Intra-Court Appeal Maintainable Against Judgment Passed Under Art 226 Exercising Criminal Jurisdiction: Kerala HC DB Sets Aside Order To Probe Syro-Malabar Church Land Deal Case [Read Judgment]

A Division Bench of Kerala High Court has set aside a single bench judgment that ordered the police to investigate into allegations against the Major Arch Bishop and others of the Syro-Malabar Church in connection with the Syro-Malabar Church land deal.

The Bench has held that an intra-court appeal is maintainable under Section 5 of the Kerala High Court Act against a Judgment passed by a single Judge under Article 226 exercising the original criminal jurisdiction.

Background

Justice B Kemal Pasha had allowed a writ petition filed by one Shine Varghese, a member of Arch Diocese, in which he sought probe into allegations that Cardinal Mar George Alancherry conspired with others with an intention to misappropriate the major sale proceeds in connections with lands belonging to church.

The Major Arch Bishop preferred a writ appeal against the single judge order and it was heard by a bench comprising Chief Justice Antony Dominic and Justice Dama Seshadri Naidu. Following are the main issues dealt with by the bench during the hearing.

The issues

1. This Court, per a learned Single Judge, entertained the writ petition under Article 226 of the Constitution; a learned Single Judge rendered the impugned judgment, undoubtedly, by exercising “criminal jurisdiction.” In the face of Clause 10 of the Letters Patent, does an intra-court appeal lie against that judgment?


2. Other parishioners earlier filed similar complaints against the same set of people that they had committed cognizable crimes. In one instance, a competent court has held that the allegations are of civil nature. This finding remaining unaffected, does the principle of issue estoppel, first and foremost, affect the writ petition?


3. The public law remedy under Art.226 of the Constitution of India permits the Constitutional Courts to judicially review the decisions, among others, of officials. The police, as officials, are amenable to judicial review. Their alleged refusal to act—to register a crime—is sought to be challenged under Article 226. But the Criminal Procedure Code provides for statutory remedies if the police refuse, say, to register a crime. Then, can a complainant disregard those remedies and insist on a writ remedy?


4. Does the Supreme Court in Lalita Kumari permit a complainant to do away with the statutory remedies and, instead, take a straight recourse to judicial review?

Intra-Court Appeal Maintainable Against Judgment Passed Under Art 226 Exercising Criminal Jurisdiction

To answer this issue, the bench referred to a recent division bench judgment in State of Kerala v Mohammed that had held that the restrictions contained in Clause 15 of the Letters Patent were deliberately not incorporated in Section 5 of the Kerala High Court Act; therefore, “there is no exclusion of the orders passed by a learned Single Judge in exercise of a criminal jurisdiction”.

"Recently, a Division Bench, to which one of us (Antony Dominic, C.J.) being a party, elaborately considered the issue in State of Kerala v Mohammed. It has examined Clause 10 of the Letters Patent vis-à-vis Kerala High Court Act, and has held that the Division Bench has examined Ram Kishan Fouji in which the Supreme Court considered clause-10 of the Letters Patent as applicable to the erstwhile Punjab & Lahore High Courts.

The Bench has also observed that clause-10 is in para materia with clause-15 of the letters patent as applicable to Madras High Court. Eventually, the Division Bench has examined clause-15 of the letters patent of the Madras High Court vis-à-vis Section 5 of the Kerala High Court Act. Section 5 of the Kerala High Court Act mandates that an appeal shall lie to a bench of two judges from “(i) a judgment or order of a Single Judge in exercise of original jurisdiction), and (ii) a judgment of a Single Judge in exercise of appellate jurisdiction in respect of a decree or order made in exercise of original jurisdiction by a subordinate court.” Thereafter, drawing parallels between clause-15 of Letters Patent and Section 5 of Kerala High Court Act, the Division Bench has held that the restrictions contained in clause-15 of the Letters Patent are deliberately not incorporated in Section 5 of the Kerala High Court Act; therefore, “there is no exclusion of the orders passed by a learned Single Judge in exercise of a criminal jurisdiction.” Pertinently, as was observed in the order, earlier the same line of reasoning was advanced and accepted in Rugmini Ammal v. Narayana Reddiar and that conclusion later stood affirmed by the Supreme Court in Narayana Reddiar v Rugmini Ammal ".

Lalita Kumari judgment does not mandate rush to HC on police’s refusal to register the crime

The bench examined the Lalita Kumari case and concluded that it does not obliterate the alternative statutory remedies available to the aggrieved complainant. The court observed that there are alternative remedies when police refuse to register a crime. It said there are provisions in the Code of Criminal Procedure which empower the courts of the first instance to exercise a certain degree of control over ongoing investigations.

“Lalita Kumari concerns the statutory compulsion on the police to register an FIR if they are presented with a written complaint making out a cognizable offence. It does not, at any rate, mandate that the aggrieved complainant could rush to High Court on the police’s refusing to register a crime. Much less has it enabled the suitors to ignore the other statutory safeguards available to them and insist on a public-law remedy—especially a remedy under Art.226, at that,” the court said.

Unseemly haste shown by complainant

The court also noted that Shine had approached the police on 15^th January and preferred writ petition on 16^th January. On this aspect, it said: “Here, Shine seemed to have rushed to the Court posthaste, before the ink dried on the paper, as if it were. So, we find it hard to believe that there was proper demand and refusal, the essential elements for a mandamus. “

Setting aside the single bench judgment on Shine’s petition, the bench observed: “The impugned judgment seems to have placed heavy reliance on the Diocese’s enquiry report and concluded—prima facie, though— that a cognizable offence is made out. But, regrettably, it has missed out on the fundamental jurisdictional issue. It has failed to notice the unseemly haste Shine showed: no sooner had he submitted his complaint than he rushed to the Court—in 24 hours.. To conclude, we may observe that Shine Varghese has faltered at the first hurdle—the alternative remedy, which he has on more than one count. That is, the impugned judgment suffers from legal infirmity and deserves to be set aside. And we do so.”       

Other complainants have approached magistrate court

 The bench also took note of the fact that before Shine could complain, others had taken up the issue and on one such complaint, a criminal court took cognizance of the matter, and in another, a competent Magistrate found the dispute “of civil nature”. That finding has attained finality.  “That finding has attained finality. So, in the face of that finding involving the same issue and the same respondents or accused, can another person answer the same description as the other person did—a parishioner—once again complain,” the bench asked.