Apex court refuses to strike down summons to cardinal
The Supreme Court on Friday refused to quash summons issued by a trial court in Kerala to Cardinal Mar George Alencherry of Syro-Malabar Church in criminal cases accusing him of conspiring to fraudulently dispose of archdiocese properties worth crores of rupees between 2012 and 2017. The church leader, the Eparchy of Bathery and the Catholic Diocese of Thamarassery had separately filed special leave petitions against a decision of the Kerala High Court in August 2021 refusing to quash the criminal proceedings against the Cardinal.
“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,” a Bench of Justices Dinesh Maheshwari and Bela Trivedi observed.
Justice Trivedi said three lower courts had discussed in detail “the prima facie involvement of the appellant in the alleged offences”. “Suffice it to say that having carefully examined the record of the complaints in question, we do not find any illegality in the orders passed by the trial court issuing summons against the appellant,” Justice Trivedi said.
In a set back to Cardinal George Alencherry, the Major Archbishop of Syro-Malabar Church, the Supreme Court on Friday refused to quash the criminal cases against him over alleged irregularities in the sale of properties belonging to Ernakulam-Angamalay Archdiocese.
The Court dismissed the Special Leave Petition filed by George Alencherry against the judgment delivered by the Kerala High Court in August 2021 which refused to quash the criminal proceedings against him over the land scam.
Noting that the trial court, sessions court and the High Court held that a prima facie case was made out against the petitioner, the Supreme Court stated : "In view of the said observations made and prima facie findings recorded by the three courts below as regards the alleged involvement of the appellant in the alleged offences, this Court is not inclined to interfere with the same".
"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", the Court said.
At the same time, the Supreme Court expressed displeasure towards the subsequent orders passed by the single bench of the High Court in Alencherry's petition (after refusing to quash the case against him).
Apart from the Cardinal, the Eparchy of Bathery and the Catholic Diocese of Thamarassery had also filed SLPs challenging the general observations made by the High Court that Bishops have no power to alienate church assets.
"We express our displeasure towards the subsequent orders passed by the High Court and quashed them. At the same time, dismissed the appeal and SLPs. Subsequent orders,which have been passed after the impugned order, are quashed. The impugned judgment is upheld with certain observations and directions", Justice Bela Trivedi said at the time of judgment pronouncement.
Also held in the judgment- No Finality For Kerala HC's Observation That Church Assets Are Public Trusts & Not Governed By Canon Law : Supreme Court
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 with the requirements as per the bye-laws of the Church causing heavy financial losses to the church and its parishioners.
It was also alleged that valuable properties were disposed of at throwaway prices are the result of a criminal conspiracy hatched between the Alencherry in collusion with his henchmen and the persons who had purchased the properties. He is facing charges for cheating, criminal breach of trust, forgery, criminal conspiracy etc., punishable under Section 120 B, 406, 409, 418, 420, 423, 465, 467, 468 and 34 of IPC for his offences.
The Court clarified that the observations made by the Kerala High Court in Cardinal George Alencherry's case regarding canon law and the power of the Bishops to alienate church assets are prima facie in nature and no finality can be attached to them.
The Kerala High Court had observed that church assets are to be treated as public trusts and the canon law provisions conferring unilateral powers to Bishops to alienate church assets must be construed as subject to Section 92 of the Code of Civil Procedure. Taking exception to the general findings made by the Kerala High Court about canon law, two Catholic dioceses- Diocese of Thamarassery and Eparchy of Bathery- filed separate Special Leave Petitions in the Supreme Court. These petitions were considered by the Supreme Court along with the petition filed by Alencherry seeking quashing of the cases.
While dismissing Alencherry's petition, the Supreme Court clarified that the High Court's observations (from para 17 to 39 in the judgment) on Canon Law are only prima facie in nature.
A bench comprising Justices Dinesh Maheshwari and Bela Trivedi stated as follows :
"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 AppellantArchbishop under Section 482 of Cr.PC, no finality could be attached to the said observations"
Therefore, the bench directed the trial court to proceed with the complaints against Alencherry without being influenced by these observations made by the High Court.
Since, these are only prima facie observations, the Supreme Court opined that the petitions filed by the dioceses need not be entertained.
"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".
High Court criticised for "overzealous" approach
The Supreme Court also criticised the High Court for passing subsequent orders in the case, after dismissing Alencherry's petition, to ascertain the public encroachments by religious institutions. Even after the change in roster, the single judge continued to pass orders and even assumed plenary jurisdiction to advise a legislation on religious endowments, the Supreme Court disapprovingly noted. The single judge also impleaded the CBI as a respondent in the case.
The Supreme Court was of the view that the High Court "in its overzealous approach" exceeded its jurisdiction under Section 482 CrPC by enlarging the scope of the petition and "crossed all the boundaries of judicial activism and judicial restraint by passing such orders under the guise of doing real and substantial justice".
"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", the Apex Court observed while quashing the subsequent orders passed by the High Court.
Case Title : Cardinal Mar George Alencherry vs State of Kerala and another
Citation : 2023 LiveLaw (SC) 203
Code of Criminal Procedure 1973- Section 190- 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 - Para 10
Code of Criminal Procedure 1973- Section 190, 203- 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 absurd- followed -Pramatha Nath Talukdar Vs. Saroj Ranjan Sarkar AIR 1962 SC 876
Code of Criminal Procedure 1973 -Section 200- 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- Para 18.
Canon Law - Kerala High Court's observation that church assets are governed by public trust law and Bishops have no power to alienate them are prima facie in nature, no finality can be attached to them-Para 21, 22
Code of Criminal Procedure 1973 -Section 482- Supreme Court criticises Kerala HC for overstepping jurisdiction to pass general orders-High Court in its overzealous approach" exceeded its jurisdiction under Section 482 CrPC by enlarging the scope of the petition and crossed all the boundaries of judicial activism and judicial restraint by passing such orders under the guise of doing real and substantial justice -para 28.
Judicial Activism- 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 -para 29
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