Malankara Church Dispute| Offence Of Forgery Not Attracted: Kerala High Court Drops Proceedings Against Persons Accused Of Forging 1934 Constitution

The Kerala High Court on Tuesday quashed all proceedings against two individuals who were accused of forging the 1934 Constitution of the Malankara Orthodox Syrian Church observing that the matter had already been dealt with by the Supreme Court and the case was an instance of abuse of process of court. 

Justice Ziyad Rahman A.A found that the Apex Court had already clarified that the non-registration or the indicated modifications made in the 1934 Constitution cannot be a valid contention to challenge the validity of the document if any petitioner places reliance on it. 

"When the Honourable Supreme Court approved the terms of the 1934 Constitution, nothing precludes the petitioners herein from relying upon the same. Under no circumstances such reliance placed by the petitioners can be treated as an instance of using a false document as genuine for attracting the offence under section 471 of the Indian Penal Code. In such circumstances, I am of the view that the allegations in Annexure-A4 regarding the forgery committed in respect of Clauses 1 and 3 of Annexure-A10 are unsustainable in law."

The petitioners herein and some others instituted a suit before a sub court seeking a declaration that St.Johns Besphage Orthodox Syrian Church, Pulinthanam is a constituent parish church of Malankara Orthodox Syrian Church and is to be administered in accordance with the provisions of the 1934 Constitution of the Malankara Orthodox Syrian Church.

In the said suit, they produced a document claiming to be the Constitution of Malankara Orthodox Syrian Church. According to the 2nd respondent herein, this document is a forged one as it contains certain marked differences in certain clauses when compared with its original. 

The respondent also alleged that the document did not contain any registration number, stamp paper or the necessary declaration as required under Section 3 of the Press and Registration of Books Act, 1867 to print the same. Therefore, he lodged a complaint and a crime was consequently registered against the petitioners. 

The petitioners moved the High Court praying that the said proceedings are liable to be quashed.

Appearing through Advocate Roshen D. Alexander, Tina Alex Thomas and Harimohan, the petitioners pointed out that the document is the certified copy of the Constitution of Malankara Orthodox Syrian Church and was not printed, published or executed by them. Therefore, they contended that it would not attract the offences punishable under the provisions of the Press and Registration of Books Act.

More importantly, they asserted that all the irregularities pointed out by the de facto complainant were already clarified by the Supreme Court. It was indicated that the 1934 Constitution produced before the Apex Court contained the same modifications highlighted in this complaint and that the Supreme Court had rejected a petition challenging these modifications.

They argued that the Supreme Court in K.S. Varghese & Ors v St. Peter's & St. Paul's Syrian Orthodox and Ors [2017(3) KLT 261 SC] had further found that the non-registration of the 1934 Constitution cannot be taken as a contention by any of the parties.

It was also contended that to attract the offences punishable under Section 468 IPC, the person who allegedly committed forgery of a document must be the maker of the same.

The Bench noted that the validity of the 1934 Constitution and all its contents was approved by the Supreme Court with a specific finding that the same shall govern the Church. Although illegal alterations were pointed out, they were explicitly rejected by re-affirming the conclusions. Therefore, the Court held that it is not open for any person to raise a contention regarding the falsity in the aforesaid clauses if at all the same can be treated as an alteration at all. 

The Court made the following observations regarding forgery: 

• Mentioning the name of the defendant in a plaint submitted by the plaintiff differently would not attract the offence of forgery

One of the essential ingredients for attracting forgery under Section 463 IPC is making a false document with the impression that the same was created by another person or with the authority of another person. In this case, the only allegation was that name of the 1st respondent was described differently. However, the plaintiff himself took up the responsibility for the averments made in his plaint including the descriptions of the names in the cause title. He did not claim that they were made by some other person or under the authority of some other person. In such circumstances, it was held that the plaintiff's act would not attract the offence of forgery, even if it is false.

• Lack of registration by itself would not attract the offence of forgery

The Court observed that while this was a settled position in law as such, the Apex Court had also specifically established that the non-registration of the 1934 Constitution is not a valid contention at all. Therefore, it was evident that the question of lack of registration of the document in question was not a matter that can be considered at all.

• Can't take cognizance of forgery except on the written complaint of the concerned court or by such officer authorised by such court  

As per Section 195(1)(b)(ii) of CrPC, if forgery is alleged to have been committed in the documents produced or given in evidence before a court, no cognizance can be taken except on the complaint in writing of that court or by such officer of the court as that court may authorise or some other court to which that court is subordinate. However, here the complaint was submitted by the 2nd respondent and it is therefore not maintainable as the only way to initiate prosecution was by complying the procedure contemplated under Section 195 (1).

Further, regarding the charges under Section 12 of the Press and Registration of Books Act, the Court noted that this was attracted if the book or paper is printed or published otherwise than in conformity with Section 3. In this case, the only allegation against the petitioners was that they obtained a certified copy of the 1934 Constitution, which was already produced before a court of law. The Court opined that since the printing or publication was not done by the petitioners, this offence was also not attracted.

Judge Rahman also noted that the inherent powers of the High Court are wide and have to be exercised to prevent the abuse of the process of court and to secure the ends of justice.

In this case, it was discernible from the records that several complaints containing identical allegations were being submitted before various police stations by persons belonging to the factions of the petitioners herein. Records also indicated that some of the criminal cases which were registered accordingly were dropped in the light of the observations made by the Supreme Court.

"In such circumstances, submitting complaints after complaints, by reiterating the same allegations, even though the issues therein have been settled by the Honourable Supreme Court finally and authoritatively, amounts to unnecessary harassment."

In State of Haryana v. Bhajan Lal [1992 Supl.(1) SCC 335], the Supreme Court observed that where a criminal proceeding is manifestly instituted with mala fide and where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, the powers of the court under Section 482 Cr.P.C. can be invoked.

In this case, although the complaint submitted may not be on account of a personal grudge, it is evident that the same arises from a factional feud within a community. Therefore, the Court took the view that this is a fit case in which the decision in Bhajan Lal's case is applicable.

Therefore, it was held that the proceedings instituted based on the complaint and the registration of crime were clear of abuse of process of the court and all such proceedings against the petitioners were quashed.

Public Prosecutor Sudheer Gopalakrishnan appeared for the State and Senior Counsel K.Ramakumar appeared for the de facto complainant in the matter.

Case Title: M.S Paulose & Anr v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 167

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