Judgment Choudhary S.N.Mishra, J. 1. In this case, the prayer of the petitioner is for quashing the order taking cognizance dated 29.5.95 of an offence punishable under section 302 and other ancillary sections of the Indian Penal Code including 3/5 of the Explosive Substance Act. In this case, daughter of the deceased is the informant. Subsequently, in the very case, the CID after investigation, submitted chargesheet only against the petitioner who was witness in the alleged occurrence. Shortly stated the prosecution case is that the informant who is daughter of the deceased lodged a first information report on 29.9.81 to the effect that Subhash Singh and Sandhu Singh were sleeping when accused Hira Singh and others named in the first information report came at 11 P.M. and Hira Singh fired at her father while others were having bhala in their hands. It is further alleged that accused person proceeded towards Dalan to kill her uncle and thereafter she heard the sound of firing. Her father died on the spot. Her uncle was attacked with bomb but fortunately he did not sustain any injury. She narrated the entire occurrence to the Mukhiya. As stated above, on the basis of the allegation aforesaid, case was instituted and after usual investigation, the police submitted chargesheet against all the named accused persons. It is further alleged that during investigation the informant filed a petition by way of protest petition challenging the omission of the name of Hira Singh from the charge sheet. Cognizance of the alleged offence was accordingly taken against the accused named in the chargesheet and the case was committed to the court of session. Meanwhile the CID, after investigation submitted chargesheet only against the petitioner, who was admittedly named as witness in the first information report lodged by the informant. 2. By the impugned order, the( learned Chief Judicial Magistrate took cognizance of the alleged offence against the petitioner on the basis of the subsequent chargesheet submitted by the CID. Mr. Pandey, learned counsel for the petitioner, has assailed the order. 3. Firstly, on the ground that the occurrence took place in the year 1984 and cognizance was taken in the year 1995 but no positive step was taken by the trial court to conclude the trial. Mr. Pandey, learned counsel for the petitioner, has assailed the order. 3. Firstly, on the ground that the occurrence took place in the year 1984 and cognizance was taken in the year 1995 but no positive step was taken by the trial court to conclude the trial. While developing the argument, learned counsel submits with reference to the materials on record, that witnesses were not examined or cross-examined for the reason best known to the prosecution. Secondly, petitioner being a witness of the occurrence and there is absolutely no evidence against the petitioner so as to put him on trial on the basis of the subsequent chargesheet sub mitted by CID. The submission of the learned counsel seems to be well founded. From mere perusal of the orders passed by the learned Magistrafe from time to time, it appears that no positive steps have been taken to conclude the trial since 1984. That apart from the material on record, it appears that no positive evidence has been collected during the course of investigation against the petitioner so as to summon him at this stage to face the trial. 4. Accordingly, the order dated 29.5.95, passed by the learned Magistrate taking cognizance of the alleged offence against the petitioner is hereby quashed. However, before I part with the case, it is made clear that since the trial is going on and if any positive material comes during the course of trial, the trial court will be at liberty to summon the petitioner in terms of section 319 of the Code of Criminal Procedure, in accordance with law without being prejudiced by the order of this court. This application is accordingly, allowed to the extent indicated above.