KOCHI: In a major respite to Cardinal Mar George Alencherry in the Church land deal row, the High Court on Tuesday set aside the Single Judge order directing the police to register a criminal case against him and three others. While allowing the appeals, the Division Bench comprising Chief Justice Antony Dominic and Justice Dama Seshadri Naidu, observed the single bench had relied heavily on the inquiry report of the diocese and concluded that a cognizable offence made out in the allegation. The Single Judge had passed the order on the petition filed by Shine Varghese.
“The impugned judgment seems to have placed heavy reliance on the diocese’s enquiry report and concluded – prima facie, though – that a cognizable offence is made out. But regrettably, it has missed out on the fundamental jurisdictional issue. It has failed to notice the unseemly haste Shine Varghese, the petitioner showed; no sooner had he submitted his complaint than he rushed to the court in 24 hours,” the order stated.
The record reveals the complainant approached the police on January 15 and he filed the writ petition the next day. The prosecution submitted that without waiting even for the receipt, Shine rushed to the court. The division bench further observed that Shine has faltered at the first hurdle -the alternative remedy, which he has on more that one count. The judgement of the Single Judge suffers from legal infirmity, hence it deserved to be set aside.
The Bench observed the writ court can only play the corrective role to ensure the integrity of the investigation is not compromised. The writ court, however, will not initiate an investigation. That function clearly lies within the domain of the executive, and it is up to the investigating agencies themselves to decide whether the material produced before them provides a sufficient basis to launch an investigation, the Bench said citing a Supreme Court order.
The court also dismissed the petition of Martin Payyappilly, another complainant as his petition also suffers the suppression of material fact. “Despite the police recording Martin’s statement after his complaint, he did not choose to disclose this fact before the court until the fact was irrefutably brought before the court by the prosecution,” the order stated.
The court has not addressed the other issues, including the one about the prima facie case or a single crime attracting more than one complaint, as it pronounced on the threshold issue.“Let the complainants take comfort that the race is not always to the swift, nor the battle to the strong... but time and chance happeneth to them all. If there be truth in what they allege, the long arm of the law will surely reach whatever recess the crime lurks in. Their swift race to the High Court alone do we interdict here,” the court observed.