JUDGMENT 1. - Instant criminal misc. petition under Section 482 Cr.RC. filed by petitioner Banna is directed against the order dated 22.9.1997 passed by Addl. Chief Judicial Magistrate, Kekri whereby he has taken cognizance against the present petitioner for the offence under Sections 147, 148, 149, 341, 323, 325 and 307 Indian Penal Code 2. Arguments heard. 3. Advocate for the petitioner submits that in this matter complainant Satyanarain lodged as false report at police station, Kekri, on which a case was registered for the offence under Sections 147, 148, 149, 341, 323 and 325 Indian Penal Code In that FIR, name of the petitioner was also shown as an accused. During investigation, police also added Section 307 IPC in that case and after investigation, investigating officer found that petitioner Banna was innocent in that case and investigating officer filed charge sheet against other co- accused persons. When challan was filed one Madal Lal Jat filed an application before concerned Magistrate for taking cognizance against the present petitioner for the offence under Section 307 IPC etc. On that application, learned Addl. Chief Judicial Magistrate, Kekri took cognizance against the present petitioner for the offence under Section 147, 148, 149, 341, 323, 325 and 307 IPC by the impugned order. He further submits that the impugned order passed by learned ACJM, Kekri is illegal and this criminal misc. petition should be accepted and the impugned order should be set aside. Advocate for the petitioner has relied on the judgment of Hon'ble Supreme Court rendered in the case of Kishori Singh and Ors. v. State of Bihar and Another (2000) (4) Crimes 158 SC ) and argued that Hon'ble Supreme Court has decided in this case that where the offence is triable by Sessions Court, the Magistrate cannot issue process against those persons who may have been named in the FIR as an accused persons and not charge sheeted in the charge sheet filed by the police under Section 173 Cr.RC. He further submits that this authority of Hon'ble Supreme Court is applicable in the present matter. He further submits that in present matter also the present petitioner Banna was not charge sheeted by the police as an accused. In this case, challan has been filed for the offence under Section 307 IPC which is triable by Sessions Court. He further submits that this authority of Hon'ble Supreme Court is applicable in the present matter. He further submits that in present matter also the present petitioner Banna was not charge sheeted by the police as an accused. In this case, challan has been filed for the offence under Section 307 IPC which is triable by Sessions Court. In this matter the Magistrate has also taken cognizance against the present petitioner Banna, therefore, the impugned order should be set aside. Learned PP is also heard. 4. I have examined entire record of lower court and have gone through the judgment relied on by counsel for the petitioner wherein Hon'ble Supreme Court has held as follows: "The questions involved in this appeal are now squarely answered by the two recent decisions of this Court in the case of Raj Kishore Prasad v. State of Bihar and Another and a three Judge Bench judgment of this Court in the case of Ranjit Singh v. State of Punjab . In the latter case their Lordships have considered the earlier two Judge Bench decision of this Court in Raj Kishore Prasads case (supra). After going through the provisions of Code of Criminal Procedure and the aforesaid two judgments and on examining the order dated 10.6.1997 passed by the Magistrate, we have no hesitation to come to the conclusion that the Magistrate could not have issued process against those persons who may have been named in the FIR as accused person, but not charge sheeted in the chargesheet that was filed by the police under Section 173 Cr.RC. So far as those persons against whom chargesheet has not been filed, they can be arrayed as "accused persons:" in exercise of powers under Section 319 Cr.RC. when some evidence or materials are brought on record in course of trial or they could also be arrayed as "accused persons" only when a reference is made either by the Magistrate while passing an order of commitment or by the learned Sessions Judge to the High Court and the High Court, on examining the materials comes to the conclusion that sufficient materials exist against them even though the police might not have filed chargesheet, as has been explained in the latter three Judge Bench decision. Neither of the contingencies has arisen in the case in hand." 5. Neither of the contingencies has arisen in the case in hand." 5. By reading above mentioned judgment, it is clear that where offence is triable by Sessions Court, the Magistrate cannot take cognizance against those persons who may have been named in FiR as an accused persons but who have not been chargesheeted by the police in the chargesheet filed under Section 173 Cr.RC. whereas in the present matter Magistrate has taken cognizance against the present petitioner Banna for offence under Section 307 IPC which is triable by Sessions Court and this is also admitted fact that this present petitioner Banna was not chargesheeted by the police in the chargesheet filed by them, therefore, the case in hand is fully covered by the judgment of Hon'ble Supreme Court and so impugned order is completely illegally and deserve to be set aside. 6. Consequently, this criminal Misc. Petition under Section 482 Cr.RC. is allowed and the impugned order passed by learned Addl. Chief Judicial Magistrate, Kekri dated 22.9.1997 is hereby set aside. Record of the lower court be sent back immediately. It is also made clear that after producing some witnesses, in trial court prosecution would be at liberty to file application under Section 319 Cr.PC. for adding this petitioner as an accused and if such application is filed at appropriate stage then learned trial court would decide that application according to law.Petition allowed. *******