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SUPREME COURT OF INDIA
Dinesh Maheshwari, Bela M. Trivedi, JJ.
Cardinal Mar George Alencherry – Appellant
vs.
State of Kerala & Anr. – Respondents
Criminal Appeal Nos. 836-841 of 2023 (@ Special Leave Petition (Crl.) Nos. 2849-2854 of 2022) with Special Leave Petition (Crl.) Nos. 1487-1493 of 2022 with Special Leave Petition (Crl.) No(s). ……… of 2023 (Arising Out of Diary No. 7364 of 2022)
Decided On : 17-03-2023
(A) Criminal Procedure Code, 1973 – Section 482 – Constitution of India – Article 226 – Judicial review – Scope and ambit – Jurisprudential enthusiasm and wisdom for doing substantial justice has to be applied by courts within permissible limits – Belief of self-righteousness or smugness of High Court in exercise of its powers of judicial review should not overawe other authorities discharging their statutory functions – Judicial restraint is a virtue and predilections of individual judges, howsoever well intentioned, cannot be permitted to be operated in utter disregard of well-recognized judicial principles governing uniform application of law – Unwarranted judicial activism may cause uncertainty or confusion not only in mind of authorities but also in mind of litigants. (Para 29)
(B) Criminal Procedure Code, 1973 – Section 202 – Summoning of accused – Summoning of accused is a serious matter and Magistrate before issuing summons to accused is obliged to scrutinize carefully allegations made in complaint with a view to prevent a person named therein as accused from being called upon to face any frivolous complaint – Nonetheless, one of objects of Section 202 Cr.P.C. is also to enable Magistrate to prosecute a person 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 guilty after conducting a fair trial. (Para 18)
(C) Criminal Procedure Code, 1973 – Sections 190 and 202 – Indian Penal Code, 1860 – Sections 409, 418, 420, 465, 467 and 468 – Cognizance of offence and summoning of accused – Criminal breach of trust, cheating and forgery charges – Cognizance is taken of offence and not of offender – Though complainant, in instant complaints, should have disclosed full and correct facts more particularly with regard to previous complaint filed by him against appellant and other accused in respect of alleged fraudulent sale of properties belonging to Archdiocese, mere non-disclosure of such facts, would not be a ground to set aside summons issued by Trial Court after applying its mind and having been prima facie satisfied about commission of alleged offences – It could not be said that trial court had committed any error in entertaining complaints filed by respondent complainant when previous complaint filed by him was pending before other court and more particularly when said court had dismissed previous complaint for non-prosecution, without taking cognizance of alleged offences therein – All three courts below have discussed in detail about prima facie involvement of appellant in alleged offences – No illegality or infirmity in orders passed by trial court issuing summons against appellant for alleged offences – Appeals dismissed. (Paras 10, 13, 15, 18 and 31)
Facts of the case:
It is alleged that appellant- Archbishop entered into a criminal conspiracy with accused no. 2 – Rev Fr. Joshy Puthuva, who was financial officer of the said Archdiocese, during period from 2012 to 2017 to fraudulently dispose of some of immovable properties of 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. Trial Court vide the order dated 2nd April, 2019 took the complaint on file and dismissed the complaint under Section 203 of Cr.P.C. so far as the offences under Sections 409, 418, 420, 465, 467 and 468 of IPC were concerned, however issued summons against accused for offences under Sections 120-B, 406, 423 read with 34 of IPC.
Findings of Court:
High Court in its overzealous approach had travelled not only beyond scope and ambit of Section 482 Cr.P.C and of Article 226 of Constitution of India, but had crossed all boundaries of judicial activism and judicial restraint by passing such orders under guise of doing real and substantial justice.
Result : Criminal Appeal dismissed.
JUDGMENT :
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 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 16th July, 2018, against three accused i.e. (1) the 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.
(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 complain
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