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"Though in the petition sub-sections 3. 3A and 4 of section 123 of the Act are specifically referred to, from the evidence tendered in the case it would appear that applicability of sub-section 3A of section l 23 alone falls for the decision".

The petition was contested by the appellant who filed a counter-affidavit denying the assertions and averments made by the petitioner and took the stand that he made no speech which offended section 123 (3A) of the Act nor was he aware of any of the offending articles or cartoons published in Chandrika prior to the elections. The also denied that he was an Editor of Chandrika, but admitted that he was the Chief Editor and that too only in name. Being an important and an influential person he was able to collect lot of more for Chandrika from the Gulf States and that is why he was assigned an important role in Chandrika as Chief Editor for the purpose of deciding the larger policies of the paper. The appellant further denied that he had anything to do with the editorial work of Chandrika or the publication of the speeches or articles etc. It may be pertinent to note here that even the petitioner in his petition has not at all alleged or described the nature of the duties which the appellant performed as Chief Editor nor has he stated that as Chief Editor he was controlling the materials published in the paper so as to ascribe constructive knowledge to him of the articles published in Chandrika. ALL that the petitioner pleaded in his petition on this subject may be extracted thus:-

As regards the speech while the petitioner admitted that he did make a speech as would appear from the extract Ex. P.1(a) but denied that he made any communal allegations against the Janasangh but stated that some of the words used by him in the speech were used purely in a figurative sense. When the appeal was heard before us counsel for the parties agreed that the only items of evidence which could be relied upon against the appellant were (1) his speech Ex. P.1(a), (2) Cartoon Ex.P.5 and (3) other offending speeches and articles which were published in the paper of which he was the Chief Editor. It was conceded by Dr. Chitale, counsel for the petitioner that if he was not able to prove that the appellant was really the Editor of the paper then the presumption under section 7 of the Press and Registration of Books Act 1867 (hereinafter called the Press Act) would not apply and the case of the petitioner would stand or fall on Ex.P.1(a) and Exhibit P.5. It is also not disputed that although the High Court has relied on a number of articles and extract of speeches published in the various issues of Chandrika yet none of these have been proved according to law by examining the writer or the reporter or producing the original script or the paper. If, therefore. the petitioner fails to establish that the appellant was virtually the Editor of Chandrika or at any rate performed the duties of the editor then no constructive knowledge of these articles can be attributed to him.

In the light of these decisions we shall now proceed to decide the next question. In view of our finding that the appellant has not been (I ) 11976] 3 S. C. R. 445.

(2) A. 1. R. 1968 SC 1162.

proved to be the editor of the paper Chandrika Ext. P. 2 to P. 11 excepting Ext. P. 5 will have to be totally excluded from consideration because those are speeches and articles of various persons published in Chandrika and the constructive knowledge of this has been ascribed to the appellant by virtue of the allegation that he was the editor of the paper. As however this has not been proved it was incumbent on the petitioner to prove knowledge of these articles or speeches like any other fact. The admitted position appears to be that neither the writer of the article nor the speaker who delivered the speech nor the reporter nor even the manuscripts of the speeches have been produced before the Court. In these circumstances, therefore, all these articles and speeches are inconsequential until they are shown to have been made with the knowledge and consent of the appellant. Even in the pleading the petitioner has not averred that the appellant had any independent knowledge of these things or that these speeches or articles were written with his express or implied consent. The petitioner has based his case entirely on the footing that as the appellant was the editor he must be deemed to be aware of these articles and speeches and if the speeches contained offending matters and promoted hatred and ill will between two classes of citizens the appellant must be deemed to have committed the corrupt practice under section l 23 (3A) of the Act. As the entire edifice built by the petitioner for the admissibility of Ex. P. 2 to P. ll except P. 5 collapses, the allegation of the petitioner on this score is clearly disproved. Moreover, we are fortified in our view by the decision of this Court in the case of Samant N. Balakrishna etc. v. George Fernandez Ors. etc.(1) where this Court observed as follows:-