No Acts & Articles mentioned in this case
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
CRL.MC NO. 8936 OF 2019
AGAINST THE ORDER DATED 24/08/2019 IN CRRP 20/2019 OF SESSIONS
COURT, ERNAKULAM.
PETITIONER/ACCUSED:
CARDINAL MAR GEORGE ALENCHERRY
AGED 74 YEARS
S/O.LATE PHILIPOSE, MAJOR ARCHBISHOP, SYRO MALABAR
CHURCH, ARCHBISHOPS HOUSE, BROADWAY, ERNAKULAM-682031.
BY ADVS.
B.KUMAR
SRI.GEORGE POONTHOTTAM (SR.)
SMT.NISHA GEORGE
SRI.JOHN VARGHESE
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682031.
2 JOSHY VARGHESE,
AGED 56 YEARS
S/O.VAREEDH, THELAKKADAN HOUSE, MALAMURI, PULLUVAZHY
P.O., PERUMBAVOOR, RAYAMANGALAM VILLAGE, KUNNATHUNADU
TALUK, ERNAKULAM DISTRICT-683541.
BY ADVS.
SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER
GIMMY P ANTONY
SRI.GEORGE VARGHESE KIZHAKKAMBALAM
SRI.V.RAJENDRAN (PERUMBAVOOR)
SRI.N.RAJESH
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
30.07.2021, ALONG WITH Crl.M.C.Nos.205/2020, 9115/2019, 1409/2020,
1414/2020, 2136/2020 AND 2138/2020, THE COURT ON 12/08/2021
DELIVERED THE FOLLOWING:
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
CRL.MC NO. 205 OF 2020
(AGAINST THE ORDER DATED 05/11/2019 IN CRL.M.P.NO.5005/2018
NUMBERED AS CC 1886/2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,
KAKKANAD, ERNAKULAM)
PETITIONER/ACCUSED:
CARDINAL MAR GEORGE ALENCHERRY
AGED 74 YEARS
S/O. LATE PHILIPOSE, MAJOR ARCHBISHOP, SYRO MALABAR
CHURCH, ARCHBISHOP'S HOUSE, BROADWAY, ERNAKULAM - 682
031.
BY ADVS.
GEORGE POONTHOTTAM (SR.)
SRI.JOHN VARGHESE
SMT.NISHA GEORGE
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM - 682 031.
2 JOSHY VARGHESE
AGED 56 YEARS
S/O. VAREEDH, THELAKKADAN HOUSE, MALAMURI, PULLUVAZHY
P. O., PERUMBAVOOR, RAYAMANGALAM VILLAGE, KUNNATHUNADU
TALUK, ERNAKULAM DISTRICT - 683541.
BY ADVS.
SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER
SRI.V.RAJENDRAN (PERUMBAVOOR)
SRI.GEORGE VARGHESE KIZHAKKAMBALAM
SRI.N.RAJESH
SHRI.GOPAKUMAR P.
SRI.GIMMY P ANTONY
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.07.2021,
ALONG WITH Crl.MC.8936/2019 AND CONNECTED CASES, THE COURT ON
12/08/2021 DELIVERED THE FOLLOWING:
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
CRL.MC NO. 1414 OF 2020
AGAINST THE ORDER DATED 20/01/2020 IN CRMP 5011/2018 OF JUDICIAL
FIRST CLASS MAGISTRATE COURT, KAKKANAD, ERNAKULAM
PETITIONER/ACCUSED:
CARDINAL MAR GEORGE ALENCHERRY
AGED 74 YEARS
S/O LATE PHILIPOSE,MAJOR ARCHBISHOP,SYRO MALABAR
CHURCH,ARCHBISHOP'S HOUSE,BROADWAY,ERNAKULAM-682031.
BY ADVS.
GEORGE POONTHOTTAM (SR.)
SRI.JOHN VARGHESE
SMT.NISHA GEORGE
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM-682031.
2 JOSHY VARGHESE,
AGED 56 YEARS
S/O VAREEDH,THELAKKADAN HOUSE,
MALAMURIBHAGATH,PULLUVAZHYKARAYIL,RAYAMANGALAM
VILLAGE,KUNNATHUNADU TALUK,
ERNAKULAM DISTRICT-683541.
BY ADVS.
SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER
SRI.V.RAJENDRAN (PERUMBAVOOR)
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
30.07.2021, ALONG WITH Crl.MC.8936/2019 AND CONNECTED CASES, THE
COURT ON 12/08/2021 DELIVERED THE FOLLOWING:
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
CRL.MC NO. 1409 OF 2020
AGAINST THE ORDER DATED 20.01.2020 IN CRL.M.P.NO. 5013/2018 OF
JUDICIAL MAGISTRATE OF FIRST CLASS, KAKKANAD, ERNAKULAM
PETITIONER/ACCUSED:
CARDINAL MAR GEORGE ALENCHERRY
AGED 74 YEARS
S/O. LATE PHILIPOSE, MAJOR ARCHBISHOP, SYRO MALABAR
CHURCH, ARCHBISHOP'S HOUSE, BROADSWORD, ERNAKULAM 682
031.
BY ADVS.
GEORGE POONTHOTTAM (SR.)
SRI.JOHN VARGHESE
SMT.NISHA GEORGE
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM 682 031.
2 JOSHY VARGHESE,
AGED 56 YEARS
S/O. VAREEDH, THELAKKADAN HOUSE, MALAMURIBHAGATH,
PULLUVAZHYKARAYIL, RAYAMANGALAM VILLAGE,KUNNATHUNADU
TALUK, ERNAKULAM DISTRICT 683 541.
BY ADVS.
SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER
SRI.V.RAJENDRAN (PERUMBAVOOR)
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
30.07.2021, ALONG WITH Crl.MC.8936/2019 AND CONNECTED CASES, THE
COURT ON 12/08/2021 DELIVERED THE FOLLOWING:
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
CRL.MC NO. 2138 OF 2020
(AGAINST THE ORDER DATED 13.2.2020 IN
CRL.M.P.NO.5015/2018(C.C.NO.94/2020) OF JUDICIAL FIRST CLASS
MAGISTRATE COURT, KAKKANAD, ERNAKULAM DISTRICT)
PETITIONER/ACCUSED:
CARDINAL MAR GEORGE ALANCHERRY,
AGED 74 YEARS
S/O.LATE PHILIPOSE, MAJOR ARCHBISHOP, SYRO MALABAR
CHURCH, ARCHBISHOP'S HOUSE, BROADWAY, ERNAKULAM - 682
031.
BY ADVS.
GEORGE POONTHOTTAM (SR.)
SRI.JOHN VARGHESE
SMT.NISHA GEORGE
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM - 682 031.
2 JOSHY VARGHESE,
AGED 56 YEARS, S/O.VAREEDH, THELAKKADAN HOUSE,
MALAMURIBHAGATH, PULLUVAZHYKARAYIL, RAYAMANGALAM
VILLAGE, KUNNATHUNADU TALUK,
ERNAKULAM DISTRICT - 683 541.
BY ADVS.
SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER
SRI.V.RAJENDRAN (PERUMBAVOOR)
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
30.07.2021, ALONG WITH Crl.MC.8936/2019 AND CONNECTED CASES, THE
COURT ON 12/08/2021 DELIVERED THE FOLLOWING:
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
CRL.MC NO. 2136 OF 2020
AGAINST THE ORDER DATED 13.02.2020 IN CRL.M.P.NO.5009/2018
(C.C.NO.93/2020) OF JUDICIAL FIRST CLASS MAGISTRATE COURT,
KAKKANAD, ERNAKULAM DISTRICT)
PETITIONER/ACCUSED:
CARDINAL MAR GEORGE ALENCHERRY
AGED 74 YEARS
S/O.LATE PHILIPOSE, MAJOR ARCHBISHOP, SYRO MALABAR
CHURCH, ARCHBISHOPS HOUSE, BROADWAY, ERNAKULAM-682031.
BY ADVS.
GEORGE POONTHOTTAM (SR.)
SMT.NISHA GEORGE
SRI.JOHN VARGHESE
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682031.
2 JOSHY VARGHESE,
AGED 56 YEARS, S/O.VAREEDH, THELAKKADAN HOUSE,
MALAMURIBHAGATH, PULLUVAZHUKARAYIL, RAYAMANGALAM
VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT-683541.
BY ADVS.
SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER
SRI.V.RAJENDRAN (PERUMBAVOOR)
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
30.07.2021, ALONG WITH Crl.MC.8936/2019 AND CONNECTED CASES, THE
COURT ON 12/08/2021 DELIVERED THE FOLLOWING:
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
CRL.MC NO. 9115 OF 2019
(AGAINST C.C NO. 632/2019 OF JFCM COURT, KAKKANAD, ERNAKULAM)
PETITIONER/3RD ACCUSED:
SAJU VARGHESE
AGED 42 YEARS
S/O. JOHN VARGHESE, GOLDEN OAK VILLA, PADAMUGAL,
KAKKANAD, KOCHI-680 030.
BY ADV K.V.SABU
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM – 682 031
2 JOSHY VARGHESE
AGED 56 YEARS
S/O. VAREETH, THELAKKADAN HOUSE, MALAMURI, PULLUVAZHY
P.O., PERUMBAVOOR, RAYAMANGALAM VILLAGE, KUNNATHUNADU
TALUK, ERNAKULAM DISTRICT -683 542
BY ADVS.
SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER
SRI.V.RAJENDRAN (PERUMBAVOOR)
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
30.07.2021, ALONG WITH Crl.MC.8936/2019 AND CONNECTED CASES, THE
COURT ON 12/08/2021 DELIVERED THE FOLLOWING:
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
8
CR
ORDER
A batch of seven cases have come up in relation to
the alienation of properties purportedly belonging to
Syro Malabar Church viz, Crl.M.C.Nos.8936/2019,
205/2020, 1409/2020, 1414/2020, 2136/2020, 2138/2020 and
9115/2019.
2.One Joshy Varghese had filed a complaint in
C.M.P.No.5003/2018 before the Judicial First Class
Magistrate, Kakkanad alleging commission of offences
under Section 120 B, 406, 409, 418, 420, 423, 465, 467,
468 and 34 IPC against the Major Archbishop of Syro
Malabar Church and another. After preliminary enquiry in
terms of Section 202 Cr.P.C., the Magistrate took
cognizance under Annexure A2 order and issued summons to
the petitioner for the offences coming under the purview
of Section 120 B, 406, 423 r/w Section 34 IPC. A revision
was preferred against Annexure A2 order before the
Sessions Court, Ernakulam under Section 397 Cr.P.C. in
Crl.R.P.No.20/2019. The learned Sessions Judge dismissed
the revision under Annexure A3 order. It is against the
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
9
aforesaid two orders and to quash the entire proceedings,
the petitioner Cardinal Mar George Alencherry, the Major
Archbishop of Syro Malabar Church challenged under
Section 482 Cr.P.C. in Crl.M.C.No.8936/2019.
3.Crl.M.C.Nos.205/2020, 1409/2020, 1414/2020,
2136/2020 and 2138/2020 were filed by Cardinal Mar George
Alencherry with respect to the complaints in which he is
the accused. It is submitted that the first complaint at
Maradu was numbered as C.M.P.No.2/2018 wherein the
learned Magistrate had directed the complainant to
examine further witnesses on his behalf and this was
challenged by the complainant before this court and the
same ended in dismissal. The said matter is still pending
consideration before the Magistrate.
4.It is submitted that the complaint preferred by
Sri. Joshy Varghese before the Judicial First Class
Magistrate Court, Kakkanad, is by concealing the earlier
complaint before the Judicial First Class Magistrate
Court, Maradu, in C.M.P.No.2/2018 on the same set of
facts and cause of action which is still pending
consideration.
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
10
5.One Mr. Polachan Puthupara had approached the
Chief Judicial Magistrate, Ernakulam, based on the very
same set of facts and allegation as per Annexure -10
complaint, which was dismissed by the Chief Judicial
Magistrate, Ernakulam, on the ground that the issue
involved is of civil nature by Annexure A6 order.
6.Yet another complaint was filed before the Chief
Judicial Magistrate Court, Ernakulam, in Crl.M.P.
No.820/2010 by one Pappachan Varghese predicted on the
same set of facts which was referred under Section 156(3)
Cr.P.C. Consequently a crime was registered. But it was
referred by the police on the ground of mistake of facts.
7.The Central Crime Branch Police, Ernakulam,
launched a thorough investigation by examining 83
witnesses including the 36 persons who had purchased
various properties and concluded the investigation
stating that internal rules governing the administration
of diocese were duly complied with both by their
Financial Committee and Consulters Forum at each stage of
transaction and a closure report Annexure A7 was
submitted.
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
11
8.One Shine Varghese had approached the Central
Police Station, Ernakulam, directly by filing a complaint
based on the same set of allegations and approached this
court seeking a mandamus for registration of crime in
which a direction was issued by this court, but it was
reversed in appeal based on which investigation was
conducted and a closure report was submitted by the
police.
9.The dispute pertains to the execution of various
sale deeds in respect of properties held by the Syro
Malabar Church, a religious congregation allegedly
without compliance of the requirements as per the byelaws
of the Church causing heavy financial losses to the
church and its parishioners. Inter alia, it has been
contended that all these sale deeds are the result of
criminal conspiracy hatched between the petitioner in
collusion with his henchmen and the persons who had
purchased the properties. He had also availed a loan of
Rs.58.2 crores from South Indian Bank without initiating
any discussion or arriving at any decision as per the
provisions of Canon law and the law in force.
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
12
10.The petitioner came up to quash the complaint
and Annexure A2 and A3 orders mainly on the reason that,
what is involved is only a civil dispute and no criminal
liability can be superimposed and that earlier a
complaint had been lodged before the Judicial First Class
Magistrate, Maradu and as such, it is not permissible to
file another complaint (Annexure A4) for the very same
subject matter and that too, without revealing the
earlier one.
11.Crl.M.C.No.9115/2019 is filed by one Saju
Varghese, accused No.3 in the abovesaid case. The
contentions raised are similar and analogous in nature.
12.Crl.M.C.No.2138/2020 was filed by the Cardinal
Mar George Alencherry under Section 482 Cr.P.C. to quash
the order dated 13/2/2020 in Crl.M.P.No.5015/2018 (C.C.
No.94/2020 of the JFCM, Kakkanad, Ernakulam District),
where the very same questions were taken up.
Crl.M.C.No.2136/2020 is against the order dated 13/2/2020
in Crl.M.P.No.5009/2018 (C.C.No.93/2020 of the same
court). Crl.M.C.No.1414/2020 is against the order dated
20/1/2020 in Crl.M.P.No.5011/2018 of the same Court.
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
13
Crl.M.C.No.1409/2020 is against the order dated 20/1/2020
in Crl.M.P.No.5013/2018 of the same court.
Crl.M.C.No.205/2020 is against the order dated 5/11/2019
in Crl.M.P.No.5005/2018 (C.C.No.1886/2019 again of the
same court).
13.For the sake of convenience, Crl.M.C.No.
8936/2019 is taken as the leading case. The dispute
pertains to the alienation of properties belonging to
Syro Malabar Church. It is an indubitable and undeniable
fact that the Syro Malabar Church is an Episcopal
Institution and not a Congregational Institution and as
such the Bishop of Archdiocese has the right to alienate
and dispose of its properties subject to the restrictions
imposed under their byelaw(s). Inter alia, it was
contended that even the restriction imposed under the
byelaw was not complied with and the properties were
alienated for a pittance and in one case, a fraudulent
device was used so as to give a veneer that the entire
consideration was paid though what was actually was
barely 1/10
th
of the agreed amount. It was further
contended that the properties held by the Syro Malabar
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
14
Church through their Archdiocese Bishop, the petitioner
herein, was for the benefit of all parishioners.
14.Paragraphs 13, 16 and 17 of the complaint
brought to the notice of this court in support of the
argument that the complainant had full knowledge about
the properties and the number of documents executed while
preferring seven separate complaints before the Judicial
First Class Magistrate Court, Kakkanad, by segregating
the properties into seven for maintaining separate
complaints by taking shelter under Section 219 Cr.P.C.
and in derogation of Section 178(d) Cr.P.C.
15.It is submitted that the complaint filed in the
Court at Kakkanad is with respect to the allegation of
sale of two properties under two sale deeds viz. Sale
Deed No.3376/2016, dated 31.10.2016 and Sale Deed
No.2180/2017, dated 23.08.2017 and a second complaint
based on the same set of facts and transactions is not
maintainable and took substantiation from two decisions
of Supreme Court – Hira Lal & Others vs. State of Uttar
Pradesh & Others [2009 (11) SCC 89], Samta Naidu &
another v. State of Madhya Pradesh & another [2020 (5)
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
15
SCC 378, Pramatha Nath Talukdar v. Saroj Ranjan Sarkar
( AIR 1962 SC 876) and Mahesh Chand v. B.Janardhan Reddy
& another [(2003) 1 SCC 734] . It has been further
submitted that a second complaint really amounts to forum
shopping based on the decisions of the Apex Court in
Rajiv Bhatia v. Govt. of NCT of Delhi and others [(1999)
8 SCC 525], Arathi Bandi v. Bandi Jagadrakshak Rao &
others[(2013) 15 SCC 790:(2014) 5 SCC (Civ) 475], World
Tanker Carrier Corporation. v. SNP Shipping Services
(P)Ltd and others [(1998) 5 SCC 310], Ambica Industries
v. Commissioner of Central Excise[(2007) 6 SCC 769],
Jagmohan Bahl and another v. State (NCT of Delhi) and
another [(2014) 16 SCC 501:(2015) 3 SCC (Cri) 521],
Udyami Evam Khadi Gramodyog Welfare Sanstha and another
v. State of U.P.and others[(2008) 1 SCC 560 : (2008) 1
SCC (Civ) 359] and in Supreme Court Advocates-on-Record
Association and another v. Union of India ( Recusal
Matter) [(2016) 5 SCC 808 : (2016) 3 SCC (Civ) 492 :
(2016) 3 SCC (Cri) 173 : (2016) 2 SCC (L& S) 253 . Inter
alia, it was contended that the Archbishop should be
considered as the “corporation sole” and the real owner
2021/KER/30968
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9115/2019
16
and not a mere trustee in regard to the property of
diocese, relying on the decisions of the Madras High
Court in Muthusamier and others v. Sree Sree Methanithi
Swamiyar Avergal and others [ (1913) SCC Online Mad 233 :
AIR 1916 Mad 332 : ILR (1915) 38 Mad 356 : (1913) 25 Mad
LJ 393]. Yet another argument was also advanced that
when money or property is entrusted with a person, it
would carry an implied authority making him the owner of
the property and relied on the decision of the Apex Court
in State of Gujarat v. Jaswantlal Nathalal (AIR 1968 SC
700). Reliance was also placed on Urmila Devi v. Yudhvir
Singh [(2013) 15 SCC 624] in support of the argument that
revisionary jurisdiction under Section 397 Cr.P.C. can be
exercised when Magistrate decides to take cognizance for
the offence alleged and to issue summons under Section
204 Cr.P.C., which would be an order intermediary or
quasi final in nature and not interlocutory. Mehmood Ul
Rehman v. Khazir Mohammad Tunda and Others [(2015) 12 SCC
420] and National Bank of Oman v. Barakara Abdul Aziz and
another [(2013) 2 SCC 488) were also cited regarding the
application of mind by the Magistrate while taking
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9115/2019
17
cognizance and prima facie satisfaction, for which
another decision of the Apex Court in Chandra Deo Singh
v. Prokash Chandra Bose & others[(1964)(1) SCR 639] was
also quoted. The facts involved in Hiralal's case and
Samta Naidu's case (supra) are entirely different from
that of the issue involved in the instant case, wherein
there are different transactions with respect to the
properties situated within the jurisdiction of two
courts, i.e Judicial First Class Magistrate at Maradu and
Kakkanad. The mere fact that there is a disclosure of
similar transaction in consonance with the allegation
levelled in a complaint with respect to certain other
properties may not by itself be a bar in maintaining an
action based on a similar transaction. Section 178
Cr.P.C. is an enabling provision to try or enquire into a
complaint when the alleged offences were committed in
several local areas fall under different jurisdiction and
it can be enquired into and tried by the court having
jurisdiction over any of such local areas. Section 178
Cr.P.C. is not an embargo to maintain different
complaints at different areas. On the other hand, Section
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
18
219 Cr.P.C. is a restriction in trying more than three
cases in one trial provided that it should be within a
period of twelve months. Necessarily, three separate
cases alone can be tried together, if it is within a
period of one year in single trial. A conjoint reading
of Sections 219 and 178(d) Cr.P.C. would show that it is
permissible to maintain different complaints with respect
to separate cases spanning over one year. The cases
involved covered by the different complaints would
sufficiently show that it was committed at different
occasions spanning over more than one year. The decision
rendered by the Apex Court in Hiralal's case (supra)
pertains to submission of a second complaint under
Section 156(3) Cr.P.C. after the culmination of earlier
one which was rejected by a reasoned order, and confirmed
by way of a revision. The factual and legal scenario
involved in Hiralal's case (supra) hence cannot be
applied in the present case. In fact, a second complaint
is not completely barred in law. The Apex Court in
Mahesh Chand v. B.Janardhan Reddy and another((2003) 1
SCC 734) laid down the legal position that a second
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complaint can be maintained only on fresh facts and/or if
a special case is made out therefor, thus :-
K“eeping in view the settled legal
principles, we are of the opinion that the
High Court was not correct in holding that
the second complaint was completely barred.
It is settled law that there is no statutory
bar in filing a second complaint on the same
facts. In a case where a previous complaint
is dismissed without assigning any reasons,
the Magistrate under Section 204 Cr.P.C. may
take cognizance of an offence and issue
process if there is sufficient ground for
proceeding. As held in Pramatha Nath
Talukdar Case (AIR 1962 SC 876) second
complaint could be dismissed after a
decision has been given against the
complainant in previous matter upon a full
consideration of his case. Further, second
complaint on the same facts could be
entertained only in exceptional
circumstances, namely, where the previous
order was passed on an incomplete record or
on a misunderstanding of the nature of
complaint or it was manifestly absurd,
unjust or where new facts which could not,
with reasonable diligence, have been brought
on record in the previous proceedings, have
been adduced. In the facts and
circumstances of this case, the matter,
therefore, should have been remitted back to
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the learned Magistrate for the purpose of
arriving at a finding as to whether any case
for cognizance of the alleged offence had
been made out or not.”
16.The very same view was taken by another Bench of
the Apex Court in Samta Naidu's case (supra), wherein it
was held that the dismissal of a complaint, or the
discharge of the accused, is not an acquittal for the
purposes of Section 300 Cr.P.C., which debars trial of a
person who has been tried by a court of competent
jurisdiction for an offence and convicted or acquitted of
such an offence. Section 300 Cr.P.C. has no application
in the present case and as such, though the legal
position settled in tune with what is held in Mahesh
Chand's case (supra) is standing on different pedestals
governing different areas of litigation. The bar under
Section 300 Cr.P.C. comes into play only when there is
culmination of trial by a competent court resulting in
acquittal or conviction.
17.There is not much dispute with respect to the
fact that the Syro Malabar Church is an Episcopal
Institution headed by Bishop of Archdiocese, the
petitioner herein and as such it was argued that the
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Bishop of the Archdiocese will have all authority over
all spiritual and temporal affairs concerning Syro
Malabar Church and that they are governed by Canon law
and their constitution (byelaw)even in the matter of
alienation of immovable properties and that the
parishioners will not get any authority or locus standi
to challenge any such alienation and transfer and cannot
maintain any criminal action pertaining to those matters
and hence all the criminal complaints amount to abuse of
process of the court and are liable to be quashed.
18.To resolve the abovesaid issue pertaining to the
authority to deal with the property and exclusive right
claimed challenging even the status of complainant and
competency to maintain complaints of this nature, it is
necessary to go into the alleged authority of the
Archbishop, though at the most the same would constitute
either a civil wrong with its legal consequences and
repercussions and there should be an understanding of
what actually amounts to spiritual and temporal matters
in relation to Episcopal church and the concept of
“Government of temporalities of the church” in relation
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to spiritual, ecclesiastical and temporal affairs of the
church and whether the execution of the various sale
deeds by the petitioner Archdiocese Bishop would come
within the ambit of either spiritual or ecclesiastical or
temporal affairs of the church in relation to the Canon
law and the theory of apostolic succession of Jesus
Christ. The Apex Court had considered the application of
'Canon' law in Most Rev.P.M.A.Metropolitan and others v.
Moran Mar Marthoma and Another (1995 Supp (4) SCC 286)
and laid down as under:
“ Canon is explained in Black's Law
Dictionary as under :
'A law, rule or ordinance
in general, and of the church
in particular. An
ecclesiastical law or statute.
A rule of doctrine or
discipline. A criterion or
standard of judgment. A body
of principles, standards,
rules, or norms'.
Canon means both a norm and attribute
of the scripture. The term 'Canon law' is
explained in the Encyclopedia of Religion,
Vol. 3, as under:
'The term canon is based
on the Greek word Kanon.
Originally signifying a
straight rod or bar, especially
one used to keep something else
straight, canon came to mean
something that is fixed, a rule
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or norm. The term has several
applications in church
usage:the canon of scripture,
or that fixed list of books
that are determined to belong
to sacred scripture;the canon
of the Mass, the fixed portion
of the eucharistic prayer; the
process of declaring a deceased
person to be among the fixed
list of saints in heaven, or
canonisation. From the third
century, directives for church
living and norms for church
structures and procedures have
been issued as canons.
Canon law refers to the
law internal to the church. In
the early centuries of
Christianity, canon was used
for internal church norms, to
distinguish them from the
imperial nomos (leges in Latin)
or laws. Church norms have also
been known as sacred or divine,
to distinguish them from civil
or human laws. At times they
are referred to as the 'sacred
canons' or the 'canonical
order'. The term ecclesiastical
law is used synonymously with
Canon law, although at times
ecclesiastical law also refers
to the civil law adopted in
various nations to regulate
church affairs. The term Canon
law is used in the Roman
Catholic, Anglican, and
Orthodox communions.
Canon law is drawn from
sources in scripture, custom
and various decisions of church
bodies and individual church
authorities. Over the
centuries these have been
gathered in a variety of
collections that serve as the
law books for various
churches.'
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Canons are thus the principal
scriptural bases for the religious
practices observed in a Church.”
19.Thus, there cannot be any difference of opinion
with respect to application of Canon law, which is
limited to religious practices observed in a church. A
Division Bench of the Apex Court in Varghese v.
St.Peter's & Paul's Syrian Orthodox Church (2017 3 KLT
261 (SC)) followed by the judgment in Most
Rev.P.M.A.Metropolitan 's case (supra) had drawn a clear
distinction between an Episcopal church and a
Congregational church regarding the spiritual and
temporal affairs and laid down the legal position thus:
“The essential features of congregationalism
are stated to be the autonomy or independence of
the individual churches or organisations, though in
matters in which the individual charges are
interested as a whole and in order to enable the
churches to effectively fulfil their
responsibilities, they may enter into unions.
Congregationalism is stated to be the opposite of
Episcopacy which means Government of the Church by
the Bishops on the theory of apostolic succession.
In other words, the Bishops are supposed to be the
successors of the apostles of the Christ. The
congregationalists believe that every Christian has
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the right to perform all functions pertaining to
the priestly office and permits the laymen to
celebrate sacraments whereas in Episcopal Churches
only the ordained priests can celebrate
sacraments.”
20. The Apex Court has gone through the words
“spiritual” and “temporal” while dealing with the
authority of Episcopal and Congregational Institutions
and took references from various tests such as Bhagavat
Gita, Ishopanishad etc. in reference to the application
of Articles 25 and 26 of the Constitution of India and
the protection thereunder. In Sardar Syedna Taher
Saifuddin Saheb v. The State of Bombay [(1962) Supp
(2)SCR 496] it is held that the protection of Articles 25
and 26 is not limited to the matters of doctrine, but
extends to acts done in pursuance of religion and
therefore contains a guarantee for rituals, observances
and ceremonies and modes of worships, which are integral
parts of religion. There is no dispute with respect to
the aforesaid proposition, but the said guarantee does
not extend to appointment of Vicars/priests, deacons
etc..
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21.One of the questions that came up before the
Apex Court in Varghese's case (supra) is whether the
Malankara Orthodox Church is an Episcopal church governed
by its 1934 constitution and whether a scheme has to be
framed for its management. The distinction between an
Episcopal church and Congregational church was taken into
consideration and it was found that the spiritual
supremacy of patriarch or apostolic succession in the
appointment of vicars/priests, deacons etc. in
contravention of 1934 constitution is not permissible,
but nonetheless recognized its over all supremacy. Being
an Episcopal church, it was held that Malankara
Metropolitan has the prime jurisdiction regarding
temporal, ecclesiastical and spiritual administration of
the church, subject to the riders provided in the 1934
constitution.
22.By relying on the legal position settled by the
Supreme Court, it was submitted that the Bishop of the
Archdiocese of Syro Malabar Church, who is governed by
their own constitution, the byelaw, has the right to
alienate the property belonging to the church, but
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subject to the caveat provided in the byelaw (its
constitution). Under Section 482 Cr.P.C., this Court
cannot conduct a roving enquiry with respect to disputed
matters. But at the same time, based on the admitted
facts, it is within the jurisdiction of this court to go
into the acts of the petitioner and whether it would
prima facie satisfy the commission of offence alleged in
the complaint, for which, it is necessary to find out
what are the powers, authorities and the rights of the
Bishop of Archdiocese over the properties held by the
church and what makes the difference in the authority, if
any, between Congregational and Episcopal church in its
spiritual, ecclesiastical and temporal rights in contrast
with the right of alienation and transfer of immovable
property, what would be the legal position when there is
provision in the bye-law or its constitution to be
complied with for effecting an alienation and transfer of
immovable properties, what would be the application of
Canon law in those matters and whether there is creation
of implied public trust with respect to the properties
held by the church.
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23.Going by the decision rendered by the Apex Court
in the abovesaid two cases, it is clear that in an
Episcopal church, the prime authority is vested with the
spiritual head, the Bishop of Archdiocese regarding
temporal and spiritual affairs of the church and they are
governed by the ecclesiastical law viz.,the Canon law to
the extent of spiritual and temporal affairs of the
church based on the theory of apostolic succession of
Jesus Christ. When the words “spiritual”, “temporal” and
“ecclesiastical” as understood by the Apex Court in the
abovesaid decision are taken into consideration, it is
clear that it will not include the right to alienate the
property vested in endowment. The religious supremacy
vested with the Bishop or apostolic succession should be
understood confined to religious matters both temporal
and spiritual governed by ecclesiastical law viz., the
Canon law.
24.The expression “temporal” shall not be
misunderstood so as to include a right of alienation of
an immovable property held by the church, though its
constitution provides provision for its alienation. Those
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clauses and provisions which would satisfy either
temporal or spiritual affairs of the church in consonance
with the divine Canon law and the theory of apostolic
succession alone can be considered within the supremacy
of the Bishop of an Episcopal church, governed by
ecclesiastical law viz., Canon law. The other clauses
included in their constitution/byelaw governing
alienation of immovable properties, will not come under
either spiritual or temporal rights based on the theory
of apostolic succession and hence the ecclesiastical law-
Canon law cannot be applied in derogation of the
requirement of the general law, when the property held is
either in endowment or in trust.
25. The user of the words “vesting in endowment
with respect to property of church and not the
parishioners” by the Apex Court in Most Rev.
P.M.A.Metropolitan's case (supra) while dealing with the
distinction between Episcopal church and Congregational
church should be understood in relation to the religious
supremacy vested on the religious head based on the
theory of apostolic succession of Jesus Christ and
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confined to spiritual, ecclesiastical and temporal
affairs of the church. This would show that the
expression “vesting in endowment” is not a vesting of
property in contra distinction with that of a private
person, but should be understood as the vesting of the
property in endowment based on the theory of apostolic
succession and would confine itself to spiritual,
ecclesiastical and temporal affairs of the church. If
that be so, it must be the property available with or
held by the church in connection with their religious
rituals, observances, ceremonies and places of worship,
which would form an integral part of religious
observances based on the theory of apostolic succession.
This would make the legal position clear that such
property cannot be alienated or transferred and even
cannot be encumbered since the same forms an integral
part of the religious faith and observances. Hence,
“vesting in endowment” has only a limited meaning
concerning holding of authority over the properties held
by the Church for the purpose of religious observances
and worship, which would form an integral part of the
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religious faith and beliefs. So there cannot be any
question regarding sale or alienation of any immovable
property, which is the subject of religious rituals and
observances and place of worship. Necessarily, it must be
understood that the right to alienate the property or
transfer of property would not arise in relation to
observances and worship connected with spiritual,
ecclesiastical and temporal affairs of the church and the
“vesting in endowment” must be understood as related to
within the contours of abovesaid spiritual,
ecclesiastical and temporal affairs of the church. The
appellation “endowment” always tends to refer to a trust
either for a public charity or a private trust. A trust
and an endowment are different concepts altogether.
Trust is an obligation annexed to ownership. The word
'trust' is defined in Underhill's Law of Trust and
Trustees, to mean equitable obligation binding a person
to deal with property, for which he has control for the
benefit of persons for whom he himself may be one. The
word 'endowment' defined in the Legal Thesaurus as
aid,allotment,allowance, protection, assistance, award,
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benefit, bestowment, contribution, presentation and the
like. The Apex Court in Pratapsinghji N Desai v. Deputy
Charity Commissioner, Gujarat and others (AIR 1987 SC
2064) held that endowment is dedication of property for
purpose of religion or charity having both the subject
and object as certain and capable of assessment.
26.The expression “vest” must be understood in
relation to a right or an interest in the property when
it is secured. This would make the meaning of the word
“vesting in endowment” which would stand for securing the
property for specific purpose for which it was endowed
and in the case of Episcopal church, this can only be
treated as securing the property for the purpose of
spiritual, ecclesiastical and temporal affairs of the
church based on the theory of apostolic succession. That
does not mean that they have the right to alienate the
property in derogation of the purpose for which the
property was endowed. Necessarily, the purpose of
Episcopal church should and must be understood confined
to the spiritual and temporal affairs of the church based
on the theory of apostolic succession and observance of
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religious rites. It does not include a right to alienate
the property or to use the same for any other purpose,
other than the purpose based on the theory of apostolic
succession, both spiritual and temporal affairs of the
church. The word “temporal” has only a limited meaning in
the case of church based on theory of apostolic
succession and it must be understood as an inseparable
part, an affair of the church in the administration of
religious observances and spiritual affairs. In all other
matters, especially in the matter of transfer or
alienation of immovable property, it would stand outside
the scope of spiritual, ecclesiastical and connected
temporal affairs.
27.Regarding the legal and jural status, there
cannot be any separate legal or jural entity to the
observances of spiritual and ecclesiastical matters based
on the theory of apostolic succession of Jesus Christ
viz., the Bishop of the Archdiocese and those who follow
the faith and its theory. It is perfectly spiritual and
ecclesiastical in its nature and what is vested with the
Bishop of the Archdiocese based on the theory of
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apostolic succession is the supremacy of faith, belief,
religious observances based on the said theory and
control,supervision and administration of its own affairs
pertaining to apostolic succession, faith, belief and
religious observances and it would include even the
appointment,control and administration of priest,
deacons, vicars and those who are involved in and are
closely connected with spiritual and religious
observances and maintenance, protection, upkeep of places
of worship under the said theory. It is purely spiritual
and ecclesiastical concept based on the theory of
apostolic succession and as such, the same is not
governed by any general law, but purely by the personal
law viz., the provisions of Canon law. In so far as the
other properties are concerned, either held or possessed
by the church, which is not the subject of any religious
observances or places of worship based on the theory of
apostolic succession and the concept thereof, it must be
understood that the possession, right, title over the
properties would stand governed by the general law and
not by the Canon law, for which, a separate legal entity
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to the person who holds the property has to be recognized
in relation to the general law applicable. The theory of
apostolic succession does not permit sale or transfer of
immovable property, presumably for the reason that there
cannot be any sale or transfer of a place of worship. If
any property is subjected to a sale or transfer, it would
stand outside the scope of religious or spiritual
observances or a place of worship and the theory of
apostolic succession and religious supremacy cannot be
applied as such. Hence there would be an implied creation
of a public trust regarding the other properties which
are not the subject of religious faith,belief or
observances or the place of worship for the benefit of
parishioners, since a section of people would also come
under the ambit of term “public”. Thus, it is the nature
of the property that validates and decides the legal
status of the property and the person, who is holding
possession or title of the property. The Canon law or the
Constitution, which was either adopted or evolved in
course of time in the administration and observance of
spiritual, religious, ecclesiastical and temporal
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affairs, hence cannot be applied to matters which stand
outside its purview. Necessarily, those properties held
in public trust would stand amenable to Section 92
C.P.C., except clauses (a) to (c) and (cc) to sub-section
(1) dealing with temporal affairs. The remaining part
i.e. (d) to (h) of Section 92(1) C.P.C. dealing with
“corporeal” rights will retain its application.
28.In the case of religious endowments of a public
nature, to which the Religious Endowments Act applies, a
suit charging the trustee, manager, superintendent or a
member of a committee of a mosque,temple or religious
establishment with misfeasance, breach of trust or
neglect of duty, may be brought under the provisions of
that Act or it may be brought under the provisions of the
Code as provided by Section 92 of the Code. This would
make the legal position amply clear that Section 92
C.P.C. would come into the picture in the absence of a
parallel provision covered by any Endowment Act. The
Canon law being the law pertaining to spiritual and
ecclesiastical matters cannot be supplanted in place of
an endowment legislation so as to exclude the application
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of Section 92 C.P.C. or in substitution of that section.
It is so unfortunate that no endowment legislation so far
enacted to address the various issues connected with the
legal status of church authorities in so far as the
properties which are held not as part of their religious
belief, faith or observances and to even address the
legal status of a charitable institution run by the
church authorities.
29.By taking support from the decision of the
Constitution Bench of the Apex Court in Chairman Madappa
v. M.N.Mahanthadevaru and others [(1966) 2 SCR 151 : AIR
1966 SC 878], it was argued that Section 92 C.P.C. is an
enabling provision and not a compulsory requirement for
effectuating any sale or transfer of property held in
trust. What was considered and held by the Apex Court
regarding the application of clause (f) to Section 92(1)
C.P.C. are the practical difficulties that may be
encountered, if it is strictly complied with in the
management of trust and its requirements and it was held
that when there is no prohibition to sell, mortgage or
exchange it in the trust deed relating to a public trust,
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it will not circumscribe the powers of trustees to carry
on ordinary administration of trust property and to deal
with it in such manner as they think best for the benefit
of the trust. But there may be other situations where it
might be necessary to alienate trust property which may
require sanction of the court under clause (f) of
Section 92(1) C.P.C.. But in the instant case, even the
petitioner has no case that they themselves constitute a
trust of public nature or religious nature. On the other
hand, the firm stand taken by the petitioner is that
being the spiritual head, he is bound by Canon law alone
and not the general law with respect to right of
alienation or transfer of immovable properties held by
the church. But as adumbrated above, the properties which
were held in trust by the church for the parishioners
would constitute a public trust, for which there is no
written trust deed or any specific understanding to that
effect except their constitution and the provisions
contained in the Canon law. Interestingly, in their
constitution (byelaw), nothing has been mentioned or
recognized regarding any trust presumably for the reason
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that it was codified only for the purpose of meeting the
spiritual, ecclesiastical and temporal affairs of the
church and not to deal with any public trust or trust
property. There is no provision anywhere in the byelaw
authorising or empowering any person to hold any property
in trust. In the instant case, since there is no written
constitution dealing with affairs of public trust or
trustees, but only presupposes albeit tangentially an
implied public trust, without conferring any authority to
any particular person either as a trustee or otherwise,
the legal position settled by the Constitution Bench of
the Apex Court in Chairman Madappa v. M.N.Mahanthadevaru
and others [(1966) 2 SCR 151 : AIR 1966 SC 878] cannot be
applied, firstly on the reason that all these sale deeds
were executed deviating from the scope and purpose of the
Episcopal church by ostensibly establishing a Medical
College Hospital with the objective of a charitable
intent. Secondly on the ground that there is no written
trust deed either appointing or authorising any
particular person as trustee or recognizing its powers
and authorities over its assets.
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30. The right to alienate the property shall not be
allowed to be misconstrued as the authority or be
regarded as an offshoot of the right to hold, possess and
administer the property. The expression “temporal” may
include the authority to hold, possess and administer the
property, but not to alienate the same. The expression
“corporeal” must be understood in relation to “temporal”
and “spiritual” right in contra. The word “corporeal”
stands for “that can be touched, physical, rather than
spiritual (Oxford Advanced Learner's Dictionary).
31.The word “corporeal”, “corporal hereditament”
and corporeal property are defined in P.Ramanatha Aiyar's
Advanced Law Lexicon 4
th
edition as follows:
“”corporeal” - Things which may
be seen and touched;material (as)
corporeal hereditaments
CORPOREAL distinguished from
CORPORAL. Corporeal means
possessing a body, that is tangible,
physical, material; corporeal means
relating to or affecting a body that
is bodily external. Corporeal
denotes the nature or physical
existence of a body, corporeal
denotes it exterior or the co-
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ordination of it with some other.
Hence we speak of 'corporeal
hereditaments' but of corporal
punishment.
Corporal hereditaments –
consists whole or substantial and
permanent objects, all which may be
comprehended under the general
denomination of land only.
Corporeal hereditament : A
material object in contrast to a
right. It may include land,
buildings, mineral, trees or
fixtures.
Corporeal property : such as
affects the senses, and may be seen
and handled as opposed to
incorporeal property, which cannot
be seen or handled and exist only in
contemplation. Thus a house is
corporeal, but the annual rent
payable for its occupation is
incorporeal. Corporeal property is,
if movable, capable of manual
transfer: immovable, possession of
it may be delivered up. But
incorporeal property cannot be so
transferred, but some other means
must be adopted for its transfer, of
which the most usual is an
instrument in writing.
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Property which has a physical
existence, such as land or goods.”
32.The right to transfer a property asseverated by
the church has not come up for consideration before the
Apex Court in Varghese v. St.Peter's & Paul's Syrian
Orthodox Church (2017 3 KLT 261 (SC)) and in Most
Rev.P.M.A.Metropolitan and others v. Moran Mar Marthoma
and Another (1995 Supp (4) SCC 286) . In that case, though
the Apex Court upheld Malankara Orthodox Church as an
Episcopal church, nothing was mentioned suggesting an
exclusion of the application of Section 92 C.P.C. and
the relief of settling a scheme was not granted as there
was sufficient provision in their 1934 constitution for
the proper administration. That does not however imply
that Section 92 C.P.C. stands excluded.
33.There cannot be any tinkering of the
constitution or byelaw regarding any public, charitable
or religious trust either constructive or express in
substitution of clause (d) to (g) of sub-section (1) of
Section 92 C.P.C., unless the institution is excluded by
the reason of its character as an endowment covered by
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other parallel legislations viz. various Endowment Acts.
The observation made by the Apex court in Varghese's case
(supra) has to be considered so as to have a better
understanding of the scope and impact of Section 92
C.P.C. even in the case of Episcopal institutions. The
relevant portions of the judgment run as follows:
“FRAMING OF SCHEME UNDER SECTION 92 OF THE
CIVIL PROCEDURE CODE
We are also not impressed by the
submission that the court should direct framing
of a scheme under S.92 CPC in view of the
decision of the Privy Council in Mohd. Ismile
Ariff v. Ahmed Moolla Dowood ( 43 IA 127 (PC))
in which it has been held that the court has
the power to give direction and lay down rules
that may facilitate the work of management and
the appointment of trustees in the future. The
primary duty of the Court is to consider the
interest of the general body of the public for
whose benefit the trust is created. Reliance
has been placed by Shri S.Divan, learned senior
counsel on Acharya Shri Shreepati Prasadji
Barot Laxmidas 33 CWN 352 (PC) that the
institutional trust must be respected by the
sect and the body of worshippers for whose
benefit it was set up to have the protection of
the court against their property being subject
to abuse speculation and waste. Reliance was
also placed on Ram Dularey v. Ram Lal (AIR 1946
PC 34) in which it has been laid down thus:
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“Even if there were an
inconsistency in that judgment,
their Lordships would be very slow
to disturb the safeguards which are
provided in that scheme, if their
Lordships found it necessary to
reconsider the scheme:but in their
view the scheme has been definitely
approved by the Chief Court and they
see no reason for interfering with
the judgment. It has to be
remembered that in these cases the
Court has a duty, once it finds that
it is a trust for public purposes to
consider what is best in the
interests of the public. That is
made abundantly clear by the
judgment of this Board, delivered by
Mr.Ameer Ali, in Mahomed Ismail
Ariff and others v. Ahmed
MoollaDawood and another ( 43 IA
127: 43 Cal.1085: 4 LW 269 (P.C.)”
In our opinion there is no necessity of
framing any scheme under S.92. There are adequate
provisions and safeguards provided in S.92 for
managing the Malankara Church and its properties.
There is no dispute with the proposition laid down
in the aforesaid decisions but we find no such
necessity for framing such scheme under S.92 CPC in
view of detailed wholesome provisions of 1934
Constitution.”
34.Even going through the constitution of the Syro
Malabar Church, it is clear that it evolved, gained
acceptance and was adopted canonically. It is evident
from the preamble attached to their constitution. The
sources of the present code are stated to be many and
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varied and there is ample recognition to “yogam” in its
triadic forms – potuyogam, desiyayogam and edavakayogam
as the system of administration in Section 2 of its
preamble, which would prima facie satisfy the existence
of a system of administration in its triadic form of
three yogams apart from the theory of apostolic
succession, which manifests existence of an implied
trust within the congregation presumably for managing and
dealing with “corporeal right” attached. The only
provision remotely connected with the right to alienate
or transfer any immovable property is included in title
XIV of Article 214, which is a restriction imposed and
not with respect to any “authority” given to any of its
apostolic custodians in the hierarchy. Article 214 is
extracted below for reference:
“Article 214. Alienation of property
exceeding an amount of Rupees ten lakhs/one
million (Rs.10,00,000) up to twenty-five
crores/two hundred and fifty million
(Rs.25,00,00,000) is to be done only with the
consent of the finance council and the college
of eparchial consultors. Alienation of property
that exceeds an amount of Rupees twenty-five
crores/two hundred and fifty million
(Rs.25,00,00,000) upto fifty crores
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(Rs.50,00,00,000) needs the consent of the major
archbishop who in turn needs the consent of the
permanent synod. Alienation of property above
Rupees fifty crores (Rs.50,00,00,000) can be
done only with the consent of major archbishop
who in turn needs the consent of the synod of
bishops.”
35.A mere perusal of Article 214 would clearly show
that it is an additional re quirement to be complied with
for effectuating a valid sale or transfer of immovable
property. No where it is stated with whom the ownership
or title of immovable property would exclusively vest
with, presumably for the simple reason that they are
bound by the general law regarding “corporeal” rights.
36.Establishment of a Medical College or any
educational institution though falling under the broad
spectrum of charity does not by itself qualify for any
diversion of funds or property for establishing a
charitable institution without satisfaction of conditions
enumerated in Section 92(3)C.P.C. , which are extracted
below for reference:
“(a)where the original purposes of the trust,
in whole or in part -
(i)have been, as far as may be,
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fulfilled; or
(ii) cannot be carried out at all, or
cannot be carried out according to
the directions given in the
instrument creating the trust or,
where there is no such instrument,
according to the spirit of the trust;
or
(b) where the original purposes of the trust
provide a use for a part only of the property
available by virtue of the trust; or
(c)where the property available by virtue of
the trust and other property applicable for
similar purposes can be more effectively used
in conjunction with, and to that end can
suitably be made applicable to any other
purpose, regard being had to the spirit of the
trust and its applicability to common purposes;
or
(d)where the original purposes in whole or in
part, were laid down by reference to an area
which then was, but has since ceased to be, a
unit for such purposes; or
(e)where the original purposes, in whole or
in part, have, since they were laid down -
(I)been adequately provided for by
other means, or
(II)ceased, as being useless or
harmful to the community, or
(III) ceased to be, in law,
charitable, or
(IV)ceased in any other way to provide
a suitable and effective method of
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using the property available by virtue
of the trust, regard being had to the
spirit of the trust.”
37.The abovesaid requirement has to be satisfied so
as to divert any fund or property for establishing or
maintaining any educational institution or charitable
organization deviating from the purpose for which the
church was consecrated. This question had never come up
before the Apex Court either in Most
Rev.P.M.A.Metropolitan 's case, in Varghese's case or in
Chairman, Madappa's case (supra). Hence, the requirement
to be complied with under Section 92(3) C.P.C. is
independent in its nature, though it was incorporated by
way of sub-section(3) and cannot be avoided.
38.This Court in Major Archbishop Angamaly and
Others v. P.A.Lalan Tharakan and Others(2016(3) KHC 359 =
2016(2) KLT 791 ) has not gone into the question of
creation of a public religious trust or endowment, but
has only considered the relevant aspect of spiritual and
temporal affairs among the Roman Catholics. The decision
arrived at by the Madras High Court in Muthusamier and
others v. Sree Sree Methanithi Swamiyar Avergal and
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others [ (1913) SCC Online Mad 233 : AIR 1916 Mad 332 :
ILR (1915) 38 Mad 356 : (1913) 25 Mad LJ 393] is not
applicable in the instant case as what was considered in
that decision is with respect to the “the properties
belonging to an “English Bishop” (a corporation sole
under the English Law) “including his savings from the
revenue of the benefic, devolve upon his legal
representatives or heirs” and not with respect to the
property held by the church.
39.Hence, the petitioner, who has sold the property
without the compliance of Section 92 and 92(3) C.P.C.
cannot seek shelter under the umbrella of their
constitution (byelaw) or the provisions contained in the
Canon law. The various sale deeds executed unilaterally
and arbitrarily transgressing Section 92 and 92(3) C.P.C.
would render his stand invalid and untenable at the
option of any of the parishioners to whom no notice was
given and no consent was obtained, since the property
sold is not a property of place of worship or religious
or spiritual observances. There is a clear breach of
trust by the petitioner in the execution of sale deeds
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in favour of various persons. The persons, who had
purchased the property, cannot take sanctuary pleading
ignorance of law when they had opted to purchase the said
property.
40.The criminal conspiracy between the petitioner
in connivance with the cohorts and those who purchased
the property further becomes more starkly evident from
the fact that there is no semblance of any transparency
in the alleged sales, though pertains to the property of
church. The sale deeds were executed without conducting a
public auction or public sale with notice to all
concerned including the parishioners and those intending
to purchase the property and thereby curtailed the right
to derive maximum consideration for the coffers of the
church solely for the purpose of giving the property to
certain selected persons at a throw away price
capriciously and at the whims and fancies of the
petitioner. This court can take judicial notice with
respect to the prevailing land value and market value of
prime lands of vantage points having road frontage and
national highway direct access. This would certainly show
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the extent of criminal conspiracy hatched with the
purchasers of the property.
41.Yet another fact was also brought to the notice
of this court so as to show the criminal conspiracy in
one particular sale deed (No.3373/1/2016 Annexure A1 in
Crl.M.C.No.8936/2019) wherein the entire consideration
of Rs.3,99,70,000/- (Rupees Three Crores Ninety Nine
Lakhs Seventy thousand)stated to be received by virtue of
transfer through a bank account, but no such
consideration was passed or tendered on the date of
execution and registration of the said sale deed. But
the amounts were given in piecemeal, that too, when it
was taken up by the complainant.
42.Another interesting fact also came to the notice
of this court with respect to the property obtained under
a settlement No.4950 dated 21.9.2007(Annexure A1 in
Crl.M.C.No.8936/2019). The settlement deed is seen
executed by a Religious Congregation of Brothers of the
Roman Catholic Community, Erattumugham P.O., Munnoorpilly
Kara, Karukutty village, Aluva Taluk, represented by its
duly constituted Power of Attorney Holder, Fr.Sebastian
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Vadakumpadan, as per General Power of Attorney registered
as No.177 of 2006 in Book IV Volume 132 at pages 21 and
22 of the Sreemoolanagaram Sub Registry. It seems to be
strange and unfortunately odd that the document of
acquisition of title over the property has not been
mentioned or even hinted anywhere in the document and was
kept in total darkness. On the other hand, they have
given a declaration that the property is free from all
encumbrances and liabilities and the settler has full and
absolute title and possession of the property without
divulging the acquisition of right, title or interest
over the property. A title or ownership over a property
can be obtained either (1) by voluntary action of the
owners (2) by virtue of decrees of civil court or by
revenue sales or (3) by succession. The very same
requirement is mentioned under Section 2 of Transfer of
Registry Rules, 1966 for effecting transfer of title in
revenue Registry. But nothing has been mentioned in the
settlement deed of the year 2007, how the
settler/executant acquired title or ownership over the
property either by means of a decree of court or
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voluntary action of its owners such as sale, gift,
settlement, will etc. or by succession. A declaration to
the effect that they have full absolute title and
possession over the property is not sufficient to create
any title or ownership of the property. Suppression of
material facts regarding the title and interest over the
property hence looms large and causes a reasonable doubt
whether it is a property owned by the public or the
Government or it is a puramboke land or a
no-man's land. It raises a reasonable doubt as to whether
it is the property of Government or a puramboke land and
whether the said settlement deed was created with the aim
to manipulate a document of title over the Government
land. If it is a property owned by the public at large
or the government or a puramboke land, it would cause
very serious legal repercussions especially, when there
are provisions in the Land Conservancy Act. All the sale
deeds were executed by the petitioner based on a self
declared title under the abovesaid settlement deed
without disclosing how right, title or interest over the
property has been acquired. Even during the course of
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argument, the learned Senior Counsel for the petitioner
Sri.George Poonthottam even went to the extent of
advancing an argument that it was not the property
belonged to the settler. There would arise yet another
doubt whether the said religious congregation is within
the religious supremacy of the petitioner - Major
Archbishop and the legal fiction in the execution of a
settlement deed in his favour, when the property is
otherwise vested in him, based on the apostolic
succession or held by him in trust. In the document, the
legal status of settler has not been mentioned. It is not
mentioned anywhere in the document whether the property
was mutated in the name of the executant of that document
and whether they were paying basic tax in respect of the
property. In short, the settlement deed No.4950 dated
21/09/2007 prima facie appears to be executed to
perpetuate encroachment over the Government or puramboke
land and to manipulate title over it. It is also not
permissible to accord sanctity to the encroachment by
assigning re-survey number in the name of the encroacher.
43.It is quite impermissible and illegitimate to
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convert a property of State Government or puramboke land
or public land to a private property based on possession
during the course of re-survey. Earlier,this court in
Cheriyanad Grama Panchayath v. State of Kerala and Others
(2019 (5) KHC 699) had gone into the said question and
the power of re-survey authorities to refix or fix any
boundary of landed property based on possession and
settled the legal position as follows:
“It is neither permissible nor advisable for
the resurvey authorities to refix the boundary
line of particular survey under the guise of
resurvey based on possession. No such power can
be vested with the resurvey authority and hence
what is done by them by refixing the boundary
based on possession can only be considered as
without any authority or exceeding the authority
vested with them. The resurvey authority cannot
exercise the jurisdiction of a Civil Court to fix
any boundary based on possession. The possession
is really a matter to be decided by a Civil Court.
The power vested with the survey authority under
Section 9 and Section 10 of the Act is relating to
record an undisputed boundary or to determine any
dispute of boundary with reasons.”
44.Hence it requires a proper and detailed enquiry
by the State Government and the investigating agencies
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thereunder and this court cannot shut its eyes to the
abovesaid facts, which could even be the tip of an
iceberg. Special mention is required at this juncture to
Section 7 of the Land Conservancy Act dealing with
punishment for unauthorisedly occupying the property of
the Government, which is extracted below:
“7. Punishment for unauthorisedly
occupying land which is the property of
Government.— Notwithstanding anything
contained in this Act,—
(a) whoever with the intention of using or
holding any land which is the property of
Government, whether poramboke or not, for any
non-Governmental purpose, unlawfully enters
or occupies such land shall be punishable
with imprisonment of either description for a
term which shall not be less than three years
but which may extend to five years and shall
also be liable to pay a fine which shall not
be less than fifty thousand rupees, but which
may extend to two lakhs rupees:
Provided that a person who is occupying any
Government land not exceeding 5 cents as on
the date of commencement of this Act and is
not having any other land in his name or in
the name of his family members and is having
any of the following documents in order to
prove that he was residing therein, namely,
record of rights or a ration card or an
electoral identity card issued in the address
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of such Government land which he is so
occupying or a proceeding assigning house
number to a building in such property or an
electric connection or a water connection,
issued by the competent authorities of the
Government or the Local Self Government
Institutions or the respective statutory
bodies, as the case may be, shall not be
considered as an unlawful occupant for the
purpose of imposing punishment;
(b) whoever, for the purpose of effecting
transfer of any land which is the property of
Government for consideration or otherwise—
(i) commits the offence of cheating by
fraudulently or dishonestly creating
documents ; or
(ii) makes or creates any forged document in
support of any claim or title to such land
shall be punishable with imprisonment of
either description for a term which shall not
be less than five years but which may extend
to seven years and shall also be liable to
pay a fine which shall not be less than fifty
thousand rupees, but which may extend to two
lakhs rupees ;
(c) Whoever being an officer entrusted with
the responsibility of reporting unlawful
occupation of land which is the property of
Government or of initiating action to remove
such unauthorised occupation fails to report
or to initiate action to remove such unlawful
occupation, shall be punishable with
imprisonment of either description for a term
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which shall not be less than three years but
which may extend to five years and shall also
be liable to pay a fine which shall not be
less than fifty thousand rupees, but which
may extend to two lakhs rupees;
(d) Whoever erects or causes to erect any
wall, fence or building or puts up or causes
to put up any overhanging structure or
projection, whether on a temporary or
permanent basis in contravention of sub-
section (2) of section 5, shall be punishable
with imprisonment of either description for a
term which shall not be less than one year
but which may extend to two years and shall
also be liable to pay a fine which shall not
be less than ten thousand rupees, but which
may extend to twenty five thousand rupees and
in the case of a continuing contravention,
such additional fine which may extend to five
hundred rupees for each day during which the
contravention continues after conviction for
the first such contravention.”
(emphasis supplied)
45.The earlier provision before its amendment by
Act 29 of 2009 w.e.f 08/11/2008 is as follows:
“7. Punishment for unauthorisdely
occupying land which is the property of
Government (1) Whoever occupies a land which
is the property of Government, whether a
poramboke or not,contrary to section 5 shall
be liable to pay-
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(a) such fine not exceeding two hundred
rupees; and
(b)in the case of a continuing
contravention such additional fine not
exceeding two hundred rupees for every day
during which such contravention continues
after fine has been imposed for the first
such contravention as may be imposed by the
Collector:
Provided that a person unauthorisedly
occupying a land which is available for
assignment under the Kerala Government
Land Assignment Act, 1960, shall not be
liable to pay any fine under sub-section
(1) if-
(i)he is eligible under the rules
made under that Act for assignment of
such land without auction; and
(ii)he applies under those rules for
the assignment of such land in his
favour, either on registry or on
lease.
(2)Without prejudice to any liability
under sub-section(1), any person who
erects or causes to erect any wall,fence
or building or puts up or causes to put
up any overhanging structure or
projection (whether on a temporary or
permanent basis) in contravention of sub-
section(2) of section 5 shall be liable,
on conviction by a magistrate, to be
punished with fine which may extent to
two hundred rupees and in the case of a
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continuing contravention, with an
additional fine which may extent to two
hundred rupees for every day during which
such contravention continues after
conviction for the first such
contravention.
Explanation– A tenant unauthorisedly
holding over after the expiry of his term
of lease is liable to a fine under this
section.”
(emphasis supplied)
46.To sum up, going by the earlier provision, it
would appear that anyone can encroach the Government land
at the risk of Rs.200/-. This would prima facie show the
lack of proper protective measure by way of legislation
against encroachment over Government land. Only by way of
Act 29 of 2009, stringent provisions were incorporated
under Section 7 to deal with unauthorised occupants over
the Government land.
47.It was submitted that the above question
regarding nature of the property, whether it is a
Government land or not is not within the scope of this
court under Section 482 Cr.P.C. and at the most it would
come under the purview of Article 226 of the
Constitution. I am afraid Section 482 Cr.P.C. though
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incorporated under Code of Criminal Procedure, by its
nature is an independent provision dealing with the
inherent power of the High Court within the three
contours of that section namely, to give effect to any
order under the Code or to prevent abuse of the process
of any Court or otherwise to secure the ends of justice.
When a glaring illegality has come to the notice, it
would be remiss on the part of court to remain a silent
spectator simply because nobody has raised the
manipulation by initiating legal proceedings and this
court can exercise the plenary powers under Section 482
Cr.P.C., lest it would perpetuate an illegality. The
scope of Section 482 Cr.P.C. in that behalf was taken up
and settled by the High Court of Rajasthan in Likhama
Ram v. State of Rajasthan [1998 Cr LJ 2635 (Raj] . The
Apex Court in Popular Muthiah v. State of represented by
Inspector of Police (2006(6) SCALE 417) had settled the
legal position that the power under Section 482 Cr.P.C.
can be exercised even suo motu in the interest of
justice, for which no formal application is required. It
acts 'ex debito justitiae '. It can, thus, do real and
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substantial justice for which alone it exists. It is
true that no one came up with any such allegation either
under Article 226 of the Constitution or otherwise
pertaining to large scale encroachment over the
Government land by organized encroachers. Even proper
protective measures were not taken by way of legislation
prior to the amendment of Land Conservancy Act.
48.If it is pertaining to the Government property
as defined under Section 3 or a puramboke land as defined
under Section 4 of the Act, necessarily, the offence of
cheating and creation of forged document made mentioned
in clause (b) of Section 7 would come into effect,
besides the offence under the said section as against the
officers, who failed to report unlawful occupation of
land. The non-mention of title or interest, or its
acquisition or document of acquisition of title or
interest over the property covered by the said document
raises a reasonable doubt as to the nature of the
property and hence the inherent power under Section 482
Cr.P.C. can be exercised to secure the ends of justice,
when it is not dealt with under the provisions of the law
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by the Government or the competent authority thereof.
Hence, it is ordered that the Government shall conduct an
investigation into the matter through its investigating
agencies so as to satisfy itself whether the settlement
deed of the year 2007 was executed with respect to any
Government land or puramboke land and whether it was a
Government land or a puramboke land at any point of time
and also the non-action/inaction on the part of the
concerned officials, who are bound by the provisions of
law including Land Conservancy Act, for which, a team of
officers possessing adequate knowledge in the Civil and
Criminal Laws has to be select ed.
49.From the discussion, the Criminal Miscellaneous
Cases filed by the petitioners under Section 482 Cr.P.C.
deserve only dismissal.
All the Crl.M.Cs. are dismissed with the abovesaid
directions to the first respondent-State Government. For
compliance report, post on 25/10/2021.
Sd/-
P.SOMARAJAN
JUDGE
sv
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APPENDIX OF CRL.MC 8936/2019
PETITIONER'S ANNEXURES
ANNEXURE A1 TRUE COPY OF THE C.C.NO.632/2019 FILED BEFORE
THE JUDICIAL FIRST CLASS MAGISTRATE COURT,
KAKKANAD ALONG WITH THE ACCOMPANYING
DOCUMENTS.
ANNEXURE A2 TRUE COPY OF THE ORDER PASSED BY THE LEARNED
MAGISTRATE IN CMP NO.5003 OF 2018 DATED
02.04.2019.
ANNEXURE A3 CERTIFIED COPY OF THE ORDER DATED 24TH
AUGUST, 2019 PASSED BY THE SESSIONS COURT IN
CRL.R.P.NO.20/2019.
ANNEXURE A4 TRUE COPY OF THE COMPLAINT/CMP NO.2 OF 2018
FILED BEFORE THE HON'BLE JUDICIAL FIRST CLASS
MAGISTRATE.
ANNEXURE A5 TRUE COPY OF THE F.I.R. NO.0818/2019 OF
ERNAKULAM CENTRAL POLICE STATION WITH THE
ACCOMPANYING DOCUMENTS.
ANNEXURE A6 TRUE COPY OF THE ORDER IN C.M.P.NO.179/2018
DATED 2.2.2018 PASSED BY THE CHIEF JUDICIAL
MAGISTRATE, ERNAKULAM.
ANNEXURE A7 CERTIFIED COPY OF THE FINAL REPORT IN FIR
NO.818/2019 FILED BEFORE THE CHIEF JUDICIAL
MAGISTRATE COURT, ERNAKULAM ON 2ND NOVEMBER
2020, WITH ITS ENGLISH TRANSLATION.
ANNEXURE A8 COPY OF THE SWORN STATEMENT OF SRI.JOSHY
VARGHESE AND ITS TYPED COPY WITH ENGLISH
TRANSLATION DATED 25.7.2018
ANNEXURE A9 COPY OF THE SWORN STATEMENT OF FR.BENNY
MARAMPARAMBIL AND ITS TYPED COPY WITH ENGLISH
TRANSLATION DATED 14.09.2018.
ANNEXURE A10 COPY OF THE COMPLAINT BEARING
C.M.P.NO.179/2018 FILED BY SRI POLACHAN
PUTHUPPARA BEFORE THE CHIEF JUDICIAL
MAGISTRATE COURT, ERNAKULAM DATED 12/01/2018
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
65
ANNEXURE A11 COPY OF THE COMPLAINT FILED BY SRI SHINE
VARGHESE BEFORE THE STATION HOUSE OFFICER,
ERNAKULAM DATED 15/02/2018.
RESPONDENT'S ANNEXURES
ANNEXURE R2(A) TRUE COPY OF THE ABOVE DOCUMENT i.e.. SALE
DEED NO.3373/2016
ANNEXURE R2(B) TRUE COPY OF DOCUMENT i.e. SALE DEED
2180/2017
ANNEXURE R2(C) TRUE COPY OF THE STATEMENT OF ACCOUNTS
ANNEXURE R2(D) TRUE COPY OF THE MINUTES OF THE MEETING OF
THE FINANCE COMMITTEE DATED 02.12.2015.
ANNEXURE R2(E) TRUE COPY OF STATEMENT OF DETAILS OF PROPERTY
TRANSACTION SITUATED AT VAZHAKKALA VILLAGE IN
SY.NO.548/4
ANNEXURE R2(F) TRUE COPY OF STATEMENT OF DETAILS OF PROPERTY
TRANSACTION SITUATED AT VAZHAKKALA VILLAGE IN
SY.NO.543/4 REGARDING WHICH COGNIZANCE IS
TAKEN BY JFCM COURT, KAKKANAD
ANNEXURE R2(G) TRUE COPY OF STATEMENT OF DETAILS OF PROPERTY
TRANSACTION SITUATED AT POONITHURA VILLAGE IN
SY.1415/4
ANNEXURE R2 (H) TRUE COPY OF STATEMENT OF DETAILS OF PROPERTY
TRANSACTION SITUATED AT VAZHAKKALA VILLAGE IN
SY.NO.407/1
ANNEXURE R2(I) TRUE COPY OF STATEMENT OF DETAILS OF PROPERTY
TRANSACTION SITUATED AT KAKKANAD VILLAGE IN
SY.NO.435/8.
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
66
APPENDIX OF CRL.MC 205/2020
PETITIONER'S ANNEXURES
ANNEXURE A1 CERTIFIED COPY OF THE C.C.NO.1886/2019 OF THE
JUDICIAL FIRST CLASS MAGISTRATE COURT,
KAKKANAD, ERNAKULAM DISTRICT WITH ITS ENGLISH
TRANSLATION.
ANNEXURE A2 CERTIFIED COPY OF THE ORDER PASSED BY THE
JUDICIAL MAGISTRATE OF FIRST CLASS IN CRL.
MP. NO.5005 OF 2018 DATED 5.11.2019.
ANNEXURE A3 TRUE COPY OF THE ORDER IN CRL. M.A.1/2019 IN
CRL. M.C.8936/19 DATED 13.12.2019 PASSED BY
THIS HON'BLE COURT.
ANNEXURE A4 TRUE COPY OF THE COMPLAINT /CMP NO.2 OF 2018
FILED BEFORE THE HON'BLE JUDICIAL FIRST CLASS
MAGISTRATE, ERNAKULAM.
ANNEXURE A5 TRUE COPY OF THE COMPLAINT IN
C.M.P.NO.179/2018 ALONG WITH THE SWORN
STATEMENT.
ANNEXURE A6 TRUE COPY OF THE ORDER IN C.M.P.NO.179/2018
DATED 2.2.2018 PASSED BY THE CHIEF JUDICIAL
MAGISTRATE, ERNAKULAM.
ANNEXURE A7 TRUE COPY OF THE FIR NO.0818/2019 OF
ERNAKULAM CENTRAL POLICE STATION WITH THE
ACCOMPANYING DOCUMENTS.
RESPONDENT'S ANNEXURES
ANNEXURE R2(A) TRUE COPY OF SALE DEED NO.2720 DATED 1/9/2016
OF THRIKKAKKARA SUB REGISTRY OFFICE
ANNEXURE R2(B) TRUE COPY OF SALE DEED NO.2721/16 DATED
1.9.16 OF THRIKKAKKARA SRO
ANNEXURE R2(C) TRUE COPY OF SALE DEED NO.2723/16 DATED
1/9/2016 OF THRIKKAKKARA SRO.
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
67
ANNEXURE R2(D) TRUE COPY OF SETTLEMENT DEED NO.4950/07 DATED
21/9/07 OF THRIKKAKKARA SRO.
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
68
APPENDIX OF CRL.MC 1414/2020
PETITIONER'S ANNEXURES
ANNEXURE A1 CERTIFIED COPY OF THE COMPLAINT DATED
16.07.2018 FILED BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE COURT,KAKKANAD, ERNAKULAM
DISTRICT.
ANNEXURE A2 CERTIFIED COPY OF THE ORDER PASSED BY THE
JUDICIAL MAGISTRATE OF FIRST CLASS IN
CRL.M.P.NO.5011 OF 2018 DATED 20.01.2020
ANNEXURE A3 TRUE C0PY OF THE ORER IN CRL.M.A.NO.1/2029 IN
CRL.M.C.NO.8936/19 DATED 13.12.2019 PASSED BY
THIS HON'BLE COURT.
ANNEXURE A4 TRUE COPY OF THE COMPLAINT/CMP NO.2 OF 2018
FILED BEFORE THE HON'BLE JUDICIAL FIRST CLASS
MAGISTRATE,ERNAKULAM.
ANNEXURE A5 TRUE COPY OF THE COMPLAINT IN
C.M.P.NO.179/2018 ALONG WITH THE SWORN
STATEMENT.
ANNEXURE A6 TRUE COPY OF THE ORDER IN C.M.P.NO.179/2018
DATED 02.02.2018 PASSED BY THE CHIEF JUDICIAL
MAGISTRATE,ERNAKULAM.
ANNEXURE A7 TRUE COPY OF THE F.I.R.NO.0818/2019 OF
ERNAKULAM CENTRAL POLICE STATION WITH THE
ACCOMPANYING DOCUMENTS.
RESPONDENT'S ANNEXURES
ANNEXURE R2(B) TRUE COPY OF SETTLEMENT NO.4950/07 DATED
21.9.07 OF THRIKKAKKARA SRO.
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
69
APPENDIX OF CRL.MC 1409/2020
PETITIONER'S ANNEXURES
ANNEXURE A1 CERTIFIED COPY OF THE COMPLAINT DATED
16.07.2018 FILED BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE COURT, KAKKANAD, ERNAKULAM
DISTRICT.
ANNEXURE A2 CERTIFIED COPY OF THE ORDER PASSED BY THE
JUDICIAL MAGISTRATE OF FIRST CLASS IN CRL. MP
NO. 5013 OF 2018 DATED 20.01.2020.
ANNEXURE A3 TRUE COPY OF THE ORDER IN CRL. M.A. 1/2019 IN
CRL. M.C. 8936/19 DATED 13.12.2019 PASSED BY
THIS HONB'LE COURT.
ANNEXURE A4 TRUE COPY OF THE COMPLAINT/ CMP NO. 2 OF 2018
FILED BEFORE THE HON'BLE JUDICIAL FIRST CLASS
MAGISTRATE, ERNAKULAM.
ANNEXURE A5 TRUE COPY OF THE COMPLAINT IN C.M.P. NO.
179/2018 ALONG WITH THE SWORN STATEMENT WITH
ITS TYPED COPY.
ANNEXURE A6 TRUE COPY OF THE ORDER IN C.M.P. NO. 179/2018
DATED 02.02.2018 PASSED BY THE CHEF JUDICIAL
MAGISTRATE, ERNAKULAM.
ANNEXURE A7 TRUE COPY OF THE F.I.R NO. 0818/2019 OF
ERNAKULAM CENTRAL POLICE STATION WITH THE
ACCOMPANYING DOCUMENTS.
RESPONDENT'S ANNEXURES
ANNEXURE R2(A) TRUE COPY OF SALE DEED NO.1679 DATED 9.6.17
OF THRIKKAKKARA SUB REGISTRY OFFICE.
ANNEXURE R2(B) TRUE COPY OF SALE DEED NO.1680/17 DATED
9.6.17 OF THRIKKAKKARA SRO
ANNEXURE R2(C) TRUE COPY OF SALE DEED NO.1681/17 DATED
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
70
12.6.17 OF THRIKKAKKARA SRO
ANNEXURE R2(D) TRUE COPY OF THE SETTLEMENT DEED NO.4950
DATED 21.9.2007 OF THRIKKAKKARA SUB REGISTRY
OFFICE
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
71
APPENDIX OF CRL.MC 2138/2020
PETITIONER'S ANNEXURES
ANNEXURE A1 CERTIFIED COPY OF THE COMPLAINT DATED 16/07/2018
FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE
COURT, KAKKANAD, ERNAKULAM DISTRICT.
ANNEXURE A2 CERTIFIED COPY OF THE ORDER PASSED BY THE
JUDICIAL MAGISTRATE OF FIRST CLASS IN
CRL.MP.NO.5015 OF 2018 DATED 13/02/2020.
ANNEXURE A3 TRUE COPY OF THE ORDER IN CRL.M.A.1/2019 IN
CRL.M.C.8936/19 DATED 13/12/2019 PASSED BY THIS
HON'BLE COURT.
ANNEXURE A4 TRUE COPY OF THE COMPLAINT/CMP NO.2 OF 2018 FILED
BEFORE THE HON'BLE JUDICIAL FIRST CLASS
MAGISTRATE, ERNAKULAM.
ANNEXURE A5 TRUE COPY OF THE COMPLAINT IN C.M.P.NO.179/2018
ALONG WITH THE SWORN STATEMENT.
ANNEXURE A6 TRUE COPY OF THE ORDER IN C.M.P.NO.179/2018 DATED
02/02/2018 PASSED BY THE CHIEF JUDICIAL
MAGISTRATE, ERNAKULAM.
ANNEXURE A7 TRUE COPY OF THE F.I.R.NO.0808/2019 OF ERNAKULAM
CENTRAL POLICE STATION WITH THE ACCOMPANYING
DOCUMENTS.
RESPONDENT'S ANNEXURES
ANNEXURE R2(A) TRUE COPY OF SALE DEED NO.2368 DATED 16.8.17 OF
THRIKKAKKARA SUB REGISTRY OFFICE
ANNEXURE R2(B) TRUE COPY OF SALE DEED NO.2369/17 DATED 16.8.17
OF THRIKKAKKARA SRO
ANNEXURE R2(C) TRUE COPY OF SALE DEED NO.2370/17 DATED 16.8.17
OF THRIKKAKKARA SRO
ANNEXURE R2(D) TRUE COPY OF SETTLEMENT DEED NO.4950 DATED
21.9.2007 OF THRIKKAKKARA SUB REGISTRY OFFICE.
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
72
APPENDIX OF CRL.MC 2136/2020
PETITIONER'S ANNEXURES
ANNEXURE A1 CERTIFIED COPY OF THE COMPLAINT DATED
16.7.2018 FILED BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE COURT, KAKKANAD, ERNAKULAM
DISTRICT.
ANNEXURE A2 CERTIFIED COPY OF THE ORDER PASSED BY THE
JUDICIAL MAGISTRATE OF FIRST CLASS IN
CRL.MP.NO.5009 OF 2018 DATED 13.2.2020.
ANNEXURE A3 TRUE COPY OF THE ORDER IN CRL.M.A.1/2019 IN
CRL.M.C.8936/19 DATED 13.12.2019 PASSED BY
THIS HON'BLE COURT.
ANNEXURE A4 TRUE COPY OF THE COMPLAINT/ CMP.NO.2 OF 2018
FILED BEFORE THE HON'BLE JUDICIAL FIRST CLASS
MAGISTRATE, ERNAKULAM.
ANNEXURE A5 TRUE COPY OF THE COMPLAINT IN
C.M.P.NO.179/2018 ALONG WITH THE SWORN
STATEMENT.
ANNEXURE A6 TRUE COPY OF THE ORDER IN C.M.P.NO.179/2018
DATED 2.2.2018 PASSED BY THE CHIEF JUDICIAL
MAGISTRATE, ERNAKULAM.
ANNEXURE A7 TRUE COPY OF THE F.I.R.NO.0818/2019 OF
ERNAKULAM CENTRAL POLICE STATION WITH THE
ACCOMPANYING DOCUMENTS.
RESPONDENT'S ANNEXURES
ANNEXURE R2(A) TRUE COPY OF SALE DEED NO.2732 DATED 5.9.16
OF THRIKKAKKARA SUB REGISTRY OFFICE
ANNEXURE R2(B) TRUE COPY OF SALE DEED NO.2733/16 DATED
5.9.16 OF THRIKKAKKARA SRO
ANNEXURE R2(C) TRUE COPY OF SALE DEED NO.2734/16 DATED
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
73
5.9.16 OF THRIKKAKKARA SRO
ANNEXURE R2(D) TRUE COPY OF SETTLEMENT DEED NO.4950 DATED
21/9/2007 OF THRIKKAKKARA SUB REGISTRY
OFFICE.
2021/KER/30968
Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020,
9115/2019
74
APPENDIX OF CRL.MC 9115/2019
PETITIONER'S ANNEXURES
ANNEXURE A1 CERTIFIED COPY OF THE COMPLAINT DATED 16.7.18
IN C.C.NO.632/18 PENDING BEFORE THE LEARNED
JFCM COURT, KAKKANAD.
ANNEXURE A2 COPY OF THE ORDER DATED 2.4.19 PASSED BY THE
LEARNED MAGISTRATE IN CMP NO.5003/18.
ANNEXURE A3 COPY OF THE STATEMENT GIVEN BY PW1, THE
COMPLAINANT HEREIN.
ANNEXURE A4 COPY OF THE DEPOSITION OF PW2.
ANNEXURE A5 A COPY OF THE FIR IN CRIME NO.818/19.
ANNEXURE A6 COPY OF THE BANK TRANSACTION DT.1.4.2016 TO
31.3.2017
ANNEXURE A7 COPY OF THE BANK TRANSACTION DT.1.4.2017 TO
31.3.2018
ANNEXURE A8 COPY OF THE DRAFT FINAL REPORT FILED BY THE
ASSISTANT POLICE COMMISSIONER, C BRANCH,
KOCHI CITY DT.28.10.2000
/TRUE COPY/
P.S. to Judge
2021/KER/30968
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