REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS……………OF 2023

(@ SPECIAL LEAVE PETITION (CRL.) NOS. 2849-2854 OF 2022)

CARDINAL MAR GEORGE ALENCHERRY ...APPELLANT

Versus

STATE OF KERALA & ANR. …RESPONDENTS

WITH

SPECIAL LEAVE PETITION (CRL.) NOS. 1487-1493 OF 2022

EPARCHY OF BATHERY, REP. THROUGH

MOST REV. DR. JOSEPH MAR THOMAS ... PETITIONER

Versus

STATE Of KERALA & ORS. ETC. ... RESPONDENTS

WITH

SPECIAL LEAVE PETITION (CRL.) NO(S). ……… OF 2023

ARISING OUT OF DIARY NO. 7364 OF 2022)

CATHOLIC DIOCESE OF THAMARASSERY … PETITIONER

REP. THROUGH MAR REMEGIOSE INCHANAYIL

Versus

STATE OF KERALA & ORS. ETC. …RESPONDENT(S)

1

J U D G M E N T

BELA M. TRIVEDI, J.

1.Leave granted in SLP (Crl.) Nos. 2849-2854 of 2022.

2.All these matters are arising out of the impugned common

judgment and order dated 12.08.2021 passed by the High Court of

Kerala at Ernakulam in Crl. MC No. 8936 of 2019, Crl. MC No. 205

of 2020, Crl. MC No. 1414 of 2020, Crl. MC No. 1409 of 2020, Crl.

MC No. 2138 of 2020, Crl. MC No. 2136 of 2020 and Crl. MC No.

9115 of 2019.

3.In the batch of six appeals arising out of SLP (Crl.) Nos. 2849-

2854/2022, 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.

1487-1493/2022 filed by Eparchy of Bathery (not a party before the

High Court), and in the SLP Diary No. 7364/2022 filed by the

Catholic Diocese of Thamarassery (not a party before the High

Court), this Court vide the order dated 14.02.2022 had granted

permission to file the SLPs to the said petitioners to a limited

extent in respect of the petitioners’ grievances pertaining to

paragraphs 17 to 39 of the impugned order. Under the

2

circumstances, the facts of the appeals filed by the appellant-

Cardinal Mar George Alencherry are considered for the sake of

convenience.

4.The facts in nutshell, as discernible from the record, giving rise to

the present appeals are that: -

(i)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’). The said Archbishop claiming to have

an authority over all the spiritual and temporal

affairs concerning Syro Malabar Church alienated

certain immoveable properties of the Church. The

present respondent no. 2 – Mr. Joshy Varghese

(original complainant) claiming to be a member and

believer of a Roman Catholic Church has filed a

complaint under Sections 190 and 200 of Cr.P.C.

being Crl. M.P.No. 5003/2018 in the Court of

Judicial Magistrate, Ist Class, Kakkanad

(hereinafter referred to as the ‘Trial Court’) on 16

th

July, 2018, against three accused i.e. (1) the

3

appellant-Archbishop, (2) Rev Fr. Joshy Puthuva

and (3) Saju Varghese alleging commission of the

offences punishable under Sections 120B, 406,

409, 418, 420, 423, 465, 467, 468 r/w 34 of IPC.

(ii)It has been alleged in the complaint, inter alia that

the complainant is the member of the St. Mary’s

Church, Perumbavoor, one of the churches

administered by the Archdiocese of Ernakulam-

Angamaly. The appellant took charge of the

Archdiocese as its Major Archbishop on 29.05.2011

and he was subsequently ordained as a Cardinal of

Syro Malabar Church on 06.01.2012. The said

Archdiocese has been administering various

educational institutions, orphanages, old age

homes, convents, monasteries and hospitals, in

addition to 338 churches under it. The said

Archdiocese owned assets both movable and

immovable worth crores of rupees. The bylaws of

Archdiocese which prescribed the procedures for

the administration and management of the assets of

the Archdiocese were modified on 29.07.2009.

4

(iii)It has been further alleged that the appellant-

Archbishop entered into a criminal conspiracy with

accused no. 2 – Rev Fr. 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. 3 - Saju Varghese, as described

in the complaint.

(iv) In the said complaint, a sworn statement of the

complainant was recorded in view of Section 202 of

Cr.P.C. as the appellant and the other two accused

in the said complaint were residing beyond the

jurisdiction of the Trial Court. One more witness was

also summoned and examined in support of the

complaint. The complainant also had produced few

documents in support of the said complaint.

(v)The Trial Court vide the order dated 2

nd

April, 2019

took the complaint on file and dismissed the

complaint under Section 203 of Cr.P.C. so far as the

5

offences under Sections 409, 418, 420, 465, 467

and 468 of IPC were concerned, however issued

summons against the accused for the offences

under Sections 120-B, 406, 423 read with 34 of IPC.

5.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:

S.

No.

CrMP No./ Complaint No. Magistrate Court

1. CrMP 5005/2018 (CC. No. 1886/2019)Summons issued to the

Petitioner and another on

05.11.2019

2. CrMP 5013/2018 (CC. No. 51/2020) Summons issued to the

Petitioner and another on

20.01.2020

3. CrMP 5011/2018 (CC. No. 50/2020) Summons issued to the

Petitioner and another on

20.01.2020

4. CrMP 5009/2018 (CC. No. 93/2020) Summons issued to the

Petitioner and another on

13.02.2020

5. CrMP 5015/2018 (CC. No. 94/2020) Summons issued to the

Petitioner and another on

13.02.2020

6.The appellant-Archbishop (accused no.1) and the said Saju

Varghese (accused no. 3) being aggrieved by the order dated

02.04.2019 passed by the trial court in Cr.M.P.No. 5003/2018

6

preferred Criminal Revision Application Nos. 20/2019 and 21/2019

respectively before the Sessions Court, Ernakulam Division

(hereinafter referred to as ‘the Sessions Court’). 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. No.8936 of 2019 and other five petitions before

the High Court under Section 482 of Cr.P.C. The original accused

no. 3 - Saju Varghese also filed Crl.M.C. No.9115/2019 before the

High Court. The High Court vide the impugned order dated 12

th

August, 2021 dismissed all the seven Crl.M.Cs. The High Court

also gave certain directions to the respondent-State Government

while dismissing the said petitions. The High Court thereafter

posted the matters on 25.10.2021 for the compliance report, and

then gave further directions by passing various orders from time to

time. Being aggrieved by the same, the present sets of appeals

have been filed by the appellants as stated hereinabove.

7.The learned senior advocate Mr. Sidharth Luthra appearing for the

appellant-Archbishop submitted following chart, showing details of

the properties involved in these appeals.

DETAILS OF PROPERTY

S.

No.

Case No.CrlMC

No. (HC)

SLP No.

(SC)

Sale

Deed

Nos.

Area of

Land

Re.Sy. No. Place

Location of Land

7

1.CC. No.

632/19

P4@132

Crl.M.C

No.

8936/19

P14 @

392/V2

SLP No.

2849/22

3373/1624.40 Re.Sy. No. 548/4

Vazhakala Village

Opp.

Bharathmatha

College (Para 20;

Page 141)

2.CC. No.

1886/19

P5@148

Crl.M.C

No.

205/20

SLP No.

2850/22

2720/16

2721/16

2723/16

3.93

3.94

1.93

Re.Sy. No. 509/4

Thrikkakara area

in Vazhakala

Village Near

Karunalayam

(Para 37; Page

173)

3.CC. No.

51/2020

P6@176

Crl.M.C

No.1409/

20

SLP No.

2851/22

1679/17

1680/17

1681/17

1.31

1.36

1.41

Re.Sy. No. 509/4

Thrikkakara area

in Vazhakala

Village Near

Karunalayam

(Para 37; Page

198)

4.CC. No.

50/2020

P7@202

Crl.M.C

No.

1414/20

SLP No.

2852/22

2735/161.92 Re.Sy. No. 509/4

Thrikkakara area

in Vazhakala

Village Near

Karunalayam

(Para 37; Page

222)

5.CC. No.

93/2020

P8@225

Crl.M.C

No.

2136/20

SLP No.

2853/22

2732/16

2733/16

2734/16

1.85

1.83

1.93

Re.Sy. No. 509/4

Thrikkakara area

in Vazhakala

Village Near

Karunalayam

(Para 37; Page

254)

6.CC. No.

94/2020

P9@258

Crl.M.C

No.

2138/20

SLP No.

2854/22

2368/17

2369/17

2370/17

1.31

1.21

1.14

Re.Sy. No. 509/4

Thrikkakara area

in Vazhakala

Village Near

Karunalayam

(Para 37; Page

1284)

8.According to the learned Senior Advocate Mr. Luthra, the

respondent no. 2-Joshy Varghese and others had also filed similar

complaints against the appellant and others. The details of the said

complaints submitted by Mr. Luthra are as below:-

8

(i)03.01.2018: The respondent no. 2 Joshy Varghese,

the complainant, had filed a complaint being CMP

No. 2/2018 in the Court of Judicial Magistrate, First

Class. 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. The Judicial

Magistrate, Maradu, Ernakulam before issuing the

process in the said complaint directed the

respondent no. 2 to examine the witnesses. The

respondent no. 2 challenged the said order before

the Kerala High Court, which dismissed his petition

vide the order dated 22.02.2018. The said complaint

was thereafter dismissed by the Magistrate vide the

order dated 30.09.2021.

(ii)12.01.2018: One Paulachan Puthuppara, an

Advocate filed a complaint being CMP No.

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. The

9

Magistrate, Ernakulam vide the order dated

02.02.2018 dismissed the complaint observing that

if complainant was aggrieved, he could resort to an

appropriate civil action as may be available under

the law.

(iii)15.01.2018: One Shine Varghese filed a complaint

before the P.S. Ernakulam Central, being FIR No.

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.

(iv)18.03.2019: One complainant Pappachan filed a

complaint being Cr.M.P.No. 820/2019 against the

appellant-Archbishop and others in the Court of

Judicial Magistrate, First Class, Kakkanad. The said

complainant had also filed a complaint before the

Ernakulam P.S. on 12.01.2019, however no action

was taken. Ultimately FIR No. 818/2019 was

registered, however the investigating officer has

submitted a closure report in the said complaint.

10

9.Adverting to the first and foremost submission made by the

Learned Senior Counsel Mr. Luthra that the present complaint

against the appellant after the dismissal of the earlier complaint by

the Court of Maradu, on the same set of facts, filed by the

respondent no.2-complainant was not maintainable, it may be

noted that the respondent no.2 had earlier filed a complaint being

no.2/2018 on 03.01.2018 in the Court of JMFC, Maradu under

Section 156(3) and Section 200 Cr.PC, making general allegations

with regard to the fraudulent sale of the properties belonging to the

Archdiocese by the appellant Archbishop, whereas the instant

complaints six in number have been filed by the respondent no.2-

complainant in the Trial Court giving specific details about the sale

of the properties situated within the jurisdiction of Trial Court at

Kakkanad. It is not disputed that the first complaint (C.C.

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. The respondent no.2 in the counter filed

11

by him has specifically stated that regarding the first item of

property, the complaint was filed before the Court of Maradu

(Ernakulam), as the cause of action had arisen within the

jurisdiction of Maradu Police Station, whereas with regard to the

other properties, seven complaints have been filed before the

Court of JMFC, Kakkanad within whose jurisdiction the properties

were situated. 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.

10.It cannot be gainsaid that the cognizance is taken of an offence

and not of the offender. As such the phrase “taking cognizance”

has nowhere been defined in the Cr.PC, however has been

interpreted by this Court to mean “become aware of” or “to take

notice of judicially”. In S.K. Sinha, Chief Enforcement Officer

Vs. Videocon International Ltd. and Others

1

, this Court while

explaining the scope of the enquiry under Section 202 Cr.PC,

observed as under:-

“19. The expression “cognizance” has not been defined in

the Code. But the word (cognizance) is of indefinite import. It

has no esoteric or mystic significance in criminal law. It

1 (2008) 2 SCC 492

12

merely means “become aware of” and when used with

reference to a court or a Judge, it connotes “to take notice of

judicially”. It indicates the point when a court or a Magistrate

takes judicial notice of an offence with a view to initiating

proceedings in respect of such offence said to have been

committed by someone.

20. “Taking cognizance” does not involve any formal action of

any kind. It occurs as soon as a Magistrate applies his mind

to the suspected commission of an offence. Cognizance is

taken prior to commencement of criminal proceedings.

Taking of cognizance is thus a sine qua non or condition

precedent for holding a valid trial. Cognizance is taken of an

offence and not of an offender. Whether or not a Magistrate

has taken cognizance of an offence depends on the facts

and circumstances of each case and no rule of universal

application can be laid down as to when a Magistrate can be

said to have taken cognizance.

21. Chapter XIV (Sections 190-199) of the Code deals with

“Conditions requisite for initiation of proceedings”. Section

190 empowers a Magistrate to take cognizance of an offence

in certain circumstances. Sub-section (1) thereof is material

and may be quoted in extenso:

“190. Cognizance of offences by Magistrates.—(1) Subject to

the provisions of this Chapter, any Magistrate of the First

Class, and any Magistrate of the Second Class specially

empowered in this behalf under sub-section (2), may take

cognizance of any offence—

(a) upon receiving a complaint of facts which constitute such

offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a

police officer, or upon his own knowledge, that such offence

has been committed.”

22. …….

23. Then comes Chapter XVI (Commencement of

proceedings before Magistrates). This Chapter will apply only

after cognizance of an offence has been taken by a

Magistrate under Chapter XIV. Section 204, whereunder

process can be issued, is another material provision which

reads as under:

“204. Issue of process.—(1) If in the opinion of a Magistrate

taking cognizance of an offence there is sufficient ground for

proceeding, and the case appears to be—

(a) a summons case, he shall issue his summons for the

attendance of the accused, or

(b) a warrant case, he may issue a warrant, or, if he thinks fit,

a summons, for causing the accused to be brought or to

appear at a certain time before such Magistrate or (if he has

no jurisdiction himself) some other Magistrate having

jurisdiction.

(2) No summons or warrant shall be issued against the

accused under sub-section (1) until a list of the prosecution

witnesses has been filed.

13

(3) In a proceeding instituted upon a complaint made in

writing, every summons or warrant issued under sub-section

(1) shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process-

fees or other fees are payable, no process shall be issued

until the fees are paid and, if such fees are not paid within a

reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect the

provisions of Section 87.”

24. From the above scheme of the Code, in our judgment, it

is clear that “Initiation of proceedings”, dealt with in Chapter

XIV, is different from “Commencement of proceedings”

covered by Chapter XVI. For commencement of

proceedings, there must be initiation of proceedings. In other

words, initiation of proceedings must precede

commencement of proceedings. Without initiation of

proceedings under Chapter XIV, there cannot be

commencement of proceedings before a Magistrate under

Chapter XVI. The High Court, in our considered view, was

not right in equating initiation of proceedings under Chapter

XIV with commencement of proceedings under Chapter XVI.”

11. In Ramdev Food Products Private Vs. State of Gujarat

2

while

drawing distinction between the provisions contained in Section

156(3) and Section 202(1) of Cr.PC, this Court examined the

scheme of the said sections and after discussing various earlier

decisions concluded as under:-

“38. In Devarapalli Lakshminarayana Reddy v. V. Narayana

Reddy [(1976) 3 SCC 252: 1976 SCC (Cri) 380], National Bank

of Oman v. Barakara Abdul Aziz [(2013) 2 SCC 488: (2013) 2

SCC (Cri) 731], Madhao v. State of Maharashtra [(2013) 5 SCC

615: (2013) 4 SCC (Cri) 141], Rameshbhai Pandurao

Hedau v. State of Gujarat [(2010) 4 SCC 185 : (2010) 2 SCC

(Cri) 801] , the scheme of Sections 156(3) and 202 has been

discussed. It was observed that power under Section 156(3) can

be invoked by the Magistrate before taking cognizance and was

in the nature of pre-emptory reminder or intimation to the police

to exercise its plenary power of investigation beginning with

Section 156 and ending with report or charge-sheet under

Section 173. On the other hand, Section 202 applies at post-

cognizance stage and the direction for investigation was for the

purpose of deciding whether there was sufficient ground to

proceed.”

12.So far as facts of the present case are concerned, indisputably

though the respondent-complainant had filed the first complaint in

2 (2015) 6 SCC 439

14

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. The concerned court had

also not directed any investigation either under Section 156(3) or

Section 202 of Cr.PC and the said complaint was dismissed for not

having been prosecuted further. The Trial Court at Kakkanad,

however, before the dismissal of the previous complaint, had

already taken cognizance by issuing summons to the appellant

and others in the instant six complaint cases filed by the

respondent no. 2 - complainant.

13.Though it is true that the respondent no. 2, in the instant

complaints should have disclosed the full and correct facts more

particularly with regard to the previous complaint filed by him

against the appellant and other accused in respect of the alleged

fraudulent sale of the properties belonging to Archdiocese, mere

non-disclosure of such facts, would not be a ground to set aside

the summons issued by the Trial Court after applying its mind and

having been prima facie satisfied about the commission of the

alleged offences under Section 120B, 406 and 423 read with 34 of

IPC. From the order dated 2.04.2019 passed in Cr.M.P.

No.5003/2018, it is quite discernible that the Trial court after

meticulously examining the allegations made in the complaint and

15

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.

14. As regards the submission made by learned Senior Counsel, Mr.

Luthra that the second complaint at the instance of the respondent

no. 2 on the same set of facts against the same accused was not

maintainable, it may be noted that the law in this regard is quite

well settled since 1962. In case of Pramatha Nath Talukdar Vs.

Saroj Ranjan Sarkar

3

, 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. It was further held that an order of dismissal under

Section 203 of the Criminal Procedure Code is no bar to the

entertainment of a second complaint on the same facts, but it will

be entertained only in exceptional circumstances, e.g. that the

previous order was passed on an incomplete record or on a

misunderstanding of nature of complaint or it was manifestly

3 AIR 1962 SC 876

16

absurd, unjust or foolish or where new facts which could not, with

reasonable diligence, have been brought on record in the previous

proceedings have been adduced. The precise observations made

in para 48 thereof may be reproduced hereunder :

“48. Under the Code of Criminal Procedure the subject of

“complaints to Magistrates” is dealt with in Chapter XVI of the

Code of Criminal Procedure. The provisions relevant for the

purpose of this case are Sections 200, 202 and 203. Section 200

deals with examination of complainants and Sections 202, 203

and 204 with the powers of the Magistrate in regard to the

dismissal of complaint or the issuing of process. The scope and

extent of Sections 202 and 203 were laid down in Vadilal

Panchal v. Dattatraya Dulaji Gha Digaonkar [Vadilal Panchal v.

Dattatraya Dulaji Gha Digaonkar, AIR 1960 SC 1113 : 1960 Cri

LJ 1499] . The scope of enquiry under Section 202 is limited to

finding out the truth or otherwise of the complaint in order to

determine whether process should issue or not and Section 203

lays down what materials are to be considered for the purpose.

Under Section 203 of the Criminal Procedure Code the judgment

which the Magistrate has to form must be based on the

statements of the complainant and of his witnesses and the

result of the investigation or enquiry, if any. He must apply his

mind to the materials and form his judgment whether or not there

is sufficient ground for proceeding. Therefore if he has not

misdirected himself as to the scope of the enquiry made under

Section 202 of the Criminal Procedure Code, and has judicially

applied his mind to the material before him and then proceeds to

make his order it cannot be said that he has acted erroneously.

An order of dismissal under Section 203 of the Criminal

Procedure Code, is, however, no bar to the entertainment of a

second complaint on the same facts but it will be entertained

only in exceptional circumstances, e.g., where the previous order

was passed on an incomplete record or on a misunderstanding

of the nature of the complaint or it was manifestly absurd, unjust

or foolish or where new facts which could not, with reasonable

diligence, have been brought on the record in the previous

proceedings, have been adduced. It cannot be said to be in the

interests of justice that after a decision has been given against

the complainant upon a full consideration of his case, he or any

other person should be given another opportunity to have his

complaint enquired into. Allah Ditta v. Karam Bakhsh [Allah Ditta

v. Karam Bakhsh, 1930 SCC OnLine Lah 268 : AIR 1930 Lah

879] ; R.N. Choubey v. P. Jain [R.N. Choubey v. P. Jain, 1948

SCC OnLine Pat 85 : AIR 1949 Pat 256] ; Hansabai Sayaji

Payagude v. Ananda Ganuji Payagude [Hansabai Sayaji

Payagude v. Ananda Ganuji Payagude, 1949 SCC OnLine Bom

99 : AIR 1949 Bom 384] and Doraiswami Ayyar v. T. Subramania

Ayyar [Doraiswami Ayyar v. T. Subramania Ayyar, 1917 SCC

OnLine Mad 167 : AIR 1918 Mad 484] . In regard to the adducing

of new facts for the bringing of a fresh complaint the Special

Bench in the judgment under appeal did not accept the view of

the Bombay High Court [Hansabai Sayaji Payagude v. Ananda

Ganuji Payagude, 1949 SCC OnLine Bom 99 : AIR 1949 Bom

384] or the Patna High Court [R.N. Choubey v. P. Jain, 1948

17

SCC OnLine Pat 85 : AIR 1949 Pat 256] in the cases above

quoted and adopted the opinion of Maclean, C.J. in Queen

Empress v. Dolegobind Dass [Queen Empress v. Dolegobind

Dass, 1900 SCC OnLine Cal 229 : ILR (1901) 28 Cal 211]

affirmed by a Full Bench in Dwarka Nath Mondul v. Beni Madhab

Banerjee [Dwarka Nath Mondul v. Beni Madhab Banerjee, 1901

SCC OnLine Cal 242 : ILR (1901) 28 Cal 652] . It held therefore

that a fresh complaint can be entertained where there is manifest

error, or manifest miscarriage of justice in the previous order or

when fresh evidence is forthcoming.”

15.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. Ranjit Kaur

4

, in case of Ranvir

Singh Vs. State of Haryana and Another

5

, in case of Poonam

Chand Jain and Another Vs. Fazru

6

, as also in the latest decision

in case of Samta Naidu and Another Vs. State of Madhya

Pradesh and Another

7

. Thus, having regard to the said legal

position, it could not be said that the trial court had committed any

error in entertaining the complaints filed by the respondent

complainant, when the previous complaint filed by him was

pending before the other court, and more particularly when the

said court had dismissed the said previous complaint for non-

prosecution, without taking cognizance of the alleged offences

therein.

16. It was also submitted by the learned Senior Counsel, Mr. Luthra

that similar complaints filed by other complainants against the

appellant and others making similar allegations were not found to

4 (2001) 2 SCC 570

5 (2009) 9 SCC 642

6 (2010) 2 SCC 631

7 (2020) 5 SCC 378

18

be of any substance. In the opinion of the Court, there is hardly

any substance in the said submission. Apart from the fact that the

names of the complainants and of the accused were different in

the said complaints, it is difficult to cull out whether all other

complaints pertained to the same properties for which the present

complaints have been filed. It may also be noted that in one of the

complaints filed by the other complainant Shine Varghese, though

a closure report was filed by the police, the protest petition has

been filed by the said complainant, and that the concerned trial

court has reopened the case for hearing.

17. 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. The High Court in the impugned order has also

discussed in detail the submissions made by the counsels for the

parties in the petitions filed by the appellant under Section 482 of

Cr.P.C. and upheld the order passed by the Sessions Court. In

view of the said observations made and prima facie findings

recorded by the three courts below as regards the alleged

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involvement of the appellant in the alleged offences, this Court is

not inclined to interfere with the same.

18. No doubt, summoning of an accused is a serious matter and

therefore the Magistrate before issuing the summons to the

accused is obliged to scrutinize carefully the allegations made in

the complaint with a view to prevent a person named therein as

accused from being called upon to face any frivolous complaint,

nonetheless one of the objects of Section 202 Cr.P.C. is also to

enable the Magistrate to prosecute a person or persons against

whom grave allegations are made. Just as it is necessary to curtail

vexatious and frivolous complaints against innocent persons, it is

equally essential to punish the guilty after conducting a fair trial. 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. Suffice it to say that having carefully examined

the record of the complaints in question, we do not find any

illegality or infirmity in the orders passed by the trial court issuing

summons against the appellant-Archbishop for the alleged

offences.

19. So far as SLP (Crl.) 1487-1493 of 2022 filed by Eparchy of

Bathery and the Diary No. 7364 of 2022 filed by Catholic Diocese

of Thamarassery (hereinafter referred to as the ‘petitioners’) are

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concerned, as stated earlier the said petitioners have challenged

the observations recorded by the High Court in para 17 to 39 of the

impugned judgement, on the ground that the said observations

were made behind the back of the petitioners and other Diocese,

and that such observations had wide ramifications throughout the

state. 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.

20. In this regard, the learned Senior Counsel Mr. Chander Uday

Singh had submitted that the petitioners had nothing to do with the

appellant-accused Archbishop, however, the High Court in the

proceeding under Section 482 Cr.P.C. filed by him has defined,

decided and declared the spiritual, ecclesiastical and temporal

powers of the Catholic Church without affording any opportunity of

hearing to the affected parties, which is not legally permissible. Mr.

Chander Uday Singh has relied upon observations made by this

Court in Criminal Appeal arising out of SLP (Crl.) 4567 of 2019

(Anu Kumar Vs. State (UT Administration) and another) to

substantiate his submission that High Court could not have

ventured to enter into an area which would adversely affect the

interest of the third party to the proceedings.

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21.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. Hence, without stretching the

matter any further and without expressing any opinion on the said

prima facie observations made in para 17 to 39 of the impugned

order, we deem it appropriate to direct, and accordingly direct the

Trial Court to decide the complaints in question filed by the

respondent no. 2 against the appellant-Archbishop and others in

accordance with law without being influenced by the said

observations made by the High Court in the impugned order and

that it would be open to the said petitioners to take recourse to the

remedies as may be legally permissible, in case the said

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observations cause any complications in the transactions already

concluded by the Churches to whom the said petitioners represent.

22. In absence of any other and further material on record to support

the grievances of the said petitioners, we are not inclined to

entertain the said SLPs filed by the petitioners Eparchy of Bathery

and Catholic Diocese of Thamarassery, in exercise of our limited

jurisdiction under Article 136 of the Constitution of India, more

particularly when the said petitioners have failed to make out any

case of grave injustice being suffered to them. As stated earlier,

the said observations have been made by the High Court in

response to the submissions made by the counsels for the parties

in the light of the various decisions of this Court, and the said

observations being prima facie in nature, no finality could be

attached to them.

23. Having said that, 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. The High Court after recording its findings

in the impugned order about the Criminal Conspiracy allegedly

hatched by the appellant and the other accused for fraudulently

selling the properties belonging to Archdiocese, further enlarged

the scope of the petitions by raising doubts as regards the

settlement deed executed by the appellant and others in respect of

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the properties as to whether the said settlement deed was with

respect to any government land or poramboke land. The High

Court while dismissing the petitions filed by the appellant-

Archbishop under Section 482 of Cr.PC, further directed the State

Government as under:-

“Hence, it is ordered that the government shall conduct the

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

Poramboke Land, and whether it was a government land or a

Poramboke land at any point of time and also the non-action/in

action on 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 selected.”

24. The High Court did not stop at giving the aforesaid directions but

kept on passing the subsequent orders even after the roster was

changed. From the application being I.A. 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. No.8936/2019 by observing as

under:-

“6. Since there is no comprehensive law addressing the legal

status of unincorporated organization acting under the guise of

either religion or charity, it is necessary to hear the Central

Government on that issue.

7. The misuse of government properties/public properties,

puramboke lands has become a matter of concern and when it is

done by religious bodies or congregational institutions, there will

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not be any person to challenge the same before a competent

court, especially when such bodies constitute a deciding factor in

the election of members to the Assembly and Parliament. This

might be the reason why there is massive and large scale

encroachment over the government land, public property and

puramboke land at the instance of religious and charitable

unincorporated bodies. It is also a matter that can be taken note

of judicially by this court. I am afraid such misuse and

encroachment of puramboke lands are not being properly dealt

with. Necessarily, there should be a separate government

agency at the central level akin to other central agencies dealing

with public matters, investigation etc. to initiate action against

encroachment over government and public properties.

8. The Registry is directed to implead the Union of India,

represented by Additional Solicitor General of India as an

additional party to the main case-Crl.M.C.No.8936/2019 so as to

express their view on the issue and to enact a comprehensive

law dealing with the abovesaid issue, besides the formation of a

central agency.

9. The Officer, who conducted the enquiry shall submit a detailed

report addressing all the issues raised and directed by this Court

on or before 02/03/2022. Call on 03/03/2022”

25.Thereafter on 03.03.2022, following order was passed by the High

Court:

“Assistant Solicitor General of India appeared and wanted time

to file reply. No second report or additional report was submitted

by the State in spite of the direction issued by this Court.

Hence, there will be a direction to the concerned official to

appear in person and to show cause why the order of this Court

is flouted. Under such circumstances, it is necessary to implead

the Central Bureau of Investigation as an additional respondent

in the main case. The Registry is directed to implead the

Central Bureau of Investigation represented by its Director, New

Delhi as additional respondent. There will also be a direction to

the Registry to send a copy of the judgment dated 12.08.2021

along with the order dated 08.02.2022 to the Assistant Solicitor

General of India for information. Call on 21.03.2022.”

26. Again on 10.06.2022, following order was passed by the High

Court -

“Several postings have been given to the Central Government

and the Assistant Solicitor General of India to take instructions.

So far there is no positive response on the part of Assistant

Solicitor General and as such, there will be a direction to file an

affidavit as to whether they are actually interested in the matter

or not.

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There will be a direction to the State Government to address the

issue in reference to Article 296 of the Constitution of India and

submit a detailed report. As last chance, post on 23-06-2022.”

27.From the afore-stated orders, it clearly transpires that the High

Court after the dismissal of the petitions filed by the appellant –

Archbishop under Article 482 of Cr.P.C., invoked its Suo motu

jurisdiction directing the State Government to make detailed

inquiry with regard to the execution of sale deed and settlement

deed in respect of some of the properties sold out by the appellant,

and find out whether the said properties belonged to the

Government or were Poramboke land, and whether the said

settlement deed was created with the aim to manipulate a

document of title over Government land. Thereafter, also the

concerned judge retained the matters with him even after the

change of roster, and continued to pass the orders one after the

other on the issues which were neither the subject matter of the

main petitions under Section 482 nor were argued by the

concerned advocates for the parties. The concerned judge also

assumed his plenary-advisory role by calling upon and advising

the State Government to legislate a comprehensive law

addressing the issues pertaining to the legal status of

unincorporated organisation acting under the guise of religion or

26

charity. On non-submission of the second report by the State, the

High Court directed the concerned officer to appear in person, and

directed the Registry to implead CBI as an additional respondent

in the main case, though the same was already disposed of.

28.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.

29.In our opinion, the jurisprudential enthusiasm and wisdom for

doing the substantial justice has to be applied by the courts within

the permissible limits. The belief of self-righteousness or

smugness of the High Court in exercise of its powers of judicial

review should not overawe the other authorities discharging their

statutory functions. We may not have to remind the High Courts

that judicial restraint is a virtue, and the predilections of individual

judges, howsoever well intentioned, cannot be permitted to be

operated in utter disregard of the well-recognized judicial principles

governing uniform application of law. Unwarranted judicial activism

may cause uncertainty or confusion not only in the mind of the

authorities but also in the mind of the litigants.

30. In that view of the matter, all the subsequent orders passed by the

High Court after the passing of the impugned order dated

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12.08.2021, being unwarranted deserve to be quashed and set

aside, and are accordingly quashed and set aside.

31. In the aforesaid premises and subject to the afore-stated

observations/directions, the Criminal Appeal filed by the Appellant-

Archbishop, and all the SLPs filed by Eparchy of Bathery and

Catholic Diocese of Thamarassery are dismissed.

…....…..…………………J.

(DINESH MAHESHWARI)

…..…………………J.

(BELA M. TRIVEDI)

NEW DELHI

17.03.2023

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