Kerala High Court
Bishop Dr. Thomas Aquinas vs State Of Kerala on 30 September, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2024:KER:73127
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
CRL.MC NO. 6572 OF 2018
CRIME NO.670/2018 OF Walayar Police Station, Palakkad
PETITIONER/ACCUSED NO.1:
BISHOP DR. THOMAS AQUINAS
AGED 64 YEARS
S/O FRANCIS, BISHOP OF COIMBATORE, BISHOP'S
HOUSE, BIG BAZAR STREET, POST BOX NO.6,
COIMBATORE - 641 001, TAMIL NADU.
BY ADVS.
K.GOPALAKRISHNA KURUP (SR.)
SREEDEVI KYLASANATH
ACHUTH KYLAS
R.MAHESH MENON
SRI.DEAGO JOHN K
K.P.KYLASANATHA PILLAY (SR.)(K-196)
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.
2 SHANTHI ROSELINE S
W/O. SAGHAIRAJ NO.32, SWAMIYAR NEW STREET, NO.1
FORT TOWN HALL, COIMBATORE - 1, TAMILNADU.
(IMPLEADED AS ADDL.R2 AS PER ORDER DATED
16.11.2018 IN CRL.MA.NO.2/2018)
Crl.MC Nos.6572/2018 &7651/2018
2
2024:KER:73127
BY ADV SRI.VINODE V. LUKA
OTHER PRESENT:
SRI.SANGEETHARAJ.N.R, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 30.09.2024, ALONG WITH Crl.MC.7651/2018, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC Nos.6572/2018 &7651/2018
3
2024:KER:73127
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
CRL.MC NO. 7651 OF 2018
CRIME NO.670/2018 OF Walayar Police Station, Palakkad
PETITIONERS/ACCUSED NO.2,3,4 & 5:
1 FATHER MADALAIMUTHU
AGED 69 YEARS
ACCUSED NO.2, S/O AROKIAM, STANSILAS CHURCH,
CHANDRAPURAM , WALAYAR, PALAKKAD, PIN- 678624.
2 FATHER KULANDAIRAJ,
AGED 69 YEARS
ACCUSED NO.3, S/O. ANTONYSAMY, CHRIST KING
CHURCH, NANCHAPPA ROAD, KATTOOR, COIMBATORE,
CURRENTLY RESIDING AT BISHOP'S HOUSE, POST BOX
NO.6, BIG BAZAAR STREET, COIMBATORE - 641001.
3 FATHER LAWRENCE,
AGED 61 YEARS
ACCUSED NO.4, S/O. AROKIASAMY, STAINSLOSS
CHURCH, CHANDRAPURAM, WALAYAR, PALAKKAD,
CURRENTLY RESIDING AT BISHOP'S HOUSE, POST BOX
NO.6, BIG BAZAAR STREET, COIMBATORE - 641001.
4 FATHER MELCHIOR,
AGED 69 YEARS
ACCUSED NO.4, S/O. PITCHAI ANTONYMUTHU,
STANSILAS CHURCH, CHANDRAPURAM, WALAYAR,
PALAKKAD, CURRENTLY RESIDING AT BISHOP'S HOUSE,
POST BOX NO.6, BIG BAZAAR STREET, COIMBATORE -
641001.
BY ADVS.
K.GOPALAKRISHNA KURUP (SR.)
Crl.MC Nos.6572/2018 &7651/2018
4
2024:KER:73127
ACHUTH KYLAS K
SRI.R.MAHESH MENON
SRI.DEAGO JOHN K
SMT.SREEDEVI KYLASANATH
K.P.KYLASANATHA PILLAY (SR.)(K-196)
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM. KOCHI - 682031.
2 ADDL. R2. SHANTHI ROSELINE S.,
AGED 46 YEARS, W/O. SAGAYARAJ S., RESIDING AT
NO.32, SWAMIYAR NEW STREET NO.1, FORT TOWN
HALL, COIMBATORE-641001. (ADDITIONAL R2 IS
IMPLEADED AS PER ORDER DATED 03/10/2019 IN CRL.
MA 1/19 IN CRL. MC 7651/2018)
BY ADVS.
ADDL.DIRECTOR GENERAL OF PROSECUTION
VINODE V. LUKA
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 30.09.2024, ALONG WITH Crl.MC.6572/2018, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC Nos.6572/2018 &7651/2018
5
2024:KER:73127
P.V.KUNHIKRISHNAN, J.
---------------------------------------------
Crl.MC Nos.6572/2018 &7651/2018
------------------------------------------------------
Dated this the 30th day of September, 2024
ORDER
These two Criminal Miscellaneous cases are
connected and therefore I am disposing these two Criminal
Miscellaneous cases by a common order. The petitioner in
Crl.M.C. 6572 of 2018 is the 1st accused and the petitioners
in Crl.M.C. 7651 of 2018 are accused numbers 2 to 5 in Crime
No.670/2018 of Walayar Police Station. Above case is
registered alleging offences punishable under Section 202
read with Section 34 of the Indian Penal Code, 1860.
2. The prosecution case is like this:
A girl named Fathima Sophia, D/o S.Sagayaraj
committed suicide by hanging on 23.07.2013 at Fathers
Bungalow, Chandrapuram, Walayar where one
Fr.V.H.Arogyaraj, a Parish Priest under the petitioner, in
Crl.M.C.6572/2018 was residing. Fr.V.H.Arogyaraj was the 1st
Crl.MC Nos.6572/2018 &7651/2018
2024:KER:73127
accused in Sessions Case No.04/2017, on the files of the 1 st
Additional Sessions Court, Palakkad, arising from Crime
No.854/2013 of Walayar Police Station. On receipt of the
information regarding the suicide, Walayar Police registered
Crime No.854/2013 under Section 174 of the Criminal
Procedure Code and conducted investigation. Finally, a
closure report was filed on 04.08.2013 before the Sub
Divisional Magistrate, Palakkad by the Police. According to
the petitioner, in Crl.M.C.6572/2018 he was not in station at
that time and when the petitioner came to India, he relieved
Fr. V.H.Arogyaraj of his duties pending enquiry.
Subsequently, from 04.08.2013, the mother of the deceased
found a suicide note of the deceased girl and filed a petition
before the State Police Chief to conduct further investigation
in the matter. Accordingly, by an order dated 15.07.2015 it
was directed to conduct further investigation. Thereafter, the
further investigation was conducted by the Deputy
Superintendent of Police, Palakkad and a final report was filed
before the 1st Additional Sessions Court, Palakkad, against
Crl.MC Nos.6572/2018 &7651/2018
2024:KER:73127
six persons including the petitioners herein alleging offences
under Sections 306, 376, 201, 202, read with Section 149
IPC. The offences under Sections 3 (a) and 4 of the POCSO
Act were also alleged. Fr. V.H.Arogyaraj was the 1st
accused. The offences alleged against accused No.2 to 6
were under Sections 201, 202 read with Section 149 IPC.
The case was taken on the file by the learned Sessions Judge
as C.C No.936/2016. Annexure A1 is the final report. In
Annexure A1 final report, it is alleged that the 1st accused
committed penetrative sexual assault on the deceased
Fathima Sophia on more than one occasion and she was
driven to committ suicide on 23.07.2013 and therefore he had
committed the offences under Sections 306, 376 and under
the provisions of the POCSO Act. It is further alleged that the
accused Nos.2 to 6 who are members of a committee which
conducted an enquiry as against the 1st accused as per the
provisions of Canon Law before whom the 1st accused made
a confession on 19.08.2013 that he had sexual intercourse
with the deceased girl. Since the petitioners in these Crl.M.C
Crl.MC Nos.6572/2018 &7651/2018
2024:KER:73127
cases who are accused 3 to 6 did not inform the Police about
the confession made by the 1st accused, they were sought to
be tried for the offences under Section 201, 202 read with
Section 149 of IPC. The petitioners in these Criminal
Miscellaneous Cases challenged the final report before this
Court by filing Crl.M.C.Nos.2911 of 2017 and 4609 of 2017.
These Criminal Miscellaneous Cases were considered
together by this Court and this Court as per common order
dated 10.07.2017, allowed the Criminal Miscellaneous Cases
and quashed the proceedings against the petitioners. One of
the reasons for quashing the proceedings is that no sanction
was obtained under Section 155 (2) Cr.P.C, to prosecute the
petitioners because the offences alleged is a non-cognizable
offence. Thereafter, the investigating officer filed an
application for permission to register the case under section
202 IPC against the petitioners. The learned Magistrate as
per order dated 14.08.2018 allowed the same. Thereafter,
Crime No.670 of 2018 was registered against the petitioners
alleging offences under Section 202 read with 34 IPC.
Crl.MC Nos.6572/2018 &7651/2018
2024:KER:73127
Aggrieved by the same, these criminal miscellaneous cases
has filed.
3. Heard the learned counsel for the petitioners
and the learned Public Prosecutor. I also heard the Counsel
appearing for the party respondents in these cases.
4. The short point raised by the petitioners is
that the registration of the second FIR against the petitioners
based on same set of facts is unsustainable. It is also
submitted by the petitioners that this Court quashed the
proceedings against the petitioners in which the offences
under Section 202 IPC was also there. Thereafter, for the
same offence, the Crime No.670 of 2018 is registered. The
learned Public Prosecutor submitted that, this Court quashed
the proceedings against the petitioners in the earlier crime
mainly based on the reason that there is no sanction under
Section 155 (2) of Cr.P.C. Therefore, an application was
filed before the Jurisdictional Court under Section 155 (2)
Cr.P.C. and after getting sanction the present FIR is
Crl.MC Nos.6572/2018 &7651/2018
2024:KER:73127
registered as Crime No.670 of 2018 by the Walayar Police
and there is nothing wrong in registering the above Case.
5. This Court considered the contentions of the
petitioners and the learned Public Prosecutor. I think there is
some force in the argument of the petitioners. Admittedly, the
Prosecution filed a charge sheet against the petitioners in
Crime No.854 of 2013 in which the offences under Sections
201, 202 IPC are alleged. The petitioners challenge the same
before this Court and as per common order dated 10.07.2017
in Crl.M.C.No.2911 of 2017 and Crl.M.C. No.4609 of 2017,
this court quashed the proceedings. It will be better to extract
the relevant portion of the above order:
5. It has been fairly conceded by the
Additional Director General of Prosecution
that there is no allegation that the
petitioners committed the offences under
sections 306, 201 and 376 read with 149
I.P.C. The only allegation against the
petitioners is that when the petitioners
received the information with regard to the
Crl.MC Nos.6572/2018 &7651/2018
2024:KER:73127
immoral life of the first accused in this
case, a committee was constituted to
enquire into the mater as per the
provisions of Canon Law, wherein the
petitioners were the members. The first
accused had given statement to the
committee to the effect that he had
physical relationship once with the girl
involved in this case. The said aspect was
recorded in the minutes of the committee
as is evident from Annexure-3. The
petitioners produced the said minutes
before the Investigating Officer in
response to the notice received under
Section 91 Cr.P.C. There is absolutely no
allegationthat the petitioners had in any
way assisted or abetted the first accused
in committing the offence under Sections
306 and 376 I.P.C. Having gone through
the relevant inputs, I am satisfied that
there is absolutely no allegation or
material to the effect that the petitioners
caused disappearance of the evidence of
commission of the offence or gave false
information to screen the first accused.
Crl.MC Nos.6572/2018 &7651/2018
2024:KER:73127
The only offence alleged against the
petitioners is the offence under Section
202 I.P.C., which is a separate and
distinct non-cognizable offence triable by
a Magistrate. Therefore, the investigation
of the said offence can be conducted by
the police only after getting permission
from the Magistrate as provided under
Section 155(2) Cr.P.C. In this case, the
said offence was investigated by the
police without obtaining the permission
from the Magistrate asprovided under
section 155(2) Cr.P.C. Since the offence
alleged against the petitioners is a
separate and distinct offence, it should
have been separately investigated after
registering the crime. In view of the above
reasons, it will not be just and proper to
direct the petitioners to face the trial
before a Sessions Court. For the said
reason, I am inclined to quash the final
report and further proceedings against the
petitioners in S.C. No.4 of 2017 on the
files of the court below, in exercise of the
inherent power under Section 482
Crl.MC Nos.6572/2018 &7651/2018
2024:KER:73127
Cr.P.C., to meet the ends of justice and
accordingly, I order so. In the result, this
Crl.M.C. stands allowed.
6. Therefore, the final report against the
petitioners were quashed. Thereafter, Crime No.670/2018 is
registered against the petitioners alleging offences under
Sections 202 read with 34 IPC. First of all, there cannot be
any second FIR in the same incident. The Apex Court in
Tarak Dash Mukharjee and Others v. State of Uttar
Pradesh and Others [(2022) KHC 6889] considered this point
in detail. The relevant portion of the above judgment is
extracted hereunder:
12. If multiple First Information Reports by
the same person against the same
accused are permitted to be registered in
respect of the same set of facts and
allegations, it will result in the accused
getting entangled in multiple criminal
proceedings for the same alleged offence.
Therefore, the registration of such multiple
FIRs is nothing but abuse of the process
Crl.MC Nos.6572/2018 &7651/2018
2024:KER:73127
of law. Moreover, the act of the detail the
registration of such successive FIRs on
the same set of facts and allegations at
the instance of the same informant will not
stand the scrutiny of Art.21 and Art.22 of
the Constitution of India. The settled legal
position on this behalf has been
completely ignored by the High Court.
7. Again in Mohammed Kunhi M. v. State of
Kerala [2023 (7) KHC 535] this Court considered this point
and the relevant portion is extracted as follows:
11. In T. T. Antony v. State of Kerala and
others [2001 (6) SCC 181] the Apex court
held that an FIR postulated by S.154 of
the Code is the earliest and the first
information of a cognizable offence
recorded by an officer in charge of the
police station. It sets the criminal law into
motion and marks the commencement of
the investigation. An investigation ends up
with the formation of opinion under S.169
or 170 of the Code, as the case may be
and forwarding of a police report under
Crl.MC Nos.6572/2018 &7651/2018
2024:KER:73127
S.173. Once an FIR. is registered, all
other information made orally or in writing,
after the commencement of the
investigation will be statements falling
under S.162 of the Code. It was
accordingly held that no such second
information or statement can be treated as
an FIR, as it would be a second FIR. and
the same cannot be in conformity with the
scheme of the Code. The principle of law
that there cannot be two FIR. with respect
to the same incident was reiterated by a
three - Judge bench of the Apex Court in
Upkar Singh v. Ved Prakash and others
[2004 (13) SCC 292]. The Apex court
following the said proposition of law in
Tarak Dash Mukharjee v. State of Uttar
Pradesh and others [2022 (2) KLD 435
(SC)] held that if multiple FIRs by the
same person against the same accused
are permitted to be registered in respect
to the same set of facts and allegations, it
will result in the accused getting entangled
in multiple criminal proceedings for the
same offence. Therefore registration of
Crl.MC Nos.6572/2018 &7651/2018
2024:KER:73127
multiple FIRs is nothing, but abuse of the
process of law. It was further held that the
act of registration of such subsequent FIR
on the same set of facts and allegations at
the instance of the same informant will not
stand the scrutiny of Art.21 and Art.22 of
the Constitution of India, and therefore the
proceedings pursuant to the second FIR
are illegal. In view of that, it is to be
considered whether both the FIRs were
registered on the same set of facts.
8. In the light of the above dictum, I am of the
considered opinion that the second FIR is not maintainable.
Admittedly, this Court quashed the proceedings against the
petitioners mainly for the Prosecution under Section 202 IPC
in the common order 10.07.2017 in Crl.M.C.Nos.2911/2017
and 4609/2017. The main reason to quash the proceedings is
that the case is registered without getting permission from the
Court concerned under Section 155 (2) Cr.P.C. After
quashing that proceedings there cannot be a second FIR for
the same set of facts, even if there is sanction from the Court
Crl.MC Nos.6572/2018 &7651/2018
2024:KER:73127
concerned. I am of the considered opinion that the
continuation of a second FIR is an abuse of process of Court
and illegal.
Therefore, these Criminal Miscellaneous Cases are
allowed and all further proceedings in Crime No.670/2018 of
Walayar Police Station as against the petitioners in these
cases are quashed.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
STB
Crl.MC Nos.6572/2018 &7651/2018
2024:KER:73127
PETITIONER ANNEXURES
ANNEXURE A1 A TRUE COPY OF THE GIST OF THE FINAL
REPORT ALONG WITH THE LIST OF
DOCUMENTS AND THE MEMORANDUM OF
EVIDENCE.
ANNEXURE A2 A TRUE COPY OF THE NOTICE UNDER SEC.91
CR.P.C. ISSUED BY THE INVESTIGATING
OFFICER ON 27.11.2015.
ANNEXURE A3 TRUE COPY OF THE MINUTES OF THE
MEETING HELD ON 19/08/2013 AT THE
BISHOP'S HOUSE, COIMBATORE.
ANNEXURE A4 A TRUE COPY OF THE NOTICE DATED
08/06/2016 ISSUED TO THE DR. BISHOP
THOMAS AQUINAS UNDER SEC.41(A) OF THE
CR.PC.
ANNEXURE A5 TRUE COPY OF THE STATEMENT OF THE 1ST
PETITIONER RECORDED UNDER SEC.164 OF
THE CR.PC.
ANNEXURE A5(A) TRUE COPY OF THE STATEMENT OF THE 2ND
PETITIONER RECORDED UNDER SEC.164 OF
THE CR.PC.
ANNEXURE A5(B) TRUE COPY OF THE STATEMENT OF THE 3RD
PETITIONER RECORDED UNDER SEC.164 OF
THE CR.PC.
ANNEXURE A5(C) TRUE COPY OF THE STATEMENT OF THE 4TH
PETITIONER RECORDED UNDER SEC.164 OF
THE CR.PC.
ANNEXURE A6 TRUE COPY OF THE STATEMENT OF THE 1ST
ACCUSED RECORDED UNDER SEC. 164 OF THE
CR.PC.
ANNEXURE A7 THE TRUE COPY OF THE ORDER OF THE
HONOURABLE HIGH COURT OF KERALA IN
CRL. M.C. NO.4609/2017 DATED
Crl.MC Nos.6572/2018 &7651/2018
2024:KER:73127
10/07/2017.
ANNEXURE A8 TRUE COPY OF THE SANCTION PETITION
FILED BEFORE THE JUDICIAL FIRST CLASS
MAGISTRATE-I, PALAKKAD, DATED
13/08/2018.
ANNEXURE A9 THE CERTIFIED COPY OF THE ORDER DATED
4/08/2018 OF THE HONOURABLE JUDICIAL
FIRST CLASS MAGISTRATE-I, PALAKKAD IN
C. NO.7173/2018.
ANNEXURE A10 THE CERTIFIED COPY OF THE FIR DATED
18/08/2018 IN CRIME NO.670/2018 OF
WALAYAR POLICE STATION, PALAKKAD.
ANNEXURE A11 THE TRUE COPY OF THE INTERIM ORDER
DATED 05/10/2018 IN CRL. MC 6572/2018.
Crl.MC Nos.6572/2018 &7651/2018
2024:KER:73127
PETITIONER ANNEXURES
ANNEXURE A-1 COPY OF THE GIST OF THE FINAL REPORT
ALONG WITH THE LIST OF DOCUMENTS AND
THE MEMORANDUM OF EVIDENCE IN CC
NO.936/2016 OF THE 1ST
ADDL.SESSIONS,COURT,PALAKKAD.
ANNEXURE A-2 TRUE COPY OF THE NOTICE UNDER SEC.91
CR.P.C.ISSUED BY THE INVESTIGATING
OFFICER ON 27.11.2015.
ANNEXURE A-3 TRUE COPY OF THE MINUTES OF THE
MEETING HELD ON 19.8.2013 AT THE
BISHOP'S HOUSE,COIMBATORE.
ANNEXURE A-4 TRUE COPY OF THE NOTICE DATED 8.6.2016
ISSUED TO THE 6TH ACCUSED UNDER
SEC.41(A)OF THE CR.P.C.
ANNEXURE A-5 TRUE COPY OF THE STATEMENT OIF THE
PETITIONER RECORDED UNDER SEC.164 OF
THE CRL.P.C.
ANNEXURE A-6 TRUE COPY OF THE STATEMENT OF THE 2ND
ACCUSED RECORDED UNDER SEC.164 OF THGE
CR.P.C.
ANNEXURE A-6(a) TRUE COPY OF THE STATEMENT OF THE 3RD
ACCUSED RECORDED UNDER SEC.164 OF THE
CRL.P.C.
ANNEXURE A-6(b) TRUE COPY OF THE STATEMENT OF THE 4TH
ACCUSED RECORDED UNDER SEC.164 OF THE
CRL.P.C.
ANNEXURE A-6(c) TRUE COPY OF THE STATEMENT OF THE 5TH
ACCUSED RECORDED UNDER SEC.164 OF THE
CRL.P.C.
ANNEXURE A-7 THE TRUE COPY OF THE ORDER OF THE
HONOURABLE HIGH COURT OF KERALA DATED
Crl.MC Nos.6572/2018 &7651/2018
2024:KER:73127
10.07.2017
ANNEXURE A-8 TRUE COPY OF THE SANCTION PETITION
FILED BEFORE THE JUDICIAL FIRST CLASS
MAGISTRATE-I,PALAKKAD DATED
13.08.2018.
ANNEXURE A-9 THE CERTIFIED COPY OF THE ORDER DATED
14.08.2018 OF THE HONOURABLE JUDICIAL
FIRST CLASS MAGISTRATE-I,PALAKKAD IN
C.NO.7173 OF 2018.
ANNEXURE A-10 THE CERTIFIED COPY OF THE FIR DATED
18.08.2018 IN CRIME NO.670/2018 OF
WALAYAR POLICE STATION,PALAKKAD.
Annexure A-11 CERTIFIED COPY OF THE FINAL REPORT
DATED 31-12-2019 IN CRIME NO.670/2018
OF WALAYAR POLICE STATION
Annexure A-12 TRUE COPY OF THE COMMUNICATION DATED
NIL ALONG WITH THE POSTAL RECEIPT
