The main legal point established in the judgment is that the trial procedure must adhere to the correct classification of offences as warrant or summons cases, and any deviation from this classification may result in the acquittal of the accused.

1. This is an appeal from a judgment of acquittal. The allegation in the complaint filed by pw.1. the Wireless Licensing Inspector, Tellicherry, before Sub Magistrate, Tellicherry-1 was that the respondent had committed offences punishable under S.4 read with S.20 of the Indian Telegraph Act, XIII of 1885 and S.3 read with S.6 of the Indian Wireless Telegraphy Act, XVII of 1933. The Sub Magistrate convicted the respondent on both the counts. For the offence under the Telegraph Act he sentenced the respondent to pay a fine of Rs. 100/- and in default to undergo simple imprisonment for one month. No separate sentence was awarded for the offence under the Wireless Telegraphy Act. In the appeal filed by the respondent before the District Magistrate, Tellicherry, his convictions and sentence were set aside. This appeal is from that judgment.

2. S.20 of the Telegraph Act and S.6 of the Wireless Telegraphy Act prescribe respectively the penalties for contravening the provisions of S.4 of the Telegraph Act and S.3 of the Wireless Telegraphy Act. The punishment prescribed in S.20 of the Telegraph Act is imprisonment which may extend to three years or fine or both and in S.6 of the Wireless Telegraphy Act in the case of first offence fine which may extend to Rs. 100/- and in the case of a second or subsequent offence fine which may extend to Rs. 250/-. While the offence under the Telegraph Act is therefore a warrant case that under the Wireless Telegraphy Act is a summons case. The procedure adopted by the Magistrate in the trial of the present case was that in a summons case. Where one of the offences is a warrant case and the other a summons case the trial to be conducted is that in a warrant case. Although the acquittal of the respondent by the District Magistrate was not on that ground the acquittal deserves to be upheld on that ground.

3. The Public Prosecutor submitted that the adoption of the procedure prescribed for summons trial in the present case was merely an irregularity, that it had not in any way caused prejudice to the respondent and that therefore the convictions and sentence were not liable to be set aside on that ground and relied upon the Full Bench decision of the Allahabad High Court in Prem Das v. State AIR. 1961 Allahabad 590 and the decision of a Single Judge of the Gujarat High Court in Mohanal v. State AIR. 1962 Gujarat 231.

4. In Prem Das v. State AIR. 1961 Allahabad 590 the prosecution was under S.16 of the Prevention of Food Adulteration Act for sale of adulterated food. The case was tried as a summons case although it ought to have been tried as a warrant case. It was held that that was illegal. Nevertheless the conviction and sentence were not set aside as the court was not satisfied that any prejudice was caused to the revision petitioner on account of the Magistrate adopting wrong procedure. The following observations of

Desai C. J. who delivered the judgment for the Full Bench are relevant:

"An offence punishable under S.16 (1) (ii) must be tried as a warrant case because punishment extending up to two years can be imposed, but the applicant was tried according to the summons case procedure, which was illegal.

We are, however, satisfied that no prejudice was caused to him by the Magistrate's adopting summons case procedure instead of warrant case procedure."

With great respect I find myself unable to agree with that decision. The Full Bench held that the trial was illegal. If a trial is illegal the whole of it is vitiated and if it ends in conviction such conviction has to be quashed irrespective of the question whether the trial has caused prejudice to the accused or not.

5. In Mohanlal v. State AIR. 1962 Gujarat 231 the charge against the accused was under S.323,504 and 506 (2) of the Indian Penal Code. Of them the offences under S.504 and 506 (2) were triable as warrant case and the other as a summons case. The Magistrate tried the case as a summons case and convicted the first and second accuse