Supreme Court of India
CARDINAL MAR GEORGE ALENCHERRYversusSTATE OF KERALA & ANR.
- Citation
- 2023 INSC 250
- Decided
- 17 March 2023
- Disposal
- Disposed off
- Bench
- DINESH MAHESHWARI
Holding
The trial court’s issuance of summons in the fresh complaint was lawful, and the High Court had overstepped its jurisdiction, so its subsequent orders were quashed.
Summary
The Archbishop of the Syro‑Malabar Church, Cardinal Mar George Alencherry, was charged in several complaints alleging conspiracy and fraud in the disposal of church immovable property. An earlier complaint filed in a different court was dismissed under Section 203 of the CrPC for non‑prosecution. The trial court in Kakkanad, before that dismissal, took cognizance of the offences and issued summons in a fresh complaint. The appellant challenged the validity of those summons and the High Court’s subsequent directions under Section 482 and Article 226, alleging judicial overreach. The Supreme Court held that a dismissal under Section 203 does not bar a fresh complaint in exceptional circumstances and that the trial court’s issuance of summons was proper; it also found the High Court had exceeded its jurisdiction and quashed its later orders. Consequently, the appeal and all related SLPs were dismissed.
Issues considered
- The effect of a dismissal under Section 203 CrPC on the maintainability of a subsequent complaint on the same facts.
- Whether non‑disclosure of a prior complaint by the complainant warrants setting aside summons issued by the trial court.
- The scope of power of a High Court under Section 482 CrPC and Article 226 to pass directions beyond the specific petitions.
- Whether the High Court’s post‑impugned orders directing investigations and impleading parties were ultra vires.
- The appropriate balance between judicial activism and judicial restraint in criminal procedural matters.
Legislation cited
- Code of Criminal Procedure, 1973s. 190, s. 202, s. 203, s. 204, s. 482
- Indian Penal Code, 1860s. 120B, s. 34, s. 406, s. 409, s. 418, s. 420, s. 423, s. 465, s. 467, s. 468
Subjects
Criminal ProcedureSection 203Section 482SummonsJudicial activismJudicial restraintFresh complaintCognizanceChurch propertyConspiracy
Judgment
1014 [2023]REPORTS
SUPREME COURT 2 S.C.R. 1014 [2023] 2 S.C.R.
A CARDINAL MAR GEORGE ALENCHERRY
v.
STATE OF KERALA & ANR.
(Criminal Appeal Nos. 836-41 of 2023)
B MARCH 17, 2023
[DINESH MAHESHWARI AND BELA M. TRIVEDI, JJ.]
Code of Criminal Procedure, 1973 – Issuance of summons –
Legality of – A complaint was made against the appellant-archbishop
and other accused persons for having committed an offense u/s
C
120B, 406, 409, 418, 420, 423, 465, 467, 468 r/w 34 of IPC alleging
that the appellant along with other accused persons had fraudulently
disposed of certain immovable property belonging to the church –
The first complaint filed by the complainant was dismissed by the
court at Maradu on 30.09.2021 without taking cognizance of the
D complaint as the counsel for complainant did not appear – On
02.04.2019, in another complaint on same set of facts, the trial
court (at Kakkanad) dismissed the complaint u/s. 203 of Cr.P.C.
with respect to offences u/ss. 409, 418, 420, 465, 467 and 468 of
the IPC, however issued summons to the appellants and other accused
persons for the offfences u/ss. 120-B, 406, 423 r/w s.34 IPC – The
E
appellant filed the revision application before the Sessions Court
but the same was dismissed and the petition u/s 482 Cr.P.C. before
the High Court was also dismissed – Before the Supreme Court,
appellant contended that the instant complaint after dismissal of
the earlier complaint on same facts was not maintainable – Held:
F Trial Court at Kakkanad in the instant complaint cases, before the
dismissal of the previous complaint, had already taken cognizance
by issuing summons to the appellant and others – It is true that the
complainant, in the instant complaint, 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 but
G
mere non-disclosure of such facts, would not be a ground to set
aside the summons issued by the trial Court which after applying its
mind and having been prima facie satisfied about the commission of
the alleged offences u/ss. 120B, 406 and 423 r/w. 34 of IPC had
issued summons – All the three Courts below have discussed in detail
H about the prima facie involvement of the appellant in the alleged
1014
CARDINAL MAR GEORGE ALENCHERRY v. STATE OF 1015
KERALA & ANR.
offences, and having carefully examined the record of the complaints A
in question, there is no illegality or infirmity in the orders passed by
the trial Court issuing summons against the appellant.
Code of Criminal Procedure, 1973 – s. 482 – Restraint on
exercise of powers under Judicial Review – Held: Judicial restraint
is a virtue, and the predilections of individual judges, howsoever B
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.
C
Disposing of the matters, the Court
HELD: 1. In case of Pramatha Nath Talukdar Vs. Saroj
Ranjan Sarkar, it was held with regard to filing of the second
complaint that a fresh complaint could be entertained after the
dismissal of previous complaint under Section 203 of the Criminal D
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 E
was passed on an incomplete record or on a misunderstanding of
nature of complaint or it was manifestly 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. Having regard to the said legal position and various F
decisions of the Supreme Court, 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 G
offences therein. [Paras 14 and 15][1028-D-F; 1030-D-E]
2. The Sessions Court in the Revision petitions filed by
the appellant had also upheld the said orders passed by the trial
H
1016 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 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
B
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
involvement of the appellant in the alleged offences, this Court
is not inclined to interfere with the same. [Para 17][1031-A-C]
C 3. 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,
D 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
E 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, there
is no illegality or infirmity in the orders passed by the trial court
F issuing summons against the appellant-Archbishop for the alleged
offences. [Para 18][1031-C-F]
4. 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
G boundaries of judicial activism and judicial restraint by passing
such orders under the guise of doing real and substantial justice.
The jurisprudential enthusiasm and wisdom for doing the
substantial justice has to be applied by the courts within the
H
CARDINAL MAR GEORGE ALENCHERRY v. STATE OF 1017
KERALA & ANR.
permissible limits. The belief of self-righteousness or smugness A
of the High Court in exercise of its powers of judicial review
should not overawe the other authorities discharging their
statutory functions. The court 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
B
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.
[Paras 28 and 29][1036-A-D]
S. K. Sinha, Chief Enforcement Officer v. Videocon C
International Ltd. and Others (2008) 2 SCC 492 :
[2008] 2 SCR 36; Ramdev Food Products Private v.
State of Gujarat (2015) 6 SCC 439 : [2015] 5 SCR
283; Pramatha Nath Talukdar v. Saroj Ranjan Sarkar
AIR 1962 SC 876 : [1962] Suppl. SCR 297 – relied D
on.
Jatinder Singh and Others v. Ranjit Kaur (2001) 2 SCC
570 : [2001] 1 SCR 707; Ranvir Singh v. State of
Haryana and Another (2009) 9 SCC 642; Poonam
Chand Jain and Another v. Fazru (2010) 2 SCC 631 : E
[2010] 2 SCR 109; Samta Naidu and Another v. State
of Madhya Pradesh and Another (2020) 5 SCC 378 :
[2020] 2 SCR 1127– referred to.
Case Law Reference
[2008] 2 SCR 36 relied on Para 10 F
[2015] 5 SCR 283 relied on Para 11
[1962] Suppl. SCR 297 relied on Para 14
[2001] 1 SCR 707 referred to Para 15
[2010] 2 SCR 109 referred to Para 15 G
[2020] 2 SCR 1127 referred to Para 15
H
1018 SUPREME COURT REPORTS [2023] 2 S.C.R.
A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 836-841 of 2023.
From the Judgment and Order dated 12.08.2021 of the High Court
of Kerala at Ernakulam in CRLMC Nos.8936 of 2019, 205, 1414, 1409,
2138, 2136 of 2020 and 9115 of 2019.
B With
Special Leave Petition (Crl.) Nos. 1487-1493 of 2022 and 3580-
3586 of 2023.
Chander Uday Singh, Siddharth Luthra, Sr. Advs., Romy Chacko,
C Robin V.S., Sudesh Kumar, Gyanant Singh, Pratap Shanker, Asif Ahmed,
Kunal Sinha, Sarthak Shanker, Swetank Shantanu, Advs. for the
Appellant.
Jaideep Gupta, Jayanth Muth Raj, Sr. Advs., Nishe Rajen Shonker,
Alim Anvar, Mrs. Anu K Joy, Abdulla Naseeh V.T., Ms. Meena K.
D Poulose, P. S. Sudheer, Ms. Miranda Solaman, Rishi Maheshwari,
Ms. Anne Mathew, Bharat Sood, Ms. Shruti Jose, Ashok Basoya,
Kuriakose Varghese, V. Shyamohan, Ms. Aishwarya Hariharan, Akshat
Gogna, Advs. for the Respondents.
V Giri, Sr. Adv., Raghenth Basant, Ms. Rashmi Nandakumar, Ms.
Roopali Lakhotia, Shreerang Verma, Ajay Krishna, P.V. Dinesh, Jaimon
E
Andrews, Rahul Raj Mishra, Bineesh K., Naresh Kumar, Advs. For the
Impleader.
The Judgment of the Court was delivered by
BELA M. TRIVEDI, J.
F 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.
G 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
H
CARDINAL MAR GEORGE ALENCHERRY v. STATE OF 1019
KERALA & ANR. [BELA M. TRIVEDI, J.]
by Eparchy of Bathery (not a party before the High Court), and in the A
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,
B
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 C
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 D
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 E
(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. F
(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 G
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 H
1020 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 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.
B (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
C 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
D 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.
E (v) The 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 the accused for the
F 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
G the trial court had issued the summons by passing separate orders, the
details of which are as under:
H
CARDINAL MAR GEORGE ALENCHERRY v. STATE OF 1021
KERALA & ANR. [BELA M. TRIVEDI, J.]
A
B
C
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 preferred Criminal D
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 E
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 12th 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 F
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 G
the appellant-Archbishop submitted following chart, showing details of
the properties involved in these appeals.
H
1022 SUPREME COURT REPORTS [2023] 2 S.C.R.
A DETAILS OF PROPERTY
B
C
D
E
F
G 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:-
(i) 03.01.2018: The respondent no. 2 Joshy Varghese, the
complainant, had filed a complaint being CMP No. 2/2018
H
CARDINAL MAR GEORGE ALENCHERRY v. STATE OF 1023
KERALA & ANR. [BELA M. TRIVEDI, J.]
in the Court of Judicial Magistrate, First Class. Maradu, A
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
B
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 C
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
Magistrate, Ernakulam vide the order dated 02.02.2018 D
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 E
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 F
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 G
was registered, however the investigating officer has
submitted a closure report in the said complaint.
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
H
1024 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 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,
B
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
C 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
D
the counter filed 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
E 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.
F
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
G Ltd. and Others1, 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
1
H (2008) 2 SCC 492
CARDINAL MAR GEORGE ALENCHERRY v. STATE OF 1025
KERALA & ANR. [BELA M. TRIVEDI, J.]
esoteric or mystic significance in criminal law. It merely means A
“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.
B
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. C
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 D
“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 E
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 F
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
G
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 H
1026 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 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—
B (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
C 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.
D (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
E 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
F 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
G 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.”
H
CARDINAL MAR GEORGE ALENCHERRY v. STATE OF 1027
KERALA & ANR. [BELA M. TRIVEDI, J.]
11. In Ramdev Food Products Private Vs. State of Gujarat 2 A
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 B
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 C
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 D
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 the
court of JMFC, Maradu seeking prayer to direct investigation to the E
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 F
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 G
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
2
(2015) 6 SCC 439 H
1028 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 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 the
evidence of the complainant and one witness, had taken the cognizance,
with regard to the aforesaid offences only and had not taken cognizance
B
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
C 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 Sarkar3, it was held with regard to filing of the second complaint
that a fresh complaint could be entertained after the dismissal of previous
D 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
E was passed on an incomplete record or on a misunderstanding of nature
of complaint or it was manifestly 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 :
F “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
G 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] .
3
H AIR 1962 SC 876
CARDINAL MAR GEORGE ALENCHERRY v. STATE OF 1029
KERALA & ANR. [BELA M. TRIVEDI, J.]
The scope of enquiry under Section 202 is limited to finding out A
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
B
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 C
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
D
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 E
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,
F
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 G
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 SCC OnLine
H
1030 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 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 :
B
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
C (supra) case were reiterated in various later decisions in case of Jatinder
Singh and others Vs. Ranjit Kaur4, in case of Ranvir Singh Vs. State
of Haryana and Another 5, in case of Poonam Chand Jain and
Another Vs. Fazru6, as also in the latest decision in case of Samta
Naidu and Another Vs. State of Madhya Pradesh and Another7.
D 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.
E
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 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
F 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
G protest petition has been filed by the said complainant, and that the
concerned trial court has reopened the case for hearing.
4
(2001) 2 SCC 570
5
(2009) 9 SCC 642
6
(2010) 2 SCC 631
7
H (2020) 5 SCC 378
CARDINAL MAR GEORGE ALENCHERRY v. STATE OF 1031
KERALA & ANR. [BELA M. TRIVEDI, J.]
17. The Sessions Court in the Revision petitions filed by the A
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
B
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 involvement
of the appellant in the alleged offences, this Court is not inclined to
interfere with the same. C
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 D
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 E
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. F
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 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, G
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. H
1032 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 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
B
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
C of the third party to the proceedings.
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
D 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
E 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-
F 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 observations
cause any complications in the transactions already concluded by the
Churches to whom the said petitioners represent.
G
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
H
CARDINAL MAR GEORGE ALENCHERRY v. STATE OF 1033
KERALA & ANR. [BELA M. TRIVEDI, J.]
the said petitioners have failed to make out any case of grave injustice A
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.
B
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 C
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 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 D
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 E
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.” F
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 G
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:-
H
1034 SUPREME COURT REPORTS [2023] 2 S.C.R.
A “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,
B puramboke lands has become a matter of concern and when it is
done by religious bodies or congregational institutions, there will
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
C 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
D 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,
E 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
F 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
G 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
H
CARDINAL MAR GEORGE ALENCHERRY v. STATE OF 1035
KERALA & ANR. [BELA M. TRIVEDI, J.]
case. The Registry is directed to implead the Central Bureau of A
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.”
B
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 C
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.
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.” D
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 E
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 F
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 G
organisation acting under the guise of religion or 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.
H
1036 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 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.
B 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
C 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.
D 30. In that view of the matter, all the subsequent orders passed by
the High Court after the passing of the impugned order dated 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
E 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.
Ankit Gyan Matters disposed of.
F (Assisted by : Mahendra Yadav, LCRA)
G
H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Criminal Procedure"Sign in to search