- 1 - apl717.11 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.717 OF 2011 1.The Archdiocese of Bombay 2.Oswald Cardinal Gracias 3.The Examiner,Mumbai-1 4.Fr.Domnic Savio Fernandes @ Savio Fernandes 5.Fr.Anthony Charanghat .. Applicants vs 1.Mr.Arcanjo Mario Sodder 2.The State of Maharashtra ..Respondents Mr.Joaquim Reis,Sr.Counsel a/w Mr.Prakash Naik and Mr.Ganesh Bhujbal a/w Mr.Sandeep Kekane for Applicants Mr.Arcanjo Mario Sodder Respt no.1 in person Mr.A.S.Shitole APP for State CORAM: K.U.CHANDIWAL, J DATE: 21st September,2011 P.C. 1. Heard finally. 2. The Applicants seek quashment of proceedings including issuance of process dated 5.7.2011 in C.C.No.679/SS/2010 and - 2 - apl717.11 also notice in the said proceedings dated 19.1.2011 purported to be under section 182 of IPC being notice No.30/Misc/2011 by the same Court. 3. A very sorry state of affairs is projected in the present proceedings. The Applicants are prosecuted for offence under sections 499, 500 read with section 34 IPC; by none other than the person (Respondent) from same community and fraternity. Applicant no.1 is Archdiocese (Territory in- charge). Applicant No.2-Oswald is Cardinal and Archbishop. Applicant No.3 is a weekly newspaper. Applicant No.4 is Father Domnic Savio. Applicant No.5 is Father Anthony Charanghat. He is the Editor of the newspaper " The Examiner". 4. A news item was published in Midday dated 6.10.2011. Relevant portion thereof - 3 - apl717.11 which the Applicants felt objectionable reads as under : The sale of church land at Marinagar, Mahim raised a big storm in the community. Only after we took out a morcha to the Archbishop's House recently that they finally admitted that our land was sold. Now I am going to purchase even the least known regional newspapers and be on my guard for such sneaky advertisements. Or else, we will never get to know what will get sold next said advocate Sodder, who is also secretary of Our Lady of Vailankanni & Perpetual Succour (OLVPS) Co-operative Housing Society at Marinagar,Mahim. 5. The Applicants felt,news itemreferred above was correct position and consequently a clarification was sent to the said newspaper Midday. However it did not publish. Identical clarification with same text was also sent to the newspaper "The Examiner" which published it in its issue dated 16.10.2010. The said clarification was felt by the Respondent (Original Complainant) to be derogatory and defamatory. Consequently, he asked for - 4 - apl717.11 apology by his letter dated 10.10.2010. Pursuant to such letter, the newspaper (The Examiner) published a letter of clarification on 30.10.2010 informed: The clarification from Accused no.4 in short to state that there was no intent to either defame or malign Advocate Sodder or his professional status. In case said impression has been created by the said statement, we are sorry and we regret the same. 6. In the same clarification, the newspaper also tendered apologies for the misunderstanding that has been caused to Advocate Sodder (Original Complainant). The clarification in the said newspaper did not yield fruitful results for the Complainant and consequently, he filed the subject prosecution being C.C.No.679/SS/2010 and as stated above, process was issued which has been questioned including notice in terms of section 182 of Indian penal code. - 5 - apl717.11 7. An Agreement in respect of church property was entered into on 31.5.1991 (page 43 of the Compilation) with the complainant which inter alia indicated that subject to sanction by the Charity Commissioner,the conveyance would be executed. It is a matter of record that even after the said Agreement there is no conveyance as yet executed in favour of the Complainant. The Complainant feels though the conveyance was expected in the year 2004, the Applicants have arrogated to resale garden area in 2008 illegally, which has been questioned by the Complainant. 8. The news item by way of clarification dated 16.10.2010 (which the complainant feels is defamatory) is reproduced as a whole: - 6 - apl717.11 This statement by advocate Arcanjo M.Sodder that the Marinagar property has been sold, is false and misleading. Perhaps he has been misquoted, or he is not in possession of the facts, or there could be a malicious intent or vested interest. The truth is that in the year 1991, an agreement was entered into with Suraj Estate Developers, by the Trustee of St.Michael's Church Trust, to develop the Marinagar property, after following procedures and obtaining the required permissions from the authorities concerned. The land still belongs to St.Michael's Church Trust- this is a verifiable fact. Hence, there never was a question of admitting to Mr.Sodder or to anyone else for that matter that the land was sold. Besides, the land does not belong to Marinagar residents for them to say that it is their land. It belongs to the Church Trust. In Marinagar, the purchasers of flats have executed individual agreements with the Developer. In case either of them has any grievance against the other, it is for them to sort it out as per the terms of the agreement. 9. The Complainant feels that first part of clarification and more particularly....or there could be malicious interest or vested interest is defamatory as the said - 7 - apl717.11 newspaper is circulated in the community and has sent bad message about the reputation of the Complainant as to his work in society, and even as an Advocate. He feels, it would cause damage to him as an Advocate. 10. With all said and done, the said clarification need not be read in isolation dissecting the particular line or portion. The clarification as reproduced herein above gives a clear message of the Applicants desired to convey to readers. It remotely suggest that they had design in their mind to mount a blistering attack on the conduct or character of the Complainant. Applicants had put forth the facts which germinated from the documents between the parties. The ego periphery between the parties has naturally dominated the truthfulness and inflated and distorted facts are highlighted by complainant to be causing defamation to - 8 - apl717.11 him. 11. In the correspondence and in the Complaint also the Complainant (Respondent) in unequivocal terms accept that there exist an Agreement of 1991 and waiting for conveyance. It is informed during submission that a suit for specific performance is filed by the Complainant against the Applicants. Thus, naturally it would indicate, title is not as yet divested in favour of the Complainant. This was clarified by the Applicants as stated above. Reading from any angle would not be treated to be contaminated characteristics to malign the reputation which the Complainant held in society. 12. Another feature of the matter is, Complainant should have been satisfied as regrets are expressed by the Newspaper and - 9 - apl717.11 by the Applicants in the very newspaper which published the alleged defamatory news item. 13. The Complainant in order to stress his points has placed reliance to the judgment in the matter of ADVOCATE AIRES RODRIGUES VS SHRI SUBODH KANTAK,2010 All MR (Cri) 1848, MR.YADAV MOTIRAM PATIL VS. MR.RAJIV G.GHODANKAR @ CHANDANKAR 2010 All MR (Cri) 2473, M.A.RUMUGAM VS KITTU @ KRISHNAMOORTHY (2009) 1 SCC 101, (JEFFREY VS STATE OF WEST BENGAL 2010 ALL MR (Cri) 2343 (Supreme Court). 14. The cumulative effect of all the above judgments cannot be put into any controversy as they relate and lean to inform of taking benefit of exceptions as carved out in section 499 of Indian penal code. To repeat, present case does not proceed to - 10 - apl717.11 demonstrate and manifest such stand by the Applicants. Consequently, the law laid down by the Supreme Court in aforesaid judgment will remotely be applicable to the facts. 15. The Complainant (Respondent) canvassed that this Court by exercising powers under section 482 Cr.P C. in the light of aforesaid judgments of the Supreme Court need not set aside the orders of process or contemplated action by the Complainant in terms of section 182 of the penal code. For this submission, the Complainant(Respondent) again reiterated to the Judgment of the Supreme Court in JEFREY's case supra referred to herein above. 16. The legal position is quite clearly informed by Hon'ble Supreme Court in the matter of STATE OF HARYANA VS vs BHAJANLAL AIR 1994 SUPREME COURT 604, in the matter of - 11 - apl717.11 MOHAN GOSWAMI VS STATE 2008 SUPREME COURT CASES AND IN THE MATTER OF PEPSI FOOD LTD & ANR VS.SPECIAL JUDICIAL MAGISTRATE & ORS AIR 1998 SUPREME COURT 128. 17. In the light of legal position, explained therein and also as referred in the matter of D.K.KAPUR VS STATE AIR 1960 SUPREME COURT 866 Court's power in terms of section 482 Cr.P.C. are not restricted. The three situations are as under: (i) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceedings in respect of the offence alleged. Absence of the requisite sanction may, for instance furnish cases under this category. (ii) Where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the - 12 - apl717.11 offence alleged is disclosed or not. (iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S.561- A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. 18. Revisiting the facts of the present case, I find that the clarification extended in 'The Examiner' dated 16.10.2010 does not demonstrate any falsehood or any deliberate intention to tarnish or trample either the rights of the Complainant or the position he - 13 - apl717.11 holds in society. The explanation no where imputes any attributes of his conduct or defaming him with design. The information in newspaper dated 16.10.2010 was a clarification in tune to the documents and did not propagate intentional imputations to lower Complainant's image any where. The complaint does not address any information to warrant pre-requisite for process under section 499 or 500 IPC read with 34 IPC. The order dated 18.12.2010 does not stand to legal conformity. Consequently, proceedings question herein are quashed and set aside including notice in terms of case under section 182 of IPC. K.U.Chandiwal,J