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, the court said.
The Kerala High Court has ordered police to investigate into allegations against Major Arch Bishop and others of the Syro-Malabar Church in connection with the Syro-Malabar Church land deal.
Justice B Kemal Pasha allowed the writ petition filed by one Shine Vargheese, a member of Arch diocese, in which he sought probe into allegations that Mar George Alancherry conspired with others with an intention to misappropriate the major sale proceeds in connections with lands belonging to church. He also submitted before the court that the police authorities refused to lodge complaint in this regard.
Senior Counsel Sri. S. Sreekumar and the other learned counsel for respondents have argued that the writ petition is not maintainable and it is purely the prerogative of the police to decide whether any cognizable offence is involved or not. If the police decides that no cognizable offence is made out and this is not a matter in which crime has to be registered, then the only course open to the complainant is to approach the Judicial First Class Magistrate's Court concerned with a complaint under Section 190 Cr.P.C.
It was also argued that the Diocese is a juridical person and it can acquire and alienate properties.
“When it is a juridical person, it is contended that any outsider cannot represent the juridical person. It is argued that in case any irregularities or misconduct is traced out relating to the ecclesiastical properties or temporal properties, as the case may be, it is for the higher ups of the religious order to interfere in the matter and the same cannot be dragged to a court of law. precisely, it is argued that as per the Code of Canons, it is for the Pope of Vatican to control the affairs of the ecclesiastical or temporal properties of the Diocese”.
With regard to these contentions, Justice Kemal Pasha observed: “It has been argued by all the learned counsel for respondents 3 to 6 that the 3rd respondent can do anything as he pleases regarding the property of the Diocese, and there cannot be a question against his authority in dealing with the property according to his whims and fancies. When this Court wanted a clarification whether anybody can question the acts of the 3rd respondent in dealing with the properties of the Diocese, it was replied that nobody can question the 3rd respondent in his actions and he is free to do anything with regard to the properties of the Diocese. In order to consider whether the 3rd respondent could claim such an immunity, this Court put a query as to whether the 3rd respondent could be considered as 'king, who could do no wrong'. The answer by the learned Senior Counsel for the 3rd respondent was an emphatic 'yes'.
Justice Kemal Pash said the Court is also of the view that Diocese is a juridical person.
There cannot be a different view in the matter, when the said question has been settled through various judicial pronouncements. Even though the writ petitioner has stated that the Diocese is in the nature of constructive trust, it cannot be said that the Diocese is a constructive trust; whereas it is a juridical person. The said juridical person can acquire and sell properties. At the same time, Diocese is the juridical person and not the 3rd respondent, 'Major Arch Bishop'. Cardinal or Major Arch Bishop, as the case may be, is not the Diocese. Diocese is entirely a different person. The authority of the 3rd respondent at the most is only to represent the Diocese, as the Diocese is not a living person. It is the 3rd respondent, who has to represent the Diocese in its transactions, for and on behalf of the Diocese, and not on his own behalf”.
The court said 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 and observed: “The law is above all. Law should be equal to all. Law should be equal to the rich and the poor. There cannot be any favoured class from among the equals. The old saying that all are equals and some are more equals, cannot have any application when question of entitlement of legal rights is being considered.”
Another argument forwarded by the counsel for the 5th respondent was based on Canon 119 of the Code of Canons, which says that Eparchial Bishop represents the Eparchy in all its juridic affairs.
To this, the Court replied as follows;
“It is true that the 3rd respondent has to represent the Eparchy in all its juridic affairs. At the same time, it is only in a representative capacity he can represent the Diocese. As pointed out earlier, he is not the Diocese; whereas, he can only represent the Diocese. Therefore, the interest of the Eparchial Bishop and the interest of the Diocese are distinct and separate. It is for the 3rd respondent to safeguard all the interests of the Diocese when he is entrusted with the properties of the Diocese. He cannot recklessly deal with the property, and simply say that Diocese has lost money. If there is deliberate recklessness or deliberate acts by which loss has been caused to the properties of the Diocese or to the Diocese, it can invite the offence of criminal breach of trust. If misappropriation is alleged, it can invite the offence of criminal misappropriation”.
The Court has also dismissed the contention regarding the locus standi of the petitioner.