Supreme Court Upholds Summons Against Cardinal in Church Property Case: Cardinal Mar George Alencherry vs. State of Kerala (2023) INSC 250

Date of the Judgment: 17 March 2023
Citation: 2023 INSC 250
Judges: Dinesh Maheshwari, J., Bela M. Trivedi, J.
Can a criminal case proceed if a similar complaint was previously dismissed? The Supreme Court of India recently tackled this question, examining whether a second complaint is valid when the first one was dismissed. This case involves allegations of fraudulent property sales by a high-ranking church official. The Supreme Court was tasked with determining if the lower courts were correct in proceeding with the second complaint. The judgment was delivered by a two-judge bench comprising Justice Dinesh Maheshwari and Justice Bela M. Trivedi, with Justice Bela M. Trivedi authoring the opinion.

Case Background

The Syro Malabar Church, headed by the appellant Cardinal Mar George Alencherry, faced allegations of property alienation. Mr. Joshy Varghese, a church member, filed a complaint on 16th July 2018, in the Court of Judicial Magistrate, Ist Class, Kakkanad, alleging that the Cardinal, along with two others, committed offenses including criminal conspiracy, breach of trust, and fraud under Sections 120B, 406, 409, 418, 420, 423, 465, 467, 468 read with 34 of the Indian Penal Code (IPC).

The complaint stated that the Cardinal, who took charge of the Archdiocese on 29.05.2011 and became a Cardinal on 06.01.2012, allegedly conspired with the financial officer of the Archdiocese, Rev. Fr. Joshy Puthuva, between 2012 and 2017, to fraudulently sell church properties to Saju Varghese. The complainant also alleged that the bylaws of the Archdiocese were modified on 29.07.2009.

The Trial Court recorded the complainant’s sworn statement and examined one witness. On 2nd April 2019, the Trial Court dismissed the complaint under Section 203 of the Code of Criminal Procedure (Cr.P.C.) for offenses under Sections 409, 418, 420, 465, 467 and 468 of the IPC, but issued summons for offenses under Sections 120-B, 406, 423 read with 34 of IPC.

Timeline

Course of Proceedings

The appellant-Archbishop and Saju Varghese filed Criminal Revision Applications before the Sessions Court, Ernakulam, which were dismissed on 24.08.2019. Subsequently, the appellant filed Crl.M.C. No.8936 of 2019 and other five petitions before the High Court under Section 482 of Cr.P.C. Saju Varghese also filed Crl.M.C. No.9115/2019. The High Court dismissed all seven Crl.M.Cs on 12th August, 2021, and gave certain directions to the State Government. The High Court then posted the matters on 25.10.2021 for compliance and gave further directions.

Legal Framework

The case primarily revolves around the interpretation and application of the following sections of the Indian Penal Code (IPC) and the Code of Criminal Procedure (Cr.P.C.):

• Section 120B of the IPC: This section deals with the punishment for criminal conspiracy.
• Section 406 of the IPC: This section specifies the punishment for criminal breach of trust.
• Section 423 of the IPC: This section addresses dishonest or fraudulent execution of a deed of transfer containing a false statement of consideration.
• Section 34 of the IPC: This section defines acts done by several persons in furtherance of common intention.
• Section 200 of the Cr.P.C.: This section deals with the examination of a complainant by a Magistrate.
• Section 202 of the Cr.P.C.: This section outlines the procedure for the Magistrate to postpone the issue of process and inquire into the case.
• Section 203 of the Cr.P.C.: This section deals with the dismissal of a complaint by a Magistrate.
• Section 482 of the Cr.P.C.: This section preserves the inherent powers of the High Court.

The Supreme Court also considered the concept of “taking cognizance” of an offense, which is not explicitly defined in the Cr.P.C. but has been interpreted by the courts to mean “become aware of” or “to take notice of judicially”.

Arguments

The appellant-Archbishop argued that the second complaint filed by the respondent no. 2 was not maintainable because a similar complaint was previously dismissed by the Court of Maradu. It was contended that the second complaint was based on the same set of facts and against the same accused.

The appellant also submitted that similar complaints filed by other complainants against the appellant and others making similar allegations were not found to be of any substance.

The respondent no. 2 argued that the first complaint was dismissed for non-prosecution without taking cognizance of the offense, while the subsequent complaints were filed with specific details about the sale of properties within the jurisdiction of the Trial Court at Kakkanad, and the Trial Court had taken cognizance of the offense before the dismissal of the first complaint.

The respondent no. 2 also contended that the first complaint was filed before the Court of Maradu as the cause of action had arisen within the jurisdiction of Maradu Police Station, whereas the other complaints were filed before the Court of JMFC, Kakkanad within whose jurisdiction the properties were situated.

The Eparchy of Bathery and the Catholic Diocese of Thamarassery argued that the High Court’s observations in paragraphs 17 to 39 of the impugned judgment were made without hearing them, and that these observations had wide ramifications throughout the state, potentially nullifying concluded transactions.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issue that the Court addressed was:

1. Whether the second complaint filed by the respondent no. 2 was maintainable after the dismissal of the first complaint on the same set of facts.

Treatment of the Issue by the Court

Authorities

The Supreme Court relied on the following authorities:

Judgment

How each authority was viewed by the Court?

• S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. and Others [CITATION]: The Court used this case to define “taking cognizance” as “become aware of” or “to take notice of judicially,” emphasizing that cognizance is taken of an offense, not an offender.
• Ramdev Food Products Private Vs. State of Gujarat [CITATION]: The Court used this case to distinguish between the powers of the Magistrate under Section 156(3) and Section 202(1) of the Cr.P.C., noting that Section 156(3) is a pre-cognizance stage, while Section 202 applies post-cognizance.
• Pramatha Nath Talukdar Vs. Saroj Ranjan Sarkar [CITATION]: The Court relied heavily on this case, which held that a second complaint can be entertained after the dismissal of a previous complaint under Section 203 of the Cr.P.C. in exceptional circumstances.
• Jatinder Singh and others Vs. Ranjit Kaur [CITATION], Ranvir Singh Vs. State of Haryana and Another [CITATION], Poonam Chand Jain and Another Vs. Fazru [CITATION], Samta Naidu and Another Vs. State of Madhya Pradesh and Another [CITATION]: These cases were used to reiterate the principles laid down in Pramatha Nath Talukdar, reinforcing the position that a second complaint is maintainable under certain conditions.

What weighed in the mind of the Court?

The Supreme Court was primarily influenced by the fact that the first complaint was dismissed for non-prosecution without any judicial consideration of the merits of the case. The Trial Court at Kakkanad had already taken cognizance of the offenses by issuing summons before the dismissal of the first complaint. The Court emphasized that cognizance is taken of an offense, not an offender, and that a second complaint is maintainable under exceptional circumstances, as established in Pramatha Nath Talukdar vs. Saroj Ranjan Sarkar [CITATION]. The court also noted that the second complaint was filed with specific details about the sale of properties within the jurisdiction of the Trial Court at Kakkanad.

Logical Reasoning

Key Takeaways

• A second criminal complaint is maintainable if the first complaint was dismissed for non-prosecution without the court taking cognizance of the offense.
• The dismissal of a complaint under Section 203 of the Cr.P.C. is not a bar to the entertainment of a second complaint on the same facts under exceptional circumstances.
• Courts should apply their mind to the materials and form their judgment whether or not there is sufficient ground for proceeding.
• The principle of “taking cognizance” means that the court is judicially aware of an offense, not an offender.

Directions

The Supreme Court directed the Trial Court to decide the complaints in question without being influenced by the observations made by the High Court in paragraphs 17 to 39 of the impugned order.

Specific Amendments Analysis

There was no discussion of any specific amendments in the judgment.

Development of Law

The ratio decidendi of this case is that a second criminal complaint is maintainable if the first complaint was dismissed for non-prosecution without the court taking cognizance of the offense, and the second complaint is filed with specific details. The Court reiterated the principles laid down in Pramatha Nath Talukdar vs. Saroj Ranjan Sarkar [CITATION], clarifying that a second complaint is permissible under exceptional circumstances, such as when the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint. There was no change in the previous position of law, but the court clarified the application of existing principles.

Conclusion

The Supreme Court dismissed the appeals filed by Cardinal Mar George Alencherry and others, upholding the maintainability of the second criminal complaint. The Court held that the Trial Court was correct in issuing summons to the accused, as the first complaint was dismissed for non-prosecution without the court taking cognizance. The Court also quashed the subsequent orders passed by the High Court, which had exceeded its jurisdiction.