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PETITIONER: AHAJI C. H. MOHAMMAD KOYA

       Vs.

RESPONDENT: T. K. S. M. A. MUTHUKOYA

DATE OF JUDGMENT12/09/1978

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA SHINGAL, P.N.

CITATION:  1979 AIR  154            1979 SCR  (1) 664  1979 SCC  (2)   8  CITATOR INFO :  R          1984 SC 621  (11)  R          1985 SC  89  (20)  R          1992 SC2206  (9)

ACT:      Representation of  People Act  1951-Sec.  123(3)  (3A)- Publication of  material promoting  hatred between citizens- Seeking votes  on religious and communal grounds Standard of proof-Beyond   reasonable    doubt   of   preponderance   of probabilities-What constitutes- How to be proved.      Press and  Registration  of  Books  Act  1867  Sec.  7- Presumption-Meaning of Editor-Object of the Act.

HEADNOTE:      In the  General Election to the Legislative Assembly of Kerala in  March 1977  the petitioner and the appellant were the contesting  candidates from Malappuram constituency. The Appellant was  declared  elected  by  polling  56,276  votes defeating the  petitioner  who  secured  39,362  votes.  The petitioner filed  an election  petition  alleging  that  the appellant had  committed various  corrupt practices  falling within the  ambit of  section 123(3),(3A)  and  (4)  of  the Representation of  People Act  1951. The main allegation was that the  appellant was  the Chief Editor of Malayalam daily paper called ’Chandrika’ which was the official organ of the Muslim  League   According  to   the  petitioner  the  paper contained articles,  extracts of speeches and cartoons which tended to  ask the  muslims to  vote for  the  appellant  on religious and communal grounds and also promted ill-will and hatred  between   two  classes   of  citizens,  namely,  the Janasangh  and  the  Muslim  League.  At  the  hearing,  the petitioner confined  his case  only to the corrupt practices alleged by  him under  section  123(3A).  The  petition  was contested by  the appellant.  He took the stand that he made no speech which offended section 123(3A) of the Act, nor was he aware  of any  of  the  offending  articles  or  cartoons published in Chandrika prior to the election. He denied that he was  an editor  of Chandrika and admitted that he was the Chief Editor and. that too. Only in name., He denied that he had to  do any thing with the editorial work of Chandrika or the publication  of the  speeches. The  High Court held that the petition  was maintainable. According to the High Court,

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the appellant  was really  the editor  of the  paper and the presumption under section 7 of the Press and Registration of Books Act 1867 would apply.      Allowing the appeal the Court, ^      HELD: The  object of  the  Press  Act  is  to  regulate printing presses  and newspapers in order to preserve copies of newspapers  and books.  In order to avoid multiplicity of suits and  uncertainties of  liabilities, it  was considered necessary to  choose one  of the  persons from the staff and make him  liable for  all the  articles  or  matters  to  be published in  the paper so that any person aggrieved may sue only the  person so  named under the provisions of Press Act and a  litigant is  relieved from  the necessity of making a fishing or  roving enquiry. Under section 1 ( 1 ) the Editor is defined  to mean the person who controls the selection of the matter  that is  to be published in a newspaper. Section 5(1) requires  that every  copy  of  every  newspaper  shall contain the  names of  the owner and editor, printed clearly on such copies and also the 665      date of the publication. Section 8A provides that where any  person’s  name  A  has  appeared  as  an  editor  in  a newspaper, although  he was  not an editor, he shall, within two weeks  of his  becoming aware  that his name has been so published, appear before a magistrate and make a declaration that he has been incorrectly published. In the present case, the following are the           1.   That the  issues of  Chandrika  shown  to  us      clearly and  unmistakably mention the name of Aboobaker      as the  printer, publisher  and editor of Chandrika and      does. not  mention  the  appellant  as  the  Editor  of      Chandrika. The  appellant is  merely shown as the Chief      Editor but  this is  an officer  which is  not  at  all      contemplated by the Press Act.           2.   That if  the appellant  was really the editor      of the  paper then  P.W.  2  Aboobaker  ought  to  have      resorted to  section 8(A) to correct the mistake in the      paper where  his name  was shown  as the  editor but no      such thing  has been  done. On  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 as 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  or the  Press Act  can be      drawn.      While holding  that the  presumption under section 7 is available the  High  Court  has  completely  overlooked  the aforesaid aspect.                           [671 D-E, 672 A-C673 E-H, 674 A-C]           State of  Maharashtra v.  Dr. R.  B. Chowdhury and      ors. [1967]  3 S.C.R.  708 and  D. P.  Mishra v.  Kamal      Narain Sharma and ors. [1971] 3 S.C.R 257 and Narasingh      Charan Mohanty  v. Surendra Mohanty [19741 2 S.C.R. 39;      relied on.

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    In the  present case,  the paper clearly shows the name of  Shri  Aboobakar  as  the  editor.  There  is  sufficient evidence both  led by  the petitioner and the appellant that Aboobaker  was  incharge  of  the  paper  and  that  he  was functioning as the editor. The Court came to this conclusion on a  detailed appreciation  of the  evidence  of  witnesses examined by both the sides.                                               [685 H, 686 A-      The  petitioner   failed  to   prove  either  that  the appellant was  an  editor  of  the  paper  or  that  he  was performing  the   functions,  duties   or  shouldering   the responsibilities  of   the  editor.  The  presumption  under section 7  of the  Press Act  could be  drawn that  only the person concerned  was the  editor within  the meaning of the Press Act.  The High  Court had  ’no justification to draw a presumption against  the appellant  under section  7 of  the Act.                                             [686 H, 687 A-B] 666      Even if it is assumed that the appellant was the editor the presumption  under  section  7  is  rebuttable  and  the evidence in  the case  shows that  the presumption  has been sufficiently rebutted.                                                    [687 B-C]      The  publication   of  the  material  promoting  hatred between two  classes of  citizens is  undoubtedly. a corrupt practice. It  is well settled by long course of decisions of this Court  that such  practices must be clearly alleged and all the  necessary particulars  must be  proved not  by  the standard  of   preponderance  of  probabilities  but  beyond reasonable doubt.           Mohan Singh  v. Bhanwar  Lal and  ors. A.I.R. 1964      S.C, 1366,  Magrai Patodia  v. R.  K.  Birla  and  Ors.      [19711 2  S.C.R. 118,  Dr Venkata  Reddy v. R. Sultan &      ors [1976]  3 S.C.R.  445 Ramanbhai  Nagibhai Patel  v.      Jaswant Singh  Udesingh Dabhi  and ors A.I.R. 1968 S.C.      1162: relied on. Neither the  writer of  the  article  nor  the  speaker  who delivered  the  speech,  nor  the  reporter,  nor  even  the manuscript of  the speeches,  had been  produced before  the Court. All  these articles  and speeches are inconsequential until they  are shown,  to have been made with the knowledge and consent, of the appellant.                                                    [689 B-C]      The following facts meaningly emerge:-                1. The  petitioner has not 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      avernment 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  against  whom  hatred  was  preached  by  the      speaker has not been mentioned.                                                   [691 C-E]‘      The allegations  in the petition are vague. 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. It  is well  settled that the admission unless  it is separable has to be taken as a whole or not at all.

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                                          [691 F, G, 692 A]           Hanumant v.  The State  of Madhya  Pradesh  [1952]      S.C.R. 91,  Palvinder Kaur.  v.  The  State  of  Punjab      [1953]  S.C.R.   94  and   Dadarao  v.   The  State  of      Maharashtra [1974] 3 S.C.C. 630; relied on.      Even from  the extract  of the  speech it is clear that the speech was not intended to preach hatred or enmity between the two classes of citizens. ’The petitioner has not produced either the reporter- who was present at the meeting when the  appellant spoke,  nor has he called for the script of the  speech, the  extract  of  which  was  given  in  the newspaper. It  is very  difficult to interpret a part of the speech completely  torn from  its context. The entire speech was made  against political  background and  for a political purpose. The  petitioner has  not examined  any  independent member of  the public  belonging to the place where a speech was delivered  to show  that the  speech tended  to  promote enmity or hatred between different communities.                                     [694 C, D, F-G-H, 969 D] 667      The reliance  placed on  the cartoon  in para 11 of the petition is as under:-           "In Chandrika  dated 12-3-1977 on the front page a      cartoon is  published. lt  is depicting  Janasangh as a      Pig and  Shri E.  M. Sankaran Namboodiripad the Marxist      Leader, cutting the flesh of the pig and serving, it to      the Muslim.  This is  an attempt to promote feelings of      enmity,  and   hatred  between   different  classes  of      citizens of  India on  grounds of religion, It is well-      known that  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 Janta party and      Muslim League (opposition) of which the petitioner is a      candidate from the concerned constituency."      The petitioner has failed to prove that the cartoon was published with  the consent  and knowledge of the appellant. The term  consent is  a much  stronger word  than  Knowledge because it implies assent. There is nothing to show that the appellant gave his consent to the publication of the cartoon at any  time. There  is no  evidence either  of  consent  or knowledge. On  the contrary,  there is  evidence to negative this fact.                                          [697 F, H, 698 A-C]      The Court  came to  the conclusion  that the petitioner has not been able to establish the corrupt practices alleged against the  appellant. There  is no  legal or  satisfactory evidence to  prove that  the speech  made by  the  appellant promoted or tended to promote a feeling of enmity and hatred between two  classes of  citizens. There  is no  evidence to prove the  knowledge or  consent of  the  appellant  to  the publication of the cartoon.                                               [699 B-C, E-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal Nos. 12 and 865 1978.      From the  Judgment and  order dated  19-12  77  of  the Kerala High Court in Eloction Petition No. 16 of 1977.      F. S.  Nariman, S. Narayanan Poti, J. B. Dadachanji and K. J.  John for  the Appellant,  (In CA 12 and Respondent in C.A. 865/ 78) .

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    Y. S.  Chitale and N. Sudhakaran for the Respondent (In C.A. 12 and Appellant in C.A. 865/78).      The Judgment of the Court was delivered by      FAZAL ALI,  J. This election appeal is directed against the order  of the  High Court of Kerala dated 19th December, 1977 by  which the  election of  the appellant  Haji  C.  H. Mohammad  Koya   has  been   set  aside   and  he  has  been disqualified from  taking part in the elections for a period of six  years under  the provisions of the Representation of the People Act, 1951 (hereinafter called the Act).      For the  purpose of  brevity  we  shall  refer  to  the respondent- petitioner  as the  Petitioner and  Haji  C.  H. Mohammad Koya as the appellant. 668      In  the   general  election  held  to  the  Legislative Assembly of  Kerala on  20th March,  1977 the petitioner and the appellant  were the  contesting candidates  from No.  34 Malappuram Constituency. The counting of votes took place on the 20th  March, 1977 and The appellant was declared elected on the  same date.  The total  votes polled were 56,276. The appellant  secured   39,362  votes  and  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  Rs 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-sections 3.  3A      and 4  of section  123  of  the  Act  are  specifically      referred to,  from the evidence tendered in the case it      would appear  that applicability  of sub-section  3A of      section l 23 alone falls for the decision".      The petition was contested by the appellant who filed a counter-affidavit denying  the assertions and averments made by the  petitioner and took the stand that he made no speech which offended  section 123 (3A) of the Act nor was he aware of any  of the  offending articles  or cartoons published in Chandrika prior  to the  elections. The  also denied that he was an  Editor of  Chandrika, but  admitted that  he was the Chief Editor  and that  too only in name. Being an important and an influential person he was able to collect lot of more for Chandrika  from the  Gulf States  and that is why he was assigned an  important role in Chandrika as Chief Editor for the purpose  of deciding  the larger  policies of the paper. The appellant further denied that he had anything to do with the editorial  work of  Chandrika or  the publication of the speeches or  articles etc.  It may be pertinent to note here that even the petitioner in his petition has not at all 669 alleged or  described the  nature of  the duties  which  the appellant performed  as Chief  Editor nor has he stated that

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as Chief  Editor he  was controlling the materials published in the  paper so as to ascribe constructive knowledge to him of  the  articles  published  in  Chandrika.  ALL  that  the petitioner pleaded  in his  petition on  this subject may be extracted thus:-           "The respondent  is the Chief Editor of Chandrika,      a  daily   newspaper  published  from  Calicut.  It  is      published by the Muslim Printing and Publishing Company      Limited. The  major shares  of this company is owned by      the Muslim  league Party and the respondent holds share      worth of  Rs. 3  lakhs in  the above company. The daily      Chandrika is  the official  organ of  the Muslim League      Party. It  is submitted  that in the daily Chandrika of      which the  respondent is the Chief Editor, is published      reports and  articles appealing  to the  members of the      Muslim community  not to vote for the candidates of the      Muslim League  (opposition) in the name of religion and      community".      As regards  the speech  while the  petitioner  admitted that he  did make  a speech as would appear from the extract Ex. P.1(a)  but denied that he made any communal allegations against the Janasangh but stated that some of 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 editor  then no constructive knowledge of these articles can be attributed to him.      The High Court framed the following issues:-           1. Whether the petition is maintainable ? 670           2. Whether  the election is vitiated by all or any      of the corrupt practices alleged in the petition?           3. Regarding reliefs and costs.      As regards  issue No.  1 the  High Court  held that the petition was maintainable and decided this issue against the appellant. This  finding has  not  been  challenged  by  the appellant before us and we there fore affirm the same.      The main  issue in  the case  was issue  No. 2  and  we should have  expected the  High Court  to have framed a more detailed issue  giving  the  nature  and  character  of  the corrupt practices  alleged by  the  petitioner  against  the appellant in  order to  give a  clear picture to the parties regarding the matters which were to be decided by the court. However, as both the parties understood what the allegations were and  proceeded to  trial on that basis the vagueness of the issues  framed by  the High  Court has  not  caused  any prejudice to any of the parties.      The main corrupt practice pleaded against the appellant

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by the  petitioner and  which  has  been  vehemently  argued before us  is to  be found  in paragraph  5 of  the petition which is  regarding the  inflammatory speech  Exhibit P.1(a) said to  have been made by the appellant and which according to the  petitioner fell  within the  mischief of section 123 (3A) of the Act.      Another important  averment made in the petition was in paragraph 11 of the petition which refers to the cartoon and may be extracted thus:-           "In Chandrika  dated 12-3-1977 on the front page a      cartoon is  published. It  depicting Jansangh  as a Pig      and Shri  E. M.  Sankaran  Namboodiripad,  the  Marxist      Leader, cutting  to the flesh of the pig and serving it      to the  Muslim. This  is an attempt to promote feelings      of enmity  and  hatred  between  different  classes  of      citizens of  India on  grounds of  religion. It 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  is   clearly  pleaded  that  the  cartoon  was published in Chandrika with the 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. 671      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  printing-presses and  of newspapers, for      the preservation  of copies of every book and newspaper      printed in India and for the registration of such books      and newspaper, it is hereby enacted as follows": It would thus appear that the object of the Press Act was to regulate  printing   presses  and  newspapers  in  order  to preserve copies  of newspapers and books. Moreover, in order to  avoid   multiplicity  of   suits  and  uncertainties  of liabilities, it  was considered  necessary to  choose one of the persons  from the  staff and make him liable for all the articles or  matters published  in the  paper  so  that  any person aggrieved  may sue only the person so named under the provisions of  the  Press  Act  and  is  relieved  from  the necessity of  making  a  fishing  or  roving  enquiry  about persons who  may have- been individually responsible for the offending matters  published in  the paper.  Our opinion  in this regard  is however re-informed be the statement, object and  reasons  accompanying  the  Press  Act  which  mark  be

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extracted thus:-           "Whereas it  is expedient  to  repeal  the  Indian      Press Act,  1910 and  the  newspapers  (Incitements  to      offences) Act,  1908, and  to make further provision in      the Press  and Registration of Books Act, 1867, for the      liability  of   editors  of  newspapers  in  civil  and      criminal proceedings  and to make certain amendments in      that Act  in order  to facilitate  the registration  of      printers and  publishers; and  to provide  in  the  Sea      Customs Act,  1878, the  Code  of  Criminal  Procedure,      1898, and  the Indian  Post office  Act, 1898  for  the      seizure and disposal of certain documents; it is hereby 9-549 S Cl/78 672      encted as follows :" It was  with this  avowed object  that the Press Act clearly defines ’Editor‘  who has  a clear  legal status  under  the Press Act.  Section 1  (1) of the Press Act defines ’Editor’ thus:           "Editor"  means   the  person   who  controls  the      selection  of   the  matter  that  is  published  in  a      newspaper". Section 5  of the Press Act provides that no newspaper shall be published except in conformity with the rules hereinafter laid down. Section 5(1) runs thus:-           "Without prejudice to the provisions of section 3,      every copy  of every  such newspaper  shall contain the      names of  the owner  and editor thereof printed clearly      on such copy and also the date of its publication". It would  thus be clear that under section 5(1) of the Press Act the  legal requirement  is that  every  newspaper  shall contain the  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  that the  editor’s name  however,  should  be given separately  in  every  case.  Rule  6  requires  every publisher  to  submit  an  annual  statement  to  the  Press Registrar. It is not disputed in the 673 present case  that  this  statement  was  not  made  by  the appellant but  by P.W.  2  Aboobaker  who  was  the  editor, publisher and  printer of  Chandrika. The  annual  statement which has  to be filed in form 2 contains one of the columns

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where the  editor’s name  has to  be shown. Section 7 of the Press Act runs thus:-           "In any  legal proceeding  whatever, as well civil      as  criminal,   the  production   of  a  copy  of  such      declaration as  is aforesaid,  attested by  the seal of      some Court empowered by this Act to have the custody of      such declarations,  or, in  the case  of the  editor, a      copy of  the newspaper-  containing his name printed on      it as  that of  the editor  shall be  held (unless  the      contrary be  proved)  to  be  sufficient  evidence,  as      against the  person whose  name shall  he subscribed to      such declaration,  or printed  on such newspaper as the      case may  be, that  the  said  person  was  printer  or      publisher, or  printer and  publisher (according as the      words of  the said declaration may be) of every portion      of every  newspaper whereof  the title shall correspond      with the  title  of  the  newspaper  mentioned  in  the      declaration or  the editor  of every  portion  of  that      issue of the newspaper of which a copy is produced.      Section 8(A)  of the  Press Act provides that where any person’s name  has appeared as an editor in a paper although he was  not an  editor he  shall within  two  weeks  of  his becoming aware  that his  name has been so published" appear before the District? Presidency or Sub-Divisional Magistrate and make  a declaration  that his  name has been incorrectly published and get a certificate from the Magistrate that the provisions of  section 7  shall not  apply to him. It may be interesting to note the following facts here:-           1 That the issues of Chandrika shown to US clearly      and unmistakably  mention the  name of Aboobaker as the      printer, publisher and editor of Chandrika and does not      mention the  appellant as  the Editor of Chandrika. The      appellant is  merely shown as the Chief Editor but this      is an  officer which  is not at all contemplated by the      Press Act.           2. That  if the appellant was really the editor of      the paper  then P.W. 2 Aboobaker ought to have resorted      to section  8(A) to  correct the  mistake in  the paper      where his  name 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. 674           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  case of  State of  Maharashtra  v.  Dr.  R.  B. Chowdhary & Ors. (1) this Court observed as follows:

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         "The term  ’editor’ is  defined in the Act to mean      person who controls the selection of the matter that is      published in  a newspaper.  Where there is mentioned an      editor as  a person who is responsible for selection of      the material section 7 raises presumption in respect OF      such a  person. The  name of  that  person  has  to  be      printed on the copy of the newspaper and in the present      case the  name of  Madane admittedly  as printed as the      editor  of   the  Maharashtra   in  the   copy  of  the      Maharashtra which contained the defamatory article. The      declaration in Form I which has been produced before us      shows the  name of  Madane not  only as the printer and      publisher but  also as  the editor.  In our opinion the      presumption will  attach to  Madane as  having selected      the material for publication in the newspaper .. In the      circumstances not  only the presumption cannot be drawn      against the  others who  had not declared themselves as      editors of  the newspaper  but it is also fair to leave      them  cut   because  they   had  no  concern  with  the      publishing of the article in question".      (1) [1967] 3 S. C. R. 708. 675 This case,  therefore, clearly  holds that where a person is not  shown  A  in  the  paper  to  be  its  editor  no  such presumption under  section 7  of the  Press Act can be drawn but it  must be  held  that  he  has  no  concern  with  the publishing of the article.      To the same effect is another decision of this Court in the case  of D.  P. Misra  Kamal Naran  Sharma & Ors.(1). In this case  which was  also an  election matter  a  newspaper called Mahakoshal  was published  from Raipur and one Shukla was registered as the printer, publisher and editor with the Press Registrar.  The defence  of Shukla  was  that  he  had appointed one  Tarangi as  the editor  of Mahakoshal in June 1962 and  was not  present at  the relevant time. This Court pointed out  that the proceedings for naming a person who is found responsible for publication of an offending matter and for constituting  a corrupt  practice are  in the  nature of quasi-criminal proceedings.  It follows therefore that being a corrupt  practice it  has to  be proved  beyond reasonable doubt  and   not  by   the  measure   of  preponderance   of probabilities. The  Court observed  in  this  connection  as follows:           "Section 7  raises a  presumption  that  a  person      whose name  is printed  in a copy of a newspaper 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".

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         "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 but      he had clearly stated      (1) [1971] 3 S. C. R. 257 676           that  the   publication  of  news-items  from  the      correspondents were  attended to by the Sub-editors and      That he generally laid down the policy of the newspaper      and  gave   general   directions.   He   admitted   his      responsibility because he personally had with knowledge      published the  article which  constituted  contempt  of      Court". We may  mention  here  that  in  this  case  Shukla  in  his statement has  clearly stated  that the  publication of  the news-items in  the paper were attended to by Sub-editors and he generally  laid down the policy of the newspaper and gave general  directions.  No  such  allegation  or  evidence  is forthcoming in  the instant case because it has neither been alleged nor  proved  that  the  appellant  was  in  any  way controlling selection of the matters published in the paper.      In the  case of  Narasingh Charan  Mohanty v.  Surendra Mohanty(1) this  Court pointed  out that  consent or  agency could not  be inferred  but had  to be  proved affirmatively like any  other fact.  In this connection the Court observed as follows :.-           "Consent or  agency cannot be inferred from remote      causes. Consent  cannot be  inferred  from  more  close      friend  ship   or  other   relationship  or   political      affiliation. As  pointed out  in D.  P.  Mishra’s  case      (supra) however  close the relationship unless there is      evidence to prove that the person publishing or writing      the editorial  was authorised by the returned candidate      or he  had undertaken  to be  responsible for  all  the      publications, no consent can be inferred".      It was  further held  in this case that the presumption under section 7 of the Press Act is a rebuttable presumption and the  so called  editor  can  rebut  the  presumption  by showing that  he had  nothing to do with t he publication of the editorial  or the  news report.  In our opinion, even if any presumption  is sufficiently  rebutted by  him not  only from the  evidence adduced  by the appellant but also by the evidence adduced  by the petitioner. We shall presently deal with this  facet of the matter, namely the factual aspect of this question. The court further observed as follows:-           "When once  it is  established  that  neither  the      editorial (ext.  1) nor  the news  report (Ext. 2) were      published by  the respondent  or by  some one else with      his consent  or that  the speech  alleged to be made by      Biju Patnaik  even if  it amounts  to corrupt practice,      was made  without the  consent of  the respondent,  and      that Biju  Patnaik was not his agent. It is unnecessary      to consider the question whether the      (1) 119741 2 S. C. R. 39. 677           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

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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 the  rules made  thereunder.  We  are however unable  to accept this argument. In the first place, the paper clearly shows the name of the editor as Aboobaker. As the  printer, publisher  and the  editor was  one and the same person  it cannot  be said that merely because the name of the  editor was  not shown  at a  separate place  he  was absolved  of   his  responsibilities   as  the  editor.  The intention of the rule is merely to clarify who the editor of the paper  is and  once  this  is  shown  then  there  is  a substantial though  not a  literal compliance  of the  rule. Secondly, the  Press Act  does not recognise any other legal entity except  the editor insofar as the responsibilities of that office  are concerned.  Therefore, mere  mention of the name of the Chief Editor is neither here nor there, nor does it in  any way  attract the  provisions  of  the  Press  Act particularly section  7. Thirdly,  it is not even pleaded in the petition, much less proved, that the appellant being the Chief Editor,  it was part of his duty to edit the paper and control the  selection of  the matter  that was published in the newspaper  which in fact has been demonstrably disproved by’ the appellant. Thus? we are unable to accept the finding of the  High Court  that any  presumption under section 7 of the Press Act can be drawn against the appellant.      This brings  us to the factual aspect of the matter. In this connection,  the definite case of the appellant is that although he  has been shown as the Chief Editor of Chandrika he was  not at all connected with any editorial function but his name  was lent to the paper because of his past services to Chandrika and because he used to get lot of 678 money for this paper being an influential man. This has been proved not  only by  the evidence  led by  the appellant but also by the evidence adduced by the petitioner.      Before taking  the evidence  on  this  point  we  might mention a  few admitted  facts which loom large in our minds (1) that  the petitioner  proceeds on  the  footing  in  his petition that  the appellant  was the  Chief Editor  and  no where he  has been mentioned as the editor of Chandrika, (2) there is  no pleading  by the  petitioner that the appellant was an  editor within  the meaning  of section  1(1) of  the Press Act  particularly when  the paper  Chandrika  was  the pivot and  the sheet  anchor of  his case  and which clearly showed that  the appellant  was not  the editor  but P.W.  2 Aboobaker was  officially 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  Rs. 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

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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 appellant was the editor of the paper.      Strong  reliance   was  placed   by  counsel   for  the petitioner on the statement of P.W. 1 to the effect that the appellant  was  doing  the  day-to-day.  editorial  work  of Chandrika. In  the first  place,  this  statement  does  not appear to,  be true  and  is  clearly  contradicted  by  the petitioners own  witnesses, namely,  P.Ws. 2  and 5 who have categorically stated  that Aboobaker  was the editor and the appellant was  not a  member of  the editorial group and was extremely busy  with the  elections to be able to devote any time to  do the  work of  the editor.  The evidence  of this witness shall be discussed hereafter. 679 Another important  aspect of  the  matter  is  that  as  the petitioner was  not  connected  with  Chandrika  he  is  not competent to  depose to  show who  did the  editing work  of Chandrika. The  only competent  witnesses on  this point are P.Ws. 2  and 5 and the appellant and they have said that the appellant had  nothing to  do with the editorial work of the paper. Moreover,  it would appear from the evidence of P.W’. 5 that  there is  a  special  attendance  register  for  the editorial staff  and that  the appellant  had not signed the said register  which clearly shows that the appellant had no concern at  all  with  the  editorial  group.  Finally,  the allegation that  the appellant  was doing day-to-day editing work of  Chandrika is  not merely a  piece of evidence but a material fact  which ought  to  have  been  pleaded  in  the petition if the petitioner wanted to rely on the presumption under section  7 of  the Press  Act. If this fact was within the knowledge  of the  petitioner there was no reason why he did not  mention it in his petition. In these circumstances, therefore, the  statement of  P.W. 1  on the point cannot be accepted.      P.W.  2   Aboobaker  who   has  been  examined  as  the petitioner’s own witness categorically states that he is the printer, publisher and editor of Chandrika and his statement on this point is extracted thus:-           "I am  the Printer,  Editor and  Publisher of  the      Malayalam  Daily   Chandrika.  This   is  published  by      Chandrika Printing and Publishing Company". He further  states that  in this institution (Chandrika) the post of  Chief Editor  is  an  ornamental  post.  Thus,  the witness fully  supports the appellant’s case that he was the Chief  Editor   only  in   name  and  his  post  was  purely ornamental.   The    witness   further   admits   that   all responsibilities are  with the  editor 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

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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. 680      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  direction  to  me  about      that". To show  that the  appellant  was  controlling  the  general policy of  the paper.  We are  unable  to  infer  from  this statement that  the appellant  was controlling the selection of the  matter published  in the  paper so as to fall within the definition  of the  word ’editor’  as defined in section 1(1) of  the Press Act. The appellant was no doubt connected with the paper for a long time and there is nothing wrong in his giving  directions to  the editor  if he found that some event took  place against  the declared policy of the paper. The witness  at a  later stage  of his  evidence has clearly stated that he had not discussed with the appellant the news item which  appeared in the paper nor did the appellant give any direction  to the witness about the printing and editing of the paper. This statement may be extracted thus:           "I have  not discussed  with the  respondent about      the news  items which appeared in the paper. He did not      give any direction about the printing and publishing of      the paper". The witness  further clarifies  that the Chief Editor has no such special’ responsibility. He further states thus:-           "In the  editorial staff of Chandrika there are 20      persons including  me. This  20 include  trainees also.      Under them  there are  two news  editors. There are two      Chief Sub  Editors. 5  or 6  Sub-Editors.  I  have  got      supervision  of   their   work   ....   I   have   only      responsibility of editing and printing of the paper". This clearly  shows that  the witness  was not only entirely responsible. for  the printing  and editing of the paper but was also  supervising the work of the Sub-editors under him. He also  admits that the declaration under the Press Act was filed by  him. To  an express question whether the appellant has been  selecting or editing any of the day to day matters appearing in  the paper the witness categorically denied the same. The statement may be extracted thus.-           "The declaration  under the  Registration of Press      and Books  Act was filed by me. Has the respondent been      selecting or  editing any  of  the  day  to-day  matter      appearing 681           in the  paper? (Q)  No. (Ans.)  .. At  the time of      election because of his responsibility as the Secretary      of the  Muslim League  and as  a leader  of the  United      Front, during  the months  of February  and March,  the      respondent was  mostly on tour.. on all days when I was      present, I sign the register". It is,  therefore, clear  that even  the 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

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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 editor of Chandrika. In these  circumstance,   the  evidence   of  this  witness  is absolutely valueless on the point in issue.      P.W. 4  Mohammed Ali  Shihab Thangal  is  an  important witness  being  the  President  of  the  Muslim  League  and Managing Director  of the  Muslim  Printing  and  Publishing Press which  published the  paper Chandrika. The witness was fully  conversant   with  the   working  of   the  editorial department of the paper. The witness clearly states that the appellant was the Chief Editor and the editor was under him. The witness further categorically asserts that the policy of Chandrika is  decided by  the editorial  staff which  as has already been  seen does  not include  the Chief Editor. This fact was  admitted by  P.W. 2  as reported  above. Even this witness does  not say that the appellant as the Chief Editor was a  member of the editorial staff. On a specific question asked to  him whether  the appellant as the Chief Editor had powers to  take decision  about the  paper, the  witness has denied knowledge  of the  same. The  witness further  proves that the appellant as 682 the Chief  Editor was drawing a salary of Rs. 700 per month, but the witness admits that the entire management is done by Seethi Sahib  as Director-in-Charge. Thus, according to this witness, Seethi Sahib who has been examined as P.W. 5 is the most competent  witness to  prove as  to what  was the exact nature of the duties of the Chief Editor.      P.W. 5  Seethi Haji  is the  Director-in-charge of  the Muslim Printing  and Publishing  Press and  admits  that  he attended to  the administrative  functions of  the Press. He clearly admits  that Aboobaker  (P.W. 2)  was the  editor of Chandrika paper  and, his  responsibilities are  the same as they were  in 1974-75.  While explaining  the reason why the post of  Managing Editor  and Chief  Editor existed  in  the establishment, he  says that this was because it was thought that the names of big personalities would be prestigious. In other words,  the witness  fully  corroborates  the  version given by  P.W. 2  that the  appellant’s name as Chief Editor was merely  ornamental. The  witness also says that although the appellant had a lot of experience in journalism yet that was not the only reason why he was made the Chief Editor but another  consideration  that  swayed  with  the  authorities concerned was  that  the  appellant  was  a  leader  of  the community. The witness further asserts thus:-           "To write  ’Chief 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".

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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 Rs.  400 whereas  Rs. 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 683 paper. In  other words,  it is  clear that the appellant had nothing to  do with  the policy  of the  paper much less the editing part  of it.  To a question that except Chief Editor the appellant  has got  any other  official position in this company the  witness answered ’nothing’. The witness further stated that the Chief Editor had not raised any objection to him about any news item published in Chandrika or the policy matter of  the paper  from which  he inferred that the Chief Editor had approved the policy for if he had no objection he would have  told  him.  Again,  the  witness  makes  a  very significant statement which runs thus.-           "I am  present in the office on almost all days. I      was  in   charge  of  going  through  the  publications      appearing everyday  in the  paper and checking up as to      whether  they  are  in  conformity  with  the  declared      policies  and   interests  of  the  paper.  It  was  my      responsibility to  place objections,  if any,  if  they      were against the declared policies".      The  witness   further  stated  that  the  Manager  had nothing, to  do with  the editing  and printing of the Paper but categorically  asserted that  P. W.  2 is  selecting and editing everyday’s  matters in  the Chandrika.  Thus, on the admission of  this witness who was fully conversant with the working of  the paper  P.W. 2 alone fulfils the requirements of the  definition of an editor as given in section 1 of the Press Act  and totally excludes the appellant from the scope and ambit of an editor as defined in the aforesaid, section.      The witness  further admits  that there  is  a  special attendance register  for the  editorial staff  and when  the register is  shown to  him he  admits that  this is the same register since January 1977. This register is marked Exhibit R-7. The witness further admits that the register is for the entire editorial staff including P.W. 2. The witness further asserts that  the appellant who was the Chief Editor had not signed  in   this  register.   This  therefore  clearly  and conclusively  proves   and  unmistakably   shows  that   the appellant was  not a  part of the editorial staff at all and had no  concern  with  that  department.  This  is  all  the evidence led by the petitioner and from this evidence it has not at  all been  proved that  the appellant  as  the  Chief Editor performed  any functions  of the  Editor  or  was  an editor within  the meaning  of section  ] of  the Press Act. Before concluding  this part  of the case was might refer to the evidence of the appellant himself. But before we do that it would  he  necessary  to  analyze  the  pleading  of  the

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appellant. 684      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 witness  further stated that he  became the Chief Editor in 1971 and continued to be so till  1977. He  has further clarified that when he became the Chief  Editor he was not doing the editing work which he was doing  before. According  to the  witness, he joined the paper as  far back  as 1944 as Sub-Editor. It is, therefore, natural that in the early stages of his career he was a part of the  editorial staff  and must  be  performing  editorial duties when he became the editor. But what we have to see is what was  the position  in 1977  after he  became the  Chief Editor. On  this point, the witness has categorically stated that as  Chief Editor he was not doing any editing work. The witness has  further explained that when he became the Chief Editor he  was also  an M.P.  and so he did not get any time for doing  the editorial  work. The  witness then goes on to state that  from  1974  to  1977  till  the  Lok  Sabha  was dissolved he  was in  Delhi as  an M.P. and even during that time his  name used  to be  printed in  the paper  as  Chief Editor but  he was  not doing  any editing  work. He further states that  as leader of the United Front and of the Muslim League he  had much  work to do during the election time and he was  very busy with the election speeches. Explaining the responsibilities and  duties of an editor the witness stated thus:-           "The responsibility  of editing  Chandrika  is  of      P.W. "  Aboobaker. There is a large staff of Chief Sub-      Editors and  Sub-Editors to  assist him.  There are two      Chief Sub-Editors, 685           including  Sub-Editors  there  are  about  10,  20      persons. The  A work of these persons is supervised and      co-ordinated by PSHAW. 2". The witness  further states  that the  Chief Editor  has no. room in  the  editorial  section.  He  further  corroborates PSHAW. 2  by stating that PSHAW. 2 has given the declaration under the Press Act.      Regarding the  nature of the functions which he actualy performed the witness asserted thus.-           "You had no difference of opinion with the reports      and articles  which appeared  in Ext.  P. 1  to  11  ..      Having read  I did  not think  that any  of those would

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    constitute corrupt  practices. If  I had  thought so  I      would have tried to rectify them". He further  stated that  he did  not belong  to the  regular staff. He  further admitted that he collected funds from the Gulf countries to finance the paper Chandrika and the Muslim League holds the shales in the name of the witness.      Learned counsel  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  evidence of the appellant on  this question.  Thus, on  a close  and careful consideration of the evidence discussed above. the following inescapable conclusions emerge:           1.   P.W. 2 Aboobaker was admittedly the editor of      Chandrika, fulfilled all the conditions of section 1(1)      of the 686                Press Act  and his name was printed as editor                in the of Chandrika.      2.   P.W. 2  as the  editor of the paper supervised the      editorial staff,  controlled the selection of materials      to be  published in the paper, approved the policies to      be followed  in publication and was wholly in charge of      the editorial group.      3.   The appellant  was never  shown or  referred to as      the editor  anywhere. Even  the register which is meant      to be  signed by  the editor and the other staff on the      editorial rial group was not signed by the appellant as      he had nothing to do with the editorial work.      4.   The appellant  had been  appointed as Chief Editor      because  he   was  a   Member  of   Parliament  and  an      influential man  who could  get finance  for the  paper      from the  Gulf States  but he had no hand at all in any      of the functions and duties performed by the editor.      5.   The appellant  was no  doubt shown as Chief Editor      in the  issues of  the Chandrika  but the  Press Act as      held by us does not recognise any such legal entity and      the only  person who  is recognised by the Press Act is      the editor  who in  this case  was P.W.  2 and  who had      admittedly filed  the declaration under section 5(2) of      the Press Act.      6.   Although section  8A was  the  specific  provision      under which a person could apply for a certificate that      he 1.’ ceased to be the editor no such action was taken      by P.W.  2 to  get his name struck off from the roll of      editor. This  clearly shows  that P.W.  2 alone was the      editor and  the appellant  was merely a name-lender and

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    his post was purely ornamental.      7.   The petitioner  himself has  not at  all  anywhere      pleaded in  his petition  that the  appellant  was  the      editor   nor   has   he   mentioned   the   duties   or      responsibilities which  were performed by the appellant      as Chief  Editor so  as to bring him within the fold of      section 1 of the Press Act.      From the  facts established  above, it is manifest that the petitioner has miserably failed to prove either that the appellant was  the editor  of  the  paper  or  that  he  was performing the functions. duties or 687 shouldering  the  responsibilities  of  the  editor.  It  is obvious that  a presumption under section 7 of the 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 paper Chandrika. The publication of  the materials  promoting hatred  between two classes of  citizens is  undoubtedly a corrupt practice and‘ it is well settled by long course of decisions of this Court that such  practices must  be clearly  alleged with  all the necessary particulars  and proved  not by  the  standard  of preponderance of  probabilities but beyond reasonable doubt. We are  fortified in  our view by the decision of this Court in the  case of  Mohan Singh  v. Bhanwar Lal & Ors.(1) where this Court observed as follows:-           "The onus  of establishing  a corrupt  practice is      undoubtedly on  the person who sets it up, and the onus      is not  discharged on  proof of  mere preponderance  of      probability, as  in the  trial of  a  civil  suit,  the      corrupt practice  must be established beyond reasonable      doubt by evidence which is clear and unambiguous." To the  same effect  is a decision of this Court in the case of Magraj  Patodia v. R. K. Birla & Ors.(2) where this Court observed as follows:-           "But the  fact remains  that burden of proving the      com mission  of the  corrupt practice pleaded is on the      petitioner      (1) A. 1. R. 1964 S.C. 1366      (2) [1971] 2 S.C.R. 118.  10-549 SCI/78 688      and he  has to discharge that burden satisfactorily. In      doing  so   he  cannot   depend  on   preponderance  of      probabilities. Courts  do not set at naught the verdict      of the electorate except on good grounds".      ln the  case of D. Venkata Reddy v. R. Sultan & Ors.(1)

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this Court after reviewing most of the previous decisions of this Court observed as follows:-           "In a  democracy such  as  ours,  the  purity  and      sanctity of elections, the sacrosanct and sacred nature      of  the   electoral  process   must  be  preserved  and      maintained. The  valuable verdict  of the people at the      polls must  be given due respect and candour and should      not  be   disregarded  or   set  at  naught  on  vague,      indefinite, frivolous  or fanciful  allegations  or  on      evidence  which   is  of   a  shaky   or  prevaricating      character. lt  is  well  settled  that  the  onus  lies      heavily on the election petitioner to make out a strong      case for  setting aside  an election.  In  our  country      election is  a fairly  costly and expensive venture and      the Representation  of  the  People  Act  has  provided      sufficient safeguards  to make  the elections  fair and      free.  In   these  circumstances,  therefore,  election      results t  cannot be  lightly brushed aside in election      disputes. ........  Another principle  that is  equally      well settled  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.(2) 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 clear-      cut  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      (I ) 11976] 3 S. C. R. 445.      (2) A. 1. R. 1968 SC 1162. 689 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  various   persons  published   in  Chandrika   and   the constructive knowledge  of this  has been  ascribed  to  the appellant by virtue of the allegation that he was the editor of the  paper. As  however this  has not  been proved it was incumbent on  the petitioner  to prove  knowledge  of  these articles or  speeches like  any  other  fact.  The  admitted position appears  to be  that  neither  the  writer  of  the article nor  the speaker  who delivered  the speech  nor the reporter nor  even the manuscripts of the speeches have been produced  before   the  Court.   In   these   circumstances, therefore,   all    these   articles    and   speeches   are inconsequential until  they are shown to have been made with the knowledge  and consent  of the  appellant. Even  in  the pleading the  petitioner has  not averred that the appellant had any  independent knowledge of these things or that these speeches or  articles  were  written  with  his  express  or implied consent.  The petitioner has based his case entirely on the  footing that as the appellant was the editor he must be deemed  to be aware of these articles and speeches and if the speeches contained offending matters and promoted hatred

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and ill  will between  two classes of citizens the appellant must be  deemed to have committed the corrupt practice under section l 23 (3A) of the Act. As the entire edifice built by the petitioner  for the  admissibility of  Ex. P. 2 to P. ll except P.  5 collapses,  the allegation of the petitioner on this score  is clearly disproved. Moreover, we are fortified in our  view by  the decision  of this  Court in the case of Samant N.  Balakrishna etc. v. George Fernandez Ors. etc.(1) where this Court observed as follows:-           "The best  proof would have been his own speech or      some propaganda  material such as leaflets or pamphlets      etc but  none was  produced ..  A news item without any      further proof  of what  had actually  happened  through      witnesses is  of no  value. It is at best a second-hand      secondary evidence.  It is  well-known  that  reporters      collect information  and pass  it on  to the editor who      edits the  news item  and then  publishes it.  In  this      process the  truth might get perverted or garbled. Such      news items cannot be said to prove them selves although      they may  be taken  into account with other evidence if      the other evidence is forcible".      We might also mention here that the High Court rejected EXT. P.  12 rand  P. 13  by finding that these documents did not fall  within the mischief of section 123(3A) of the Act. Some reliance was however (1) [ 1969] 3 S.C.R. 603. 690 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   the  editorial  was  written  by  him.  But  on reexamination the  appellant categorically asserted that the editorial written  could not  be in  his language  and  thus denied having  written the  editorial. Although  P.W. 2  the editor of the paper was examined by the petitioner and being the editor  he was  the best  person to  know whether or not this  editorial  was  written  by  the  appellant  yet  this document was  not put  to him.  In these circumstances, this document  has   not  been  proved  according  to  law,  and, therefore, must  be excluded from consideration. Counsel for the petitioner  also did  not press  us  to  consider  these documents Ext.  P. 2  to 1’.  ll except P. S if we find that the appellant  was nor  the editor of the paper Chandrika or that the presumption is not available to the petitioner.      Reliance  was   however  placed   by  counsel  for  the petitioner as  also by  the High  Court  on  two  documents, namely,  Ex.P.  l(a)  which  was  an  extract  of  a  speech delivered by  the appellant  at one of the election meetings where he  is said  to have  made certain  observations which

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tended to  promote hatred  or ill-will between the Janasangh and the Muslim League.      Reliance was  further placed  on Ex.  P. S  which was a cartoon printed in the paper Chandrika and it was alleged by the petitioner  that it  was done  with  the  knowledge  and consent of the appellant. The cartoon, according to the High Court, did  contain offending matter inasmuch as it tried to promote feelings  of hatred between two classes of citizens. So far  as Ex.  P. l(a)  the  speech  of  the  appellant  is concerned the petitioner made the following averments in the petition which may be extracted thus:- 691           "The respondent  is the Chief Editor of Chandrika,      a  daily   newspaper  published  from  Calicut.  It  is      published by the Muslim Printing and Publishing Company      Limited. The  major shares  of this company is owned by      the Muslim  League Party and the respondent holds share      worth of  Rs. 3  lakhs in  the above company. The daily      Chandrika is  the official  organ of  the Muslim League      Party. It  is submitted  that in the daily Chandrika of      which the  respondent is the Chief Editor, is published      reports and  articles appealing  to the  members of the      Muslim community  not to vote for the candidates of the      Muslim League  (opposition) in the name of religion and      community". The analysis of the averment clearly discloses the following facts:      1.   The petitioner  has not  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 four- corners 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 his speeches were reported to the paper by the reporters neither the script  of the  speech nor  the reporter  concerned  was examined as  a witness  to prove  that the contents were the transcript of  the speech  delivered by  the appellant.  The entire case  of the  petitioner on  this point  rests on  an admission made by 692 the appellant  in his  statement in  court that  the extract printed  in   the  paper   was  more  or  less  the  correct reproduction of  his speech.  Thus, it  is  clear  that  the petitioner relies  on this  part of  the case  solely on the admission of  the appellant.  It is  well  settled  that  an admission unless  it is separable has to be taken as a whole or not  at all.  In the  case of  Hanumant v.  The State  of

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Madhya Pradesh(l) this Court observed as follows:-           "It is  settled law  that an  admission made  by a      person whether  amounting to a confession or not cannot      be split  up and  part  of  it  used  against  him.  An      admission must  be used  either as  a whole  or not  at      all". To the same effect is the decision of this Court in the case of Palvinder  Kaur v. The State of Punjab(i’) where Mahajan, J. speaking. for the Court observed as follows:-           "The court  thus accepted  the inculpatory part of      that statement  and rejected  the exculpatory  part. In      doing  so   it  contravened   the  well  accepted  rule      regarding the  use of  confession  and  admission  that      these must either be accepted as a whole or rejected as      a whole  and that  the court is not competent to accept      only  the   inculpatory  part   while   rejecting   the      exculpatory part as inherently incredible".      The same  view was  taken in  a recent decision of this Court in  the case of Dadarao v. The State of Maharashtra(3) where this Court observed as follows:           "It may  not,  however,  be  overlooked  that  the      admission made  by the  appellant must  be  read  as  a      whole, for  what he  has stated is that he had made his      signature in  the. account  books of  the branch office      after an  audit objection  was raised  that he ought to      have signed  the books  at the  end of every day in his      managerial capacity.  The statement of the appellant on      this aspect  is not  capable of  dissection because the      particular part  thereof on which the High Court relies      is inextricably connected with the other part which the      High Court has not taken into consideration".      In view  of the  settled law  on the  question,  it  is manifest that  the petitioner  would fail  or succeed on the admission of the appellant and the admission will have to be read in the light of what the      (1) [1952] S.C.R. 1091.      (2) [1953] S.C.R. 94.      (3) [1974] 3 S.C.C. 630. 693 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  petitioner  to  the  use  of  the  words ’assassins’ for  describing the  Muslim who had gone over to the side  of the  United Front.  This passage was put to the appellant who stated thus:-           "In Ext.  P. 1(a)  second  paragraph  it  is  said      ’Murderers who split the community’ which community was

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    split (Q).  I was  referring to the split in the Muslim      League (Ans.).........  The speech  was at 2 o’clock in      the night.  I do  not know  whether the  words which  I      exactly used  have come  in the paper. The general idea      is the  same. I say that you used these very words; can      you deny  (Q.). I  am not sure (Ans.). When a speech is      made different  versions will  come in  the paper. I do      not usually prepare my speeches. I speak extempore".           "I cannot say that I used the very same words. But      I have  strongly urged  that the  opposition  Front  be      defeated. (Ans.)  Have you  said "RSS-Jana  Sangh which      was thirsting for the Muslim blood". (Q) The speech was      made a  year ago.  I do  not remember  the actual words      used. Ex.  P. 1(a)  report  was  written  by  Chandrika      reporters. The  ideas were  mine. The phrase ’thirsting      for blood’ was used in figurative language (Ans.)." It is  clear that  the appellant  does not  admit  that  the extract contains  the very  words which  were used by him in his speech  particularly when the appellant had delivered an extempore speech. As the 694 speech was  delivered a  year before by the appellant, it is quite natural  that he  would not have been able to remember the actual words used by him. The appellant however makes it clear that  the phrase ’thirsting for Muslim blood’ was used in a figurative sense and not literally. That must obviously have been  so. He  has further stated that he used the words ’thirsting for  blood’ in  a figurative sense and not in the sense of  drinking blood.  What he  meant was  to  give  the Muslim community  a  warning  that  it  would  guard  itself against such undesirable candidates by defeating them in the election. It was, therefore, a speech in a political matter. Further while  explaining the words ’Getting into the battle field’ the  witness has  stated that he used the same in the sense of  getting ready for a political contest. This is how the appellant  has explained  his speech and the explanation given by  him can  not be rejected because no other evidence has been  produced by the petitioner excepting the statement of the appellant regarding the interpretation of the speech.      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 appellant spoke nor  has he  called for  the script  of the speech the extract of  which was  given in  the newspaper.  It is  very difficult to  interpret a part of the speech completely torn from its  context. Furthermore, the words ’thrist for Muslim blood’ have  been used for a particular purpose as explained

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by the  appellant, because  the words following, namely, ’he loudly declared  that the  community should  rest only after completely flooring this front in the ring of the elections’ clearly show that what the speaker meant 695 was that  as Jana  Sangh and R.S.S. were against the Muslims they A  should muster  all efforts  to get them defeated and teach a  lesson to  the dissident Muslims who had joined the Janasangh party.  There does not appear to be any element of hatred or  enmity in  the  extract  of  the  speech  of  the appellant reported  above. There  is no  exhortation by  the speaker to the Muslims to attack the Janasangh or the R.S.S. Or to do any kind of harm or violence. ’the entire speech is made against  a political  background and  for  a  political purpose.      Another intrinsic  circumstance which  takes the speech out of  the ambit  of section  123(3A) of  the  Act  is  the conduct of  the petitioner.  The petitioner  admits  in  his evidence that  he heard  the speech of the appellant but did not take  down the  same. He further clearly admits that the speech excited  religious sentiments  which is  an  election offence and  yet he  did not  complain to  any one about the speech of  the appellant. In this connection, the petitioner stated thus:                "It is  a speech  which excites the religious      sentiments. That  is an  election offence.  I  had  not      complained to  any authority  about the  speech of  the      respondent". the petitioner  has not  examined any  independent member of the public  belonging to  the place  where  the  speech  was delivered and  who had  heard the  same to  prove  that  the speech tended  to promote hatred or enmity between different communities, nor  is there  any such  evidence consisting of the members  of the  people to  show what  impact the speech made on  them. On the other hand, it was rightly pointed out by Mr.  Nariman, counsel  for the  appellant that  there  is reliable evidence to show that the speech was not treated to be an  offending one or one that fell within the mischief of section 123(3A) of the Act.      P.W. 1  admits in  his statement  that a  paper  called ’Mathrubhumi’ dated 1-3-1977 which was shown to 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 696 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

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understood by  the public and the intellectuals as promoting hatred or  enmity between  two parties, some comment on this aspect must  have been  found in the paper Mathrubhumi which be longed  neither to  the Jana  Sangh  nor  to  the  Muslim League.      Furthermore, there is another paper ’League Time’ which is Ex.  R-14 and  which clearly  mentions that  in the  last election communalism  has not  played any  part at  all. The relevant extract may h’ be quoted thus:           "Communalism  has  not  played  any  part  in  the      election. Mr.  Rajagopal pointed  out this is a hopeful      situation". Thus, both  these papers  found no  communal tinge  nor  any sermon! preaching  hatred or  enmity between  Janasangh  and Muslim League  in any  of  the  speeches  delivered  by  the appellant at  the various  meetings in  the  course  of  the elections.      In view  of  the  circumstances,  therefore,  the  only evidence from  which the  court can  find that the appellant had committed  a corrupt practice as contemplated by section 123(3A) of the Act is the evid- 697 ence of  the appellant  containing the  explanation and  the ramifications of his speech which being an admission has, in the facts  and circumstances  of this case, to be taken as a whole or  not at all. Moreover, as the offending, extract of the speech  is  an  integral  part  of  the  speech  of  the appellant it  cannot be dissected. In other words. a corrupt practice must be proved beyond reasonable doubt and applying this standard we must hold that the petitioner has failed to prove that  the speech  given by  the appellant  promoted or attempted to promote hatred or enmity between two classes of citizens. In these circumstances. stances, the allegation in para S  of the  petition against  the appellant has not been proved. None  of the  aspects  discussed  by  us  have  been adverted to  by the High Court which seems to have proceeded on presumptions and assumptions.      Lastly we  come to  the next  item on which reliance is placed which  is Ex.  P.  5,  the  cartoon.  The  allegation regarding the  cartoon is  made by the petitioner in para 11 of the petition which may be extracted thus:-           "In Chandrika  dated 12-3-1977 on the front page a      cartoon is  published. It  is depicting Jana Sangh as a      Pig and  Shri E. M. Sankaran Namboodiripad, the Marxist      leader, cutting  the flesh of the pig and serving it to      the Muslim.  This is  an attempt to promote feelings of      enmity and hatred between different classes of citizens      of India  on grounds  of religion.  It 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

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698 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. Namboodiripad the  Marxist Leader  cutting the  flesh of the pig and  serving it to Muslims It is well known that pork is strictly prohibited  by Islam  and the  very act of offering pig to  a Muslim is extremely abhorrent to the Muslim so the cartoon no  doubt attempts  to  promote  feeling  of  hatred between the  Hindus and  the Muslims  and the High Court was right in  coming to this finding. But this does not conclude the matter  because it  must be affirmatively provide by the petitioner that  this cartoon  was shown to the appellant or was within his knowledge or had his consent before its publication. on this there is no evidence at all. Indeed if there is any evidence it is to negative this fact. The petitioner  has mainly relied on the statement of P.W. 2 the editor which is to the effect that the copy of Chandrika used to  be sent  to the appellant. That by itself would not show that  the appellant  must have  read all  the issues of Chandrika including  the one which contained the cartoon. In fact, as  indicated above,  P.W. 2 has himself admitted that at the  time of  election because of his responsibilities as the Secretary  of the  Muslim League  and as a leader of the United Front  during the  months of  February and  March the appellant  was  mostly  on  tour.  The  appellant  has  also admitted that  during the relevant time he never got time to read the  paper completely. He has also stated categorically as indicated  by us  while dealing with his evidence that he was extremely busy and has stated l thus:-                "As a  leader of  the United  Front  and  the      leader of  the Muslim League I got much work to be done      during election  time. During  this time  were you very      busy with  your election   speeches  ? (Q) Yes (Ans.) I      was very busy". He has  further admitted  that although  a copy of Chandrika was sent  to him  yet he did not get time to read fully. The statement runs thus:-           "As Chief Editor one issue of Chandrika used to be      sent to  me. Did  you have  time to  read Chandrika and      other newspapers  during election  time ?  (Q) l do not      get time to read fully (Ans.)"      This is  all the evidence that has been produced in the court  to  show  that  the  cartoon  was  printed  with  the knowledge and  consent of the appellant. Putting however the case of the petitioner at the 699 highest all  that has  been shown  is that the appellant may have seen A or received the paper and at the same time it is equally possible  that in  view of  his  pre-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

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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 but whatever he might have said in court  is totally  irrelevant because that would not show that he  had any  knowledge of  the  cartoon  prior  to  its publication. He  gives his  impression only when the cartoon is shown to him.      On a  careful consideration  of  the  evidence  we  are clearly of the opinion that the petitioner has not been able to prove the corrupt practice alleged against the appellant. There is no legal or satisfactory evidence to prove that the speech  Ext.  P.L(a)  made  by  the  appellant  promoted  or attempted to  promote feeling  of enmity  and hatred between two classes of citizens, namely, the Janasangh and R.S.S. On the one  side and the Muslim League on the other. Similarly, there is no reliable evidence to show that the appellant had any knowledge  or had given prior consent to the publication of the  cartoon Ex. P. S. Thus, the petitioner has miserably failed to  prove the  allegation made by him in paragraphs S and 11  of the petition which alone have been pressed before us. We have also come to the conclusion that the presumption under section  7 of  the Press  Act is  not available to the appellant and  the learned Judge was wrong in relying on the same.      The result  is that  the appeal  is allowed with costs. The judgment of the High Court setting aside the election of the appellant and unseating him is quashed as also the order of the High Court disquali- 700 fying the  appellant from  contesting  the  election  for  a period of  sixyears. The  election  petition  filed  by  the petitioner before the High Court is dismissed.                 Civil Appeal No. 865 of 1978      FAZAL ALI,  J.-In view  of our  decision in the case of Haji C.  H. Mohammed Koya v. T. K. S. M. A. Muthukoya (Civil Appeal No.  12 of 1978), the appeal is dismissed but without any order as to costs. P.H P.                              C. A. No. 12/78 allowed.                                   C.A. No. 865/78 dismissed. 701