K.S. LODHA, J.—This revision has been filed on behalf of the five accused persons against the judgment of the learned Addl. Sessions Judge, Raj-samand, dated 22.11.84 by which their appeal was accepted and the Judgment of the learned Munsif & Judl. Magistrate, Rajsamand, dated 9.2.84 convicting the appellants-petitioners for offences u/ss 147, 323, 325 read with 149 I.P.C. and sentencing them to various terms was set aside and the matter was remanded to the trial court with a direction that the trial court shall decide the application of the A.P.P. dated 4.10.83 u/s. 319 Cr. P.C. for taking cognizance against one Mohan Singh also and then decide the matter afresh. 2. The facts giving rise to this revision briefly stated are that on 4.4.81 at about 10 or 11 in the night, six or seven persons came to the house of one Uda and demanded a cock. Uda replied that he did not have it. Thereupon Prem Singh s/o Mohan Singh gave him a lathi blow. Uda started running and then Shambhu Singh, Mohan Singh, Harchand, Kalu, Panna and some others also started beating him with lathis and kicks. It further appears that Udas son and daughter came to his rescue whereupon the accused persons ran away. Report of this incident was lodged at the police station Rajnagar on 5.4.82. The police investigated the case and got the injuries of Uda examined. After completion of the investigations, a challan was put up against five accused persons, who are the petitioners before this Court now. No challan was put up against Mohan Singh, who was named in the F.I.R. The learned Magistrate framed charges against these five accused persons, who denied their guilt, whereupon the trial started. During the course of trial, when some of the witnesses had already been examined by the learned Magistrate, an application was moved by the A.P.P. requesting the court to take cognizance against Mohan Singh also who had been named by the witnesses. On this application filed on 4.10.83, the learned Magistrate ordered that it will be considered at the time of the final disposal of this matter. On the completion of the trial, the learned Magistrate by his judgment dated 9.2.84 convicted the five accused persons as aforesaid. On this application filed on 4.10.83, the learned Magistrate ordered that it will be considered at the time of the final disposal of this matter. On the completion of the trial, the learned Magistrate by his judgment dated 9.2.84 convicted the five accused persons as aforesaid. By the same judgment, he rejected the A.P.P.s application for taking cognizance against Mohan Singh as according to him, the application was belated and some of the witnesses had not named Mohan Singh in their statements u/s. 161 Cr. P.C. The convicted accused filed an appeal before the learned Addl. Sessions Judge. One of the grounds in the appeal was that according to P.W. 2 Uda, it was Mohan Singh who had inflicted one grievous injury on his right arm and another on his left hand, but Mohan Singh was not even made an accused and, therefore, the present accused-appellants could not be held guilty u/s. 325 read with 147 I.P.C. The learned Addl. Sessions Judge was of the opinion that although an application had been moved by A.P.P. for taking cognizance against Mohan Singh also, the court improperly rejected it and as Mohan Singh was not tried along with the present accused, their case has been prejudiced. He, accordingly, set aside the order of their convictions and remanded the case to the trial court for deciding the application of the A.P.P. dated 4.10.83 and then decide the case afresh. The petitioners are aggrieved of this order and, therefore, have come up before this Court. 3. I have heard the learned counsel for the petitioners and the learned P.P. and have gone through the record. 4. It is urged by the learned counsel for the petitioners that the learned Addl. Sessions Judge was wrong in remanding the case for a fresh decision after the disposal of the application of A.P.P. dated 4.10.83 and this order has jeopardised the interest of the petitioners inasmuch as they have been made liable to face a re-trial for no fault of theirs. It was further contended that the learned Magistrate had already disposed of the application dated 4.10.83 by rejecting the same. The State or even the complainant did not challenge that order before the learned Addl. Sessions Judge and in these circumstances, the learned Addl. Sessions Judge need not have reopened that order. He also contended that the learned Addl. It was further contended that the learned Magistrate had already disposed of the application dated 4.10.83 by rejecting the same. The State or even the complainant did not challenge that order before the learned Addl. Sessions Judge and in these circumstances, the learned Addl. Sessions Judge need not have reopened that order. He also contended that the learned Addl. Sessions Judge had wrongly interpreted the argument raised before him in respect of the convictions of the appellants u/s. 325 read with 149 I.P.C. What was contended was that when the prosecution had not filed a challan against Mohan Singh to whom the main injuries were attributed according to Uda, the appellants could not have been convicted for offence u/s. 325 read with 149 I.P.C. It was never contended that the trial court was wrong in refusing to take cognizance against Mohan Singh on the application dated 4.10.83. The learned P.P. has not been able to controvert these contentions. 5 I find considerable force in the contentions raised by the learned counsel for the petitioners. The application dated 4.10.83 had been rejected by the learned Magistrate on two grounds, namely, that the application was belated and that some of the witnesses, namely, Rola and Pratapi had not named Mohan Singh in their statements u/s. 161 Cr.P.C. The prosecution did not raise any grouse against this order by filing any revision or application u/s. 482 Cr.P.C. and rest contented by that order and thus that order had become final so far as the prosecution was concerned. In these circumstances, in the appeal filed by the convicted accused, the learned Addl. Sessions Judge was not at all justified in setting aside that order and remanding the matter. The learned Addl. Sessions Judge appears to be wrong when he holds that the present petitioners who were appellants before him had been prejudiced on account of the fact that Mohan Singh had not been tried. As a matter of fact, the accused never complained that they were prejudiced because Mohan Singh had not been tried. The learned Addl. Sessions Judge appears to be wrong when he holds that the present petitioners who were appellants before him had been prejudiced on account of the fact that Mohan Singh had not been tried. As a matter of fact, the accused never complained that they were prejudiced because Mohan Singh had not been tried. What was contended by them was that when the investigating agency did not find any case against Mohan Singh by not putting up a challan against him and the trial court did not take cognizance against Mohan Singh, they could not have been convicted u/s 325 read with 149 I.P.C. I shall, of course, refrain from making any observations about the correctness or otherwise of this contention but this contention is far from saying that the accused complained before the learned Addl. Sessions Judge that they had been prejudiced because Mohan Singh had not been tried along with them and, therefore, on this count, the learned Addl. Sessions Judge could not have remanded this case for a fresh decision on the application dated 4 10.83 and thus expose the present petitioners to a re-trial. The learned Addl. Sessions Judge should have disposed of the appeal before him on its merits. 6. The learned Addl. Sessions Judge also appears to be in error when he assumes that the application dated 4.10.83 was dismissed by the learned Magistrate on the ground that it was belated. Apart from that ground, the learned Magistrate had also recorded that some of the eye witnesses had not named Mohan Singh in their statements u/s 161 Cr.P.C. and, therefore, he was not inclined to take cognizance against Mohan Singh. Be that as it may, when cognizance had not been taken against Mohan Singh on the application of the A.P.P. dated 4.10.83 and that order had not been challenged by the prosecution before the learned Addl. Sessions Judge, he need not have gone behind that order. In this view of the matter, the order of remand passed by the learned Addl. Sessions Judge cannot be maintained. 7. I, therefore, accept this revision and set aside the order of remand passed by the learned Addl. Sessions Judge, Rajsamand. dated 22.11.84 The learned Addl. Sessions Judge shall dispose of the appeal filed by the five petitioners before him afresh on the merits. The petitioners are directed to appear before the learned Addl. Sessions Judge cannot be maintained. 7. I, therefore, accept this revision and set aside the order of remand passed by the learned Addl. Sessions Judge, Rajsamand. dated 22.11.84 The learned Addl. Sessions Judge shall dispose of the appeal filed by the five petitioners before him afresh on the merits. The petitioners are directed to appear before the learned Addl. Sessions Judge, Rajsamand on 11.2.85.