# NARASINGH .CHARAN MOHANTY' v. SURENDRA MOHANTY October 12, 1973

- **Citation:** [1974] 2 S.C.R. 39
- **Court:** Supreme Court of India
- **Decided:** 1973-10-12
- **Bench:** P. Jaganmohan Reddy, s. ~· DwiVEDI, P. K. GoSWAMI
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/narasingh-charan-mohanty-v-surendra-mohanty-october-12-1973-6144
- **Pages:** 21

## Headnote

Representation of the People Act, 1951-S. 123(3) and (4)-Corrupt practice--Consent what b.
·
'
Practice and procedure-Pltadint!.
Press and Registration of Books Act, 1867-S. 1-Presumption that a person
whose fUlme was printed in the newspaper was the editor-It could be rebutted.
.
The election of the respondent was ·challenged by the appellant on the
ground of corrupt practices under sub-ss. (3) and (4) of s. 123 of the Representation of the People Act, 1951. The respondent was a nominee of the Utkal
Congre5s of which BP was the founder leader. The respondent was also the
editor of an Oriya Daily published by the Kalinga Publications whose Chairman
was BP. The election ·symbols of Utk.al Congress were Chatra (wheel) and
Langala (plough). It was alleged that (i) the respondent had publi-
- shed an editorial in his paper appealing to the
religious
symbol
of
Chakra and Langala. the
mythological~ weapons associated with Jagannath and Balram the most worshipped· and esteemed deities. of Orissa for
the furtherance of the prospects of his election and for prejudicially affecting
the election of other candidates; (ii) BP in a public meeting appealed to the
people invoking the religious symbol in the presence of the respondent with his
consent and without any protest by him and that the respondent had published
the report of the meeting in his paper and (iii) that the respondent made false
statement of facts regarding the personal character and conduct of one of the
defeated candidates and that this was published in the respondent's paper or
with his consent by his subordinates. While conceding that he was the editor
of the newspaper the respondent claimed Qlat he . was on leave at the relevant
time and that he had nothing to do with the writing of the editorial or with the
editing of the news reports.
'
Dismissing. the appeal,
HEID: (i) Though s. 7 of the Press and Registration of Books Act, 1857
raises a presumption that a person whose name is printed in a copy of the
newspaper was the editor of every portion of that issue, that presumption might
.be rebutted by evidence. ·In order to rebut this presumption the respondent
will lfave to establish that he had nothing to do with the publication of either
the editorial or the news report or that any of them was wntten and/or publish·
ed without his tnowledge or without his consent. [47-G-H]
·
D. P. Mishra v. Kamal Narain Sharma [19711 3 S.C.R. 251, held inapplicable.
·
. ·
It is one of the accepted. principles that pleadings must contain and contain
only a statement in a summary form of material facts on which the party bases
hig claim or defence and facts which are merely evidence of material facts,
though necessary to be proved at the trial, need not be pleaded; but if it is ·a
'material fact it ·should be pleaded. In the instant case the material facts had
been stated and any omission to set out in the peadings the evidence that had
been led to establisb. that the respondent was not concerned with the impugned
corrupt practice could not be looked at with suspicion. [ 48H; of9A·Bl
(ii) Consent or agency could not be inferred from remote causes nor could
it be inferred from mere close friendship or other relationship or political affiH . liation between the respondent and BP. 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 could be inferred. Since the publication of the
respondent's speech had not been made with his consent, that publication, even
.·
40
SUPREME COURT REPORTS
[ 1974) 2 S.C.R.
assuming its contents nad been proved, did not constitute a corrupt practice.
(52FG]
(iii) [f amounts had been collected for any public l?urpose, asking the ~r
son collecting those amounts of those who we.re resp(_>nsJbk ~or the1! collection,
to give an account, could not amount to an Imputation agatnst ~e1r
person

## Text

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NARASINGH .CHARAN MOHANTY'
v.
SURENDRA MOHANTY
October 12, 1973.
39
\
[P. JAGANMOHAN REDDY, s. ~· DwiVEDI AND P. K. GoSWAMI, JJ.]
Representation of the People Act, 1951-S. 123(3) and (4)-Corrupt practice--Consent what b.
·
'
Practice and procedure-Pltadint!.
Press and Registration of Books Act, 1867-S. 1-Presumption that a person
whose fUlme was printed in the newspaper was the editor-It could be rebutted.
.
The election of the respondent was ·challenged by the appellant on the
ground of corrupt practices under sub-ss. (3) and (4) of s. 123 of the Representation of the People Act, 1951. The respondent was a nominee of the Utkal
Congre5s of which BP was the founder leader. The respondent was also the
editor of an Oriya Daily published by the Kalinga Publications whose Chairman
was BP. The election ·symbols of Utk.al Congress were Chatra (wheel) and
Langala (plough). It was alleged that (i) the respondent had publi-
- shed an editorial in his paper appealing to the
religious
symbol
of
Chakra and Langala. the
mythological~ weapons associated with Jagannath and Balram the most worshipped· and esteemed deities. of Orissa for
the furtherance of the prospects of his election and for prejudicially affecting
the election of other candidates; (ii) BP in a public meeting appealed to the
people invoking the religious symbol in the presence of the respondent with his
consent and without any protest by him and that the respondent had published
the report of the meeting in his paper and (iii) that the respondent made false
statement of facts regarding the personal character and conduct of one of the
defeated candidates and that this was published in the respondent's paper or
with his consent by his subordinates. While conceding that he was the editor
of the newspaper the respondent claimed Qlat he . was on leave at the relevant
time and that he had nothing to do with the writing of the editorial or with the
editing of the news reports.
'
Dismissing. the appeal,
HEID: (i) Though s. 7 of the Press and Registration of Books Act, 1857
raises a presumption that a person whose name is printed in a copy of the
newspaper was the editor of every portion of that issue, that presumption might
.be rebutted by evidence. ·In order to rebut this presumption the respondent
will lfave to establish that he had nothing to do with the publication of either
the editorial or the news report or that any of them was wntten and/or publish·
ed without his tnowledge or without his consent. [47-G-H]
·
D. P. Mishra v. Kamal Narain Sharma [19711 3 S.C.R. 251, held inapplicable.
·
. ·
It is one of the accepted. principles that pleadings must contain and contain
only a statement in a summary form of material facts on which the party bases
hig claim or defence and facts which are merely evidence of material facts,
though necessary to be proved at the trial, need not be pleaded; but if it is ·a
'material fact it ·should be pleaded. In the instant case the material facts had
been stated and any omission to set out in the peadings the evidence that had
been led to establisb. that the respondent was not concerned with the impugned
corrupt practice could not be looked at with suspicion. [ 48H; of9A·Bl
(ii) Consent or agency could not be inferred from remote causes nor could
it be inferred from mere close friendship or other relationship or political affiH . liation between the respondent and BP. 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 could be inferred. Since the publication of the
respondent's speech had not been made with his consent, that publication, even
.·
40
SUPREME COURT REPORTS
[ 1974) 2 S.C.R.
assuming its contents nad been proved, did not constitute a corrupt practice.
(52FG]
(iii) [f amounts had been collected for any public l?urpose, asking the ~r
son collecting those amounts of those who we.re resp(_>nsJbk ~or the1! collection,
to give an account, could not amount to an Imputation agatnst ~e1r
person~!
character.
Men in public life, particularly those who collect momes for pubhc
or charitable purposes ought not to be sensitive when there was a
demand to
account for those ~mounts. lt might hurt the vanity ~r the ~go of .the .per~on
from whom accounts were. asked, but it is far from bemg an tmputatlon aaa1nst
the personal character or conduct of the person concerned.
Such
a
demand
would refer to the public conduct of the person who was liable to render accounts
and did not amount to cor11,1Pt practice.
J55H. 56A·Bl
CrvrL APPELLATE JURISDICTION :
Civil Appeal No. 402 of 1972
Appeal from the judgment an4 order dated the 14th January, 1972
of the Orissa High Court in Election Petition No. ·s. of 1971.
Gobin Das, S. Mishra, P. H. Parekh and Sunanda Bhandare, for
the appellant.
Frank Anthony, B. K. P. Sinha, Gokul Behari Mohanty, B. P.
i\-laheshwari, Suresh Sethi and Sharad Manohar, for the respondent.
The Judgment of the Court was delivered by
t
JAGANMOHAN REDDY, J.-The respondent-a nominee
of
the
Utkal Congress of which Biju Patnaik an ex·Chief Minister of the
Orissa State is the founder leader-was elected to the Lok Sabha from
the Kendrapara parliamentary constituency in that State, by defeating
two candidates. namely Surendranath Dwivedi-a nominee of the
Praja Socialist Party-and Pradyamna Kishore Bal-a nominee of the
Indian National Congress (R) Party.
At this election the respondent
Surendra Mohanty polled 1,23,680
votes,
Surendranath
Dwivedi
1 ,20, 707 votes and Pradyamna Kishore Bal I, 11,235 votes. The appellant-a voter in tha.t constituency-challenged the --election
of
the
respondent on the ground that corrupt practices under sub-ss. ( 3) and
( 4) of s. 123 of the Representation of the People_ Act, 1951-here·
inafter referred to as 'the Act'-which were detailed in sub-paragraphs
(i) to (iv) of paragraph-S of the petition were committed by him
a~dfor by h!s a~ents with his consent. The petition, after it was duly
tned, was dtsmtsed by the High Court, against which this appeal bas
been filed under s. 116A of the Act.
It may be mentioned that the respondent w~s at all material times,
and even at the date of the election petition an editor of an Oriya
Daily 'The. Ka~~nga' pu~lished by the Kalinga Publications
whose
Ch~trman ts BIJU Patnatk.
As one of the· corrupt practices
alleged
agamst the respondent has relevance to the election symbol, it is
necessary to state that the symbol allotted to the Utkal Congress was
the ~ater w~eel (Chakra) and the plough (Langala). The corrupt
pr~chces wh1ch have been set out in paragraph 5 of the petition and
wh1c~ were alle_ged ~o have been committed by the respondent and{
or ~ts agents wtth hts consent can be divided into two broad clltegones :--
(I ) The appeal to the religious symbol, a corrupt practice
under sub-s. (3) of s. 123 of the Act; and
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N. C. MOHANTY v. SURENDRA (Jaganmo!Jan Reddy, J.)
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(2) Imputation against the personal character and con·
duct of Surendranath Dwivedi, a corrupt practice under
sub-s. ( 4) of s. 123 of the A~t.
In respect of the first category the allegations are
(i) that the
respondent who was the editor of an Oriya Daily 'The Kalinga' published in his paper dated February 15, 1971, an editorial appealing "to
the religious symbol of Chakra and Lapgala the mythologicnl weapons
associated with Jagannath and Balaram the most worshipped
and
esteemed deities in Orissa for the furtherance of the prospects of his
election and for prejudically affecting the election of other candidates".
(paragraph 5 (i) of the petition):
(ii) that Biju Patnaik in a public meeting held on February 15,
1971, at 5 P.M. had "appealed to religious symbol by saying that his
party (Utkal Congress) was fu11y able to eradicate unemployment and
poverty from the country by forming a strong Government in the State
with the help of the two powers Jagannath and Balaram whose weapons Chakra and Langala have been chosen by Utkal Congress as its
symbol. The statement was made in the presence of the respondent
with his consent and without any protest by him and was for the
furtherance of the prospect of the respondent. ... "- (paragraph 5(iii)
of the peti'!ion); and
(iii) that the respondent in his daily paper 'The Kalinga' dated
February 19, 1971 had published a report regarding th~ meeting held
at Marshagha i on February 15, 1971, containing the aforesaid appeal
to religious symbol as detailed in (i) above. (paragraph 5(iv) of the
petition.
The allegations in respect of the second category are:-
(i) that on February 15, 1971 in a public meeting held at 5 P.M.
at Marshaghai the respondent made false state~ents of facts regarding
the personal character and conduct of Surendranath Dwivedi to the
following effect which the respondent believed to be false and! or did
not believe to be true :-
"Shri Surendranath Dwivedi has not yet rendered account
of the gift of one Iakb rupees from the Marwari Society,
Bombay, and Rs. 25,000/· from the Prime Minister brought
by him during the cyclone of 1967 for the relief of the
people."
(paragraph 5 (ii) of the petition); and
(ii) that the report regarding the said meeting of rebruarv 1 ~,
1971 containing a false statement in relation to the personal character
or conduct of Surendranath Dwivedi as detailed above (in paracraph
5(ii) of the petition) was published in his daily oaner 'The Kalinga'
dated February 19, 1971 by the respondent or with his consent by
his subordinates.
42
SUPREME COURT REPORTS
[ 1974] 2 S.C.R.
It is stated that the statements of fact both in the speech and the
report were false and that Sur~ndranath Dwivedi had not re.ceived .a~y
money from the Marwari Society, Bombay or from t~e Pnme .MI.DlS·
ter during the cyclone of 1967; that the respondent bemg an edttor of
a daily newspaper knew them to be false or at least he did not believe
them to be true; and that the said false statement was reasonably
calculated to prejudice the prospects of
Surendranath
Dwivedi's
election.
The respondent in paragraph·8 of his written statement
denied
the allegations of corrupt practices said to have, been committed by
him. In respect of the allegations in the first category-
(i) The respondent while admitting he was the editor of The
Kalinga at all material times stated that he had nothing to do with the
editorial of February 15, 1971 or with the publication of the news
report of February 19, 1971, nor did he authorise or consent to any
one publishing them nor those who published them were his agents.
Even so the editorial did not appeal to a religious symbol, but only by
analogy to the secular myth of the Oriya people referred to them as
symbols of development of industry and agriculture.
(ii) 'The respondent wa~ not present at the time when Biju Patnailc
spoke on February 15, 1971, at Marshaghai as he had to leave for
another meeting for which he was already late and he was, therefore,
not in a position to either affirm or deny from his own knowledge as
to what was stated by Biju Patnaik or as was reported in The Kalinga
of February 19, 1971, and the speech of Biju Patnaik, even assuming
that it was made, had only a reference to a st~ong Government in the
State, and had no relevance to the prospects of the election of either
the respondent or Dwivedi and that his alleged reference to the wheel
and plough as weapons of deities to root out corruption and unemployment being in illustration of the election symbol by way of analogy,
did not amount to any religious appeal, and at any event the respon·
dent had never consented to or authorised Patnaik to make such a
statement.
(iii) The respondent was not acting as editor of 'The Kalinga' at
aU material times as due to his election he was absent on leave, nor
did the daily have any correspondent at Marshaghai or any other
place mentioned in the report. It was alleged that the report was
submitted by some person interested describing himself as "from an
informer", that what was spoken by him at the meeting of February
15, 1971 was misreported, and that he did not make the statement
said to have caused. a sensation.
At any event, the report of the
statements alleged to have been made by the respondent and Patnaik
as stated earlier did not amount to a.ny appeal to a religious symbol
made for furtherance of the prospects of the election of the respondent,
nor were they reasonably calculated to prejudice the prospects
of
eJection of Dwivedi.
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N. C. MOHANTY V. SURENDRA (1 aganmohan Reddy, ] . )
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The allegations of corrupt practi~es in the second category were -
met with denials as under:-
(i) The respondent did not make any such statement at the meeting held at Marshaghai on February 15, 1971 as alleged in the election
petition in paragraph S(ii) and at any event, assuming for the sake
of argument that such !l statement calling on Dwivedi to render an
account of the amounts collected for public we).fare was made,
it
would, without a further allegation of misappropriation of such funds,
relate to· the public conduct of Dwivedi a,s a responsible Member of
Parliament and not to his personal character or conduct, and more so
when he lets it be known to the public on his behalf that such accounts
need be rendered to the donors only and not to the public.
The
respondent further averred that in the said meeting at Marshaghai held
at about 7 P.M. on February 15, 1971 he had merely referred to a
public controversy as to the public· duty of Dwivedi to render nccounts
of the money received by or through him for relief work from outside
the State including the Bihar Relief Committee. The demand for such
rendition of accounts of the money collected was replied to, not by
Dwivedi as yet, but by some one of the Orissa Relief a-nd Rehabilita·
tion Committee, to the effect that Dwivedi h~d no such duty. The
respondent giving his opinion' on the said controversy at the meeting
s:tid that in the
circumstances
he
felt that :as
an eminent
man in public life it was Dwivedi's moral duty to render such accounts
in public. The aforesaid s~ech of the respondent had been misreport·
ed in the said issue of the. Kalinga in contents, though not in purport .
or substance. In any event the statements of himself and Biju Patnaik
having been made in the furtherance ·of the prospects of the Assembly
elections could not be said to have been calculated to prejudice the
prospects of Dwivedi's election.
·
(ii) After stating what has been set out in vara. (iii) of the above
denial, that is the denial in paragraph S(iv)(a) to (d) of the written
statement of the allegations in paras (i), (ii) and (iii) of paragraph S
<>!' m: petition .. the respondent s.tated that the impugned publication
(t.e. tn the Kahnga of February 19, 1971) was neither in relation to
the personal character and conduct of Dwived_i nor was it reasonably
calculated to prejudice the prospects of election of Dwivedi.
. From the various allegations in th¢ petition an.d the denials in the
wntten statement, the main points in contr()versy that emerge are-
(1 ) wheher Ext. 1 and Ext. 2 and the speech of Biju
Patnaik apoealing to the religious symbol constitute
corrupt practice.
(2) (a) If so, whether. Ext. 1 and Ext. 2 were published
by the re~pondent or with his consent.
(b) If so. whether the speech delivered by Biiu
Patnaik was with the consent of the respondent.
(3) Whether the alleged speech made by the respondent
Elt Marsbaghai on Februarv 15, 1971 asking Dwivedi
to render an account of the . amounts collected for
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SUPREME COURT REPORTS
[ 1974 ] 2 S.C.R.
relief funds is with reference to or makes imputation
against the personal character or conduct or public
conduct of Dwivedi.
( 4) Whether the report of the speech of the respondent
asking Dwlvedi to render an account for the amounts
collected for relief funds as appearing in the Kalinga
of February 19, 1971, (Ext. 2) was published by the
respondent or with his consent.
The case of the respondent is that while no doubt he was the
editor of the Kalinga during the relevant period and his name was not
only shown as such in the issues of February 15 and February 19,
1971, and there was no change in the declaration made by him under
jthe Press and Registration of Books Act, 1867, he remained absent
.and his work was done by J. Verma.
In support of this contention
he produced a Jetter of January 15, 1971 (Ext. L) addressed to the
Chairman of The Kalinga Press, Biju Patnaik, in which he stated that
due to his preoccupation in the Lok Sabha election as a candidate
from the Kendrapara constituency, he would remain absent from the
Headquarters with effect from January 19, 1971 till the .end of the
elections, and during his absence J. Verma, the News Editor, would
remain in charge of editing the paper as well as of editing the news
reports.
On this letter, which was sent for information, the Chair·
man endorsed on the same day "As P.P.D." (as proposed) {Ext. Lf2).
This letter with the endorsement of the Chairman was also endorsed
as "Seen" by J. Verma R.W. 3 (Ext. L/3} on the same day. Thereafter the respondent states that he had nothing to do with the writing
of the editorials or with the editing of news reports or with the publi·
cation of the daily Kalinga from January 15, 1971 to August 1971.
The High Court disbelieved the evidence of the witnesses
on
behalf of the petitioner who said that they had attended the meeting
held on February 15, 1971, at Marshaghai.
On the other hand it
believed the evidence of the witnesses produced on behalf of the
respondent as also the respondent's own evidence that in the meeting
held on February 15, 1971 the respondent had not stated as alleged
nor having regard to the working arrangement~ as disclosed by Exts.
L, L/2 and L/3 did he have any concern with the publication or the
editorial Ext. 1 or the news report Ext. 2, nor can the consent or
complicity of the respondent be presumed either in respect of Exts. 1
and 2, or in respect of the allel!ed speech made by Biiu Patnaik in
'the public meeting held at Marsha!lhai on February 15 1971. The
High Court inter alia further held that in any event ' the alleged
statement of the respondent asking Dwivedi
to
render
accounts
related to the public conduct of Dwivedi and ·not to his personal
character or conduct.
Tn view of these conclusions. the oetition was
dismissed with cmt~.
.
Before we deal with the evidence as to whether the Hi1!h Court w:1s
Justified in the aooreciation of evidence. it would bt: ne-:e~~arv in th~
first instance to consider what it is thnt is required under the provisions
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N. G. MOHANTY v. suRENDRA (Jaganmohan Reddy, J.)
45.
of the Act for unseating a successful candidate on charges of corrupt.
'practice.
Clauses (b) an~ (d)(ii) of sub-s. (1) of s. 100 of the
Act deal with corrupt practices, while s. 123 of the Act sets out what
shall be deemed to be corrupt practices. Qauses (b) and (d) (ii) of
sub-s. (1) of s. 100 and sub-ss. (3) and (4) of s. 123 which are:
relevant for the purposes of this appeal are as follows :
"100(1). Subject to the provisions of sub-section (2) if
the High Court is of _opinion-
(b) that any corrupt practice has been committed by a
returned candidate or his election agent or by any
other person with the consent of a returned candidate
or his election agent; or
(d) that the result of the election, in so far as it concerns
a returned candidate, has been materially afiected-
(ii) by any coqupt practice committed in the interests
of the returned candidate by an agent other than
his election agent, or
the High Court shall declare the election of the
returned candidate to be void."
"123. The following shall be deemed to be corrupt practices fo~
the purposes of this Act :-
(3) The appeal by a candidate or his agent or by any
other person with the consent of a candidate or his
election agent to vote or refrain from voting for any
person on the ground of his religion, race, caste,
community or language or the use of, or appeal to
religious symbols or the use of, or appeal to, national
symbols, such as the national flag or the national emblem, for the fqrtherance of the prospects of the
election of that canddiate or for prejudicially affecting the election of any candidate.
( 4) The publication by a candidate or his agent or by any
other person, with the consent of a candidate or his
election agent, of any statement of fact which is false,
and which he· either believes to be false or does not
believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the
candidature, or withdrawal, of any candidate, being
a statement reasonably calculated
to prejudice the
prospects of that candidate's election."
In order to establish a corrupt practice under the above provisions'
the petitioner must prove-
(!) For the purposes of corrupt practice under sub-s. (3)
of s. 123 of the Act that the statement is an appeal
to the religious symbol and has been made (a) for
46
SUPREME COURT REPORTS
[ 1974] 2 S.C.R.
the furtherance of the prospects of the election of that
candidate; or (b) for prejudicially affecting the elec·
tion of any candidate; and
(II) For the purposes of corrupt practice under sub-s. (4)
or (c). any pther person with the consent of the canment of fact is by (a) the candidate, ~r (b) his agent,
or (c) any other person with the consent of the candidate or his election agent; (d) that the statement is
false and the candidate believes it to be false or does
not believe it to be true; (e) that it relates to personal character or conduct of a candidate; and (f)
that the statement is re·asonably calculated to preju·
dice the .prospects of the candidate's election.
The word 'agent' under the Explanation to s. 123 of the Act includes
an election agent, a polling agent and any person who is held to have
acted as an agent in connection with the election with the consent of
· the candidate. If the corrupt practice is committed by the returned
candidate or his election agent, under s. lOO(l)(b) of the Act the
election is void without any further condition being fulfilled.
But if
the petitioner relies on a corrupt practice committed by any agent
other than an election agent, the petitioner must prove that it was ·
committed by him with his consent or with the consent of his election
agent.
In Samant N. Balakrishna etc. v. George Fernandez and Ors. ~tc.(
1 )
Hidayatullah, C.J ., dealing with different burdens of proof as to
whether an offending statement was made by the candidate himself or
by his agent. other than an election agent observed at p. 619 :
"There are many kinds of corrupt practices ......... But
the corrupt practices are viewed separately according as to
who commits them.
The first class consists
of
corrupt
practices committed by the candidate or his election
agent or any other person with the consent of the candidate or his election agent. These, if established, avoid the
election without any further condition being fulfilled.
Then
there is the corrupt practice committed by an agent other than
an election agent. Here an additional fact has to belroved
that the result of the election was materially affecte . We
may attempt to put the same matter in easily understandable
language. The petitioner may prove a corrupt practice bv
the candidate himself or his election agent or someone with
the consent of the candidate or his. election agent, in which
case he need not establish what the result of the election
would have been without the corrupt practice. The expres·
sion "Any other person" in this part will include an agent
other than an election agent. This is clear from a special
provision later in the section about an agent other than an
election agent."
(I) [19691 3 S.C.R. 603.
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N. ~· MOHANTY v. SURENDRA (Ja~anmohan Reddy, 1.)
47
Bearing these requirements in view, we shall first consider whether
Exts. 1 and 2, the editorial aild the news report respectively, were -
published by the respondent or with his co~ent, and whether
the
speech delivered by Biju Patnaik was with the consent of the respondent. If it is not established that Exts. 1 and 2 were published by the
respondent or with his consent, or that the speech delivered by Biju
Patnaik, even if it was an appeal to the religious symbol, was not made
with the consent of the respondent, then no corrupt practice under
sub-s. ( 3) of s. ,123 of the Act can b-~ hel.d. to be proved against the
respondent.
There is no doubt, and it is not denied, that the respondent was
at all material times the editor of the Kalinga in which the offending
editorial (Ext. 1) and the news report (Ext. 2) were published on
February 15 and 19 respectively. The learned_ Advocate for the peti·
tioner contends that once this fact is established, then there is a statu·
tory presumption under s. 7 of the Press and Registration of Books
Act, 1967, which could only be rebutted by the procedure contemplated by the itatute itself, namely, s. 8A of that Act. Section SA of the
Press and Registration of Books Act, 1867, provides that:
"If any person, whose name has appeared as editor on a
copy of a newspaper, claims that he was not the editor of the
issue on which his name ·has so appeared, he may, within
two weeks of his becoming aware that his name has been
so published, appear before a District, Presidency or Subdivisional Magistrate apd make a declaration that his name
was incorrectly published in that issue as that of the editor
thereof, and if the Magistrate alter making such inquiry or
causing such inquiry to be made as he may consider neces·
sary is satisfied that such declaration is true, he shall certify
accordingly, and on that certificate being given the provisions
of section 7 shall not apply to that person in respect of that
issue of the newspaper.
The Magistrate may extend the period allowed by this
section in any case where he is satisfied that such person was
prevented by sufficient cause from appearing and making the
declaration within that period."
It may be noticed that the provisions of ss. 7 and SA of the Press
and Registration of Books Act, 1867, have to be complied with for
the purposes of that Act, wherein penalties have been provided for
omission to conform with the requirements of that Act. Though s. 7
raises a presumption that- a person whose name is printed in a copy of
the newspaper is the editor of every portion of that issue, that presumption may be rebutted by evidence. In order to rebut this pre·
sumption the respondent will have to establish that he had nothing to
do wtih the publication of either the editorial or the news report or that
any of them were written and or published without his knowledge or
without his consent. In D. p. Mishra v. Kamal Narain Sharma &
Ors.(l) after this Court had directed the giving of a notice to Shukla
(1) [1971] 3 S.C.R. 257.
48
SUPREME COURT REPORTS
( 1974} 2 S.C.R.
who was an editor, publisher and printer of Mahakoshal which published material relevant to the personal character as to why he should
n~t be named under s. 98 of the Act. On notice being given by the
H1~ Court Shu~a while admitting that he was the registered printer,
pubhsher and editor of the newspaper in the record of the Press Regis·
trar at the relevant time and that the offending material was published
by !"fahakoshal, it was done without his knowledge as he had left the
entire management of the newspaper with ·one Tarangi and did not
himself come to learn about the publication until after the election
petition was filed.
The High Court accepted this plea. This Court
while atlllfirming the decision of the High Court, further held that
granting that there was a close association between the appellant <ind
Shukla, and even granting that Mahakoshal was exclusively carrying
on propaganda on behalf of the appellan; unless there was evidence
to prove that Shukla had either authori!ed the publication of the
offending matter or had undertaken to be responsible for a11 the
publications made in .the
Mahakoshal,
no
inference that
the
offending publications were made with the knowledge and with the
consent of Shukla ·could be drawn.
It will have to be. seen whether
on the evidence the respondent has
bee
nsuccessful in rebutting
the presumption under the Press and Registration of . Books
Act,
1867.
The respondent has produced Exts. 1, 1/2 and 1/3 to show that
he was not discharging the duties as the editor of the Kalinga due
to his preoccupation in the Lok Sabha election and in his absence J.
Verma, the News Editor was discharging those· duties, namely, of
writing ~ditorials and also editing the news reports. After his applica·
tion dated January 15. 1971 (Ext. L) was seen by the Chairman and
was taken note of by J. Verma both on the same day, the respondent
did not have anything to do with the publication of the newspaper
either with respect to the editorials or the news reports. J. Verma
R W. 3 has admitted this document and has also admtited that from
January 19' 1971, the respondent did not have anything to do with
writing of editorials or publication of the Kalinga.
One of the complaints of the petitioner is that though the respondent in hls written statement denied that he had anything to do with
the editorial dated February 15, 1971, that he had not authorised its
publication nor was its publication by his agent. he did not mention
the person who in fact wrote the editorial or that there was any
authorisation in favour or some one else for that purpose. In our
view. th~. pleadings clearly indicate the case of the respondent, namely,
that he did not publ9.sh the impugned editorial, that it was not published
by his agent nor did he authorise its publication. It is apparent from
the denial that he did not publish the editorial, that some one
el~e
must have written and published it and that some one else was not
authorised by him, nor did he write it. It is one of the accepted
principles that pleadings must contain and contain only a statement in
a summary form of material facts on which the party bases his claim
..
B
c
D
E
F
G
......
...... T-·
H
-!
-l
B
N. C. MOHANTY V •. SURENDRA (Jaganmofwm Reddy,/.)
49
or defence and facts which are mer~y evidence of material facts, thoUgh
necessary to be proved at _the trial, need not. be pleaded, but if itl is
a material fact it should be pleaded.
In our view· material· facts as
set out above have been stated, as ~uch any omission to set out in the
pleadings the evidence that has been led in this case to establish that
the respondent was not concerned ·with the impugned corrupt practice
cannot be looked at with suspicion.
.
J. Verma R.W. 3 has admitted in his evidence that he had been
discharging the duties of the editor after the ·leavt of absence wa~
granted to t!te respondent. He no doubt stated that Surendra Mohanty
(the respondent) did not proceed on leave in pursuance of the letter
Ext. L but that he was allowed to remain absent as he had been busy
C
in election work, and tqat during the respondent's absence he (Verma)
was to remain in charge.
A four-pronged attack was made on the
authenticity of Ext. L-fustly, that in the letter the words 'in February' were struck out; and initialled by the respondent; secondly, that
the endorsements on Exts. L/2 and L/3 by Biju Patnaik and J. Verma
respectively W£re made on the carbon co.py and not on the original;
thirdly, that tlie letter did not bear any outward or inward number;
P and fourthly, the respondent had ipdicated.the d,uties which J. Verma
had to discharge specifically, when .that. was· .nOt neces~ary·if he was
taking over the functions of an e,ditor duril:).gthe .respondent's absence.
None of these objections, in our view, would detract from the authenticity of the letter. What was sougbt to· be· ~ontended in respect
of the first objection is that in January ·1971 when Jhe letter was·
Written it was assuined that the elections would be held in February;
E · and consequently the respondent's absence from the
headquarters
was sought with effect from January 19, 1971 till the end of the elec·
tiOns in February. It was only <>n February 1, 1971, that the Union
Ministry. announced the dates for each phase of the elections for the
parliamentary constituencies in the State of Orissa. The notification
makes it clear that the date before which the elections should be comF
pleted was fixed as March 15, 1971. .From this fact it is sought to
be contended that the respondent co"Uld only have come to know on
February 1 that the eleetions would not be completed in February
1971 and consequently the words 'in February' were scored off sometime on or after February 1_, 1971. R.W. 3 J. Verma, however, stated
that 'When the letter came to him with the endorsement of the Chair·
man the words 'February' were scored off. If this statement is to be
accepted, and there is n,o reason why it should not be, it would show
G
dlat ·either the respondent or the Chairman Biju Patnaik may have
unofllcially come to know of the programme of the elections. Even
if the words 'in February' were scored off subsequently that does not
advance the case of the petitioner any further, because that would
cover the impugned editorial and the. news report (Exts. 1 and 2) ,
!both of which were published in Februray 1971 itself. If the respon·
H
dent had to fabricate these documents for the purpose of facilitatin&
his defence after the election petition was filed, he could have easily"
JOt a fresh letter typed and got the necessary endorsements thereon.
No such attempt was made and the fact that a letter with the words 'in
5-L447SupCI/74
50
SUPR.E.M! COU:RT 1\EPOR.TS
( 1974) 2 s.c:a..
Februarf scored off was produced in evidence supports lts authenticity rather than its being spurious. There is also no significance in
the endorsements being made on the carbon copy of the letter, for
it is ·quite possible that it was only the carbon copy of the letter that
was sent to the Chairman, as sometimes it can ~. so sent ln~vert:ntly.
This fact also lends assuranc~ to the evidence of J. Verma R.W. 3
and of the respond.ent.
-
. There is also no force in the objeetion that th~t letter dated Januar}
15, 1971 does not bear; either outward cr inward number. When
asked why the letter did not bear the number, the respondent replied
A
B
that the record-keeper would be able to say why it was not numbered.
It also appears from the ~vidence of Udayanath Misra R.W. 2, th~
Accountant in the Kalinga Publications that Ext. L is the letter from
C
the Mana~g Editor, Surendra Mohanty (the respondent)
to tho·
Clairm,an and though he admitted that they maintained the Despatch
and Receipt Registers in the Kalinga Publications' office, he was not
asked ~ Jm?duce those registers to show that office copies also had
to be diarlzed in the registers. R.W. 2 who was asked to produce
the letter Ext. L.was even asked whether J. Verma R.W. 3 was
acting as editor since January 19, 1971. He said that he was, and
that Surendra Mohanty (the respondent) bad not joined the offico
as editor since then.
·
It is, however, contended that the duties assigned to 1. Verma
were superfluous, because on his own admission the general practice
was that in the-absence of the editor, the seniormoot member writes·
D. I
the editorials. If so the enumeration of the duties of I. Verma was
E
being designedly made to cover U,!) !}le acts of the respondent and the ·
explanation to the contrary is unbelieVable.
It. was also submitted
that notwithstanding this make-believe arrangement, the respondent
was in fact present on FebrUary 14 and February 18, 1971
at
Cuttack from which an inference can be drawn that he must have
written the editorial dated February 15, 1971 and was responsible
forth~ news report dat.ed February 19, 1971. To a question that Ext.
L refers to writing of editorials, editing the paper and the news ·
reports, the respondent replied that the editor is
not necessarily
required to write the editorial and that is why it was mentioned in
Ext. L that J. Verma should write the editorials and should not
delegate the power to other junior member of the staff. The reference
to editing of the news reports by J. Verma merely emphasised the
normal· duti.::s he had to do, which indicated the work load. The
respondent was again asked as to what was meant by editing the news
reports to which his reply was that news reports received from the
accredited correspondents in the Districts were scrutinised by him
and that this work should be entru~ted to J. Verma and in any case
th:re was no harm in emphasi~ing the total work load that had ·to be
done by J. Verma during his absence.
.
.
The respondent was further
asked
whether his . predecessor
Manmohan Misra was getting his pay when he was on leave, and
th-:>ugi he said he did not know as to whether Mo.nmohan Misra was
F
G
"
.A
B
c
n
N, C. MOHANTY V, SURENDRA (/aganmohatJ Reddy, J.)
51
getting his pay during his absence on leave, he admitted that he was
getting bis salary ~ the _editor betweeq Ianriary IS, 1971 and August
1971 and was gettmg bLS pay thereafter also. In our view the mere
fact that the r~spondent was getting his salary during his leave
of
absence does not indicate that be was not on leave or that be was not
permitted to be absent. No doubt he· admitted that he had returned _
to Cuttack on February 14, 1971 very late in the night as he had a
programme with Biju Piitnaik. This would show that be was not in
a position to write the editorial dated February 15, 1971, because
the editorials are written and sent each day by the afternoon for bdng
published 1n the next· day's issue of t!le paper. He was ag:tin asked
whether he had returned to Cuttack either on 16th, 17th or 18th, to
which his answer was that he did not recollect whether he had re·
turned to Cuttack either on 16th, or 17th or lSth, but he must have
returned on some of these days. Apart from these suggestions, there
is nothing to indicate that the respondent knew what the editorial
was going ·to be or that he had consente~ to its being written. Similarly the~ is nothing to indicate that he kn!=W about the news report
published in the Ka.Iinga dated February 19, 1971, or that he had
consented to its publication.
The criticism that Biju Patnaik was not examined by the res~ ·
pondent cannot be availed of by the petitioner, because it is for the
petitioner to establish by positive evidence the corrupt practice · or
practices charged against the returned candidate. Aft<!r the b)Jrden of
proof is shifted to the respondent, it is for him at th:lt stage to dis-
- charge the onus that rests upon him. and if he does not call any witE
ncsses who could assi.>t him in discharging that f,urden he takes tho
·fisk.
F
II
In order to establish that Ext. 1, the editorial, was written by the
respondent, he was asked if it was possible to know from the Iango·
age of the editorial as· to who its writer was, the respondent replied
that it was possible by and ·targe and it was certainly not infallible.
He was asked if "Satapdi Surya" was one of his writings he said that
it was. It was suggested to him that the language and style of the
editorial Ext. 1 and of the news report Ext. 2 were his, but this sug·
gestion was emphatically denied by him. We do not think there is
any basis for inferring . from the style of writing of the editorial· that
Ext. 1 was writ!en by the. respondent.
It was also oontended that the High Court ignored the implications of the admission by the respondent that he searched for the
manuscript of the editorial after coming to know of the election
petition. We fail to understand how this admission by the respondent
has any significance except perhaps for the respondent to establish
positively bv documentary evidence that R.W. 3 had written that
editorial.