Judgement

SHAH, C.J.I. : - In compliance with our Order D/- 13-3-1970* 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 he submitted that :

* Reported in AIR 1970 SC 1477.

"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. x x x x 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".

2. Several witnesses were examined before the High Court in support of the case that Shukla was instrumental in publishing and distributing the offending statements Annexures III - and 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.

3. At the hearing of the appeal and in the proceedings for naming Shukla, 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.

4. The interveners submitted that Shukla had published the offending matter contained in Annexures I II and 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 and was the owner of the Printing Press in which the copies 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.

5. 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 Mahakoshal, 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 offend 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.

6. 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 do