JUDGMENT H.P. Asthana, J. - Ram Swarup, Panna Lal, Chhutain and Jodha were prosecuted u/s 302/34 I.P.C. for the murder of one Raja Ram of village Bajhera, P.S. Achhalda, in the district of Etawah. Sri Krishna, Rameshwar, Sukhbir and Ram Charan appeared as prosecution witnesses in that case. The case ended in acquittal and the learned Sessions Judge who decided it was of the opinion that the prosecution witnesses had perjured themselves. The case was- decided on the 15th of May 1951. On the 2nd January 1952 an application u/s 476 Code of Criminal Procedure was made by the accused against the above named prosecution witnesses for their prosecution u/s 194 I.P.C. The learned Sessions Judge Sri N.R. Kumar was of the opinion that in view of the remarks made by his predecessor in the sessions trial it was desirable that Sri Krishna, Rameshwar and Sukhbir should be prosecuted u/s 194 I.P.C. He therefore directed that a complaint should be filed against these persons u/s 194 I.P.C. and so far as Ram Charan Singh was concerned the notice against him was discharged. 2. Sri Krishna, Rameshwar and Sukhbir filed a revision against the order of the learned Sessions Judge directing the filing of a complaint against them. It appears that subsequently an application was made on behalf of these three persons that their revision might be treated as an appeal. This request was granted and revision was converted into an appeal. In however appears that no appeal is maintainable against the order directing the filing of the complaint unless the complaint itself has been made. There is nothing on the record to show that in persuance of the order of the learned Sessions Judge a complaint has been filed against the Appellants. In absence of any such material on the record no appeal lies in view of the provision contained in Section 476B Code of Criminal Procedure Learned Counsel for the Appellants has again made a request that the appeal may be converted into a revision and may be decided as such. I have accepted this request and converted the appeal into revision. 3. It was con ended on behalf of the applicants that there was great delay in making the application and as such it should not have been entertained as has already been mentioned above. I have accepted this request and converted the appeal into revision. 3. It was con ended on behalf of the applicants that there was great delay in making the application and as such it should not have been entertained as has already been mentioned above. The sessions case was decided on the 15th May 1951 and the present application was made on the 2nd January 1952, about eight months after the acquittal of the accused. The learned Sessions Judge has observed that there was sufficient explanation for the delay in making the application. It appears from the judgment that the accused made an application for a copy of the judgment on the 18th May 1951 and for copies of the statements on the 23rd May 1951. That the copies were delivered to them on 29th November 1951. That thereafter three weeks' time was taken by the learned Counsel for the accused for the preparation of the case and as such the delay has been explained. There can, however, be no doubt that there was great delay in making the application for the prosecution of the present applicants. In my opinion the delay has not been satisfactorily explained. Copies were obtained by the accused on the 29th November 1951 and the application could have very easily been made within a week or so of it. In M. Liaqat Husain v. Vinay Prakash and Anr. 1945 A.W.R. (H.C.) 272 the Plaintiff brought a suit on the basis of a pronote which was decreed on the 9th August 1940. On 14th December 1940 he made an application for the prosecution of the Defendant in respect of certain false statements alleged to have been made by him in the course of the suit. After many adjournments the court on 6th December 1941, directed that a complaint u/s 193 should be filed against the Defendant. It was held that the fact that there had been enormous delay in the proceedings and that the Defendant had been sufficiently punished by the suspense in which he had been all that time was a factor in favour of the Defendant in considering whether the proceedings against the Defendant in the interests of justice. The application was allowed and the order directing the filing of the application against the applicants was set aside. In Kashi Shukal and Others Vs. The application was allowed and the order directing the filing of the application against the applicants was set aside. In Kashi Shukal and Others Vs. Emperor, AIR 1917 All 425 it was held that in a case where steps u/s 476 Code of Criminal Procedure were to be taken it was highly desirable that they should be taken as soon as possible and not delayed. It will appear from the above authorities that proceedings u/s 476 Code of Criminal Procedure should be taken at the earliest possible opportunity and that delay was fatal. 4. It was next contended for the applicants that in order to grant sanction for prosecution u/s 476 Code of Criminal Procedure it was necessary for the enquiring court to apply its own mind in order to decide whether a prima facie case had been made out against the persons who were sought to be proceeded with and it is only when he was satisfied after consideration of the material on the record that complaint could be filed It was argued that in the present case the learned Sessions Judge did not apply his own mind in order to decide whether there was any prima facie case against the applicants but relied upon the observations which have been made against the applicants by the learned Sessions Judge in the murder case. I have gone through the judgment of the learned Sessions Judge and I find he has not applied his mind in order to decide whether there is any prima facie case u/s 194 against the applicants. He directed the filing of the complaint against the applicants because from the observations made by the learned Sessions Judge in the murder case he was satisfied that there was a prima facie case u/s 194 I.P.C. against the applicant. Learned Counsel for the applicants has relied on Ghanram Rai and Another Vs. Emperor, AIR 1924 All 453 . It was held in this case that it was absolutely essential to the validity of an order u/s 476 that the court which passed the order should apply its own mind to the matter upon its merits and not merely act on the remarks of the appellate court. In this case one Jado Rai was tried by the Sessions Judge of Ghazipur Under Sections 467 and 471 I.P.C. He was convicted. In this case one Jado Rai was tried by the Sessions Judge of Ghazipur Under Sections 467 and 471 I.P.C. He was convicted. He appealed against his conviction and the appellate court also confirmed it. The appellate court was of the opinion that the defence witnesses had made deliberately false statement. It therefore passed the following order. I direct that the record be returned to the Sessions Judge with a direction to him to take action u/s 476 of the Code of Criminal Procedure and to send these men to the nearest Magistrate to be charged with perjury. 5. The learned Sessions Judge to whom the file was returned directed that a complaint should be filed against the defence witnesses in persuance of the order of this Court. It did not make any preliminary enquiry into the matter as to whether the defence witnesses had made false statements and whether there was any prima facie case u/s 476 I.P.C. against them. A revision was filed against the order of the Sessions Judge directing the filing of the complaint. It was allowed and it was held that the order of the learned Sessions Judge was wrong in view of the fact that he had not applied his own mind to the case. 6. In view of this decision and also in view of the fact that in the case before me the learned Sessions Judge before making the order for filing the complaint against the applicants did not apply his own mind to the case in order to determine whether a prima facie case u/s 194 I.P.C. has been made against the applicants, I am of the opinion that his order cannot be maintained. 7. This application is, therefore, allowed and the order of the learned Sessions Judge directing the filing of the complaint against the applicants u/s 194 I.P.C. is set aside.