Vyas Dev Misra, C.J.
1. This revision is directed against the order of Shri D.P. Sood, Sessions Judge. Solan, whereby he accepted the petitioner's appeal and ordered a retrial.
2. The relevant facts for the decision of this petition are these. The Food Inspector took a sample of rapeseed oil from the shop of one Amar Chand at Arki on 9-12-1977. One of the sample bottles was sent to the Public Analyst, Punjab who found the sample to be adulterated. A complaint under Section 7 read with Section 16, Prevention of Food Adulteration Act was filed by the Food Inspector against Shri Amar Chand as well as his suppliers M/s. Raja Ram Jai Prakash of Ambala City. Shri Sat Pal petitioner is stated to be the proprietor of the firm. The trial Court acquitted Amar Chand but convicted the present petitioner and sentenced him to rigorous imprisonment for six months and to a fine of Rs. 1,000/-. Sat Pal appealed and the learned Sessions Judge accepted the appeal as stated above.
3. The only reason for accepting the appeal, quashing the prosecution and ordering retrial is that the trial Magistrate did not apply his mind when he summoned the petitioner. The learned Sessions Judge based his decision on a judgment of this Court in Gopi Nath & Sons v. State of Himachal Pradesh ILR (1980) Him Pra 678 : 1981 Cri LJ 175.
4. I have gone through the judgment of this Court in the case of Gopi Nath & Sons 1981 Cri LJ 175. In that case the petitioner was the supplier of the article of food which was later on found to be adulterated. The trial Court after summoning the accused framed a charge under Section 7 read with Section 16, Prevention of Food Adulteration Act. The petitioner approached the High Court invoking its inherent jurisdiction under Section 482, Criminal P. C. While accepting the petition and. quashing the charge it was observed: 'the Magistrate must apply his judicial mind to the material before him and ascertain not only that there is sufficient ground for proceeding further in the complaint but also the nature of the offence for which the accused need be summoned. It necessarily follows that under this provision the Magistrate docs not enjoy an unrestricted power to summon a person at his whim, fancy or caprice simply because a complaint has been filed against him. Although strictly speaking, it is no requirement of Section 204 that an order directing issue of process against the accused be supported, by detailed reasons, nonetheless this order has to be made by the Magistrate after applying his judicial mind to the material on record and this application of mind must be exhibited in the order itself in one way or the other. An order passed by the Magistrate without application of such mind would be without jurisdiction and liable to be quashed'. Similar view had been taken by the same learned Judge earlier in the case of Delhi Cloth & General Mills Company Ltd. v. State of H.P. ILR (1980) Him Pra 500 : 1980 Cri LJ (NOC) 163) where the accused approached the High Court the moment he was summoned as an accused.
5. The aforementioned judgments do not lay down that this objection can be raised after an accused has been convicted by the trial Court after a due trial. The purpose of the judgment is to ensure that the Magistrates do not lightly summon the accused and jeopardize his liberty. However, where no objection to summoning the accused is raised at the earliest, proceedings cannot be quashed on this ground alone. In the instant case, a trial was duly held after the accused was summoned. 'The trial Court acquitted, one of the accused while convicting the present petitioner. It was thus too late in the day to say that the accused had been, summoned without the Magistrate applying his mind.
6. I would, therefore, accept the revision, set aside the impugned order and direct the lower appellate court to re-hear and decide the appeal filed by the petitioner against his conviction and sentence awarded by the trial Court.