This is a facepalm experience for the ADJ who said that,
“Mere recording of a finding to the effect that an offence punishable under section 193 of the Penal Code was committed would not answer requirement of section 340 of the Code. When primary question was answered in affirmative then secondary and most effective proposition was to be answered to the effect whether it was expedient in the interest of justice to initiate an action in the matter. No such step was taken by the Trial Court to see that it was expedient in the interest of justice to take such action. In such a situation, order impugned is shrouded with illegality. In cannot be allowed to stand.”
For which, the High Court of Delhi gave a befitting answer, such as from Para 18,
Jagdish Prasad Vs State and Others on 23 March, 2009
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.