U/S 482 Cr.P.C - High Court Crossed Boundaries of Judicial Activism, Says Supreme Court

On dated 17th March 2023, Supreme Court in a recent Judgement, CARDINAL MAR GEORGE ALENCHERRY Vs. STATE OF KERALA & ANR., observed that the High Court had exceeded its jurisdiction and acted beyond the scope and ambit of Section 482 of the Criminal Procedure Code (Cr.P.C.) and Article 226 of the Constitution of India. The High Court had passed orders under the guise of doing real and substantial justice and had crossed all the boundaries of judicial activism and judicial restraint. The Supreme Court emphasized that judicial restraint is a virtue, and the predilections of individual judges cannot be permitted to be operated in utter disregard of the well-recognized judicial principles governing uniform application of law.

The Syro Malabar Church, headed by the appellant Cardinal Mar George Alencherry, sold certain properties worth crores of rupees. A complaint was filed against the appellant, Rev Fr. Joshy Puthuva, and Saju Varghese for committing offenses under various sections of the Indian Penal Code. The complaint alleged that the appellant conspired with Rev Fr. Joshy Puthuva to fraudulently dispose of some of the immovable properties of the Archdiocese. The Trial Court dismissed the complaint under Sections 409, 418, 420, 465, 467 and 468 of IPC but issued summons under Sections 120-B, 406, 423 read with 34 of IPC.

The appellant-Archbishop and others have been accused of multiple offenses, and the complainant has filed five similar complaints against them, in which the trial court issued separate summon orders. The appellant-Archbishop and one of the accused filed criminal revision applications before the Sessions Court, which were dismissed, and they then filed petitions before the High Court.  The High Court dismissed all seven petitions and gave directions to the State Government, and the matters were posted for compliance report.

High Court passed subsequent orders after dismissing the petitions filed by the appellant under Section 482 of the Cr.P.C. The High Court enlarged the scope of the petitions and raised doubts about the settlement deed executed by the appellant and others in respect of the properties. The High Court directed the State Government to conduct an investigation to determine whether the settlement deed was executed with respect to any government or Poramboke land. The concerned Judge in the High Court retained the case to report the compliance of the directions given by him. The High Court directed the registry to implead the Union of India as an additional party to the main case and to enact a comprehensive law dealing with encroachment over government and public properties. The High Court also directed the registry to send a copy of the judgment to the Assistant Solicitor General of India for information. The High Court passed subsequent orders to the Central Government and Assistant Solicitor General of India to take instructions and file an affidavit.

The present appeals have been filed by the appellants against the High Court's orders.

The Supreme Court rejected the argument that the present complaint against the appellant was not maintainable as the same set of facts had been dismissed by the Court of Maradu. The court observed that the earlier complaint was a general allegation with regard to the fraudulent sale of the properties belonging to the Archdiocese by the appellant Archbishop, whereas the instant complaints were specific, giving details about the sale of the properties within the jurisdiction of the Trial Court at Kakkanad. The court noted that the first complaint was dismissed without taking cognizance of the complaint, and summons had been issued by the Trial Court in the instant complaints prior to the dismissal of the first complaint. The court also noted that the complaints regarding the first property were filed before the Court of Maradu, while the other complaints were filed before the Court of JMFC, Kakkanad within whose jurisdiction the properties were situated.

The Supreme Court observed that although the complainant had filed a previous complaint in the court of JMFC, Maradu, seeking an investigation under Section 156(3) and 202 of Cr.PC, the said complaint was not further prosecuted, and the Trial Court at Kakkanad had already taken cognizance by issuing summons to the appellant and others in the instant six complaint cases filed by the respondent no. 2 - complainant. The Court also noted that although the complainant should have disclosed the full and correct facts regarding the previous complaint, mere non-disclosure of such facts would not be a ground to set aside the summons issued by the Trial Court after applying its mind and having been prima facie satisfied about the commission of the alleged offences. The Court further observed that the Trial Court had meticulously examined the allegations made in the complaint and the evidence of the complainant and one witness before taking cognizance of the alleged offences under Section 120B, 406 and 423 read with 34 of IPC, which shows proper application of mind by the Trial Court.

Supreme Court held that submission that the second complaint at the instance of the respondent no. 2 on the same set of facts against the same accused was not maintainable.

The learned senior counsel representing the appellant argued that similar complaints filed by other complainants against the appellant and others making similar allegations were not found to be of any substance. However, the Supreme Court rejected this submission, stating that it was difficult to determine whether all the other complaints pertained to the same properties for which the present complaints had been filed, and noted that in one of the complaints filed by another complainant, the trial court had reopened the case for hearing despite the police having filed a closure report. The Sessions Court and the High Court had also upheld the orders passed by the trial court issuing summons against the appellant and others. Therefore, the Supreme Court did not find any reason to interfere with the prima facie findings recorded by the three courts below regarding the alleged involvement of the appellant in the alleged offences.

Supreme Court states that while summoning an accused is a serious matter and allegations made in the complaint should be scrutinized carefully, one of the objectives of Section 202 of the CrPC is to enable the Magistrate to prosecute a person against whom grave allegations are made. The court further notes that it is necessary to curtail vexatious and frivolous complaints against innocent persons, but equally essential to punish the guilty after conducting a fair trial. The court observes that all three courts below had discussed in detail the prima facie involvement of the appellant in the alleged offences and found no illegality or infirmity in the orders passed by the trial court issuing summons against the appellant-Archbishop for the alleged offences.

The Supreme Court observed that the High Court had exceeded its jurisdiction and acted beyond the scope and ambit of Section 482 of the Criminal Procedure Code (Cr.P.C.) and Article 226 of the Constitution of India. The High Court had passed orders under the guise of doing real and substantial justice and had crossed all the boundaries of judicial activism and judicial restraint. The Supreme Court emphasized that judicial restraint is a virtue, and the predilections of individual judges cannot be permitted to be operated in utter disregard of the well-recognized judicial principles governing uniform application of law. The Supreme Court quashed and set aside all the subsequent orders passed by the High Court after the passing of the impugned order dated 12.08.2021, as being unwarranted. The Criminal Appeal filed by the Appellant-Archbishop, and all the SLPs filed by Eparchy of Bathery and Catholic Diocese of Thamarassery were dismissed.

CARDINAL MAR GEORGE ALENCHERRY Vs. STATE OF KERALA & ANR.