M. S. Paulose Vs State of Kerala (Kerala High Court)
Facts- The suit was instituted by the petitioners 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.
Conclusion- In State of Haryana v. Bhajan Lal, 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.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
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.12th 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 2nd 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
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 2nd 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.
