JUDGMENT

Kaul, J. - Jagannath, a cloth dealer of Narpatganj was convicted by Mr. Iftikar Husain, Magistrate, first class, Rae Bareli, on three counts.

(1) For contravention of Rule 12(5) of the Cotton Cloth and Yarn Control Order, Central, for not exhibiting on his premises a true copy of the notifications issued by the Textile Commissioner under Clause 10 specifying the maximum price at which cloth or yarn may be sold;

(2) For contravention of Rule 19(a) of the said order; and

(3) for contravention of the U.P. Cotton Cloth and Yarn Control Order, Clause 13.

2. He was sentenced to a fine of Rs. 50 under each of the first two counts and a fine of Rs. 150 under the third count. On appeal he was acquitted by the learned Sessions Judge of Rae Bareli of the charge of contravening the provisions of Rule 19(a) of the Cotton Cloth and Yarn Control Order (Central). His convictions and the sentences passed upon him in respect of the other two counts were maintained. He has filed the present application in revision against that order.

3. The Petitioner was tried summarily by Mr. Iftikar Husain. It was contended by the Learned Counsel for the Petitioner that the trial was illegal inasmuch as there was no application by the prosecution for a summary trial as required by Rule 130 of the Defence of India Rules. Sub-rule (1) of the said Rules reads thus:

Any Magistrate or bench of Magistrates empowered for the time being to try in a summary way the offences specified in Sub-section (1) of Section 260 of the Code of Criminal Procedure, 1898, may if such Magistrate or bench of Magistrates thinks fit on application in this behalf being made by the prosecution, try a contravention of any such provision of these Rule or orders made thereunder as the Central Government may by notified order specify in this behalf in accordance with the provisions contained in Section 262 to 265 of the said Code.

4. It is thus clear that a person charged with the contravention of any such rules or orders made there under, as the Central Government may by notified order specify, cannot be tried summarily unless an application has been made by the prosecution in that behalf. It was admitted by the Learned Counsel for the Crown that no such application was found on the record. We must, therefore, proceed on the assumption that no such application was made. The rule insists that a person shall be tried summarily in respect of such matters as are mentioned in the said rules only when an application has been made by the prosecution in this behalf. This is an important and salutary provision which cannot be disregarded. It goes to the root of the matter. The magistrate acquires jurisdiction to try an accused in such cases summarily only if this provision is complied with, not otherwise. If an application is made by the prosecution the accused is entitled to show cause against the application, and it is after the Magistrate has carefully considered the question and decided that the case before him ought to be tried summarily that he acquires jurisdiction to try him in that manner. There being no such application in the present case, it must be held that the Petitioners trial was illegal and his convictions and the sentences passed upon him must therefore be set aside. I set them aside accordingly.

5. The next question for consideration is whether I should order a retrial. Having looked into the evidence in the case I am of opinion that there should be no retrial with regard to the first of these charges the charge dealing with the contravention of Rule 12(5) of the Cotton Cloth and Yarn Control Order, Central. With regard to the third count I direct that there should be a retrial. The case shall accordingly be sent back to the District Magistrate, Rae Bareli, with the direction that he should either keep it on his own file or transfer it to the file of some Magistrate other than Mr. Iftikhar Husain subordinate to him The Magistrate who hears this case should start afresh and any opi