Kerala High Court: In a writ petition filed seeking directions to the Central Bureau of Investigation (‘CBI’) to dispose of the petitioner’s representation according to law within stipulated time, the Single Judge bench of K.K. Ramakrishnan, J., held that the respondents have illegally sold Government property in a fraudulent transaction involving many Government officers and church administration. Noting that the police had not taken any action, the Court directed the CBI to investigate.
Background:
The writ petitioner is the President of Christian Minorities Unit. Vide an order in 1912, the subject landin Tallakulam Village, Madurai was assigned by the Government to the American Board of Commissioners for Foreign Missions (‘ABCFM’), an American Christian Missionary Organization, to establish an industrial home for needy women, subject to certain conditions and assigned the land only to cultivate it and use its income for the industrial home for orphans and destitute women. The said land, in violation of the assignment condition, was fraudulently alienated by Church of South India without any title. The petitioner made several complaints to the local police, but they did not properly respond to the allegation. In the said transaction a huge amount was misappropriated illegally with the active connivance of many Government officials and the same is to be investigated by the CBI. Therefore, he made a complaint to the CBI and has filed this writ petition to consider his representation.
Analysis:
The Court noted that the land was assigned with one of the conditions being that it shall be used only for industrial and charitable purposes. The Court further noted that ABCFM changed its name to United Church Board for World Ministries (‘UCBWM’) and abided by the assignment conditions by cultivating the lands and using its income for an industrial home for orphans and destitute people till 1973. Additionally, the Court noted that there is a clause in the assignment whereby the land cannot be transferred. That being so, the properties of the UCBWM were transferred to the Church of South India Trust Association (‘CSITA’). Thereafter, the Directors of CSITA conspired and colluded with the administrators of Church of South India , with the dishonest intention to sell the assigned properties of the Government illegally for which they fabricated the power deed and sold the property.
Pending this writ petition, since no action was taken, the petitioner filed a writ petition in 2022 in a public interest litigation before this Court seeking relief to recover the land from the Government. The coordinate division bench of this Court directed the Government to consider the petitioner’s representation, conduct an inquiry, and verify whether the conditions stipulated in the assignment order have been violated by the Church of South India and thereafter, pass appropriate orders, on merits and as per law, within 12 weeks. As per this direction, the Government issued notice to Church of South India and proceeded to cancel and recover the land.
After perusing the order of the coordinate bench and material on record, the Court held that the material discloses a prima facie case for investigation by CBI. The Court also held that in the assignment, a resumption clause also is available i.e., if the land is not used for the purposes, it should be restored to the Government. The Court noted that the alienation was made by the CSITA without any right over the said properties with the active collusion of Government officials and sold the property to third parties for around 1.2 crores despite the actual worth being more than 22 crores. Additionally, in violation of all banking, trust, and income tax rules, they received the cash receipt for Rs. 91,43,472 only.
Rejecting the contention of the non-maintainability of this writ petition since the petitioner needs to approach the judicial magistrate under Section 156 (3) of the Code of Criminal Procedure, 1973 (‘CrPC’), the Court held that as per the law laid down by the Supreme Court in the cases of CBI v. State of Rajasthan, (2001) 3 SCC 333 and CBI v. State of Gujarat, (2007) 6 SCC 156, the jurisdictional magistrate has no jurisdiction to issue direction under Section 156 of CrPC, to the CBI to register the case. Further, the CBI manual prescribes that if the aggrieved person sends a complaint to the jurisdictional Joint Director or Superintendent of Police, then, the said officer alone is entitled to peruse the complaint and take a decision on the complaint.
The Court further stated that the Division Bench of this Court has held that in case of non-receipt of the complaint by the jurisdictional Police within the state of Tamil Nadu, the complainant can make a further complaint to the Superintendent of Police under Section 154 of CrPC, and the said system of hierarchy is not available in the CBI. Further, there is no rigid formula to entertain the writ petition. The availability of an alternative remedy is not a bar to entertain the writ petition. As per the CBI manual, no mandate is there that every citizen has to approach the State Headquarters first. Hence, the CBI has jurisdiction to look into the allegation made by the petitioner.
The Court further held that the right to fair investigation is the victim’s fundamental right guaranteed under Part III of the Constitution of India. To enforce the said constitutional right, invoking Article 226 is also a part of the fundamental right. Hence, the Supreme Court on various occasions clearly stated that in exceptional cases, the CBI can entertain the petition, and this Court has the power to issue a direction to the CBI under Article 226. The Court also relied on the case of State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571, for the same.
The Court noted that the church became voiceless since its administrators muzzled the voices of the persons who questioned their illegal activities of alienating a huge property of the church. Therefore, the petitioner, as a member of the church, made a complaint to various police officers but nobody cared for his grievance, so he sent a complaint to the CBI. The Court held that the property is still Government property and CSITA had no jurisdiction to sell it. Therefore, this Court has a duty to protect the interest of the church by exercising the parens patriae jurisdiction.
The Court stated that nowadays in India, church properties are not properly managed by the administrators. Previously, everyone connected with the church got assignments from the British Government with the noble object of catering to the needs of women and needy persons. But now, nobody cares about the object and uses the land for selfish purposes. The Court further stated that every religion aims to do charity in furtherance of their faith, but people have gone against their religion and faith.
The Court held that the land was sold illegally and many banking, trust, and income tax rules were violated in the transaction. The Court also held that since the local police officers are not inclined to show any interest in the investigation, the allegation is supported by material documents, and the Court is prima facie satisfied to order an investigation by the CBI.
Given the above, the Court held that this case comes under the extraordinary exceptional circumstances to invoke the jurisdiction under Article 226 to issue direction to the CBI to register the case against the persons connected with the fraudulent transaction and conduct the investigation properly. Accordingly, the writ petition was allowed, and CBI was directed to proceed with the investigation.
[D. Devasahayam v. Central Bureau of Investigation, Writ Petition (MD) No. 1507 of 2021, decided on 22-11-2024]
Advocates who appeared in this case:
For the petitioner: Mr.M.R.Thangaia
For the respondent: Mr. M. Karunanithi, Special Public Prosecutor, Mr. R. Baskaran, Additional Advocate General, Mr. M. Muthumanikkam Government Advocate (Civil Side), and Mr. M. Ajmal Khan, Senior Counsel
Buy Code of Criminal Procedure, 1973 HERE
