Dismissed

Cardinal Mar George Alencherry v. State of Kerala

Kerala HC12 Aug 2021Crl.MC/205/2020

Case brief

AI extract

What is this about?

Criminal complaints concerned allegedly unlawful sales of church properties. The Court rejected reliance on Canon law to avoid public-trust requirements and dismissed all seven quashing petitions. It also directed State investigation into whether the underlying settlement involved Government or puramboke land and into officials' inaction.

What did the court decide?

State directed to investigate whether the settlement involved Government or puramboke land and officials' inaction, through a team knowledgeable in civil and criminal law.

Cardinal Mar George Alencherry Vs State of Kerala — Quashing and FIR | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943

¶5

CRL.MC NO. 8936 OF 2019

¶6

AGAINST THE ORDER DATED 24/08/2019 IN CRRP 20/2019 OF SESSIONS COURT, ERNAKULAM.

¶7

PETITIONER/ACCUSED:

¶8

CARDINAL MAR GEORGE ALENCHERRY AGED 74 YEARS

¶9

S/O.LATE PHILIPOSE, MAJOR ARCHBISHOP, SYRO MALABAR CHURCH, ARCHBISHOPS HOUSE, BROADWAY, ERNAKULAM-682031.

¶10

BY ADVS. B.KUMAR SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE SRI.JOHN VARGHESE

¶11

RESPONDENTS/STATE & COMPLAINANT:

¶12

1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF

¶13

KERALA, ERNAKULAM-682031.

¶14

2 JOSHY VARGHESE, AGED 56 YEARS S/O.VAREEDH, THELAKKADAN HOUSE, MALAMURI, PULLUVAZHY P.O., PERUMBAVOOR, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT-683541.

¶15

BY ADVS. SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER GIMMY P ANTONY SRI.GEORGE VARGHESE KIZHAKKAMBALAM SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.N.RAJESH

¶16

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.07.2021, ALONG WITH Crl.M.C.Nos.205/2020, 9115/2019, 1409/2020, 1414/2020, 2136/2020 AND 2138/2020, THE COURT ON 12/08/2021 DELIVERED THE FOLLOWING:

¶17

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019 2

¶18

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶19

PRESENT

¶20

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶21

THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943

¶22

CRL.MC NO. 205 OF 2020

¶23

(AGAINST THE ORDER DATED 05/11/2019 IN CRL.M.P.NO.5005/2018 NUMBERED AS CC 1886/2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD, ERNAKULAM)

¶24

PETITIONER/ACCUSED:

¶25

CARDINAL MAR GEORGE ALENCHERRY AGED 74 YEARS S/O. LATE PHILIPOSE, MAJOR ARCHBISHOP, SYRO MALABAR CHURCH, ARCHBISHOP'S HOUSE, BROADWAY, ERNAKULAM - 682 031.

¶26

BY ADVS. GEORGE POONTHOTTAM (SR.) SRI.JOHN VARGHESE SMT.NISHA GEORGE

¶27

RESPONDENTS/STATE & COMPLAINANT:

¶28

1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.

¶29

2 JOSHY VARGHESE AGED 56 YEARS

¶30

S/O. VAREEDH, THELAKKADAN HOUSE, MALAMURI, PULLUVAZHY P. O., PERUMBAVOOR, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT - 683541.

¶31

BY ADVS. SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM SRI.N.RAJESH SHRI.GOPAKUMAR P. SRI.GIMMY P ANTONY

¶32

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.07.2021, ALONG WITH Crl.MC.8936/2019 AND CONNECTED CASES, THE COURT ON 12/08/2021 DELIVERED THE FOLLOWING:

¶33

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019 3

¶34

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶35

PRESENT

¶36

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶37

THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943

¶38

CRL.MC NO. 1414 OF 2020

¶39

AGAINST THE ORDER DATED 20/01/2020 IN CRMP 5011/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD, ERNAKULAM

¶40

PETITIONER/ACCUSED:

¶41

CARDINAL MAR GEORGE ALENCHERRY AGED 74 YEARS S/O LATE PHILIPOSE,MAJOR ARCHBISHOP,SYRO MALABAR CHURCH,ARCHBISHOP'S HOUSE,BROADWAY,ERNAKULAM-682031.

¶42

BY ADVS. GEORGE POONTHOTTAM (SR.) SRI.JOHN VARGHESE SMT.NISHA GEORGE

¶43

RESPONDENTS/STATE & COMPLAINANT:

¶44

1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682031.

¶45

2 JOSHY VARGHESE, AGED 56 YEARS S/O VAREEDH,THELAKKADAN HOUSE, MALAMURIBHAGATH,PULLUVAZHYKARAYIL,RAYAMANGALAM VILLAGE,KUNNATHUNADU TALUK, ERNAKULAM DISTRICT-683541.

¶46

BY ADVS. SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER SRI.V.RAJENDRAN (PERUMBAVOOR)

¶47

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.07.2021, ALONG WITH Crl.MC.8936/2019 AND CONNECTED CASES, THE COURT ON 12/08/2021 DELIVERED THE FOLLOWING:

¶48

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019 4

¶49

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶50

PRESENT

¶51

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶52

THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943

¶53

CRL.MC NO. 1409 OF 2020

¶54

AGAINST THE ORDER DATED 20.01.2020 IN CRL.M.P.NO. 5013/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KAKKANAD, ERNAKULAM

¶55

PETITIONER/ACCUSED:

¶56

CARDINAL MAR GEORGE ALENCHERRY

¶57

AGED 74 YEARS S/O. LATE PHILIPOSE, MAJOR ARCHBISHOP, SYRO MALABAR CHURCH, ARCHBISHOP'S HOUSE, BROADSWORD, ERNAKULAM 682 031.

¶58

BY ADVS. GEORGE POONTHOTTAM (SR.) SRI.JOHN VARGHESE SMT.NISHA GEORGE

¶59

RESPONDENTS/STATE & COMPLAINANT:

¶60

1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.

¶61

2 JOSHY VARGHESE, AGED 56 YEARS S/O. VAREEDH, THELAKKADAN HOUSE, MALAMURIBHAGATH, PULLUVAZHYKARAYIL, RAYAMANGALAM VILLAGE,KUNNATHUNADU TALUK, ERNAKULAM DISTRICT 683 541.

¶62

BY ADVS. SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER SRI.V.RAJENDRAN (PERUMBAVOOR)

¶63

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.07.2021, ALONG WITH Crl.MC.8936/2019 AND CONNECTED CASES, THE COURT ON 12/08/2021 DELIVERED THE FOLLOWING:

¶64

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019 5

¶65

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶66

PRESENT

¶67

THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943

¶68

CRL.MC NO. 2138 OF 2020

¶69

(AGAINST THE ORDER DATED 13.2.2020 IN

¶70

CRL.M.P.NO.5015/2018(C.C.NO.94/2020) OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD, ERNAKULAM DISTRICT)

¶71

PETITIONER/ACCUSED:

¶72

CARDINAL MAR GEORGE ALANCHERRY, AGED 74 YEARS S/O.LATE PHILIPOSE, MAJOR ARCHBISHOP, SYRO MALABAR CHURCH, ARCHBISHOP'S HOUSE, BROADWAY, ERNAKULAM - 682 031.

¶73

BY ADVS. GEORGE POONTHOTTAM (SR.) SRI.JOHN VARGHESE SMT.NISHA GEORGE

¶74

RESPONDENTS/STATE & COMPLAINANT:

¶75

1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.

¶76

2 JOSHY VARGHESE, AGED 56 YEARS, S/O.VAREEDH, THELAKKADAN HOUSE, MALAMURIBHAGATH, PULLUVAZHYKARAYIL, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT - 683 541.

¶77

BY ADVS. SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER SRI.V.RAJENDRAN (PERUMBAVOOR)

¶78

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.07.2021, ALONG WITH Crl.MC.8936/2019 AND CONNECTED CASES, THE COURT ON 12/08/2021 DELIVERED THE FOLLOWING:

¶79

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019 6

¶80

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶81

PRESENT

¶82

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶83

THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943

¶84

CRL.MC NO. 2136 OF 2020

¶85

AGAINST THE ORDER DATED 13.02.2020 IN CRL.M.P.NO.5009/2018 (C.C.NO.93/2020) OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD, ERNAKULAM DISTRICT)

¶86

PETITIONER/ACCUSED:

¶87

CARDINAL MAR GEORGE ALENCHERRY AGED 74 YEARS

¶88

S/O.LATE PHILIPOSE, MAJOR ARCHBISHOP, SYRO MALABAR CHURCH, ARCHBISHOPS HOUSE, BROADWAY, ERNAKULAM-682031.

¶89

BY ADVS. GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE SRI.JOHN VARGHESE

¶90

RESPONDENTS/STATE & COMPLAINANT:

¶91

1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

¶92

2 JOSHY VARGHESE, AGED 56 YEARS, S/O.VAREEDH, THELAKKADAN HOUSE, MALAMURIBHAGATH, PULLUVAZHUKARAYIL, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT-683541.

¶93

BY ADVS. SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER SRI.V.RAJENDRAN (PERUMBAVOOR)

¶94

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.07.2021, ALONG WITH Crl.MC.8936/2019 AND CONNECTED CASES, THE COURT ON 12/08/2021 DELIVERED THE FOLLOWING:

¶95

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019 7

¶96

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶97

PRESENT

¶98

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶99

THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943 CRL.MC NO. 9115 OF 2019

¶100

(AGAINST C.C NO. 632/2019 OF JFCM COURT, KAKKANAD, ERNAKULAM) PETITIONER/3RD ACCUSED:

¶101

SAJU VARGHESE AGED 42 YEARS S/O. JOHN VARGHESE, GOLDEN OAK VILLA, PADAMUGAL, KAKKANAD, KOCHI-680 030.

¶102

BY ADV K.V.SABU

¶103

RESPONDENTS/STATE & COMPLAINANT:

¶104

1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031

¶105

2 JOSHY VARGHESE AGED 56 YEARS S/O. VAREETH, THELAKKADAN HOUSE, MALAMURI, PULLUVAZHY P.O., PERUMBAVOOR, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT -683 542

¶106

BY ADVS. SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER SRI.V.RAJENDRAN (PERUMBAVOOR)

¶107

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.07.2021, ALONG WITH Crl.MC.8936/2019 AND CONNECTED CASES, THE COURT ON 12/08/2021 DELIVERED THE FOLLOWING:

¶108

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019 8

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¶110

ORDER

¶111

A batch of seven cases have come up in relation to

¶112

the alienation of properties purportedly belonging to

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Syro Malabar Church viz, Crl.M.C.Nos.8936/2019, 205/2020, 1409/2020, 1414/2020, 2136/2020, 2138/2020 and 9115/2019.

¶114

One Joshy Varghese had filed a complaint in C.M.P.No.5003/2018 before the Judicial First Class

¶115

Magistrate, Kakkanad alleging commission of offences

¶116

under Section 120 B, 406, 409, 418, 420, 423, 465, 467,

¶117

468 and 34 IPC against the Major Archbishop of Syro

¶118

Malabar Church and another. After preliminary enquiry in

¶119

terms of Section 202 Cr.P.C., the Magistrate took

¶120

cognizance under Annexure A2 order and issued summons to the petitioner for the offences coming under the purview of Section 120 B, 406, 423 r/w Section 34 IPC. A revision

¶121

was preferred against Annexure A2 order before the

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Sessions Court, Ernakulam under Section 397 Cr.P.C. in

¶123

Crl.R.P.No.20/2019. The learned Sessions Judge dismissed

¶124

the revision under Annexure A3 order. It is against the

¶125

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019 9

¶126

aforesaid two orders and to quash the entire proceedings,

¶127

the petitioner Cardinal Mar George Alencherry, the Major

¶128

Archbishop of Syro Malabar Church challenged under Section 482 Cr.P.C. in Crl.M.C.No.8936/2019.

¶129

Crl.M.C.Nos.205/2020, 1409/2020, 1414/2020,

¶130

2136/2020 and 2138/2020 were filed by Cardinal Mar George Alencherry with respect to the complaints in which he is the accused. It is submitted that the first complaint at Maradu was numbered as C.M.P.No.2/2018 wherein the

¶131

learned Magistrate had directed the complainant to

¶132

examine further witnesses on his behalf and this was challenged by the complainant before this court and the same ended in dismissal. The said matter is still pending consideration before the Magistrate.

¶133

It is submitted that the complaint preferred by Sri. Joshy Varghese before the Judicial First Class Magistrate Court, Kakkanad, is by concealing the earlier complaint before the Judicial First Class Magistrate Court, Maradu, in C.M.P.No.2/2018 on the same set of

¶134

facts and cause of action which is still pending consideration.

¶135

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶136

¶137

Chief Judicial Magistrate, Ernakulam, based on the very

¶138

same set of facts and allegation as per Annexure -10 complaint, which was dismissed by the Chief Judicial Magistrate, Ernakulam, on the ground that the issue involved is of civil nature by Annexure A6 order.

¶139

Yet another complaint was filed before the Chief

¶140

Judicial Magistrate Court, Ernakulam, in Crl.M.P. No.820/2010 by one Pappachan Varghese predicted on the same set of facts which was referred under Section 156(3)

¶141

Cr.P.C. Consequently a crime was registered. But it was

¶142

referred by the police on the ground of mistake of facts.

¶143

The Central Crime Branch Police, Ernakulam,

¶144

launched a thorough investigation by examining 83

¶145

witnesses including the 36 persons who had purchased various properties and concluded the investigation stating that internal rules governing the administration

¶146

of diocese were duly complied with both by their

¶147

Financial Committee and Consulters Forum at each stage of

¶148

transaction and a closure report Annexure A7 was submitted.

¶149

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019 11

¶150

One Shine Varghese had approached the Central

¶151

Police Station, Ernakulam, directly by filing a complaint based on the same set of allegations and approached this

¶152

court seeking a mandamus for registration of crime in which a direction was issued by this court, but it was reversed in appeal based on which investigation was conducted and a closure report was submitted by the police.

¶153

The dispute pertains to the execution of various sale deeds in respect of properties held by the Syro Malabar Church, a religious congregation allegedly without compliance of the requirements as per the byelaws of the Church causing heavy financial losses to the church and its parishioners. Inter alia, it has been contended that all these sale deeds are the result of criminal conspiracy hatched between the petitioner in collusion with his henchmen and the persons who had purchased the properties. He had also availed a loan of Rs.58.2 crores from South Indian Bank without initiating

¶154

any discussion or arriving at any decision as per the provisions of Canon law and the law in force.

¶155

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶156

¶157

The petitioner came up to quash the complaint

¶158

and Annexure A2 and A3 orders mainly on the reason that, what is involved is only a civil dispute and no criminal

¶159

liability can be superimposed and that earlier a

¶160

complaint had been lodged before the Judicial First Class Magistrate, Maradu and as such, it is not permissible to file another complaint (Annexure A4) for the very same

¶161

subject matter and that too, without revealing the earlier one.

¶162

Crl.M.C.No.9115/2019 is filed by one Saju

¶163

Varghese, accused No.3 in the abovesaid case. The

¶164

contentions raised are similar and analogous in nature.

¶165

Crl.M.C.No.2138/2020 was filed by the Cardinal

¶166

Mar George Alencherry under Section 482 Cr.P.C. to quash

¶167

the order dated 13/2/2020 in Crl.M.P.No.5015/2018 (C.C. No.94/2020 of the JFCM, Kakkanad, Ernakulam District),

¶168

where the very same questions were taken up.

¶169

Crl.M.C.No.2136/2020 is against the order dated 13/2/2020

¶170

in Crl.M.P.No.5009/2018 (C.C.No.93/2020 of the same

¶171

court). Crl.M.C.No.1414/2020 is against the order dated 20/1/2020 in Crl.M.P.No.5011/2018 of the same Court.

¶172

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019 13

¶173

Crl.M.C.No.1409/2020 is against the order dated 20/1/2020

¶174

Crl.M.C.No.205/2020 is against the order dated 5/11/2019 in Crl.M.P.No.5005/2018 (C.C.No.1886/2019 again of the same court).

¶175

For the sake of convenience, Crl.M.C.No. 8936/2019 is taken as the leading case. The dispute pertains to the alienation of properties belonging to Syro Malabar Church. It is an indubitable and undeniable fact that the Syro Malabar Church is an Episcopal Institution and not a Congregational Institution and as such the Bishop of Archdiocese has the right to alienate and dispose of its properties subject to the restrictions

¶176

imposed under their byelaw(s). Inter alia, it was

¶177

contended that even the restriction imposed under the byelaw was not complied with and the properties were alienated for a pittance and in one case, a fraudulent device was used so as to give a veneer that the entire consideration was paid though what was actually was

¶178

barely 1/10^th of the agreed amount. It was further contended that the properties held by the Syro Malabar

¶179

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶180

¶181

Church through their Archdiocese Bishop, the petitioner

¶182

herein, was for the benefit of all parishioners.

¶183

Paragraphs 13, 16 and 17 of the complaint

¶184

brought to the notice of this court in support of the

¶185

argument that the complainant had full knowledge about the properties and the number of documents executed while preferring seven separate complaints before the Judicial First Class Magistrate Court, Kakkanad, by segregating the properties into seven for maintaining separate complaints by taking shelter under Section 219 Cr.P.C. and in derogation of Section 178(d) Cr.P.C.

¶186

It is submitted that the complaint filed in the

¶187

Court at Kakkanad is with respect to the allegation of sale of two properties under two sale deeds viz. Sale Deed No.3376/2016, dated 31.10.2016 and Sale Deed No.2180/2017, dated 23.08.2017 and a second complaint based on the same set of facts and transactions is not maintainable and took substantiation from two decisions of Supreme Court – Hira Lal & Others vs. State of Uttar Pradesh & Others [2009 (11) SCC 89], Samta Naidu & another v. State of Madhya Pradesh & another [2020 (5)

¶188

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019 15

¶189

SCC 378, Pramatha Nath Talukdar v. Saroj Ranjan Sarkar ( AIR 1962 SC 876) and Mahesh Chand v. B.Janardhan Reddy & another [(2003) 1 SCC 734] . It has been further

¶190

submitted that a second complaint really amounts to forum shopping based on the decisions of the Apex Court in Rajiv Bhatia v. Govt. of NCT of Delhi and others [(1999) 8 SCC 525], Arathi Bandi v. Bandi Jagadrakshak Rao & others[(2013) 15 SCC 790:(2014) 5 SCC (Civ) 475], World Tanker Carrier Corporation. v. SNP Shipping Services (P)Ltd and others [(1998) 5 SCC 310], Ambica Industries v. Commissioner of Central Excise[(2007) 6 SCC 769], Jagmohan Bahl and another v. State (NCT of Delhi) and another [(2014) 16 SCC 501:(2015) 3 SCC (Cri) 521], Udyami Evam Khadi Gramodyog Welfare Sanstha and another v. State of U.P.and others[(2008) 1 SCC 560 : (2008) 1 SCC (Civ) 359] and in Supreme Court Advocates-on-Record Association and another v. Union of India ( Recusal Matter) [(2016) 5 SCC 808 : (2016) 3 SCC (Civ) 492 : (2016) 3 SCC (Cri) 173 : (2016) 2 SCC (L& S) 253 . Inter alia, it was contended that the Archbishop should be considered as the “corporation sole” and the real owner

¶191

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019 16

¶192

and not a mere trustee in regard to the property of

¶193

diocese, relying on the decisions of the Madras High Court in Muthusamier and others v. Sree Sree Methanithi Swamiyar Avergal and others [ (1913) SCC Online Mad 233 :

¶194

AIR 1916 Mad 332 : ILR (1915) 38 Mad 356 : (1913) 25 Mad LJ 393] . Yet another argument was also advanced that when money or property is entrusted with a person, it would carry an implied authority making him the owner of the property and relied on the decision of the Apex Court in State of Gujarat v. Jaswantlal Nathalal (AIR 1968 SC 700). Reliance was also placed on Urmila Devi v. Yudhvir Singh [(2013) 15 SCC 624] in support of the argument that revisionary jurisdiction under Section 397 Cr.P.C. can be exercised when Magistrate decides to take cognizance for

¶195

the offence alleged and to issue summons under Section 204 Cr.P.C., which would be an order intermediary or quasi final in nature and not interlocutory. Mehmood Ul

¶196

Rehman v. Khazir Mohammad Tunda and Others [(2015) 12 SCC 420] and National Bank of Oman v. Barakara Abdul Aziz and

¶197

another [(2013) 2 SCC 488) were also cited regarding the

¶198

application of mind by the Magistrate while taking

¶199

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019 17

¶200

cognizance and prima facie satisfaction, for which

¶201

another decision of the Apex Court in Chandra Deo Singh

¶202

v. Prokash Chandra Bose & others[(1964)(1) SCR 639] was also quoted. The facts involved in Hiralal 's case and

¶203

Samta Naidu 's case (supra) are entirely different from

¶204

that of the issue involved in the instant case,wherein there are different transactions with respect to the properties situated within the jurisdiction of two

¶205

courts, i.e Judicial First Class Magistrate at Maradu and Kakkanad. The mere fact that there is a disclosure of similar transaction in consonance with the allegation levelled in a complaint with respect to certain other properties may not by itself be a bar in maintaining an

¶206

action based on a similar transaction. Section 178

¶207

Cr.P.C. is an enabling provision to try or enquire into a complaint when the alleged offences were committed in several local areas fall under different jurisdiction and it can be enquired into and tried by the court having jurisdiction over any of such local areas. Section 178 Cr.P.C. is not an embargo to maintain different complaints at different areas. On the other hand, Section

¶208

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶209

¶210

219 Cr.P.C. is a restriction in trying more than three cases in one trial provided that it should be within a period of twelve months. Necessarily, three separate

¶211

cases alone can be tried together, if it is within a

¶212

period of one year in single trial. A conjoint reading of Sections 219 and 178(d) Cr.P.C. would show that it is permissible to maintain different complaints with respect to separate cases spanning over one year. The cases involved covered by the different complaints would sufficiently show that it was committed at different occasions spanning over more than one year. The decision rendered by the Apex Court in Hiralal 's case (supra) pertains to submission of a second complaint under Section 156(3) Cr.P.C. after the culmination of earlier one which was rejected by a reasoned order, and confirmed by way of a revision. The factual and legal scenario involved in Hiralal 's case (supra) hence cannot be applied in the present case. In fact, a second complaint is not completely barred in law. The Apex Court in

¶213

Mahesh Chand v. B.Janardhan Reddy and another((2003) 1 SCC 734) laid down the legal position that a second

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complaint can be maintained only on fresh facts and/or if

¶217

a special case is made out therefor, thus :-

¶218

K“eeping in view the settled legal principles, we are of the opinion that the High Court was not correct in holding that the second complaint was completely barred. It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Section 204 Cr.P.C. may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held in Pramatha Nath Talukdar Case (AIR 1962 SC 876) second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. In the facts and circumstances of this case, the matter, therefore, should have been remitted back to

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the learned Magistrate for the purpose of arriving at a finding as to whether any case for cognizance of the alleged offence had been made out or not.”

¶222

The very same view was taken by another Bench of

¶223

the Apex Court in Samta Naidu 's case (supra), wherein it was held that the dismissal of a complaint, or the

¶224

discharge of the accused, is not an acquittal for the purposes of Section 300 Cr.P.C., which debars trial of a person who has been tried by a court of competent

¶225

jurisdiction for an offence and convicted or acquitted of such an offence. Section 300 Cr.P.C. has no application

¶226

in the present case and as such, though the legal position settled in tune with what is held in Mahesh Chand 's case (supra) is standing on different pedestals governing different areas of litigation. The bar under Section 300 Cr.P.C. comes into play only when there is

¶227

culmination of trial by a competent court resulting in acquittal or conviction.

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There is not much dispute with respect to the

¶229

fact that the Syro Malabar Church is an Episcopal

¶230

Institution headed by Bishop of Archdiocese, the petitioner herein and as such it was argued that the

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Bishop of the Archdiocese will have all authority over

¶234

all spiritual and temporal affairs concerning Syro Malabar Church and that they are governed by Canon law

¶235

and their constitution (byelaw)even in the matter of

¶236

alienation of immovable properties and that the parishioners will not get any authority or locus standi to challenge any such alienation and transfer and cannot maintain any criminal action pertaining to those matters and hence all the criminal complaints amount to abuse of process of the court and are liable to be quashed.

¶237

To resolve the abovesaid issue pertaining to the authority to deal with the property and exclusive right claimed challenging even the status of complainant and competency to maintain complaints of this nature, it is necessary to go into the alleged authority of the

¶238

Archbishop, though at the most the same would constitute either a civil wrong with its legal consequences and repercussions and there should be an understanding of what actually amounts to spiritual and temporal matters in relation to Episcopal church and the concept of “Government of temporalities of the church” in relation

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to spiritual, ecclesiastical and temporal affairs of the

¶241

church and whether the execution of the various sale deeds by the petitioner Archdiocese Bishop would come within the ambit of either spiritual or ecclesiastical or temporal affairs of the church in relation to the Canon law and the theory of apostolic succession of Jesus Christ. The Apex Court had considered the application of 'Canon' law in Most Rev.P.M.A.Metropolitan and others v. Moran Mar Marthoma and Another (1995 Supp (4) SCC 286)

¶242

and laid down as under:

¶243

“ Canon is explained in Black's Law Dictionary as under :

¶244

'A law, rule or ordinance in general, and of the church in particular. An ecclesiastical law or statute. A rule of doctrine or discipline. A criterion or standard of judgment. A body of principles, standards, rules, or norms'.

¶245

Canon means both a norm and attribute

¶246

of the scripture. The term 'Canon law' is explained in the Encyclopedia of Religion, Vol. 3, as under:

¶247

'The term canon is based on the Greek word Kanon. Originally signifying a straight rod or bar, especially one used to keep something else straight, canon came to mean something that is fixed, a rule

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¶250

or norm. The term has several applications in church usage:the canon of scripture, or that fixed list of books that are determined to belong to sacred scripture;the canon of the Mass, the fixed portion of the eucharistic prayer; the process of declaring a deceased person to be among the fixed list of saints in heaven, or canonisation. From the third century, directives for church living and norms for church structures and procedures have been issued as canons.

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Canon law refers to the law internal to the church. In the early centuries of Christianity, canon was used for internal church norms, to distinguish them from the imperial nomos (leges in Latin) or laws. Church norms have also been known as sacred or divine, to distinguish them from civil or human laws. At times they are referred to as the 'sacred canons' or the 'canonical order'. The term ecclesiastical law is used synonymously with Canon law, although at times ecclesiastical law also refers to the civil law adopted in various nations to regulate church affairs. The term Canon law is used in the Roman Catholic, Anglican, and Orthodox communions.

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Canon law is drawn from sources in scripture, custom and various decisions of church bodies and individual church authorities. Over the centuries these have been gathered in a variety of collections that serve as the law books for various churches.'

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Canons are thus the principal scriptural bases for the religious

¶256

practices observed in a Church.”

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Thus, there cannot be any difference of opinion

¶258

with respect to application of Canon law, which is limited to religious practices observed in a church. A

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Division Bench of the Apex Court in Varghese v.

¶260

St.Peter's & Paul's Syrian Orthodox Church (2017 3 KLT 261 (SC)) followed by the judgment in Most

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Rev.P.M.A.Metropolitan 's case (supra) had drawn a clear distinction between an Episcopal church and a Congregational church regarding the spiritual and

¶262

temporal affairs and laid down the legal position thus:

¶263

“The essential features of congregationalism are stated to be the autonomy or independence of the individual churches or organisations, though in matters in which the individual charges are interested as a whole and in order to enable the churches to effectively fulfil their responsibilities, they may enter into unions. Congregationalism is stated to be the opposite of Episcopacy which means Government of the Church by the Bishops on the theory of apostolic succession. In other words, the Bishops are supposed to be the successors of the apostles of the Christ. The congregationalists believe that every Christian has

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the right to perform all functions pertaining to the priestly office and permits the laymen to celebrate sacraments whereas in Episcopal Churches only the ordained priests can celebrate sacraments.”

¶267

The Apex Court has gone through the words “spiritual” and “temporal” while dealing with the authority of Episcopal and Congregational Institutions and took references from various tests such as Bhagavat

¶268

Gita, Ishopanishad etc. in reference to the application of Articles 25 and 26 of the Constitution of India and

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the protection thereunder. In Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay [(1962) Supp (2)SCR 496] it is held that the protection of Articles 25 and 26 is not limited to the matters of doctrine, but

¶270

extends to acts done in pursuance of religion and

¶271

therefore contains a guarantee for rituals, observances and ceremonies and modes of worships, which are integral parts of religion. There is no dispute with respect to the aforesaid proposition, but the said guarantee does not extend to appointment of Vicars/priests, deacons etc..

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One of the questions that came up before the

¶275

Apex Court in Varghese 's case (supra) is whether the

¶276

Malankara Orthodox Church is an Episcopal church governed by its 1934 constitution and whether a scheme has to be

¶277

framed for its management. The distinction between an Episcopal church and Congregational church was taken into

¶278

consideration and it was found that the spiritual supremacy of patriarch or apostolic succession in the

¶279

appointment of vicars/priests, deacons etc. in contravention of 1934 constitution is not permissible, but nonetheless recognized its over all supremacy. Being

¶280

an Episcopal church, it was held that Malankara Metropolitan has the prime jurisdiction regarding temporal, ecclesiastical and spiritual administration of the church, subject to the riders provided in the 1934 constitution.

¶281

By relying on the legal position settled by the Supreme Court, it was submitted that the Bishop of the Archdiocese of Syro Malabar Church, who is governed by

¶282

their own constitution, the byelaw, has the right to

¶283

alienate the property belonging to the church, but

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subject to the caveat provided in the byelaw (its

¶286

constitution). Under Section 482 Cr.P.C., this Court cannot conduct a roving enquiry with respect to disputed matters. But at the same time, based on the admitted

¶287

facts, it is within the jurisdiction of this court to go into the acts of the petitioner and whether it would prima facie satisfy the commission of offence alleged in the complaint, for which, it is necessary to find out

¶288

what are the powers, authorities and the rights of the Bishop of Archdiocese over the properties held by the church and what makes the difference in the authority, if any, between Congregational and Episcopal church in its spiritual, ecclesiastical and temporal rights in contrast with the right of alienation and transfer of immovable property, what would be the legal position when there is provision in the bye-law or its constitution to be complied with for effecting an alienation and transfer of immovable properties, what would be the application of Canon law in those matters and whether there is creation of implied public trust with respect to the properties held by the church.

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Going by the decision rendered by the Apex Court

¶292

in the abovesaid two cases, it is clear that in an

¶293

Episcopal church, the prime authority is vested with the spiritual head, the Bishop of Archdiocese regarding temporal and spiritual affairs of the church and they are governed by the ecclesiastical law viz.,the Canon law to

¶294

the extent of spiritual and temporal affairs of the church based on the theory of apostolic succession of Jesus Christ. When the words “spiritual”, “temporal” and “ecclesiastical” as understood by the Apex Court in the abovesaid decision are taken into consideration, it is clear that it will not include the right to alienate the property vested in endowment. The religious supremacy vested with the Bishop or apostolic succession should be understood confined to religious matters both temporal

¶295

and spiritual governed by ecclesiastical law viz., the Canon law.

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The expression “temporal” shall not be

¶297

misunderstood so as to include a right of alienation of an immovable property held by the church, though its constitution provides provision for its alienation. Those

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clauses and provisions which would satisfy either

¶301

temporal or spiritual affairs of the church in consonance with the divine Canon law and the theory of apostolic succession alone can be considered within the supremacy

¶302

of the Bishop of an Episcopal church, governed by

¶303

ecclesiastical law viz., Canon law. The other clauses

¶304

included in their constitution/byelaw governing alienation of immovable properties, will not come under either spiritual or temporal rights based on the theory of apostolic succession and hence the ecclesiastical law-

¶305

Canon law cannot be applied in derogation of the requirement of the general law, when the property held is either in endowment or in trust.

¶306

The user of the words “vesting in endowment with respect to property of church and not the parishioners” by the Apex Court in Most Rev.

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P.M.A.Metropolitan 's case (supra)while dealing with the

¶308

distinction between Episcopal church and Congregational church should be understood in relation to the religious supremacy vested on the religious head based on the

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theory of apostolic succession of Jesus Christ and

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confined to spiritual, ecclesiastical and temporal

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affairs of the church. This would show that the

¶314

expression “vesting in endowment” is not a vesting of property in contra distinction with that of a private person, but should be understood as the vesting of the property in endowment based on the theory of apostolic succession and would confine itself to spiritual, ecclesiastical and temporal affairs of the church. If that be so, it must be the property available with or held by the church in connection with their religious rituals, observances, ceremonies and places of worship,

¶315

which would form an integral part of religious observances based on the theory of apostolic succession. This would make the legal position clear that such property cannot be alienated or transferred and even cannot be encumbered since the same forms an integral part of the religious faith and observances. Hence, “vesting in endowment” has only a limited meaning

¶316

concerning holding of authority over the properties held by the Church for the purpose of religious observances

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and worship, which would form an integral part of the

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religious faith and beliefs. So there cannot be any

¶321

question regarding sale or alienation of any immovable property, which is the subject of religious rituals and observances and place of worship. Necessarily, it must be

¶322

understood that the right to alienate the property or transfer of property would not arise in relation to observances and worship connected with spiritual,

¶323

ecclesiastical and temporal affairs of the church and the “vesting in endowment” must be understood as related to within the contours of abovesaid spiritual, ecclesiastical and temporal affairs of the church. The appellation “endowment” always tends to refer to a trust either for a public charity or a private trust. A trust and an endowment are different concepts altogether.

¶324

Trust is an obligation annexed to ownership. The word 'trust' is defined in Underhill's Law of Trust and

¶325

Trustees, to mean equitable obligation binding a person to deal with property, for which he has control for the

¶326

benefit of persons for whom he himself may be one. The word 'endowment' defined in the Legal Thesaurus as

¶327

aid,allotment,allowance, protection, assistance, award,

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benefit, bestowment, contribution, presentation and the

¶330

like. The Apex Court in Pratapsinghji N Desai v. Deputy

¶331

Charity Commissioner, Gujarat and others (AIR 1987 SC

¶332

2064) held that endowment is dedication of property for

¶333

purpose of religion or charity having both the subject and object as certain and capable of assessment.

¶334

The expression “vest” must be understood in

¶335

relation to a right or an interest in the property when it is secured. This would make the meaning of the word “vesting in endowment” which would stand for securing the property for specific purpose for which it was endowed and in the case of Episcopal church, this can only be treated as securing the property for the purpose of spiritual, ecclesiastical and temporal affairs of the church based on the theory of apostolic succession. That does not mean that they have the right to alienate the property in derogation of the purpose for which the property was endowed. Necessarily, the purpose of Episcopal church should and must be understood confined

¶336

to the spiritual and temporal affairs of the church based

¶337

on the theory of apostolic succession and observance of

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religious rites. It does not include a right to alienate

¶340

the property or to use the same for any other purpose, other than the purpose based on the theory of apostolic succession, both spiritual and temporal affairs of the church. The word “temporal” has only a limited meaning in

¶341

the case of church based on theory of apostolic succession and it must be understood as an inseparable part, an affair of the church in the administration of religious observances and spiritual affairs. In all other

¶342

matters, especially in the matter of transfer or alienation of immovable property, it would stand outside the scope of spiritual, ecclesiastical and connected temporal affairs.

¶343

Regarding the legal and jural status, there

¶344

cannot be any separate legal or jural entity to the

¶345

observances of spiritual and ecclesiastical matters based

¶346

on the theory of apostolic succession of Jesus Christ

¶347

viz., the Bishop of the Archdiocese and those who follow the faith and its theory. It is perfectly spiritual and ecclesiastical in its nature and what is vested with the

¶348

Bishop of the Archdiocese based on the theory of

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apostolic succession is the supremacy of faith, belief,

¶352

religious observances based on the said theory and

¶353

control,supervision and administration of its own affairs pertaining to apostolic succession, faith, belief and religious observances and it would include even the

¶354

appointment,control and administration of priest, deacons, vicars and those who are involved in and are

¶355

closely connected with spiritual and religious observances and maintenance, protection, upkeep of places of worship under the said theory. It is purely spiritual

¶356

and ecclesiastical concept based on the theory of apostolic succession and as such, the same is not governed by any general law, but purely by the personal law viz., the provisions of Canon law. In so far as the other properties are concerned, either held or possessed by the church, which is not the subject of any religious observances or places of worship based on the theory of apostolic succession and the concept thereof, it must be understood that the possession, right, title over the properties would stand governed by the general law and not by the Canon law, for which, a separate legal entity

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to the person who holds the property has to be recognized

¶359

in relation to the general law applicable. The theory of apostolic succession does not permit sale or transfer of immovable property, presumably for the reason that there cannot be any sale or transfer of a place of worship. If any property is subjected to a sale or transfer, it would stand outside the scope of religious or spiritual observances or a place of worship and the theory of apostolic succession and religious supremacy cannot be applied as such. Hence there would be an implied creation of a public trust regarding the other properties which are not the subject of religious faith,belief or observances or the place of worship for the benefit of parishioners, since a section of people would also come under the ambit of term “public”. Thus, it is the nature of the property that validates and decides the legal status of the property and the person, who is holding possession or title of the property. The Canon law or the Constitution, which was either adopted or evolved in

¶360

course of time in the administration and observance of spiritual, religious, ecclesiastical and temporal

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affairs, hence cannot be applied to matters which stand

¶364

outside its purview. Necessarily, those properties held

¶365

in public trust would stand amenable to Section 92

¶366

C.P.C., except clauses (a) to (c) and (cc) to sub-section (1) dealing with temporal affairs. The remaining part i.e. (d) to (h) of Section 92(1) C.P.C. dealing with “corporeal” rights will retain its application.

¶367

28.In the case of religious endowments of a public

¶368

nature, to which the Religious Endowments Act applies, a

¶369

suit charging the trustee, manager, superintendent or a member of a committee of a mosque,temple or religious

¶370

establishment with misfeasance, breach of trust or

¶371

neglect of duty, may be brought under the provisions of that Act or it may be brought under the provisions of the Code as provided by Section 92 of the Code. This would make the legal position amply clear that Section 92 C.P.C. would come into the picture in the absence of a

¶372

parallel provision covered by any Endowment Act. The

¶373

Canon law being the law pertaining to spiritual and

¶374

ecclesiastical matters cannot be supplanted in place of an endowment legislation so as to exclude the application

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¶377

of Section 92 C.P.C. or in substitution of that section.

¶378

It is so unfortunate that no endowment legislation so far

¶379

enacted to address the various issues connected with the

¶380

legal status of church authorities in so far as the

¶381

properties which are held not as part of their religious belief, faith or observances and to even address the legal status of a charitable institution run by the

¶382

church authorities.

¶383

By taking support from the decision of the

¶384

Constitution Bench of the Apex Court in Chairman Madappa

¶385

v. M.N.Mahanthadevaru and others [(1966) 2 SCR 151 : AIR

¶386

1966 SC 878] , it was argued that Section 92 C.P.C. is an

¶387

enabling provision and not a compulsory requirement for effectuating any sale or transfer of property held in trust. What was considered and held by the Apex Court regarding the application of clause (f) to Section 92(1)

¶388

C.P.C. are the practical difficulties that may be

¶389

encountered, if it is strictly complied with in the

¶390

management of trust and its requirements and it was held

¶391

that when there is no prohibition to sell, mortgage or exchange it in the trust deed relating to a public trust,

¶392

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¶393

it will not circumscribe the powers of trustees to carry

¶394

on ordinary administration of trust property and to deal with it in such manner as they think best for the benefit of the trust. But there may be other situations where it

¶395

might be necessary to alienate trust property which may require sanction of the court under clause (f) of Section 92(1) C.P.C.. But in the instant case, even the

¶396

petitioner has no case that they themselves constitute a trust of public nature or religious nature. On the other hand, the firm stand taken by the petitioner is that being the spiritual head, he is bound by Canon law alone

¶397

and not the general law with respect to right of alienation or transfer of immovable properties held by the church. But as adumbrated above, the properties which

¶398

were held in trust by the church for the parishioners would constitute a public trust, for which there is no written trust deed or any specific understanding to that effect except their constitution and the provisions contained in the Canon law. Interestingly, in their constitution (byelaw), nothing has been mentioned or recognized regarding any trust presumably for the reason

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¶400

¶401

that it was codified only for the purpose of meeting the

¶402

spiritual, ecclesiastical and temporal affairs of the church and not to deal with any public trust or trust property. There is no provision anywhere in the byelaw authorising or empowering any person to hold any property in trust. In the instant case, since there is no written constitution dealing with affairs of public trust or

¶403

trustees, but only presupposes albeit tangentially an implied public trust, without conferring any authority to any particular person either as a trustee or otherwise, the legal position settled by the Constitution Bench of the Apex Court in Chairman Madappa v. M.N.Mahanthadevaru and others [(1966) 2 SCR 151 : AIR 1966 SC 878] cannot be applied, firstly on the reason that all these sale deeds were executed deviating from the scope and purpose of the Episcopal church by ostensibly establishing a Medical College Hospital with the objective of a charitable intent. Secondly on the ground that there is no written

¶404

trust deed either appointing or authorising any

¶405

particular person as trustee or recognizing its powers and authorities over its assets.

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¶407

The right to alienate the property shall not be

¶408

allowed to be misconstrued as the authority or be

¶409

regarded as an offshoot of the right to hold, possess and administer the property. The expression “temporal” may include the authority to hold, possess and administer the property, but not to alienate the same. The expression “corporeal” must be understood in relation to “temporal” and “spiritual” right in contra. The word “corporeal” stands for “that can be touched, physical, rather than spiritual (Oxford Advanced Learner's Dictionary).

¶410

The word “corporeal”, “corporal hereditament”

¶411

and corporeal property are defined in P.Ramanatha Aiyar's

¶412

Advanced Law Lexicon 4^th edition as follows:

¶413

“”corporeal” - Things which may

¶414

be seen and touched;material (as)

¶415

corporeal hereditaments

¶416

CORPOREAL distinguished from CORPORAL. Corporeal means

¶417

possessing a body, that is tangible, physical, material; corporeal means relating to or affecting a body that

¶418

is bodily external. Corporeal denotes the nature or physical existence of a body, corporeal denotes it exterior or the co-

¶419

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¶421

ordination of it with some other. Hence we speak of 'corporeal hereditaments' but of corporal punishment.

¶422

– Corporal hereditaments

¶423

consists whole or substantial and permanent objects, all which may be comprehended under the general denomination of land only.

¶424

Corporeal hereditament : A material object in contrast to a right. It may include land, buildings, mineral, trees or fixtures.

¶425

Corporeal property : such as affects the senses, and may be seen and handled as opposed to incorporeal property, which cannot be seen or handled and exist only in contemplation. Thus a house is corporeal, but the annual rent payable for its occupation is incorporeal. Corporeal property is, if movable, capable of manual transfer: immovable, possession of it may be delivered up. But incorporeal property cannot be so transferred, but some other means must be adopted for its transfer, of which the most usual is an instrument in writing.

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¶428

Property which has a physical

¶429

existence, such as land or goods.”

¶430

The right to transfer a property asseverated by

¶431

the church has not come up for consideration before the

¶432

Apex Court in Varghese v. St.Peter's & Paul's Syrian

¶433

Orthodox Church (2017 3 KLT 261 (SC)) and in Most

¶434

Rev.P.M.A.Metropolitan and others v. Moran Mar Marthoma and Another (1995 Supp (4) SCC 286) . In that case, though the Apex Court upheld Malankara Orthodox Church as an Episcopal church, nothing was mentioned suggesting an exclusion of the application of Section 92 C.P.C. and

¶435

the relief of settling a scheme was not granted as there was sufficient provision in their 1934 constitution for the proper administration. That does not however imply

¶436

that Section 92 C.P.C. stands excluded.

¶437

There cannot be any tinkering of the constitution or byelaw regarding any public, charitable

¶438

or religious trust either constructive or express in

¶439

substitution of clause (d) to (g) of sub-section (1) of

¶440

Section 92 C.P.C., unless the institution is excluded by

¶441

the reason of its character as an endowment covered by

¶442

¶443

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¶444

other parallel legislations viz. various Endowment Acts. The observation made by the Apex court in Varghese 's case (supra) has to be considered so as to have a better understanding of the scope and impact of Section 92 C.P.C. even in the case of Episcopal institutions. The

¶445

relevant portions of the judgment run as follows:

¶446

“ FRAMING OF SCHEME UNDER SECTION 92 OF THE

¶447

CIVIL PROCEDURE CODE

¶448

We are also not impressed by the submission that the court should direct framing of a scheme under S.92 CPC in view of the decision of the Privy Council in Mohd. Ismile Ariff v. Ahmed Moolla Dowood ( 43 IA 127 (PC)) in which it has been held that the court has the power to give direction and lay down rules that may facilitate the work of management and the appointment of trustees in the future. The primary duty of the Court is to consider the interest of the general body of the public for whose benefit the trust is created. Reliance has been placed by Shri S.Divan, learned senior counsel on Acharya Shri Shreepati Prasadji Barot Laxmidas 33 CWN 352 (PC) that the institutional trust must be respected by the sect and the body of worshippers for whose benefit it was set up to have the protection of the court against their property being subject to abuse speculation and waste. Reliance was also placed on Ram Dularey v. Ram Lal (AIR 1946 PC 34) in which it has been laid down thus:

¶449

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¶450

¶451

“Even if there were an inconsistency in that judgment, their Lordships would be very slow to disturb the safeguards which are provided in that scheme, if their Lordships found it necessary to reconsider the scheme:but in their view the scheme has been definitely approved by the Chief Court and they see no reason for interfering with the judgment. It has to be remembered that in these cases the Court has a duty, once it finds that it is a trust for public purposes to consider what is best in the interests of the public. That is made abundantly clear by the judgment of this Board, delivered by Mr.Ameer Ali, in Mahomed Ismail Ariff and others v. Ahmed MoollaDawood and another ( 43 IA 127: 43 Cal.1085: 4 LW 269 (P.C.)”

¶452

In our opinion there is no necessity of framing any scheme under S.92. There are adequate provisions and safeguards provided in S.92 for managing the Malankara Church and its properties. There is no dispute with the proposition laid down in the aforesaid decisions but we find no such necessity for framing such scheme under S.92 CPC in view of detailed wholesome provisions of 1934 Constitution.”

¶453

Even going through the constitution of the Syro Malabar Church, it is clear that it evolved, gained acceptance and was adopted canonically. It is evident from the preamble attached to their constitution. The sources of the present code are stated to be many and

¶454

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¶455

varied and there is ample recognition to “yogam” in its

¶456

triadic forms – potuyogam, desiyayogam and edavakayogam

¶457

as the system of administration in Section 2 of its preamble, which would prima facie satisfy the existence of a system of administration in its triadic form of three yogams apart from the theory of apostolic succession, which manifests existence of an implied

¶458

trust within the congregation presumably for managing and

¶459

dealing with “corporeal right” attached. The only

¶460

provision remotely connected with the right to alienate or transfer any immovable property is included in title XIV of Article 214, which is a restriction imposed and not with respect to any “authority” given to any of its apostolic custodians in the hierarchy. Article 214 is extracted below for reference:

¶461

“ Article 214. Alienation of property

¶462

exceeding an amount of Rupees ten lakhs/one million (Rs.10,00,000) up to twenty-five crores/two hundred and fifty million (Rs.25,00,00,000) is to be done only with the consent of the finance council and the college of eparchial consultors. Alienation of property that exceeds an amount of Rupees twenty-five crores/two hundred and fifty million (Rs.25,00,00,000) upto fifty crores

¶463

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¶464

¶465

(Rs.50,00,00,000) needs the consent of the major archbishop who in turn needs the consent of the permanent synod. Alienation of property above Rupees fifty crores (Rs.50,00,00,000) can be done only with the consent of major archbishop who in turn needs the consent of the synod of bishops.”

¶466

A mere perusal of Article 214 would clearly show

¶467

that it is an additional requirement to be complied with for effectuating a valid sale or transfer of immovable property. No where it is stated with whom the ownership or title of immovable property would exclusively vest with, presumably for the simple reason that they are bound by the general law regarding “corporeal” rights.

¶468

Establishment of a Medical College or any

¶469

educational institution though falling under the broad

¶470

spectrum of charity does not by itself qualify for any diversion of funds or property for establishing a charitable institution without satisfaction of conditions

¶471

enumerated in Section 92(3)C.P.C., which are extracted below for reference:

¶472

“(a) where the original purposes of the trust, in whole or in part -

¶473

(i) have been, as far as may be,

¶474

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¶475

¶476

fulfilled; or

¶477

(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or

¶478

(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or

¶479

(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or

¶480

(d)where the original purposes in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or

¶481

(e) where the original purposes, in whole or in part, have, since they were laid down -

¶482

(I) been adequately provided for by other means, or

¶483

(II) ceased, as being useless or harmful to the community, or

¶484

(III) ceased to be, in law, charitable, or

¶485

(IV) ceased in any other way to provide a suitable and effective method of

¶486

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¶487

¶488

using the property available by virtue

¶489

of the trust, regard being had to the spirit of the trust.”

¶490

The abovesaid requirement has to be satisfied so

¶491

as to divert any fund or property for establishing or maintaining any educational institution or charitable

¶492

organization deviating from the purpose for which the

¶493

church was consecrated. This question had never come up

¶494

Rev.P.M.A.Metropolitan 's case, in Varghese 's case or in

¶495

Chairman, Madappa 's case (supra). Hence, the requirement

¶496

to be complied with under Section 92(3) C.P.C. is

¶497

independent in its nature, though it was incorporated by way of sub-section(3) and cannot be avoided.

¶498

This Court in Major Archbishop Angamaly and

¶499

Others v. P.A.Lalan Tharakan and Others(2016(3) KHC 359 =

¶500

2016(2) KLT 791 ) has not gone into the question of

¶501

creation of a public religious trust or endowment, but has only considered the relevant aspect of spiritual and temporal affairs among the Roman Catholics. The decision arrived at by the Madras High Court in Muthusamier and

¶502

others v. Sree Sree Methanithi Swamiyar Avergal and

¶503

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¶504

others [ (1913) SCC Online Mad 233 : AIR 1916 Mad 332 :

¶505

ILR (1915) 38 Mad 356 : (1913) 25 Mad LJ 393] is not

¶506

applicable in the instant case as what was considered in that decision is with respect to the “the properties belonging to an “English Bishop” (a corporation sole under the English Law) “including his savings from the revenue of the benefic, devolve upon his legal representatives or heirs” and not with respect to the property held by the church.

¶507

Hence, the petitioner, who has sold the property

¶508

without the compliance of Section 92 and 92(3) C.P.C.

¶509

cannot seek shelter under the umbrella of their

¶510

constitution (byelaw) or the provisions contained in the Canon law. The various sale deeds executed unilaterally and arbitrarily transgressing Section 92 and 92(3) C.P.C. would render his stand invalid and untenable at the option of any of the parishioners to whom no notice was given and no consent was obtained, since the property sold is not a property of place of worship or religious or spiritual observances. There is a clear breach of trust by the petitioner in the execution of sale deeds

¶511

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶512

¶513

in favour of various persons. The persons, who had

¶514

purchased the property, cannot take sanctuary pleading ignorance of law when they had opted to purchase the said property.

¶515

The criminal conspiracy between the petitioner in connivance with the cohorts and those who purchased the property further becomes more starkly evident from the fact that there is no semblance of any transparency in the alleged sales, though pertains to the property of church. The sale deeds were executed without conducting a

¶516

public auction or public sale with notice to all concerned including the parishioners and those intending to purchase the property and thereby curtailed the right to derive maximum consideration for the coffers of the church solely for the purpose of giving the property to certain selected persons at a throw away price capriciously and at the whims and fancies of the petitioner. This court can take judicial notice with

¶517

respect to the prevailing land value and market value of prime lands of vantage points having road frontage and national highway direct access. This would certainly show

¶518

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶519

¶520

the extent of criminal conspiracy hatched with the

¶521

purchasers of the property.

¶522

Yet another fact was also brought to the notice of this court so as to show the criminal conspiracy in one particular sale deed (No.3373/1/2016 Annexure A1 in Crl.M.C.No.8936/2019) wherein the entire consideration

¶523

of Rs.3,99,70,000/- (Rupees Three Crores Ninety Nine

¶524

Lakhs Seventy thousand)stated to be received by virtue of

¶525

transfer through a bank account, but no such consideration was passed or tendered on the date of execution and registration of the said sale deed. But the amounts were given in piecemeal, that too, when it was taken up by the complainant.

¶526

Another interesting fact also came to the notice of this court with respect to the property obtained under a settlement No.4950 dated 21.9.2007(Annexure A1 in Crl.M.C.No.8936/2019). The settlement deed is seen

¶527

executed by a Religious Congregation of Brothers of the Roman Catholic Community, Erattumugham P.O., Munnoorpilly Kara, Karukutty village, Aluva Taluk, represented by its duly constituted Power of Attorney Holder, Fr.Sebastian

¶528

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¶529

Vadakumpadan, as per General Power of Attorney registered

¶530

as No.177 of 2006 in Book IV Volume 132 at pages 21 and 22 of the Sreemoolanagaram Sub Registry. It seems to be

¶531

strange and unfortunately odd that the document of

¶532

acquisition of title over the property has not been mentioned or even hinted anywhere in the document and was kept in total darkness. On the other hand, they have given a declaration that the property is free from all encumbrances and liabilities and the settler has full and absolute title and possession of the property without divulging the acquisition of right, title or interest over the property. A title or ownership over a property can be obtained either (1) by voluntary action of the owners (2) by virtue of decrees of civil court or by

¶533

revenue sales or (3) by succession. The very same requirement is mentioned under Section 2 of Transfer of Registry Rules, 1966 for effecting transfer of title in revenue Registry. But nothing has been mentioned in the

¶534

settlement deed of the year 2007, how the

¶535

settler/executant acquired title or ownership over the

¶536

property either by means of a decree of court or

¶537

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¶538

¶539

voluntary action of its owners such as sale, gift,

¶540

settlement, will etc. or by succession. A declaration to

¶541

the effect that they have full absolute title and possession over the property is not sufficient to create

¶542

any title or ownership of the property. Suppression of material facts regarding the title and interest over the property hence looms large and causes a reasonable doubt

¶543

whether it is a property owned by the public or the Government or it is a puramboke land or a

¶544

no-man's land. It raises a reasonable doubt as to whether

¶545

it is the property of Government or a puramboke land and

¶546

whether the said settlement deed was created with the aim

¶547

to manipulate a document of title over the Government land. If it is a property owned by the public at large

¶548

or the government or a puramboke land, it would cause very serious legal repercussions especially, when there are provisions in the Land Conservancy Act. All the sale deeds were executed by the petitioner based on a self

¶549

declared title under the abovesaid settlement deed

¶550

without disclosing how right, title or interest over the property has been acquired. Even during the course of

¶551

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶552

¶553

argument, the learned Senior Counsel for the petitioner

¶554

Sri.George Poonthottam even went to the extent of

¶555

advancing an argument that it was not the property belonged to the settler. There would arise yet another doubt whether the said religious congregation is within the religious supremacy of the petitioner - Major Archbishop and the legal fiction in the execution of a settlement deed in his favour, when the property is otherwise vested in him, based on the apostolic succession or held by him in trust. In the document, the legal status of settler has not been mentioned. It is not mentioned anywhere in the document whether the property was mutated in the name of the executant of that document and whether they were paying basic tax in respect of the

¶556

property. In short, the settlement deed No.4950 dated 21/09/2007 prima facie appears to be executed to perpetuate encroachment over the Government or puramboke land and to manipulate title over it. It is also not

¶557

permissible to accord sanctity to the encroachment by

¶558

assigning re-survey number in the name of the encroacher.

¶559

It is quite impermissible and illegitimate to

¶560

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶561

¶562

convert a property of State Government or puramboke land or public land to a private property based on possession during the course of re-survey. Earlier,this court in

¶563

Cheriyanad Grama Panchayath v. State of Kerala and Others (2019 (5) KHC 699) had gone into the said question and the power of re-survey authorities to refix or fix any boundary of landed property based on possession and settled the legal position as follows:

¶564

“It is neither permissible nor advisable for

¶565

the resurvey authorities to refix the boundary line of particular survey under the guise of resurvey based on possession. No such power can be vested with the resurvey authority and hence what is done by them by refixing the boundary based on possession can only be considered as without any authority or exceeding the authority vested with them. The resurvey authority cannot exercise the jurisdiction of a Civil Court to fix any boundary based on possession. The possession is really a matter to be decided by a Civil Court. The power vested with the survey authority under Section 9 and Section 10 of the Act is relating to record an undisputed boundary or to determine any dispute of boundary with reasons.”

¶566

44.Hence it requires a proper and detailed enquiry

¶567

by the State Government and the investigating agencies

¶568

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶569

¶570

thereunder and this court cannot shut its eyes to the

¶571

abovesaid facts, which could even be the tip of an

¶572

iceberg. Special mention is required at this juncture to

¶573

Section 7 of the Land Conservancy Act dealing with punishment for unauthorisedly occupying the property of the Government, which is extracted below:

¶574

“7. Punishment for unauthorisedly

¶575

occupying land which is the property of

¶576

Government .— Notwithstanding anything contained in this Act,—

¶577

(a) whoever with the intention of using or holding any land which is the property of Government, whether poramboke or not, for any non-Governmental purpose, unlawfully enters or occupies such land shall be punishable with imprisonment of either description for a term which shall not be less than three years but which may extend to five years and shall also be liable to pay a fine which shall not be less than fifty thousand rupees, but which may extend to two lakhs rupees:

¶578

Provided that a person who is occupying any Government land not exceeding 5 cents as on the date of commencement of this Act and is not having any other land in his name or in the name of his family members and is having any of the following documents in order to prove that he was residing therein, namely, record of rights or a ration card or an electoral identity card issued in the address

¶579

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¶580

¶581

of such Government land which he is so occupying or a proceeding assigning house number to a building in such property or an electric connection or a water connection, issued by the competent authorities of the Government or the Local Self Government Institutions or the respective statutory bodies, as the case may be, shall not be considered as an unlawful occupant for the purpose of imposing punishment;

¶582

(b) whoever, for the purpose of effecting transfer of any land which is the property of Government for consideration or otherwise—

¶583

(i) commits the offence of cheating by fraudulently or dishonestly creating documents ; or

¶584

(ii) makes or creates any forged document in support of any claim or title to such land shall be punishable with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years and shall also be liable to pay a fine which shall not be less than fifty thousand rupees, but which may extend to two lakhs rupees ; (c) Whoever being an officer entrusted with the responsibility of reporting unlawful occupation of land which is the property of Government or of initiating action to remove such unauthorised occupation fails to report or to initiate action to remove such unlawful

¶585

occupation, shall be punishable with imprisonment of either description for a term

¶586

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¶587

¶588

which shall not be less than three years but which may extend to five years and shall also be liable to pay a fine which shall not be less than fifty thousand rupees, but which may extend to two lakhs rupees;

¶589

(d) Whoever erects or causes to erect any wall, fence or building or puts up or causes to put up any overhanging structure or projection, whether on a temporary or permanent basis in contravention of subsection (2) of section 5, shall be punishable with imprisonment of either description for a term which shall not be less than one year but which may extend to two years and shall also be liable to pay a fine which shall not be less than ten thousand rupees, but which may extend to twenty five thousand rupees and in the case of a continuing contravention, such additional fine which may extend to five hundred rupees for each day during which the contravention continues after conviction for the first such contravention.”

¶590

(emphasis supplied)

¶591

The earlier provision before its amendment by

¶592

Act 29 of 2009 w.e.f 08/11/2008 is as follows:

¶593

“7. Punishment for unauthorisdely

¶594

occupying land which is the property of Government (1) Whoever occupies a land which is the property of Government, whether a poramboke or not,contrary to section 5 shall be liable to pay-

¶595

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¶596

¶597

(a) such fine not exceeding two hundred rupees; and

¶598

(b) in the case of a continuing

¶599

contravention such additional fine not exceeding two hundred rupees for every day during which such contravention continues after fine has been imposed for the first such contravention as may be imposed by the Collector:

¶600

Provided that a person unauthorisedly occupying a land which is available for assignment under the Kerala Government Land Assignment Act, 1960, shall not be liable to pay any fine under sub-section

¶601

(1) if-

¶602

(i) he is eligible under the rules made under that Act for assignment of such land without auction; and

¶603

(ii) he applies under those rules for the assignment of such land in his favour, either on registry or on lease.

¶604

(2) Without prejudice to any liability under sub-section(1), any person who erects or causes to erect any wall,fence or building or puts up or causes to put up any overhanging structure or projection (whether on a temporary or permanent basis) in contravention of subsection(2) of section 5 shall be liable, on conviction by a magistrate, to be punished with fine which may extent to two hundred rupees and in the case of a

¶605

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶606

¶607

continuing contravention, with an additional fine which may extent to two hundred rupees for every day during which such contravention continues after conviction for the first such

¶608

contravention.

¶609

Explanation– A tenant unauthorisedly holding over after the expiry of his term of lease is liable to a fine under this section.”

¶610

(emphasis supplied)

¶611

To sum up, going by the earlier provision, it

¶612

would appear that anyone can encroach the Government land at the risk of Rs.200/-. This would prima facie show the

¶613

lack of proper protective measure by way of legislation against encroachment over Government land. Only by way of Act 29 of 2009, stringent provisions were incorporated

¶614

under Section 7 to deal with unauthorised occupants over the Government land.

¶615

It was submitted that the above question

¶616

regarding nature of the property, whether it is a Government land or not is not within the scope of this court under Section 482 Cr.P.C. and at the most it would

¶617

come under the purview of Article 226 of the

¶618

Constitution. I am afraid Section 482 Cr.P.C. though

¶619

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶620

¶621

incorporated under Code of Criminal Procedure, by its

¶622

nature is an independent provision dealing with the

¶623

inherent power of the High Court within the three contours of that section namely, to give effect to any

¶624

order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

¶625

When a glaring illegality has come to the notice, it

¶626

would be remiss on the part of court to remain a silent

¶627

spectator simply because nobody has raised the manipulation by initiating legal proceedings and this court can exercise the plenary powers under Section 482

¶628

Cr.P.C., lest it would perpetuate an illegality. The

¶629

scope of Section 482 Cr.P.C. in that behalf was taken up and settled by the High Court of Rajasthan in Likhama

¶630

Ram v. State of Rajasthan [1998 Cr LJ 2635 (Raj] . The Apex Court in Popular Muthiah v. State of represented by Inspector of Police (2006(6) SCALE 417) had settled the legal position that the power under Section 482 Cr.P.C.

¶631

can be exercised even suo motu in the interest of

¶632

justice, for which no formal application is required. It

¶633

acts ' ex debito justitiae '. It can, thus, do real and

¶634

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶635

¶636

substantial justice for which alone it exists. It is

¶637

true that no one came up with any such allegation either under Article 226 of the Constitution or otherwise

¶638

pertaining to large scale encroachment over the Government land by organized encroachers. Even proper protective measures were not taken by way of legislation prior to the amendment of Land Conservancy Act.

¶639

If it is pertaining to the Government property

¶640

as defined under Section 3 or a puramboke land as defined under Section 4 of the Act, necessarily, the offence of cheating and creation of forged document made mentioned

¶641

in clause (b) of Section 7 would come into effect,

¶642

besides the offence under the said section as against the officers, who failed to report unlawful occupation of

¶643

land. The non-mention of title or interest, or its acquisition or document of acquisition of title or

¶644

interest over the property covered by the said document raises a reasonable doubt as to the nature of the

¶645

property and hence the inherent power under Section 482 Cr.P.C. can be exercised to secure the ends of justice, when it is not dealt with under the provisions of the law

¶646

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶647

¶648

by the Government or the competent authority thereof.

¶649

Hence, it is ordered that the Government shall conduct an 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 puramboke land and whether it was a Government land or a puramboke land at any point of time and also the non-action/inaction on the 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.

¶650

From the discussion, the Criminal Miscellaneous Cases filed by the petitioners under Section 482 Cr.P.C. deserve only dismissal.

¶651

All the Crl.M.Cs. are dismissed with the abovesaid directions to the first respondent-State Government. For compliance report, post on 25/10/2021.

Sd/-

P.SOMARAJAN

JUDGE

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶657

¶658

APPENDIX OF CRL.MC 8936/2019

¶659

PETITIONER'S ANNEXURES

¶660

ANNEXURE A1	TRUE COPY OF THE C.C.NO.632/2019 FILED BEFORE
	THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD ALONG WITH THE ACCOMPANYING DOCUMENTS.
ANNEXURE A2	TRUE COPY OF THE ORDER PASSED BY THE LEARNED MAGISTRATE IN CMP NO.5003 OF 2018 DATED 02.04.2019.
ANNEXURE A3	CERTIFIED COPY OF THE ORDER DATED 24TH AUGUST, 2019 PASSED BY THE SESSIONS COURT IN CRL.R.P.NO.20/2019.
ANNEXURE A4	TRUE COPY OF THE COMPLAINT/CMP NO.2 OF 2018 FILED BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE.
ANNEXURE A5	TRUE COPY OF THE F.I.R. NO.0818/2019 OF ERNAKULAM CENTRAL POLICE STATION WITH THE ACCOMPANYING DOCUMENTS.
ANNEXURE A6	TRUE COPY OF THE ORDER IN C.M.P.NO.179/2018 DATED 2.2.2018 PASSED BY THE CHIEF JUDICIAL MAGISTRATE, ERNAKULAM.
ANNEXURE A7	CERTIFIED COPY OF THE FINAL REPORT IN FIR NO.818/2019 FILED BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM ON 2ND NOVEMBER 2020, WITH ITS ENGLISH TRANSLATION.
ANNEXURE A8	COPY OF THE SWORN STATEMENT OF SRI.JOSHY VARGHESE AND ITS TYPED COPY WITH ENGLISH TRANSLATION DATED 25.7.2018
ANNEXURE A9	COPY OF THE SWORN STATEMENT OF FR.BENNY MARAMPARAMBIL AND ITS TYPED COPY WITH ENGLISH TRANSLATION DATED 14.09.2018.
ANNEXURE A10	COPY OF THE COMPLAINT BEARING C.M.P.NO.179/2018 FILED BY SRI POLACHAN PUTHUPPARA BEFORE THE CHIEF JUDICIAL
	MAGISTRATE COURT, ERNAKULAM DATED 12/01/2018

¶661

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¶662

¶663

ANNEXURE A11 COPY OF THE COMPLAINT FILED BY SRI SHINE VARGHESE BEFORE THE STATION HOUSE OFFICER, ERNAKULAM DATED 15/02/2018.

¶664

RESPONDENT'S ANNEXURES

¶665

ANNEXURE R2(A)	TRUE COPY OF THE ABOVE DOCUMENT i.e.. SALE DEED NO.3373/2016
ANNEXURE R2(B)	TRUE COPY OF DOCUMENT i.e. SALE DEED 2180/2017
ANNEXURE R2(C)	TRUE COPY OF THE STATEMENT OF ACCOUNTS
ANNEXURE R2(D)	TRUE COPY OF THE MINUTES OF THE MEETING OF THE FINANCE COMMITTEE DATED 02.12.2015.
ANNEXURE R2(E)	TRUE COPY OF STATEMENT OF DETAILS OF PROPERTY TRANSACTION SITUATED AT VAZHAKKALA VILLAGE IN SY.NO.548/4
ANNEXURE R2(F)	TRUE COPY OF STATEMENT OF DETAILS OF PROPERTY TRANSACTION SITUATED AT VAZHAKKALA VILLAGE IN SY.NO.543/4 REGARDING WHICH COGNIZANCE IS TAKEN BY JFCM COURT, KAKKANAD
ANNEXURE R2(G)	TRUE COPY OF STATEMENT OF DETAILS OF PROPERTY TRANSACTION SITUATED AT POONITHURA VILLAGE IN SY.1415/4
ANNEXURE R2 (H)	TRUE COPY OF STATEMENT OF DETAILS OF PROPERTY TRANSACTION SITUATED AT VAZHAKKALA VILLAGE IN SY.NO.407/1
ANNEXURE R2(I)	TRUE COPY OF STATEMENT OF DETAILS OF PROPERTY TRANSACTION SITUATED AT KAKKANAD VILLAGE IN SY.NO.435/8.

¶666

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶667

¶668

APPENDIX OF CRL.MC 205/2020

¶669

PETITIONER'S ANNEXURES

¶670

ANNEXURE A1	CERTIFIED COPY OF THE C.C.NO.1886/2019 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD, ERNAKULAM DISTRICT WITH ITS ENGLISH TRANSLATION.
ANNEXURE A2	CERTIFIED COPY OF THE ORDER PASSED BY THE JUDICIAL MAGISTRATE OF FIRST CLASS IN CRL. MP. NO.5005 OF 2018 DATED 5.11.2019.
ANNEXURE A3	TRUE COPY OF THE ORDER IN CRL. M.A.1/2019 IN CRL. M.C.8936/19 DATED 13.12.2019 PASSED BY THIS HON'BLE COURT.
ANNEXURE A4	TRUE COPY OF THE COMPLAINT /CMP NO.2 OF 2018 FILED BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE, ERNAKULAM.
ANNEXURE A5	TRUE COPY OF THE COMPLAINT IN C.M.P.NO.179/2018 ALONG WITH THE SWORN STATEMENT.
ANNEXURE A6	TRUE COPY OF THE ORDER IN C.M.P.NO.179/2018 DATED 2.2.2018 PASSED BY THE CHIEF JUDICIAL MAGISTRATE, ERNAKULAM.
ANNEXURE A7	TRUE COPY OF THE FIR NO.0818/2019 OF ERNAKULAM CENTRAL POLICE STATION WITH THE ACCOMPANYING DOCUMENTS.

¶671

RESPONDENT'S ANNEXURES

¶672

ANNEXURE R2(A)	TRUE COPY OF SALE DEED OF THRIKKAKKARA SUB RE	NO.2720 DATED 1/9/2016 GISTRY OFFICE
ANNEXURE R2(B)	TRUE COPY OF SALE DEED 1.9.16 OF THRIKKAKKARA	NO.2721/16 DATED SRO
ANNEXURE R2(C)	TRUE COPY OF SALE DEED	NO.2723/16 DATED
	1/9/2016 OF THRIKKAKKA	RA SRO.

¶673

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶674

¶675

ANNEXURE R2(D) TRUE COPY OF SETTLEMENT DEED NO.4950/07 DATED 21/9/07 OF THRIKKAKKARA SRO.

¶676

¶677

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶678

APPENDIX OF CRL.MC 1414/2020

¶679

PETITIONER'S ANNEXURES

¶680

ANNEXURE A1	CERTIFIED COPY OF THE COMPLAINT DATED 16.07.2018 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT,KAKKANAD, ERNAKULAM DISTRICT.
ANNEXURE A2	CERTIFIED COPY OF THE ORDER PASSED BY THE JUDICIAL MAGISTRATE OF FIRST CLASS IN CRL.M.P.NO.5011 OF 2018 DATED 20.01.2020
ANNEXURE A3	TRUE C0PY OF THE ORER IN CRL.M.A.NO.1/2029 IN CRL.M.C.NO.8936/19 DATED 13.12.2019 PASSED BY THIS HON'BLE COURT.
ANNEXURE A4	TRUE COPY OF THE COMPLAINT/CMP NO.2 OF 2018 FILED BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE,ERNAKULAM.
ANNEXURE A5	TRUE COPY OF THE COMPLAINT IN C.M.P.NO.179/2018 ALONG WITH THE SWORN STATEMENT.
ANNEXURE A6	TRUE COPY OF THE ORDER IN C.M.P.NO.179/2018 DATED 02.02.2018 PASSED BY THE CHIEF JUDICIAL MAGISTRATE,ERNAKULAM.
ANNEXURE A7	TRUE COPY OF THE F.I.R.NO.0818/2019 OF ERNAKULAM CENTRAL POLICE STATION WITH THE ACCOMPANYING DOCUMENTS.

¶681

RESPONDENT'S ANNEXURES

¶682

ANNEXURE R2(B) TRUE COPY OF SETTLEMENT NO.4950/07 DATED 21.9.07 OF THRIKKAKKARA SRO.

¶683

¶684

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶685

APPENDIX OF CRL.MC 1409/2020

¶686

PETITIONER'S ANNEXURES

¶687

ANNEXURE A1	CERTIFIED COPY OF THE COMPLAINT DATED 16.07.2018 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD, ERNAKULAM DISTRICT.
ANNEXURE A2	CERTIFIED COPY OF THE ORDER PASSED BY THE JUDICIAL MAGISTRATE OF FIRST CLASS IN CRL. MP NO. 5013 OF 2018 DATED 20.01.2020.
ANNEXURE A3	TRUE COPY OF THE ORDER IN CRL. M.A. 1/2019 IN CRL. M.C. 8936/19 DATED 13.12.2019 PASSED BY THIS HONB'LE COURT.
ANNEXURE A4	TRUE COPY OF THE COMPLAINT/ CMP NO. 2 OF 2018 FILED BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE, ERNAKULAM.
ANNEXURE A5	TRUE COPY OF THE COMPLAINT IN C.M.P. NO. 179/2018 ALONG WITH THE SWORN STATEMENT WITH ITS TYPED COPY.
ANNEXURE A6	TRUE COPY OF THE ORDER IN C.M.P. NO. 179/2018 DATED 02.02.2018 PASSED BY THE CHEF JUDICIAL MAGISTRATE, ERNAKULAM.
ANNEXURE A7	TRUE COPY OF THE F.I.R NO. 0818/2019 OF ERNAKULAM CENTRAL POLICE STATION WITH THE ACCOMPANYING DOCUMENTS.

¶688

RESPONDENT'S ANNEXURES

¶689

ANNEXURE R2(A) TRUE COPY	OF SALE	DEED NO.1679 DATED 9.6.17
OF THRIKKA	KKARA S	UB REGISTRY OFFICE.
ANNEXURE R2(B) TRUE COPY	OF SALE	DEED NO.1680/17 DATED
9.6.17 OF	THRIKKA	KKARA SRO
ANNEXURE R2(C) TRUE COPY	OF SALE	DEED NO.1681/17 DATED

¶690

¶691

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶692

12.6.17 OF THRIKKAKKARA SRO

¶693

ANNEXURE R2(D) TRUE COPY OF THE SETTLEMENT DEED NO.4950 DATED 21.9.2007 OF THRIKKAKKARA SUB REGISTRY OFFICE

¶694

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶695

¶696

APPENDIX OF CRL.MC 2138/2020

¶697

PETITIONER'S ANNEXURES

¶698

ANNEXURE A1	CERTIFIED COPY OF THE COMPLAINT DATED 16/07/2018 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD, ERNAKULAM DISTRICT.
ANNEXURE A2	CERTIFIED COPY OF THE ORDER PASSED BY THE JUDICIAL MAGISTRATE OF FIRST CLASS IN CRL.MP.NO.5015 OF 2018 DATED 13/02/2020.
ANNEXURE A3	TRUE COPY OF THE ORDER IN CRL.M.A.1/2019 IN CRL.M.C.8936/19 DATED 13/12/2019 PASSED BY THIS HON'BLE COURT.
ANNEXURE A4	TRUE COPY OF THE COMPLAINT/CMP NO.2 OF 2018 FILED BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE, ERNAKULAM.
ANNEXURE A5	TRUE COPY OF THE COMPLAINT IN C.M.P.NO.179/2018 ALONG WITH THE SWORN STATEMENT.
ANNEXURE A6	TRUE COPY OF THE ORDER IN C.M.P.NO.179/2018 DATED 02/02/2018 PASSED BY THE CHIEF JUDICIAL MAGISTRATE, ERNAKULAM.
ANNEXURE A7 RESPONDENT'S ANNEXURES	TRUE COPY OF THE F.I.R.NO.0808/2019 OF ERNAKULAM CENTRAL POLICE STATION WITH THE ACCOMPANYING DOCUMENTS.
ANNEXURE R2(A)	TRUE COPY OF SALE DEED NO.2368 DATED 16.8.17 OF THRIKKAKKARA SUB REGISTRY OFFICE
ANNEXURE R2(B)	TRUE COPY OF SALE DEED NO.2369/17 DATED 16.8.17 OF THRIKKAKKARA SRO
ANNEXURE R2(C)	TRUE COPY OF SALE DEED NO.2370/17 DATED 16.8.17 OF THRIKKAKKARA SRO
ANNEXURE R2(D)	TRUE COPY OF SETTLEMENT DEED NO.4950 DATED 21.9.2007 OF THRIKKAKKARA SUB REGISTRY OFFICE.

¶699

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶700

¶701

APPENDIX OF CRL.MC 2136/2020

¶702

PETITIONER'S ANNEXURES

¶703

ANNEXURE A1	CERTIFIED COPY OF THE COMPLAINT DATED 16.7.2018 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD, ERNAKULAM DISTRICT.
ANNEXURE A2	CERTIFIED COPY OF THE ORDER PASSED BY THE JUDICIAL MAGISTRATE OF FIRST CLASS IN CRL.MP.NO.5009 OF 2018 DATED 13.2.2020.
ANNEXURE A3	TRUE COPY OF THE ORDER IN CRL.M.A.1/2019 IN CRL.M.C.8936/19 DATED 13.12.2019 PASSED BY THIS HON'BLE COURT.
ANNEXURE A4	TRUE COPY OF THE COMPLAINT/ CMP.NO.2 OF 2018 FILED BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE, ERNAKULAM.
ANNEXURE A5	TRUE COPY OF THE COMPLAINT IN C.M.P.NO.179/2018 ALONG WITH THE SWORN STATEMENT.
ANNEXURE A6	TRUE COPY OF THE ORDER IN C.M.P.NO.179/2018 DATED 2.2.2018 PASSED BY THE CHIEF JUDICIAL MAGISTRATE, ERNAKULAM.
ANNEXURE A7	TRUE COPY OF THE F.I.R.NO.0818/2019 OF ERNAKULAM CENTRAL POLICE STATION WITH THE ACCOMPANYING DOCUMENTS.

¶704

RESPONDENT'S ANNEXURES

¶705

ANNEXURE R2(A) TRUE COPY	OF SALE	DEED NO.2732 DATED 5.9.16
OF THRIKKA	KKARA S	UB REGISTRY OFFICE
ANNEXURE R2(B) TRUE COPY	OF SALE	DEED NO.2733/16 DATED
5.9.16 OF	THRIKKA	KKARA SRO
ANNEXURE R2(C) TRUE COPY	OF SALE	DEED NO.2734/16 DATED

¶706

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶707

¶708

5.9.16 OF THRIKKAKKARA SRO

¶709

ANNEXURE R2(D) TRUE COPY OF SETTLEMENT DEED NO.4950 DATED 21/9/2007 OF THRIKKAKKARA SUB REGISTRY OFFICE.

¶710

Crl.MC Nos.8936/2019, 205/2020, 1414/2020, 1409/2020, 2138/2020, 2136/2020, 9115/2019

¶711

¶712

APPENDIX OF CRL.MC 9115/2019

¶713

PETITIONER'S ANNEXURES

¶714

ANNEXURE A1	CERTIFIED COPY OF THE COMPLAINT DATED 16.7.18 IN C.C.NO.632/18 PENDING BEFORE THE LEARNED JFCM COURT, KAKKANAD.
ANNEXURE A2	COPY OF THE ORDER DATED 2.4.19 PASSED BY THE LEARNED MAGISTRATE IN CMP NO.5003/18.
ANNEXURE A3	COPY OF THE STATEMENT GIVEN BY PW1, THE COMPLAINANT HEREIN.
ANNEXURE A4	COPY OF THE DEPOSITION OF PW2.
ANNEXURE A5	A COPY OF THE FIR IN CRIME NO.818/19.
ANNEXURE A6	COPY OF THE BANK TRANSACTION DT.1.4.2016 TO 31.3.2017
ANNEXURE A7	COPY OF THE BANK TRANSACTION DT.1.4.2017 TO 31.3.2018
ANNEXURE A8	COPY OF THE DRAFT FINAL REPORT FILED BY THE ASSISTANT POLICE COMMISSIONER, C BRANCH, KOCHI CITY DT.28.10.2000
	/TRUE COPY/
	P.S. to Judge

Cardinal Mar George Alencherry v. State of Kerala

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Cardinal Mar George Alencherry v. State of Kerala

Case brief

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