ORDER J.N. Takru, J. - Zia Ullah and Jumman have filed this revision against the appellate judgment and order of the learned Sessions Judge of Basti upholding their conviction and sentences of fine of Rs. 25/- , in default two months' R.I. each u/s 353/34 IPC and Zia Ullah's further conviction and sentence of fine of Rs. 25/- , in default two months' R.I. u/s 379 IPC. 2. It is unnecessary to set out the facts giving rise to this revision at any length, as it is likely to succeed on a short legal point to be indicated presently. It appears that on the F.I.R. of Ram Murat Misra, constable, a case u/s 353/34 was registered against the Applicants and a further case u/s 379 was registered against Ziaullah. Thereafter Zia Ullah made an application in court giving his version of the incident. The court preferred Zia Ullah's application to the police and, in due course, D.W.A.A. Khan, C.O. II made an enquiry on that application, and, being of the opinion that no case was made out u/s 353 IPC he submitted a final report. Thereafter D.W.J.A. Lari, C.I. was asked to investigate the case and after conducting the enquiry he also submitted a final report. The learned Magistrate, however, did not agree with the conclusions of the police officers and he summoned the Applicants under the sections mentioned above, and after recording the evidence of the parties he found both the offences made out against the Applicants. He therefore convicted and sentenced them under both the counts. Thereupon the Applicants preferred a revision in the lower revisional court which was, however, dismissed. Hence this revision. 3. On behalf of the Applicants their Learned Counsel Sri B.C. Saxena contended that as the cognizance of the offences in the instant case was taken by the learned Magistrate on his knowledge and suspicion it was incumbent on him, before recording evidence in it, to inform the Applicants that they were entitled to have their case tried by another learned Magistrate, and that it was only on their agreeing to be tried by him that the learned Magistrate who had taken cognizance of the offence could try them. According to Sri Saxena, as the non-compliance of this mandatory provision of law has resulted in prejudice to the Applicants their conviction and sentences are illegal and liable to be set aside. According to Sri Saxena, as the non-compliance of this mandatory provision of law has resulted in prejudice to the Applicants their conviction and sentences are illegal and liable to be set aside. After hearing the Learned Counsel, I am satisfied that this contention is well-founded. 4. Now u/s 190 Code of Criminal Procedure a Magistrate may take cognizance of any offence: (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by a police officer; (c) upon information received from any person other than a police officer, or upon his own knowledge and suspicion, that such offence has been committed. 5. It is obvious that on the facts mentioned above the cognizance in the present case must have been either Under Sub-section (b) or Sub-section (c). Some courts, including the Calcutta High Court have taken the view that in such a case the cognizance must be deemed to have been taken u/s 190(a)(b) and not 190(1)(c) Code of Criminal Procedure--See A.K. Roy Vs. State of West Bengal, AIR 1962 Cal 135 . In Nek Ram Vs. Emperor, AIR 1931 All 273 --a decision with which I respectfully agree--this Court has however taken the view that when a Magistrate comes to the conclusion that investigation has not been properly made and that the final report is not correct, his proper course is to pass an order u/s 190(1)(c) of the Code of Criminal Procedure, ordering the prosecution of the accused, and in that case the provisions of Section 191 Code of Criminal Procedure were attracted and it would be open to the accused to ask that the case should be tried by some other Magistrate. The record of the present case shows that no opportunity as contemplated in Section 191 Code of Criminal Procedure was given to the Applicants. It is, therefore, obvious that the learned Magistrate who took cognizance of the offences u/s 190(1)(c) Code of Criminal Procedure could have proceeded with their trial only if the Applicants were informed of their right u/s 191 Code of Criminal Procedure and they had exercised their choice of being tried by the same learned Magistrate. The provisions of Section 191 Code of Criminal Procedure not having been complied with in the present case, the conviction and sentence of the Applicants cannot be sustained. The provisions of Section 191 Code of Criminal Procedure not having been complied with in the present case, the conviction and sentence of the Applicants cannot be sustained. The fact that the same Magistrate should not try the case unless the accused agree to be tried by him is forcibly brought out by the illustration of Section 556 Code of Criminal Procedure which reads thus: A, as Collector, upon consideration of information furnished to him, directs the prosecution of B for a breach of the Excise laws. A is disqualified from trying this case as a Magistrate. Thus apart from Section 191 Code of Criminal Procedure, the learned Magistrate who took cognizance in the instant case upon his knowledge and belief would also have been disqualified from trying it u/s 556 Code of Criminal Procedure. I am, therefore, satisfied that the trial in question being in contravention of the aforesaid provisions of the Code of Criminal Procedure is clearly illegal with the result that the conviction and sentences of the Applicants cannot be sustained and must be set aside. 6. The next question which arises is whether the case of the Applicants should be sent back for re-trial by some other learned Magistrate. In my opinion having regard to the fact that the case is an old one, and the gravity of the offence as indicated by the punishment awarded to the Applicants by the court's below is not of a very serious kind, the ends of justice do not require that the Applicants' liberty should again be put in jeopardy after the lapse of two years. I accordingly set aside the conviction and sentence of the Applicants and allow this revision, and direct that the fine, if realised, shall be refunded to them.