Delhi District Court
Ram Niwas Goel & Ors. vs . Manish Ghai on 31 May, 2023
IN THE COURT OF MS. VIDHI GUPTA ANAND,
ACMM-01, ROUSE AVENUE DISTRICT COURTS, NEW
DELHI
Criminal Misc. Application No. 01/2021
CNR No. DLCT12-000024-2021
Ram Niwas Goel & Ors. Vs. Manish Ghai
ORDER ON APPLICATION U/S 340 CR.P.C.
31.05.2023
1. The subject matter of this order is an application moved by
Sh. Ram Niwas Goel, Sh. Sumit Goel, Dr. Atul Gupta and Sh.
Hitesh Khanna U/s 340 Cr.P.C. against Sh. Manish Ghai with
respect to the case titled as State vs. Ram Niwas Goel & Ors.
(C.R No. 38/19) bearing FIR No. 112/2015 PS Vivek Vihar
decided on 11.10.2019.
2. Briefly stated the contents of the present application are as
follows:-
2.1 The present FIR was registered on 07.02.2015 U/s
147/427/457/323 IPC on the complaint given by the complainant
Sh. Manish Ghai stating that the accused persons (applicants
herein) and numerous other persons had trespassed in the house
owned and possessed by him at C-273, Vivek Vihar, New Delhi
and created ruckus there and damaged some property inside it.
2.2 After filing of the chargesheet in this matter, cognizance
was taken by the Court and charges were framed on 19.04.2018
against all the accused persons U/s 456/323/427/34 IPC to which
the accused persons pleaded not guilty and claimed trial. Upon
Criminal Misc. Application No. 01/2021 Page No. 1 of 9 VIDHI Digitally signed
by VIDHI GUPTA
Ram Niwas Goel & Ors. Vs. Manish Ghai GUPTA Date: 2023.05.31
ANAND
ANAND 16:26:59 +0530
conclusion of trial, vide judgment dated 11.10.2019,
accused/applicants namely Ram Niwas Goel, Sumit Goel, Hitesh
Khanna and Dr. Atul Gupta were convicted for offence U/s 448
IPC and accused/applicant Sumit Goel was also convicted for
offence U/s 323 IPC.
2.3 Thereafter, vide order dated 18.10.2019, accused persons
namely Ram Niwas Goel, Sumit Goel, Hitesh Khanna and Dr.
Atul Gupta were sentenced to simple imprisonment for a period
of six months alongwith fine of Rs. 1000/- each and additionally
accused Sumit Goel was also sentenced with imprisonment for
one month and fine of Rs. 1000/-. It was also ordered that in
default of payment of fine, the convicts shall undergo further
simple imprisonment of 15 days.
2.4 On 16.11.2019, the convicts/applicants filed a criminal
appeal against the order of conviction and same was admitted
and thereafter, the order on sentence has been stayed and is
pending final disposal.
2.5 It is alleged by the applicants that they later came to
know that the neither the complainant nor his family members
are the owners of the property at C-273, Vivek Vihar, Delhi. In
support of this contention, the applicants have also filed a Sale
Deed along with the instant application u/s 340 Cr.P.C.
2.6 Applicants submit that despite not being owner of the
house, on 07.12.2015 during trial in FIR No. 112/2015 PS Vivek
Vihar, in his cross examination, complainant Manish Ghai (PW2)
deposed that I am the owner of the house no. C-273. It is further
stated that PW-3 Kher Mohd deposed that owner of the house is
Criminal Misc. Application No. 01/2021 Page No. 2 of 9 VIDHI Digitally
by VIDHI
signed
GUPTA ANAND
Ram Niwas Goel & Ors. Vs. Manish Ghai GUPTA Date:
ANAND 2023.05.31
16:27:15 +0530
Sh. Manish Ghai and witness Rammy Ghai deposed in the
Witness Box that the incident is of our house C-273, Vivek Vihar,
Phase-I, New Delhi and these persons who had trespassed in my
house were belonging to Aam Aadmi Party.
2.7 In view of the above testimonies, applicants have alleged
that the complainant has intentionally given false evidence in the
judicial proceedings with the intention of effecting conviction of
the applicants U/s 448 IPC which provides punishment for house
trespass and has committed perjury by giving false evidence on
oath which attracts penal provisions U/s 340 Cr.P.C.
It is therefore, prayed that enquiry be initiated against the
complainant U/s 340 Cr.P.C. for giving false evidence and
committing an offence U/s 195(1)(b) of Cr.P.C. and complaint be
sent to the concerned Magistrate of Competent Jurisdiction for
further necessary action.
3. Preliminary enquiry was conducted by the Court upon the
present application U/s 340 Cr.P.C., wherein three witnesses were
examined in the Court including CW1 Sh. Ram Niwas Goel,
CW2 Sh. Hitesh Khanna and CW3 Sh. Sumit Goel.
4. After recording of statements of the above-said witnesses,
evidence qua the preliminary enquiry was closed on 10.09.2021
and the matter was thereafter listed for arguments on the present
application U/s 340 Cr.P.C.
5. The arguments on the present application have been duly
addressed by Ld. Counsel for the applicants praying for initiation
of prosecution against the respondent Manish Ghai for giving
Digitally signed
VIDHI by VIDHI GUPTA ANAND Criminal Misc. Application No. 01/2021 Page No. 3 of 9 GUPTA Date:
Ram Niwas Goel & Ors. Vs. Manish Ghai ANAND 2023.05.31 16:27:25 +0530 false evidence in the Court. In support of his arguments, Ld. Counsel for the applicants also filed written submissions and placed reliance on the following citations:-
(i) Ram Dhan Vs. State of U.P. & Anr., 2012 (2) UC 1112
(ii) Pritish Vs. State of Maharashtra and Ors., (2002) 1 SCC 253
(iii) Sanjeev Kumar Mittal Vs. State, 2011 (121) DRJ 328.
It was argued by Ld. Counsel for the applicants that the accused persons i.e. applicants herein have been convicted on the basis of claim of the complainant that he is the owner of the property at C-273, Vivek Vihar, Delhi, in which the accused persons allegedly trespassed; however, neither the Complainant nor even his distant relatives are the owners of the same and this fact came to their knowledge only after their conviction had already been pronounced.
It was brought to the knowledge of the Court by Ld. Counsel for the applicants that they have appealed to the Sessions Court against the aforesaid order of conviction and moved an application therein seeking to bring on record additional documents i.e. the sale deed pertaining to the property C-273, Vivek Vihar, Delhi, to prove that the complainant is not the owner of the said property, however, the said application has already been dismissed.
It is further submitted by Ld. Counsel for the applications that a petition against the said order of the Sessions Court is pending disposal in the High Court of Delhi, however, the same does not bar hearing and disposal of the present application i.e. application u/s 340 Cr.P.C. filed by the accused Digitally signed VIDHI by VIDHI GUPTA ANAND Criminal Misc. Application No. 01/2021 Page No. 4 of 9 GUPTA Date:
Ram Niwas Goel & Ors. Vs. Manish Ghai ANAND 2023.05.31 16:27:33 +0530 persons/ applicants against the complainant for giving false evidence before the Court.
It was argued by Ld. Counsel for the applicants that whether the above mentioned sale deed is taken on record or not will not impact the answer to the question as to whether perjury has been committed by the complainant or not. It was further argued by Ld. Counsel for the applicants that preliminary inquiry has already been completed on the present application u/s 340 Cr.P.C. and therefore, it is apt at this stage that the same be decided on merits and accordingly, be disposed off.
With these arguments, Ld. Counsel for the applicants prayed for taking appropriate action against respondent/complainant, Manish Ghai for committing perjury.
6. Arguments have been heard. Record has been perused.
7. At the outset, the most important fact which needs mention here is that the appeal filed by the Applicants/Accused persons against the order of their conviction dated 11.10.2019 is still pending in the Sessions Court. Even though the proceedings therein have been stayed by the Delhi High Court, it can not be denied that the main matter in which allegedly perjury has been committed by the respondent herein is sub-judice before the Sessions Court.
At this stage, it is utmost important to note that the proceedings before the Appellate Court are considered to be a continuation of the proceedings before the trial court. Hence, as such even though Applicants have already been convicted by the trial court, by the virtue of their appeal pending in the Sessions Digitally signed VIDHI by VIDHI GUPTA ANAND GUPTA Date:
Criminal Misc. Application No. 01/2021 Page No. 5 of 9 ANAND 2023.05.31 16:28:16 +0530 Ram Niwas Goel & Ors. Vs. Manish Ghai Court and on account of stay granted on the order on sentence pronounced by Ld. Sessions Judge, it can definitely be stated that the proceedings have still not concluded.
The legal position on this aspect has been settled by various authorities of Higher Courts. Recently, in its judgment titled as M/S Ramnath Exports Pvt. Ltd. Versus Vinita Mehta & Anr. [2022 Livelaw (SC) 564], it was held by the Hon'ble Supreme Court of India as follows:
It is also settled that an appeal is a continuation of the proceedings of the original court. Ordinarily, in the first appeal, the appellate jurisdiction involves a re-hearing on law as well as on fact as invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law are open for consideration by re-appreciating the material and evidence.
In view of the above discussion, it is clear that at this stage, when the appeal against the order of conviction of the applicants is still pending disposal, the proceedings can not be considered as concluded.
8. Moving ahead, it is crucial to discuss the law on maintainability of application u/s 340 Cr.P.C. during the pendency of proceedings. This aspect shall in fact decide the fate of the application at hand.
The first and the most relevant judgment on the above issue is Iqbal Singh Marwah v. Meenakshi Marwah [2005 AIR SCW 1929] wherein the Constitution Bench of the Supreme Court of India held that:
19. There is another consideration which has to be kept in VIDHI Digitally signed by VIDHI GUPTA Criminal Misc. Application No. 01/2021 Page No. 6 of 9 GUPTA Date: 2023.05.31 ANAND Ram Niwas Goel & Ors. Vs. Manish Ghai ANAND 16:27:43 +0530 mind. Subsection (1) of Section 340 Cr.P.C. contemplates holding of a preliminary enquiry. Normally, a direction for filing of a complaint is not made during the pendency of the proceeding before the Court and this is done at the stage when the proceeding is concluded and the final judgment is rendered.
Further, in its leading judgment titled as Punjab Tractors Ltd. Vs. M/s International Tractors Ltd. [167 (2010) DLT 490], it has been held by Delhi High Court as follows:
18. In my opinion, an application under Section 340 of the Cr.P.C. ought to be normally considered at the time of final decision of the case only and not at the interim stage as the defendants/applicant have pressed in the present case. It is the settled legal position that the said provision cannot be resorted to, to satisfy a private grudge of the litigant. In fact the very genesis of this provision is to prevent complaints being filed of offences having being committed in relation to the court proceedings; it was felt that if such complaints are permitted to be filed, the same may be used to force the other party into giving up its claim/defence or to dissuade witnesses from appearing before the courts under threat of criminal prosecution. It was held as far back as in Rewashankar Moolchand Vs. Emperor AIR 1940 Nagpur 72 that proceedings under Section 340 Cr.P.C. should not be resorted to when the criminal case is calculated to hamper fair trial of issue in the civil court before which the matter would probably go on for longer. This court also in M/s Jindal Polyster Ltd.
Vs. Rahul Jaura 124 (2005) DLT 613 and in Kuldeep Kapoor Vs. Susanta Sengupta 126 (2006) DLT 149 has held that applications under Section 340 of the Cr.P.C. should be dealt with at the final stage only and not at the interim stage. I also find a consistency of view in this regard in the other High Courts. The law is that a prosecution for perjury should not be ordered by the court before the close of the proceedings in the case in which false evidence is given. It is highly wrong for a court to take action under the said provision against a witness or a party for giving false evidence when trial is underway.
VIDHI Digitally by VIDHI signed GUPTA ANAND GUPTA Date:
ANAND 2023.05.31 16:27:50 +0530 Criminal Misc. Application No. 01/2021 Page No. 7 of 9 Ram Niwas Goel & Ors. Vs. Manish Ghai The above findings have been reiterated by the Delhi High Court in its judgment titled as Vishal Kapoor v. Sonal Kapoor [LPA No.322/2014 dated 02.09.2014] by holding as follows:
9. Reference may also be made to the judgment of the Division Bench of this Court in Deepak Khosla Vs. Anand Mohan Mishra MANU/DE/1447/2010 which also though not directly concerned with the said issue, otherwise suggests that the application under Section 340 of the Cr.
P.C. will be disposed of along with main proceedings. Similarly a learned Single Judge of this Court in Dheeraj Singh Rana Vs. State (NCT of Delhi) MANU/DE/0400/2013 also held that the application under Section 340 of the Cr.P.C. is to be decided at the final stage of the proceeding in which it is made.
9. The sum and substance culled out from the above held discussion is that during the pendency of the trial proceedings an application u/s 340 Cr.P.C. should not be decided and the same may be decided on merits only at the final stage of the proceedings. As per the Code of Criminal Procedure itself, the Appellate court has the liberty to take additional evidence vide section 391 Cr.P.C. and that itself suggests that the trial has still not concluded. In the case at hand, the application for filing of additional evidence is still sub-judice before the High Court of Delhi and the appeal against conviction of applicants is pending before the Sessions Court. In these circumstances, at this stage, no grounds are made out to proceed further upon the application of the applicants u/s 340 Cr.P.C. The judgments filed by the applicants even though highly enlightening are not applicable to present situation and facts of this case and do not turn out to add much weight to the case of the applicants.
VIDHI Digitally signed by VIDHI GUPTA GUPTA ANAND Date: 2023.05.31 ANAND 16:28:48 +0530 Criminal Misc. Application No. 01/2021 Page No. 8 of 9 Ram Niwas Goel & Ors. Vs. Manish Ghai
10. In view of the above held discussion, the present application u/s 340 Cr.P.C. filed by Sh. Ram Niwas Goel, Sh. Sumit Goel, Dr. Atul Gupta and Sh. Hitesh Khanna stands Digitally signed disposed off as dismissed. VIDHI by VIDHI GUPTA GUPTA ANAND Date: 2023.05.31 Announced in open Court today ANAND 16:27:58 +0530 Dt. 31.05.2023 (Vidhi Gupta Anand) ACMM-01/RADC/New Delhi 31.05.2023 Criminal Misc. Application No. 01/2021 Page No. 9 of 9 Ram Niwas Goel & Ors. Vs. Manish Ghai