Nani Gopal Swami vs Abdul Hamid Choudhury And Anr. on 5 January, 1959
Mr. Jethamalani contended in further support that there was
a clear similarity in the statements and utterances of Mr.
Fernandez and Mr. Atrey. He inferred a high probability of
concept between them. In this connection he referred in
particular to the speech of Mr. Fernandez at Shivaji Park
and the conduct of Shanbhag, one of his workers, in
following up what Mr. Fernandez had said. We shall refer to
this last part later on which a considerable part of the
time of the Court was spent, although we had ruled out the
amendment with regard to the speech at Shivaji Park. Mr.
Jethamalani referred to the following cases among others in
support of his contention that consent in such circumstances
may be assumed : Nani Gopal Swami v. Abdul Hamid Choudhury
and Another(1), Adams and Others v. Hon. E.F. Leveson Gower
(2) Christie v. Grieve(3) and W. F. Spencer; John Blundell
v. Charles Harrison(4). There is no doubt that consent need
not be directly proved and a consistent course of conduct in
the canvass of the candidate may raise a presumption of
consent. But there are cases and cases. Even if all this
is accepted we are of opinion that consent cannot be
inferred. The evidence proves only that Mr. Atrey was a
supporter and that perhaps established agency of Mr. Atrey.
It may be that evidence is to be found supporting the fact
that Mr. Atrey acted as agent of Mr. Femandez with his
consent. That however does not trouble us 'because Mr.
Chari admitted that Mr. Atrey can be treated as an agent of
Mr. Fernandez. It is however a very wide jump from this to
say that Mr. Fernandez had consented to each publication ;as
it came or ever generally consented to the publication of
items defaming the character and conduct of Mr. Patil. That
consent must be specific.