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Can Irregularities In Church Land Deal Result In Criminal Proceedings Against Bishop: Kerala HC To Decide After SC Declines Interference

Manu Sebastian
2 April 2018 7:51 AM GMT
Can Irregularities In Church Land Deal Result In Criminal Proceedings Against Bishop: Kerala HC To Decide After SC Declines Interference
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The Syro-Malabar Catholic Church in Kerala will be having anxious days after the Holy Week, as the Kerala High Court division bench is set to consider on April 3 the legality of registration of FIR against the Cardinal and two other priests for alleged irregularities in a land deal. It was on March 6 that a single judge of the high court ordered the registration of FIR against Mar George Alencherry, Cardinal of Syro-Malabar Church and Arch Bishop of Ernakulam-Angamaly Arch Diocese, and two other priests for offences of cheating, criminal breach of trust and criminal conspiracy in relation to alleged irregularities in a land transaction. The order was passed by allowing a writ petition filed by a member of diocese, Shine Varghese. Following that FIR was registered. On March 16, the division bench headed by Chief Justice Antony Dominic stayed the proceedings in the FIR against the church authorities while admitting their intra-court appeals.

Against the interim stay granted by the division bench, Shine Varghese, the petitioner, and Martin Payyamppily, another member of the diocese, approached the Supreme Court. Their main contention was that the division bench could not have entertained the intra-court appeal against the Single Bench order in a criminal proceeding, as per the law laid down by the Supreme Court in Ram Kishan Fauji v. State of Haryana. In Ram Kishan Fauji, a three-judge bench of the Supreme Court had held that intra-court appeal in criminal matters is not maintainable even if orders are passed in writ jurisdiction under Article 226 of the Constitution of India.  The Supreme Court bench of Justice AK Goel and Justice RF Nariman, however, chose to refrain from interfering with the interim stay granted by the high court, having regard to the fact that the high court had posted the matter on April 3 for hearing.

Offence of criminal breach of trust invited on deliberate loss caused to Diocese 

Before the single bench, the prayer for FIR registration was opposed on the ground that dealing with diocese properties is a pure internal arrangement of the Church and alleged irregularities in the same cannot attract criminal offences. As per Canon Law, the Catholic Church is not a trust and is a juridical person, separate and distinct from the laity. The properties of the diocese are absolutely vested with the Bishop. Therefore, a layperson cannot allege criminal breach of trust and cheating with respect to dealing of diocese properties by the Bishop. The alleged irregularities in complying with Canon Law procedure can only be examined by the Pope, being the head of the Church, and cannot be subjected to criminal investigation.

However, the above contentions were rejected by Justice B Kemal Pasha, the single judge who dealt with the matter. Justice Pasha found that the Bishop was a mere trustee of the Diocese, and held that if there is deliberate recklessness or deliberate acts by which loss has been caused to the Diocese, it can invite the offence of criminal breach of trust. The contention that only the Pope can look into irregularities within the Church was also rejected.

When matters relating to civil or criminal law relating to a property of a Diocese in India arise, it is for the courts in India to deal with the matter, Justice Pasha said in the judgment. Therefore, the direction was issued to the police to register crime and carry out an investigation.  This order was stayed by the division bench in appeals by the Cardinal and others.

Demand for Church Act

In the wake of allegations of land scam, the demand for enactment of “Church Act” has started gaining momentum among certain sections of believers. In 2009, the Kerala Law Reforms Commission presided by Justice VR Krishna Iyer had drafted The Kerala Christian Church Properties and Institutions Trust Bill. The Bill was proposed to “promote the more democratic, efficient and just administration of the temporal affairs and properties of the Churches”.

As per existing legal framework under the Canon Law, the Catholic Church Diocese is a juridical person which can acquire, hold and dispose properties on its own, with the Bishop having both spiritual and temporal powers. The Church properties are not regarded as an endowment or trust properties.

The proposed Church Bill takes away the temporal powers of clergy over the proprietary interests of the Church and creates a trust over the properties. The properties will be vested with the Board of Trustees constituted at the levels of parish, diocese and state. The Board of Trustees will consist of   members elected from the laity.  There will be a Church Commissioner, a government authority, to oversee the functioning of Board of Trustees.

The reformists amongst the laity feel that the Church Act will end the concentration of both spiritual and temporal powers in the clergy, and will give more rights to the believers in athe dministration of church properties, leading to more transparency and efficiency.

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