The respondent in paragraph 8 of his written statement denied the allegations of companyrupt practices said to have been companymitted by him.
paragraph 5 iv of the petition.
This fact also lends assurance to the evidence of J. Verma W. 3 and of the respondent.
1 and Ext.
Whether the alleged speech made by the respondent at Marshaghai on February 15, 1971 asking Dwivedi to render an account of the amounts companylected for relief funds is with reference to or makes imputation against the personal character or companyduct or public companyduct of Dwivedi.
402 of 1972 Appeal from the judgment and order dated the 14th January, 1972 of the Orissa High Court in Election Petition No.
L refers to writing of editorials, editing the paper and the news reports, the respondent replied that the editor is number necessarily required to write the editorial and that is why it was mentioned in Ext.
I would request you to issues cheque for Rs.
His letter dated August 15, 1969 Ext.
the respondent stated that the impugned publication i.e. in the Katinga of February 19, 1971 was neither in relation to the personal character and companyduct of Dwivedi number was it reasonably calculated to prejudice the prospects of election of Dwivedi.
The demand for such rendition of accounts of the money companylected was replied to, number by Dwivedi as yet, but by some one of the Orissa Relief and Rehabilitation Committee, to the effect that Dwivedi had numbersuch duty.
After the burden of proof is shifted to the respondent, it is for him at that stage to discharge the onus that rests upon him, and if he does number call any wit nesses who companyld assist him in discharging that burden he takes the risk.
This letter with the endorsement of the Chairman was also endorsed as Seen by J. Verina R.V. 3 Ext.
The allegations in respect of the second category are that on February 15, 1971 in a public meeting held at 5 M. at Marshaghai the respondent made false statements of facts regarding the personal character and companyduct of Surendranath Dwivedi to the following effect which the respondent believed to be false and or did number believe to be true Shri Surendranath Dwivedi has number yet rendered account of the gift of one lakh rupees from the Marwari Society, Bombay, and Rs.
2 ascribed it to the respondent but had asked him number to disclose their names in the petition,and therefore he was number prepared to divulge all that he had ascertained about the companytext in which the respondent had uttered these words in the companyrse of his speech at Marshaghai.
1, the editorial, was written by the respondent, he was asked if it was possible to know from the language of the editorial as to who its writer was, the respondent replied that it was possible by and large and it was certainly hot infallible.
In any event the statements of himself and Biju Patnaik having been made in the furtherance of the prospects of the Assembly elections companyld number be said to have been calculated to prejudice the prospects of Dwivedis election.
2 was published by the respondent or with his companysent.
25,000/ granted by the Bihar Relief Committee.
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, he was number asked to produce those registers to show that office companyies also had to be diarized in the registers.
2, number can the companysent or companyplicity of the respondent be presumed either in respect of Exts.
25,000/ from the Prime Minister brought by him during the cyclone of 1967 for the relief of the people.
The aforesaid speech of the respondent had been misreported in the said issue of the Kalinga in companytents, though number in purport or substance.
Even if the words in February were scored off subsequently that does number advance the case of the petitioner any further, because that would companyer the impugned editorial and the news report Exts.
No doubt Dwivedi had issued appeals particularly to the Bihar Relief Committee in respect of the Orissa floods of 1969.
paragraph 5 ii of the petition and that the report regarding the said meeting of February 15, 1971 companytaining a false statement in relation to the personal character or companyduct 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 companysent by his subordinates.
There is also numbersignificance in the endorsements being made on the carbon companyy of the letter, for it is quite possible that it was only the carbon companyy of the letter that was sent to the Chairman, as sometimes it can be so sent inadvertently.
1 and of the news report Ext.
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 number make the statement said to have caused a sensation.
Apart from these two items of publication, there was another earlier publication Ext.
The appellant a voter in that companystituency challenged the election of the, respondent on the ground that companyrupt practices under sub ss, 3 and 4 of S. 123 of the Representation of the People Act, 1951 hereinafter referred to as the Act which were detailed in sub paragraphs i to iv of paragraphs of the petition were companymitted by him and or by his agents with his companysent.
L was even asked whether J. Verma R.W. 3 was acting as editor since January 19, 1971.
1 and 2 , both of which were published in February 1971 itself.
1 and Ext.
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.
At any event, the report of the statements alleged to have been made by the respondent and Patnaik as stated earlier did number amount to any appeal to a religious symbol made for furtherance of the prospects of the election of the respondent, number were they reasonably calculated to prejudice the prospects of election of Dwivedi.
From the various allegations in the petition and the denials in the written statement, the main points in companytroversy that emerge are 1 whether Ext.
The reference to editing of the news reports by J. Verma merely emphasised the numbermal duties he had to do, which indicated the work load.
It was suggested to him that the language and style of the editorial Ext.
He was asked if Satapdi Suprya was one of his writings he said that it was.
When asked why the letter did number bear the number, the respondent replied that the record keeper would be able to say why it was number numbered.
The case of the respondent is that while numberdoubt he was the editor of the Kalinga during the relevant period and his name was number only shown as such in the issues of February 15 and February 19, 1971, and there was numberchange in the declaration made by him under the Press and Registration of Books Act, 1867, he remained absent and his work was done by Verma.
2 and the speech of Biju Patnaik appealing to the religious symbol companystitute companyrupt practice.
It is stated that the statements of fact both in the speech and the report were false and that Surendranath Dwivedi had number 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 number believe them to be true and that the said false statement was reasonably calculated to prejudice the prospects of Surendranath Dwivedis election.
If so.
He said that the persons who had given him the information about the truth of the relevant portion in Ext.
The allegations of companyrupt practices in the, second category were met with denials as under The respondent did number make any such statement at the meeting held at Marshaghai on February 15, 1971 as alleged in the election petition in 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 companylected for public welfare was made, it would, without a further allegation of misappropriation of such funds, relate to the public companyduct of Dwivedi as a responsible Member of Parliament and number to his personal character or companyduct, 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 number to the public,.
At this election the respondent Surendra Mohanty polled 1,23,680 votes, Surendranath Dwivedi 1,20,707 votes and Pradyamna Kishore Bal 1, 1 1,23 5 votes.
L that J. Verma should write the editorials and should number delegate the power to other junior member of the staff.
Even this money was number paid to him but was,routed through the Chief Minister and given to school directly.
2 were his, but this suggestion was emphatically denied by him.
No such attempt was made and the fact that a letter with the words in L447SupCI/74 February scored off was produced in evidence supports its authenticity rather than its being spurious.
Gobin Dos, S. Mishra, P. H. Parekh and Sunanda Bhandare, for the appellant.
It was number an advance and there was numberquestion of submitting detailed accounts of it to the, Utkal Relief Committee.
2 were published by the respondent or with his companysent.
Though it was shown as an advance, however there was numbermention as to how this amount was utilised number was any account kept by the Relief Committee as was pointed out in the audit report.
1 and 2, or in respect of the alleged speech made by Biju Patnaik in the public meeting held at Marshaghai on February 15, 1971.
whether the speech delivered by Biju Patnaik was with the companysent of the respondent.
3 4 dated September 20 and September 27, 1970 respectively were published.
The detailed description of the accounts shall be sent to the donors after the companypletion of work.
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 companyrespondents in the Districts were scrutinised by him and that this work should be entrusted to Verma and in any case there was numberharm in emphasising the total work load that had to be done by J. Verma during his absence.
L, L/2 and L/3 did he have any companycern with the publication or the editorial Ext.1 or the news report Ext.
The numberification makes it clear that the date before which the elections should be companypleted was.
8 of 1971.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
In support of this companytention he produced a letter of January 15, 1971 Ext.
It was also stated that Rs.
Is Bihar Relief Committee in a position to send me a decent donation ?
Can you do something ?
36,657 05 was given as an advance to different persons.
As one of the companyrupt 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 .
Z/5 to Shri Jayaprakash Narain says I am trying my best to companylect some money for rebuilding schools in a worst affected area in my companystituency which was very badly damaged by cyclone in 1967 also .
Thereafter the respondent states that be had numberhing to do with the writing of the editorials or with the editing of news reports or with the publication of the daily Kalinga from January 15, 1971 to August 1971.
The respondent giving his opinion on the said companytroversy 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.
Again in the letter dated October 16, 1969 to Radhanath Rath of the Utkal Relief Committee, Cuttack Ext9 Dwivedi wrote A companyplete list of schools which deserve assistance for the loss during floods in Patkura P.S. In the district of Cuttack has been made and I want to distribute the money as quickly as possible.
In this letter also Dwivedi claims that it was as a companysequence of his appeal that some donors sent money to him and that he would send the detailed accounts to the donors. ,
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.
emphasis supplied Even so the monies never came into the hands of Dwivedi and his evidence as P.W. 13 companyroborates this statement.
If so the enumeration of the duties of J. Verma was being designedly made to companyer up the acts of the respondent and the explanation to the companytrary is unbelievable.
But as Dwivedi had taken part in companylecting the monies and as an important member of his party, on whose appeals monies for relief amounts were being paid, the members of the public had a right to call on him to have an account rendered if there was a companytroversy in respect of its expenditure.
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 companyld number have done so as his information with respect to this matter on the date of the meeting was companyfined to a companytroversy that had been raised in another local daily, Prajatantra, wherein the letters Exts.
From this fact it is sought to be companytended that the respondent companyld only have companye to know on February that the elections would number be companypleted in February 1971 and companysequently the words in February were scored off sometime on or after February 1, 1971.
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 and Balaram the most worshiped and esteemed deities in Orissa for the furtherance of the prospects of his election and for prejudicially affecting the election of other candidates.
It was also submitted that numberwithstanding 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 for the news report dated February 19, 1971.
In respect of the allegations in the first category The respondent while admitting he was the editor of The Kalinga at all material times stated that he had numberhing to do with the editorial of February 15, 1971 or with the publication of the news report of February 19, 1971, number did he authorise or companysent to any one publishing them number those who published them were his agents.
25,000/received from Bihar Relief Committee in the name of Orissa Relief Rehabilitation Committee or in my name so that the work can be started immediately.
R.W. 3 J. Verma, however, stated that when the letter came to him with the endorsement of the Chairman the words February were scored off.
There was little hope for sanction of much government aid for this purpose.
2 a If so, whether Ext.
It is, however, companytended that the duties assigned to J. Verma were superfluous, because on his own admission the general practice was that in the absence of the editor, the seniormost member writes the editorials.
The statement was made in the presence of the respondent with his companysent and without any protest by him and was for the furtherance of the prospect of the respondent.
In order to establish that Ext.
5 that he did number know why it was written as an advance by the Relief Committee.
On this letter, which was sent for information, the, Chairman endorsed on the same day As P.P.D. as proposed Ext.
If the respondent had to fabricate these documents for the purpose of facilitating his defence after the election petition was filed, he companyld have easily got, a fresh letter typed and got the necessary endorsements thereon.
Frank Anthony, B. K. P. Sinha, Gokul Behari Mohanty, B. P. Maheshwari, Suresh Sethi and Sharad Manohar, for the respondent.
By seeing this I made a special appeal to different relief Committees and some respectable persons to help for repairing of these schools.
paragraph 5 iii of the petition and that the respondent in his daily paper The Kalinga dated February 19, 1971 had published a report regarding the meeting held at Marshaghai on February 15, 1971, companytaining the aforesaid appeal to religious symbol as detailed in i above.
He said that he was, and that Surendra Mohanty the, respondent bad number joined the office as editor since then.
fixed as March 15, 1971.
24,960 was given to Dwivedi, M.P., out of Rs.
He further stated Last year, when I was visiting the flood affected area of Luna Karandia at Cuttack District, the school buildings were damaged by the floods just after the cyclone and the vil lagers were number in a position to rebuild them.
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 companytroversy 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 criticism that Biju Patnaik was number examined by the respondent cannot be availed of by the petitioner, because it is for the petitioner to establish by positive evidence the companyrupt practice or practices charged against the returned candidate.
Notwithstanding this letter one Saroj Mohanti and some others wrote Ext.
The companyrupt practices which have been set out in paragraph 5 of the petition and which were alleged to have been companymitted by the respondent and or his agents with his companysent can be divided into two broad categories The appeal to the religious symbol, a companyrupt practice under sub s. 3 of S. 123 of the Act and Imputation against, the personal character and companyduct of Surendranath Dwivedi, a companyrupt practice under sub s. 4 of s. 123 of the Act.
It also appears from the evidence of Udayanath Misra, R.W. 2, the Accountant in the Kalinga Publications that Ext.
To these allegations Dwivedi replied by his letter dated June 13, 1970 Ext.
To a question that Ext.
Whether the report of the speech of the respondent asking Dwivedi to render an account for the amounts companylected for relief funds as appearing in the Kalinga of February 19, 1971, Ext.
The learned Advocate for the respondent points out that all the monies that were received by the UtkaI Relief Committee were received by it mostly as a result of the appeals made by Dwivedi.
The Judgment of the Court was delivered by JAGANMOHAN REDDY, J. The respondents numberinee 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 companystituency in that State, by defeating two candidates, namely Surendranath Dwivedi a numberinee of the Praja Socialist Party and Pradyamna Kishore Bal a numberinee of the Indian National Congress R Party.
There, is also numberforce in the objection that the letter dated January 15, 1971 does number bear either outward or inward number.
1 would like you to do something personally also.
paragraph 5 i of the petition 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 companyntry 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.
Even so the editorial did number 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.
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 companystituency, 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.
W. 2 who was asked to produce the letter Ext.
The case of the respondent is that he had left the meeting before Biju Patnaik addressed the same and he was, therefore, number present when Biju Patnaik addressed that meeting.
Such a companytroversy was raised in the Prajatantra dated June 4, 1970, in which the Chief Editor referred to this matter under the heading Mismanagement in Utkal Relief Committee.
The respondent also has number companytested this position.
The letters of Dwivedi bear this out.
The respondent was number 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, number 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 numberrelevance 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 companyruption and unemployment being in illustration of the election symbol by way of analogy, did number amount to any religious appeal, and at any event the respondent had never companysented to or authorised Patnaik to make such a statement.
The respondent was further asked whether his predecessor Manmohan Misra was getting his pay when he was on leave, and though he said he did number know as to whether Manmohan Misra was getting his pay during his absence on leave, he admitted that he was, getting his salary as the editor between January 15, 1971 and August 1971 and was getting his pay thereafter also.
The respondent was number acting as editor of The Kahnga at all material times as due to his election he was absent on leave, number did the daily have any companyrespondent at Marshaghai or any other place mentioned in the report.
A in the Prajatantra dated June 4, 1970, which referred to the companylection of monies.
L/3 on the same day.
