1. A certain Jado Rai was tried by the Sessions Judge of the Ghazipur District of an offence under sections 467 and 471 of the Indian Penal Code. He was convicted. He appealed to the High Court. He had called in his defence four witnesses whom the learned Sessions Judge disbelieved. When the appeal was heard in the High Court the learned Judge who decided it agreed with the Sessions Judge that the defence evidence was untrustworthy. He went further and considered it deliberately false. He took a grave view of the action of the witnesses and finally passed the order:
I direct that the record be returned to the Sessions Judge with a direction to him to take action under Section 476 of the Criminal Procedure Code and to send these men to the nearest Magistrate to be charged with perjury.
2. Under the provisions of Section 476 of the Criminal Procedure Code the learned Judge of this Court could have taken action himself and directed the prosecution of these four persons and then sent the case for inquiry and trial to a Magistrate of the First Class in Allahabad. He did not take this action and we can only understand his order to mean that he brought to the notice of the Sessions Judge the circumstance that in his opinion there was cause for inquiry under Section 476 and suggested that the Sessions Judge who had actually heard these witnessess should himself proceed against them. But this order of course necessarily contained the implied conditions that the Sessions Judge should apply his mind to the matter and should himself take the initiative of ordering the prosecution. If the learned Sessions Judge on receipt of this record had applied his mind again to the matter and ordered a prosecution on his own initiative there would be no cause for interference. But it is clear from the order that he did not apply his mind to the matter and considered that he had to obey an order of the High Court and prosecute without expressing any opinion as to whether he considered a prosecution justified. He refers to the statements to which the High Court takes exception and the following words show his attitude clearly: 'The accused want to be let off but as Mr. Justice Walsh has ordered me to prosecute them I cannot help them. I, therefore, order the prosecution.' The order of prosecution cannot be supported. It is absolutely essential to the' validity of an order under Section 476 that the Court which passes the order should apply its mind to the matter upon its merits and this essential condition is wanting here. We accordingly set aside the order of prosecution.