Rt. Rev. P.P. Marandi And 3 Others v. State Of U.P. And Another

Appln. U/s 482 No. 897 of 2015 P. P. Marandi & others Vs. State of U. P. & Anr.

RESERVED

Case :- APPLICATION U/S 482 No. - 897 of 2015

1. Rt. Rev. P.P. Marandi, Formerly Moderator,

2. Rt. Rev. P. K.Samantaroy, Moderator,

3. Alwan Masih, General Secretary,

4. Prem Masih, Hony. Treasurer, Church of North India, CNI Bhawan, 16, Pt. Pant Marg, New Delhi.

… … … Applicants

Versus

1. The State of Uttar Pradesh

2. Mr. John Augustine, s/o late Z. Augustine, alleging himself to be the Bishop of Church of India, Burma, Pakistan and Ceylon, presently residing at St. Mary's School, Rajajipuram, Lucknow.

… … … Opp. Parties.

Counsel for Applicants :- Sri Gopal S. Chaturvedi, Sr. Advocate assisted by Pratik J. Nagar, Advocate

Counsel for Opposite Party no. 1 :- Govt. Advocate Counsel for opposite Party no. 2 : Sri Prabhakar Awasthi

CORAM:

HON'BLE ANIL KUMAR SHARMA, J

Heard Sri G.S. Chaturvedi, learned Senior Counsel assisted by Sri Pratik J. Nagar, learned counsel for the applicants, Sri Prabhakar Awasthi, learned Counsel for the opposite party No. 2, Sri Neeraj Kant Verma, learned AGA for State and perused the record of the case. Parties to the case have filed their respective affidavits in support of their contention.

2. The present 482 Cr.P.C. petition has been filed for quashing the charge sheet dated 12.12.2014 pursuant to the FIR dated 18.09.2014

1

Neutral Citation No. - 2015:AHC:35461

1

lodged by the opposite party No. 2, the summoning order dated 16.12.2014 passed by the Judicial Magistrate II, Allahabad and the entire criminal proceedings of Case No. 1808 of 2014 (State of Uttar Pradesh Vs. P. P. Marandi and others) arising out of Case Crime No. 480 of 2014, under sections 419, 420, 467, 468, 471 and

406 IPC, PS George Town, District Allahabad, pending in the Court of Judicial Magistrate - II, Allahabad.

3. The contention of the learned senior counsel for the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contention.

4. On 18.09.2014 the First Information Report in question was lodged by the opposite party No. 2 in police station George Town, District Allahabad under Sections 419, 420, 467, 468, 471 and 406 IPC, against the applicants and four others alleging that Rt. Rev. P. P. Marandi, Moderator, Church of North India (would be referred to as 'CNI' hereinafter), Rt. Rev. P. K. Samantaroy, Deputy Moderator, CNI, Sri Prem Masih, Honorary Treasurer, CNI and Sri Alwan Masih, General Secretary, Church of North India, illegally conducted a meeting of the CNI and appointed Rt. Rev. Collin C. Theodore as Moderator's Commissary, Diocese of Lucknow and subsequently, they appointed Rev. Daniel Subhan as the Moderator's Commissary, Diocese of Lucknow in place of the Rt. Rev. Collin C. Theodore, who is claiming himself to be the Chairman, Allahabad High School Society. In the FIR, it has also been averred by the complainant- opposite party No. 2 that Allahabad High School Society is a Society registered under the Societies Registration Act, 1860 and is managed by the Diocese of Lucknow, CNI and the Bishop, Church of India is the Chairman of the Society. The Society runs three

2

institutions under the name and style of (1) Boys High School, (2) Girls High School and (3) Holy Trinity School. The applicants have illegally appointed Rt. Rev. Collin C. Theodore and after him Rev. Daniel Subhan as Moderator's Commissary, who is illegally working as Chairman of Allahabad High School Society. On the basis of the aforesaid illegal appointment of Chairman of the Society the accused have grabbed the institutions run by Allahabad High School Society and are misappropriating its funds to the tune of Rs.10,00,000/- (Rupees Ten Lakhs) per month and till now, they have misappropriated a sum of Rs.1,30,00,000/- (Rupees One Crore and Thirty Lakhs) of the aforesaid educational institutions. It has been further alleged that the applicants have conspired and have fabricated documents for illegal gains. The complainant before lodging the instant FIR has made a complaint to the Registrar of Societies, Allahabad with regard to misappropriation of funds of Society by the applicants and other persons named in the FIR by forging resolutions, which is still pending before the Registrar of Societies. After investigation of the case, the Investigating Officer has submitted charge-sheet dated 12.12.2014 in the Court on 16.12.2014. The learned Judicial Magistrate II, Allahabad vide order dated 16.12.2014 has taken cognizance of the matter and directed the case to be registered against the applicants and four other persons as case no. 1808 of 2014 under Sections 419, 420, 467, 468, 471 and 406 IPC, PS George Town, District Allahabad.

5. The counsel for applicants has contended that the applicant No. 1, the Bishop of Patna Diocese, was holding the office of Moderator of the Synod of Church of North India. The applicant No. 2, the Deputy Moderator of the Synod of Church of North India, is not its Moderator. The applicant No. 3 is presently the General Secretary of the Church of North India, the applicant No. 4 is its Hony. Treasurer

3

and Sri Arun Paul is the Secretary of the Lucknow Diocesan Trust Association. The Church of North India is the Apex Body of the protestant churches formed on 29.11.1970 by Union of six Churches and is an autonomous body which comprises of twenty seven Diocese spread throughout India, except the four southern States of Andhra Pradesh, Kerala, Tamilnadu and Karnatka where Non- Catholic Church properties and institutions are held and managed by the Church of South India. It is further submitted that Boys' High School and Girl's High School are Christian Minority Educational Institutions and according to Biblical Commandment one-tenth of the income of these institutions is being paid to the Diocese of Lucknow as Tithe for the support of the Church and the Clergy.

6. It has been further submitted by the applicants that the Allahabad High School Society was established in the year 1861 and was registered with the Registrar of Societies under the Societies Registration Act in the year 1888. After formation of the Church of North India in 1970, the Bishop of Lucknow Diocese, Church of North India was duly appointed and consecrated by the Church of North India. The Bishop of Lucknow Diocese has all along been the Chairman of Allahabad High School Society. In the Constitution of Church of North India it is mentioned that the Moderator of the Church of North India has the right to appoint Moderator's Episcopal Commissary or Moderator's Commissary in the absence of a Bishop (Chapter IV, Section 7 (B) Moderator (Clause 9, Page No. 109). In exercise of the powers conferred under this clause the Moderator, Church of North India, appointed Rt. Rev. Collin Theodore as Moderator's Episcopal Commissary in the absence of Bishop of Lucknow Diocese.

7. The further submission of the applicants is that the opposite party No. 2 is himself guilty of illegally grabbing, selling church

4

properties at various places and a number of FIRs have been lodged against him. On account of his illegal and anti-church activities, the opposite party No. 2 was removed from the membership of Anglican Church vide letter dated 15^thof May, 1997 written to him by Mr. Samuel P. Prakash. After removal from Anglican Church, the opposite party No. 2 formed a Society under the name and style of The Church of India - Anglican Diocese of Lucknow claiming himself to be its Chairman, which was registered with the Registrar of Societies, Lucknow on 30.09.1997. He has also filed Suit No. 2685 of 2008 (Church of India and another Vs. Church of North India Trust Association and another) In Delhi High Court for permanent injunction and declaration as owner of the properties belonging to the Church of India, Burma, Pakistan and Ceylon, which is still pending.

8. The contention of the counsel for applicants is that neither the applicants have fabricated any document for withdrawing any amount from the three schools run by the Allahabad High School Society nor they have forged any resolution for misappropriation of funds as alleged by the opposite party No. 2. The genuineness of the resolutions alleged to have been passed by the applicants in respect of the Allahabad High School Society is pending consideration before the Registrar, Firms, Societies and Chits and for this reason also the impugned FIR dated 18.09.2014 is illegal and not maintainable.

9. The further contention of the applicants is that the opposite party No. 2 has lodged the instant FIR against the applicants and other persons with malafide intention and with a view to falsely implicate them and grab the institutions run by the CNI, by misusing the name of erstwhile Church of India, Burma, Pakistan and Ceylon, which has admittedly merged into CNI on 29^thNovember, 1970, i.e.

5

44 years ago.

10. The learned counsel for the applicants has vehemently argued that even if the averments made in the FIR are taken to be correct no offence of criminal breach of trust, fraud, cheating and forgery punishable under Sections 419, 420, 467, 468, 471 and 406 IPC are made out. The subject matter of instant FIR is purely of a civil nature and legally is not maintainable. Moreover, the dispute with regard to the said resolution is pending before the Registrar, Firms, Societies and Chits and for this reason also the purported FIR dated 18.09.2014 was legally untenable. Even no offence under section 406 of IPC is made out against the applicants for the reason that the applicants were not entrusted with any property and thus, there was no occasion for them to misappropriate the same or to convert the same for their dishonest use.

11. It is also being contended by the counsel for applicants that the investigation of the matter and submission of the charge sheet against the applicants is arbitrary and illegal as it has been done in violation of the interim order dated 07.11.2014 passed by this Court in Criminal Misc. Writ Petition No. 20147 of 2014 (PP Marandi and others Vs. The State of U.P. And others). Further, the material and evidence collected by the Investigating Officer in the course of investigation is not in consonance with the allegations levelled in the FIR and as such the whole prosecution story is false and baseless. The prosecution is also bad in law because from perusal of charge- sheet and the documents filed therewith no case under Sections 419, 420, 467, 468, 469, 471 and 406 IPC is made out against the applicants. Thus, the impugned order dated 16.12.2014 taking cognizance of the matter and summoning the applicants is laconic and perfunctory and has been passed without any application of mind. This case has been instituted on vague and bald allegations

6

and there is no possibility of conviction of the applicants.

12. The application under section 482 Cr.P.C. has been strongly opposed by the learned AGA for State as well as by the counsel for opposite party No. 2. It has been argued that there was cogent evidence and material on record found by the Investigating Officer against the applicants and four other persons. It has been submitted that on 04^thof June, 2013, applicant No. 3 namely Alwan Masih, Secretary CNI, SYNOD has illegally written a letter (Annexure- 50)addressed to the Rt. Rev. Collin C. Theodore, Moderator's Episcopal Commissary, Diocese of Lucknow CNI, Bishop's House, 25, Mahatma Gandhi Marg, Allahabad to the effect that a meeting of office bearers of CNI Synod was held wherein oral decision was taken that from the account of Allahabad High School Society which run Boy's High School & Girl's High School a sum of Rs. 5 Lacs each shall be deposited in the account of Church of North India by way of cash and rest over amount shall be spent by Diocese of Lucknow accordingly. It is further contended that on a query made by the Investigating Officer through questionnaire on certain points, the Assistant Registrar, Firms, Societies and Chits, Allahabad has replied that Collin C. Theodore or Daniel Subhan are not Chairman of existing Allahabad High School Society and as per the provisions of Societies Registration Act, no fund of any Society can be transferred to any other Society or Institution without passing any resolution. It has also been informed by the said Registrar that G. Doud is not the legally elected Secretary of the Society in question.

13. It has been further contended by the learned counsel for complainant that this contention of the applicants is wholly false and baseless that there is no oral or documentary evidence to substantiate the charge sheet in as much as the Investigating Officer before submitting the charge sheet has also recorded the statements of the

7

Principal, Boys High School, Sri David Luke S/o Late Robin A. Luke, R/o 4, P. D. Tandon Road, Civil Lines, Allahabad, P. S. Civil Lines, Allahabad, who has admitted that after 02.05.2013 the officials of Church of North India, 16, Pt. Pant Marg, New Delhi namely P. P. Marandi (Moderator), P. K. Samantaroy (Deputy Moderator), Alwan Masih (Secretary) and Prem Masih (Treasurer) in a meeting appointed Collin C. Theodore as Commissary and thereafter, Denial Subhan was appointed as such. These persons appointed G. Doud as Secretary of Allahabad High School Society and this direction was given by him through letter to Collin C. Theodore, and later on, Collin C. Theodore to operate the accounts of Boys High School appointed G. Doud as signatory and just after this, the accounts of Boys High School were being operated under their joint signatures. Thereafter, two separate letters written by Collin C. Theodore and Arun Paul were received with direction Rs. 5 Lakhs each be transferred every month to the Diocese of Lucknow and this direction was complied with by them in letter and spirit in consultation of concerned higher officials of the Society.

14. Before we proceed further, it would be apt to refer the provisions of Section 482 Cr. P. C. and the latest law on the point.

482. Saving of inherent powers of High Court.—Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice."

In the case of Rishipal Singh Vs. State of U. P. and another (2014) 7 SCC 215 the apex Court has observed:

"A bare perusal of Section 482 CrPC makes it crystal clear that the object of exercise of power under this section is to prevent abuse of process of court and to secure ends of justice. There are no hard-and-fast rules that can be laid down for the exercise of the extraordinary jurisdiction, but

8

exercising the same is an exception, but not a rule of law. It is no doubt true that there can be no straitjacket formula nor defined parameters to enable a court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The courts have to be very circumspect while exercising jurisdiction under Section 482 CrPC.

11. This Court in Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. 2000(3) SCC 269 Ltd. has discussed at length about the scope and ambit while exercising power under Section 482 CrPC and how cautious and careful the approach of the courts should be. We deem it apt to extract the relevant portion from that judgment, which reads:

"Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as the rarest of rare so as not to scuttle the prosecution. With the lodgement of first information report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on a perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge-sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount".

12. This Court in a plethora of judgments has laid down the guidelines with regard to exercise of jurisdiction by the courts under Section 482 CrPC. In State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 this Court has listed the categories of cases when the power under Section 482 can be exercised by the Court. These principles or the guidelines were reiterated by this Court in (1) CBI v. Duncans Agro Industries Ltd. 1996 (5) SCC 591; Rajesh Bajaj v. State (NCT of Delhi) 1999

(3) SCC 259; and Zandu Pharmaceuticals Works Ltd. v. Mohd. Sharaful Haque (2005) 1 SCC 122. This Court in Zandu Pharmaceuticals Works Ltd. observed that:

The power under Section 482 of the Code should be used

9

sparingly and with circumspection to prevent abuse of process of court, but not to stifle legitimate prosecution. There can be no two opinions on this, but, if it appears to the trained judicial mind that continuation of a prosecution would lead to abuse of process of court, the power under Section 482 of the Code must be exercised and proceedings must be quashed.

Also see Om Prakash v. State of Jharkhand 2012 (12) SCC

72.

What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the court comes to a conclusion that quashing these proceedings would otherwise serve the ends of justice, then the court can exercise the power under Section 482 CrPC. While exercising the power under the provision, the courts have to only look at the uncontroverted allegation in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial court and dwell into the disputed questions of fact."

Yet in another case of Vijayender Kumar Vs. State of Rajasthan (2014)

3 SCC 389, a 3-Judge bench of the Apex Court in para-8 has observed as under:

"8. Similar is the law noticed in Dalip Kaur (2009) 14 SCC

696. In that case the matter was remanded back to the High Court because of non-consideration of relevant issues as noticed in para 10, but the law was further clarified in para 11 by placing reliance upon the judgment of this Court in R. Kalyani v. Janak C. Mehta (2009) 1 SCC 516. It is relevant to extract para 11 of the judgment which runs as follows: (Dalip Kaur case (supra) SCC p. 700)

"11. There cannot furthermore be any doubt that the High Court would exercise its inherent jurisdiction only when one or the other propositions of law, as laid down in R. Kalyani v. Janak C. Mehta (supra) is attracted, which are as under:

(SCC p. 523, para 15)

'(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular,

10

a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.

(2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.

(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.

(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue." In para-12 it was further observed:

"12. The learned counsel for the respondents is correct in contending that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the informant/ complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose a criminal offence or not. This proposition is supported by several judgments of this Court as noted in para 16 of the judgment in Ravindra Kumar Madhanlal Goenka v. Rugmini Ram Raghav Spinners (P) Ltd. (2010) 3 SCC (Cri) 1011"

15. In the instant case the letter of applicant no. 3- Alwan Masih dated 4.6.2013 (Annexure-50) addressed to Collin C. Thedore speak volumes about the criminal intent of the office bearers of The CNI. The applicants have denied the execution of this letter, but it cannot be adjudicated by this Court in these proceedings. Further the intervention of the Commissioner, Allahabad Division, Allahabad, who is also the exofficio member of The Allahabad High Schools Society (vide Rule-3) through letter dated 21.07.2014 (Annexure-53) addressed to the Asstt. Registrar Chits Fund, Allahabad is also important and the reply of Asstt. Registrar dated 24.7.2014 (Annexure-54) clearly spell out the ill-design of the applicants as

11

also their mens rea which constitute the alleged offences mentioned in the charge-sheet. The Asstt. Registrar, Firms, Societies & Chits, Allahabad vide letter no. 3233/2014-15/Allahabad dated 20.10.2014 (Annexure-52) addressed to the investigating officer has inter alia reported that at present there is no legal Chairman or other office bearer of Allahabad High School Society; that Collin C. Theodore or Danial Subhan are not Chairman of the Society and their Management Committee is not registered under section 4(1) of the Societies Registration Act; that the proceedings and documents submitted by Sri G. Daud are not registered so he cannot be deemed as Secretary of the Society; and the funds of the educational institutions cannot be transferred to any other institution. These are all disputed questions of fact which required adjudication.

16. In view of the above discussion of bare facts as also from the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submission made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283.

17. The Hon'ble Apex Court in the case of Ashik Rameschandra Shah & Ors. Vs. State of U. P. through CBI/SCB, Lucknow 2014

(85) ACC 411, following the law laid down in the case of M/s Indian Oil Corporation Vs. NEPC India Ltd. AIR 2006 SC 2780 has observed that where a wrong makes out a 'civil wrong' and also a

12

'criminal offence', in such a situation, the mere fact that civil remedy is available or have been availed is not by itself a ground to quash the criminal proceedings.

18. Before parting with the case, it is made clear that the contentions of the learned counsel for the parties as also the facts of the case and the contents of the documents have been noted only for the purpose of deciding the instant application and any observation of the Court would not prejudice any of the parties at subsequent stages of the trial. They should not be taken as a finding or statement of fact on the disputed questions.

19. In view of what has been said and done above, lead us to this irresistible conclusion that the instant application u/s 482 Cr. P. C. has no merits and is accordingly dismissed.

20. The interim order stands discharged.

March 20, 2015 (Anil Kumar Sharma, J)

LBY

13