Judgment :- In the general election held to the Legislative Assembly of Kerala on 19th March 19 7, the petitioner and the respondent were the contesting candidates from 34 Malappuram Constituency. The respondent was the candidate of the Muslim League supported by the ruling United Front, while the petitioner was the candidate of the Muslim League (Opposition) supported by Jana Sangh and the Marxist party. The counting of votes took place on 20-3-1977 and the respondent was declared elected. The election of the respondent is challenged on the ground that the returned candidate has committed corrupt practices falling within the ambit of Ss.123(3), (3A) and (4) of the Representation of the People Act, 1951 (for brevity the Act). The respondent is the Chief Editor of'Chandrika', a Malayalam daily paper, which is the official organ of the Muslim League. According to the petitioner the respondent holds share worth three lakhs rupees in the aforesaid company. That newspaper published reports and articles appealing to the members of the Muslim community to vote for the respondent, and not to vote for the petitioner. The reports and articles tend to promote or attempt to promote feelings of enmity and hatred between different classes of citizens on grounds of religion and community, in furtherance of the prospects of the election of the respondent. The respondent published in the said Daily, reports which are false and which the respondent believed to be false and did not believe to be true in relation to the candidature of the petitioner. Paragraphs 5 and 6 of the petition extract the objectionable portions of the matters published in the paper Further, the details regarding the objectionable matters printed and published in the aforesaid Daily are given in paragraphs 7 to 16 of the petition. The objectionable portions are extracted in the aforesaid paragraphs of the petition. According to the petitioner, the concerned publications constituted corrupt practices and the prayer in the petition is for a declaration that the election of the respondent is void and that the petitioner has been duly elected from the 34 Malappuram Constituency. 2. In answer to the summons issued from the court the respondent entered appearance and filed a written statement raising the following contentions. 2. In answer to the summons issued from the court the respondent entered appearance and filed a written statement raising the following contentions. The allegations contained in paragraphs of the petition are untrue and untenable and the election of the respondent is not liable to be declared void Chandrika Daily is published by the Muslim Printing and Publishing Company Limited, Calicur, and the respondent is the chief editor of that newspaper. The actual functions of the editor are being looked after by Sri V. C. Aboobacker, who is the editor, printer and publisher of Chandrika Daily. As a member of Parliament and the Secretary of the Indian Union Muslim League the respondent has other important activities and ha has little time to perform the functions of the chief editor. The respondent was not in a position to devote any time to look after the day-to-day editing of Chandrika Daily and he was only nominally holding the post of Chief Editor, and the actual day-today work was done by Sri V C. Aboobacker. Because of preoccupation connected with the election campaign the respondent was not having the leisure or the time to read through the daily issues of the Chandrika excepting now and then to have a cursory glance at them. Kerala Muslim League holds shares worth Rs. 3 lakhs in the Muslim Printing and Publishing Company Limited and those shares stand in the name of the respondent because the company is an unincorporated body. The respondent is holding the shares for and on behalf of the Muslim League. It is not right or fair to attribute any reports or articles appearing Chandrika to this respondent as stated is paragraph 4 of the petition. The allegation that Chandrika Daily has published reports and articles appealing to the members of the Muslim community ro vote for the Muslim League in the name of religion and community and not to vote for the candidates of the Muslim League (Opposition) in the name of religion and community is not true. The reports or articles do not tend to promote feelings of enmity and hatred between different classes of citizens on grounds of religion and community in furtherance of the prospects of the election of ahe respondent. Such publication has not prejudicially affected the prospects of the petitioner in the election. The reports or articles do not tend to promote feelings of enmity and hatred between different classes of citizens on grounds of religion and community in furtherance of the prospects of the election of ahe respondent. Such publication has not prejudicially affected the prospects of the petitioner in the election. The respondent has not published any reports which are false and which he believed to be false and did not believe to be true in relation to the candidature of the petitioner. The allegations in paragraph 4 of the petition are vague, without stating what statement and by whom amounts to the corrupt practices described therein. The extract mentioned in paragraph 5 of the petition is out of a speech made by the respondent to a gathering in which he addressed the Kerala State Muslim League Conference held on 27-2-1977 at the Calicut Stadium ground. The respondent does not precisely recollect the actual words used by him in the speech which was an extempore one and unable therefore to adroit that the words extracted in inverted commas have been, in fact, spoken to by him. The reporting of such news in newspapers including the Chandrika cannot always be expected to be precise and accurate. It is submitted further that the words extracted in paragraph 5 do not constitute a corrupt practice under S.123(3), (3A) and (4) of the Act. The speech was a purely political address and it was quite innocuous and lawful and there was n i likelihood of creating any feeling of enmity or hatred between any classes of citizens on grounds of religion, race or caste There was no appeal to vote or refrain from voting for any person on the ground of religion, race or caste or community. The reporting of the alleged extract of the respondent's speech in the issue of Chandrika dated 1-3-197' was not made by him and the respondent cannot be made liable or responsible for the report simply because he is the chief editor. The contention raised in parapragb 6 of the petition is untenable. It is the normal function or any newspaper to report speeches and events that take place and the respondent had no hand in the reporting of the speech of Sri G. N. Banathvala as the reporting was done at the instance of reporters of Chandrika, and the respondent was not even aware of the report. It is the normal function or any newspaper to report speeches and events that take place and the respondent had no hand in the reporting of the speech of Sri G. N. Banathvala as the reporting was done at the instance of reporters of Chandrika, and the respondent was not even aware of the report. Sri Banathvala is the President of the Maharashtra Muslim League and the speeca was made by him a'. Feroke, Wtiich is far outside the Malappurarn constituency Sri Bauathvaia is neither the agent of the respondent nor has the respondent had anything to do with the speeca of Sri Banathvala. The speech does not faU within the mischief of S. U3 (3j, (3A) and (4) of the Act. Th- allegation in paragraph 7 of the petition is untrue. The article of Haji N. V. Mohammed Ali appears to b as innocuous political speech and it cannot be characterised as a call in the name of the Muslim community. The petitioner has not shown that th; respondent had anything to do with Haji N. V. Mohammed Ali in contributing the article to the Chandrika dated 6-3-1977 or the publishing of it in the said issue. The article referred to in paragraph 8 of the petition is not stated to be by any particular person. It is not known why the petitioner should attribute the authorship of the aforesaid statement and its reporting to the respondent. That statement aUo does not amount to a corrupt practice under S. 123 (3), (.3A) or (4) of the Act. The article contributed by Sri P. K. Parakkadavu is innocuous. It is a mere political statement against the Jana Sangh which according to the author has been acting against the interests of the Muslim League and His author was neither the agent nor any worker of the respondent. The publication of this article in the Cbandrika Daily was not made at the instance of the respondent. The petitioner is trying to misinterpret the metaphorical language in the article and give it a meaning which it does not have, nor was intended by the author. The publication of this article in the Cbandrika Daily was not made at the instance of the respondent. The petitioner is trying to misinterpret the metaphorical language in the article and give it a meaning which it does not have, nor was intended by the author. The allegation in paragraph 10 of the petition is devoid of any truth or merit The open letter of Sri K. M. Chummar published in the Chandrika Daily dated 12th and 13th of March, 1977 has merely a political content and is quite innocuous and it contains none of the mischief's which amount to corrupt practice under S.123(3), (3A) or (4) of the Act. The letter was not intended to or likely to promote feelings of enmity or hatred between different classes of citizens on grounds of religion. Sri K M. Chummar was not an agent or worker of the respondent and the publication of that letter in the Chandrika was not made at the instance or with the direction of the respondent. The cartoon which seems to have beam published in the Chandrika dated 12-3-1977 does not have the meaning or the sense which is attributed by the petitioner. It was not published with the consent or knowledge of the respondent. The cartoon does not appear to be intended to or likely to promote any hatred in the minds of the Muslims against the United Front or the Marxist party, the Janatha party and the Muslim League Opposition). It is merely a political cartoon as is usually published in similar papers all over 1ndia. The article of sri Raaim Machery is innocuous and has none of the vices which could make it amount to a corrupt practice within the meaning of S.123 (*), 3 (a) or (4) of the Act. The article is purely political in character and the respondent had nothing to do with the article or its publication. The statement attributed to Sri Mangalam Gopinath referred to in paragraph 13 of the petition does not amount to a corrupt practice. It was a general address of a political character and that statement was not likely to promote any clash between the communities, Sri Mangalam Gopinath was not an agent of the respondent or a person working under the directions or at the instance of the respondent. That report was made in Chan-drika without the knowledge or consent of the respondent. It was a general address of a political character and that statement was not likely to promote any clash between the communities, Sri Mangalam Gopinath was not an agent of the respondent or a person working under the directions or at the instance of the respondent. That report was made in Chan-drika without the knowledge or consent of the respondent. The statement of Sri Ebrahim Sulaiman Sait, referred to in paragraph 4 of the petition was made at Pulikkal which is outside the Malappuram constituency. It was a political speech and it was never intended to promote any feelings of hatred between communities. These are general statements which are often made during election campaign and do not constitute a corrupt practice. The speech of Sri Sulaiman Sait was not made at the request or as an agent of the respondent, and it was not repored in Chandrika at the instance or under the directions of the respondent. The speech of Sri Shihab Thangal referred to in paragraph 15 of the petition was made at Kozhikode, far away from the Malappuram constituency. ,Wwas apolitical speech and Sri Thangal was not an agent of the respondent. The speech does not attract S.123 of the Act. The respondent was not responsible for the reporting of the speech. The speech made by Sri Karunakaran and referred to in paragraph 16 of the petition was a merely political speech made on behalf of the United Front of which he was a prominent member. The respondent had nothing to do with the speeches rendered by Sri Karunakaran and the reporting o* the speech was not dons at the instance of the respondent or under his directions. The respondent had nothing to do with the speeches rendered by Sri Karunakaran and the reporting o* the speech was not dons at the instance of the respondent or under his directions. Excepting the statement attributed to the respondent as having been made in the course of his speech at the state Muslim League Conference at Pookoya Thangal Nagar on 27th February, S.977, none of the other items mentioned in paragraphs 6 to 16 of th.3 petition have been shown to be statements made or reported by the respondent or by any of his agents The articles and speeches referred to in paragraphs ^ to 16 are no more than what is usually said and expressed by the parties during an election campaign and they were not intended to promote any reeling of enmity and hatred between different classes of citizens or to appeal to any voter to vote or to refrain from voting for any person on the basis of religion, caste or community The articles do not offend S 123(4) of the Act. The Muslim L ague (Opposition) owns and publishes the 'League Times' a similar daily like Chandrika, advocating the views and disseminating the propaganda of the Muslim League (Opposition) as well as the other parties which were its allies in the concerned election. Similar articles and speeches were printed and reported in League Times The election petition is not in conformity with law, and it is not accompanied by an affidavit in terms of S.83 proviso of the Act. The petitioner is not entitled to any of the reliefs prayed for, 3. After discussing with both sides the following issues were raised: 1. Whether the petition is maintainable? 2. Whether the election is vitiated by all or any of the corrupt practices alleged in the petition? 3. Regarding reliefs and costs. 4. The assembly constituency involved in this case is a segment of the Manjeri Parliamentary constituency. The main contest there was between Sri Ibrahim Sulaiman Sait, candidate of the Muslim League, and a nominee of the Ooposition League. Sri Sulaiman Sait won the election, and E. P. 18/1977 was filed by an elector challenging that election. Sri Sait is the 1st respondent. Sri Sait is cited as a witness in this case. The main contest there was between Sri Ibrahim Sulaiman Sait, candidate of the Muslim League, and a nominee of the Ooposition League. Sri Sulaiman Sait won the election, and E. P. 18/1977 was filed by an elector challenging that election. Sri Sait is the 1st respondent. Sri Sait is cited as a witness in this case. So when the 1st respondent was examined in E.P. 18/ 977, both sides agreed that the deposition of Sri Sait in E.P. 18/1977 may be treated as substantive evidence in this case by producing an attested copy of his deposition. On the basis of that agreement 1 have passed an order dated 23-11-1977 in E.P. 18/77, and a copy of that order is placed in this case as part of the records. A copy of the deposition of the 1st respondent in E.P. 18/77 is produced in this case and on the agreement of both sides it was marked as Ext. XI. 5. Issue No I. The respondent has not satisfied me in what respect the petition is not maintainable. There is a vague contention in the written statement that the affidavit filed is not in accordance with the proviso to S.83(1) of the Act. But the respondent did not press this contention at the time of hearing, and I hold that the petition is maintainable. 6. Issue No. 2. A political party by name the Indian Union Muslim League has a unit in Kerala. There was a rift in the unit sometime in 1974. As could be seen from Ext. XI there was an attempt to patch up the quarrel, and a temporary settlement was reached, the terms of which were embodied in an instrument marked as Ext. P9 in E.P. 18/197?. The reconciliation proved abortive and the party split into two different groups. Though the group that went away from the parent organisation was branded as *'culaiaj> 7. The validity of the election of the respondent is challenged by the petitioner on the only ground that certain corrupt practices were committed by the respondent during the course of bis election campaign. The various items of corrupt practices alleged in the petition relate t > certain publications in a Malayalam Daily newspaper called Chandrika. The validity of the election of the respondent is challenged by the petitioner on the only ground that certain corrupt practices were committed by the respondent during the course of bis election campaign. The various items of corrupt practices alleged in the petition relate t > certain publications in a Malayalam Daily newspaper called Chandrika. Though in the petition subsections 3,3A and 4 of S.123 of the respresentauon of the People Acv, 1951 (brieny the Act), nre specifically referred to, from the evidence tendered in the case it would appear that the applicability of sub-section 3A of S.123 alone falls for decision. 8. S.123 of the Act was enacted to prevent certain forces from interfering with the tree exercise of electoral rights by an elector. Sub-sections 1 to 7 of S.123 enumerate the different types of activities that are treated as corrupt practice for the purposes of the Act An analysis of sub-sections (1) to (7) of S.123 shows that the corrupt practice included in sub-section (3A; has special significance and certain particular features which are not possessed by the activities prohibited by the other sub-sections of S.123. The evil effects of the activities specified in the other sub-sections are comparatively short from the point of view of duration and less harmful to the society at large. But sub-section (3A) deals with activities which promote or attempt to promote what may generally be described as communal hatred. Feelings of enmity or hatred between different classes of citizens of India based on religion, race, caste, community or language do not, when once created, usually disappear shortly after the elections are over as in the case of other categories of corrupt practice. Communal hatred invariably innicts wounds hard to heal and and has the dangerous tendency to persist for long periods undermining the peace and security of the society as a whole. Since during an election campaign the most effective methods of propaganda are invariably used by almost all innuential sections of the society, creation of communal disharmony will be easier and more effective. Experience has taught that in this country religious or communal hostility has often led to retaliation at the instance of the injured party, and in certain other cases the hatred so created lie dormant like a volcano which may unexpectedly erupt leading to disastrous consequences. Experience has taught that in this country religious or communal hostility has often led to retaliation at the instance of the injured party, and in certain other cases the hatred so created lie dormant like a volcano which may unexpectedly erupt leading to disastrous consequences. Consequently, an allegation in an election petition of acts attracting S.123(3A) of the Act has to be seriously considered by a court from a broader and realistic angle. 9. Reliance is placed upon sub-section (3 a) of S.23 of the Act by the petitioner on the strength of certain publications in Chandrika paper, as referred to, and which have been marked in this case as Exts. PI to P1 1 . That provision may be read : "123. The following shall be deemed to be corrupt practices for the purposes of this Act:-[[[ (3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of 1ndia on grounds of religion, race, caste, community, or language, by a candidate his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate." The essential ingredients of the provision are: (i) the promotion or attempt to promote feelings of enmity or hatred between different classes of the citizens of 1ndia; (ii) the promotion or attempt to promote feelings of enmity or hatred must be based on grounds of religion, caste, community or language; (iii) the promotion or attempt to promote enmity or hatred must be by a candidate or his agent or any other person with the consent of a candidate or his election agent; and (iv) the object must b for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate For the sake of convenience I may refer to these ingredients as Nos.1 to 4. Tae question for consideration is whether the impugned publications jointly or severally satisfy the aforesaid conditions. 10. Considering the nature of the pleadings and the evidence adduced in this case, it would appear that the creation or attempt to create feelings of enmity and hatred between different classes of people are traceable to religion and community. Tae question for consideration is whether the impugned publications jointly or severally satisfy the aforesaid conditions. 10. Considering the nature of the pleadings and the evidence adduced in this case, it would appear that the creation or attempt to create feelings of enmity and hatred between different classes of people are traceable to religion and community. For a proper appreciation of the true characteristics and consequences of the impugned publications it may be necessary to advert to certain facts and circumstances which are generally applicable to each one of the publications. 11. All the impugned publications are, as already referred to, were made in a Malayalam daily newspaper called Chandrika, which is owned by a company by name the Muslim Printing and Publishing Company. The only activity of the company is the running of this Daily. The Muslim League holds shares to the tune of Rs.6 lakhs in the company, out of which shares worth 3 lakhs are held by the respondent, who is the Secretary of the Muslim League, and the remaining shares worth Rs 3 lakhs stand in the name of the President of the State unit of the Muslim League, who was examined in this case as Pw.4. Both of them hold small shares in their individual capacity also. It has come out in evidence that the majority of the shares are held by members of the Muslim League. Ext.P14(a ) is the issue of Chandrika dated 18-5-1975. The respondent is shown as the chief editor of the paper. In the front page there is a statement in the following terms: That passage shows that Chandrika was being treated as theof the Muslim League. When the respondent was examined as Rw.l he stated that means' official organ', but according to him that statement in that issue is not correct. There is obvious reason for offering such an explanation because the respondent was the Chief Editor even at the time when the result of the election was declared, and he was a candidate put up by the Muslim League. I am not, therefore, inclined to ignore the statement contained in Ext. P14(a) regarding the capacity in which that paper functions. Ext. XI contains paragraph 8 of the agreement marked in that case as Ext. P9. The first sentence in paragraph 8 of Ext. I am not, therefore, inclined to ignore the statement contained in Ext. P14(a) regarding the capacity in which that paper functions. Ext. XI contains paragraph 8 of the agreement marked in that case as Ext. P9. The first sentence in paragraph 8 of Ext. P9 shows that the paper Chandrika is to give effect to the policy of the Muslim League. Even assuming that Chandrika is not an official organ of the Muslim League as the respondent now attempts to explain away, Pw. 2 who is the editor, printer and publisher of the paper deposed even in his chief examination that Chandrika is a paper safeguarding the interests of the Muslim community and other minorities. Again, the respondent Thus the relationship of the paper with the Muslim community generally and with the Muslim League particularly is intimate. So the nature of the medium selected for the publications contained in Exts. P 1 to P 11 has enough significance. R. W.1 further admitted that in the Malappuram constituency the Muslims are in a majority though the majority is not very large. 12. The next aspect to be considered is regarding the authors of the matters published in Exts P 1 to P 11. The speech recorded in Ext. P la) was made by the respondent, who is the Secretary of the Muslim League and the chief editor of Chandrika. Ext. P 11 is the report regarding the speech rendered by the President of the Kerala unit of the Muslim League and who was examined in this case as P. W. 4. Ext. P 10 contains the report of a speech made by Shri Ibrahim Sulaiman Sait, the President of the Indian Union Muslim League and the deponent in Ext XI. Ext. P 9 is the report of a speech delivered by the then Home Minister. Ext P 1 (b) is the report of a speech made by Sri G. N. Benathwala, who is the President of the Maharashtra Muslim League and who contested as a candidate of the Muslim League to the Lok Sabha from the Ponnani constituency in this State. Exts. P 4 and P 7 are articles by two members of the editorial staff of Chandrika. Ext. P 5 is a cartoon by one Sheraff, who, according to P. W. 2, usually draws cartoons for Chandrika. Exts. P 4 and P 7 are articles by two members of the editorial staff of Chandrika. Ext. P 5 is a cartoon by one Sheraff, who, according to P. W. 2, usually draws cartoons for Chandrika. It can thus be seen that almost all these publications relate to speeches made by prominent leaders of the Muslim League and of the ruling United Front and also contributions made by members of the staff of Chandrika. 14. All the impugned publications contain an important common factor. 1n all of them the main criticism advanced against the Opposition Muslim League is that they have joined hands with R.S.S.,Jana Sangh and 15. One cannot also fail to note that the authenticity and correctness of the contents of Exts P1 to I'll are not seriously challenged by the respondent. Pw. 2 deposed that matters are printed in Cbandrika after ascertaining their truth and that the reports are invariably correct. He deposed as follows: 16. In the background of the facts and circumstances narrated above, I may brieny examine the offending portions of the impugned publications. (a) Ext. P1 is a copy of the issue of Chandrika Daily dated 1-3-1977 Ext P1 (a) is a report regarding the speech rendered by the respondent in the State Convention of the Muslim League. Paragraph 2 of the report contains the following sentence: The suggestion in that pa-sage is that the dissidents (the name given by R.W.1 and his group to the Opposition League) are assassins of the community by dissecting it and that they are now canvassing votes For R.S.S. and Jana Sangh who are thirsting for the blood of the Muslims. 1n paragraph 1 it is stated that the respondent exhorted the Muslims to enter the battle field for a holy war against the communal reactionary facist powers inclusive of the R.S.S. In the witness box an attempt was made by R.W.1 to explain the innammatory expressions as only the usage of figurative language when he spoke that the R.S.S. and Jana Sangh are thirsting for Muslim blood. The question is not whether R.W.1 intended to use metaphoric language in choosing the particular expressions found in his speech but it is the impression those words are likely to cause in the mind of an ordinary reader. The question is not whether R.W.1 intended to use metaphoric language in choosing the particular expressions found in his speech but it is the impression those words are likely to cause in the mind of an ordinary reader. Further figurative language is often resorted to for making the idea more appealing and more effective to the hearer or the reader as the case may be. There are also the other general circumstances I have mentioned earlier and the then subsisting disharmony between Muslims on the one part and R.S S and Jana Sangh on the other. The editorial in the same issue is marked as Ext. P1(d). The contents of Ext P1(d) mainly deal with the State Convention of the Muslim League as well as the speeches rendered therein. In Ext. P1(d) also there is a reference to R.S.S and Jana Sangh expression what is intended is R.S.S. and Jana Sangh. The petitioner has got a case that Ext. P1 (d) itself was written by the respondent. In the witness box the respondent was asked a leading question as to whether he did not write Ext. P1 (d) leader. Rw.1 pretended loss of memory. His re-examination was on another day, and in the re-examination it was elicited that Rw.1 did not write Ext. PI (d). I was not very much impressed by that denial in the re-examination. I was referring to Ext. P1 (d) only to show that the reference to R.S.S. and Jana Sangh in Ext. P1 as people who are thirsting for the blood of Muslims was not a mere figurative expression, but was one calculated to fan the hatred of the Muslims against those organisations. Rw.1 also referred to the Opposition League as murderers of the parent organisation. Further, it shall not be forgotten that practically identical expressions characterising R.S.S. and Jana Sangh as groups who murdered Muslims and set fire to mosques have been used in some of the other impugned publications discussed below. The consistent stand taken in almost all these publications is that the R.S.S.,Jana Sangh and Marxists are the worst enemies of the Muslims. I cannot, therefore, consider the speech of the respondent as reported in Ext P1 (a) as a metaphoric or impulsive speech made in the beat of passion normally associated with election campaigns. Exts. The consistent stand taken in almost all these publications is that the R.S.S.,Jana Sangh and Marxists are the worst enemies of the Muslims. I cannot, therefore, consider the speech of the respondent as reported in Ext P1 (a) as a metaphoric or impulsive speech made in the beat of passion normally associated with election campaigns. Exts. P1 to Pll show that they were intended to implement a particular line of attack against the Jana Swgh, R.S S. and the Marxists and 'o aggravate the disaffection existing between those groups on the one part as i the Muslims on the other Ext. P1 (a) cannot be read in isolation, and it would appear that by the impugned speech what the respondent did was t'j set the bill of communal hatred in motion and which gained alarming acceleration by the subsequent publications in the paper Chandnka of which the respondent is the Chief Editor. I hold that the relevant passages in Ext. P1 (a) promote or at any rate attempt to promote feelings of enmity and hatred between Muslims on the one part and the R S.S. and Jana Sangh people on the other, who undoubtedly constitute a class within the meaning of S.123(3A). The purpose of the speech as is clear from Ex?. P1 (a) was t n policy to be pursued the election. Ext. P1 (a) thus satisfies all the ingredients of S.123(3A). Ext. P1 (b) is the report of a speech made by Sri G. N. Banathwala, who was the President of the Maharashtra Muslim League and who contested rom the Ponnani Parliamentary constituency in this election. In Ext. P1 (b; it is mentioned that the Janatha Party is supporting Israel, who are the eternal enemies of the Muslims and that the dissident League people who have joined with the Janatha Party are engaged in activities detrimental not only to the Muslims of Kerala but the entire Muslim community of the world. Ext. P1 (c) is only a request for contribution to be sent to Pw. 4, and no portion of Ext. P1 (c) attracts S.123 (3A). (b) Ext. P3 is the issue of Chandrika dated 9-3-1977. The heading of the article is (meaning the tail of Jana Sangh caught hold of by the dissidents). The author is mentioned as 'onlooker'. Paragraph 8 of the petition dealing with Ext. P3 does not extract any particular passage. 4, and no portion of Ext. P1 (c) attracts S.123 (3A). (b) Ext. P3 is the issue of Chandrika dated 9-3-1977. The heading of the article is (meaning the tail of Jana Sangh caught hold of by the dissidents). The author is mentioned as 'onlooker'. Paragraph 8 of the petition dealing with Ext. P3 does not extract any particular passage. The article contains criticism about Janatha party. In paragraph 3 of column 4 a question is posed whether the dissidents are allying with Jana Sangh and R. S. S who are reactionaries intending to convert the Muslims into idot worshippers or to Indianise them by worshipping Sree Rama. Read as a whole the article creates the impression that by joining with R. S. S. and Jana Sangh the dissidents are causing grave injuries to the Muslims and their religion. (c) Ext. P4 occurs in Chandrika dated 11-3-1977. It is an article by one P. K. Parakkadavu, who was a trainee in the editorial staff of Chandrika, When the article is read as a whole it is clear that the concluding portion is sufficiently offensive. Jana Sangh, Janatha party and the Marxist party are criticised in strong terms, and the suggestion is that if the dissidents join those people the result will be that the blood minorities will now like Yamuna. The relevant passage is clearly an attempt to pro note feelings of hatred between different classes of the citizens of India. It is rather difficult to bring out the sarcasm of that statement through a translation in tae English languages. Literally means that eating of pig nesh is permissible for the hungry. Regarding the identity of the pig, Shri EMS. Namboodiripad and Shri Sy d Ummer Baffakki Thangal, Rw.1 has no no different version. His only doubt is regarding the third person on the ground that the features are not sufficient to identify him as Cheira Mammu Keyi, The enact of a cartoon to catch Use eye of the reader is well-known and it is con-firmed by Pw. 2 Jana Sign is depicted as a pig. Pw. 2 deposed that generally Muslims consider pig as a despicable creature, and to call a Muslim a pig is to abuse him. P. W. 4 which also a religious dignitary deposed as follows: So by Ext. 2 Jana Sign is depicted as a pig. Pw. 2 deposed that generally Muslims consider pig as a despicable creature, and to call a Muslim a pig is to abuse him. P. W. 4 which also a religious dignitary deposed as follows: So by Ext. P 5 cartoon Jana Sangh is depicted as an unholy and loatheome animal as far as the Muslims are concerned. The cartoon further suggests that if the Opposition League joins the Marxist party they will have to swallow pig nesh. Though P. W. 2 will call the cartoon as fun, R. W.1 would call it a political cartoon. The interpretation of R. W.1 in one sense is correct because Ext. P 5 is very much a political cartoon. What is to be considered is the reaction it will create in the minds of the people who happened to see it. According to the cartoon, Muslims should treat Jana Sangh as a pig, and how hateful that animal is to a Muslim is specifically spoken to by R.W.1 and P. W. 4. I have no hesitation to hold that Ext. P 5 cartoon has the effect of promoting hatred between Muslims on the one part and the Jana Sangh and Marxist party on the other. (e) Ext. P 5 (a) and Ext. P6 contain a fairly long article by one K.A Chummar. They purport to be an open letter to Shri M. K Haji. The petition does not point out the offensive portions in the concerned article. It cannot, therefore, be said that Exts. P5 (a) and P6 tend to promote communal hatred. (f) Ext. P is an article published in Chandrika dated '4-3-1977. The writer is shown as Rahim Mecherry, who is one of the sub-editors of Chandrika. The heading is to the effect that League is the only party which fought for conserving the rights of minorities. The offending portion is extracted in paragraph 12 of the petition, and it is the last sentence in the first paragraph. The passage means that the dissidents who are rubbing tae feet of the murderers who set fire to the mosques and Muslim houses of Tellicherry and who deprived the means of livelihood of the Muslim fishermen and who sit fire even to 'Mushaf' have no moral right to speak on behalf of the Muslim community. The passage means that the dissidents who are rubbing tae feet of the murderers who set fire to the mosques and Muslim houses of Tellicherry and who deprived the means of livelihood of the Muslim fishermen and who sit fire even to 'Mushaf' have no moral right to speak on behalf of the Muslim community. The reference in the earlier portions of the same paragraph is regarding the activities of R.S.S. There cannot be any doubt that the R.S.S. is painted in lurid colours, and the impugned passage is intended to promote hatred in the minds of the Muslims against the R.S.S. and also the Opposition League, who are seeking alliance with R.S.S (J) Ext. P8 is the report of the speech m one Mangalam Gopinath described as a Congress leader, and published in the issue of Chandnka dated 15-3-1977. The offending portion is extracted in paragraph 13 of the petition The passage means that the dissidents are a group of'Kapalikas' attempting to assassinate the Muslim community by joining with the Jana Sangh, who say that the Muslims have no right in India. The terms used are such as to create apprehension and hatred in the minds of Muslims against Jana Sangh as well as the Opposition League The concerned passage attempts to promote feelings of hatred between the Muslims on the one part and the Jana Sangh and Opposition League on the other. (h) Ext. P9 is a report printed at page 4 of Chandrika dated 16-3-1977 concerning a speech made by the then Home Minister Sri Karunakaran. The first paragraph states that Sri Karunakaran made it clear that the dissidents have joined hands with the Marxists who murdered workers of the Muslim League at Kannapuram, Valapattanam and Alleppey. The statement is sufficiently mischievous and it will antagonise the Muslims as against the Marxists. (i) Ext P10 is the report of a speech made by the President of the fedian Union Muslim League at Pulikkal and printed at page 3 of Chandrika dated 12-3-19 7. Paragraphs I and 2 of the report read as follows; It is stated that Jana Sangh set fire to holy mosques and murdered Muslims at Tellicherry and other parts of India, and the dissidents who are helping the Jana Sangh will never be pardoned by the Muslim community. Paragraphs I and 2 of the report read as follows; It is stated that Jana Sangh set fire to holy mosques and murdered Muslims at Tellicherry and other parts of India, and the dissidents who are helping the Jana Sangh will never be pardoned by the Muslim community. Ext Pll(a ) is report of another speech made by Shri Sail, printed at page 4of Chandrika dated 18-3-1977, which is equally innammatory. It was essentially on the basis of Ext. P10 in this case, and which was marked as Ext P5 in E.P. 18/77 that the election of Snri Ibrahim Sulaiman Sait was set aside by me. Ext. P10 is therefore hit by S.123(3A). 0) Ext Pll(b) is a report seen in Chandrika dated 18-3-1977 relating to the speech made by Pw. 4, the President of the State Muslim League. In paragraph 3 it is stated that the dissidents are in the camp of Marxists and the R.S.S. and that people know the communal riots at the instance of. those people in Tellicherry and in North 1ndia. That passage also has the tendency to promote feelings of enmity between the Muslims and the R.S.S. (k) Exts P12 and P13 were tendered in evidence to show that Sheriff who drew cartoons in Cbandrika during election time, and Rahim Mecherry who wrote articles in Chandrika were giver, awards for the meritorious services they rendered during the election period. Those publications do not fall within the mischief of S.123(3A). But they have some significance in another respect. The nature of Ext. P 7 article written b- Shri Rahim Mecherry and Ext. P 5 cartoon subcsribed by Shri Sheriff have been explained above. Both publications are sufficiently offensive and by giving cash awards to them, it would appear that the readers enjoyed the attack on particular sections of the people of the country and that encouragement awaits people who spread communal canard. 7. From the contents of the documents discussed above it could be seen that the main attack against the Opposition League was that they joined hands with the Jana Sangh, R. S. S, and Marxists who were confirmed enemies of the Muslims and who indulged in assassination and anon. 7. From the contents of the documents discussed above it could be seen that the main attack against the Opposition League was that they joined hands with the Jana Sangh, R. S. S, and Marxists who were confirmed enemies of the Muslims and who indulged in assassination and anon. To repeat, these publications came in a paper published for the purpose of preserving the rights and safeguarding the interests of Muslims and that the offensive matters came from responsible people like the President, Secretary and other leaders of the Muslim League and also the staff attached to the paper itself. It is significant that in the election campaign made through these publications, the political or public activities of the opposition parties were not the subject of criticism. The consistent and systematic efforts taken were to condemn the R. S S.,Jana Sangh and Marxists as the enemies of Muslims. The publications mentioned above, therefore, amply satisfy the first and second ingredients of sub-section 3A of S.123, namely the promotion or attempt to promote feelings of enmity or hatred between different classes of citizens of India on the basis of religion and com-mutiny. 18. The third condition to attract sub-section 3A of S.123 is that the objectionable activities were carried on with the consent of the respondent or his agent or any other person with the consent of the respondent or his election age nt. As far as this question is concerned there is difference between Ext. P 1 (a) and the other objectionable publication. Ext P 1 U) is by the respondent himself, and consequently, it can be easily held that Ext. P 1 (a/ satisfies the third condition. Much of the controversy in this case is regarding the responsibility of the respondent in relation to Exts. Pi (b) to P 11. The main connecting link alleged in the petition is that during the relevant period respondent was the Chief Editor of Chandrika, and consequently, a presumption under S.7 of the Press and Registration of Books Act, 1867 (for brevity referred to as the Press Act) has to be drawn. Pi (b) to P 11. The main connecting link alleged in the petition is that during the relevant period respondent was the Chief Editor of Chandrika, and consequently, a presumption under S.7 of the Press and Registration of Books Act, 1867 (for brevity referred to as the Press Act) has to be drawn. The contention of the respondent is that though his name was primed in all the issues of Chandrika as the Chief Editor, he was only an honorary chief editor and that the real editor, printer and publisher of the paper is P. W. 2, and consequently, no presumption can be drawn on the basis of S.7 of the Press Act. He has also an alternative contention that even if any presumption arises in this case that has been rebutted by the evidence available in the case. The relevant portions of S.7 as well as its scope could be seen from the decision of the Supreme Court in D. P. Mishra v. K. Sharma (AIR. 1971 SC 856). Paragraph 11 of the judgment contains the following statement of the legal pasuion. 'S. 7 of the Press and Registration of Books Act, 1867, insofar as it is relevant' provides "In any legal proceeding whatever the production of in the the case of the editor, a copy of the newspaper containing his name printed on it as that of the editor shall be held (unless the contrary be proved) to be sufficient evidence as against the person whose name shall be ... printed on such newspaper,...that the said person was...the editor of every portion of that issue of the newspaper of which a copy is produced. "S.7 raises a presumption that a person whose name is printed in a copy of the newspaper is the editor of every portion of that issue. The presumption may be rebutted by evidence." The learned counsel for the respondent drew my attention to a decision of the Allahabad High Court reported in Brahma Dutt v. Paripurna Nand (AIR. 1972 Allahabad 340). 1n that case a contention was raised that a presumption would arise by virtue of S.7 of the Press Act. The presumption may be rebutted by evidence." The learned counsel for the respondent drew my attention to a decision of the Allahabad High Court reported in Brahma Dutt v. Paripurna Nand (AIR. 1972 Allahabad 340). 1n that case a contention was raised that a presumption would arise by virtue of S.7 of the Press Act. That argument was met by the court in the following words: 'I do not think that I should take notice of such presumptions in an Election Petition which, in regard to allegations of corrupt practices, it in the nature of a quasi-criminal proceeding," The decision was cited to support the view that as far, as election petitions are concerned S.7 of the Press Act cannot be pressed into service. The decision of the Allahabad High Court apparently is against what the Supreme Court has held in D. P. Mishra v. K. Sharma (AIR. 1971 SC. 856). With great respect I disagree with the proposition laid down in the Allahabad case referred to above. From the wording of S.7 of the Press Act what is contended by the respondent is that the presumption can apply only to 'editor* and that as far as Cbandrika is concerned Pw. 2 is editor, printer and publisher. But according to the petitioner, Chief Editor also is a person coming within the ambit of S.7. 'Editor' is defined in S.1 of the Press Act as follows: ".1 (1) In this Act, unless there shall be something repugnant in the subject or context,-'editor' means the person who controls the selection of the matter that is published in a newspaper;" In interpreting the definition the respondent contended that since the word 'control' is used as a verb in the definition the 'control' contemplated therein is the actual exercise of control, whereas the petitioner would contend that the 'control* referred to in the definition is the right to control. If the argument of the respondent that the expression 'control' is to be construed as the de facto exercise of control in a given case, the acknowledged editor of a newspaper can very well say that regarding a particular issue or regarding one or more issues of a paper he did not actually exercise the control with respect to selection of the matter published and that some sub-editor did it. The sub-editor in his turn can say that an assistant editor has done it. The sub-editor in his turn can say that an assistant editor has done it. Ultimately it may not be possible to fix up the liability in any person unless the person who relies upon the presumption could prove the particular person who exercised that control in the selection of the matter that was published. It was precisely to avoid such a contingency that the presumption itself has been provided for in S.7. As far as I could see 'the word 'controls' appearing in the definition of 'editor' contained in S.1 of the Press Act relates to the right to exercise control in the selection of the matter that is published in a newspaper, and whether in a particular case the person who has such authority actually exercised it or not is of little consequence. Hence if the respondent is this case is entitled to control the selection of the matter that is published in Chandrika be will be an ‘editor' falling within the definition of that expression in S.1 of the Press Act, and in consequence, the presumption under S, 7 will apply as far as the impugned publications are concerned. So the question is whether the respondent had legally the right to exercise control in the selection of the matter for publication in Chandrika. 19. The case put forward by the respondent and supported by Pw. 2 and Pw. S is that he was holding only an honorary position and that the actual editing was always done by Pw. 2. It is necessary to examine whether the respondent is only a name lender as far as the newspaper is concerned. The association of the respondent with Chandrika is long. He joined the staff of the paper sometime in 1945 as a sub-editor. He was promoted as editor in 1954, and later on as chief editor in 1961. In 1967 be gave up the position because he was elected to the State legislature and he became a Minister. On the termination of that office the respondent again became chief editor in 1974 and continued as such till he joined the present ministry after he was elected Thereafter according to the records be has taken long leave without pay. Exts. P17 and P15 are the pay registers maintained by the company which owns the paper. The register contains entries regarding the payment of remuneration to the respondent. Exts. P17 and P15 are the pay registers maintained by the company which owns the paper. The register contains entries regarding the payment of remuneration to the respondent. The respondent admitted that be was receiving a remuneration of Rs. 700/- per mensem and another amount of Rs. 150/- towards drivers's salary. It is also seen from the relevant entries in the register that from the remuneration so paid deductions were made for contribution towards provident fund and E.S.I. Pw. 2 deposed that a separate room was allotted to the chief editor. Respondent further deposed that be bad always worked for the prosperity of the paper and that he collected funds from abroad for the company and the paper. The connection of the respondent with the paper was therefore long and very intimate. I am not in the least impressed with the version of Pw. 2 that the respondent was merely lending his name to the paper when he was shown as the chief editor of Chandrika. Pw. 5, who is a member of the Board of Directors of the Muslim Printing and Publishing Company was the Director in-charge of the paper. When Pw. 5 was examined Ext. P20 was shown to him. He identified the signature as that of the respondent and deposed that it was a letter sent by the chief editor to a reporter. He further added: informed a correspondent of Chandrika at Thaliparambu mat that he is removed from the post of Reporter since he was not sending any report for a long time. When Rw.1 was confronted with Ext. P20 his explanation was that the body of the letter was written by somebody and that he simply signed it as demanded by the manager. Ext. P21 dated 4-7-1975 is a similar letter from Rw.1 to the chief sub-editor of Chandrika. Through Ext.P21,Rw.1 as chief editor, has warned a chief sub-editor for coming to the office late. While admitting that the entire letter was written by him, here also the explanation offered by Rw.1 was that he wrote the letter as dictated by the manager. The evidence of Rw.1 shows that the manager is only a paid employee of the company, and it is not easy to believe that a man of respondent's status and who is also the chief editor could have simply functioned as a subordinate of the manager m that office. The evidence of Rw.1 shows that the manager is only a paid employee of the company, and it is not easy to believe that a man of respondent's status and who is also the chief editor could have simply functioned as a subordinate of the manager m that office. There is again Exts. P22 and P22(a ), which are the postal acknowledgement and copy of a lawyer's notice issued to Rw.1 in connection with a damage action. The explanation of Rw.1 is that because he was the chief editor notice was sent to him also and that the same notice was sent to other persons as well. However, he unequivocally admitted that for legal purposes he is considered as chief editor by the outside world. Rw.1 was It is thus abundantly clear that the respondent was not a mere name lender and that he was legally and factually the chief editor of the newspaper at the relevant time. mentioned by Pw. 2 is none other than the respondent. Pw. 5, the Director-in-charge of the paper deposed that none of the members of the Board was as competent as C. H. ( i. e. the respondent) regarding the publication of the paper. It has come out from the evidence of Pw. 2 that the respondent is an able and experienced journalist. Since, as spoken to by Pw, 5, members of the Board of Directors of the company which owns the newspaper had little knowledge regarding the running of a newspaper, an experienced and acknowledged leader of their community, the respondent, was undoubtedly appointed as the chief editor for the purpose of controlling the entire conduct of the paper. Pw. 5 was asked the question: When in the witness box Rw.1 was asked regarding Exts. P1 to Pll he said that he felt the concerned publication to be harmless and that if he felt otherwise he would have rectified it. Thus according to the respondent he had the authority to rectify the errors committed by the rest of the staff inclusive ofPw. 2. The evidence in the case thus shows that Pw. 2 was subordinate to the respondent and bound to carry out his instructions and that even according to the respondent himself to the outside world he is legally the chief editor and he had the authority to rectify the error if any committed by his subordinates. 2. The evidence in the case thus shows that Pw. 2 was subordinate to the respondent and bound to carry out his instructions and that even according to the respondent himself to the outside world he is legally the chief editor and he had the authority to rectify the error if any committed by his subordinates. It is, therefore, clear that legally and factually the respondent had the power to controt not only the selection of the matter for publication in the newspaper but even wider powers of control, I hold that the presumption under section 7 of the Press Act is available to the petitioner as against the respondent. 21. The alternative contention pressed by the respondent that even if the presumption under S.7 of the Press Act it available against him such presumption has been rebutted by the evidence available in the case. I may at the very outset state that the respondent has no case that he at any time delegated has powers to Pw 2, and he is relying only on an alleged course of conduct. In the witness box apart from the respondent, Pws. 2 and 5 gave evidence to the effect that the actual editing and publication were always done by Pw. 2 and that the respondent has never done any such work after he became the chief edition They also referred to the circumstance that since the respondent was a member of the Parliament he had to be in Delhi for fairly long periods and that he was not exercising any control. A mere perusal of Ext. P20 dated 29- 6-1975 and Ext P21 dated 4- 7-1975 are sufficient to show the hollowness of that contention. In Ext P21 the respondent found fault with the concerned chief sub-editor for not being punctual in attending office and being late on various days The respondent has no case that the contents of Ext, P2 are false. Unless the respondent himself was attending office one fails to understand how be can mention in Ext. P21 that the chief sub editor was late on many days. Thus even when he was a member of the Parliament the respondent was exercising his power as chief editor. In Ext. P20 also the respondent as chief editor finds fault with the continued indifference shown by the correspondent to whom Ext. P20 was issued. P21 that the chief sub editor was late on many days. Thus even when he was a member of the Parliament the respondent was exercising his power as chief editor. In Ext. P20 also the respondent as chief editor finds fault with the continued indifference shown by the correspondent to whom Ext. P20 was issued. Unless the respondent was not attending office he could not have noticed the irregularities mentioned in Ext. P20 also. If that was the way in which the respondent functioned even when he was a Member of the Parliament, certainly much stronger evidence is needed to show that he was lethargic regarding the affairs of the paper after he ceased to be a Member of Parliament and was residing some four furlongs away from the office of the newspaper. Exts. P20 and P21 provide also an answer to the contention of the respondent that the expression 'controls' in the definition of 'editor' in S. I of the Press Act means exercise of control, in the sense that the respondent used to exercise de facto controt as well. As I pointed out earlier, the question is not whether actually the respondent exercised the power of controt vested in him at a given time, but whether he possessed such right. After the dissolution of the Lok Sabha and after giving nomination for election it cannot be said that the respondent had no physical opportunity to exercise any control. The general explanation put forward is that being a leader of the community and also being a candidate for the Assembly the respondent had to move about, and consequently, he did not exercise any control in selecting the matter for publications. It has come out from the evidence that the residence of the respondent is only four furlongs away from the office of the newspaper Chandrika, and no evidence has been adduced to prove that on the dates of the relevant publications be was not in station. It is also significant that phone facilities are available both at the residence of the respondent and at the office of the newspaper. 22. Now I shall deal with the general policy pursued by Chandrika. Rw.1 deposed that there was a discussion regarding the election between the leaders of the Muslim League both before and after the State Convention. It is also significant that phone facilities are available both at the residence of the respondent and at the office of the newspaper. 22. Now I shall deal with the general policy pursued by Chandrika. Rw.1 deposed that there was a discussion regarding the election between the leaders of the Muslim League both before and after the State Convention. He deposed: It is thus abundantly clear that as far as propaganda through the paper is concerned a policy was already evolved and that the paper was only It is hence clear that there was a policy recognised and decided by the Muslim League and that the paper did not publish anything against that policy. So, so long as the staff of the paper simply implemented the policy of the League it is not necessary that the respondent should look into the selection of matter, editing, etc, every day. Pw. 4, the President of the State unit of the Muslim League deposed as follows: This item of evidence shows not only the general policy of the paper but also its specific policy regarding the election matters of the respondent. It is clear that the paper was always publishing matters favourable to the respondent. That being so, I fail to understand how it can be said that the presumption under S.7 of the Press Act has been rebutted. Pw. 5 who is the Director-in-charge of the paper deposed as follows: implementing that policy. He further deposed "Leauge Rw,1 further deposed that there was the election council, State working committee, parliamentary board and similar group* of the Muslim League' wherein also the policy was discussed. He adds: It has come out in evidence that Chandrika has no editorial board and that the post of Managing Editor which was in existence for some time was abolished. Thus the position of Rw.1 as chief editor h d considerable importance as far as the interests of the paper and the company were concerned. The direct and circumstantial evidence thus shows that the paper was only implementing the policy decided by the Muslim League, of which the respondent is the Secretary. The central idea in the impugned publications, namely Exts. The direct and circumstantial evidence thus shows that the paper was only implementing the policy decided by the Muslim League, of which the respondent is the Secretary. The central idea in the impugned publications, namely Exts. P1 to Pll was that the Opposition League was securing support of R.S.S.,Jana Sang i and Marxists who were enemical to the Muslims, and those organisations were responsible for massacre of Muslims and for setting fire for mosques The respondent himself started that kind of propaganda through Ext. P1(a ), Rw.1 was shown Exts. P1 to PH. He deposed that he had seen some of them and the others were seen only subsequently. He was perfectly aware of Exts. P1 to Pll publications. 1n the witness box Rw.1 was asked: Thus the case of the respondent is not that he has nothing to do with the various publications or that he was unaware of them, but that according to him they do not contain objectionable matter and that if he ever felt that there was anything wrong he would have rectified it. To put it in a nutshell, during the election period the staff of Chandrika inclusive of Pw. 2 was only implementing the policy decided by the leaders of the Muslim League inclusive of the respondent. It was thus not a case of Pw. 2 evolving a policy or selecting materials according to his own whims and fancies. Such being the position it is not possible to hold that though the respondent was the chief editor, it was Pw. 2 who made the selection of matters for publication. That being so, I fail to understand bow it can be held that in the circumstances of this case the presumption under S.7 has been rebutted. On the otter hand, as far as I could see, instead of the presumption being rebutted, it is only confirmed by the facts deposed by the witnesses and extracted above by me. That being so, I fail to understand bow it can be held that in the circumstances of this case the presumption under S.7 has been rebutted. On the otter hand, as far as I could see, instead of the presumption being rebutted, it is only confirmed by the facts deposed by the witnesses and extracted above by me. The learned counsel for the respondent cited before me the decisions of the Supreme Court reported in D. P. Mishra v. K. Sharma (AIR 1971 SC 856), B. Rajagopala Rao v. N. G. Ranga (AIR 171 SC 267), H. C. Mohanty v. Surendra (AIR 1974 SC 47) and State of Maharashtra v. R B. Chowdhari (AIR 1968 SC 110) as instances where the court held that the presumption under S.7 of the Press Act was rebutted Whether in a given case the presumption available under S.7 of the Press Act is rebutted or not is essentially a question of fact and appreciation of the evidence available in the case. I do not think that I have violated the guidelines contained in the aforesaid decisions in arriving at the conclusion that as far as the present case is concerned the respondent has not succeeded in rebutting the presumption available against him under S.7 of the Press Act. 23. The petitioner has got an alternative cast. According to him even if the presumption under S.7 of the Press Act is not available as against the respondent in view of the consistent policy adopted by Chandrika in supporting the election of the respondent the newspaper should be deemed to "nave functioned as an agent of the respondent. The respondent contended that no such allegation could be spelled out from the averments in the petition, I think, that contention has some force. 1n the absence of a definite pleading in the petition that Chandrika at least acted as agent of the respondent I may not be justified in considering the agency put forward by the petitioner, eventhough from the evidence it is perfectly clear that the position of Chandrika was that of an agent, if the presumption under S.7 of the Press Act stands rebutted. 24 The only other question remaining for consideration is whether the last ingredient of sub-section 3A of S.123 has been satisfied in this case. 24 The only other question remaining for consideration is whether the last ingredient of sub-section 3A of S.123 has been satisfied in this case. According to the petitioner the object of these publications was to further the prospects of the election of the respondent or for prejudicially affecting the election of the petitioner. Paragraph 2 of Ext. P1 (a), the report of the speech made by the respondent himself, shows that his exhortation to the audience was to rout the R. S. S. Jana Sangh group in the election. In fact, the respondent did not contend before me that the publications in question were not made with reference to the election, My conclusion, therefore is that the object of the publications was to further the cause of the respondent in the election and also to prejudicially affect the prospects of the petitioner who was the rival candidate. 25. From the foregoing discussion I hold that by their contents Exts. P 1 (a), P1 (b), P3, P4, P5, P6, P7, P8, P9, P10 and PH (b) constitute corrupt practice specified in sub-section (3A) of S.123 of the Act, and that the respondent is guilty of that corrupt practice. 26. After the evidence was closed both sides were heard, and then the petitioner raised the doubt whether a notice under S.99 shall not issue as against P. W. 2, who is the editor, printer and publisher of Chandrika. A notice was issued, and P W. 2 filed an objection. Since I have held that as chief editor the respondent is responsible for the offensive publications, it cannot be said that P. W. 2 is guilty of any corrupt practice. That apart, the name of P. W. 2 is not mentioned in the petition, and the petition also does not: contain any suggestion that P. W. 2 is responsible for the impugned publications. I hold that P. W. 2 is not guilty of the corrupt practice under S.123(3A), which alone was relied on by the petitioner both against the respondent and P. W. 2. A separate order under S.99 of the Act is simultaneously passed. 27 Issue No 3. In view of the finding on issue No. 2 the election of the respondent is liable to be set aside. A separate order under S.99 of the Act is simultaneously passed. 27 Issue No 3. In view of the finding on issue No. 2 the election of the respondent is liable to be set aside. The prayer of the petitioner that in addition to invalidate the election of the respondent the petitioner must be declared as elected cannot be sustained. So that part of the petitioner's prayer has only to be rejected. In the result, the election of the respondent from the Malappuram Assembly constituency to the Legislative Assembly of Kerala is hereby set aside and the election is declared to be void. That election petition is allowed to that extent and the prayer of the petitioner to declare him as elected is rejected. The petitioner will get his costs from the respondent. advocate's fee is determined at Rs 1000/. The Office will communicate the substance of this decision to the Election Commission and the Speaker of the Legislative Assembly of Kerala. It shall also send an authenticated copy of this decision to the Election Commission, as soon as it is ready.