TMI Blog1978 (9) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... thus defeated the petitioner by a margin of 20,000 votes. Aggrieved by the election results, the petitioner filed an election petition in the High Court alleging that the appellant had committed various corrupt practice falling within the ambit of sections 123(3), (3A) and (4) of the Act. It was mainly alleged that before the elections, the appellant was the Chief Editor of a Malayalam daily paper called Chandrika which was the official organ of the Muslim League. It is further alleged by the petitioner that the appellant held shares worth ₹ 3 lakhs in the Printing and Publishing Company which published Chandrika. This paper, according to the petitioner, contains several articles, extracts of speeches and cartoons which tended to ask the Muslims to vote for the appellant on religious and communal grounds and also promoted ill-will and hatred between two classes of citizens, namely, the Janasangh and the Muslim League. It appears, however, that at the hearing the petitioner confined is case only to the corrupt practices alleged by him under section 123(3A) of the Act In this connection, the learned Judge of the High Court observed as follows:- Though in the petition sub-se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the words used by him in the speech were used purely in a figurative sense. When the appeal was heard before us counsel for the parties agreed that the only items of evidence which could be relied upon against the appellant were (1) his speech Ex. P.1(a), (2) Cartoon Ex.P.5 and (3) other offending speeches and articles which were published in the paper of which he was the Chief Editor. It was conceded by Dr. Chitale, counsel for the petitioner that if he was not able to prove that the appellant was really the Editor of the paper then the presumption under section 7 of the Press and Registration of Books Act 1867 (hereinafter called the Press Act) would not apply and the case of the petitioner would stand or fall on Ex.P.1(a) and Exhibit P.5. It is also not disputed that although the High Court has relied on a number of articles and extract of speeches published in the various issues of Chandrika yet none of these have been proved according to law by examining the writer or the reporter or producing the original script or the paper. If, therefore. the petitioner fails to establish that the appellant was virtually the Editor of Chandrika or at any rate performed the duties of the ed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consent and knowledge of the appellant. Thus, in other cases, consent and knowledge were not expressly pleaded by the petitioner, who sought to rely only on the presumptions to be drawn under section 7 of the Press Act. We shall first take up, therefore, the question whether The petitioner can avail of the presumption to be drawn under section 7 of the Press Act. The High Court has found that in the circumstances of the case, section 7 of the press Act fully applies to the facts of the present case. We are however for the reasons that we shall give hereafter unable to agree with the view taken by the High Court. Before dealing with the various provisions of the Press Act, it may be necessary to divide this question into two parts: (t) the legal aspect and (2) the factual aspect. The legal aspect concerns the effect of the various provisions of the Press Act and the extent of their applicability to the appellant. The actual aspect would take within its fold the duties and responsibilities performed by the appellant as the Chief Editor. We will first take up the legal aspect. The Preamble to the Press Act runs thus:- Whereas it is expedient to provide for the regulation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of the owner. and the editor printed clearly, so that there is no con fusion in the minds of the people on this account. Sub-section (2) of section 5 of the Press Act makes it incumbent on the printer and the publisher to appear before the authorities mentioned in that section and make a declaration. Sub-rule (2) of rule 8 of the Rules made under the Press Act runs thus: Every copy of every newspaper shall have printed legibly on it the names of the printer, publisher, owner . and editor and the place of its printing and publication in the following form: Printed by .. ..and published by .... on behalf of ..... .(name of owner) ..... and printed at .... (place of printing) ... and published at .. (place of publication...... Editor ........ This rule enjoins that the name of the printer, publisher, owner and editor must be clearly indicated. The note to this rule is extracted thus:- Note: This form may be modified to suit the circumstances of each paper, for example, where The printer, publisher and owner are the same the imprint line can be Printed, published and owned by .. The editor s name, however, should be given separately in every case . This requires ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was shown as the editor but no such thing has been done. One the other hand, P.W. 2 Aboobaker tacitly and clearly admits that he is the editor of the paper. 3. That the petitioner has not at all pleaded in his petition the nature of the duties performed or responsibilities shouldered by the appellant as Chief Editor. There is no averment at all in the petition that the appellant controls the selection of matter that is published in the newspaper which alone would make him an editor as defined in section 1 (1) of the Press Act. The word Chief Editor is clearly absent from the Press Act and in fact foreign to it because the Press Act has selected only one person who has a special status and that is the editor who can be sued, if necessary, or can sue and against whom alone a presumption under section 7 of the Press Act can be drawn. While holding that the presumption under section 7 of the Press Act is available to the petitioner, the High Court has completely over looked the aforesaid aspects mentioned by us. The law on the subject is absolutely clear and there are a number of decisions of this Court which have interpreted the relevant sections of the Press Act. In the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is the editor of every portion of that issue. The presumption must be re butted by evidence .... The presumption under section 7 of the Press and Registration of Books Act undoubtedly arises, but in a charge under section 123(4) of the Representation of the People Act the presumption under section 7 of the Press and Registration of Books Act, 1867 would come with greater or less force, according to the circumstances to the aid of a person claiming that the editor was responsible for the publication and that the publication was to the knowledge of editor . Granting that there was close association between Mishra and Shukla and even granting that Mahakoshal was exclusively carrying on propaganda on behalf of Mishra, unless there is evidence to prove that Shukla had either authorised the publication of the offending matter, or had undertaken to be responsible for all the publications made in the Mahakoshal, no inference that the offending publications were made to the knowledge and with the, consent of Shukla may be raised . The statement filed by Shukla is not inconsistent with the case set up by him in this proceeding. Responsibility for publication was accepted by him bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Biju Patnaik was not his agent. It is unnecessary to consider the question whether the editorial and the news report as well as the speech of Biju Patnaik did in fact constitute corrupt practice under sub section (3) of section 123 of the Act . As against this Dr. Chitale, counsel appearing for the petitioner submitted two points before us. In the first place, he argued that the provisions of rule 8 thereof have not at all been complied with, and, therefore, the appellant cannot escape his liability even though he was the Chief Editor. It was argued that the note to rule 8 as also the form mentioned in rule 8 sub-rule (2) clearly provide that the editor s name must be separately shown in every paper and in the instant case the issue of the paper Chandrika shows in a composite form that the editor, printer and publisher of the paper was P.W. 2 Aboobaker. It was thus contended that the provisions of rule 8(2) have not been complied with because the name of the editor has not been separately shown. In these circumstances, it was argued that as the name of the Chief Editor was separately shown he must be taken lo be the editor of the paper under the provisions of the Press Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficially and factually the editor of the paper and yet there is no positive denial of this fact in the petition; (3) no particulars of the functions, duties and powers of the appellant as Chief Editor have been pleaded. On the other hand, it has been pleaded that the appellant held shares worth ₹ 3 lakhs in the company but that will not attract the provisions of the Press Act at all; and (4) as Aboobaker was admittedly the editor of the paper Chandrika as clearly admitted by the petitioner himself in his evidence, the onus was clearly on the petitioners to allege and prove that the duties of the editor were actually performed not by P.W. 2 Aboobaker but by the appellant. In this background we would now discuss the evidence of the parties on this point. P.W. 1 Thangal (Petitioner) categorically states thus:- V. C. Aboobaker is the editor and printer of Chandrika . He further admits that Aboobaker s responsibility is to submit the reports and the speeches supplied by the appellant. He also admitted that Aboobaker does the editing. The witness no doubt says that he had seen the appellant in the Chandrika office twice but that by itself would not show that the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Chandrika has no regular Board called the Editorial Board. He further admits that as an editor he knows what his responsibilities are. The witness further admits in clearest possible terms that the authority to change the policies from time to time is vested in him. His statement may be extracted thus:- The authority to change policy from time to time is vested in him. He further states that the reports or the news are published only after he is satisfied about the truthfulness of the report concerned. This shows clearly that P.W. 2 was both de jure and de facto an editor inasmuch as the control of the policy was vested in him. He was performing the duties and shouldering the responsibilities of the editor and the reports were published under his authority. Reliance was however placed by counsel for the petitioner on the statement of the witness P.W. 2 which runs thus:- In the Chandrika Office, Chief Editor has got a special room .... He is interested in the maintenance of the standards of Chandrika as a newspaper .... He knows the policy of the paper. If anything appears against the declared policy of the paper he has got the authority to give necessary dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he witness examined by the petitioner has knocked the bottom out of the case of the petitioner that the appellant had anything to do with the duties and functions of an editor, and the question put to the witness which is denied by him clearly shows that the appellant has demonstrably disproved that he could be an editor of the paper as defined in section 1 of the Press Act. Further this witness has also admitted that at the time of election because of the appellant s being the Secretary of the Muslim League and leader of the United Front he was mostly on tour. This admission goes to show that the appellant was too busy to be ascribed knowledge of the articles or speeches published in Chandrika. P.W. 3 C. K. Hassan who is a worker of the petitioner merely says that the appellant Haji C. H. Mohd. Koya was the Chief Editor and it was mentioned in the Chandrika paper that the Chief Editor would give speeches. The witness further says that since it was printed in the Chandrika paper it was understood that the appellant was the Chief Editor. This takes us nowhere because the witness does not throw any light on the duties performed by the Chief Editor and also does not say who was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Editor has a value of its own that was why the name was inserted. (Ans.) He is also a leader of the community as well as a journalist. He is an M.P. So his name was inserted . The witness stoutly denied the suggestion put to him that there was an impression among the public that Chandrika and everything about it constitutes the responsibility of the appellant. The witness says that from 1967 to 1974 the appellant was in Chandrika but there is no such impression in the public. The appellant is a shale-holder having invested ₹ 400 whereas ₹ 3 lakhs has been invested in the name of the Muslim League. Another important suggestion which is denied by the witness was an answer to the following question: Will you work out the policy of the paper on your own accord without the knowledge of C.H. ? the witness answer is as follows: I do things now, after consulting P.W. 2. Till now I have not asked C.H. It is, therefore, clear that even in matters of policy the witness who was in charge of the administration of the paper would not consult the appellant but only P.W. 2 who was admittedly the editor of the paper. In other words, it is clear that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do that it would he necessary to analyze the pleading of the appellant. In para 4 of the counter-affidavit which is really a substitute tor the written statement the appellant avers as follows:- The actual functions of the editor are being looked after by Sri V. C. Aboobaker who is the editor, printer and publisher of the Chandrika. This respondent has very little time to perform the functions of the Chief Editor as he is pre-occupied with other important activities on account of his membership of Parliament and his being the Secretary of the Indian Muslim League, both all-India and State The actual editing and publishing were entirely looked after by Sri V. C. Aboobaker . In the evidence given by the appellant as his own witness what he has stated in his counter-affidavit is fully proved and further supported by the evidence of P.s.. 1 to 5 as discussed above. At any rate the appellant himself has made the entire position clear in his evidence which is fully corroborated by the witnesses of the petitioner examined by him. On a specific question put to him as to whether he worked as Chief Editor during those days, the witness has categorically denied the same. The witn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioner laid very great stress on Ex. P. 2 a letter signed by the appellant to show that he was doing the editorial work. This letter was sent to one of the correspondents of the paper Chandrika and the appellant has explained in his statement that in the absence of the editor P.W. 2 the Manager requested the appellant to sign the letter and so he signed it This was just an act of official accommodation which was totally unconnected with the duties performed by the appellant. After all the appellant was a high officer in the said organisation and if the letter had to be sent to one of the correspondents and was a little urgent instead of waiting for the editor to come there could be no harm if the Manager asked the appellant as Chief Editor to sign it. Such a casual act on the part of the appellant done, not voluntarily, but at the request of the Manager cannot clothe him with the legal status of an editor. Thus, this fact alone would not show that he was performing any editorial functions. The witness further states that the Chandrika has no editorial Board but there is an editorial group consisting of Editor, Sub-Editor and others. This is the relevant part of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Press Act could be drawn only if the person concerned was an editor within the meaning of section l of the Press Act. Where however a person does not fulfil the conditions of section 1 of the Press Act an(l does not perform the functions of an editor whatever may be his description or designation the provisions of the Press Act would have no application. In these circumstances, therefore, the High Court had no legal justification to draw a presumption against the appellant under section 7 of the Press Act in holding that he was proved to be the editor of Chandrika and! therefore, must be deemed to be aware of the articles published in the said paper. Even if, for the sake of argument, it is assumed that the appellant was the editor it has been pointed out by this Court that the presumption to be drawn under section 7 of the Press Act is rebuttable and the evidence and the circumstances of this case discussed above show that this presumption has been sufficiently rebutted. The next question that arises for consideration is that if the finding of the High Court on this point is rejected as it must be then can the petitioner be liable for the materials or speeches published in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the election petitioner in order to succeed must plead all material particulars and prove them by clear and cogent evidence. The allegations of corrupt practice being in the nature of a quasi criminal charge the same must be proved beyond any shadow of doubt . In the case of Ramanbhai Nagjibhai Patel v. Jaswantsingh Udesingh Dabhi ors.( A. 1. R. 1968 SC 1162) this Court observed as follows:- We may state that the charge of bribery is in the nature of a criminal charge and has got to be proved beyond doubt. The standard of proof required is that of proving a criminal or a quasi-criminal charge. A clearcut evidence, wholly ! credible and reliable is required to prove the charge beyond doubt. Evidence merely probabilising and endeavouring to prove the fact on the basis of preponderance of probability is not sufficient to establish such a charge . In the light of these decisions we shall now proceed to decide the next question. In view of our finding that the appellant has not been proved to be the editor of the paper Chandrika Ext. P. 2 to P. 11 excepting Ext. P. 5 will have to be totally excluded from consideration because those are speeches and articles of variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all within the mischief of section 123(3A) of the Act. Some reliance was however placed on Ex. P. l(d) which is said to have been written by the appellant. This document cannot be taken into consideration for two reasons. In the first place, this was undoubtedly a material particular if it was an article actually written by the appellant and contained offending matter, and, therefore, it was necessary that it should find place in the petition before being considered by the Court. Secondly, it has not been proved to have been written by the appellant at all. This document is in the nature of an editorial written on 1-3-1977. The appellant has already denied that he had anything to do with the editorial work and was too busy with the election work as an M.P. and had no time to devote to these things. The learned Judge of the High Court has wrongly mentioned in his judgment at page 28 of the paper book Vol. l that the petitioner had made out a case that Ext. P. 1 (d) was written by the appellant. There is no such averment in the petition at all and the High Court has committed a clear error of record. Thirdly, the appellant stated that he could not say after such length of time that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned the name of a single person who had actually heard the speech and made a report. 2. According to the evidence of P.W. 1 he was present at the place where the speech was delivered by the appellant and yet this fact, though a very material particular, does not find mention in the averment in the petition referred to above. 3. It is not indicated in the petition as to how and in what manner the speech tended to promote feelings of enmity or hatred between two classes of citizens. Even the classes of citizens against whom hatred was preached by the speaker has not been mentioned. From the infirmities mentioned above, it is clear that so far as the speech is concerned the allegations made in the petition are vague. Assuming however that para S may amount to an allegation as contemplated by section 123(3A) of the Act, we shall proceed now to determine how far the petitioner has been able to prove his case within the fourcorners of the aforesaid section. No evidence was produced by the petitioner to prove whether the extract of the speech was correct and was a reproduction of the very words used by the appellant. Although the witnesses for the petitioner admitted that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d fail or succeed on the admission of the appellant and the admission will have to be read in the light of what the appellant has himself stated in his statement unless there are other A satisfactory reasons for taking a contrary view. To begin with the offending words of the extract may be quoted thus:- C.H. declared emphatically that the assassins who dissected the community are now canvassing votes for the United Front of Janasangh and R.S.S. who were thirsting for Muslim blood. He loudly declared that the community should rest only after completely flooring this front in the ring of the elections. C.H. exhorted the gathering to cut down the fascist scarecros to the extent that they cannot rise again . Out of the entire speech this is the only portion against which offence has been taken as falling within the mischief of section 123 (3A) of the Act. It was suggested by counsel for the petitioner that the words used by the speaker clearly indicate that the party of the United Front of Jana Sangh and R.S.S. was after Muslim blood and the Muslim community should not rest unless this party is obliterated from the election. Strong exception has been taken by counsel for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Furthermore, the extract of the speech quoted above also shows that there does not appear to be any intention on the part of the speaker to preach hatred or enmity between two classes of citizens, namely, Janasangh, RSS and the Muslim League. We might mention that a good deal of argument was advanced before us by counsel for the appellant as to the nature, character and significance of the term citizen and it was contended that political parties having a particular ideology could not be treated as a class of citizens as contemplated by section 123(3A) of the Act. In the view which we have taken it is not necessary for us to examine this question. We shall assume for the sake of argument that Janasangh, R.S.S. and the Muslim League were different classes of citizens, but even then that does not advance the case of the petitioner any farther. We feel ourselves in complete agreement with the interpretation given by the appellant regarding the speech made by him. In the first place, being the speaker the appellant was the best person to say what he meant by the speech he delivered. Secondly, the petitioner has not produced either the reporter who was present at the meeting when the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o him contains the correct reproduction of the speech of the appellant. In this connection, the witness state as follows:- I read the Mathrubhumi also. Mathrubhumi dated 1-3-1977 shown to witness. Is not the news item under the heading the United Front will return to power on page 3 in this about the same news P. l(a) meeting (Q). A copy of paper shown to witness. The witness reads the passage. The report about the meeting may be correct. Does it give an exact report of the speech of the respondent on that day (Q) Yes (A). This extract in the Mathrubhumi is Ex. R-l and runs thus:- C.H. Mohammed Koya expressed the opinion that the fate of those who condemned and denigrated the leaders of the community and those who stabbed the organisation from behind the back will be known by the next election . A perusal of this extract would clearly show that the appellant never preached any hatred or enmity between two classes of citizens, but had merely condemned the dissident leaders of the community who had stabbed the organisation, namely, the Muslim League in the back and who were seriously condemned for their defection. Had the speech been understood by the public and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is well-known to eat pork is pardial ansthma (haram) for true Muslims The publication of this cartoon in Chandrika is with the consent and knowledge of the respondent which promoted hatred of the Muslims against the United Front of Marxist Party and Janata Party and Muslim League (opposition) of which the petitioner is a candidate from the concerned constituency . It may be pertinent to note that in this averment the petitioner has pleaded that the cartoon was published with the consent and knowledge of the petitioner-a fact which the petitioner has miserabIy failed to prove. There is absolutely no evidence on record to show that the cartoon was shown to the appellant and his approval was obtained before it was published, nor is there any evidence to show that the appellant had any knowledge direct or indirect about the cartoon before its publication in Chandrika. We might indicate here that the term consent is a much stronger word than knowledge because it implies conscious assent and there is nothing to show that the appellant at any time gave his consent to the publication of the cartoon. The actual cartoon seems to depict Janasangh as a pig and Shri E. M. S. Namboodiripa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -occupation the appellant may not have read or seen the paper at all. In such a situation, the onus of proof being on the petitioner to prove that the appellant had knowledge of the publication of the cartoon, and applying the standard of proof by the doctrine B of benefit of doubt, the allegation of the petitioner that the appellant was aware of the cartoon or gave his consent to its publication stands disproved for the appellant will get the benefit of doubt if two clear possibilities are available. Thus, it is impossible for us to jump to the conclusion that the appellant had any knowledge of the publication of the cartoon before its publication, or that he gave his consent C to its publication merely from the fact that the appellant was the Chief Editor and received a copy of Chandrika every-day particularly hen the appellant has explained that he was too busy and did not find time to read the paper fully. As the allegation regarding the cartoon is also a corrupt practice it has to be proved by clear and cogent evidence which is wholly wanting in this case. It is true that the appellant was shown the cartoon while he was deposing in court and was asked to give his impression bu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
