IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.3019 OF 1998. APPLICATION NO.3019 OF 1998. APPLICATION NO.3019 OF 1998. Shri Balasaheb Keshav Thackeray & Ors. ..Applicants. versus The State of Maharashtra & Anr. ..Respondents. .... Mr.B.D.Joshi, for the Applicants. Mr.J.P.Yagnik, APP, for the Respondent-State. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 21ST JULY,2008. : 21ST JULY,2008. : 21ST JULY,2008. ORAL JUDGMENT : 1. The submissions of the learned counsel appearing for the Applicants were heard on the last date. None appeared for the second respondent, though the office remark shows that the second respondent is duly served. Today, when the Application is called out, none appears for the second respondent. 2. The Applicants have invoked the provisions of section 482 of the Code of Criminal Procedure, 1973 for challenging the order issuing process passed on a private complaint filed by the second respondent. - 2 - 3. It must be stated here that in normal course, this Court would have relegated the Applicants to the remedy under section 397 of the Code of Criminal Procedure, 1973 in the light of a decision of this Court dated 21st June 2005 in the case of V.K. Jain and Others V/s. Pratap Padode and Another. However, I find from the record that on 30th October 1998, this Court issued rule and entertained the Application by granting interim relief. In any case, jurisdiction of this Court under section 482 of the said Code is not affected by the availability of a remedy under section 397 of the said Code. Now it will be unjust to the parties to relegate them to another remedy after lapse of nearly 10 years. 4. The second Respondent filed a private complaint against the Applicants alleging the commission of offence under section 499 of the Indian Penal Code, which is punishable under section 500 of the said Penal Code. The allegation of defamation is based on a report appearing in daily newspaper by the name, "Dophar ka Samna". The news item was published - 3 - in the said daily newspaper on 3rd April 1996. 5. The news item recited that there are incidents where un-educated representatives elected by the people on the reserved seats are mislead by taking undue advantage of their position. In the news item, it is stated that one Shri Dadasaheb Kamble, the President of Ambernath Municipal Council has lodged a complaint with the Court as well as with the Hon’ble Minister that the second Respondent who is an Advocate has taken undue advantage of the fact that the said Shri Kamble is not educated. It is stated in the news item that the second Respondent who was the Legal Adviser of the Municipal Council obtained an affidavit from the said Shri Dadasaheb Kamble for filing the same in the Court. It is alleged that the contents of the said affidavit were against the interests of the Ambernath Municipal Council. The said affidavit was filed in a legal proceedings pending in the Ulhasnagar Court. It is stated that after realising what was stated in the said affidavit, the said Shri Dadasaheb Kamble filed another affidavit before the Court and he has filed a - 4 - complaint against the second respondent regarding breach of trust. In the complaint, the said Shri Dadasaheb Kamble has stated that the second respondent called him in his office on 14th February 1996 and obtained signature on a paper. According to Shri Kamble, he signed a writing which was typed in English language and he signed the same in good faith as he trusted the second respondent. It is stated that Shri Kamble has no knowledge of English language. The newspaper report records that Shri Kamble stated that after noticing the action on the part of the second respondent, he filed an application before the concerned Court for cancelling the earlier affidavit and for taking a new affidavit on record. 6. In the private complaint filed by the second respondent, the first applicant has been arraigned as an accused in his capacity as the Editor of the newspaper. The second applicant has been arraigned as an accused in his capacity as the Printer and Publisher of the said newspaper. The third applicant has been arraigned as an accused in his capacity as - 5 - the Managing Director of the said newspaper. The fourth applicant has been arraigned as an accused in his capacity as a Reporter who is the Author of the said newspaper report. It is alleged that the applicants who have calculated, pre-planned and pre-determined common intention of defamating and ruining the second respondent, published the offending article in the newspaper. It is alleged that what is stated in the article is false and baseless and the said news item has been published in furtherance of deliberate and malafide common intention of defaming the second respondent and for ruining him forever. On 17th August 1996, the learned Magistrate issued process against the applicants for the offence punishable under section 500 read with section 34 of the Indian Penal Code. 7. The learned Counsel appearing for the applicants submitted that the said report in the newspaper is a fair and accurate report of all the allegations made by the said Dadasaheb Kamble against the second respondent by filing an application and/ or an affidavit in the Court at Ulhasnagar. He - 6 - submitted that apart from the fact that it is a substantially true report of the proceeding of the Application made by Shri Kamble to the Court, the intention of publishing the said newspaper report was to serve the public good. He pointed out that in substance, the newspaper item is a report of the pending case in which the affidavit of Shri Kamble has been filed and therefore, the case is governed by the fourth exception to section 499 of the Penal Code. 8. I have carefully considered the submissions. I have perused the newspaper report dated 15th April 1996 as well as assertions made in the complaint filed by the second respondent. The newspaper report refers to an affidavit of one Dadasaheb Kamble, the then President of Ambernath Municipal Council in M.A. No.3/96 which was pending in the Court of the Civil Judge, Junior Division and the Judicial Magistrate First Class at Ulhasnagar. In the said Application, the said Ambernath Municipal council was the Opponent. What is stated in the newspaper report is that the said Shri Kamble has filed another affidavit - 7 - in the Court as well as an application in the Court for cancellation of his earlier affidavit and for taking new affidavit on record. The newspaper report mentions that Shri Kamble has pointed out that the earlier affidavit was got signed by the second respondent by taking undue advantage of his lack of knowledge of English language. The second paragraph of the newspaper items refers the first affidavit of Shri Kamble filed in the judicial proceedings. The third paragraph refers to action of filing second affidavit by said Shri Kamble and an allegation that the second Respondent obtained signature of Shri Kamble by committing breach of the trust reposed by him in the second Respondent. The forth paragraph refers to what is stated by Shri Kamble in his complaint and the last paragraph of the newspaper report contains a reference to contents of the application made by Shri Kamble before the Ulhasnagar Court. The first paragraph is a general comment which states that the case of Shri Kamble is another example as to how undue advantage is taken of un-educated elected representative who are elected against reserved posts. - 8 - 9. Thus, in substance, the report incorporates what is stated in the affidavit filed by Shri Kamble before the Ulhasnagar Court in the pending proceedings and what is stated by him in the application filed before the Court. The newspaper report makes a general observation that undue advantage is being taken of illiteracy of some of the elected representatives. 10. Thus, in so far as allegations appearing in the news item against the second Respondent are concerned, the case will be governed by the fourth exception to section 499 of the Code of Criminal Procedure, 1973. The first part of news item conveys a caution for public good. In the circumstances, on plain reading of the complaint filed by the second Respondent and what is stated in the news item, it is impossible to come to a conclusion that a prima-facie case of commission of offence under section 499 of the Penal Code is made out. Thus, a case is made out for exercising the power under section 482 of the Code of Criminal Procedure, 1973 for quashing the proceedings. - 9 - 11. Accordingly, the rule is made absolute in terms of prayer clause (A). 12. It must be clarified that the observations in this judgment are only for the purpose of considering prayer made for quashing the complaint and the said observations shall not be construed as any findings on correctness of allegations made in the newspaper item. [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]