IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.7329 OF 2012 BETWEEN:
1. MOST REV. DR ALOYSIUS PAUL D’SOUZA BISHOP OF MANGALORE, S/O LATE.MATHIAS D’SOUZA, AGED ABOUT 71 YEARS, DIOCESE OF MANGALORE, BISHOP HOUSE, KODIALBAIL, MANGALORE-575 003.
(BY SRI: CYRIL PRASAD PAIS, ADVOCATE) AND 1. MR G ANDREW RICHARD AGED ABOUT 50 YEARS, SON OF MR.ZAVIOUR GOKULA, RESIDING AT: CELESTE APARTMENTS, MERCARA HILL ROAD, BENDOR, MANGALORE-575 002 2. MR.A. ISAWCK RICHARD, ... PETITIONER AGED ABOUT 19 YEARS, SON OF MR.G.ANDREW RICHARD, RESIDING AT: CELESTE APARTMENTS, MERCARA HILL ROAD, BENDOR, MANGALORE-575 002 3. MRS. ANITHA PINTO, AGED ABOUT 36 YEARS, WIFE OF MR.LANCY PINTO, RESIDING AT C-1, 1ST FLOOR, ANNA VISTA APARTMENTS, KADRI, MANGALORE-575 002 4. MRS. GRACY PINTO AGED ABOUT 50 YEARS, WIFE OF MR.HENRY PINTO, 5. MS.HAZEL PINTO, AGED ABOUT 27 YEARS, D/O. MR.HENRY PINTO, BOTH ARE RESIDING AT SOMESHWARA RESIDENCY APARTMENTS, LOWER BENDUR, DOMINOS ROAD, MANGALORE-575 002 6. MRS. MOLLY TELLIS, AGED ABOUT 45 YEARS, D/O. LATE MR.CHARLES D’ SOUZA, RESIDING AT: BADEGA, ULIPADY, GANJIMUTT P.O., MALALI CROSS, MANGALORE TALUK-574 144.
7. REV. FATHER FRANCIS RODRIGUES, AGED ABOUT 43 YEARS, S/O MAURICE RODRIGUES, 8. REV. FATHER GEORGE D’SOUZA AGED ABOUT 55 YEARS, S/O MR.CYPRIAN D’SOUZA, 7TH RESPONDENT IS AN EDITOR AND PUBLISHER AND 8TH RESPONDENT IS THE PRINTER OF RAKNOWEEKLY (KONKANI), OPP. KARNATAKA BANK LTD., CHURCH BUILDING, KODIALBAIL, MANGALORE-575 003 ... RESPONDENTS (BY SRI: S VISHWAJITH SHETTY, ADVOCATE FOR R1 & R2; VIDE ORDER DATED 10.12.2012 NOTICE TO R3 TO R8 IS DISPENSED WITH) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 13.09.2012 PASSED BY J.M.F.C.(III COURT), MANGALORE IN C.C.NO.2521/2012 AGAINST THE PETITIONER WHO IS THE ACCUSED NO.5 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 500, 501 AND 502 OF IPC, 1860 OF ISSUANCE OF SUMMONS TO THE PETITITONER. (B) QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.2521/2012 AND P.C.R.NO.111/2012 PENDING ON THE FILE OF THE J.M.F.C. (III COURT), MANGALORE FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 500, 501 AND 502 OF IPC, 1860.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 05.02.2019 AND COMING ON FOR PRONOUNCEMENT THIS DAY, JOHN MICHAEL CUNHA. J, MADE THE FOLLOWING:-
O R D E R Petitioner is aggrieved by the order dated 13.09.2012 passed by the III Addl. JMFC, Mangaluru, whereby summons is issued to the petitioner to face trial for the offences punishable under sections 500, 501 and 502 Indian Penal Code in C.C.No.2521/2012.
2. Brief facts leading to issuance of summons to the petitioner are as follows:-
Respondent Nos.1 and 2 filed a private complaint against seven accused persons under Sections 190(I) (A), 199 & 200 Cr.P.C. for the offences punishable under sections 501 and 502 Indian Penal Code. The petitioner herein was shown as accused No.5. Material allegations made in the complaint are that complainant No.1 is a respectable, income-tax payee and a law abiding Catholic Christian. He is a highly qualified and revered religious preacher. He is holder of ‘Master of Theology’ Degree and ‘Master of Divinity’ granted by Bengaluru Bible Institute and College. He is conferred with ‘Doctor of Philosophy’ degree by the United Theological Open University, Secunderabad. The Parish Priest of St. Anne’s Church of Bengaluru was pleased to issue a certificate in the year 2010, thereby certifying that complainant No.1 was eligible to preach the ‘Word of God’ and conduct ‘Retreats’ at any Catholic Parishes. Complainant No.2 has been working with complainant No.1 on part-time basis in the religious and social activities. Complainant No.1 and his wife Mrs. Pramila Richard are founder trustees of ‘Grace Ministry’ at Benguluru. Since April 2012, the complainants noticed that the accused persons with common intention to cause serious harm to them and their above-said mission have been repeatedly publishing false and per-se defamatory imputations and remarks against the complainants to the people at large especially to the people of Dakshina Kannada District.
According to the complainants, the petitioner herein wrote a letter dated 10.04.2012 to Mr. Jagannath, Assistant Commissioner of Police, South Division, Mangaluru making defamatory and false statements against complainant No.1 that the prayer meetings conducted by complainant No.1 are unauthorized and that Christians are misled by complainant No.1 through his prayer meetings and that complainant No.1 is trying to bring about division among Catholics and collect money from the people unauthorisedly by falsely claiming that he is authorized to do so. The above remarks published by petitioner/accused No.5 are baseless, malicious, false and per-se defamatory. The other allegations made in the complaint pertain to accused Nos.1 to 4 and accused Nos.6 and 7. In para 10 of the complaint, it is generally stated that accused Nos.5 to 7 published a false and per-se defamatory article in Konkani weekly newspaper by name ‘RAKNO’ dated 28.06.2012. In the said article, it was stated that complainant No.1 is cheating people in the name of religion and making unlawful wealth in the name of God. Thousands of copies of the said newspaper were sold and circulated throughout India and abroad. Thus contending that the above criminal act of accused Nos.1 to 7 have caused defamation to the complainants, the complainants have sought prosecution of the petitioner for the above offences.
3. Learned Magistrate recorded the sworn statement of the complainants and on considering the said statements and the contents of the private complaint, by order dated 13.09.2012 directed summons to accused Nos.1 to 7 to face charges for the offences punishable under sections 500, 501 and 502 of Indian Penal Code.
I have heard learned counsel for the petitioner and learned counsel for respondent Nos.1 and 2.
4. Placing reliance on the decision of this Court in V. NARAYANA BHAT vs. E. SUBBANNA BHAT reported in AIR 1975 Karnataka 162, learned counsel for the petitioner would submit that the statements made to the police officer with intent to take action against the complainants for their alleged activities do not amount to defamation within the meaning of Section 499 Indian Penal Code. Said statements are absolutely privileged and therefore the prosecution of the petitioner/accused No.5 is wholly illegal and abuse of process of Court. Further, he submitted that the complainants claim to be law abiding Catholic Christians; petitioner/accused No.5 was the religious head of Catholic Community in Dakshina Kannada; the Church is bound by its own rules and regulations; so far as Roman Catholic Church is concerned, it is bound by Canon Law; matters relating to worship are governed by the provisions of Canon Law; Bishop is the ultimate authority in the Diocese; petitioner/accused No.5 being the Bishop of Mangalore Diocese is entrusted with the duty of preaching as well as the duty to moderate the entire Ministry of the Word of God in the entire diocese; Bishop has the right and obligation to judge writings on faith and morals; the competent authority to allow lay people to preach in a diocese is the Diocesan Bishop, if the Bishop’s Conference permits; in the exercise of the office of preaching, everyone is bound to observe the norms laid down by the Bishop of the diocese; the petitioner/accused No.5 therefore was duty bound to prevent unauthorized preachings of any person as it was likely to cause communal disharmony and create chaos in the society; hence, the petitioner being the religious head of the diocese of Mangalore was constrained to inform the unauthorized preaching and the illegal activities of the complainants to the Assistant Commissioner of Police. Since the complainants were indulging in instigating hatred in the name of the religion, the petitioner issued a circular or appeal to caution the members of the Church to be aware of the preaching of the complainants and requested the police officials to take action against the complainants; the circulars published in Konkani weekly were not intended to malign the name of the complainants and the said acts cannot be termed as defamation within the meaning of Section 499 Indian Penal Code. That the complaint lodged to the police authorities as well as circulars issued to the laity in the weekly newspaper run by the Diocese fall within Seventh, Eighth and Ninth exceptions provided under Section 499 of Indian Penal Code and therefore the initiation of action against the petitioner is legally untenable and amounts to abuse of process of Court and thus prayed to quash the proceedings initiated against the petitioner.
5. Learned counsel for respondent Nos.1 and 2 have argued in support of the impugned action contending that the averments made in the complaint and the publication made in the circular in Konkani weekly by the petitioner per-se amount to defamation and therefore the learned Magistrate was justified in issuing summons to the petitioner.
I have bestowed my careful thought to the submissions made at the Bar and have carefully gone through the averments made in the complaint as well the grounds urged in the petition.
6. As already stated above, the complaint is lodged against seven accused persons. The allegations made against the present petitioner is that the petitioner wrote a letter to the Assistant Commissioner of Police, South Division, Mangaluru on 10.04.2012 and in the said letter, the petitioner has cast aspersions against the complainants which according to the complainants are per-se defamatory entailing prosecution of the petitioner for the offences punishable under sections 499, 501 and 502 Indian Penal Code. Said letter was produced alongwith the private complaint, but the same was not marked during the sworn statement of the complainants. The learned magistrate has not considered said letter while issuing summons to the petitioner. I have gone through the said letter and I do not find any scurrilous contents therein constituting the ingredients of Section 499 Indian Penal Code. Said letter reads as under:-
NO. MY/202/2012 Dated: 10.04.2012 Mr.Jagannath, Assistant Commissioner of Police South Division Mangalore-575001. Respected Sir, Sub: Mr.Andrew Richard’s unauthorized Grace- Ministries in Mangalore-regarding One Mr.Andrew Richards is conducting prayer meetings in Mangalore regularly in the name of the Catholic church and he claims that he is authorized to do so.
I have not authorized him to conduct any prayer meeting in the name of the Church and hence his prayer meetings are authorized. Christians are misled through his prayer meetings. He is trying to bring about division among Catholics. People have complained that he collects money unauthorizedly.
It is brought to our notice that on 13.04.2012 he is going to conduct a prayer meeting at River Dale ground, Jeppu, Kadekar, Near Nethravathi Bridge, Jappinamogaru, Mangalore from 10.00 AM to 6.00 PM. He has announced it orally and in his website. I am enclosing a copy of his announcement from his website.
Should he be allowed to conduct such unauthorized prayer meetings, problems of law and order may arise, as it can disturb communal harmony in Mangalore.
Therefore, I request you to kindly take necessary steps to maintain peace and harmony in the society and sanctity and integrity of the Catholic Church in Mangalore.
Thanking you, Yours respectfully, Most Rev.Aloysius Paul D’Souza, Bishop of Mangalore.
7. There is nothing in the said letter to indicate that the petitioner intended to harm the reputation of the complainants, rather, a careful reading of the said letter suggests that it was submitted to the police authority with intent to take legal action against the complainants for unauthorized preaching in the name of Catholic church. Being the head of Diocese, the petitioner was well within his rights to seek legal assistance to prevent the alleged activities of the complainants, which in the perception of the petitioner were against tenets of the Catholic Church. That apart, said letter was not “published” by the petitioner so as to furnish a cause of action for the complainants to raise a grouse thereon. “Making or publishing” any imputation concerning any person is a necessary concomitant of the offence under section 499 Indian Penal Code. Making a complaint to the authorities with intent to take legal action against the persons named therein cannot be construed as “making or publishing imputations” for attracting the offence under Section 499 Indian Penal Code’. There is nothing on record to indicate that the Assistant Commissioner of Police had taken action on the aforesaid letter or registered any case against the complainants. It is not the case of the complainants that any defamatory statements were made by the petitioner herein before the police officers in the course of investigation carried on under the Code of Criminal Procedure. In the absence of any material to show that the letter written by the petitioner to the police authorities has been brought into public domain, it cannot be said that contents of the said letter were made or published by the petitioner with intent to damage the reputation of the complainants. It is also not the case of the complainants that they were summoned by the police to make enquiry into the alleged offence. It is not known as to how the complainants came in possession of the said document. The complainants did not produce the same before the learned Magistrate during their sworn statement. Under the said circumstances, there was absolutely no basis for the learned Magistrate to hold that on account of the said letter, the petitioner has committed an offence punishable under section 499/500 Indian Penal Code. Therefore, in my view, solely on this ground, the impugned order issuing summons to the petitioner is liable to be quashed.
8. The other set of allegations made against the petitioner pertain to publication of a circular in “RAKNO” Konkani weekly newspaper. Even in this regard, copy of the offending newspaper was not produced before the learned Magistrate. The learned Magistrate has not referred to the contents of the said circular in the impugned order, instead has observed that “Further the accused No. 5 to 7 have published a false and per-se defamatory article under the caption ‘Grace Ministricho Andre Richards’ in the Konkani language weekly newspaper namely ‘RAKNO’ dated 28.06.2012.” The manner in which the learned Magistrate has reproduced the sworn statement of the complainant in this regard would only go to show that the learned Magistrate has not even looked into the alleged offending publication. Even though the complainants did not produce the copy of the circular containing the alleged publication before the learned Magistrate, the petitioner has produced a copy thereof before this Court. I have gone through the same. At the outset, it has to be noted that the said circular was issued by the petitioner in his capacity as the Bishop of Diocese of Mangalore and not as news item as alleged in the complaint. Even this circular does not contain any imputation touching the character or reputation of the complainants, rather, in the said circular, the petitioner has appealed or exhorted the members of his community not to fall a prey to the false teaching of the complainants. Members of the Catholic church were informed under the said circular that the complainants were not authorized by the Bishop of Diocese of Mangaluru to conduct retreats or to preach in the name of the Catholic Church.
9. Seventh Exception to Section 499 Indian Penal Code specifically provides that ‘It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.’ 10. Illustration to the said Exception makes it clear that “A Judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of a department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children; a school-master, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissness in service; a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cashier- are within this exception.”
Further the “Eighth” exception to Section 499 Indian Penal Code in unambiguous terms prescribes that “It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.
Illustration -If A is good faith accuse Z before a Magistrate, if A in good faith complains of the conduct of Z, a servant to Z’s master, if A in good faith complains of the conduct of Z, a child, to Z’s father-A is within this exception.”
11. If the circular referred to by the complainants is perused in the light of the above provision of law, in my opinion, the very substratum of the prosecution launched against the petitioner falls to the ground. Complainants do not dispute the fact that they are also the members of the Diocese of Mangalore, of which the petitioner is the religious head having ecclesiastical authority over men and matter. If so, the circular issued by the petitioner in his capacity as the religious head of the catholic church in good faith censuring the conduct of the complainants conducting unauthorized preaching and disseminating teaching which run counter to the established tenets of the Catholic faith, action of the petitioner clearly fall within the ambit of “Seventh” and “Eight” Exceptions enacted under the Statute, as a result, no case under Section 500 of Indian Penal Code is made out against the petitioner.
12. It is unfortunate that the learned Magistrate has failed to advert his mind to the factual and legal issues involved in the case. The impugned order on the face of it reveals that without even looking into the offending circular and the contents thereof, merely on the basis of the sworn statement of the complainants, the learned Magistrate has proceeded to issue summons to the petitioners. As already noted above, in his sworn statement, the complainant has nowhere stated that the petitioner herein has made any imputation touching his character or reputation. The only statement made in this regard in the sworn statement reads “¢:10.4.2012 gÀAzÀÄ 5£Éà DgÉÆæ C¯ÉÆòAiÀĸï r¸ÉÆÃeÁgÀªÀgÀÄ J¹¦ dUÀ£ÁßxïgÀªÀjUÉ ¸ÀļÀÄî ºÁUÀÆ ªÀiÁ£ÀºÁ¤PÀgÀªÁzÀ MAzÀÄ zÀÆgÀ£ÀÄß ¸À°è¹ £Á£ÀÄ PÉæ ʸÛÀ zsÀªÀÄðzÀªÀjUÉ C£ÁåAiÀÄ ªÀiÁqÀÄwÛgÀĪÀÅzÁV £Á£ÀÄ CzsÁ«ÄðPÀ ªÀåQÛ JAzÀÄ d£ÀgÀ£ÀÄß £ÀA©¹ zsÀªÀÄðzÀ ºÉ¸Àj£À°è CPÀæªÀĪÁV ºÀt UÀ½¸ÀÄwÛzÉÝÃ£É JAzÀÄ ¸ÀļÀÄî zÀÆgÀ£ÀÄß ¤ÃrzÁÝgÉ. CzÉà jÃw zÉêÁ®AiÀÄUÀ½UÉ ¥ÀvÀæUÀ¼À£ÀÄß §gÉzÀÄ £Á£ÀÄ PÉæ ʸÀÛ zÀsªÀÄðzÀ ªÀåQÛAiÀÄ®è JAzÀÄ ºÉý £À£Àß §UÉÎ CªÀºÉüÀ£ÀPÁjAiÀiÁV §gÀºÀUÀ¼À£ÀÄß ¸À°è¹zÁÝgÉ.“ This statement even if accepted on its face value does not satisfy the requirement of Section 499 Indian Penal Code. The sworn statements of the complainants also do not contain any defamatory statement attributable to the petitioner. The publication of the circular by the petitioner by itself cannot amount to defamation without any material to show that the contents thereof contain imputations intending to harm the reputation of the complainants. In the absence of such material, the learned Magistrate has committed serious error in issuing summons to the petitioner. On considering the entire material on record, I am of the clear opinion that the prosecution launched against the petitioner and the summons issued by the learned Magistrate to the petitioner to face charges for the alleged offence under Section 499 punishable under Sections 500, 501 and 502 Indian Penal Code are wholly illegal, baseless and utter abuse of process of Court. As a result, petition deserves to be allowed.
Accordingly, petition is allowed. The impugned order dated 13.09.2012 passed by the III JMFC, Mangaluru taking cognizance of the offences punishable under sections 500, 501 and 502 Indian Penal Code and issuing summons to the petitioner herein and the proceedings in C.C.No.2521/2012 pending on the file of III Addl. JMFC, Mangaluru are hereby quashed insofar as the petitioner is concerned.
Sd/- JUDGE *mn/-