Kerala High Court
M.S. Paulose vs State Of Kerala on 5 April, 2022
Crl. M.C.No.2588/2018 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TUESDAY, THE 5TH DAY OF APRIL 2022 / 15TH CHAITHRA, 1944
CRL.MC NO. 2588 OF 2018
PETITIONERS/ACCUSED NOS.1 & 2:
1 M.S.PAULOSE,
AGED 65 YEARS,
S/O.SAMUEL, AGED 65 YEARS, RESIDING AT
MADATHIKUDIYIL HOUSE, KALAMPOOR KARA,
ENANALLOOR VILLAGE,
MUVATTUPUZHA, ERNAKULAM - 686 673.
2 K.C.IYPE,
AGED 82 YEARS,
S/O.CHAKCO, AGED 82 YEARS, RESIDING AT
KAKKANATTUPARAMBIL HOUSE,
PARAMBENCHERRY KARA, ENANALLOOR VILLAGE,
MUVATTUPUZHA, ERNAKULAM - 686 673.
BY ADVS.
ROSHEN.D.ALEXANDER
TINA ALEX THOMAS
HARIMOHAN
RESPONDENTS/STATE & DE FACTO COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY THE SUB INSPECTOR OF POLICE,
MOOVATTUPUZHA POLICE STATION, ERNAKULAM, THROUGH
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
KOCHI - 682 031.
Crl. M.C.No.2588/2018 2
2 MEEKHAYEAL RAMBAN,
S/O.GEORGE, PULIMOOTTIL HOUSE, KUTHUKUZHI,
KOTHAMANGALAM VILLAGE,
ERNAKULAM - 686 691.
BY ADVS.
SRI.P.V.ELIAS
K.RAMAKUMAR (SR.)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
24.01.2022, THE COURT ON 05.04.2022 PASSED THE FOLLOWING:
Crl. M.C.No.2588/2018 3
"CR"
ORDER
Petitioners are the accused Nos.1 and 2 in Crime No.1194
of 2018 of Muvattupuzha Police Station. Initially, a private
complaint was submitted by the 2nd respondent herein, which is
produced as Annexure-A4 and the same was referred by the
Judicial First Class Magistrate Court, Muvattupuzha, to the
police for investigation under Section 156(3) of Cr.P.C.
Annexure A1 is the FIR registered consequently and the
offences alleged against the petitioners are under Sections 468,
471 and 120B of Indian Penal Code and Section 12 of Press and
Registration of Books Act, 1867.
2. The averments in Annexure-A4 complaint is as
follows:
The 2nd respondent/complainant is the Addl.12 th defendant
in O.S.No.15 of 2016, pending before the Sub Court,
Muvattupuzha. The aforesaid suit was instituted by the
petitioners herein and some other persons, praying for a decree
of declaration that St.Johns Besphage Orthodox Syrian Church,
Pulinthanam is a constituent parish Church of Malankara
Orthodox Syrian Church and to declare that the plaint schedule
church is to be administered in accordance with the provisions
of 1934 Constitution of the Malankara Orthodox Syrian Church
and other consequential reliefs. The plaint above is Annexure-
A2, and in support of the contentions therein, petitioners have
produced a document claiming to be the Constitution of
Malankara Orthodox Syrian Church. According to the 2 nd
respondent/complainant, the aforesaid document is a forged
one as it contains certain marked differences in clauses Nos.1
and 3 thereof when compared with the original of the aforesaid
document. It is also alleged that the aforesaid document did
not contain any registration number and stamp paper. Another
allegation is that the said document does not contain the
necessary declaration as required under Section 3 of the Press
and Registration of Books Act, 1867, to print the same.
Therefore, the same attracts offence under Section 12 of the
said Act. Based on the said complaint and the same being
forwarded for investigation, Annexure-A1 FIR was registered by
Muvattupuzha Police as Crime No.1194 of 2018.
3. The petitioners who are the accused Nos.1 and 2
therein, filed this Crl.M.C., praying for quashing the aforesaid
proceedings.
4. Heard Sri.Roshen D. Alexander, learned counsel for
the petitioners, Sri.Sudheer Gopalakrishnan, learned Public
Prosecutor for the State and Sri.K.Ramakumar learned Senior
Counsel appearing for the 2nd respondent.
5. The contention of the learned counsel for the
petitioners is that, even according to the averments in the
complaint, the document which was produced in O.S.No.15 of
2016 pending before the Sub Court, Muvattupuzha is the
certified copy of the Constitution of Malankara Orthodox Syrian
Church, which was produced in O.S.No.1 of 2008 on the file of
the District Court, Ernakulam. The aforesaid document was not
printed, published or executed by the petitioners herein. With
regard to the alterations allegedly made in the aforesaid
document, it is contended that the 1934 Constitution as
contained in the aforesaid document, which is produced in this
Crl. M.C., as Annexure-A10, was considered by the Honourable
Supreme Court in K.S.Varghese and Others v. Saint Peter's
and Saint Paul's Syrian Orthodox Church and Others
[(2017) 15 SCC 333]. After appreciation of relevant
documents, it was found that the said clauses are binding upon
the Church and the administration thereof has to be made in
tune with the same. It is also pointed out by the learned
counsel for the petitioners that, the contention that the
Constitution produced before the Honourable Supreme Court
contained certain illegal modifications (which is as highlighted
in this complaint) was considered by the Honourable Supreme
Court in another petition submitted by one of the factions of the
church to which the 2nd respondent is a party and the said
contention was rejected as per Annexure-A6 order. Similarly,
the question of lack of registration of the 1934 Constitution and
its impact was also considered by the Honourable Supreme
Court in K.S.Varghese's case (supra) and found that the non-
registration of the same cannot be taken as a contention by any
of the parties. With regard to the offences punishable under
the provisions of the Press and Registration of Books Act, it was
contended that the aforesaid document was not admittedly
printed or published by the petitioners herein and what they
have done is that they have obtained a certified copy from a
court of law and produced such certified copy in the suit filed
by them. The learned counsel places reliance upon the
decisions in Kapil Agarwal and Others v. Sanjay Sharma
and Others [(2021) 5 SCC 524] , Mohammed Ibrahim and
Others v. State of Bihar and Another [(2009) 8 SCC 751],
Sheila Sebastian v. R.Jawaharaj [(2018) 7 Scc 581],
K.S.Varghese and Others v. Saint Peter's and Saint Paul's
Syrian Orthodox Church and Others [(2017) 15 SCC 333]
and Most Rev.P.M.A.Metropolitan & Ors. v. Moran Mar
Marthoma & Another [(1995) Supp. 4 SCC 286].
6. In reply to the same, the learned Senior Counsel
appearing for the de facto complainant contends that the
question whether the alterations in the copy of the 1934
Constitution were effected by the petitioner or not is a question
of fact, and the same cannot be considered at this stage. The
learned Senior Counsel points out that the aforesaid matter is
to be investigated. It is premature to interfere in such
investigation at this stage as it would prejudice the complainant
herein. It was also pointed out that, considering the limited
scope of jurisdiction of this Court in quashing the proceedings
at the stage of FIR by invoking powers under Section
482 Cr. P.C, the dispute sought to be resolved by the petitioner
herein in this Crl.M.C is beyond the scope of present
proceedings. The learned counsel for the petitioners places
reliance upon the decisions in Parbatbhai Ahir @ Parbatbhai
v. The State of Gujarat [(2017) 9 SCC 641] and Dineshbhai
Chandubhai Patel v. State of Gujarat and Others [(2018) 3
SCC 104].
7. The first contention that is raised by the petitioners
is that the offences punishable under Sections 468 and 471 are
not attracted. It is true that, as pointed out by the learned
counsel for the petitioners in Annexure-A4 complaint, there is a
specific averment made by the 2nd respondent to the effect that
the document which is the subject matter of the case is a
certified copy of 1934 Constitution, obtained from District
Court, Ernakulam, where it was produced as a document in
O.S.No.1 of 2008. The 2nd respondent does not have a case that
the aforesaid document was produced in O.S.No.1 of 2008 by
the petitioners herein. It is the contention of the petitioners
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. For understanding the
aforesaid provision, Section 468 IPC is extracted hereunder:
"468.Forgery for purpose of cheating. --Whoever
commits forgery, intending that the document or
electronic record forged shall be used for the
purpose of cheating, shall be punished with
imprisonment of either description for a term which
may extend to seven years, and shall also be liable
to fine."
8. As per the aforesaid provision, an offence is
attracted if forgery is committed for the purpose of cheating.
The expression forgery is defined under Section 463 IPC, which
is extracted below:
"463. Forgery.--Whoever makes any false
documents or false electronic record or part of a
document or electronic record, with intent to cause
damage or injury, to the public or to any person, or
to support any claim or title, or to cause any person
to part with property, or to enter into any express or
implied contract, or with intent to commit fraud or
that fraud may be committed, commits forgery."
9. As per the said provision, the crucial ingredient for
committing forgery is making a false document. 'Making false
document' is defined under Section 464 IPC, which reads as
follows:
"464 Making a false document. --A person is said to
make a false document or false electronic record--
First --Who dishonestly or fraudulently--
(a) makes, signs, seals or executes a document or part
of a document;
(b) makes or transmits any electronic record or part of
any electronic record;
(c) affixes any electronic signature on any electronic
record;
(d) makes any mark denoting the execution of a
document or the authenticity of the electronic signature;
with the intention of causing it to be believed that such
document or part of document, electronic record or
electronic signature was made, signed, sealed, executed,
transmitted or affixed by or by the authority of a person
by whom or by whose authority he knows that it was not
made, signed, sealed, executed or affixed; or
Secondly --Who, without lawful authority, dishonestly or
fraudulently, by cancellation or otherwise, alters a
document or an electronic record in any material part
thereof, after it has been made, executed or affixed with
[electronic signature] either by himself or by any other
person, whether such person be living or dead at the
time of such alteration; or
Thirdly --Who dishonestly or fraudulently causes any
person to sign, seal, execute or alter a document or an
electronic record or to affix his electronic signature] on
any electronic record knowing that such person by
reason of unsoundness of mind or intoxication cannot, or
that by reason of deception practiced upon him, he does
not know the contents of the document or electronic
record or the nature of the alteration."
10. From the joint reading of the aforesaid provisions, it
is evident that the offences under the said provisions are
attracted only if the accused himself makes a false document in
the manner as described under Section 464 IPC. In Sheila
Sebastian's case (supra), the Honourable Supreme Court
specifically considered the aforesaid question. In paragraphs
No.19 and 20, it was observed as follows:
"19. A close scrutiny of the aforesaid provisions makes it
clear that, Section 463 defines the offence of forgery,
while Section 464 substantiates the same by providing
an answer as to when a false document could be said to
have been made for the purpose of committing an
offence of forgery under Section 463 IPC. Therefore, we
can safely deduce that Section 464 defines one of the
ingredients of forgery i.e., making of a false document.
Further, Section 465 provides punishment for the
commission of the offence of forgery. In order to sustain
a conviction under Section 465, first it has to be proved
that forgery was committed under Section 463, implying
that ingredients under Section 464 should also be
satisfied. Therefore unless and until ingredients under
Section 463 are satisfied a person cannot be convicted
under Section 465 by solely relying on the ingredients of
Section 464, as the offence of forgery would remain
incomplete.
20. The key to unfold the present dispute lies in
understanding Explanation 2 as given in Section 464 of
IPC. As Collin J., puts it precisely in Dickins v. Gill,
(1896) 2 QB 310, a case dealing with the possession and
making of fictitious stamp wherein he stated that "to
make", in itself involves conscious act on the part of the
maker. Therefore, an offence of forgery cannot lie
against a person who has not created it or signed it."
11. A further discussion of the same was made in
paragraph No.25 of Sheila Sebastian's case, which reads as
follows:
"25. Keeping in view the strict interpretation of penal
statute i.e., referring to rule of interpretation wherein
natural inferences are preferred, we observe that a
charge of forgery cannot be imposed on a person who is
not the maker of the same. As held in plethora of cases,
making of a document is different than causing it to be
made. As Explanation 2 to Section 464 further clarifies
that, for constituting an offence under Section 464 it is
imperative that a false document is made and the
accused person is the maker of the same, otherwise the
accused person is not liable for the offence of forgery. "
12. In the light of the principles laid down by the
Honourable Supreme Court, it is evident that to attract the
offence under Sections 463 and 464 IPC, the accused must be
the maker of the said document. Since the offence under
Section 468 of IPC is another form of an offence under Section
464, the principles laid down by the Honourable Supreme Court
apply to the said provision with equal force.
13. In this case, admittedly, the document produced and
allegedly forged is a certified copy of a document. The 2 nd
respondent does not have a case that the petitioners have made
alterations in the certified copy, but on the other hand, the
specific allegation is that the contents of the certified copy of
the Constitution include certain clauses which were allegedly
altered. Thus, the alteration allegedly made, even according to
the complainant, were in the copy of the Constitution of the
Church, which was produced before the District Court,
Ernakulam in O.S.No.1 of 2008, from where the petitioner
obtained a certified copy. Thus, it is evident that the petitioners
are not the makers of the aforesaid document, and therefore,
the offence under Section 468 IPC is not attracted as against
the petitioners.
14. As it is already found that the offence under Section
468 IPC is not attracted, the petitioners herein can be
implicated as accused persons only if it is shown that they have
committed a crime punishable under Section 471 IPC, which
provides for an offence for using a forged document as genuine
document intentionally. The said provision reads as follows:
"Whoever fraudulently or dishonestly uses as genuine
any document or electronic record which he knows or
has reason to believe to be a forged document or
electronic record shall be punished in the same manner
as if he had forged such [document or electronic
record]."
15. Thus, the question arises here is as to whether the
production of the aforesaid document (Annexure A10) was with
fraudulent or dishonest intention, with knowledge of its falsity.
Before considering the aforesaid question, another question
that arises is as to whether the aforesaid document contains
any alterations which would attract the offence of forgery. The
specific averments in Annexure-A4 complaint, relating to the
nature of alterations allegedly made and amounts to forgery
according to the 2nd respondent, are as follows:
"(i) In Clause 1 of the Constitution, it is stated that
Malankara Church is a division of the Orthodox Syrian
Church and the primate of the Orthodox Syrian Church
is the Partriarch of Antioch. It was alleged in Ann:A4
complaint that the term Antioch was added to take over
the temporal administration of the Church.
(ii) In Clause 3 of the Constitution, it is stated that the
ancient and real name of the Malankara Church is the
Malankara Orthodox Syrian Church although it is also
wrongfully called 'The Jacobite Church', for the same
reasons for which the Orthodox Syrian Church has been
also called so. It is alleged that the addition of the term
wrongly is the act of forgery;
(iii) The name of the Church was wrongly stated as
St.John's Besphage Syrian Orthodox Church instead of
St.John's Besphage Jacobite Syrian Church;
16. While considering the question as to whether the
same were illegal alterations and amounted to forgery, the
crucial aspect to be noticed is that the validity of the 1934
Constitution, in the form as contained in Annexure-A10, was
upheld by the Honourable Supreme Court in K.S.Varghese
(supra). In paragraph No.214 of the aforesaid judgment, the
relevant clauses of the 1934 Constitution are mentioned in a
tabular form. Clause (1) of the 1934 Constitution referred to
therein is precisely the same as mentioned in Annexure-A10.
After considering the said Constitution, it was categorically
held in K.S.Varghese's case that Malankara Church is
Episcopal in character to the extent it is so declared in the 1934
Constitution. It was also declared that the 1934 Constitution
fully governs the affairs of the Parish churches, and the same
shall prevail. This observation is made in paragraph No.228.1 of
the said judgment. The same view is seen taken by the
Honourable Supreme Court in Most Rev. P.M.A.Metropolitan
(supra).
17. After the judgment in K.S.Varghese (supra), the
faction to which the 2nd respondent belongs, submitted an
application (Annexure A5) for clarification before the
Honourable Supreme Court. One of the main reasons
highlighted in the said petition is that the 1934 Constitution,
which was relied upon by the Honourable Supreme Court,
contained certain alterations which were illegally made, and
one of the specific prayers sought for in the said petition is as
follows:
"(e) Clarify that the illegal insertions/manipulations
made in the 1934 Constitution which are not seen in the
original manuscript and the first print of the 1934
pamphlet Constitution, are null and void."
18. In the said petition on pages Nos.26, 27 and 28, the
alleged alterations, which are highlighted as a forgery in this
case, are extracted explicitly in a tabular form.
Clause Manuscript Printed in Printed in Printed in
the year the year the year
1934 1951 2018
1 The Malankara The Malankara The Malankara The Malankara
Church is a part of the Church is a Church is a Church is a
orthodox Syrian part of the part of the part of the
church and the orthodox orthodox orthodox
primate of the Syrian church Syrian church Syrian church
orthodox Syrian and the and the and the
church is patriarch primate of the primate of the primate of the
orthodox orthodox orthodox
Syrian church Syrian church Syrian Church
is patriarch is patriarch of is patriarch of
Antioch Antioch
Forged word-of Forged word-of
Antioch Antioch
3. Due to certain Due to certain Due to certain Due to certain
reasons, Orthodox reasons, reasons, reasons,
Syrian Church is Orthodox Orthodox Orthodox
called another name Syrian Church Syrian Church Syrian Church
Jacobite Church. is called is called is called
Likewise due to a lot another name wrongly in wrongly in
of reasons, the Jacobite another name another name
Malankara Church is Church. Jacobite Jacobite
also called jacobite Likewise due Church. Church.
Church and it's to a lot of Likewise, due Likewise, due
ancient name is reasons, the to a lot of to a lot of
Malankara Orthodox Malankara reasons, the reasons, the
Syrian Church. Church is also Malankara Malankara
called Jacobite Church is also Church is also
Church and it's called Jacobite called Jacobite
ancient name Church and it's Church and it's
is Malankara ancient name ancient name
Orthodox is Malankara is Malankara
Syrian Church Orthodox Orthodox
Syrian Church Syrian Church
Forged word Forged word
wrongly wrongly
19. From the above, it is evident that the alterations
which were alleged to have been illegally made by the
petitioners herein were specifically highlighted in the said
petition and the prayer to declare such alterations as null and
void was sought for.
20. The Honourable Supreme Court considered the
aforesaid petition, and it was dismissed as per Annexure-A6
with the following observations:
"It is clearly an effort for violating the order passed by
this Court and no such prayer(s) can be entertained, in
view of the judgment dated 03.07.2017 passed by this
Court in K.S.Varghese & Ors. v. St.Peter's Paul's Syrian
Orth. & Ors.
Consequently, these applications have been
misconceived and devoid of merits and are hereby
dismissed with costs of Rs.25,000/- (Rupees Twenty Five
Thousand), to be deposited with the Supreme Court
Employees Mutual Welfare fund, within a period of six
weeks from today."
21. Thus, it is evident that the averments of the 2 nd
respondent/de facto complainant regarding the forgery
committed in respect of Clause Nos.1 and 3 in the 1934
Constitution was specifically considered by the Honourable
Supreme Court and rejected the contention of illegality in the
aforesaid alleged alterations. The consequence of the aforesaid
direction is that the Malankara Orthodox Syrian Church is to be
governed by the 1934 Constitution, with all the Clauses as
mentioned in Annexure-A10, which would take in, the terms
alleged by the de facto complainant as illegal alterations. In
other words, the validity of Annexure-A10 and all the contents
of the same were accepted and approved by the Honourable
Supreme Court with a specific finding that the same shall
govern the Church. Even though illegal alterations were
pointed out, the same was explicitly rejected by re-affirming the
conclusions. Therefore, 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.
22. There is yet another aspect. When the Honourable
Supreme Court approved the terms of the 1934 Constitution,
as contained in Annexure-A10, 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. Hence, the offences under Sections 468 and 471 IPC
are not attracted in respect of the same.
23. Another instance of forgery referred to by the 2 nd
respondent/de facto complainant is concerning the description
of the name of the 1 st defendant in Annexure-A2 plaint.
According to the 2nd respondent, the name of the Church was
initially stated as "St.Johns Besphage Orthodox Syrian Church"
instead of "St.Johns Besphage Jacobite Syrian Church". The
case of the 2nd respondent/de facto complainant is that such
mentioning of the name attracts the offence of forgery.
However, I am of the view that mentioning the name of the
defendant, in a plaint submitted by the plaintiff differently,
would not attract the offence of forgery. As mentioned above,
forgery is defined under Section 463 IPC, and one of the
essential ingredients for attracting the same is making a false
document. The making of a false document as an offence is
described in Section 464 IPC. In the aforesaid provision, three
instances are specifically mentioned, which constitute the
offence of making a false document. The first instance is in
respect of a person who dishonestly or fraudulently makes,
signs, seals or executes a document or part of a document to
cause it to be believed that such document or part of the
document was made, signed, sealed, executed, transmitted or
affixed by or by the authority of a different person. Thus, it is
evident that what is contemplated therein is an execution of a
document with dishonest and fraudulent intention through
impersonation. To be precise, it refers to creating a document
with the impression that, the same was created by another
person or with the authority of another person. As far as the
plaint submitted by the plaintiff is concerned, the averments
made in the plaint, including the descriptions of the names in
the cause title of the same, are made by him by taking up the
responsibility for the same on himself. While making such
averments, the plaintiff is not claiming that the descriptions
and averments made therein were made by some other person
or under the authority of some other person. In such
circumstances, the said act of the plaintiff in making an
averment, would not attract the offence of forgery, even if it is
false.
24. In Muhammed Ibrahim's case (supra), the
question whether recital contained in any sale deed executed
by a person would attract the offence of forgery, was
considered. After elaborate discussions, it was held that the
contents of the sale deed would not amount to making a false
document as an allegation of impersonation is absolutely
necessary for attracting the aforesaid offence. The relevant
observation in the said judgment is in paragraph No.16, which
reads as follows:
"There is a fundamental difference between a person
executing a sale deed claiming that the property
conveyed is his property, and a person executing a
sale deed by impersonating the owner or falsely
claiming to be authorized or empowered by the
owner, to execute the deed on owner's behalf. When
a person executes a document conveying a property
describing it as his, there are two possibilities. The
first is that he bona fide believes that the property
actually belongs to him. The second is that he may be
dishonestly or fraudulently claiming it to be his even
though he knows that it is not his property. But to fall
under first category of `false documents', it is not
sufficient that a document has been made or
executed dishonestly or fraudulently. There is a
further requirement that it should have been made
with the intention of causing it to be believed that
such document was made or executed by, or by the
authority of a person, by whom or by whose authority
he knows that it was not made or executed."
25. In Hydru Haji v. State of Kerala [2011(1)KLT
63], this Court observed that, to be a false document for the
purpose of Section 464, the document should be made or
executed by a person claiming to be somebody else or to be
authorized by somebody else. In this case, the only allegation
is that name of the 1st respondent was described differently.
However, it is evident that the petitioners/plaintiffs therein did
not make the same by claiming to be made by another person.
Since the description in the cause title of a plaint, is made by
the petitioners/plaintiffs therein by taking the full responsibility
for the same upon themselves, the question of impersonation
does not arise. In such circumstances, the aforesaid allegation
would not constitute an offence of forgery.
26. Another allegation in Annexure-A4 complaint is
regarding the lack of registration of the 1934 Constitution.
First of all, lack of registration by itself is not a matter which
would attract the offence of forgery. In this regard, it is also to
be noted that the Honourable Supreme Court considered the
question of lack of registration and its impact, in
K.S.Varghese case (supra) and in paragraph No.218 of the
same, it was observed as follows:
"218. Reliance was placed upon Section 17(1)(b) of the
Registration Act regarding effect of non-registration of
the 1934 Constitution. In our opinion, the 1934
Constitution does not create, declare, assign, limit or
extinguish, whether in present or future, any right, title
or interest, whether vested or contingent, in the
Malankara church properties. It provides a system of
administration as such and not required to be
registered, and moreover the question of effect of non-
registration of the 1934 Constitution cannot be raised in
view of the findings recorded in the 1959 and the 1995
judgments. The question could, and ought to have been
raised but was not raised at the time of authoritative
pronouncement made by this Court. Otherwise also,
facts have not been pleaded nor any provision of the
constitution pointed out that may attract the provisions
of Section 17(1)(b) of the Registration Act. Thus, it is
not open to question the validity of the 1934
Constitution on the ground that it cannot be looked into
for want of its registration."
27. This Court also considered the said question in
Annexure-A11 order passed in Cr.P.No.122 of 2018 in
paragraph No.4 thereof, it is observed as follows:
"4. It is seen from the impugned order that the
petitioner placed reliance on Order VII Rule 14(2) CPC
and Section 17(b) (e) and Section 49 of the Indian
Registration Act to raise a contention that the 1934
Malankara Church Constitution should not be accepted
as it is defective for non-registration under the
provisions of the Registration Act. At the outset, I have
to reject the contention for the reason that the Supreme
Court repeatedly upheld the said Constitution, and this
contention will not lie in the mouth of the petitioner."
28. Thus, it is evident that the question of lack of
registration of the document in question is not a matter that
can be considered at all.
29. Another offence is under Section 120B of IPC.
According to the 2nd respondent, the accused persons have
committed criminal conspiracy, altered the 1934 Constitution
illegally and filed O.S.No.15 of 2016 before the Sub Court,
Muvattupuzha. I have already found that the offence of forgery
as contemplated under Sections 468 and 471 IPC are not
attracted against the petitioners herein. Hence, the allegation
of criminal conspiracy also does not arise. It is also to be noted
in this regard that one of the reasons for alleging conspiracy is
that the accused have filed a suit. Initiating litigation cannot be
treated as an act of conspiracy, as section 120B is always in
respect of the commission of an offence or an illegal act. I have
already found that no other offence is attracted. Similarly,
filing a suit cannot be treated as an illegal act or doing a legal
act by illegal means.
30. The remaining offence is under Section 12 of the
Press and Registration of Books Act. The aforesaid provision
reads as follows:
"12. Penalty for printing contrary to rule in section 3.--
Whoever shall print or publish any book or paper
otherwise than in conformity with the rule contained in
section 3 of this Act, shall, on conviction before a
Magistrate, be punished by fine not exceeding two
thousand rupees, or by simple imprisonment for a term
not exceeding six months, or by both."
31. The offence in the said provision is attracted if the
book or paper is printed or published otherwise than in
conformity with the rule contained in Section 3 of the Act.
Section 3 reads as follows:
"3. Particulars to be printed on books and papers.--
Every book or paper printed within India shall have
printed legibly on it the name of the printer and the
place of printing, and (if the book or paper be
published) the name of the publisher, and the place of
publication."
32. It is evident from the aforesaid provision that the
offence under the said provisions is attracted only in respect of
printing and publishing without complying with the stipulations
contained in Section 3. In this case, the only allegation against
the petitioners is that they had obtained a certified copy of the
1934 Constitution, which was already produced before a court
of law and produced the same in support of their contention in
a civil litigation filed at their instance. I am of the view that,
since the printing or publication was not done by the
petitioners herein, the offence under the aforesaid provisions
are also not attracted.
33. There is yet another aspect regarding the offence
punishable under Sections 468 and 471 IPC. It is the specific
allegation of the 2nd respondent that the petitioners herein had
produced a forged document as genuine in a court of law.
Section 195 (1) of Cr.P.C. deals with a specific procedure in
respect of the same, which reads as follows:
"(1) No Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to
188 (both inclusive) of the Indian Penal Code (45 of
1860 ), or
(ii) of any abetment of, or attempt to commit, such
offence, or
(iii) of any criminal conspiracy to commit such offence,
except on the complaint in writing of the public servant
concerned or of some other public servant to whom he is
administratively subordinate;
(b) (i) of any offence punishable under any of the
following sections of the Indian Penal Code (45 of
1860 ), namely, sections 193 to 196 (both inclusive),
199, 200, 205 to 211 (both inclusive) and 228, when
such offence is alleged to have been committed in, or in
relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or
punishable under section 471, section 475 or section
476, of the said Code, when such offence is alleged to
have been committed in respect of a document
produced or given in evidence in a proceeding in any
Court, or
(iii) of any criminal conspiracy to commit, or attempt to
commit, or the abatement of, any offence specified in
sub- clause (i) or sub- clause (ii), except on the
complaint in writing of that Court, or of some other
Court to which that Court is subordinate."
34. As per Section 195 (1) (b) (ii), if the offence under
Section 463 or punishable under Section 471 are alleged to
have been committed in respect of documents produced or
given in evidence in a proceeding in any 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. In this case, the
complaint is submitted by the 2nd respondent and not by the
persons mentioned in the above provision. Since the offence is
alleged to have been committed in respect of a document
produced and given in evidence in a proceeding in a court, the
complaint at the instance of the 2nd respondent herein is not
maintainable as the only way to initiate prosecution was by
complying the procedure contemplated under Section 195 (1)
Cr.P.C. On this ground also, the proceedings pursuant to
Annexure-A4 is unsustainable.
35. The learned Senior counsel appearing for the 2 nd
respondent vehemently contended that the question as to
whether the petitioners have committed any offence of forgery
or not, is a matter to be investigated. I am of the view that the
said contention is not at all sustainable, in the light of the
materials in this case. This is because, even if the entire
averments contained in Annexure-A4 complaint are accepted, it
will not attract any of the offences alleged. I have already dealt
with the reasons for arriving at the said conclusion in detail. It
is true that, in Parbathbhai Ahir's case (supra), the
Honourable Supreme Court observed that, while considering
the application for quashing the FIR under Section 482, the
High Court should not act like an investigating agency and shall
not go into the minute details of the allegations. However, I am
of the view that the principles laid down in the said judgment
are not applicable in the facts of this case. While considering
the contentions put forward by the petitioners, this Court is not
conducting an investigation by going into the details of the
case. On the other hand, this Court only considered whether
the allegations contained in Annexure-A4 complaint make out a
case for attracting the offences alleged.
36. In Parbathbhai Ahir's case (supra), the
Honourable Supreme Court laid down the principles for
invoking powers of this Court under Section 482 Cr. P.C, and it
was observed that the inherent powers of the High Court are
wide, and it has to be exercised; (i) to prevent the abuse of the
process of court and (ii) to secure the ends of justice . In Kapil
Agarwal's case (supra), the very same principles were
reiterated by the Honourable Supreme Court. In Mohammed
Ibrahim's case (supra), it was observed in paragraph No.8 as
follows:
"8. This Court has time and again drawn attention to
the growing tendency of complainants attempting to
give the cloak of a criminal offence to matters which are
essentially and purely civil in nature, obviously either to
apply pressure on the accused, or out of enmity towards
the accused, or to subject the accused to harassment.
Criminal courts should ensure that proceedings before
it are not used for settling scores or to pressurise
parties to settle civil disputes. But at the same, it should
be noted that several disputes of a civil nature may also
contain the ingredients of criminal offences and, if so,
will have to be tried as criminal offences, even if they
also amount to civil disputes. [See: G.Sagar Suri v. State
of U.P [2000 (2) SCC 636] and Indian Oil Corporation v.
NEPC India Ltd. [2006 (6) SCC 736]. Let us examine the
matter keeping the said principles in mind."
37. In this case, it is evident that the fundamental
dispute relates to the management and administration of a
Church. The Honourable Supreme Court has finally decided
the questions/disputes relating to the same in K.S.Varghese's
case. Even though repeated petitions were submitted in the
aforesaid case, for clarifications, the Honourable Supreme
Court ultimately observed in Annexure-A9 as follows:
"Let all the concerned courts and authorities act in
terms of the judgment. Let there be no multiplicity of
the litigation on this aspect any more in the various
courts. The decision rendered in respective suit is
binding on all."
38. It is also discernible from the records that, several
complaints containing very same allegations as contained in
Annexure A4 are being submitted before various police stations
by the persons belonging to the factions of the petitioners
herein. It is also evident from the records that some of the
criminal cases which were registered accordingly were dropped
in the light of the observations made by the Honourable
Supreme Court, by the respective Investigating Officers. 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
Honourable 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,
even though 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, I am of the view
that this is a fit case in which the decision of the Honourable
Supreme Court in Bhajan Lal's case is applicable.
Accordingly, I find that the proceedings instituted based
on Annexure-A4 complaint and the registration of Annexure-A1
FIR in Crime No.1194 of 2018 by Moovattupuzha Police Station
are clear of abuse of process of the court. In the result, this
Crl. M.C. is allowed. Annexure-A1 FIR and all further
proceedings pursuant thereof, as against the
petitioners/accused 1 and 2, are hereby quashed.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
DG/22.3.22
APPENDIX OF CRL.MC 2588/2018
PETITIONER ANNEXURES
ANNEXURE A1 CERTIFIED COPY OF THE FIRST INFORMATION
REPORT IN CRIME NO.1194/2018 OF
MUVATTUPUZHA POLICE STATION.
ANNEXURE A2 TRUE COPY OF THE PLAINT IN O.S NO.
15/2016 OF THE SUB COURT, MUVATTUPUZHA.
ANNEXURE A3 TRUE COPY OF THE RELEVANT PAGES OF 1934
CONSTITUTION OF THE MALANKARA ORTHODOX
SYRIAN CHURCH PRODUCED AS DOCUMENT NO.2
IN O.S NO.15/2016 OF SUB COURT,
MUVATTUPUZHA.
ANNEXURE A4 TRUE COPY OF THE COMPLAINT FILED BY THE
2ND RESPONDENT BEFORE JUDICIAL FIRST
CLASS MAGISTRATE COURT, MUVATTUPUZHA AS
CRIMINAL MISCELLANEOUS PETITION
NO.475/2018.
