Case: Narasingh Charan Mohanty Vs. Surendra Mohanty

1. The respondenta nominee of the Utkal Congress of which Biju Patnaik anf Minister of the Orissa State is the founder leaderwas elected to the Lok Sabha from the Kendrapara parliamentary constituency in that State, by defeating two candidates, namely Surendranath Dwivedia nominee of the Praja Socialist Partyand Pradyumna KishoreBalanominee of the Indian National Congress (B) Party At this election the respondent Surendra Mohanty polled 1,23,680 votes. Surendranath Dwivedi 1,20,707 votesand Pradyumna KishoreBal 1,11,235 votes. The appellanta voter in that constituencychallenged the election of respondent on the ground that corrupt practices unders (3) and d(4) of Section 123 of the Representation of the People Act, 1951hereinafter referred to as the Actwhich were detailed ins (i) to (iv) of5 of the petition were committed by him and/or by his agents with his consent. The petition, after it was duly tried, was dismissed by the High Court, against which this appeal has been filed under S.A of the Act2. It may be mentioned that the respondent was at all material times, and even at the date of the election petition, an editor of the Oriya Daily "The Kalinga published by the Kalinga Publications whose Chairman is Biju Patnaik. As one of the corrupt practices alleged against the respondent has relevance to the election symbol, it is necessary to state that the symbol allotted to the Utkal Congress was the water wheel (Chakra) and the plough (Langala). The corrupt practices which have been set out in5 of the petition and which were alleged to have been committed by the respondent and/or his agents with his consent can be divided into two broad categories:(1) The appeal to the religious symbol, a corrupt practice under subsection (3) of Section 123 of the Act; and(2) Imputation against the personal character and conduct of Surendranath Dwivedi, a corrupt practice undersubs(4) of S. 123 of the Act:3. 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 Langala the mythological weapons associated with Jagannath andm the most worshipped and esteemed deities in Orissa for the furtherance of the prospects of his election and for prejudicially affecting the election of other candidates. (Paragraph 8 (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 fully 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,m 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 petition); and(iii) that the respondent in his daily paper The Kalinga dated February 19, 1971 had published a report regarding the meeting held at Karahaghai on February 15, 1971, containing the aforesaid appeal to religious symbol as detailed in (i) above (Paragraph 5 (iv) of the petition)4. 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 statements 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 lakh 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 February 15, 1971 containing a false statement in relation to the personal character or conduct of Surendranath Dwivedi as detailed above (in paragraph 5 (ii) of the petition) was published in his daily paper The Kalinga dated February 19, 1971, by the respondent or with his consent by his subordinates5. It is stated that the statements of fact both in the speech and the report were false and that Surendranath Dwivedi and not received any money from the Marwari Society, Bombay or from the Prime Minister during the cyclone of 1967; that the respondent being an editor 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 Dwivedis election6. The respondent, in8 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 was not present at the time when Biju Patnaik 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 strong 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 respondent has never consented to or authorised Patnaik to make such a statement(iii) The respondent was not acting as editor of The Kalinga at all 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 any appeal to a religious symbol made for furtherance of the prospects of the election of the respondent, nor were they reasonable calculated to prejudice the prospects of election of Dwivedi7. The allegations of corrupt practices in the second category were met with denial 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 is paragraph 5(ii) and at any event, assuming for the sake of argument that such a statement calling on Dwivedi to render an account of the amounts collected for public welfare was made, it, would, without a further allegation of misappropriation of such funds, relate to the public conduct of Dwivedi as a responsible Member of Parliament not to his personal character or conducts, 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 accounts 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 and Rehabilitation Committee, to the effect that Dwivedi had no such duty. The respondent giving his opinion on the said controversy at the meeting said that in the circumstances he felt that as an eminent man in public life it was Dwivedis moral duty to render such accounts in public. The aforesaid speech of the respondent had been misreported in the said issue of the Kalinga in contents, though not in purport or. 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 Dwivedis election(ii) After stating what has been set out in para (iii) of the above denial, that is the denial in paragraph 8 (iv) (a) to (d) of the written statement of the allegations in paras (i), (ii) and (iii) of paragraph 5 of the petition, the respondent stated that the impugned publication (i.e. in the Kalinga of February 19, 1971) was neither in relation to the personal character and conduct of Dwivedi nor was it reasonably calculated to prejudice the prospects of election of Dwivedi.

Reasoning:
15. 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 petitioner contends that once this fact is established, then there is a statutory presumption under S. 7 ofthe Press and Registration of Books Act, 1867, which could only be rebutted by the procedure contemplated by the statute itself, namely, Section 8A of that Actn our view, the pleadings clearly indicate the case of the respondent, namely, that he did not publish 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 else 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 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 our view material facts as set out above have been stated, as such 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 suspicion20. There is also no force in the objection that the letter dated January 15, 1971 does not bear either outward or inward number. When asked why the letter did not bear the number, the respondent replied that ther would be able to say why it was not numbered. It also appears from the evidence of Udaynath Mishra, R. W. 2, the Accountant in the Kalinga Publications that Ext. L is the letter from the Managing Editor, Surendra Mohanty (the respondent) to the Chairman and though he admitted that they maintained the Despatch and Receipt Registers in the Kalinga Publications office, be was not asked to produce those registers to show that office copies also had to be diarized in the registers R.W. l 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 Surdendra Mohanty (the respondent) had not joined the office as editor since thenIf so the enumeration of the duties of J. Verma was being designedly made to cover up the acts of the respondent and the explanation to the contrary is unbelievable. It was also submitted that notwithstanding thise arrangement, the respondent was in fact present on February 14 and February 18, 1971 at Cuttack from which any inference can be drawn that he must have written the editorial dated February 15, 1971 and was responsible for the news report dated 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 duties, 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 secrtinised by him and that this work should be entrusted to J. Verma and in any case there was no harm in emphasising the total work load that had to be done by J. Verma during his absenceIn our view the mere fact that the respondent was getting his salary during his leave of absence does not indicate that he was not on leave or that he 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 Patnaik. This would show that he 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 being published in the next days issue of the paper. He was again 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 returned to Cuttack either on 16th, or 17th or 18th, 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 consented to its being written. Similarly there is nothing to indicate that he knew about the news report published in the Kalinga dated February 19, 1971, or that he had consented to its publicationWe fail to understand how this admission by the respondent has any significance except perhaps for the respondent to establish positively by documentary evidence that R. W. 3 had written that editorial. If the manuscript had been found it would have been more to corroborate the oral testimony of R. W. 3 who had admitted that he had written that editorial. A suggestion to the contrary that it was not produced as it would show that it was in respondents writing presumes that the manuscript was in existence at the time. There is no evidence of this. Nothing was elicited inn from R. W. 3 to belie the assertion that the editorial was written by him and we cannot say that the High Court was not justified in its conclusion that R. W. 3 was the author of the editorial dated February 15, 1971Whether Biju Patnaik made the speech appealing to the religious symbol at Marshaghai need not for the present concern us. But what we have to consider is whether there are any circumstances from which we can infer that the respondent consented to the speech made by Biju Patnaik or that Biju Patnaik was the agent of the respondentWe do not think that these circumstances justify such an inference Consent or agency cannot be inferred from remote causes. Consent cannot be inferred from mere close friendship or other relationship or political affiliation. As pointed out in D.P. Mishras case, (1971) 3 SCR 257   = (AIR 1971 SC 856  ) however close the relationship, unless there is evidence to prove that the person publishing or writing the editorial was authorised by the returned candidate or he had undertaken to be responsible for all the publications, no consent can be inferred.That Tarangi was in full charge of the publication of the Mahakoshal does not distinguish that case from the facts of this case where R.W. 3 also was in full charge of the Kalinga during the respondents absencen was mostly in respect of the editorial Exhibit1, letter Ext. L and to the respondent being present at Cuttack during the relevant time just before the impugned editorial Ext. 1 and the news report Ext. 2 were published. When once it is established that neither the editorial (Ext. 1) nor the news report (Ext. 2) were published by the respondent or by some one else with his content or that the speech alleged to be made by Biju Patnaik, even if it amounts to corrupt practice, was made without the consent of the respondent, and that Biju Patnaik was not his agent, it is unnecessary to consider the question whether the editorial and the news report as well as the speech of Biju Patnaik did in fact constitute corrupt practice under. (3) of S. 123 of the ActIf the alleged statement in his speech was an imputation against the personal character of Dwivedi then it will have to be further established that the statement was false, the respondent believed it to be false or did not believe it to be true and that it was a statement reasonably calculated to prejudice the prospects of that candidates election. In any case, since we have found that the publication of the speech of the respondent in Ext. 2 has not been made with his consent, that publication, even assuming its contents have been proved, does not constitute a corrupt practice. It now remains to be considered what it is that the respondent in his speech at Marshaghai is alleged to have imputed to Dwivedi on February 15, 1971We have also been taken through the evidence of these witnesses and have come to the conclusion that they have all withe voice repeated identically the same set piece, but were blank, vague and ignorant about the remainder of the speech, its purport, its contents or its effect. Some of them said that they had never told any one of what they heard, some of them were from other villages from which they said they had come to hear because Biju Patnaik was speaking when they were aware that he was going to speak at a place near their villages. Prira Bar Lanka P.W. 4 who deposed on behalf of the petitioner, however, says that he was personally present at the meeting as a correspondent for the Samaj another Oriya daily published from Cuttack. He claims to have published the news report Ext. J which was based on his personal knowledge of what happened at the meeting held at Marshaghai. According to him the respondent never stated anything about the sources from which the moneys might have been received by Dwivedi. He no doubt says that the respondents reference to the relief monies received by Dwivedi from different quarters was occasioned by the fact that Marshaghai area was often affected by floods and cyclone which was pointed out by the respondent in his speech. He said that the respondent made reference to certain allegedn of accounts by Dwivedi in respect of monies collected by him. According to the witness, no allegation of misappropriation by Dwivedi was made by respondent in his speech, nor did he notice any stir or commotion amongst the audience as deposed to uniformly by different witnesses for the petitioner referred to earlier. P.W. 4 conceded that he was unable to give the exact language which the respondent used about the monies having been received by Dwivedi, but he made it clear in hisn that what the respondent had said was that Dwivedi had brought monies for the 1967 cyclone from various sources in India and also from individuals and that there was a controversy in the Prajatantra and so he enquired of the people whether they had received any such monies from Dwivedi, if Dwivedi at all received all those monies. Though there are certain aspects of this evidence which the respondent does not admit, in so far as the particular allegation which is being discussed is concerned, his evidence completely gives the lie to the other witnesses of the petitioner30. In the circumstances we agree with the observation of the High Court, which had also the opportunity of noticing the demeanour of the witnesses in respect of some of whom the learned Judge had made a note while recording their depositions, that it is difficult to understand how each any every one of these witnesses could have occasion to remember the exact sources of moneys which are said to have been received by Dwivedi. We have no doubt that all these witnesses who claim to have attended the meeting at Marshaghai on February 15, 1971, and of having heard the speech of the respondent have been got up for the occasion had cannot be relied upon. The petitioner has failed to established the allegation of corrupt practice which incidentally, as observed earlier, was developed in the evidence when the witnesses tried to supplement the pleadings when they alleged that the respondent had charged Dwivedi with misappropriation of the amounts collected from the relief funds.If what is stated in the pleadings alone was the charge against the respondent, in our view that would not amount to a corrupt practice because if amounts had been collected for any public purpose, asking the person collecting those amounts or those who were responsible for their collection, to give an account could not amount to an imputation against their personal character. Men in public life particularly those who collect monies for public or charitable purposes ought not to be sensitive when there is a demand to account for those amounts. A situation in which a demand such as that we have referred to may be made may be unfortunate, and it may hurt the vanity or the ego of the person from whom accounts are asked, but it is far from being an imputation against the personal character or conduct of the person concerned. Such a demand would refer to the public conduct of the person who is liable to render accounts and does not amount to corrupt practice31. It is, however, contended by the learned Advocate for the petitioner that the respondent had stated that Dwivedi had collected (a) Rupees 1,00,000/from the Marwaris of Bombay, (b) Rs. 25,000/from the Prime Minister and (c) That these monies were for the cyclone of 1967, all of which allegations are false. In fact Dwivedi was responsible for getting Rs. 20,000/from the Prime Minister for rebuilding a school which had been destroyed in the cyclone. Even this money was not paid to him but was routed through the Chief Minister and given to the school directly. The respondent denied that he had ever charged Dwivedi with getting money for cyclone and his case was that he never referred to any such source in his speech, and could not have done so as his information with respect to this matter on the date of the meeting was confined to a controversy that had been raised in another local daily, Prajatantra, wherein the letters Exts. 3 and 4 dated September 20 and September 27, 1970 respectively were published. Apart form these two items of publication there was another earlier publication (Ext. A) in the Prajatantra dated June 4, 1970, which referred to there collection of monies. Dwivedi himself had published a reply in the Prajatantra of June 13, 1970. But in none of these exhibits is there any referenceo ever to the Bombay Marwari Society having given any money to Dwivedi for relief work. The respondent says that he had only this controversy in his mind and he could not have alleged that Dwivedi had received a lakh of rupees from Bombay Marwari SocietyWe agree with the above finding. In our view a finding of fact arrived at by the Trial Court after due consideration , of the materials and the conduct and dameanour of the witnesses, should not be lightly interfered with by the Appellate Court, particularly when the view taken by it is justified on the evidenceThough it was shown as an advance, however there was no mention as to how this amount was utilised nor was any account kept by the Relief Committee as was pointed out in the audit report. To these allegations Dwivedi replied by his letter dated June 13, 1970 (Ext. 5) that he did not know why it was written as an advance by the Relief Committee. It was not an advance and there was no question of submitting detailed accounts of it to the Utkal Relief Committee35. It is not necessary to go into the controversy further because it is clear that some among the public were demanding accounts for the amounts collected by or through the efforts of Dwivedi and that Dwivedi was trying to explain some item which pertained to him but he said that he would render the accounts to the donors. Those who were concerned in the controversy, however, did not accept this position and demanded that Dwivedi should render the accounts this position and demanded that Dwivedi should render the accounts to the donees who are the publicWe are in agreement with the High Court that asking Dwivedi to render accounts in respect of the amounts collected for the cyclone and flood relief purposes was an expression of opinion and related to the public conduct and did not amount to any imputation against the personal character or conduct of Dwivedi. In the circumstances we do not think it necessary to go into the other questions.