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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

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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

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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,

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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

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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.

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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

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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

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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

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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

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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

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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