PETITIONER:
D. P. MISHRA
Vs.
RESPONDENT:
KAMAL NARAIN SHARMA & ORS.
DATE OF JUDGMENT:
18/12/1970
BENCH:
SHAH, J.C. (CJ)
BENCH:
SHAH, J.C. (CJ)
HEGDE, K.S.
GROVER, A.N.
CITATION:
1971 AIR 856 1971 SCR (3) 257
1969 SCC (3) 868
CITATOR INFO :
R 1974 SC 47 (16,26)
F 1974 SC 66 (55)
R 1979 SC 154 (17,18)
R 1992 SC2206 (9)
ACT:
Representation of the People Act, 1951, s. 98-Proceedings
for ‘naming’ person responsible for corrupt practice-Finding
given by High Court Circumstances in which Supreme Court
would-reconsider.
Press and Registration of Books Act, 1867, s. 7-Person’s
name printed as editor in paper and recorded with Registrar-
If responsible for everything printed in paper–Presumption
as to-If can be rebutted.
HEADNOTE:
At the time of dismissing an appeal by the appellant against
the finding by the High Court that the appellant was guilty
of a corrupt practice under s. 123(4) of the Representation
of the People Act, 1951, the Supreme Court directed that S
an editor, publisher and printer of a daily newspaper,
Mahakoshal which published the offending material relevant
to the personal character or conduct of one of the
candidates, should be given a notice to show cause why he
should not be named under s. 98.
At the hearing pursuant to the notice issued by the High
Court, S admitted that he was the registered printer,
publisher and editor of the newspaper in the record of the
Press Register at the relevant time and that the offending
material was published in the, Mahakoshal; but he claimed
that it was so printed without his knowledge, that he had
left the entire management of the newspaper with T, and
did not himself come to learn about the publication until
after the election petition was filed. After hearing
further evidence, the High Court accepted the plea set up
by S.
In the appeal to this Court it was contended on behalf of
two interveners who had undertaken the defence of the appeal
that S was liable to be named under s. 98, (i) in view of
the provisions of section 7 of the Press and Registration of
Books Act, 1867, and the fact that S was the registered
printer, publisher and editor of the newspaper; (ii) because
in certain proceedings taken in the High Court for
committing the editor of the same newspaper for contempt
of court for publishing certain scurrilous matter concerning
a Civil Judge in 1962, S had admitted his responsibility
for the publication and tendered an apology; (iii) because
on October 24, 1963, the first respondent had addressed a
letter to S inviting his attention to the publication of
the offending matter in April May, 1963, which was the
subject matter of the election petition, requiring him to
disclose the identity of the writer within three days and
stating that otherwise S would be assumed to be the author
of the publication; S had no reply to the said letter.
HELD : The order passed by the High Court must be confirmed.
(i) Section 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. However, this presumption may be
rebutted by evidence. In a charge under s. 123(4) of the
Representation of the People Act, the presumption under s’
7 would come with greater or, less force, according to the
circumstances, to the aid of a person claiming that the
editor was res-
3-L807Sup.CI/71
258
ponsible for the publication and that the, publication was
to the knowledge of the editor. The High Court had accepted
the testimony of S and T to the effect that T was in sole
management of the newspaper at the relevant time and no
reason was shown why this Court should not agree with this
conclusion. Granting that there was close association
between the appellant and S, and even granting that
Mahakoshal was exclusively carrying on propaganda on behalf
of the appellant, unless there was evidence to prove the S
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 S may be raised. [262 E-G; 264 E]
A proceeding for naming a person who is found responsible
for publication of offending matter is in the nature of a
quasi-criminal proceeding. In an appeal against the order
of the High Court holding on appreciation of evidence that a
person charged before the High Court is not proved to be
guilty of a corrupt practice, this Court does not normally
proceed to reappraise the evidence, unless the High Court
has misconceived the evidence or the conclusion is perverse
or so basically faulty that. interference by this Court is
attracted, of the procedure adopted by the Court has
resulted in miscarriage of justice or for similar reasons.
[261 A]
Amar Nath v. Lachman Singh & Ors. C.A. No. 1717 of 1968
decided on Dec. 23, 1968; Jagdev Singh v. Pratap Singh,
A.I.R. 1965 S.C. 183; Dr. M. Chenna Reddy v. Y. Ramchandra
Rao and Anr., C.A. No. 1149 of 1968 decided on Dec. 17, 1968
and Meghraj Patodia v. R. K. Birla and Ors. [1971] 2 S.C.R.
118; referred to.
(ii)The position taken by S in the contempt proceedings was
not inconsistent with the case set up by him in these
proceedings. Although responsibility for publication was
accepted by him, he had clearly stated that the publication
of news-item 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 was the Chief Editor and not
because he personally had, with knowledge published the
article which constituted contempt of Court. [265 D]
(iii) If the story of S that he came to know of the
offending publications for the first time after the petition
was filed is accepted, failure to repudiate the publications
after the election petition was filed will not lead to an
inference against S that he was responsible for the
publications. [266 C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1738 of
1969.
Appeal by special leave from the judgment and order dated
March-12, 1969 of the Madhya Pradesh High Court in First
Appeal No. 49 of 1967.
E. C. Agarwal, for the appellant.
M. C. Setalvad, S. V. Gupte, K. A. Chitale, U. N.
Bachawat,
A. K. Verma, Sreenivasa Rao and J. B. Dadachanji, for Mr. S.
C. Shukla.
M. C. Chagla, R. S. Dabir, Rameshwar Nath and Swaranjit
Sodhi, for respondents Nos. 3 and 4.
259
The Judgment of the Court was delivered by
Shah C.J. In compliance with our order dated March 13, 1970
the High Court issued a notice to Shukla. Shukla submitted
his reply contending inter alia, that he did not publish or
cause to be published the offending statements in the
newspaper Mahakoshal as alleged by Sharma. In paragraph
1(ii) he submitted ‘that
“He learnt about their publication only after
and during the pendency of the election
petition for declaration of the election of
Shri D. P. Mishra as void. The person in sole
charge of the newspaper was Shri Vishnudatta
Mishra ‘Tarangi’ whose name has been printed
as the Editor. The declaration under Rule 8,
Form VI prescribed under the Press and
Registration of Books Act (No. XXV of 1867)
for the year 1963 shows that the said Shri
Vishnudatta Mishra ‘Tarangi’ and not the
opposite party (Shukla) was the editor at the
material time…………… At the time of
his appointment the said Shri Vishnudatta
Mishra ‘Tarangi’ had insisted that there would
be, no interference by the opposite party
(Shukla) in the conduct of the newspaper.”
Several witnesses were examined before the High Court in
support of the case that Shukla was instrumental in publish-
ing and distributing the offending statements Annexures I,
II & III in the daily newspaper Mahakoshal of which Shukla
was the editor, printer and publisher. Some witnesses who
had been previously examined were recalled for examination.
Shukla and Tarangi were also examined at the hearing.
At the hearing of the appeal and in the proceedings for
naming Shula, Sharma the petitioner who instituted the
election petition took no interest. But two persons who
were permitted to intervene in the proceeding took upon
themselves the defence of the appeal and also to prosecute
the proceeding after it stood remanded to the High Court.
The interveners submitted that Shukla had published the
offending matter contained in Annexures I, II & III. They
said that-(1) D. P. Mishra prepared the offending matter,
read it over to Shukla and handed it over to him for
publication and the same was published in the Mahakoshal and
was widely distributed; (2) the copies of the newspaper
containing the offending matter were personally distributed
by Shukla; and (3) Shukla was the printer, publisher and
editor of the newspaper land was the owner of the Printing
Press in which the copies
260
of the newspaper were printed, that he was attending to the
publication of the newspaper and copies of the. newspaper
were supplied to him and that “Tarangi had nothing whatever
to do with the publication of the newspaper Mahakoshal” at
the relevant time.
The High Court on a review of the evidence was of the
opinion that the case under the first and the second heads
in support of the plea of the interveners was not proved.
The High Court also held that even though the name of Shukla
was printed in the newspaper Mahakoshal as the Chief Editor
and that fact was printed in the report of the Press-
Registrar published for the information of the Government
showing that Shukla was between the years 1962 and 1965, the
publisher, printer and editor of Mahakoslial, that Shukla
had in June 1962 appointed Tarangi as editor of Mahakoshal,
that Tarangi was in exclusive charge of the publication;
that Shukla was not at the relevant time when the offending
matter was published attending to the publication of
Mahakoshal; that Shukla had no knowledge of the publication
of the offending matter till it was brought to his notice in
the course of the election petition; that Shukla was not
proved to be the agent of Mishra and that even if it be held
that he was the agent of Mishra, it was not proved that
Mishra had given his consent to the publication of the
offending matter in the Mahakoshal.
Section 123(4) of the Representation of the People ‘Act,
1951, provides :
“The publication by a candidate or his agent
or by any other person, 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, or retirement
from contest, of any candidate, being a
statement reasonably calculated to prejudice
the prospects of that candidate’s election”,
is a corrupt practice. Section 99(1) requires the Tribunal
in making an order under s. 98 to record the names of all
persons, if any, who are proved at the trial to have been
guilty of any corrupt practice and the nature of that
practice. But a person not a party to the petition cannot
be named in the order, unless he has been given notice to
appear before the Tribunal and to show cause why he should
not be so named, and if he appears in pursuance of the
notice, he has been given an opportunity of cross-examining
any witness who has already been examined by the Tribunal
and has given evidence against him, of calling evidence in
his defence and of being heard.
261
A proceeding for naming a person who is found responsible
for publication of offending matter is in the nature of a
quasicriminal proceeding. In an appeal against the order of
the High Court holding on appreciation of evidence that a
person charged before the High Court is not proved to be
guilty of a corrupt practice, this Court does not normally
proceed to reappraise the evidence, unless the High Court
has misconceived the evidence or the conclusion is, perverse
or so basically faulty that interference by this Court is
attracted or the procedure adopted by the Court has resulted
in miscarriage of _justice or for similar reasons. See Amar
Nath v. Lachman Singh & Ors(1); Jagdev Singh v. Pratap
Singh (2) ; Dr. M. Chenna Reddy v. V. Ramchandra Rao and
Anr.(3); and Meghraj Patodia v. R. K. Birla and Ors.(4).
Mr. Chagla on behalf of the interveners contended that the
conclusion of the High Court was perverse because the High
Court had ignored important circumstances and evidence bear-
ing on the question in dispute, and had reached a conclusion
wholly inconsistent with normal probabilities. In dealing
with this contention we may first eliminate matters in
respect of which there is no serious controversy. Annexures
I, II & III which constitute the offending matter were
published in the newspaper Mahakoshal during the course of
the election campaign of D. P. Mishra. The newspaper
Mahakoshal was published from Raipur, and Shukla was
registered as the printer, publisher and editor in the
record of the Press Registrar. The issues dated April 12,
April 26 and May 4, 1963, were printed in the Mahakoshal
Printing Press and were published and distributed. The
matter published in those issues was in relation to the
personal character and conduct of Sharma and in relation to
his candidature. it was also a statement reasonably
calculated to prejudice the prospects of Sharma’s election.
Shukla admitted that the offending matter was published but
claimed that it was printed in the Mahakoshal without his
knowledge. He claimed that he had left the entire
management of the newspaper with Tarangi and that he did not
come to learn about the publication till the election
petition was filed.
The High Court accepted the plea set up by Shukla that he
did not know about the publication of the offending matter
at or about the time when it was published. In support of
the contention that Shukla was liable to be named, Mr.
Chagla relied upon s. 7 of the Press and Registration of
Books Act, 1867, upon
(1) C.A. No. 1717 of 1968 decided on Dec. 23, 1968
(2) A.I.R. 1965 S.C. 183
(3) C.A. No. 1149 of 1968 decided on Dec. 17, 1968
(4) [1971] 2 S.C.R. 118
262
certain proceedings in contempt taken before the High Court
of Madhya Pradesh in which Shukla had admitted his responsi-
bility in regard to the publication made some time, in June
1963 and also upon the service of a notice upon Shukla by
Sharma who filed the election petition requiring Shukla to
disclose certain facts regarding the publication, upon the
evidence that Shukla was closely associated with Mishra in
carrying on the election campaign, and that the daily
Mahakoshal carried on propaganda exclusively on behalf of
Mishra and not of any other candidate. Counsel submitted
that Shukla’s denial could not be accepted as there was
clear evidence that copies of the daily Mahakoshal were
supplied at his residence at all relevant times and it is
unlikely that he did not read them.
Section 7 of the Press and Registration of Books Act, 1867,
insofar as it is relevant, provides
“In any legal proceeding whatever………..
the production of . . . ., 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 be . . . . printed on
such newspaper, that the said person was . . .
the editor of every portion of that issue of
the newspaper of which a copy is produced.”
Section 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. The presumption may be rebutted by
evidence. In the copies of Mahakoshal dated April 12, April
26, and May 4 1963, it was printed that Shukla was the Chief
Editor. Shukla was also described as the printer and
publisher of the newspaper. The presumption under s. 7 of
the Press and Registration of Books Act, undoubtedly arises,
but in a charge under s. 123(4) of the Representation of the
People Act the presumption under s. 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.
Tarangi in his evidence has stated that he was working bet-
ween June 1962 to January 1964 as editor of Mahakoshal and
that he was in sole incharge of the newspaper including its
management, and that he was solely responsible for editing,
printing and publishing the newspaper, and that he had made
a special condition when accepting his appointment as editor
that he
263
would be in sole charge of managing and editing the
newspaper. He said that Shukla never visited the office of
Mahakoshal during the period of his management. that he-
Tarangi-wrote Annexures I, II & III and got them printed and
published, that he had written them by himself on
information which he received, and not at the instance of
any other person, that he had not obtained the consent of
Shukla before writing or publishing the offending matter,
and that when he heard the matter contained in those
articles h.-, thought that it had news valued and he printed
and published it. He also stated that Shukla was not
informed of the offending matter.
Tarangi had printed on March 1, 1963, a statement in the
daily issue of Mahakoshal that he was the editor. That is
clear from’ Annexure A. It was urged by Chagla that Shukla,
to conceal his activities in the course of the elections
which it was expected would take place in the near future
made a mere appearance of printing the name of Tarangi as
editor, while in fact he remained the editor and in charge
of management of the Mahakoshal. But it is clear from the
issues of the Mahakoshal daily dated July 11, July 16, July
30, July 31, September 24, October 12 and October 18. 1962,
that on the title page Tarangi was ,shown as the editor of
the newspaper. The story that Tarangi was, placed in charge
of the newspaper Mahakoshal between June 1962 and January
1964 is amply supported by copies of the Mahakoshal produced
in the Court. It is not in dispute that in the publication
of the newspaper Mahakoshal which contained the offending
Annexures I, II & III it was, published that ‘Tarangi was
the editor.
Shukla stated in his evidence that he had left Tarangi in
sole management of the newspaper, that during the months of
April and May 1963 he visited his house at Raipur only once,
and that he had no occasion to read the previous issues of
the Mahakoshal. Shukla said that he was moving about from
place to place during that period. The High Court has
accepted that testimony and we see no reason to disagree
with the same. Annexure A on which reliance is placed was
made pursuant to s. 19D (b) of the Press and Registration
of Books Act, 1867. There was no attempt to prove that
the return submitted before the Press Registrar differed
from the return published under s. 19D (b). Section 19K(c)
makes it an offence for the publisher of any newspaper to
publish in pursuance of cl. (b) of S. 19D any particulars
relating to the newspaper which he has reason to believe to
be false. Mr. Chagla contended that Shukla should have
taken steps to produce before the High Court the original
return or at any rate a copy of the return filed before the
Press Registrar. We do not think that in the circumstances
of the case
264
any such obligation lay upon Shukla. If it was the case of
the interveners that the statement in Annexure A was not
consistent with the return made to he Press Registrar they
could have summoned the Press Registrar or a member of his
Office with the original return. But that was not done. It
is true that in the annual report published by the Press
Registrar for the use of the Central Government for the,
years 1963, 1964 and 1965 Shukla alone is shown as the
editor of Mahakoshal and the name of Tarangi is not all
mentioned. But the annual report of the Press Registrar
which contains hundreds of entries is secondary evidence of
the contents of the return. There is no reason why, when
the interveners have made no atempt to have the original re-
turn produced, we should accept the annual report as
probative of the fact that Tarangi’s name was not mentioned
in the return submited to the Press Registrar. The annual
report is only for the information of the Government and a
mere summary in the annual report, to which the Legislature
has not attached any importance and which is not made under
any statutory provision, cannot be regarded as displacing
the effect of a statutory provision made under s. 19D(b) of
the Press and Registration of Books Act, 1867.
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 Mabakoshal,
no inference that the offending publications were made to
the knowledge and with the consent of Shukla may be raised.
Strong reliance was placed by Mr. Chagla upon two circum-
stances : (i) that in certain proceedings taken in the High
Court for committing the editor of Mahakoshal for contempt
of court for publishing in June, 1962 certain scurrilous
matter concerning a Civil Judge. Shukla admitted his
responsibility for the publication and tendered apology; and
(ii) that Shukla did not send any reply to the notice
served by Sharma, and published no repudiation.
The circumstances in which the proceeding for commitment for
contempt of court was started may first be set out. On June
16, 1.963, a news-item defamatory of one R. P. Awasthy,
Civil Judge, was published in Mabakoshal I. The District &
Sessions Judge,, Bilaspur, submitted the papers relating to
the publication, to the High Court of Madhya Pradesh with a
report that one Dr. Saraf Baloda a correspondent of ’the
newspaper was responsible for the publication, and
recommended that proceeding
265
be started for committing for contempt Saraf and the editor,
printer and publisher of the newspaper. A notice was
issue,. to the editor, printer and publisher of Mahakoshal.
Shukla appeared before the High Court and admitted that he
was the Chief Editor of the paper, but he stated that the
day to day work was done by the Sub-Editors, that he used to
lay down the principle and policy of the paper and also gave
general directions, that the news item received from
correspondents from various places was scrutinised by the
Sub-editors and the sub-editors that on June 16, 1963 they
did not understand the implications of the offending news-
item, and published it, and that when it came to his
(Shuklas) notice he immediately published a contradiction
and expressed his regret. He said that being the Chief
Editor he accepted his responsibility. He submitted that
since amends had been made soon after the facts came to his
notice, his apology to the “concerned officer and assuring
him that no item will be published from the correspondent”
be accepted. In view of this apology no action was taken
against him by the High Court. 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 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 was
the Chief Editor, and not because he personally had with
knowledge published the article which constituted contempt
of Court.
On October 24, 1963, Sharma addressed a letter to Shukla as
printer, publisher and editor of Mahakoshal inviting his
attention to the three Annexures 1, II and III dated April
12, April 26 and May 4, 1963 and calling upon Shukla to
“disclose the full identity of the writer within three days
of his receiving the letter.” He intimated that in case
Shukla failed to comply with the request, he would assume
that Shukla was the author of the publications, and would
take suitable legal action. No reply was sent to this
letter. Nor did Shukla publish any repudiation that it was
without his knowledge that the matter was published. Shukla
has in his evidence stated that after receiving the letter
he consulted his lawyer, and he was “advised that reply was
not necessary” and it “was not proper to send a reply”. He
stated that he remembered that his counsel advised him that
since he was “involved in the petition” he should not act on
the letter. These matters were elicited in cross-
examination by counsel for the interveners. Mr. Chagla
submitted that the testimony of Shukla in this behalf may
not be accepted, because the lawyer had not been examined as
a witness and even his name was not disclosed. But the
matter was not probed further by the cross
266
examiner nor any question asked which would suggest that any
doubt was sought to be thrown on the testimony of Shukla
that he acted on the advise given by his lawer. It is true
that no repudiation of Annexture I, II & III was published
in the Mahakoshal, even after the letter was received from
Sharma. But it must be remembered that in June 1963 an
election petition was filed for setting aside the election
of Mishra and in paragraph 5 it was asserted that Annexures
I, II & III were published in the newspaper Mahakoshal of
which Shukla was the printer, publisher and editor. It was
further asserted that Shukla was the agent of Mishra. If
the story of Shukla that till October 1962 he was not aware
of the offending publications and he came to know of the
publications for the first time be accepted, failure to
repudiate the publications after the election petition was
filed will not, in our judgment, lead to an inference
against Shukla that he was responsible for the
publications.
We have carefully considered the evidence and the circum-
stances, and we do not think that a case is made out
justifying us in taking a view different from the view of
the High Court. The proceeding before us is quasi-criminal
in character, and this Court will not normally disagree with
the view of the High Court, where the High Court has
reached, on appreciation of evidence, the conclusion that
the corrupt practice charged against a person is not proved.
This Court has jurisdiction in appropriate cases to disagree
with the conclusion reached by the High Court, but the power
to interfere is sparingly exercised. It is not exercised
merely because this Court may take on the evidence a
different view. An appellate Court is reluctant to
disregard the conclusion on matters of appreciation of
evidence by the Court which had occasion to watch the
demeanour of the witnesses examined before it, and to
substitute its own view thereon. Where the proceeding triad
by the Court of First Instance is of a quasi-criminal
nature, the reluctance of the appellate court is greater.
The question is not one of power or authority of the
appellate court, but of the respect and consideration due to
the Court of First Instance, and of the limit inherent in
the exercise of the appellate functions.
The order passed by the High Court is confirmed. Having
regard to the circumstances of the case, there will be no
order as to costs of the proceeding against Shukla. The
appeal filed by Mishra will be dismissed. Since the
original applicant Sharma did not appear in this Court,
there will be no order as to costs in appeal.
Appeal dismissed.
R.K.P.S.
267