Kishan Singh Lodha, J.
1. The revision has been filed on behalf of the five accused persons against the judgment of the learned Addl.Sessions Judge, Rajasamand, dated 22-11-1984 by which their appeal was accepted and the judgment of the learned Munsif and Judicial Magistrate, Rajasamand, dated 9-2-1984 convicting the appellants-petitioners for offences Under Sections 147, 323. 325 read with 149 IPC 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 APP dated 4-10-1983 Under Section 319 Cr.PC 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 4-4-1982 at about 10 or 11 in the night, six or seven persons came to the house of one Uda and demanded a clock. 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 Shambu Singh. Mohan Singh, Harchand, Kalu Panna and some others also started beating him with lathis and kicks. It further appears that Uday's 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 5-4-1982. 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 (his Court now. No challan was put up against Mohan Singh, who was named in FIR. 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 APP requesting the court to take cognizance against Mohan Singh also who had been named by the witnesses. On the application filed on 4-10-1983, 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 9-2-1984 convicted the five accused persons as aforesaid. By the same judgment, he rejected the APP'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 Under Section 161 Cr.PC. The convicted accused filed an appeal before the learned Additional Sessions Judge. One of the grounds in the appeal was that according to PW 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 Under Section 325 read with 149 IPC. The learned Additional Sessions Judge was of the opinion that although an application had been moved by the APP 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 APP dated 4-10-1983 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 PP and have gone through the record.
4. It is urged by the learned counsel for the petitioners that the learned Additional Sessions Judge was wrong in remanding the case for a fresh decision after the disposal of the application of the APP dated 4-10-1983 and this order has jeopardised the interests of the petitioners in as much 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 4-10-1983 by rejecting the same. The State or even the complainant did not challenge that order before the learned Additional Sessions Judge and in these circumstances, the learned Additional Sessions Judge need not have, reopened that order. He also contended that the learned Additional Sessions Judge had wrongly interpreted the argument raised before him in respect of the conviction of the appellants Under Section 325 read with 149 IPC. What was conten ed was that when the proscecution 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 Under Section 325 read with 149 IPC. It was never contended that the trial court was wrong in refusing to take cognizance against Mohan Singh on the application dated 4-10-1983. The learned PP 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 4-10-1983 had been rejected by the learned Magistrate on two grounds, namely, that the application was belated and that some of the witnesses, namely, Tola and Pratapi had not named Mohan Singh in their statements Under Section 161 Cr.PC. The prosecution did not raise any grouse against this order by filing any revision or application Under Section 482 Cr. PC and rest contended 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 Additional Sessions Judge was not at all justified in setting aside that order and remanding the matter. The learned Additional 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 Under Section 325 read with 149 IPC. I shall, of course, refrain from making any observations about the correctness or otherwise of this contention but this contention if far from saying that the accused complained before the learned Additional 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 4-10-1983 and thus expose the present petitioners to a retrial. The learned Additional Sessions Judge should have disposed of the appeal before him on its merits.
6. The learned Additional Sessions Judge also appears to be in error when he assumes that the application dated 4-10-1983 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 Under Section 161 Cr.PC 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 APP dated 4-10-1983 and that order had not been challenged by the prosecution before the learned Additional Sessions Judge, he need not have gone behind that order. In this view of the matter, the order of remand passed by the learned Additional 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 22-11-1984. The learned Additional 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 Additional Sessions Judge, Rajsamand on 11-2-1985.