CARDINAL MAR GEORGE ALENCHERRY versus STATE OF KERALA & ANR.

[2023] 2 S.C.R.

ACARDINAL MAR GEORGE ALENCHERRY

STATE OF KERALA & ANR.

(Criminal Appeal Nos. 836-41 of 2023)

BMARCH 17, 2023

[DINESH MAHESHWARI AND BELA M. TRIVEDI, JJ.]

Code of Criminal Procedure, 1973 – Issuance of summons –Legality of – complaint was made against the appellant-archbishopand other accused persons for having committed an offense u/sC120B, 406, 409, 418, 420, 423, 465, 467, 468 r/w 34 of IPC allegingthat the appellant along with other accused persons had fraudulentlydisposed of certain immovable property belonging to the church –The first complaint filed by the complainant was dismissed by thecourt at Maradu on 30.09.2021 without taking cognizance of theDcomplaint as the counsel for complainant did not appear – On02.04.2019, in another complaint on same set of facts, the trialcourt (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 ofthe IPC, however issued summons to the appellants and other accusedpersons for the offfences u/ss. 120-B, 406, 423 r/w s.34 IPC – TheEappellant filed the revision application before the Sessions Courtbut the same was dismissed and the petition u/s 482 Cr.P.C. beforethe High Court was also dismissed – Before the Supreme Court,appellant contended that the instant complaint after dismissal ofthe earlier complaint on same facts was not maintainable – Held:FTrial Court at Kakkanad in the instant complaint cases, before thedismissal of the previous complaint, had already taken cognizanceby issuing summons to the appellant and others – It is true that thecomplainant, in the instant complaint, should have disclosed thefull and correct facts more particularly with regard to the previouscomplaint filed by him against the appellant and other accused butGmere non-disclosure of such facts, would not be ground to setaside the summons issued by the trial Court which after applying itsmind and having been prima facie satisfied about the commission ofthe alleged offences u/ss. 120B, 406 and 423 r/w. 34 of IPC hadissued summons – All the three Courts below have discussed in detailHabout the prima facie involvement of the appellant in the alleged

offences, and having carefully examined the record of the complaintsin question, there is no illegality or infirmity in the orders passed bythe trial Court issuing summons against the appellant.

Code of Criminal Procedure, 1973 – s. 482 – Restraint onexercise of powers under Judicial Review – Held: Judicial restraintis virtue, and the predilections of individual judges, howsoeverwell intentioned, cannot be permitted to be operated in utterdisregard of the well-recognized judicial principles governinguniform application of law – Unwarranted judicial activism maycause uncertainty or confusion not only in the mind of the authoritiesbut also in the mind of the litigants.

Disposing of the matters, the Court

HELD: 1. In case of Pramatha Nath Talukdar Vs. SarojRanjan Sarkar, it was held with regard to filing of the secondcomplaint that fresh complaint could be entertained after thedismissal of previous complaint under Section 203 of the CriminalProcedure Code when there was manifest error or manifestmiscarriage of justice or when fresh evidence was forthcoming.It was further held that an order of dismissal under Section 203of the Criminal Procedure Code is no bar to the entertainment ofa second complaint on the same facts, but it will be entertainedonly in exceptional circumstances, e.g. that the previous orderwas passed on an incomplete record or on misunderstanding ofnature of complaint or it was manifestly absurd, unjust or foolishor where new facts which could not, with reasonable diligence,have been brought on record in the previous proceedings havebeen adduced. Having regard to the said legal position and variousdecisions of the Supreme Court, it could not be said that the trialcourt had committed any error in entertaining the complaints filedby the respondent complainant, when the previous complaint filedby him was pending before the other court, and more particularlywhen the said court had dismissed the said previous complaintfor non- prosecution, without taking cognizance of the allegedoffences therein. [Paras 14 and 15][1028-D-F; 1030-D-E]

2. The Sessions Court in the Revision petitions filed bythe appellant had also upheld the said orders passed by the trial

Acourt issuing summons against the appellant and others afterdealing with each and every aspect of the matter including theingredients of alleged offences for which the summons were issuedagainst the appellant. The High Court in the impugned order hasalso discussed in detail the submissions made by the counselsfor the parties in the petitions filed by the appellant under SectionB482 of Cr.P.C. and upheld the order passed by the Sessions Court.In view of the said observations made and prima facie findingsrecorded by the three courts below as regards the allegedinvolvement of the appellant in the alleged offences, this Courtis not inclined to interfere with the same. [Para 17][1031-A-C]C3. No doubt, summoning of an accused is serious matterand therefore the Magistrate before issuing the summons to theaccused is obliged to scrutinize carefully the allegations made inthe complaint with view to prevent person named therein asaccused from being called upon to face any frivolous complaint,Dnonetheless one of the objects of Section 202 Cr.P.C. is also toenable the Magistrate to prosecute person or persons againstwhom grave allegations are made. Just as it is necessary to curtailvexatious and frivolous complaints against innocent persons, itis equally essential to punish the guilty after conducting fairtrial. In the instant cases, all the three courts below haveEdiscussed in detail about the prima facie involvement of theappellant in the alleged offences, and therefore it is not necessaryfor this Court to reiterate the same. Suffice it to say that havingcarefully examined the record of the complaints in question, thereis no illegality or infirmity in the orders passed by the trial courtFissuing summons against the appellant-Archbishop for the allegedoffences. [Para 18][1031-C-F]

4. The High Court in its overzealous approach had travellednot only beyond the scope and ambit of Section 482 Cr.P.C and ofArticle 226 of the Constitution of India, but had crossed all theGboundaries of judicial activism and judicial restraint by passingsuch orders under the guise of doing real and substantial justice.The jurisprudential enthusiasm and wisdom for doing thesubstantial justice has to be applied by the courts within the

permissible limits. The belief of self-righteousness or smugnessof the High Court in exercise of its powers of judicial reviewshould not overawe the other authorities discharging theirstatutory functions. The court may not have to remind the HighCourts that judicial restraint is virtue, and the predilections ofindividual judges, howsoever well intentioned, cannot be permittedto be operated in utter disregard of the well-recognized judicialprinciples governing uniform application of law. Unwarrantedjudicial activism may cause uncertainty or confusion not only inthe 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. VideoconInternational 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 SCR283; Pramatha Nath Talukdar v. Saroj Ranjan SarkarAIR 1962 SC 876 : [1962] Suppl. SCR 297 – reliedon.

Jatinder Singh and Others v. Ranjit Kaur (2001) 2 SCC570 : [2001] 1 SCR 707; Ranvir Singh v. State ofHaryana and Another (2009) 9 SCC 642; PoonamChand Jain and Another v. Fazru (2010) 2 SCC 631 :[2010] 2 SCR 109; Samta Naidu and Another v. Stateof Madhya Pradesh and Another (2020) 5 SCC 378 :[2020] 2 SCR 1127– referred to.

ACRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 836-841 of 2023.

From the Judgment and Order dated 12.08.2021 of the High Courtof Kerala at Ernakulam in CRLMC Nos.8936 of 2019, 205, 1414, 1409,2138, 2136 of 2020 and 9115 of 2019.BWith

Special Leave Petition (Crl.) Nos. 1487-1493 of 2022 and 3580-3586 of 2023.

Chander Uday Singh, Siddharth Luthra, Sr. Advs., Romy Chacko,CRobin V.S., Sudesh Kumar, Gyanant Singh, Pratap Shanker, Asif Ahmed,Kunal Sinha, Sarthak Shanker, Swetank Shantanu, Advs. for theAppellant.

Jaideep Gupta, Jayanth Muth Raj, Sr. Advs., Nishe Rajen Shonker,Alim Anvar, Mrs. Anu K Joy, Abdulla Naseeh V.T., Ms. Meena K.Poulose, P. S. Sudheer, Ms. Miranda Solaman, Rishi Maheshwari,DMs. Anne Mathew, Bharat Sood, Ms. Shruti Jose, Ashok Basoya,Kuriakose Varghese, V. Shyamohan, Ms. Aishwarya Hariharan, AkshatGogna, Advs. for the Respondents.

V Giri, Sr. Adv., Raghenth Basant, Ms. Rashmi Nandakumar, Ms.Roopali Lakhotia, Shreerang Verma, Ajay Krishna, P.V. Dinesh, JaimonEAndrews, Rahul Raj Mishra, Bineesh K., Naresh Kumar, Advs. For theImpleader.

The Judgment of the Court was delivered by

BELA M. TRIVEDI, J.F1. Leave granted in SLP (Crl.) Nos. 2849-2854 of 2022.

2. All these matters are arising out of the impugned commonjudgment and order dated 12.08.2021 passed by the High Court of Keralaat 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.G2138 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 (originalaccused) the impugned common order dated 12.08.2021 in its entiretyhas been assailed, however, in the SLP (Crl.) No. 1487-1493/2022 filed

by Eparchy of Bathery (not party before the High Court), and in theSLP Diary No. 7364/2022 filed by the Catholic Diocese of Thamarassery(not party before the High Court), this Court vide the order dated14.02.2022 had granted permission to file the SLPs to the said petitionersto limited extent in respect of the petitioners’ grievances pertaining toparagraphs 17 to 39 of the impugned order. Under the circumstances,the facts of the appeals filed by the appellant- Cardinal Mar GeorgeAlencherry are considered for the sake of convenience.

4. The facts in nutshell, as discernible from the record, giving riseto the present appeals are that: -

(i)The Syro Malabar Church, an Episcopal Institution is headedCby the Bishop of Archdiocese, i.e., the appellant – CardinalMar George Alencherry (hereinafter referred to as ‘theappellant- Archbishop’). The said Archbishop claiming tohave an authority over all the spiritual and temporal affairsconcerning Syro Malabar Church alienated certainDimmoveable properties of the Church. The presentrespondent no. 2 – Mr. Joshy Varghese (originalcomplainant) claiming to be member and believer of aRoman Catholic Church has filed complaint under Sections190 and 200 of Cr.P.C. being Crl. M.P.No. 5003/2018 inthe Court of Judicial Magistrate, Ist Class, KakkanadE(hereinafter referred to as the ‘Trial Court’) on 16[th] July,2018, against three accused i.e. (1) the appellant-Archbishop, (2) Rev Fr. Joshy Puthuva and (3) SajuVarghese alleging commission of the offences punishableunder Sections 120B, 406, 409, 418, 420, 423, 465, 467, 468Fr/w 34 of IPC.

(ii)It has been alleged in the complaint, inter alia that thecomplainant is the member of the St. Mary’s Church,Perumbavoor, one of the churches administered by theArchdiocese of Ernakulam- Angamaly. The appellant tookcharge of the Archdiocese as its Major Archbishop on29.05.2011 and he was subsequently ordained as Cardinalof Syro Malabar Church on 06.01.2012. The saidArchdiocese has been administering various educationalinstitutions, orphanages, old age homes, convents,monasteries and hospitals, in addition to 338 churches under

1020SUPREME COURT REPORTS

Ait. The said Archdiocese owned assets both movable andimmovable worth crores of rupees. The bylaws ofArchdiocese which prescribed the procedures for theadministration and management of the assets of theArchdiocese were modified on 29.07.2009.

B(iii)It has been further alleged that the appellant- Archbishopentered into criminal conspiracy with accused no. 2 –Rev Fr. Joshy Puthuva, who was the financial officer ofthe said Archdiocese, during the period from 2012 to 2017to fraudulently dispose of some of the immovable propertiesCof the Archdiocese, and in furtherance thereof, theyalienated certain properties worth crores of rupees to theaccused no. 3 - Saju Varghese, as described in the complaint.

(iv) In the said complaint, sworn statement of the complainantwas recorded in view of Section 202 of Cr.P.C. as theDappellant and the other two accused in the said complaintwere residing beyond the jurisdiction of the Trial Court.One more witness was also summoned and examined insupport of the complaint. The complainant also had producedfew documents in support of the said complaint.

E(v)The Trial Court vide the order dated 2[nd] April, 2019 tookthe complaint on file and dismissed the complaint underSection 203 of Cr.P.C. so far as the offences under Sections409, 418, 420, 465, 467 and 468 of IPC were concerned,however issued summons against the accused for theFoffences under Sections 120-B, 406, 423 read with 34 ofIPC.

5. The complainant - Joshy Varghese has also filed other fivesimilar complaints against the appellant-Archbishop and others(Annexures A-4 to A-9 in SLP(Civil) Nos.2849-2854 of 2022) in whichGthe trial court had issued the summons by passing separate orders, thedetails of which are as under:

6. The appellant-Archbishop (accused no.1) and the said SajuVarghese (accused no. 3) being aggrieved by the order dated 02.04.2019passed by the trial court in Cr.M.P.No. 5003/2018 preferred CriminalRevision Application Nos. 20/2019 and 21/2019 respectively before theSessions Court, Ernakulam Division (hereinafter referred to as ‘theSessions Court’). The Sessions Court dismissed the said Criminal RevisionPetitions, vide the order dated 24.08.2019, against which the appellant-Archbishop preferred Crl.M.C. No.8936 of 2019 and other five petitionsbefore the High Court under Section 482 of Cr.P.C. The original accusedno. 3 - Saju Varghese also filed Crl.M.C. No.9115/2019 before the HighCourt. The High Court vide the impugned order dated 12[th] August, 2021dismissed all the seven Crl.M.Cs. The High Court also gave certaindirections to the respondent-State Government while dismissing the saidpetitions. The High Court thereafter posted the matters on 25.10.2021for the compliance report, and then gave further directions by passingvarious orders from time to time. Being aggrieved by the same, thepresent sets of appeals have been filed by the appellants as statedhereinabove.

7. The learned senior advocate Mr. Sidharth Luthra appearing forthe appellant-Archbishop submitted following chart, showing details ofthe properties involved in these appeals.

G8. According to the learned Senior Advocate Mr. Luthra, therespondent no. 2-Joshy Varghese and others had also filed similarcomplaints against the appellant and others. The details of the saidcomplaints submitted by Mr. Luthra are as below:-

(i)03.01.2018: The respondent no. 2 Joshy Varghese, thecomplainant, had filed complaint being CMP No. 2/2018H

in the Court of Judicial Magistrate, First Class. Maradu,against the appellant and others praying for investigationunder Section 156(3) Cr.P.C., alleging criminal conspiracyto sell the plots of lands belonging to the Archdiocese. TheJudicial Magistrate, Maradu, Ernakulam before issuing theprocess in the said complaint directed the respondent no. 2to examine the witnesses. The respondent no. 2 challengedthe said order before the Kerala High Court, whichdismissed his petition vide the order dated 22.02.2018. Thesaid complaint was thereafter dismissed by the Magistratevide the order dated 30.09.2021.

(ii)12.01.2018: One Paulachan Puthuppara, an Advocate fileda complaint being CMP No. 179/2018 in the court of ChiefJudicial Magistrate, Ernakulam against the petitioner andtwo others alleging criminal conspiracy in respect of thesale of plots of land belonging to the Archdiocese. The

Magistrate, Ernakulam vide the order dated 02.02.2018dismissed the complaint observing that if complainant wasaggrieved, he could resort to an appropriate civil action asmay be available under the law.

(iii)15.01.2018: One Shine Varghese filed complaint beforethe P.S. Ernakulam Central, being FIR No. 719/2018, makingsimilar allegations, in which the police filed closure report,however the complainant Shine Varghese filed ProtestPetition, which is pending under consideration before theconcerned court.

(iv)18.03.2019: One complainant Pappachan filed complaintbeing 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 fileda complaint before the Ernakulam P.S. on 12.01.2019,however no action was taken. Ultimately FIR No. 818/2019was registered, however the investigating officer hassubmitted closure report in the said complaint.

9. Adverting to the first and foremost submission made by theLearned Senior Counsel Mr. Luthra that the present complaint againstthe appellant after the dismissal of the earlier complaint by the Court of

AMaradu, on the same set of facts, filed by the respondent no.2-complainant was not maintainable, it may be noted that the respondentno.2 had earlier filed complaint being no.2/2018 on 03.01.2018 in theCourt of JMFC, Maradu under Section 156(3) and Section 200 Cr.PC,making general allegations with regard to the fraudulent sale of theproperties belonging to the Archdiocese by the appellant Archbishop,Bwhereas the instant complaints six in number have been filed by therespondent no.2- complainant in the Trial Court giving specific detailsabout the sale of the properties situated within the jurisdiction of TrialCourt 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 MaraduCwithout taking cognizance of the complaint as the counsel for thecomplainant did not appear, whereas in the instant complaints, thesummons have been issued by the Trial Court, taking cognizance of theoffences under Section 120B, 406, 423 read with Section 34 of IPC on02.04.2019 and on other dates subsequent thereto, that is prior to thedismissal of the first complaint on 30.09.2021. The respondent no.2 inDthe counter filed by him has specifically stated that regarding the firstitem of property, the complaint was filed before the Court of Maradu(Ernakulam), as the cause of action had arisen within the jurisdiction ofMaradu Police Station, whereas with regard to the other properties, sevencomplaints have been filed before the Court of JMFC, Kakkanad withinEwhose jurisdiction the properties were situated. It is pertinent to notethat there was no adverse order passed or cognizance taken by theCourt at Maradu and on the contrary the same was dismissed after theTrial Court at Kakkanad issued summons against the appellant and others,taking cognizance of the alleged offences under Section 120B, 406, 423read with Section 34 of IPC.F

10. It cannot be gainsaid that the cognizance is taken of an offenceand not of the offender. As such the phrase “taking cognizance” hasnowhere been defined in the Cr.PC, however has been interpreted bythis Court to mean “become aware of” or “to take notice of judicially”.In S.K. Sinha, Chief Enforcement Officer Vs. Videocon InternationalGLtd. and Others[1], this Court while explaining the scope of the enquiryunder Section 202 Cr.PC, observed as under:-

“19. The expression “cognizance” has not been defined in theCode. But the word (cognizance) is of indefinite import. It has no

H1 (2008) 2 SCC 492

esoteric or mystic significance in criminal law. It merely means“become aware of” and when used with reference to court or aJudge, it connotes “to take notice of judicially”. It indicates thepoint when court or Magistrate takes judicial notice of anoffence with view to initiating proceedings in respect of suchoffence said to have been committed by someone.

20. “Taking cognizance” does not involve any formal action ofany kind. It occurs as soon as Magistrate applies his mind to thesuspected commission of an offence. Cognizance is taken priorto commencement of criminal proceedings. Taking of cognizanceis thus sine qua non or condition precedent for holding validtrial. Cognizance is taken of an offence and not of an offender.Whether or not Magistrate has taken cognizance of an offencedepends on the facts and circumstances of each case and no ruleof universal application can be laid down as to when Magistratecan be said to have taken cognizance.

21. Chapter XIV (Sections 190-199) of the Code deals with“Conditions requisite for initiation of proceedings”. Section 190empowers Magistrate to take cognizance of an offence in certaincircumstances. Sub-section (1) thereof is material and may bequoted in extenso:

“190. Cognizance of offences by Magistrates.—(1) Subject tothe provisions of this Chapter, any Magistrate of the First Class,and any Magistrate of the Second Class specially empowered inthis behalf under sub-section (2), may take cognizance of anyoffence—

(a) upon receiving complaint of facts which constitute suchoffence;

(b) upon police report of such facts;

(c) upon information received from any person other than policeofficer, or upon his own knowledge, that such offence has beencommitted.”

22. …….

23. Then comes Chapter XVI (Commencement of proceedingsbefore Magistrates). This Chapter will apply only after cognizanceof an offence has been taken by Magistrate under Chapter

XIV. Section 204, whereunder process can be issued, is anothermaterial provision which reads as under:

“204. Issue of process.—(1) If in the opinion of Magistratetaking cognizance of an offence there is sufficient ground forproceeding, and the case appears to be—

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

(b) warrant case, he may issue warrant, or, if he thinks fit, asummons, for causing the accused to be brought or to appear at acertain time before such Magistrate or (if he has no jurisdictionhimself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accusedunder sub-section (1) until list of the prosecution witnesses hasbeen filed.

D(3) In proceeding instituted upon complaint made in writing,every summons or warrant issued under sub-section

(1) shall be accompanied by 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 theEfees are paid and, if such fees are not paid within reasonabletime, the Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect the provisionsof Section 87.”

24. From the above scheme of the Code, in our judgment, it isFclear that “Initiation of proceedings”, dealt with in Chapter XIV,is different from “Commencement of proceedings” covered byChapter XVI. For commencement of proceedings, there must beinitiation of proceedings. In other words, initiation of proceedingsmust precede commencement of proceedings. Without initiationGof proceedings under Chapter XIV, there cannot becommencement of proceedings before Magistrate under ChapterXVI. The High Court, in our considered view, was not right inequating initiation of proceedings under Chapter XIV withcommencement of proceedings under Chapter XVI.”

11. In Ramdev Food Products Private Vs. State of Gujarat[2]while drawing distinction between the provisions contained in Section156(3) and Section 202(1) of Cr.PC, this Court examined the scheme ofthe said sections and after discussing various earlier decisions concludedas under:-

“38. In Devarapalli Lakshminarayana Reddy v. V. NarayanaReddy [(1976) 3 SCC 252: 1976 SCC (Cri) 380], National Bank ofOman v. Barakara Abdul Aziz [(2013) 2 SCC 488: (2013) 2 SCC (Cri)731], Madhao v. State of Maharashtra [(2013) 5 SCC 615: (2013) 4SCC (Cri) 141], Rameshbhai Pandurao Hedau v. State of Gujarat[(2010) 4 SCC 185 : (2010) 2 SCC (Cri) 801] , the scheme of Sections156(3) and 202 has been discussed. It was observed that power underSection 156(3) can be invoked by the Magistrate before taking cognizanceand was in the nature of pre-emptory reminder or intimation to the policeto exercise its plenary power of investigation beginning with Section 156and ending with report or charge-sheet under Section 173. On the otherhand, Section 202 applies at post- cognizance stage and the direction forinvestigation was for the purpose of deciding whether there was sufficientground to proceed.”

12. So far as facts of the present case are concerned, indisputablythough the respondent-complainant had filed the first complaint in thecourt of JMFC, Maradu seeking prayer to direct investigation to thepolice under Section 156(3) and 202 of Cr.PC, the said complaint wasnot prosecuted further. The concerned court had also not directed anyinvestigation either under Section 156(3) or Section 202 of Cr.PC andthe said complaint was dismissed for not having been prosecuted further.The Trial Court at Kakkanad, however, before the dismissal of the previouscomplaint, had already taken cognizance by issuing summons to theappellant and others in the instant six complaint cases filed by therespondent no. 2 - complainant.

13. Though it is true that the respondent no. 2, in the instantcomplaints should have disclosed the full and correct facts moreparticularly with regard to the previous complaint filed by him againstthe appellant and other accused in respect of the alleged fraudulent saleof the properties belonging to Archdiocese, mere non-disclosure of suchfacts, would not be ground to set aside the summons issued by theTrial Court after applying its mind and having been prima facie satisfied2 (2015) 6 SCC 439

Aabout the commission of the alleged offences under Section 120B, 406and 423 read with 34 of IPC. From the order dated 2.04.2019 passed inCr.M.P. No.5003/2018, it is quite discernible that the Trial court aftermeticulously examining the allegations made in the complaint and theevidence of the complainant and one witness, had taken the cognizance,with regard to the aforesaid offences only and had not taken cognizanceBof the other offences alleged under Sections 409, 418, 420, 465, 467 and468 of IPC which shows proper application of mind by the Trial Courtbefore 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 respondentCno. 2 on the same set of facts against the same accused was notmaintainable, it may be noted that the law in this regard is quite wellsettled since 1962. In case of Pramatha Nath Talukdar Vs. SarojRanjan Sarkar[3], it was held with regard to filing of the second complaintthat fresh complaint could be entertained after the dismissal of previous

Dcomplaint under Section 203 of the Criminal Procedure Code when therewas manifest error or manifest miscarriage of justice or when freshevidence was forthcoming. It was further held that an order of dismissalunder Section 203 of the Criminal Procedure Code is no bar to theentertainment of second complaint on the same facts, but it will beentertained only in exceptional circumstances, e.g. that the previous orderEwas passed on an incomplete record or on misunderstanding of natureof complaint or it was manifestly absurd, unjust or foolish or where newfacts which could not, with reasonable diligence, have been brought onrecord in the previous proceedings have been adduced. The preciseobservations 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 theCode of Criminal Procedure. The provisions relevant for thepurpose of this case are Sections 200, 202 and 203. Section 200deals with examination of complainants and Sections 202, 203Gand 204 with the powers of the Magistrate in regard to the dismissalof complaint or the issuing of process. The scope and extent ofSections 202 and 203 were laid down in Vadilal Panchal v.Dattatraya Dulaji Gha Digaonkar [Vadilal Panchal v. DattatrayaDulaji Gha Digaonkar, AIR 1960 SC 1113 : 1960 Cri LJ 1499] .

H3 AIR 1962 SC 876

The scope of enquiry under Section 202 is limited to finding outthe truth or otherwise of the complaint in order to determinewhether process should issue or not and Section 203 lays downwhat materials are to be considered for the purpose. Under Section203 of the Criminal Procedure Code the judgment which theMagistrate has to form must be based on the statements of thecomplainant and of his witnesses and the result of the investigationor enquiry, if any. He must apply his mind to the materials andform his judgment whether or not there is sufficient ground forproceeding. Therefore if he has not misdirected himself as to thescope of the enquiry made under Section 202 of the CriminalProcedure Code, and has judicially applied his mind to the materialbefore him and then proceeds to make his order it cannot be saidthat he has acted erroneously. An order of dismissal under Section203 of the Criminal Procedure Code, is, however, no bar to theentertainment of second complaint on the same facts but it willbe entertained only in exceptional circumstances, e.g., where theprevious order was passed on an incomplete record or on amisunderstanding of the nature of the complaint or it was manifestlyabsurd, unjust or foolish or where new facts which could not, withreasonable diligence, have been brought on the record in theprevious proceedings, have been adduced. It cannot be said to bein the interests of justice that after decision has been givenagainst the complainant upon full consideration of his case, heor any other person should be given another opportunity to havehis complaint enquired into. Allah Ditta v. Karam Bakhsh [AllahDitta v. Karam Bakhsh, 1930 SCC OnLine Lah 268 : AIR 1930Lah 879] ; R.N. Choubey v. P. Jain [R.N. Choubey v. P. Jain,1948 SCC OnLine Pat 85 : AIR 1949 Pat 256] ; Hansabai SayajiPayagude v. Ananda Ganuji Payagude [Hansabai Sayaji Payagudev. Ananda Ganuji Payagude, 1949 SCC OnLine Bom 99 : AIR1949 Bom 384] and Doraiswami Ayyar v. T. Subramania Ayyar[Doraiswami Ayyar v. T. Subramania Ayyar, 1917 SCC OnLineMad 167 : AIR 1918 Mad 484] . In regard to the adducing of newfacts for the bringing of fresh complaint the Special Bench inthe judgment under appeal did not accept the view of the BombayHigh Court [Hansabai Sayaji Payagude v. Ananda GanujiPayagude, 1949 SCC OnLine Bom 99 : AIR 1949 Bom 384] orthe Patna High Court [R.N. Choubey v. P. Jain, 1948 SCC OnLine

APat 85 : AIR 1949 Pat 256] in the cases above quoted and adoptedthe opinion of Maclean, C.J. in Queen Empress v. DolegobindDass [Queen Empress v. Dolegobind Dass, 1900 SCC OnLineCal 229 : ILR (1901) 28 Cal 211] affirmed by Full Bench inDwarka Nath Mondul v. Beni Madhab Banerjee [Dwarka NathMondul v. Beni Madhab Banerjee, 1901 SCC OnLine Cal 242 :BILR (1901) 28 Cal 652] . It held therefore that fresh complaintcan be entertained where there is manifest error, or manifestmiscarriage of justice in the previous order or when fresh evidenceis forthcoming.”

15. The said observations made in the Pramatha Nath TalukdarC(supra) case were reiterated in various later decisions in case of JatinderSingh and others Vs. Ranjit Kaur[4], in case of Ranvir Singh Vs. Stateof Haryana and Another[5], in case of Poonam Chand Jain andAnother Vs. Fazru[6], as also in the latest decision in case of SamtaNaidu and Another Vs. State of Madhya Pradesh and Another[7].DThus, having regard to the said legal position, it could not be said that thetrial court had committed any error in entertaining the complaints filedby the respondent complainant, when the previous complaint filed byhim was pending before the other court, and more particularly when thesaid court had dismissed the said previous complaint for non- prosecution,without taking cognizance of the alleged offences therein.E16. It was also submitted by the learned Senior Counsel, Mr. Luthrathat similar complaints filed by other complainants against the appellantand others making similar allegations were not found to be of anysubstance. In the opinion of the Court, there is hardly any substance inthe said submission. Apart from the fact that the names of theFcomplainants and of the accused were different in the said complaints, itis difficult to cull out whether all other complaints pertained to the sameproperties for which the present complaints have been filed. It may alsobe noted that in one of the complaints filed by the other complainantShine Varghese, though closure report was filed by the police, theGprotest petition has been filed by the said complainant, and that theconcerned trial court has reopened the case for hearing.

4 (2001) 2 SCC 5705 (2009) 9 SCC 6426 (2010) 2 SCC 631H7 (2020) 5 SCC 378

17. The Sessions Court in the Revision petitions filed by theappellant had also upheld the said orders passed by the trial court issuingsummons against the appellant and others after dealing with each andevery aspect of the matter including the ingredients of alleged offencesfor which the summons were issued against the appellant. The HighCourt in the impugned order has also discussed in detail the submissionsmade by the counsels for the parties in the petitions filed by the appellantunder Section 482 of Cr.P.C. and upheld the order passed by the SessionsCourt. In view of the said observations made and prima facie findingsrecorded by the three courts below as regards the alleged involvementof the appellant in the alleged offences, this Court is not inclined tointerfere with the same.

18. No doubt, summoning of an accused is serious matter andtherefore the Magistrate before issuing the summons to the accused isobliged to scrutinize carefully the allegations made in the complaint witha view to prevent person named therein as accused from being calledupon to face any frivolous complaint, nonetheless one of the objects ofSection 202 Cr.P.C. is also to enable the Magistrate to prosecute personor persons against whom grave allegations are made. Just as it isnecessary to curtail vexatious and frivolous complaints against innocentpersons, it is equally essential to punish the guilty after conducting fairtrial. In the instant cases, all the three courts below have discussed indetail about the prima facie involvement of the appellant in the allegedoffences, and therefore it is not necessary for this Court to reiterate thesame. Suffice it to say that having carefully examined the record of thecomplaints in question, we do not find any illegality or infirmity in theorders 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 ofBathery and the Diary No. 7364 of 2022 filed by Catholic Diocese ofThamarassery (hereinafter referred to as the ‘petitioners’) are concerned,as stated earlier the said petitioners have challenged the observationsrecorded 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 ofthe petitioners and other Diocese, and that such observations had wideramifications throughout the state. According to the said petitioners suchgeneral observations made in the impugned judgement amounted tonullifying the concluded transactions involving the properties of CatholicChurches including Syro Malabar Catholic Church.

A20. In this regard, the learned Senior Counsel Mr. Chander UdaySingh had submitted that the petitioners had nothing to do with theappellant-accused Archbishop, however, the High Court in the proceedingunder Section 482 Cr.P.C. filed by him has defined, decided and declaredthe spiritual, ecclesiastical and temporal powers of the Catholic Churchwithout affording any opportunity of hearing to the affected parties, whichBis not legally permissible. Mr. Chander Uday Singh has relied uponobservations made by this Court in Criminal Appeal arising out of SLP(Crl.) 4567 of 2019 (Anu Kumar Vs. State (UT Administration) andanother) to substantiate his submission that High Court could not haveventured to enter into an area which would adversely affect the interestCof the third party to the proceedings.

21. It appears to us after having gone through the impugned orderpassed by the High Court, more particularly the observations made inpara 17 to 39 thereof that the said prima facie observations were madein response to the submissions made by the learned counsels for theDparties relying upon various decisions of this Court as regards the powersand authority of the Archbishop of Archdiocese with regard to the temporaland spiritual affairs of the Churches. Of course, certain observationsare omnibus and general in nature but the same being only prima facieobservations made in the impugned order in the petitions filed by theAppellant- Archbishop under Section 482 of Cr.PC, no finality could beEattached to the said observations. Hence, without stretching the matterany further and without expressing any opinion on the said prima facieobservations made in para 17 to 39 of the impugned order, we deem itappropriate to direct, and accordingly direct the Trial Court to decide thecomplaints in question filed by the respondent no. 2 against the appellant-FArchbishop and others in accordance with law without being influencedby the said observations made by the High Court in the impugned orderand that it would be open to the said petitioners to take recourse to theremedies as may be legally permissible, in case the said observationscause any complications in the transactions already concluded by theChurches to whom the said petitioners represent.G

22. In absence of any other and further material on record tosupport the grievances of the said petitioners, we are not inclined toentertain the said SLPs filed by the petitioners Eparchy of Bathery andCatholic Diocese of Thamarassery, in exercise of our limited jurisdictionunder Article 136 of the Constitution of India, more particularly whenH

the said petitioners have failed to make out any case of grave injusticebeing suffered to them. As stated earlier, the said observations havebeen made by the High Court in response to the submissions made bythe counsels for the parties in the light of the various decisions of thisCourt, and the said observations being prima facie in nature, no finalitycould be attached to them.

23. Having said that, we are constrained to say something on thesubsequent orders passed by the High Court after passing of the impugnedorder dismissing the petitions filed under Section 482 Cr.PC by theappellant. The High Court after recording its findings in the impugnedorder about the Criminal Conspiracy allegedly hatched by the appellantand the other accused for fraudulently selling the properties belonging toArchdiocese, further enlarged the scope of the petitions by raising doubtsas regards the settlement deed executed by the appellant and others inrespect of the properties as to whether the said settlement deed waswith respect to any government land or poramboke land. The High Courtwhile dismissing the petitions filed by the appellant- Archbishop underSection 482 of Cr.PC, further directed the State Government as under:-“Hence, it is ordered that the government shall conduct theinvestigation into the matter through its investigating agencies soas to satisfy itself whether the settlement deed of the year 2007was executed with respect to any government land or PorambokeLand, and whether it was government land or Porambokeland at any point of time and also the non-action/in action on partof the concerned officials who are bound by the provisions of lawincluding Land Conservancy Act, for which, team of officerspossessing adequate knowledge in the civil and criminal laws hasto be selected.”

24. The High Court did not stop at giving the aforesaid directionsbut kept on passing the subsequent orders even after the roster waschanged. From the application being I.A. No.106695/2022 filed in thepresent appeals on behalf of the appellant, it appears that the concernedJudge in the High Court retained the case with him for reporting thecompliance of the directions given by him in the impugned order, andthereafter vide the order dated 08.02.2022 directed the registry to impleadthe Union of India as an additional party to the main case-Crl.M.C.No.8936/2019 by observing as under:-

A“6. Since there is no comprehensive law addressing the legal statusof unincorporated organization acting under the guise of eitherreligion or charity, it is necessary to hear the Central Governmenton that issue.

7. The misuse of government properties/public properties,Bpuramboke lands has become matter of concern and when it isdone by religious bodies or congregational institutions, there willnot be any person to challenge the same before competent court,especially when such bodies constitute deciding factor in theelection of members to the Assembly and Parliament. This mightbe the reason why there is massive and large scale encroachmentCover the government land, public property and puramboke land atthe instance of religious and charitable unincorporated bodies. Itis also matter that can be taken note of judicially by this court. Iam afraid such misuse and encroachment of puramboke landsare not being properly dealt with. Necessarily, there should be aDseparate government agency at the central level akin to othercentral agencies dealing with public matters, investigation etc. toinitiate action against encroachment over government and publicproperties.

8. The Registry is directed to implead the Union of India,Erepresented by Additional Solicitor General of India as an additionalparty to the main case-Crl.M.C.No.8936/2019 so as to expresstheir view on the issue and to enact comprehensive law dealingwith the abovesaid issue, besides the formation of central agency.

9. The Officer, who conducted the enquiry shall submit detailedFreport addressing all the issues raised and directed by this Courton or before 02/03/2022. Call on 03/03/2022”25. Thereafter on 03.03.2022, following order was passed by theHigh Court:

“Assistant Solicitor General of India appeared and wanted timeGto file reply. No second report or additional report was submittedby the State in spite of the direction issued by this Court. Hence,there will be direction to the concerned official to appear inperson and to show cause why the order of this Court is flouted.Under such circumstances, it is necessary to implead the CentralBureau of Investigation as an additional respondent in the mainH

case. The Registry is directed to implead the Central Bureau ofInvestigation represented by its Director, New Delhi as additionalrespondent. There will also be direction to the Registry to senda copy of the judgment dated 12.08.2021 along with the orderdated 08.02.2022 to the Assistant Solicitor General of India forinformation. Call on 21.03.2022.”

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

“Several postings have been given to the Central Governmentand the Assistant Solicitor General of India to take instructions.So far there is no positive response on the part of Assistant SolicitorGeneral and as such, there will be direction to file an affidavit asto whether they are actually interested in the matter or not.

There will be direction to the State Government to address theissue in reference to Article 296 of the Constitution of India andsubmit detailed report. As last chance, post on 23-06-2022.”

27. From the afore-stated orders, it clearly transpires that theHigh Court after the dismissal of the petitions filed by the appellant –Archbishop under Article 482 of Cr.P.C., invoked its Suo motu jurisdictiondirecting the State Government to make detailed inquiry with regard tothe execution of sale deed and settlement deed in respect of some of theproperties sold out by the appellant, and find out whether the saidproperties belonged to the Government or were Poramboke land, andwhether the said settlement deed was created with the aim to manipulatea document of title over Government land. Thereafter, also the concernedjudge retained the matters with him even after the change of roster, andcontinued to pass the orders one after the other on the issues whichwere neither the subject matter of the main petitions under Section 482nor were argued by the concerned advocates for the parties. Theconcerned judge also assumed his plenary-advisory role by calling uponand advising the State Government to legislate comprehensive lawaddressing the issues pertaining to the legal status of unincorporatedorganisation acting under the guise of religion or charity. On non-submission of the second report by the State, the High Court directedthe concerned officer to appear in person, and directed the Registry toimplead CBI as an additional respondent in the main case, though thesame was already disposed of.

28. The High Court in its overzealous approach had travelled notonly beyond the scope and ambit of Section 482 Cr.P.C and of Article226 of the Constitution of India, but had crossed all the boundaries ofjudicial activism and judicial restraint by passing such orders under theguise of doing real and substantial justice.

B29. In our opinion, the jurisprudential enthusiasm and wisdom fordoing the substantial justice has to be applied by the courts within thepermissible limits. The belief of self-righteousness or smugness of theHigh Court in exercise of its powers of judicial review should not overawethe other authorities discharging their statutory functions. We may nothave to remind the High Courts that judicial restraint is virtue, and theCpredilections of individual judges, howsoever well intentioned, cannot bepermitted to be operated in utter disregard of the well-recognized judicialprinciples governing uniform application of law. Unwarranted judicialactivism may cause uncertainty or confusion not only in the mind of theauthorities but also in the mind of the litigants.

30. In that view of the matter, all the subsequent orders passed bythe High Court after the passing of the impugned order dated 12.08.2021,being unwarranted deserve to be quashed and set aside, and areaccordingly quashed and set aside.

31. In the aforesaid premises and subject to the afore-statedEobservations/directions, the Criminal Appeal filed by the Appellant-Archbishop, and all the SLPs filed by Eparchy of Bathery and CatholicDiocese of Thamarassery are dismissed.

Ankit Gyan

(Assisted by : Mahendra Yadav, LCRA)

Matters disposed of.