JUDGMENT : S.P. Singh, J. 1. This is an application in revision preferred by Ruplal Yadav of village Pachrukhi, police station Khizirsarai, district Gaya, who has been convicted of the offences under Sections 380 and 457, Indian Penal Code, by a Munsif Magistrate of the first Class at Gaya and whose appeal has been dismissed by the Sessions Judge of Gaya with certain Modification in the sentence awarded by the trial court. The trial Court sentenced the petitioner to undergo rigorous imprisonment for six months and to pay a fine of Rs. 100/- under Section 457, Indian Penal Code, and awarded no separate sentence under Section 380, Indian Penal Code. The sessions Judge, while upholding the convictions, has knocked off the sentence of fine and has reduced the sentence of rigorous imprisonment from six months to three months. 2. At the time of the admission of the application, a rule for enhancement of the sentence was issued, by this Court. Accordingly, we have heard learned lawyers on point of fact as also on point of law. 3. It appears that Rambhajan Singh of village Pachrukhi, where the petitioner also resides, lodged a first information at Khizirsarai Police Station, about 11/2 miles away, at 4 A.M. on the 11th January, 1964, alleging that at about 2 A.M. he woke up on hearing the hulla raised by the female inmates of his house and when he went inside the female apartment, he learnt from his wife and his brother's wife that the petitioner had committed theft of several articles from his house and that he has been seen running away with a box in his armpit. He also found a sendh out by the side of the entrance door. The officer-incharge (P. W. 12) instituted a case on the statement of this informant and conducted the investigation. After the completion of the investigation, he however, submitted final report on the 7th February, 1964. The informant had, in the meantime, filed a protest petition before the Subdivisional Magistrate, Gaya on the 25th January, 1964 and had been examined on solemn affirmation on the same day by him. The sub-divisional Magistrate, however, had postponed the issue of process till the 11th February, 1964 with an ORDER :to the effect that this protest petition should be considered along with the record of the G.R. Case. The sub-divisional Magistrate, however, had postponed the issue of process till the 11th February, 1964 with an ORDER :to the effect that this protest petition should be considered along with the record of the G.R. Case. He, however, considered the matter on the 10th March, 1964 along with the final report which had been submitted by the investigating officer and he found that on the allegations made on the protest petition along with die police records, a prima facie case under Section 457 read with Section 380, Indian Penal Code, had been made out. Accordingly, he directed the investigating officer to submit chargesheet, by the 31st March, 1964 and on receipt of the chargesheet, he took cognizance and transferred the case to the court of Shri M.A. Siddique a Magistrate of the 2nd Class, for disposal. Subsequently, on the transfer of this Magistrate the case was transferred to the file of Shri L. Charan, Munsif Magistrate, 2nd class and later on, to the file of Shri G.N. Choubey Munsif Magistrate, 1st class, with the results noted above. 4. The defence of the petitioner was that he had been implicated falsely due to enmity. As already mentioned above, in appeal, the Sessions Judge upheld the convictions with some modification in the sentence. 5. Mr. Jyoti Narayan, appearing for the petitioner, has urged that the sub-divisional Magistrate had no jurisdiction to call for a chargesheet in this case when the investigating Officer had submitted final report and as such, all ORDER :s passed after that stage are illegal and the trial of the petitioner under the provisions of Section 251-A of the Code of Criminal Procedure is bad, He has referred in this connection to a recent decision of the Supreme Court in the case of Abhinandan Jha and Ors., appellants v. Dinesh Mishra, respondent Cr. A. No. 218 of 1966 and in the case of Roopchand Lal appellants v. The State of Bihar respondents Cr. A. No. 238 of 1966 decided on 17th April 1967. Their Lordships of the Supreme Court in these cases, have held that there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the Police to submit a chargesheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial. Mr. Mr. Narayan's contention therefore, is that the trial of the petitioner under the provisions of Section 251-A of the Code was illegal. The petitioner, according to learned Counsel, should at best be tried according to the provisions laid down under Sections 252 to 259 of the Code because cognizance in this case had already been taken by the Sub-divisional Magistrate on the 25th January, 1964 when he examined the informant on solemn affirmation in support of the latter's protest petition and the report of the investigating officer either in the form of a final report or in the form of a chargesheet, should be deemed to be report contemplated under Section 202 of the Code of Criminal Procedure. Learned Counsel submits that because of the wrong procedure followed in the trial of the petitioner in this case, the latter has been greatly prejudiced. Again, in support of this contention, he has placed reliance on a Bench decision of the Rajasthan High Court in the case of Ghisia and Ors. petitioners v. State, opposite party AIR 1959 Raj 2663. It was held in that case that the trial of a warrant case, which is instituted otherwise than on a police report, under the procedure laid down in Section 251-A of the Code of Criminal Procedure, instead of that laid down in Section 252 and the next following Section s of the Code, is a mistrial which amounts to an illegality sufficient to vitiate the trial. Their Lordships have further observed that the effect of such a mistrial is extremely difficult to be precisely estimated and is bound, in the very nature of things, to cause prejudice to the accused, and, therefore, necessarily imports prejudice or failure of justice to him. There is undoubtedly, a great force in the contention of the learned Counsel. In view of the Supreme court decision in the case of Abhinandan Jha and others, referred to above the ORDER :of the Sub-divisional Magistrate dated the 10th March, 1964 calling for chargesheet was, no doubt, without jurisdiction, but he could take action on the previous report of the police officer; namely, on the final report submitted on the 7th February, 1964 and it was open to the magistrate not to accept the report and take suitable action according to law as has been observed by their Lordships of the Supreme Court in the very case, referred to above. 6. In this case, however, cognizance having already been taken on the protest petition, the proper procedure to be followed for the trial of the petitioner was as envisaged in Sections 252 to 259 of the Code of Criminal procedure and not the procedure as laid down in Section 251-A of the Code which is meant to be followed in cases instituted on police report. According to the Supreme court decision in the case of Jamuna Singh appellants v. Bhadai Shah, respondent 1964CriLJ468 , cognizance of an offence can be taken only once. That being so, in this case cognizance having been taken by the learned Sub-divisional Magistrate on the 25th January, 1964 on the basis of the allegations contained in the protest petition filed by the informant, there was no scope for his taking cognizance again on the basis of the police report. Evidently therefore, the proper procedure to be followed in this case was as envisaged in Sections 252 to 259 of the Code of Criminal Procedure. 7. Now the question is as to what is the effect of the trial of the petitioner under the provisions of Section 251-A of the Code. As has been stated above, the Rajasthan High Court has, in the case of Ghisia and Ors. elaborately considered all the provisions from Section 252 to Section 259 vis-a-vis the provisions contained in Section 251-A of the Code and their Lordships have held that there is good deal of difference between the procedure envisaged in Sections 252 to 259 and the one as laid down under Section 251-A. Their Lordships have said that under the procedure laid down under Sections 252 to 259, the accused has far larger facilities for his defence than under the procedure laid down in the Section 251-A. I need not repeat the reasonings of their Lordships in this case but I respectfully adopt the same for the purposes of this case and also hold that for want of following the proper procedure, the petitioner, in this case, had been greatly prejudiced. 8. Learned Counsel appearing for the opposite party has drawn our attention to a decision of this Court in the case of Mohammed Nabi Akhtar, appellant v. Hasnu Mian, respondents 1965 BLJR 278 where also this question had cropped up in connection with an appeal which had been filed under Section 417(3) of the Code of Criminal Procedure. 8. Learned Counsel appearing for the opposite party has drawn our attention to a decision of this Court in the case of Mohammed Nabi Akhtar, appellant v. Hasnu Mian, respondents 1965 BLJR 278 where also this question had cropped up in connection with an appeal which had been filed under Section 417(3) of the Code of Criminal Procedure. In that case also the same view was expressed; namely, that an accused gets larger facilities for his defence in the procedure prescribed under Sections 252 to 259 of the Code of Criminal Procedure than in the procedure as contained in the new Section 251-A of the Code. It was, however, held in that case that no prejudice had been caused to the petitioner who was the complainant in that case for the reason that the aforesaid provisions provide greater facilities to the defence and, as such, if the accused did not raise any objection at a previous stage with regard to the procedure followed in connection with his trial, the complainant who had not at all been prejudiced in any way, could not raise that question. It would, thus, appear that the facts involved in the instant case are different from those involved in the case referred to above. Thus, on a consideration of all these facts and circumstances, I find that the trial of the petitioner is vitiated on account of the wrong procedure followed. In view of this finding, I do not propose to record any finding on the evidence, because an expression of opinion, one way or the other, on the merits of the case will be prejudicial to the parties. 9. In the result, the ORDER :s of both the courts below regarding convictions and sentence of the petitioner are set aside. As there has been no proper trial in this case, the trial of the petitioner will proceed afresh according to law. This application is, accordingly, allowed and the rule of enhancement, issued in this case, is discharged. Application Allowed.