Jagdish Prasad vs State & Others (Delhi HC) (CRL.M.C. 1130/2008 & CRL.M.A. 4231/2008)
2. The brief facts leading to the filing of the present petition are that Respondent No.2 wife filed an application under Section 125 CrPC seeking maintenance from the Petitioner husband for herself and the minor female child. In her petition she stated in Para 15 that she was “not employed anywhere and is unable to maintain herself and her said minor girl Shruti and they presently are survived on the mercy of parents of the petitioner No.1 (wife) who themselves have limited resources to maintain the large family.”
17. That brings us to the merits of the case. The only ground on which the learned ASJ appears to have set aside the order dated 9th September 2005 passed by the learned MM is that a definite opinion was not formed by the learned MM that it was expedient in the interest of justice to prosecute Respondent No.2 for the offence under Section 193 IPC. The learned ASJ unfortunately does not appear to have referred to the record of the detailed inquiry conducted by learned MM. This involved not only considering the reply filed by Respondent No.2 but also the evidence recorded of RW-2 i.e. the Senior Manager D.S.Bandari of the PNB and RW-3, the official of the `Tirath Ram Shah Hospital Manoj Nair. In the light of the evidence of these witnesses, the relevant portion of which have been extracted hereinbefore, there was no question of learned MM having to hold any further inquiry in order to determine whether Respondent No.2 ought to be prosecuted or not.
18. In the considered view of this Court, when the learned MM in the order dated 9th September 2005 observed “I am, therefore, of the opinion that Smt. Veena has committed an offence under Section 193 IPC and she ought to be prosecuted for the same”, the requirement of Section 340 CrPC as explained by the Supreme Court stood satisfied. In other words, the opinion formed by learned MM was obviously only a tentative or a prima facie one. This is plain from the expression “ought to be prosecuted”. Further, the same expression “ought to be prosecuted” also indicates the formation of an opinion that it was expedient in the interest of justice that Respondent No.2 should be prosecuted. Therefore, both the requirements of law as explained by the Supreme Court in relation to Section 340 CrPC stood completely satisfied by the order dated 9th September 2005 passed by the learned MM. This Court is, therefore, unable to agree with the conclusion reached by learned ASJ to the contrary.