The power to alter the charge under Section 216 of the Code of Criminal Procedure includes the power to change the procedure of trial, and such a change does not necessarily vitiate the entire trial or result in acquittal.

, J.

1. The present petition under Sec.482 of the Code of Criminal Procedure (hereinafter referred to as the Code) initially came up for hearing before J. S. Sekhon, J. It was contended by the learned counsel for the petitioner that once the trial Court came to the conclusion that the procedure adopted for the trial, whether as a warrant case or summary case, was found to be unwarranted, the only course open was to acquit the accused and rectification of mistake in choosing one procedure against another and further trial would be abuse of the process of Court. Reliance in support of the above proposition was placed by the learned counsel on certain observations made by a learned single Judge of this Court in Pawan Kumar V/s. State of Haryana, 1989 (II) F. A. C.36. J. S. Sekhon, J. was of the view that it was always open to the trial Court to correct any defect of procedure and such a course upto facto did not justify an order of acquittal. The learned Judge expressed his disagreement with the dicta in Pawan Kumars case (supra) and referred the matter to a larger Bench for an authoritative pronouncement. This is how this case has been placed before us.

2. To appreciate the question, it is necsssary to give the factual background. The Food Inspector Assandh, filed a complaint against the petitioner under Sec.16 (1 ) (c) of the Prevention of Food Adulteration Act, 1954 (hereinafter called the Act) on 18-5-1984. It was stated that the petitioner had prevented the Food Inspector from taking smple of Haldi powder on 16-5 -1944. The Chief Judicial Magistrate startsd the trial of the case according to procedure prescribed for a warrant case instituted on a complaint in Sec.244 to 248 of the Code After recording pre-charge evidence a charge Annexurep-2 was framed under Sec.16 (1 ) (c) of the Act against the petitioner on 7-10-1985. It will be convenient at this stage to refer to a Full Bench decision of this Court in Budh Ram and Anr. V/s. State of Haryana, 1984 (II ). F. A. C.179. Question No.4 before the Full Beach was in the following terms :" 4. Whether the provisions of Sec.16-A of the Act envisaging trial of offences under Sec.16 (1) of the Act in the first instance in a summary case is mandatory in character ?" It was held that "the Legislature intended that all offences under Sec.16 (1) of the Act be tried summarily by specially authorised Magistrates, unless such a Mag strate in writing opines that the accused deserved greater dose of sentence and so he be tried in accordance with the procedure prescribed by Criminal Procedure Code" It appears that in view of the above noted Full Bench decision, Shri Bharat Bhushan Parsoon, who bad in the meantime taken over as Chief Judicial Magistrate, Karnal, proceeded to pass the Older Annexure P-3, dated 14-3-19 8. He observed that the trial of the accused had proceeded as a warrant case without recording the aforesaid opinion and, therefore, purported to cure the defect by recording the requisite opinion and fixing the case for pre-charge evidence. After recording pre-charge evidence, he framed a charge (Annexure P-4) on 26-9-1988 The accused felt aggrieved and through the present petition moved this Court for quashing the entire proceedings against him and particularly the order Annexures P-3 and P-4.

3. In order to appreciate the true import of the observations in Pawan Kumars case (supra), it is necessary to give facts of that case: The Food Inspector filed a complaint under Sec.16 (l) (a) (i) of the Act against P on August 13, 1987. The trial commerced according to procedure for a warrant case. During the pendency of the trial, the trial Magistrate ordered that the case would be tried according to summary procedure On August 2.1988 P filed a petition under Sec.482 of the Code contending that "the only course" open to it was to order acquittal and not retrial as per procedure prescribed for the trial of summary cases. The above contention prevailed with the learned single Judg