2849-2854 OF 2022) CARDINAL MAR GEORGE ALENCHERRY… APPELLANT Versus STATE OF KERALA & ANR….
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RESPONDENTS WITH SPECIAL LEAVE PETITION (CRL.)
NOS….
RESPONDENTS WITH SPECIAL LEAVE PETITION (CRL.) NO(S). 2849 285-4/2022, filed by the appellant Cardinal Mar George Alencherry (original accused) the impugned common order dated 12.08.2021 in its entirety has been assailed, however, in the SLP (Crl.) No.
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The Syro Malabar Church, an Episcopal Institution is headed by the Bishop of Archdiocese, i.e., the appellant – Cardinal Mar George Alencherry (hereinafter referred to as ‘the appellant- Archbishop’).
Joshy Puthuva, who was the financial officer of the said Archdiocese, during the period from 2012 to 2017 to fraudulently dispose of some of the immovable properties of the Archdiocese, and in furtherance thereof, they alienated certain properties worth crores of rupees to the accused no. The complainant – Joshy Varghese has also filed other five similar complaints against the appellant-Archbishop and others (Annexures A-4 to A-9 in SLP(Civil) Nos.2849-2854 of 2022) in which the trial court had issued the summons by passing separate orders, the details of which are as under: No 51/2020) Summons issued to the Petitioner and another on 20.01.2020 3.
The Sessions Court dismissed the said Criminal Revision Petitions, vide the order dated 24.08.2019, against which the appellant-Archbishop preferred Crl.M.C. 3 – Saju Varghese also filed Crl.M.C. The High Court also gave certain directions to the respondent-State Government while dismissing the said petitions.
Maradu, against the appellant and others praying for investigation under Section 156(3) Cr.P.C., alleging criminal conspiracy to sell the plots of lands belonging to the Archdiocese. 179/2018 in the court of Chief Judicial Magistrate, Ernakulam against the petitioner and two others alleging criminal conspiracy in respect of the sale of plots of land belonging to the Archdiocese. 719/2018, making similar allegations, in which the police filed a closure report, however the complainant Shine Varghese filed a Protest Petition, which is pending under consideration before the concerned court. No.2/2018) was dismissed on 30.09.2021 by the concerned court at Maradu without taking cognizance of the complaint as the counsel for the complainant did not appear, whereas in the instant complaints, the summons have been issued by the Trial Court, taking cognizance of the offences under Section 120B, 406, 423 read with Section 34 of IPC on 02.04.2019 and on other dates subsequent thereto, that is prior to the dismissal of the first complaint on 30.09.2021. It is pertinent to note that there was no adverse order passed or cognizance taken by the Court at Maradu and on the contrary the same was dismissed after the Trial Court at Kakkanad issued summons against the appellant and others, taking cognizance of the alleged offences under Section 120B, 406, 423 read with Section 34 of IPC. So far as facts of the present case are concerned, indisputably though the respondent-complainant had filed the first complaint in the court of JMFC, Maradu seeking prayer to direct investigation to the police under Section 156(3) and 202 of Cr.PC, the said complaint was not prosecuted further. No.5003/2018, it is quite discernible that the Trial court after meticulously examining the allegations made in the complaint and the evidence of the complainant and one witness, had taken the cognizance, with regard to the aforesaid offences only and had not taken cognizance of the other offences alleged under Sections 409, 418, 420, 465, 467 and 468 of IPC which shows proper application of mind by the Trial Court before issuing the summons to the appellant and others.
Saroj Ranjan Sarkar, it was held with regard to filing of the second complaint that a fresh complaint could be entertained after the dismissal of previous complaint under Section 203 of the Criminal Procedure Code when there was manifest error or manifest miscarriage of justice or when fresh evidence was forthcoming. The said observations made in the Pramatha Nath Talukdar (supra) case were reiterated in various later decisions in case of Jatinder Singh and others Vs. The Sessions Court in the Revision petitions filed by the appellant had also upheld the said orders passed by the trial court issuing summons against the appellant and others after dealing with each and every aspect of the matter including the ingredients of alleged offences for which the summons were issued against the appellant.
In the instant cases, all the three courts below have discussed in detail about the prima facie involvement of the appellant in the alleged offences, and therefore it is not necessary for this Court to reiterate the same. According to the said petitioners such general observations made in the impugned judgement amounted to nullifying the concluded transactions involving the properties of Catholic Churches including Syro Malabar Catholic Church. It appears to us after having gone through the impugned order passed by the High Court, more particularly the observations made in para 17 to 39 thereof that the said prima facie observations were made in response to the submissions made by the learned counsels for the parties relying upon various decisions of this Court as regards the powers and authority of the Archbishop of Archdiocese with regard to the temporal and spiritual affairs of the Churches. Of course, certain observations are omnibus and general in nature but the same being only prima facie observations made in the impugned order in the petitions filed by the Appellant- Archbishop under Section 482 of Cr.PC, no finality could be attached to the said observations. Having said that injustice, we are constrained to say something on the subsequent orders passed by the High Court after passing of the impugned order dismissing the petitions filed under Section 482 Cr.PC by the appellant. No.106695/2022 filed in the present appeals on behalf of the appellant, it appears that the concerned Judge in the High Court retained the case with him for reporting the compliance of the directions given by him in the impugned order, and thereafter vide the order dated 08.02.2022 directed the registry to implead the Union of India as an additional party to the main case-Crl. M.C.
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Thereafter on 03.03.2022, following order was passed by the High Court: 26. The High Court in its overzealous approach had travelled not only beyond the scope and ambit of Section 482 Cr.P.C and of Article 226 of the Constitution of India, but had crossed all the boundaries of judicial activism and judicial restraint by passing such orders under the guise of doing real and substantial justice. Unwarranted judicial activism may cause uncertainty or confusion not only in the mind of the authorities but also in the mind of the litigants. (DINESH MAHESHWARI)…………………….. J.
Case Title: CARDINAL MAR GEORGE ALENCHERRY Vs. THE STATE OF KERALA (2023 INSC 250)
Case Number: Crl.A. No.-000836-000841 / 2023
