'Clear Breach Of Trust ': Kerala High Court Refuses To Quash Criminal Cases Against Archbishop George Alenchery Over Sale Of Diocese Properties
The Kerala High Court on Thursday dismissed the petitions filed by Cardinal Mar George Alencherry, the Major Archbishop of Syro Malabar Church, seeking to quash the criminal cases over the alienation of properties belonging to Syro Malabar Church.Justice P.Somarajan while dismissing a batch of seven petitions, upheld the verdict of the Sessions Court and remarked:"...it requires a proper...
The Kerala High Court on Thursday dismissed the petitions filed by Cardinal Mar George Alencherry, the Major Archbishop of Syro Malabar Church, seeking to quash the criminal cases over the alienation of properties belonging to Syro Malabar Church.
Justice P.Somarajan while dismissing a batch of seven petitions, upheld the verdict of the Sessions Court and remarked:
"...it requires a proper and detailed enquiry by the State Government and the investigating agencies thereunder and this court cannot shut its eyes to the abovesaid facts, which could even be the tip of an iceberg."
The Court further noted that the petitioner had executed numerous sale deeds unilaterally and arbitrarily transgressing Section 92 and 92(3) C.P.C. which rendered 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 a place of worship or religious or spiritual observances.
Similarly, it was observed that the petitioner had taken a firm stand that being the spiritual head, he is bound by Canon law alone and not the general law with respect to the right of alienation or transfer of immovable properties held by the church.
However, there is no provision anywhere in the byelaw authorising or empowering any person to hold any property in the trust.
"There is a clear breach of trust by the petitioner in the execution of sale deeds in favour of various persons," said the Single Bench.
Hence, the Bench held that the petitioner, who sold the property without the compliance of the said provisions, cannot seek shelter under the umbrella of their constitution (byelaw) or the provisions contained in the Canon law.
Factual Background:
The dispute pertains to the execution of various sale deeds in respect of properties held by the Syro Malabar Church, a religious congregation allegedly without compliance with the requirements as per the bye-laws of the Church causing heavy financial losses to the church and its parishioners.
It was also contended that all these sale deeds are the result of a criminal conspiracy hatched between the petitioner in collusion with his henchmen and the persons who had purchased the properties.
He was further accused of availing a loan of Rs.58.2 crores from South Indian Bank without initiating any discussion or arriving at any decision as per the provisions of Canon law and the law in force. Therefore, the petitioner was charged with Section 120 B, 406, 409, 418, 420, 423, 465, 467, 468 and 34 of IPC for his offences.
A complaint was thereby filed before the Judicial First Class Magistrate against the petitioner and another. The Magistrate took cognizance of the offence and passed an order. A revision was preferred against this order before the Sessions Court by the petitioner, but this was dismissed as well.
It was against the aforesaid two orders and to quash the entire proceedings that the petitioner challenged preferred a petition under Section 482.
Contentions Raised:
Senior Counsel George Poonthottam on behalf of the petitioner argued that 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 imposed under their bylaws.
It was contended that the Archbishop should be considered as the "corporation sole" and the real owner and not a mere trustee in regard to the property of the diocese, relying on the decision in Muthusamier & Ors v. Sree Sree Methanithi Swamiyar Avergal & Ors.
It was further submitted that the properties held by the Syro Malabar Church through their Archdiocese Bishop, the petitioner herein, was for the benefit of all parishioners.
He then submitted that the question regarding the 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 come under the purview of Article 226 of the Constitution.
Court's Observations:
Upon perusal of the provisions of the Land Conservancy Act, the Court noticed that there was a lack of proper protective measures by way of legislation against encroachment over Government land. it was only by way of n amendment in 2009, stringent provisions were incorporated to deal with unauthorised occupants over the Government land.
For this reason, the Court decided that the matter requires a proper and detailed enquiry by the State Government and the investigating agencies thereunder and this court cannot shut its eyes to the abovesaid facts, which could even be the tip of an iceberg.
- Criminal Conspiracy
The criminal conspiracy between the petitioner in connivance with the cohorts and those who purchased the property further becomes starkly evident from the fact that there was no transparency in the alleged sales, though pertains to the property of the church.
It was found that the sale deeds were executed without conducting a 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 to give the property to selected persons at a throwaway price capriciously and at the whims and fancies of the petitioner.
Taking judicial notice of the prevailing land value and market value of prime lands of vantage points having road frontage and national highway direct access, the Court asserted that the discrepancies certainly showed the extent of a criminal conspiracy hatched with the purchasers of the property.
- Scope of Judicial Powers u/s 482
The Court disagreed with the argument that the nature of land does not fall within the ambit of this Court's exercise of judicial powers under Section 482 CrPC.
It observed that the provision though incorporated under CrPC, by its nature is an independent provision dealing with the inherent power of the Court within the three contours of that section namely, to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
"When a glaring illegality has come to the notice, it would be remiss on the part of court to remain a silent spectator simply because nobody has raised the manipulation by initiating legal proceedings and this court can exercise the plenary powers under Section 482 Cr.P.C., lest it would perpetuate an illegality."
After relying on several decisions such as Likhama Ram v. State of Rajasthan and Popular Muthiah v. State of represented by Inspector of Police, the Bench established that the power under Section 438 can be exercised even suo motu in the interest of justice, for which no formal application is required.
"It acts ex debito justitiae," the Court found.
- Encroachment of Govt. Land
If it is pertaining to the Government property 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 would come into effect.
The Court emphasised that it is quite impermissible and illegitimate to convert a property of State Government or puramboke land or public land to private property based on possession during the course of the re-survey.
"The non-mention of title or interest, or its acquisition or document of acquisition of title or interest over the property covered by the said document raises a reasonable doubt as to the nature of the 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 by the Government or the competent authority thereof."
- Directions Issued
The Government was accordingly directed to conduct an investigation into the matter through its investigating agencies 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.
It was also directed to inquire into 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.
Case Title: Cardinal Mar George Alencherry v. State of Kerala & Ors.