# Naval Kishor Sharma v. State Of U.P. & Anr

- **Citation:** (2022) 10 ILRA 1096
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-30
- **Case number:** Matters under Art. 227 (Civil) No. 6178 of 2022
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naval-kishor-sharma-v-state-of-u-p-anr-47672
- **Pages:** 14

## Headnote

A. Criminal Law - Hate Speech - Indian
Penal Code: Section 295(A), 298, 419,
420, 501; Code of Criminal Procedure:
Section 200, 202, 203.

Jurisdiction - Summoning of a person is a
serious issue and a person cannot be
summoned
merely
by
making
an
allegation against him - The Apex Court in
the case of Mahendra Singh Dhoni (infra) has
specifically sounded word of caution to the
Magistrates conferred with the power of taking
cognizance and issuing summons to satisfy
themselves with regard to concept of territorial
jurisdiction apart from the other aspects of the
matter. In the present case, the trial court has
rightly followed the procedure and passed the
impugned order dated 11.03.2022. The trial
court was even cognizant of the fact that
summoning of a person in a criminal case is a
serious matter. The order of the trial court is
thus found to be a proper and judicious exercise
of its power. The revisional court while deciding
the revision against the order dated 11.03.2022
passed by the trial court has also considered
every aspect of the matter and then has come
to its conclusion that the order impugned
therein does not suffer from any illegality and
has dismissed the revision. The place of
occurrence in the present case is Malakheda,
District Alwar (Rajasthan). The complaint,
inquiry on it in the nature of statements u/s 200
and 202 Cr.P.C. are vague in so far as accruing
of the cause of action to the complainant at the
place of filing of the complaint is concerned.
This Court does not find any irregularity,
illegality or perversity in the judgment and order
dated 26.04.2022 passed by the revisional court
also.
Thus
looking
to
the
facts
and
circumstances of the case, this Court comes to
the conclusion that the Court at Mau had no
territorial jurisdiction to entertain the said
complaint. (Para 27, 28)

B. It is trite law that there has to be legal
evidence in support of the allegations
levelled against a person. In the present
case the only evidence relied upon is the
newspaper reporting and nothing else. As per
the settled legal position, a newspaper
report is not a "legal evidence". (Para 21)
10 All. Naval Kishore Sharma Vs. State of U.P. & Anr.
1097
C. Conveying a press conference and/or
giving an interview to the press is a totally
different act than addressing a general
public meeting in elections. A person
holding a press conference and a person giving
an interview to the press has a clear intention
and message to the persons present that his
speech or lecture or answers be published in
newspaper
and
magazines.
Addressing
a
general public meeting during elections for the
purposes of canvassing in elections is a totally
different act with a different intention and
object. The same is to address the gathering
present at the spot so as to imbibe a thought in
them for supporting the said political party.
(Para 23)

D. Words and Phrases - 'consequence' -
the word "consequence" appearing in S.179 of
Cr.P.C., has been held as a consequence which
forms a part and parcel of the offence. It does
not mean a consequence which is not such a
direct result of the act of the offender as to
form no part of that offence. It embraces
consequences which modify or complete the
acts alleged to be an offence. (Para 26)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

_Characters 0–39,950 of 47,127. This is a partial read: ask again with offset=39950 for what follows._

1096 INDIAN LAW REPORTS ALLAHABAD SERIES
Municipal Board, Meerut, the terms and
conditions of the lease deed was not
binding upon the plaintiffs/respondent
which means that the above clause which
the defendant/petitioner is referring to an
arbitration agreement, even otherwise,
shall not be binding upon the plaintiffs/
respondents.

31. In view of the finding that the
stipulation
referred
as
'arbitration
agreement' of the lease deed is not an
'arbitration agreement', therefore, in the
opinion of the Court, the application 8Ga2
under Section 8 of the Act, 1996 filed by
the defendant/petitioner is misconceived
and was not maintainable. In such view of
the fact, the Court is not proceeding to
deal with the other contentions of the
parties
to
unnecessarily
burden
the
judgement.

32. Thus, for the reasons given above,
the
writ
petition
lacks
merit.
It
is,
accordingly, dismissed.
----------
(2022) 10 ILRA 1096
ORIGINAL JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Matters under Art. 227 (Civil) No. 6178 of 2022

Naval Kishor Sharma ...Petitioner
Versus
State Of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
In Person, Sri Mohammad Iftekhar

Counsel for the Respondents:
G.A.

A. Criminal Law - Hate Speech - Indian
Penal Code: Section 295(A), 298, 419,
420, 501; Code of Criminal Procedure:
Section 200, 202, 203.

Jurisdiction - Summoning of a person is a
serious issue and a person cannot be
summoned
merely
by
making
an
allegation against him - The Apex Court in
the case of Mahendra Singh Dhoni (infra) has
specifically sounded word of caution to the
Magistrates conferred with the power of taking
cognizance and issuing summons to satisfy
themselves with regard to concept of territorial
jurisdiction apart from the other aspects of the
matter. In the present case, the trial court has
rightly followed the procedure and passed the
impugned order dated 11.03.2022. The trial
court was even cognizant of the fact that
summoning of a person in a criminal case is a
serious matter. The order of the trial court is
thus found to be a proper and judicious exercise
of its power. The revisional court while deciding
the revision against the order dated 11.03.2022
passed by the trial court has also considered
every aspect of the matter and then has come
to its conclusion that the order impugned
therein does not suffer from any illegality and
has dismissed the revision. The place of
occurrence in the present case is Malakheda,
District Alwar (Rajasthan). The complaint,
inquiry on it in the nature of statements u/s 200
and 202 Cr.P.C. are vague in so far as accruing
of the cause of action to the complainant at the
place of filing of the complaint is concerned.
This Court does not find any irregularity,
illegality or perversity in the judgment and order
dated 26.04.2022 passed by the revisional court
also.
Thus
looking
to
the
facts
and
circumstances of the case, this Court comes to
the conclusion that the Court at Mau had no
territorial jurisdiction to entertain the said
complaint. (Para 27, 28)

B. It is trite law that there has to be legal
evidence in support of the allegations
levelled against a person. In the present
case the only evidence relied upon is the
newspaper reporting and nothing else. As per
the settled legal position, a newspaper
report is not a "legal evidence". (Para 21)
10 All. Naval Kishore Sharma Vs. State of U.P. & Anr.
1097
C. Conveying a press conference and/or
giving an interview to the press is a totally
different act than addressing a general
public meeting in elections. A person
holding a press conference and a person giving
an interview to the press has a clear intention
and message to the persons present that his
speech or lecture or answers be published in
newspaper
and
magazines.
Addressing
a
general public meeting during elections for the
purposes of canvassing in elections is a totally
different act with a different intention and
object. The same is to address the gathering
present at the spot so as to imbibe a thought in
them for supporting the said political party.
(Para 23)

D. Words and Phrases - 'consequence' -
the word "consequence" appearing in S.179 of
Cr.P.C., has been held as a consequence which
forms a part and parcel of the offence. It does
not mean a consequence which is not such a
direct result of the act of the offender as to
form no part of that offence. It embraces
consequences which modify or complete the
acts alleged to be an offence. (Para 26)

Writ petition dismissed. (E-4)

Precedent followed:

1. Anoop Purie Vs Jayakumar Hiremath, (2017)
7 SCC 767 (Para 11)

2. Mahendra Singh Dhoni Vs Yerraguntla
Shyamsundar, (2017) 7 SCC 760 (Para 11)

3. Samant N. Balkrishna Vs George Fernandez,
(1969) 3 SCC 238 (Para 16)

4. Laxmi Raj Shetty Vs St. of T.N., (1988) 3 SCC
319 (Para 17)

5. Quamarul Islam Vs S.K. Kanta, 1994 Supp (3)
SCC 5 (Para 18)

6. Ghanshyam Upadhyay Vs St. of U.P., (2020)
16 SCC 811 (Para 19)

7. Ganeshi Lal Vs Nand Kishore, 1912 SCC Online
All 76; 1912 (Vol. X) A.L.J.R. 45 (Para 26)

Precedent distinguished:
1. Dr. Subramaniam Swamy Vs Prabhakar S. Pai
& anr., 1983 (2) BomCR 129 (Para 8, 22)

2. P. Lankesh & anr. Vs H. Shivappa & another,
1994 0 CrLJ 3510 (Para 8, 22)

3. Dilip Hazarika Vs Nain Ch. Buragohain, 2002
CrLJ 1608 (Para 8, 22)

4. Pankaj Jyoti Borah Vs The State of Assam &
ors., 2018 0 CrLJ 1908 (Para 8, 22)

5. Ashok Singhal Vs St. of U.P. & anr., 2005 2
Crimes (HC) 7 (Para 8, 22)

6.
Lee
Kun
Hee,
President,
Samsung
Corporation, South Korea & ors. Vs St. of U. P.
& ors., (2012) 3 SCC 132 (Para 8, 22)

Present petition assails judgment and
order dated 26.4.2022, passed by Sessions
Judge, Mau as well as judgment and order
dated 11.03.2022, passed by Civil Judge
(S.D.)/Addl. Chief Judicial Magistrate/M.P.
M.L.A. Court, Mau.

(Delivered by Hon'ble Samit Gopal, J.)

1. Heard Sri Mohammed Iftekhar
Farooqui, Advocate learned counsel for the
petitioner, Sri Manish Goyal, learned
Senior
Advocate/Additional
Advocate
General, Sri S.K. Pal, learned Government
Advocate,
Sri
A.K.
Sand,
learned
Additional
Government
Advocate,
all
assisted by Sri Rupak Chaubey, Sri B.B.
Upadhyay, Sri S.B. Maurya and Sri Raj
Kumar Gupta, learned counsels for the
State of U.P. and perused the records.

2. The present petition under Article
227 of the Constitution of India has been
filed by Naval Kishor Sharma, S/o Deonath
Sharma with the following prayers:-

"It is therefore most respectfully
prayed that this Hon'ble Court may be
pleased to set aside the judgement and
1098 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 26.4.2022 passed by Sessions
Judge, Mau in Criminal Revision No. 54 of
2022, Nawal Kishor Sharma Versus State
of U.P. as well as judgement and order
dated 11.03.2022 passed by Civil Judge
(S.D.)/Addl. Chief Judicial Magistrate/M.P.
M.L.A. Court, Mau in Misc. Case No.128
of 2019, Nawal Kishore Sharma Vs. Ajay
Singh
Vishtha
@
Yogi
Adityanath.
Otherwise petitioner would suffer with
irreparable loss.

It is further prayed that the court
below
may
be
directed
to
register
complaint case against respondent no.2 and
hear the matter accordingly.

Or may pass any such further
order or direction which this Hon'ble Court
may deem fit and proper under the
circumstances of the case."

3. The brief facts of the case are that a
complaint dated 11.1.2019 was filed by the
petitioner against Ajay Singh Bist alias
Yogi Adityanath for offences under Section
295 (A), 298, 419, 420, 501 IPC, Police
Station Dohrighat, District Mau titled as
Naval Kishor Sharma Versus Ajay Singh
Bist alias Yogi Adityanath mentioning
therein
the
date
of
occurrence
as
28.11.2018, the names and addresses of the
witnesses as Naval Kishor (complainant),
Yugal Kishore Sharma, S/o Devnath
Sharma, Santosh Prajapati, S/o Sidhari
Prajapati and other witnesses and record
keeper Superintendent Police, Mau alleging
therein that the respondent-accused is a
Mahant of Gorakshapeeth, Gorakhnath,
Police Station Gorakhnath and at present
the Chief Minister, Government of Uttar
Pradesh. On 28.11.2018, he addressed a
public meeting with regards to general
Vidhan Sabha Elections in Malakheda,
Alwar (Rajasthan) in which he stated
certain words for Lord Bajrangbali due to
which the religious sentiments of public
who are followers of Sri Bajrangbali have
been hurt. The respondent knowing that his
speech will cause hurt to the sentiments of
a specific group of people has stated about
it in his general public meeting. He has also
caused disrepute to his position as Chief
Minister which is a constitutional post and
has also not followed the circular issued by
the Election Commission, Government of
India. The said acts have been done by him
for benefits in a wrongful manner to his
party in elections and also to separate two
group of persons so that they may start
hating each other and may fight. The said
fact has been read by the complainant and
other persons in daily newspapers due to
which the religious sentiments of other
persons also got hurt. A legal notice dated
30.11.2018 was sent by the complainant
but despite service of notice calling upon
the respondent to tender apology to the
public in writing and orally, he did not do it
and by taking law in his hands the
presiding deity of the complainant has been
humiliated and to cause gain to his political
party, humiliated Lord Bajrangbali in a
public
meeting.
The
faith
of
the
complainant
has
been
hurt.
The
complainant tried to lodge a report at the
local police station and also gave a report
to the Superintendent of Police, Mau on
1.1.2019 but no action has been taken and
hence he has filed the present complaint.
He prays that after taking the evidence, the
accused be punished for offences under
Section 295 (A), 298, 419, 420, 501 IPC.

4. In support of the complaint, the
complainant was examined under Section
200 Cr.P.C. wherein he reiterated the
version of the complaint. Under Section
202 Cr.P.C. Yugal Kishore Sharma, S/o
Devnath Sharma was examined as P.W.1
10 All. Naval Kishore Sharma Vs. State of U.P. & Anr.
1099
and Anoop Kumar Yadav, S/o Rajendra
Yadav was examined as P.W.2. The
complainant also filed a copy of a
newspaper named "Jansandesh Times"
along with complaint, the copy of the same
has been annexed as Annexure No. - S.A-1
to the supplementary affidavit dated
7.9.2022.

5. The complaint as filed was
numbered as Criminal Complaint Case
No.128 of 2019, Naval Kishor Sharma
Versus Ajay Singh Bist alias Yogi
Adityanath.

6. Vide order dated 11.03.2022 passed
by
the
Civil
Judge
(Senior
Division)/Additional
Chief
Judicial
Magistrate, M.P. M.L.A, Mau the said
complaint was dismissed under Section 203
Cr.P.C. with the observation that the court
has no territorial jurisdiction to entertain
the same. Against the said order dated
11.03.2022 the complainant/petitioner filed
a criminal revision before the Sessions
Judge, Mau which was numbered as
Criminal Revision No.54 of 2022, Naval
Kishor Sharma Versus State of U.P. and
another. The said revision was also
dismissed vide judgement and order dated
26.04.2022 passed by the Sessions Judge,
Mau. The present petition under Article
227 o

7. Learned counsel for the petitioner
argued that:-

1) The hate speech was a
deliberate intention in the general rally
during election campaign. The opposite
party no.2 was in his knowledge that it
would
cause
turmoil
and
agitation
throughout the country.

2) Due to the deliberate speech
against Lord Bajrangbali, crores of his
followers were pained.

3) The words used against Lord
Bajrangbali were to impress people of
reserved constituency.

4) The hate speech was read by
the petitioner which hurt his religious
sentiments and thus he pursued the remedy
available under law.

5) This is not the first incident by
the opposite party no.2 but is a repeated
incident by a person holding a prestigious
and constitutional post.

6) The complaint is maintainable
in view of Section 179 Cr.P.C. which states
that the offence may be inquired into or
tried by a court within whose local
jurisdiction such thing has been done or
such consequence has ensued and in the
present matter the consequence has ensued
being the petitioner reading the said
newspaper which has hurt his religious
feelings.

8. Learned counsel for the petitioner
has
relied
upon
the
following
judgements:-

(i.) Dr. Subramaniam Swamy Vs.
Prabhakar S. Pai and another, 1983 (2)
BomCR 129 (para 9).

(ii.) P. Lankesh & another Vs. H.
Shivappa & another, 1994 0 CrLJ 3510
(para 10).

(iii.) Dilip Hazarika Vs. Nalin Ch
Buragohain, 2002 CrLJ 1608 (para 6).
1100 INDIAN LAW REPORTS ALLAHABAD SERIES

(iv.) Pankaj Jyoti Borah Vs. The
State of Assam and others, 2018 0 CrLJ
1908 (para 9).

(v.) Ashok Singhal Vs. State of
U.P. and another, 2005 2 Crimes (HC) 7
(para 10).

(vi.) Lee Kun Hee, President,
Samsung Corporation, South Korea and
others Vs. State of Uttar Pradesh and
others, (2012) 3 SCC 132 (para 35).

9. It is argued that in all the said
cases, the courts concerned have held that
the place where the consequence has
ensued is the place where a court gets
territorial jurisdiction.

10. Learned Additional Advocate
General for the State of U.P. vehemently
opposed the present petition and the
arguments of learned counsel for the
petitioner. It is argued that:-

1. The opposite party no.2 in the
present petition who has been arrayed as
the accused in the complaint is a nonexistent person. A person who has
renounced the world and has entered into
Sanyasi world and has become a Yogi
cannot be called by any other name
except for the name which he has adopted
after becoming a Yogi. It is argued that
the complaint states of a non-existent
person as the accused and even the same
person has been made as a respondent
no.2 in the present petition.

2. The complaint is totally silent
inasmuch
as
where
and
when
the
complainant read the newspaper. The
complainant has not even stated that he
was a subscriber to the said newspaper. It
is also not stated either in the complaint
or in his statement that the said
newspaper was having any circulation in
his area. It is argued that the newspaper is
the foundation of creation of territorial
jurisdiction in the present matter. The
description about the same is totally
missing.

3. The complainant has not made
the Editor of the newspaper as an accused.
The bare reading of the said newspaper
shows that it is some postal edition of the
newspaper. There is no averment by the
complainant that the said newspaper is
circulated in his area. It is argued that
Section 179 Cr.P.C. is not attracted at all in
the present matter. The provision which
applies is Section 177 Cr.P.C. The
complainant does not anywhere stated
about the credentials of the newspaper
which would go to show that the same was
a paper being circulated in his area. In the
complaint he states of the news item to be
read in daily newspaper but in his statement
under Section 200 Cr.P.C., he states that
the said news was heard, seen and read by
him in print media and electronic media.
The witnesses produced by him have also
stated that they and other persons have read
the news in daily newspaper but even the
said witnesses have not stated about the
date of the said newspaper, their names and
the place where they have read it.

4. In so far as the alleged
witnesses produced by the complainant
are concerned, Yugal Kishore Sharma,
P.W.1 who was examined under Section
202 Cr.P.C. is his real brother as is
apparent from his parentage and also his
address. The said fact has been concealed
by the complainant and even by the said
witness.
10 All. Naval Kishore Sharma Vs. State of U.P. & Anr.
1101

5. It is argued that the present
petition is under Article 227 of the
Constitution of India. The Court is a
supervisory
court
under
the
said
jurisdiction. There has been concurrent
findings by two courts below being the trial
court and the revisional court. This Court
cannot act as a Court of first appeal to
reappreciate, reweight evidence or facts
upon which determination under challenge
is based. When a final finding is justified or
can
be
supported,
the
supervisory
jurisdiction cannot be used to correct it.

6. The document at page 22 of the
supplementary affidavit which is being
stated to be the list of cases lodged against
the respondent no.2 is a new document
filed before this Court. There is no
reference of the same before the trial court
and even before the revisional court and as
such the same cannot be considered at this
stage.

11. Learned counsel has relied upon
the following judgements:-

(I) Aroon Purie Vs. Jayakumar
Hiremath : (2017) 7 SCC 767 (para 3).

(II) Mahendra Singh Dhoni Vs.
Yerraguntla Shyamsundar : (2017) 7 SCC
760 (para 14).

12. By placing the judgement in the
case of Aroon Purie (Supra), it is argued
that the inquiry in the matter was
completed by the learned Magistrate who
then came to the conclusion that the court
has no territorial jurisdiction over it and
then by a detailed order dismissed the
same. Further by placing the judgement in
the case of Mahendra Singh Dhoni (Supra),
it is argued that the Apex Court has put a
word of caution that the Magistrates who
have been conferred with the power of
taking cognizance and issuing summons are
required to carefully scrutinize whether the
allegations
made
in
the
complaint
proceeding meet the basic ingredients of
the offence, whether the concept of
territorial jurisdiction is satisfied and
whether the accused is really required to be
summoned and the said things are to be
treated
as
the
primary
judicial
responsibility of the Court issuing process.
In the present case, the learned Magistrate
has made an inquiry with regards to
territorial jurisdiction of the matter and the
jurisdiction of the said court and then has
reached to its satisfaction that the court has
no territorial jurisdiction to entertain the
said complaint and as such dismissed the
same under Section 203 Cr.P.C. It is argued
that the present case is a case which
deserves to be dismissed with exemplary
cost as the petitioner is abusing the process
of law and courts for vested interest
knowing the actual position of law as he is
an Advocate.

13. After having heard learned
counsels for the parties and perusing the
records, the facts which emerge out are that
the petitioner herein had filed a complaint
dated 11.1.2019 against the opposite party
no.2 for offences under Section 295 (A),
298, 419, 420, 501 IPC for an incident
which is said to have taken place on
28.11.2018 in Malakheda, District Alwar
(Rajasthan). The complaint has been filed
before the Chief Judicial Magistrate, Mau,
District Mau by the petitioner who is a
resident of Mau for attracting territorial
jurisdiction there. The complainant states
that he and other persons have read in daily
newspaper a news item relating to a hate
speech given by the accused in Malakheda,
District Alwar (Rajasthan) on 28.11.2018
by which words being derogatory in nature
1102 INDIAN LAW REPORTS ALLAHABAD SERIES
against Lord Bajrangbali were used which
has hurt his religious sentiments. It is
relevant to state here that it is stated that the
said speech was addressed in a public
meeting of general Vidhan Sabha Elections
at the said place. The complainant in the
inquiry under Section 200 Cr.P.C. then
states that the accused with an intention to
hurt the religious sentiments of a group of
persons had given the speech which was
heard, seen and read by him in print media
and electronic media. Yugal Kishore
Sharma, P.W.1 and Anoop Kumar Yadav,
P.W.2 in their statements under Section
202
Cr.P.C.
have
stated
that
the
complainant, they and other people have
read in daily newspaper about the said
speech due to which their religious
sentiments have been hurt. The details of
the newspaper and its credentials are
conspicuously missing in the complaint,
statement recorded under Section 200
Cr.P.C. of the complainant and the
statements of the alleged witnesses under
Section 202 Cr.P.C. The complainant does
not anywhere state about the date and time
when he read the said news item. His
witnesses are also silent about the same. A
copy of Jansandesh Times newspaper has
been filed before the trial court which has
also been filed before this Court as
Annexure S.A-1 to the supplementary
affidavit. The relevant paragraphs in which
it
has
been
addressed
in
the
said
supplementary affidavit is para no.4 in
which the same has been described as
newspaper dated 29.11.2018 and for the
first time, it is stated in the said paragraph
that the said newspaper is having its
circulation and selling in district Jaunpur,
Azamgarh, Mau and Gorakhpur and is
published
from
Varanasi.
The
said
averments are missing in the complaint,
statement of the complainant and in the
statement of his witnesses.

14. The backbone of the present
complaint is the news published in a local
newspaper.
The
basis
for
making
allegations is an article relied by the
petitioner said to have been published in a
newspaper named as "Jansandesh Times".
Admittedly
the
complainant
and
his
witnesses were not present in the said
meeting where the words as said to have
been hurt their religious sentiments, faith
and have caused disrepute to Lord
Bajrangbali were said. The complainant in
his statement under Section 200 Cr.P.C.
states that he heard, saw and read the same
in print media and electronic media but his
witnesses in the inquiry under Section 202
Cr.P.C. stated of reading the same in daily
newspapers but there is nothing on record
to corroborate the same and it is too vague
to be believed. Only a newspaper cutting
has been placed by the complainant on
record as evidence although he states to
have seen and heard it in electronic media
also.

15. The reporting in newspaper has to
be fortified whether it is correct or not. It is
a hearsay secondary evidence in itself and
unless the person reporting it is examined,
is not admissible. Any other person before
whom the incident has occurred can also be
examined to prove the said fact and make it
admissible.

16. The admissibility of news paper
reports in evidence has been considered
and decided many times. In the case of
Samant
N.
Balkrishna
v.
George
Fernandez : (1969) 3 SCC 238, the Apex
Court in paragraph 47 has held as under:-

"47. The meeting at Shivaji Park
about which we shall say something
presently, was not held in Mr Fernandez's
constituency. The similarity of ideas or
10 All. Naval Kishore Sharma Vs. State of U.P. & Anr.
1103
even of words cannot be pressed into
service to show consent. There was a stated
policy of Sampurna Maharashtra Samiti
which wanted to join in Maharashtra all
the areas which had not so far been joined
and statements in that behalf must have
been made not only by Mr Atrey but by
several other persons. Since Mr Atrey was
not appointed as agent we cannot go by the
similarity of language alone. It is also very
significant that not a single speech of Mr
Fernandez was relied upon and only one
speech of Mr Fernandez namely, that at
Shivaji Park was brought into arguments
before us by an amendment which we
disallowed. The best proof would have been
his own speech or some propaganda
material such as leaflets or pamphlets etc.
but none was produced. The "Maratha"
was an independent newspaper not under
the control of the Sampurna Maharashtra
Samiti or the S.S.P. which was sponsoring
Mr Fernandez or Mr Fernandez himself.
Further we have ruled out news items
which it is the function of the newspaper to
publish. 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 themselves
although they may be taken into account
with other evidence if the other evidence is
forcible. In the present case the only
attempt to prove a speech of Mr Fernandez
was made in connection with the Shivaji
Park meeting. Similarly the editorials state
the policy of the newspaper and its
comment upon the events. Many of the
news items were published in other papers
also. For example Free Press Journal, the
Blitz and writers like Welles Hengens had
also published similar statements. If they
could not be regarded as agents of Mr
Fernandez we do not see any reason to
hold that the "Maratha" or Mr Atrey can
safely be regarded as agent of Mr
Fernandez when acting for the newspaper
so as to prove his consent to the
publication of the defamatory matter. We
are therefore of opinion that consent
cannot reasonably be inferred to the
publications in the "Maratha". We are
supported in our approach to the problem
by a large body of case law to which our
attention was drawn by Mr Chari. We may
refer to a few cases here : Bishwanath
Upadhaya v. Hardal Das [1958 Ass 97] ;
Abdul Majeed v. Bhargavan (Krishnan)
[AIR 1963 Ker 18] ; Rustom Satin v. Dr
Sampoornanand [20 ELR 221] ; Sarla Devi
Pathak v. Birendra Singh [20 ELR 275] ;
Krishna Kumar v. Krishna Gopal [AIR
1964 Raj 21] ; Lalsing Kesbrising Sehvar
v. Vallabhdas Shankarlal Phekdi [AIR
1967 Guj 62] ; Badri Narain Singh v.
Kamdeo Prasad Singh [AIR 1951 Pat 41]
and
Sarat
Chandra
Rabba
v.
Khagendranath Math [AIR 1961 SC 334] .
It is not necessary to refer to these cases in
detail except to point out that the Rajasthan
case dissents from the case from Assam on
which Mr Jethamalani relied. The principle
of law is settled that consent may be
inferred from circumstantial evidence but
the circumstances must point unerringly to
the conclusion and must not admit of any
other explanation. Although the trial of an
election petition is made in accordance
with the Code of Civil Procedure, it has
been laid down that a corrupt practice must
be proved in the same way as a criminal
charge is proved. In other words, the
election petitioner must exclude every
hypothesis except that of guilt on the part
of the returned candidate or his election
1104 INDIAN LAW REPORTS ALLAHABAD SERIES
agent. Since we have held that Mr Atrey's
activities
must
be
viewed
in
two
compartments, one connected with Mr
Fernandez and the other connected with
the newspaper we have to find out whether
there is an irresistable inference of guilt on
the part of Mr Fernandez. Some of the
English cases cited by Mr Jethamalani are
not a safeguide because in England a
distinction
is
made
between
"illegal
practices" and "corrupt practices". Cases
dealing with "illegal practices" in which
the candidate is held responsible for the
acts of his agent are not a proper guide. It
is to be noticed that making of a false
statement is regarded as "corrupt practice"
and not an "illegal practice" and the tests
are different for a corrupt practice. In
India all corrupt practices stand on the
same footing. The only difference made is
that when consent is proved on the part of
the candidate or his election agent to the
commission of corrupt practice, that itself
is sufficient. When a corrupt practice is
committed by an agent and there is no such
consent then the petitioner must go further
and prove that the result of the election
insofar as the returned candidate is
concerned was materially affected. In
Bayley v. Edmunds, Byron and Marshall
[(1894) 11 TLR 537] strongly relied upon
by Mr Daphtary, the publication in the
newspaper was not held to be a corrupt
practice but the paragraph taken from a
newspaper and printed as a leaflet was
held to be a corrupt practice. That is not
the case here. Mr Patil's own attitude
during the election and after is significant.
During the election he did not once protest
that Mr Fernandez charged his workers
with hooliganism. Even after the election
Mr Patil did not attribute anything to Mr
Fernandez. He even said that the Bombay
election was conducted with propriety.
Even at the filing of the election petition he
did not think of Mr Fernandez but
concentrated on the "Maratha"."

17. In the case of Laxmi Raj Shetty
v. State of T.N. : (1988) 3 SCC 319 the
Apex Court in paragraphs 25 and 26 has
held as under:-

"25. As to the first, the accused
Laxmi Raj Shetty was entitled to tender the
newspaper report from the Indian Express
of the 29th and the regional newspapers of
the 30th along with his statement under
Section 313 of the Code of Criminal
Procedure, 1973. Both the accused at the
stage of their defence in denial of the
charge had summoned the editors of Tamil
dailies Malai Murasu and Makkal Kural
and the news reporters of the Indian
Express and Dina Thanthi to prove the
contents of the facts stated in the news item
but they dispensed with their examination
on the date fixed for the defence evidence.
We cannot take judicial notice of the facts
stated in a news item being in the nature of
hearsay secondary evidence, unless proved
by evidence aliunde. A report in a
newspaper is only hearsay evidence. A
newspaper is not one of the documents
referred to in Section 78(2) of the Evidence
Act, 1872 by which an allegation of fact
can be proved. The presumption of
genuineness attached under Section 81 of
the Evidence Act to a newspaper report
cannot be treated as proved of the facts
reported therein.

26. It is now well settled that a
statement of fact contained in a newspaper
is
merely
hearsay
and
therefore
inadmissible in evidence in absence of the
maker of the statement appearing in court
and deposing to have perceived the fact
reported.
The
accused
should
have
therefore produced the persons in whose
10 All. Naval Kishore Sharma Vs. State of U.P. & Anr.
1105
presence the seizure of the stolen money
from Appellant 2's house at Mangalore was
effected
or
examined
the
press
correspondents in proof of the truth of the
contents of the news item. The question as
to the admissibility of newspaper reports
has been dealt with by this Court in Samant
N. Balkrishna v.George Fernandez [(1969)
3 SCC 238 : (1969) 3 SCR 603 : AIR 1969
SC 1201] . There the question arose
whether Shri George Fernandez, the
successful
candidate
returned
to
Parliament
from
the
Bombay
South
Parliamentary Constituency had delivered
a speech at Shivaji Park attributed to him
as reported in the Maratha, a widely
circulated Marathi newspaper in Bombay,
and it was said: (SCC p. 261, para 47)

"A newspaper 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 themselves
although they may be taken into account
with other evidence if the other evidence is
forcible."

We need not burden the judgment
with many citations. There is nothing on
record to substantiate the facts as reported
in the newspapers showing recovery of the
stolen amount from the residence of
Appellant 2 at Mangalore. We have
therefore
no
reason
to
discard
the
testimony of PW 50 and the seizure
witnesses which go to establish that the
amount in question was actually recovered
at Madras on the 29th and the 30th as
alleged."

18. In the case of Quamarul Islam v.
S.K. Kanta : 1994 Supp (3) SCC 5 in
paragraph 48 it has been held by the Apex
Court as under:-

"48.
Newspaper
reports
by
themselves are not evidence of the contents
thereof. Those reports are only hearsay
evidence. These have to be proved and the
manner of proving a newspaper report is
well settled. Since, in this case, neither the
reporter who heard the speech and sent the
report was examined nor even his reports
produced, the production of the newspaper
by the Editor and Publisher, PW 4 by itself
cannot amount to proving the contents of
the newspaper reports. Newspaper, is at
the best secondary evidence of its contents
and is not admissible in evidence without
proper proof of the contents under the
Indian Evidence Act. The learned trial
Judge could not treat the newspaper
reports as duly ''proved' only by the
production of the copies of the newspaper.
The election petitioner also examined
Abrar Razi, PW 5, who was the polling
agent of the election petitioner and a
resident of the locality in support of the
correctness of the elereports including
advertisements and messages as published
in the said newspaper. We have carefully
perused his testimony and find that his
evidence also falls short of proving the
contents of the reports of the alleged
speeches
or
the
messages
and
the
advertisements, which appeared in different
issues of the newspaper. Since, the maker
of the report which formed basis of the
publications, did not appear in the court to
depose about the facts as perceived by him,
the facts contained in the published reports
were clearly inadmissible. No evidence was
led by the election petitioner to prove the
contents
of
the
messages
and
the
advertisements as the original manuscript
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
of the advertisements or the messages was
not produced at the trial. No witness came
forward to prove the receipt of the
manuscript of any of the advertisements or
the messages or the publication of the same
in accordance with the manuscript. There
is no satisfactory and reliable evidence on
the record to even establish that the same
were actually issued by IUML or MYL,
ignoring for the time being, whether or not
the appellant had any connection with
IUML or MYL or that the same were
published by him or with his consent by any
other person or published by his election
agent or by any other person with the
consent of his election agent. The evidence
of the election petitioner himself or of PW 4
and PW 5 to prove the contents of the
messages
and
advertisements
in
the
newspaper in our opinion was wrongly
admitted and relied upon as evidence of the
contents
of
the
statement
contained
therein."

19. In the case of Ghanshyam
Upadhyay v. State of U.P. : (2020) 16 SCC
811 it has been held by the Apex Court in
paragraphs 6, 7 and 8 as under:-

"6. As noted, the entire basis for
making the allegations as contained in the
miscellaneous petition is an article relied
on by the petitioner said to have been
published in the newspaper. There is no
other material on record to confirm the
truth or otherwise of the statement made in
the newspaper. In our view this Court will
have
to
be
very
circumspect
while
accepting such contentions based only on
certain newspaper reports. This Court in a
series of decisions has repeatedly held that
the newspaper item without any further
proof is of no evidentiary value. The said
principle laid down has thereafter been
taken note in several public interest
litigations
to
reject
the
allegations
contained in the petition supported by
newspaper report.

7. It would be appropriate to
notice the decision in Kushum Lata v.
Union of India [Kushum Lata v. Union of
India, (2006) 6 SCC 180] wherein it is
observed thus : (SCC p. 186, para 17)

"17. ... It is also noticed that the
petitions are based on newspaper reports
without
any
attempt
to
verify
their
authenticity. As observed by this Court in
several cases, newspaper reports do not
constitute evidence. A petition based on
unconfirmed
news
reports,
without
verifying their authenticity should not
normally be entertained. As noted above,
such petitions do not provide any basis for
verifying the correctness of statements
made and information given in the
petition."

8. This Court in Rohit Pandey v.
Union of India [Rohit Pandey v. Union of
India,
(2005)
13
SCC
702]
while
considering the petition purporting to be in
public interest filed by a member of the
legal fraternity had come down heavily on
the petitioner, since the said petition was
based only on two newspaper reports
without further verification."

20. From the above judgements it is
clear that newspaper report by itself does
not constitute an evidence of the contents
of it. The reports are only hearsay evidence.
They have to be proved either by
production of the reporter who heard the
said statements and sent them for reporting
or by production of report sent by such
reporter and production of the Editor of the
newspaper or it's publisher to prove the said
report. It has been held by the Apex Court
10 All. Naval Kishore Sharma Vs. State of U.P. & Anr.
1107
that
newspaper
reports
are
at
best
secondary evidence and not admissible in
evidence without proper proof of its
content under the Indian Evidence Act,
1872. It is thus clear that newspaper report
is not a "legal evidence" which can be
examined in support of the complainant.

21. It is trite law that there has to be
legal evidence in support of the allegations
levelled against a person. In the present
case the only evidence relied upon is the
newspaper reporting and nothing else. For
what has been stated above and as per the
settled legal position, a newspaper report is
not a "legal evidence".

22. In so far as the judgements relied
by learned counsel for the petitioner are
concerned,
in
the
case
of
Dr.
Subramaniam Swamy (Supra) the same
related to a press conference which was
held by the accused at Chandigarh in which
he had made certain statements which were
said to be defamatory. The same was made
in the presence of several newspaper
reporters and others and then on the next
day it was published in the newspaper. In
the case of P. Lankesh (Supra), the
accused were the printer, editor and
publisher of a news magazine "Lankesh
Patrika" in which an article containing
alleged defamatory imputations against the
complainant was published. In the case of
Dilip Hazarika (Supra), the two accused
were the Managing Director and the Editor
of a weekly "Raijer Prahri" which had
published a news item against which a
complaint was filed. In the case of Pankaj
Jyoti Borah (Supra), the accused persons
had held a press meeting at a press club
which was covered by the electronic media
and print media and was published in
newspaper. In the case of Ashok Singhal
(Supra), an article had appeared in a
weekly
news
magazine
"Panchjanya"
which had carried an interview of the
accused in which it was alleged that there
were certain offending things said by him.
The case of Lee Kun Hee (Supra), is
totally
different
on
facts
and
distinguishable from the present case. The
said case arises out of an agreement
between two parties with regards to supply
of certain products and the dispute related
to
business
transaction.
It
has
no
application as such in the present case.

23. Conveying a press conference
and/or giving an interview to the press is a
totally different act than addressing a
general public meeting in elections. A
person holding a press conference and a
person giving an interview to the press has
a clear intention and message to the persons
present that his speech or lecture or
answers be published in newspaper and
magazines. Addressing a general public
meeting during elections for the purposes
of canvasing in elections is a totally
different act with a different intention and
object. The same is to address the gathering
present at the spot so as to imbibe a thought
in them for supporting the said political
party.

24.

Section
177
of
Criminal
Procedure Code, 1973 reads as under:-

"177. Ordinary place of inquiry
and trial. - Every offence shall ordinarily
be inquired into and tried by a Court within
whose local jurisdiction it was committed."

25.

Section
179
of
Criminal
Procedure Code, 1973 reads as under:-

"179.