Supreme Court Reserves Judgment In Cardinal Alencherry's Plea To Quash Land Scam Cases; Questions General Directions Issued By HC
The Supreme Court , on Wednesday, reserved its judgement in a Special Leave Petition filed by George Alencherry, the Major Archbishop of Syro-Malabar Church against the judgment delivered by the Kerala High Court in August 2021 which refused to quash the criminal cases over the irregularities in the sale of properties belonging to Ernakulam-Angamalay Archdiocese. Apart from the...
The Supreme Court , on Wednesday, reserved its judgement in a Special Leave Petition filed by George Alencherry, the Major Archbishop of Syro-Malabar Church against the judgment delivered by the Kerala High Court in August 2021 which refused to quash the criminal cases over the irregularities in the sale of properties belonging to Ernakulam-Angamalay Archdiocese.
Apart from the Cardinal, the Eparchy of Bathery and the Catholic Diocese of Thamarassery had also filed SLPs challenging the observations made by the High Court that Bishops have no power to alienate church assets.
While reserving the judgment, the bench comprising Justices Dinesh Maheshwari and Bela Trivedi questioned the approach taken by the single bench of the High Court in continuing to issue further directions in the matter, after the dismissal of the Section 482 CrPC petition filed by the Cardinal. It may be recalled that last year, the High Court had issued follow-up directions to the State to identify public properties encroached by religious trusts. The High Court had also recommended that the Central Government should bring a uniform law to regulate religious trusts.
Justice Maheshwari pointed out to the complainant's lawyer Senior Advocate Jayant Muthuraj :
“Mr. Muthuraj, the last paragraph of the (HC) order says very clearly that these petitions filed by Mr. Luthra(Cardinal's lawyer) stand dismissed. Sir, we are dealing with 482. He wanted quashment, the High Court dismisses his petition. There is a full stop after that, the matter ends with that full stop. It cannot proceed further. That is the 482 jurisdiction that we understand. The High Court said to file a compliance report”, the Bench said.
Adding on, the Bench said that in the 482 pleas before the High Court, the question is whether the proceedings can be quashed or not.
“What is this compliance report, we don’t understand. If you are not satisfied with the compliance, the complying body would be given directions. For giving those directions, now the Court calls upon the Central government also. We enter into different areas…..The Simple question is – under 482 whether these proceedings should be quashed or not – the answer is yes or no. The matter has to end there”.
The Bench further pointed out that the High Court, under its 482 jurisdiction, went ahead to question the earlier settlement agreement. “482 powers also would have certain boundaries.”
During the hearing, Senior Advocates CU Singh, appearing for the Eparchy of Bathery, Sidharth Luthra, appearing for the Cardinal, Jayant Muthuraj appearing for the complainant, Joshy Varghese and Jaideep Gupta appearing for the State government made submissions. Senior Advocate V Giri and Advocate PV Dinesh also made arguments on behalf of third-party intervenors(organisations seeking church reforms). However, the bench said that it will not entertain the arguments of intervenors
No Specific Bar In Filing The Second Complaint: Muthuraj
Responding to the earlier arguments made by Cardinal's lawyer that the complainant had indulged in "forum-shopping", Muthuraj submitted that the first complaint was a general complaint with 5 properties and the second one against 2 properties in the Maradu jurisdiction. There was no bar in filing the second complaint, he said.
“I filed a general complaint in the first instance, I admit. There are huge number of properties which are undervalued, money has not been credited. That’s a conspiracy. There no specific mentioning of any transaction or any material. Nothing was given. Cognizance was not taken. No adverse order was passed. Complaint was filed on 3.1.2018, while that compliant was pending, other 6 complaints were filed. The mistake I committed is, I should have disclosed that I’ve filed a general complaint in another jurisdiction.”
When Varghese went to Kakkanad jurisdiction, he specifically mentioned each complaint with the particular sale deed within that jurisdiction – details on purchaser, accused, land involved, sale deeds, the amount involved, the amount received and not received, undervaluation. “I did not include anything on the Maradu complaint in this one”, Jayant said.
Further, he argued that Magistrate, sessions judge and the High Court – all looked into the matter, found a prima facie case and upheld the order of summons issued by the Magistrate. Therefore, there was no need for the Supreme Court to interfere now.
“On the face of it, ingredients of the offence are made out. It took cognizance and issued process. The order was challenged before the Sessions Court which passed a detailed order saying “the offences alleged have been made out”. It was challenged before the High court and the High Court confirmed it.”
In the sale deed, it was mentioned that three crores were transferred to the bank account, however, on the date of the registration of the sale deed, only three lakhs were actually transferred into the bank account. The remaining accounts were transferred much later, Muthuraj told the Bench.
Also, there’s not a single paragraph in this SLP stating that the Cardinal had not committed the offence; the finding is on the point that misappropriation, prima facie, has been done. “It’s accounted money, at the end of the day. On merits, there was no argument”, the Bench was told.
What Is The Legal Status Of Episcopal Churches?
As the hearing progressed, Justice Trivedi asked,
“What is the legal status of Episcopal Churches? It is a trust under which provision?”
“It is a Public Trust. Section 92 of CPC will be applicable”, Muthuraj replied.
“Is there any statutory cover over these activities?”, Justice Maheshwari asked, while adding that the SLP pending before the Supreme Court in the case of Lalan Tharakan(against the Kerala HC judgment of 2016 which held that Catholic church assets are not a public trust and that they vest with the Bishop) would be the appropriate plea in which all these questions would be discussed.
“Every church has its own bylaws……So, CU Singh saying that I'm Episcopal Church and this will affect may not be correct”, the senior advocate replied.
Are Churches Governed Under Any Statutory Framework?
By virtue of the office, the Bishop is one to deal with properties and it has be as per the byelaws of the church, Singh argued before the Court while stating that the properties of the church are vested with the Bishop, an officer of the church.
“They are not vested with an individual. They are regulated by the Canon Law”, Singh said.
“Activities will be governed by law, but not the principal body. That is what is being indicated, your taxation, your schools etc, are governed by the statute. But the principal one, who is having/dealing with the property is not covered or governed under any statutory framework”, the Bench observed.
It does not require to be registered under any particular statute but that does not mean that the church does not have to comply with the laws of the land, Singh replied.
“How do you make them accountable if they are not registered?’, the Bench asked.
As a church, it has an entity, he said while relying on Lalan Tharakan’s judgement passed by the Kerala High Court.
“The amount of sale consideration will be deposited where? His account?”, the Bench further asked.
“No….The Bishop is an agent. He has to follow the bylaws and canon laws”, Singh said.
“The Archdiocese is like a headquarters sort of thing; the money will be deposited in its account. The Bank account would be in the name of the church”, he added.
The Bench noted that there are few aspects which lacked clarity.
“Because church is not a juristic person. Okay, but account is in church' name? Okay, we take it that way…. The vicar is only an authorised signatory and they keep on changing. Very well”, the Bench then observed.
The Bench asked Senior Advocate Jaideep Gupta, the State's counsel, about the stand of the State regarding the church properties.
"Generally, what is your stand regarding status of this church and its properties, alienation etc?", Justice Maheshwari asked. Gupta replied that a clear view cannot be given at the present juncture as the State has not filed an appeal challenging the Kerala HC order.
Never Said Will Not Appear Before Trial Court: Cardinal
Luthra told the Court that the decision to sell the Church’s properties to pay off a loan was taken in a meeting by the financial council, an internal arrangement of the management of the church body. The Cardinal acted based on this. There was no objection from any of the members of the council, he added.
He also informed that the Trial Court had adjourned the matter and accommodated the Cardinal for not appearing in person. “I've never said that I'll not appear”, he clarified. He also apprised that an SLP had been moved against the Kerala High Court order which refused to grant the Cardinal exemption from personal appearance.
“We have not granted any interim orders in this matter”, the Court said, adding that earlier the Court had asked the Cardinal to appear once and then seek an exemption.
“But if you do not respect the rule of law, ultimately you have to answer the law everywhere”.
“Has he appeared today, sir (before the Trial Court)? The Court is not sitting today but what prevents him from appearing?”, the Court further asked.
Case Title: Eparchy of Bathery vs. State of Kerala and Ors - SLP(Crl) No. 1487-1493/2022, Catholic Diocese of Thamarassery vs. State of Kerala and Ors | Diary No. 7364/2022