IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 03RD DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.1010/2013 BETWEEN:
Fr. Gregory Serrao, Aged about 64 years, S/o Sri. Piad Serrao, Parish Priest, St. Martine De Pores Church, Belvai, Belvai Village and Post, Mangalore Taluk, D.K. District – 575 001. ... Petitioner (By Sri. A. Keshava Bhat, Advocate) AND:
1. Sri. Gilbert Briganza, S/o late Sri. Joseph Briganza, Aged about 53 years, Residing at Opp: St. Martine De Pores Church, Belvai, Belvai Village and Post, Mangalore Taluk, D.K. District – 575 001.
2. The State of Karnataka, Represented by State Public Prosecutor, Advocate General’s Office, High Court Building, Bengaluru – 560 001. ... Respondents (By Sri. K. Chandranath Ariga, Adv. for R1;
Sri. Vijaya Kumar Majage, Addl. SPP for R2) This Criminal Petition is filed u/s.482 of Cr.P.C praying to quash the entire proceedings in C.C.No.81/2012 on the file of the Civil Judge and JMFC, Moodbidri, D.K.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Petitioner has sought to quash the proceedings initiated against him in C.C.No.81/2012 for the offence punishable under Section 500 of I.P.C.
2. Heard learned counsel for the petitioner and learned Addl. SPP for respondent No.2 and learned counsel for respondent No.1. Perused the records.
3. Respondent No.1 (complainant) lodged a private complaint against the petitioner herein alleging that he was defamed by the petitioner (accused). In the complaint, it was stated that in the 2nd week of November 2003, the youths of Belvai parish requested the accused to honour the complainant as he has been recognized as one of the best teacher in the coastal area. But, the accused refused the request of the said youths and defamed him in the presence of the said youths stating that the “complainant was not a teacher at all and he was not the Principal of St. Mary’s ITI and he was a worker in a garage”.
4. In support of these accusations, the complainant gave his sworn statement before the learned Magistrate and also examined two witnesses. Considering the said material, at the first instance, the learned Magistrate refused to take cognizance and consequently rejected the complaint. As against the said order, respondent No.1 (complainant) carried the matter in a revision before the Principal Sessions Judge, D.K., Mangalore, in Criminal Revision Petition No.217/2016 and by order dated 10.09.2009, the learned Sessions Judge set aside the order of the learned Magistrate and remitted the case for reconsideration by the learned Magistrate in accordance with law. After remand, the learned Magistrate reheard the parties and reconsidered the very same material and took cognizance of the offence and issued summons to the petitioner to answer the charge under Section 500 of I.P.C.
5. The learned counsel for the petitioner submits that the allegations made in the complaint even if accepted on their face value do not make out the ingredients of the offence under Section 499 of IPC. There is no consistency in the statement of the witnesses examined by the complainant. Therefore, the learned Magistrate has committed an error in taking cognizance of the alleged offence and in issuing summons to the petitioner.
6. Refuting the submission, the learned counsel for respondent No.1 referred to the alleged defamatory statements contained in the complaint as well as in the sworn statement of the complainant and the witnesses examined by him and reiterated that these allegations on the face of it impute aspersions on the complainant. The complainant was the Principal St. Mary’s ITI at Udupi at the relevant time, and one of the best teacher in the coastal area, who merited recognition. Under the said circumstance, imputations cast against the accused squarely fall within the definition of Section 499 of IPC and therefore, there is no error or illegality whatsoever in issuance of summons by the learned Magistrate.
7. Considered the submissions and perused the records. The only point that requires to be considered is whether the imputations contained in the complaint prima- facie constitute the offence of defamation within the meaning of Section 499 of IPC? Section 499 of IPC reads as under:
“Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.”
8. According to the complainant, in the year 2003 he was defamed by the petitioner. A reading of the averments made in the complaint indicate that the alleged incident had taken place when the youth had approached the petitioner herein, who was then the parish priest in St.Martine De Pores Church, Belvai, seeking his permission to honour the complainant as he was recognized as one of the best teacher in the coastal area. It looks quite unnatural and defies reason as to why the complainant had to accompany the youth to seek permission, as if he himself wanted to be honoured by the petitioner/accused. Be that as it may, the averments made in the complaint suggest that during the occurrence, the petitioner herein made the alleged utterances in the presence of the youth. The utterances are reproduced in the complaint in Kannada and they read as under:
“2003£Éà E¸À«AiÀÄ°è £À£ÀߣÀÄß ¸À£Áä£À ªÀiÁqÀ®Ä ZÀZïð£À AiÀÄĪÀPÀ ªÀÈAzÀzÀªÀgÀÄ DgÉÆæAiÀÄ£ÀÄß ºÉÆÃV PÉýzÁUÀ DgÉÆæAiÀÄÄ £Á£ÀÄ PÉ®¸À ªÀiÁqÀÄwÛgÀÄ ¸ÉAmï ªÉÄÃj L.n.L MAzÀÄ UÁågÉÃdÄ EzÀÝ ºÁUÉ CAvÀºÀªÀjUÉ £ÁªÀÅ ¸À£Áä£À ªÀiÁqÀĪÀÅ¢®è JAzÀÄ ºÉý ¸À£Áä£À ªÀiÁqÀ®Ä vÀAiÀiÁj¹zÀ CzsÁå¥ÀPÀgÀ ¥ÀnÖ¬ÄAzÀ £À£Àß ºÉ¸ÀgÀ£ÀÄß vÉUÉzÀĺÁQgÀÄvÁÛ£É. ¸À£Áä£À ¸ÀªÀiÁgÀA¨sÀ ªÀÄÄVzÀ §½PÀ £Á£ÀÄ DgÉÆæAiÀÄ£ÀÄß D §UÉÎ «ZÁj¹zÁUÀ DgÉÆæ £À£ÀUÉ DUÀ K£ÀÄ GvÀÛgÀ PÉÆqÀzÉ £ÀAvÀgÀ CAzÀgÉ ¸É¥ÉÖA§gï wAUÀ¼À 2£ÉÃAiÀÄ ¨sÁ£ÀĪÁgÀ 2003 £Éà E¸À«AiÀÄAzÀÄ ZÀZïð£À°è zsÁ«ÄðPÀ «¢ü £ÀqÉAiÀÄÄwÛgÀĪÁUÀ J®ègÀ ¸ÀªÀÄPÀëªÀÄ DgÉÆæAiÀÄÄ xÀgïØ PÁè¸ï (PɼÀªÀÄlÖzÀ) £ËPÀgÀ¤UÉ £ÀªÀÄä°è ¸À£Áä£À ªÀiÁqÀĪÀÅ¢®è. J°ªÉÄAlj ±Á¯ÉAiÀÄ°è PÉ®¸À ªÀiÁqÀĪÀ CzsÁå¥ÀPÀjUÉ ªÀiÁvæÀ ºÉýgÀÄvÁÛgÉ.”
¸À£Áä£À £ÀªÀÄä ZÀZïð£À°è ªÀiÁqÀ¯ÁUÀĪÀÅzÀÄ JAzÀÄ 9. In his sworn statement, the complainant has asserted that in the year 2003 when the youth of the parish had been to the petitioner requesting to honour the complainant, the petitioner retorted saying that St. Mary’s ITI is like a garage and he is not going to honour such people. In this statement, he has nowhere stated that he accompanied the youth seeking permission of the parish Priest to honour him. Therefore, there is patent inconsistency in the statement made in the complaint as well as the sworn statement of the complainant with regard to his very presence during occurrence.
10. Pw2 is one of the witnesses examined by the complainant. He was aged about 49 years at the time of the alleged incident. He was a member of the parish council. He cannot be termed as a youth. According to this witness, the alleged incident had taken place when the complainant had gone to question the parish priest for deleting his name from the list of the awardees and at that time, the parish priest is stated to have uttered the above defamatory words. This statement is contradictory and irreconcilable to the very case set up by the complainant. According to the complainant, the incident had taken place before finalizing the list of awardees when the youth had approached the petitioner seeking his permission. These contradictions and inconsistencies lead to doubt the very occurrence and the utterances attributed to the petitioner.
11. In this context, if the statement of Pw3 is perused, it is seen that Pw3 was aged 29 years as on the date of recording his statement. He was the president of the Youth Association at the relevant time. According to this witness they had arranged a function to honour the complainant and in that function, the parish priest told that the complainant does not deserve to be honoured. This version is totally inconsistent to the version projected by the complainant as well as by Pw2. It is trite law that in order to constitute the offence of defamation, harmful imputations must be disseminated with an intention to harm the reputation of the person defamed. When the allegations made in the complaint and other material, even if they are taken at their face value do not prima-facie make out a case against the accused and the occurrence itself is doubtful to secure ends of justice and to prevent abuse of the process of Court, it is necessary to exercise the jurisdiction under Section 482 Cr.P.C.
12. Having considered all the facts and circumstances of the case, I am of the clear opinion that the complainant has failed to make out a clear case for prosecution of the petitioner for the offence punishable under Section 500 of IPC. The material on record do not disclose the commission of offence under Section 499 of IPC. Consequently, the orders passed by the learned trial Judge and the learned Sessions Judge are liable to be set aside.
Accordingly, the petition is allowed. Proceedings initiated against the petitioner in C.C.No.81/2012 are quashed.
Sd/- JUDGE SV