No special privilege given to a religious/political head in CrPC: Kerala HC refuses Cardinal's plea seeking exemption from personal appearance

The Kerala High Court recently refused to grant the relief prayed by Cardinal Mar George Alencherry, the major archbishop of Syro-Malabar Church, seeking exemption from appearing in person before the trial court even for the first time.

While stating that the Magistrate's discretion to grant an accused exemption from personal appearance, even before the first appearance, can be exercised only in rare cases, the single judge bench of Justice Ziyad Rahman AA said,

"The Code of Criminal Procedure does not distinguish between ordinary citizens and persons holding superior positions in their religious, political, social, or other institutions".

Court added that equality before the law, the laudable principle enshrined in Article 14 of the Constitution of India, is not confined in its application only in cases where one seeks to enforce his rights.

"It is equally applicable when a person is proceeded against for violating the law or for committing an offence, and no preferential treatment can be claimed by anyone for any reason whatsoever, unless the statute contemplates such privilege," the court observed.

Therefore, the court held that the Cardinal's position as a religious head would not entitle him to any special privileges and refused to grant the relief as prayed.

Court said, "The statutory mandate is over and above all the superiority the accused possesses or claims to have, by virtue of his position. Irrespective of his position, he is just an accused before the court of law, who is not entitled to claim any special privilege and is required to face the proceedings just like any other citizen".

However, the court made it clear that the observations made by the court in the order were only in respect of the prayer for exemption from the first appearance of the Cardinal in person.

Court clarified that once the Cardinal appears and is released on bail on executing bonds, the applications submitted by him under Section 205 Cr.P.C. (seeking exemption from personal appearance before the court and permission to appear through his counsel) shall be considered without any delay, by taking into account the fact that his physical presence may not be required on all posting dates.

The Cardinal, an accused in the 2018 church land scam involving some illegal property transfers, sought exemption from appearing before the trial court even at the first instance. There were a total of seven cases instituted against the Cardinal in connection with the scam and in all he had been served with summons.

The single judge bench noted that there were no exceptional circumstances such as any physical ailments or long distance of travel that would restrict the Cardinal's ability to appear in person before the Magistrate.

Therefore, referring to a catena of judgments on the subjects, the court dismissed the Cardinal's prayer to exempt him from appearing before the trial court even at the first instance.

Case Title: Cardinal Mar George Alencherry v Joshi Varghese & Ors.