Rowland, J.This is an appeal u/s 476-B, Criminal P.C., from the order of the Sessions Judge of Monghyr directing the prosecution of the two appellants and one other person, namely Thakur Prasad, and complaining against them for the alleged commission of offences u/s 193, I.P.C., said to have been committed by them in the course of depositions which they gave before the Sessions Judge in the trial of Junab Khan and others. This trial was itself an off-shoot of a Sessions trial held by the Sessions Judge of Bhagalpur before whom Junab and others had deposed as prosecution witnesses against a number of Hindus who were accused of murder. In the Bhagalpur trial it was alleged that a mob of Hindus on 2nd April 1934, attacked Mahomedans engaged in prayer in a mosque killing three of them. The building which was alleged to be a mosque was said to have been built for that purpose and to have been in use as such for three years. The Sessions Judge of Bhagalpur acquitted those Hindus and found that the house had not been built as a mosque, that it had been used as a house at least until 15th January 1934, and that the deposition of the Mahomedan witnesses to the effect that the building had been used as a mosque from its erection until 15th January 1934, was wilfully false. It was on this finding that the Sessions Judge of Bhagalpur ordered the prosecution and framed a complaint against those Mahomedan witnesses in respect of the statements in their evidence to the effect that the house had been built as a mosque and used as a mosque prior to 15th January 1934. Out of eleven Mahomadans thus ordered to be prosecuted one died and ten were convicted by the Sessions Judge of Monghyr and in the course of this trial he had occasion to take the evidence of Nawalal, Jamuna Lal and Thakur Prasad. It had been the case of the Hindus in the Bhagalpur trial that the building had never been used as a mosque and this was the purport of the evidence of these three witnesses.

2. The Sessions Judge of Monghyr was of opinion that the evidence given by these witnesses in so far as it referred to the period after 15th January 1935, was false and he ordered their prosecution and drew up a complaint against them on 13th June 1935, the very date on which he pronounced judgment in the Sessions case. The three persons concerned were not invited to show cause against their prosecution before the filing of the complaint. One of them Thakur Prasad thereafter put in a petition before the Sessions Judge explaining that the statement that the building in question was not used as a mosque during the period after 15th January 1935, did not appear in his deposition and that he had not made any such statement. On this the complaint against him was withdrawn on 28th August 1935. The other two Nawalal and Jamuna Lal have appealed to this Court. It is contended on their behalf that the Sessions Judge has not recorded any finding such as is contemplated by Section 476, Criminal P.C., to the effect that he is of opinion that it is expedient in the interests of justice that an enquiry should be made into the alleged offence. It is further contended that the Sessions Judge of Bhagalpur having taken a different view of the facts, the Sessions Judge of Monghyr should not have ordered prosecution on what is practically a contradictory finding. It is also said that the complaint petition cites as witnesses four persons, all Mahomedans, and three of them were disbelieved by Mr. Lucas himself in the trial out of which this prosecution-arises. The absence of a finding by the Sessions Judge that it is expedient in the interest of justice that an enquiry should be made is not in itself fatal to the proceedings. The position is clearly stated in Keramat Ali v. Emperor 1928 Cal 862. The Code intends that prosecution should only be started under this section when the Court ordering a prosecution has directed its mind towards the matter and formed a definite opinion that prosecution is in the interests of justice. Where the order does not disclose that the Court had paid attention to this matter Rankin, C.J., observed:

In the present case the learned Sessions Judge has taken no pains to do what he is ordered to do by Section 476. I look in vain for any recorded finding to the effect that it is expedient in the interests of justice that an enquiry should be made into the offence in this case.

3. These observations apply to the procedure of the Sessions Judge of Monghyr. In such circumstances a Bench of the Calcutta High Court observed in Nabani Nath Mukerjee v. Emperor 1933 Cal 147 , that the order u/s 476, should not be maintained and the head-note goes further and says that "a complaint is not maintainable. That goes beyond the judgment and certainly beyond, anything that has been laid down in this Court. The correct view, if I may say so, is that where the Court of first instance has not applied its own mind to the facts, the appellate Court may look at them independently and in doing so will not make the usual presumptions in favour of the correctness of the first Courts findings. As -Rankin, C.J., said in Keramat Ali v. Emperor 1928 Cal 862 :

As the learned Sessions Judge has not recorded that finding I do not feel it is incumbent on me to assume that he properly considered this matter and cams to a right conclusion. I have myself held in Bankey Lal v. Rampadarath 1933 Pat 713, that an order to prosecute should not be set aside on purely technical ground if it appears on the facts that the Court below had come to a finding as to the desirability of a prosecution and the only defect was the omission to use the exact words of the section.

4. Turning now to the facts of this case, I have referred to the judgment of the Sessions Judge of Monghyr in the trial of Junab Khan and others for the reasons for which he is dissatisfied with the evidence of the Hindu witnesses regarding the use to which the building was put between 15th January and 2nd April. I find that he has disbelieved the evidence of these witnesses not because superior rebutting evidence is adduced on the other side, but because of some discrepancies in the evidence of the witnesses and of some speculations and inferences as to probabilities drawn by the Sessions Judge. I note that in the petition of complaint only four witnesses are cited, all Mahomedans, and the only one referred to in the judgment of the Sessions Judge as a witness on whom he was disposed to place reliance was the Sub-Inspector Najmul Hasan. But on referring to the judgment it seems that the important part of the deposition of Najmul Hasan before the Sessions Judge and that part which most influenced the Sessions Judge in coming to the view that the Hindu witnesses regarding the alleged mosque were unreliable was that in which he had stated that he has been informed by certain Hindus (whose names he did not record and could not give) as to the conduct of the Mahomedans after the earthquake of 15th January and the learned Sessions Judge also appears to have relied strongly on a statement of the Sub-Inspector that one Askaran, a Hindu Marwari, had made a certain statement to him inconsistent with, what the Hindu witnesses had been deposing. Mr. Lucas had not before him the evidence of those unnamed Hindus who had made statements to the Sub-Inspector nor the evidence of Askaran Marwari and I am wholly at a loss to understand how the learned Sessions Judge could have permitted the Sub-Inspector to give in his deposition any evidence at all regarding the hearsay statements made to him by persons who were not witnesses. Another ground, if I understand the judgment correctly is that there has been some development in the story told by members of the Hindu party from time to time regarding the building in dispute. Now, such developments may be very relevant for the purpose of discrediting a prosecution witness, but the position is very different when it comes to putting him in the dock and trying to prove him guilty of perjury. He and not his opponent will then be entitled to the benefit of any doubt and of any presumptions that are to be made.

5. In view of these considerations the prospects of a conviction in the case instituted on the complaint of the Sessions Judge of Monghyr are very much more remote than they must have appeared to him at the time when he presented his complaint. The matter in dispute, that is to say, the use to which the disputed building was put in February and March 1934 is one on which it would be very difficult to arrive at certainty or to reach any conclusion which can be rated more highly than the most likely conclusion on the balance of probabilities. In a case of this nature it is seldom desirable to launch criminal prosecutions lightly against every witness who may be suspected of having departed from the truth in some particular. My own opinion on a consideration of the circumstances generally is that it is not expedient in the interests of justice that the prosecution should proceed further. Accordingly I allow the appeal and direct the complaint to be withdrawn.