962, punishable under section 7 (1) (a) (ii) read with section 10 of the Essential Commodities Act, 1955. The trial Court convicted accused No. 2 under section 24 of the Industries Development and Regulation Act as well as under section 7 (1) (a) (ii) read with section 3 of the Essential Commodities Act, 1955. Accused No. 1 was acquitted. Against this order an appeal was filed by accused No. 2.

(3.) A contention was considered by the learned appellate Judge that a wrong procedure having been followed, the entire proceedings were vitiated. The learned appellate Judge took the view that this case not having been instituted on a police report the trial should have been under the procedure specified by Section 252 of the Criminal Procedure Code whereas the procedure that the Magistrate followed was provided for under section 251a of the Criminal Procedure Code. The learned appellate Judge considered that since an erroneous procedure not provided for by law was followed in a criminal case, the entire trial was vitiated. He therefore set aside the order of conviction and directed a retrial. The State has filed this revision which was converted from an appeal which was first filed.