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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5310 OF 2005
Joseph M. Puthussery … Appellant
Versus
T.S. John & Ors. … Respondents
JUDGMENT
J.M. Panchal, J.
This appeal, filed under Section 116A of the
Representation of People Act, 1951 (`the Act’ for short), is
directed against judgment dated August 8, 2005,
rendered by the learned Single Judge of the High Court of
Kerala at Ernakulam in Election Petition No. 6 of 2001 by
2
which the election of the appellant as Member of Kerala
Legislative Assembly from No. 106, Kallooppara
Constituency is declared void on the ground that he was
guilty of the corrupt practice within the meaning of
Section 123(4) of the Act as he extensively distributed
directly and through UDF workers, who did so with his
consent, the copies of Ext. X4, which contained
statements of fact, which were false and which he
believed to be false or did not believe to be true in
relation to the personal character and conduct of the
respondent No. 1.
2. The facts, emerging from the record of the case, are
as under:
The election to the Kerala Legislative Assembly was
held on May 10, 2001. From the Constituency, i.e., No.
106 Kallooppara Constituency, the appellant, i.e., Joseph
M. Puthussery, the respondent No. 1, i.e., Advocate T.S.
John, Prof. P.K. Rajasekharan Nair, i.e., the respondent
No. 2 and Mathew Pinakkulath Padinjaremannil, i.e., the
3
respondent No.3, contested the election. The result of
the election was declared on May 13, 2001 and the
appellant was declared elected with 42,238 votes cast in
his favour. As far as the respondent No. 1 is concerned,
he was able to poll 31,013 votes. Thus, the appellant
defeated the respondent No. 1 by a margin of 11,225
votes. The respondent Nos. 2 and 3 received 4,432 and
361 votes respectively.
On June 27, 2001, the respondent No. 1 filed
Election Petition No. 6 of 2001 in the High Court of
Kerala at Ernakulam, under Section 100(1)(b) of the Act
assailing the election of the appellant. According to the
respondent No. 1, the election of the appellant was
vitiated by corrupt practice defined under Section 123(4)
of the Act for the reason that copies of Ext. X4, which
allegedly contained false statements of fact in relation to
the personal character and conduct of the respondent
No. 1 having tendency to prejudice the prospects of the
election of the respondent No. 1, were distributed by the
appellant, his election agent and workers of the United
4
Democratic Front, i.e., the party to which the appellant
owe allegiance, with his consent as well as with the
consent of his election agent on May 8, 2001 and May 9,
2001 ignoring the stipulation that electoral campaign
must come to an end. The precise statements in Ext. X4,
which, according to the respondent No. 1, allegedly
amounted to the corrupt practice within the meaning of
Section 123(4) of the Act, are extracted below: –
“Adv. T.S. John Is He A Servant of the People
or Hero of Corruption?
When tens of thousands of Homeless wander
on streets, this MLA, the people’s servant
acquires mansion after in his name.
Let us start journey from Anathapuri to take
an account of the number of flats owned by
this esteemed personality. Even in the District
of Trivandrum a flat was allotted during 1980,
when Gopi was the Chairman of the Housing
Board while he was MLA.
During 1984, when P.J. Joseph of flats near
the Chairman’s Quarters were acquired by this
MLA in the name of daughter of his elder
brother. At that time, the Chairman of the
Housing Board was Oommen Mathew. By
leasing out all the acquired flats on rent, he
was fetching, Rs.1000 to 2000 per month.
Nearly Rs.30,000/- was being received as
profit from this alone.
5
T.S. John, who was allotted a plot earlier, got
the flat in exchange by paying the price in
monthly installments. This flat cost Rs.12
lakhs. Even the third flat of the Housing
Board came of T.S. John.
In order to hoodwink the people of
Kallooppara, he still continues to live in a
small house. His car shed is even better. It
would have been nice for T.S. John to live in
the car shed with concrete roof.
Thengana Kadanthod Thankchan, who is
running “Mariya Store” on the
Changanacherry-Karukachal road near the
Thengana Waiting Shed, had prized the lottery
ticket. Now the only question that arises, is
how much profit Thankchan got in this
transaction. Though a lot of such incidents
had happened in the State, in the history of
Kerala this is the first time that an MLA had
indulged in this type of deceit.
Poor Simpleton of a Little Hut Or Many…..
Many….. Corruption Stories. These repulsive
stories of corruption are a disgrace to the
country. It should not be forgotten that by
this ridiculed are the people of this place.
Corruption Hero T.S. John M.L.A.
T.S. John M.L.A. the people’s representative
who lives in his small house as a puritan poor
folk, has built up flats and properties under
benami worth crores of rupees through out the
Kerala State.
Even the Ambassador Car No. KL 3/E7 this
M.L.A. owns is, it is the name of Manjeri
Bhaskaran Nair.
6
Role of P.J. Joseph, Minister and T.S. John
M.L.A.
Embezzlement of crores of rupees behind
Palemaad Vivekanada School
There is a school in the name of Palemaad
Vivekanada village near Manjeri in
Malappuram District, which is populous with
settlors, but is an undeveloped area under the
shield of this school, which started functioning
during 1963, a family is leading princely life at
the expense of the Government, embezzling
crores of rupees. Those who liaise for them
and receive lakhs of rupees as their share are
two important persons. Education Minister
P.J. Joseph and the formal Minister and the
Assembly Speaker T.S. John.
It is now years since P.J. Joseph and T.S. John
begun this business in the education with
Bhaskara Pillai.
Bhaskara Pillai, who was removed from N.S.S.
for indulge in financial irregularities, has seen
the green pasture in his life through the
education business with P.J. Joseph – T.S.
John.”
The appellant filed written statement resisting the
election petition. In the written statement, distribution of
Ext. X4 in the Constituency on May 8, 2001 and May 9,
2001 was not specifically denied meaning thereby
ignorance was pleaded so far as distribution of the
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pamphlets was concerned. However, the appellant took a
specific stand that neither he nor his election agent or
any one with his and/or their consent had distributed
Ext. X4. What was stated by the appellant in the written
statement was that the distribution was done by the
Youth Wing of the party to which the respondent No. 1
belongs and that the distribution of Ext. X4 does not
amount to any publication. It was also averred that, at
any rate, the statement was not calculated to prejudice
the prospects of the respondent No. 1 in the election held
on May 10, 2001 and, therefore, the Election Petition was
liable to be dismissed.
3. Having regard to the pleadings of the parties, the
learned Single Judge framed as many as eight
issues for determination. On behalf of the
respondent No. 1, who was the original petitioner,
as many as 90 witnesses were examined and
documents Ext. P-1 to P-22 were produced in
support of his case that the election of the appellant
8
was liable to be voided. So far as the appellant is
concerned, he had examined 53 witnesses and
produced documents at Ext. R-1 to R-20 in support
of his case that his election was not liable to be set
aside on the ground of alleged corrupt practice.
Further, Ext. C-1 to C-3(b) were marked as Court
Exhibits whereas X-1 to X-24 documents were
marked as proved by witnesses and Ext. N-1(a) and
N-1(b) were marked by the persons to whom the
court had issued notice under Section 99 of the Act.
4. After considering the evidence adduced and hearing
the learned counsel for the parties, the court
proceeded to consider the question as to which
standard of proof is required to be applied while
resolving election disputes raised in the Election
Petition and held that the standard of proof which is
higher than one made applicable to decide civil
cases but which is lesser than the one applied in
criminal cases should be adopted. The High Court
9
has further held that relevant contemporaneous
newspaper publications like Ext. P-5 and P-6 and
entries in official documents like Ext. X5 and X6
corroborate the ocular version tendered by the
witnesses examined by the respondent No. 1 about
the distribution of Ext. X4 pamphlet in the
constituency on May 8 and May 9, 2001 by UDF
workers. The learned Single Judge further observed
that the act of the appellant in not stopping his
workers from continuing with distribution of
objectionable pamphlet Ext. X4 is sufficient to
assume consent on his part. The learned Judge
held that it was not established by the respondent
No. 1 that DW-52 Jaya Varma, who was election
agent of the appellant, had himself distributed the
pamphlets in question nor it was established that
UDF workers had distributed the pamphlets with
consent of Jaya Varma. The learned Judge further
held that the evidence tendered about the
involvement of DW-52 Jaya Varma in actual
10
distribution did not inspire confidence of the court.
5. The learned Judge further held that in releasing
Ext. X4 for consumption of the electorate by
extensive distribution in the Constituency, there
was publication as contemplated by Section 123(4)
of the Act. The learned Judge found that Ext. X4
was not merely republication of the relevant
portions of Exts. R-6, R-7 and R-8, but in addition
to what was available in Exts. R6, R-7 and R-8,
defamatory imputations by way of title,
observations/comments in the sub-title, etc., were
available in Ext. X4. The learned Judge held that
out of the three allegations made in objectionable
pamphlet Ext. X4, the third allegation, which relates
to misappropriation and fraud to the tune of crores,
falls under category of objectionable statement of
fact under Section 123(4) of the Act and evidence of
PW-6 shows that the statement was false. The
Court noted that publication of Ext. X4 on the eve of
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election was calculated to prejudice the prospects of
the respondent No. 1 of winning the election. The
Court concluded that the appellant was guilty of
corrupt practices under Section 123(4) of the Act.
However, the Court did not name any of the 77
workers of UDF under Section 99 of the Act and
held that there was no specific evidence against any
of them.
6. In view of the above mentioned conclusions, learned
Single Judge has allowed the Election Petition filed
by the respondent No. 1 and set aside the election of
the appellant, giving rise to the instant appeal.
7. This Court has heard the learned counsel for the
parties at length and in great detail. This Court has
also considered the voluminous oral as well as
documentary evidence produced by the parties and
read out before the Court.
8. So far as standard of proof is concerned, there is no
manner of doubt that the High Court misdirected
12
itself on the point of standard of proof required
under Section 123 of the Representation of People
Act, 1951. The learned Judge without explaining
invented a new standard of proof to be made
applicable to election disputes and has held that
standard of proof higher than the one applicable to
the civil cases but certainly lesser than one
applicable to the criminal cases, should be adopted
while determining the question whether an elected
candidate is guilty of corrupt practice/s within the
meaning of the Act. Normally, standard of proof
made applicable to civil cases is preponderance of
probabilities and the one made applicable to
criminal cases is proof beyond reasonable doubt.
Even with the ablest assistance of the learned
counsel for the parties, this Court could not
comprehend as to which is that standard of proof
which is higher than the one applicable to civil
cases and lesser than the one applicable to criminal
cases. The standard of proof, spoken of by the
13
learned Judge, neither gets recognition/stamp of
authority either from the provisions of the Indian
Evidence Act or from any other statute or from
judicial precedents. There is no manner of doubt
that the standard of proof, which should be adopted
according to the High Court while determining an
election dispute, is contrary to settled principles of
law. The settled law is that an election trial where
corrupt practice is alleged is to be conducted as a
criminal trial. Unfortunately, the High Court has
not referred to any decision of this Court on the
point though the learned counsel for the appellant
claimed that several decisions were cited by the
learned counsel for the parties to guide the High
Court as to which standard of proof should be
adopted while deciding an election dispute. In
Jagdev Singh Sidhanti vs. Pratap Singh Daulta
(1964) 6 SCR 750, the Five Judge Constitution
Bench of this Court has laid down, in paragraph 11
of the reported decision as under: –
14
“11. It may be remembered that in the trial of
an election petition, the burden of proving that
the election of a successful candidate is liable
to be set aside on the plea that he was
responsible directly or through his agents for
corrupt practices at the election, lies heavily
upon the applicant to establish his case, and
unless it is established in both its branches
i.e. the commission of acts which the law
regards as corrupt, and the responsibility of
the successful candidate directly or through
his agents or with his consent for its practice
not by mere preponderance of probability, but
by cogent and reliable evidence beyond any
reasonable doubt, the petition must fail.”
It may be observed that the principle that in an election
petition based on corrupt practice the Court has to adopt
standard of proof beyond reasonable doubt, is enunciated
in at least not less than six other reported decisions of
this Court. However, this Court does not wish to burden
the judgment unnecessarily by referring to those reported
decisions in detail because the learned counsel for the
respondent has fairly conceded before this Court that a
wrong standard of proof was adopted by the High Court
while trying the election petition filed by the respondent
No. 1 challenging the election of the appellant.
15
9. The consequence of the conclusion, that the learned
single Judge adopted a wrong standard of proof
while determining the election dispute raised by the
respondent No. 1, would be that the other findings
recorded by the learned Judge will have to be
viewed in the light of this fundamental error
committed by him.
10. It may be mentioned that the impugned judgment
roughly runs into 87 pages. However, this Court
finds that no evidence of any witness is discussed in
detail at all. The conclusion of the High Court that
distribution of Ext. X4 in the Constituency
concerned on 8th and 9th May, 2001 was by the
appellant and by UDF workers with the consent of
the appellant is to be found on pages 28 to 33 of the
impugned judgment. It is relevant to notice that the
appellant had stated in his written statement that
he was not aware of any such distribution and in
the alternative it was mentioned that even if the
16
distribution had taken place, neither he nor his
agent nor any of the workers of UDF was/were
involved in the distribution of the Pamphlet Ext. X4.
The learned Judge has observed that the appellant
has not expressly denied distribution of Ext. X4 on
the above said dates in his written statement.
However, this Court finds that in an election trial it
is not permissible to the High Court to discard
substantive oral evidence on account of defect in the
pleadings. This is so in view of the decision of this
Court in Dr. Jagjit Singh vs. Giani Kartar Singh
and others AIR 1966 SC 773.
11. What is important to notice is that the testimony of
the appellant that printing and distribution had
taken place in March, 2001 and not in May, 2001,
as alleged by the respondent No. 1, was discarded
by the learned Judge only because it was not so
stated in his written statement. At this stage it
would be advantageous to refer to the testimony of
17
PW-88. PW-88 is the owner of the press. He had
deposed before the Court on February 13, 2002 that
Shaji P. Jacob, i.e., DW-10, had entrusted him the
printing of Ext. X4 Pamphlet on March 8, 2001.
The said witness had produced Ext. X17 Bill Book
maintained by him in the ordinary course of
business to substantiate that Mr. Jacob, i.e., DW-
10, had entrusted him the printing of Ext. X4.
Again, DW-10 had also deposed before the Court on
March 6, 2002 that he had got printed Ext. X4 from
the press of PW-88 and that he himself had
distributed the same in the month of March, 2001.
It may be stated that PW-88 was one of the
witnesses produced by the respondent No. 1 himself
in support of his case that the election of the
appellant was liable to be set aside and the
respondent No. 1 wanted the Court to rely upon the
testimony of PW-88. As observed earlier, PW-88
had in categorical terms stated before the Court
that Mr. Jacob, i.e., DW-10, had entrusted him the
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printing of Ext. X4 Pamphlet on March 8, 2001.
The testimony of PW-88 was never challenged by
the respondent No. 1 in the sense that PW-88 was
never declared hostile to the respondent No. 1 nor
the respondent No. 1 had sought permission of the
Court to cross-examine PW-88. Thus, evidence
tendered by PW-88 was accepted to be true by the
respondent No. 1. The testimony of DW-10, whose
credibility could not be impeached during his
lengthy cross-examination by the learned counsel
for the respondent No. 1, had asserted that he had
got printed Ext. X4 from the press of PW-88 and
that he had distributed the same in March, 2001.
From the impugned judgment it becomes evident
that without assigning cogent and convincing
reasons the learned Judge had chosen to disbelieve
the evidence of PW-88 and that of DW-10. No
convincing reason recorded by the learned Judge as
to why the testimony of PW-88 or for that matter the
testimony of DW-10 should be disregarded. The
19
only and feeble reason, which has no legs to stand,
given by the learned Judge to disbelieve the
testimony of PW-88 and DW-10, is that those who
distributed the pamphlets must have got the same
printed in the press of PW-88. Thus, this Court
finds that the conclusion drawn by the learned
Judge, that the evidence of PW-88 and DW-10 was
unreliable, will have to be regarded as perverse.
The finding recorded by the learned Judge that no
adverse inference can be drawn against the
respondent No. 1 on the score that he had neither
asserted nor controverted that Ext. X4 was got
printed by DW-10 in the press of PW-88, has no
factual basis and this Court, having regard to the
facts of the case, is inclined to draw an adverse
inference against the respondent NO. 1 on the score
that he had neither asserted nor controverted the
fact that Ext. X4 was got printed by DW-10 at the
press of PW-88. Viewed in the light of what is held
above, the assertion made by the appellant, who
20
had examined himself as DW-53 that he had come
to know about the distribution of Ext. X4 in the
month of March from DW-10 later on, deserves to
be accepted and cannot be brushed aside as
improvement in the version as is done by the
learned Judge.
12. The finding that there is overwhelming and
satisfactory oral evidence on the point that the
distribution had taken place on May 8, 2001 and
May 9, 2001, to say the least is contrary to the
evidence on record. What is the value of oral
evidence while deciding issue of corrupt practice
within the meaning of Section 123(4) of the Act will
have to be considered? So far as election law is
concerned by now it is well settled that it would be
unsafe to accept the oral evidence on its face value
without seeking for assurance from other
circumstances or unimpeachable document. It is
very difficult to prove a charge of corrupt practice
21
merely on the basis of oral evidence because in
election cases, it is very easy to get the help of
interested witnesses. In Abdul Hussain Mir vs.
Shamsul Huda and another (1975) 4 SCC 533,
the Three Judge Bench of this Court held that oral
evidence, ordinarily is inadequate especially if it is
of indifferent quality or easily procurable.
According to this Court, the oral evidence has to be
analyzed by applying common sense test. It must
be remembered that in assessing the evidence,
which is blissfully vague in regard to the particulars
in support of averments of undue influence, cannot
be acted upon because the court is dealing with a
quasi-criminal charge with serious consequences
and, therefore, reliable, cogent and trustworthy
evidence has to be led with particulars. If this is
absent and the entire case is resting on shaky ipse
dixits, the version tendered by witnesses examined
by election petitioner cannot be accepted. Before
recording the above finding, the learned Judge has
22
not adverted to the evidence of any witness nor
taken into consideration the positive evidence of
DW-10 that he himself had distributed Ext. X4 in
the month of March, 2001. This Court does not find
from the impugned judgment as to why the High
Court was inclined to prefer testimony of a
particular witness as against the reliable evidence
tendered by the appellant himself and the evidence
tendered by DW-10. The finding that
contemporaneous newspaper publications produced
at Exts. P-5 and P-6 corroborate the testimony of
the respondent No. 1, is also not supported by the
evidence on record. If one examines newspaper
publications produced at Exts. P-5 and P-6, it
becomes at once clear that the reports were entirely
hearsay. The reporters of Exts. P-5 and P-6 were
examined in this case. They have categorically, and
in no uncertain terms, stated that they had no
personal knowledge of the events published in Exts.
P-5 and P-6. Therefore, what was reported in the
23
newspapers could not have been regarded anything
except hearsay. There is no manner of doubt that
the High Court has misdirected itself in placing
reliance on the hearsay evidence, which was
produced before the Court in the form of Exts. P-5
and P-6. In view of clear proposition of law laid
down by this Court in Quamarul Ismam vs. S.K.
Kanta and others 1994 Supp. (3) SCC 5 and
Laxmi Raj Shetty and another vs. State of Tamil
Nadu (1988) 3 SCC 319, the hearsay evidence
could not have been used by the learned Judge for
coming to the conclusion that contemporaneous
newspapers publications Exts. P-5 and P-6
corroborate the testimony of the respondent No. 1.
13. The first question, which deserves to be addressed
by this Court, is whether it is satisfactorily
established that the appellant himself had
distributed the pamphlets in question on May 8 and
May 9, 2001.
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14. As noticed earlier, the High Court has recorded a
finding that Ext. X4 pamphlets were distributed on
May 8, 2001 and May 9, 2001 by the appellant and
also by UDF workers with his consent and for this
purpose the High Court has relied on the testimony
of PW-12 to PW21. The learned counsel for the
respondent No. 1 would contend that the fact that
the appellant had distributed the pamphlets in
question stands satisfactorily proved by the
evidence of PW-12 to PW-21, out of whom PW-16,
PW-18, PW-19 and PW-20 are independent
witnesses and, therefore, the finding recorded by
the High Court that the appellant had distributed
pamphlets on May 8. 2001 and May 9, 2001 based
on appreciation of evidence, should be upheld by
this Court. The above mentioned submission
makes it abundantly clear that PW-12, PW-13, PW-
14, PW-15, PW-17 and PW-21 were not independent
witnesses and had affiliation with the party to which
the respondent No. 1 belongs. What is important to
25
note is that once the testimony of PW-88 read with
that of DW-10 is believed that pamphlets Ext. X4
were printed in the press of PW-88 at the instance
of DW-10 and that DW-10 had distributed the same
in the month of March, 2001, the assertion made by
witnesses examined as PW-12 to PW-21 that the
pamphlets were distributed by the appellant and
also by UDF workers with the consent of the
appellant on May 8, 2001 and May 9, 2001 becomes
highly doubtful and their say cannot be accepted. It
is relevant to notice that G. Govindan Nampoothiri,
who is examined as PW-88, is witness for the
respondent No. 1. The respondent No. 1 desires
this Court to act upon the testimony of the said
witness, who is examined by him. The respondent
No. 1 has not disowned the testimony of PW-88 in
the sense that the said witness was not declared
hostile nor cross-examined on behalf of the
respondent No. 1. Once the testimony of PW-88
read with that of DW-10 is acted upon, it becomes
26
evident that the respondent No. 1 had led two sets
of evidence each contradicting the other regarding
distribution of pamphlets and obviously in such
circumstances the reasonable benefit of doubt
would go to the elected candidate, namely, to the
appellant. Further, the claim made by the learned
counsel for the respondent No. 1 that PW-16, PW-
18, PW-19 and PW-20 were independent witnesses,
who had deposed before the Court that the
appellant had distributed Ext. X4 pamphlets on
May 8, 2001 and May 9, 2001, on scrutiny, is found
to be hollow. The scrutiny of evidence of PW-16
Kuttappai K.K. indicates that in cross-examination
it was put to him that Ext. X4 was brought out by
the President of Youth Front (J) against another
member of the same party and in answer to the said
question he replied that he was not knowing that it
was brought out by the President of Youth Front (J),
but admitted that it was so written/mentioned in
Ext. X4 itself. Though he admitted that he had not
27
bothered to peruse the full text of Ext. X4, he had
audacity to state before the Court that Ext. X4
contained defamatory matter and that allegation of
corrupt practice at the personal level were made
against the respondent No. 1. When it was put to
him that Ext. X4 did not contain any reference
about the personal conduct of the respondent No. 1
other than as a servant of the people, the claim of
this witness was that he had not read the full text.
A witness, who claims before the Court on oath that
Ext. X4 pamphlets contained defamatory matter
without reading the contents of the same, would
hardly inspire confidence of the Court. A perusal of
testimony of PW-18 K. Anil Kumar would indicate
that in an answer to the question i.e. whether there
was anything in Ext. X4 causing defamation of the
candidate as such or about election, the witness
replied that those words were not used in Ext. X4
and he agreed that Ext. X4 did not contain the
words `election’ or `candidate’. Initially, this witness
28
maintained that he was an independent witness and
had nothing to do with Marxist Party to which the
respondent No. 1 belongs, but in cross-examination
he admitted that he had worked in the SFI, which
was the Student Front of the Marxist Party, in the
year 1984-85. He further admitted that at the time
when he had worked in the SFI, which was the
Student Front of the Marxist Party, he was in the
college and had occasion to mingle with the party
leaders. In the opinion of this Court the admission
made by the witness makes it more than clear that
he was not an independent witness as claimed by
the learned counsel for the respondent No. 1 and
had come to the Court to oblige the respondent No.
1. Again, a critical scrutiny of evidence of PW-19
M.M. Simon would indicate that he had informed
one Mr. Pradeep, who was an LDF worker, about
the distribution of the pamphlets by the appellant.
This witness also admitted that he had not read the
contents of Ext. X4 and had only read the
29
headlines. This witness admitted in the cross-
examination that he had deposed before the Court
on the basis of information that he had got from
others during the election propaganda. This
statement made by the witness makes it doubtful
whether in fact this witness had seen the appellant
distributing the offending pamphlets. Thus on the
re-appreciation of evidence of this witness this
Court does not find it prudent to place implicit faith
on the testimony of this witness. The evidence of
PW-20 Verghese Mathew shows that his vegetable
shop and the LDF Committee Office are situated in
one and the same building and both are separated
by a wall. A question was put to witness that
whether both sides had raised allegations of
corruption against each other. In answer to the
said question the witness stated that according to
his knowledge such allegations were raised only by
the UDF and not by the LDF. Earlier this witness
on his own had mentioned that the respondent No.
30
1 had issued notices soliciting votes and had not
published any pamphlet of the nature of Ext. X4
raising allegations against the UDF. It is important
to note that it was nobody’s case and certainly it
was not the case of the appellant that the
respondent No. 1 had published any pamphlet of
the nature of Ext. X4 raising allegations against the
UDF. Therefore, making of such a statement shows
to what extent this so called independent witness
was interested in the respondent No. 1. His claim
that his wife told him that the copy of Ext. X4 was
distributed along with the identity slip by the UDF
party workers can hardly be believed. Such an
evidence would never be made available and/or left
by the distributors of the pamphlet concerned.
Though this witness denied that he was member of
the party to which the respondent No. 1 belonged,
after reading his testimony a general impression is
created that he was in active politics and had
supported an independent candidate, who was
31
contesting Panchayat Elections. His evidence
further shows that in connection with the disputes
relating to the said election a criminal case was
registered against him and he was prosecuted.
Therefore, his attempt to project himself as a totally
independent witness does not inspire confidence of
this Court at all, more particularly, when on
presumption the witness had audacity to claim on
oath that since the respondent No. 1, who belongs
to LDF, was maligned. He had presumed that the
publication was brought out by UDF and after
seeing bottom portion of Ext. X4 he had to admit
that it was brought out in the name of Shaji P.
Jacob Kallunkal, who was a former member of the
Youth Ftont of Joseph Group of Thiruvalla
Constituency. Thus the so called independent
witnesses examined by the respondent No. 1 to
establish that the appellant had distributed the
offending pamphlets on May 8, 2001 and May 9,
2001 are in fact not independent witnesses and are
32
not reliable at all. The finding recorded by the
learned Judge of the High Court that there is
overwhelming and satisfactory oral evidence on the
point that distribution of pamphlet Ext. X4 on May
8, 2001 and May 9, 2001 was made by the
appellant, is not borne out from the record of the
case. In fact there is no discussion as to which
witness has testified to this fact and why the High
Court has preferred that testimony as against the
evidence tendered by the appellant.
15. This Court further finds that the High Court has
recorded a finding that the pamphlets were
distributed by the appellant by observing that “the
allegation in para 13.1(iii) is also to be found to be
established satisfactorily by the evidence tendered”.
This Court notices that before recording above
mentioned finding, the High Court has not taken
trouble of referring to any evidence on the record.
The High Court while recording the said finding
33
should have referred to the evidence which had
tendency to establish the said fact. Thus, most of
the findings recorded by the High Court are based
on surmises and inferences and have no factual
basis at all. While discussing whether the
distribution of the pamphlets was with the consent
of the appellant, the High Court mentions the
testimony of PW-12 to PW-21. All these witnesses
were produced by the respondent No. 1 during the
course of the election trial. Many of them admitted
that they were affiliated to the respondent No. 1
and/or his party, whereas rest of them have been
found to be interested witnesses. There is
absolutely nothing on the record to show that the
appellant had indulged in the act of distribution of
pamphlets and thus committed a corrupt practice.
The case of the respondent No. 1 in the election
petition was that on May 8, 2001 seven UDF
workers were arrested by the police in connection
with the distribution of pamphlets and the appellant
34
had personally got them released from the Police
Station and after coming out from the police station,
the appellant himself had distributed the pamphlets
and directed others to distribute the same. As
noticed earlier, the respondent No. 1 had examined
PW-7, Additional S.I., and produced Ext. X5, which
is GD entry to substantiate this case. Apart from
the evidence of PW-12 to PW-21, who are his own
party workers and/or interested witnesses, the
official evidence has completely disproved the case
of the respondent No. 1, because PW-7 specifically
stated that the seven UDF workers were not
arrested and so the appellant had no occasion to get
them released. The GD entry also states that the
ASI had gone to the spot and removed the UDF
workers from the scene to avoid breach of law and
order and later on they were let off on the advice of
the superior officers. Once it is held that the
respondent No. 1 has failed to prove that seven UDF
workers, who were distributing the pamphlets, were
35
arrested and lodged in the police station and that
the appellant had gone to the police station and got
the seven workers released from the police station,
the further case of the respondent No. 1, that after
coming out of the police station, the appellant
himself had distributed the offending pamphlets
and directed others to distribute the pamphlets,
becomes highly doubtful and improbable. This
Court finds that the High Court has placed reliance
on unreliable and scanty evidence to find the
appellant guilty of corrupt practice and, therefore,
the finding that the appellant is disqualified under
Section 99 of the Act is completely unsustainable.
16. The second question, which needs to be considered,
is whether it is satisfactorily proved by the
respondent No. 1 that whether the pamphlets in
question were distributed by the workers of UDF.
17. This Court further finds that the High Court has
recorded a finding in paragraph 39 of the impugned
36
judgment that the official documents, which have
come from proper custody, corroborate the ocular
version of the witnesses about distribution of Ext.
X4 on May 8, 2001 and May 9, 2001. On scrutiny
of the whole evidence on record this Court finds
that the High Court has not pointed out as to which
were the official documents referred to in paragraph
39 of the impugned judgment. The learned counsel
for the respondent No. 1 also could not point out to
this Court any document which can be termed as
official document, which, in turn, corroborated the
ocular version of the witnesses regarding
distribution of Ext. X4 on May 8, 2001 and May 9,
2001. This Court finds that the learned Judge has
referred to Ext. X5, which is General Diary
maintained in the Police Station read with the
testimony of Additional S.I. of Police at Thiruvalla,
Mr. V.R. Rajendran Nair to conclude that official
document corroborated the version of the witnesses
that distribution of pamphlets, copy of which was
37
produced as Ext. X4, had taken place on May 8 and
May 9, 2001. Ext. X5, which is referred to by the
learned Judge, is to be found on page 130 of
Volume V of the appeal. It is General Diary entry of
the Police Station. The Additional S.I. PW-7, who
made the GD entry, has in terms disproved the
arrest of seven UDF workers, who were allegedly
distributing the pamphlets, and the involvement of
the appellant in getting them released from the
Police Station as alleged by the respondent No. 1.
Therefore, this Court fails to understand as to how
General Diary entry of the Police Station and the
testimony of Additional S.I. PW-7 proved that seven
UDF workers were distributing the offending
pamphlets and that the appellant was involved in
getting them released from the Police Station.
18. Further, while concluding that the pamphlets were
distributed by the UDF workers on May 8, 2001 and
May 9, 2001, what is observed by the learned Judge
38
is that the benefit of the distribution would have
enured to none other than the appellant and,
therefore, inference can be drawn that UDF workers
had distributed the pamphlets with the consent of
the appellant. This Court finds that such a
conclusion, based on unwarranted inferences and
surmises, is recorded only because High Court had
misdirected itself on the question of standard of
proof required to be adopted to resolve a dispute
raised under Section 123 of the Act. The theory
that the benefit of distribution could have enured
only to the appellant is misplaced in the light of
principles laid down in D. Venkata Reddy vs. R.
Sultan and others (1976) 2 SCC 455. It is
relevant to notice that in his written statement the
appellant had denied that 77 persons named in the
election petition, who had allegedly distributed the
pamphlets, were UDF workers. However, the High
Court found that the appellant had in his testimony
admitted that some of them were in fact UDF
39
workers. Therefore, the High Court proceeded
further to record a finding that “this must go a long
way when the court considers the question as to
who had distributed copies of Ext. X4”. Although
from the record it is evident that out of 77 persons
named in the election petition, the appellant had
admitted that a few were UDF workers but from this
it would be unwise to jump on to the conclusion
and that too on inferences that the UDF workers
had distributed the pamphlets. The High Court in
the impugned judgment could not even identify a
single UDF worker, who, according to it, had
distributed the pamphlets and has simply held that
there is evidence to show that UDF workers had
distributed the pamphlets. The testimonies of 77
persons named in the election petition could not
have been accepted because their testimonies are
self-serving and interested one. The finding that
DW-14 Mustafa Kutty admitted during his cross-
examination that UDF workers had distributed the
40
pamphlets is nothing else but the result of complete
misreading of the testimony of the said witness.
The said witness does not make any such admission
as is referred to by the High Court in the impugned
judgment. On the contrary the said witness had
stated that he had distributed only the pamphlets
issued from the Election Committee Office and
nowhere had he stated that the Election Committee
Office of the appellant had issued the pamphlet’s,
copy of which was produced at Ext. X4, and that he
had distributed those pamphlets.
19. The discussion made above makes it evident that
the respondent No. 1 has failed to prove that UDF
workers had distributed the offending pamphlets on
May 8 and May 9, 2001. The finding of the High
Court on this score being against the weight of
evidence is hereby set aside.
20. In the alternative, it was argued on behalf of the
appellant that even if the distribution of pamphlets
41
by UDF workers was held to be proved, no
satisfactory evidence was adduced by the
respondent No. 1 to establish that distribution of
the pamphlets by the UDF workers was with the
consent of the appellant and, therefore, the
judgment impugned is liable to be set aside.
21. It is well-settled that to prove that the corrupt
practice of a third person is attributable to a
candidate under Section 123 of the Act, it must be
shown that the candidate consented to the
commission of such act. The finding that the
appellant knew about such distribution because
benefit of such distribution could only enure to him,
but he kept silent despite knowledge of such
distribution, is nothing else but an unwarranted
inference and surmise on the part of the court.
Similarly, the finding that seven UDF workers, who
were allegedly arrested on May 8, 2001 by the police
for distribution of the pamphlets, were released at
42
the behest of the appellant who went to the Police
Station and, therefore, there was consent of the
appellant is quite contrary to the testimonies of the
witnesses. It may be mentioned that this finding is
arrived at on the basis of (i) the averments in the
election petition which have no basis to justify the
finding, (ii) the testimonies of PW-12 to PW-21, but
scrutiny of their evidence reveals that none of the
said witnesses had witnessed the appellant going to
the police station and securing release of the seven
workers and (iii) entries in the General Diary Ext.
X5 which contains no details and only records what
the Sub-Inspector heard from other people over the
telephone about distribution of some printed
notices. Nothing is mentioned in the said entry
about involvement of any of UDF workers or the
appellant and, therefore, the finding that UDF
workers had distributed the pamphlets with the
consent of the appellant being against evidence on
record is liable to be set aside and is hereby set
43
aside.
22. The High Court’s understanding of law that the
appellant would be liable for penalty under Section
99 of the Act for the acts of his agents without the
conviction of such agents is completely erroneous in
law. It is relevant to notice that Mr. Jaya Varma
was validly appointed as election agent of the
appellant. The High Court, on appreciation of the
evidence adduced, has recorded a clear finding that
no reliable evidence was led by the respondent No. 1
to establish that Mr. Jaya Varma himself had
distributed the offending pamphlets or that UDF
workers had distributed the pamphlets with the
consent of Mr. Jaya Varma. The conclusion of the
High Court that distributer of objectionable
pamphlets Ext. X4 need not be named nor a finding
with name of the distribution be recorded under
Section 99(1)(a)(ii) of the Act, to say the least, is
contrary to the ratio laid down by this Court in
44
Chandrakanta Goyal vs. Sohan Singh Jodh Singh
Kohli (1996) 1 SCC 378, wherein the principle is
laid down that when a candidate is held to be guilty
of corrupt practice vicariously, for an act done by
any person other than his agent with his consent,
then the ultimate finding to this effect has to be
recorded and that too only after notice under
Section 99 to that other person and an inquiry must
be held as contemplated therein naming the other
person simultaneously for commission of such
corrupt practice. There is no manner of doubt that
making of an order under Section 98 against the
appellant, who is returned candidate, without
complying with the requirements of Section 99
when the corrupt practice against the appellant is
held to be proved vicariously for the act of another
person, by itself vitiates the impugned judgment.
Further, in view of the principles laid down in the
above mentioned reported decision, it is also clear
that the court has no option in this matter and it is
45
incumbent to name such a person in the final
verdict given in the election petition under Section
98 of the Act after making due compliance of
Section 99 of the Act. The High Court has not only
acted contrary to law and ignored the mandate of
Section 99 of the Act but taken the view that there
was an option available to the Court to ignore the
requirement of Section 99 to give notice to the
distributors of the pamphlets and to name them as
persons guilty of the corrupt practice even though
the distribution of pamphlets by the UDF workers is
made the foundation of the corrupt practice,
allegedly committed by the appellant. The judgment
is obviously vitiated since no concluded finding on
this question is recorded against the UDF workers,
who had allegedly distributed Ext. X4, choosing to
ignore the requirement of Section 99 of the Act. The
approach of the learned Judge of the High Court in
finding the appellant guilty for distribution of
pamphlets vicariously in the sense that UDF
46
workers had distributed the pamphlets with the
consent of the appellant, after holding that there is
no sufficient data to conclude that those UDF
workers who had distributed Ext. X4 pamphlets had
the requisite contumacious mind, is contrary to law
and difficult to uphold. If the workers had no
contumacious mind, the appellant hardly could
have been fastened with any vicarious liability for
the so called alleged corrupt practice.
23. The net result of the above discussion is that the
finding, recorded by the High Court that the
pamphlets were distributed on May 8 and May 9,
2001, is not only perverse but contrary to the facts
proved and, therefore, the same is liable to be set
aside.
24. Another alternative plea, which was raised on behalf
of the appellant, was that even if the court were to
hold that it was proved by the respondent No. 1 that
the appellant and/or the UDF workers with the
47
consent of the appellant had distributed the
pamphlets in question, there was no publication of
the same within the meaning of Section 123(4) of
the Act as the contents of Ext. X4 were already
previously published in “Crime” Magazine having
circulation in the constituency concerned.
25. The High Court further committed error in holding
that the distribution of the pamphlets amounted to
publication for the purposes of Section 123 of the
Act. Section 123(4) of the Act provides as follows: –
“Corrupt Practices. – The following shall be
deemed to be corrupt practices for the
purposes of this Act: –
(4) The publication by a candidate or his
agent or by any other person with the consent
of a candidate or his election agent, of any
statement of fact which is false, and which he
either believes to be false or does not believe to
be true, in relation to the personal character or
conduct of any candidate, or in relation to the
candidature, or withdrawal, of any candidate,
being a statement reasonably calculated to
prejudice the prospects of that candidate’s
election.”
48
It is an admitted fact that the objectionable pamphlets
contained statements, which were previously published
in the three editions of the “Crime” magazine which has
circulation in the Constituency concerned. Though the
High Court holds that the pamphlet additionally contains
a heading and a caption, ultimately, the appellant is
found guilty for republishing material from Crime
magazine relating to misappropriation of the funds from
one Vivekananda College. The question is whether
republishing material from the “Crime” Magazine, which
was already distributed earlier, can be regarded as an act
of publication of statements of fact relating to the
personal character and/or conduct of the respondent No.
1, within the meaning of Section 123(4) of the Act. The
word “publication” occurring in Section 123(4) of the Act,
has not been defined under the Act. Therefore, it would
be relevant to refer to the meaning of the word
“publication” as given in standard dictionary. The word
“publication” has been defined in Black’s Dictionary of
Law (6th Edition) as follows: –
49
“to make public; to make known to people in
general; to bring before public; to exhibit;
display, disclose or reveal………the act of
publishing anything; offering it to public
notice, or rendering it accessible to public
scrutiny. An advising of the public; a making
known of something to them for a purpose. It
implies the means of conveying knowledge or
notice.”
A similar meaning has been ascribed to the word
“publication” in State of M.P. and another etc. etc. vs.
Ram Raghubir Prasad Agarwal and others (1979) 4
SCC 686. The first and foremost ingredient of publishing
is making information known to the public in general.
Publication is an act by which some information is
exhibited, displayed, disclosed or revealed before the
public. By publication, the necessary information is
made accessible for public scrutiny. It is an act of
making known of something to the public in general for a
purpose. In the present case, this Court finds that the
information as contained in the pamphlet about the
respondent No. 1 having misappropriated the funds of
the school was already exhibited, displayed, disclosed,
50
made known, revealed and brought to the notice of
general public residing within the constituency when
“Crime” magazine was previously published and
circulated in the constituency. The reproduction and
distribution of the same information within the space of a
few months cannot amount to publication for the
purposes of Section 123 of the Act. It must be
remembered that a trial under Section 123 of the Act is a
criminal trial. Conviction under the provisions of Section
123, may lead to disqualification of the candidate
concerned for a period of six years under Section 99 of
the Act, which is a serious matter. Therefore, the
provisions will have to be construed strictly. So
construed, there is no manner of doubt that reproduction
and distribution of the reproduced information within the
space of few months cannot be regarded as publication of
the statements of fact relating to the personal character
and/or conduct of the respondent No. 1 within the
meaning of Section 123 of the Act. Instead, the
impugned judgment holds that as in law of defamation,
51
the republication of statements of fact also amounts to
publication for the purpose of Section 123(4) of the Act.
This Court is of the firm opinion that there is no warrant
for such a conclusion and it is wrong to say that
republication as in defamation law amounts to
publication so far as Section 123(4) of the Act is
concerned.
26. Another alternative plea raised on behalf of the
appellant for consideration of this Court was even if it
was assumed that the respondent No. 1 had proved that
the appellant and/or UDF workers with the consent of
the appellant had distributed the pamphlets and
distribution of the pamphlets amounted to publication
notwithstanding the fact that the contents of the
pamphlets were previously published in “Crime”
Magazine, it was contended that evidence adduced
establishes that the appellant had believed the
imputations made against the respondent No. 1 in Ext.
X4 to be true, whereas it was not established by the
52
respondent No. 1 that the imputations made in Ext. X4
were believed to be untrue by the appellant and,
therefore, no corrupt practice as alleged was committed
by the appellant.
27. The High Court has further erred in holding that the
appellant believed the published material to be false at
the time of its distribution. One of the important
ingredients in proving the offence of corrupt practice
under Section 123(4) of the Act is that it has to be
established that the returned candidate believed the
statement that was published, to be an untrue
statement. It is significant that unlike the law of
defamation, where truth is a defence, Section 123(4) of
the Act not only recognizes truth as a defence by using
the words “publication of any statement of fact ….. which
is false…..” but additionally protects the maker of the
statement by stipulating that the maker must believe the
statement to be false. This Court has held that the onus
of proving that the maker believed the statement to be
53
false rests with the election petitioner (see Dr. Jagjit
Singh vs. Giani Kartar Singh and others AIR 1966 SC
773 – paragraph 21). The High Court does not explain
how and by way of what evidence led by the respondent
No. 1 it stands proved that the appellant believed that the
contents of the pamphlets were false. On the contrary,
the defence of the appellant that he believed the
statements made in Ext. X4 to be true because of their
prior publication in “Crime” magazine and failure of the
respondent No. 1 to initiate any legal action against the
Crime magazine, if tested on preponderance of
probability stands proved. However, this defence of the
appellant is discarded by the High Court by making the
following observations: –
“71. There are many in this country who may
believe that the printed word is truth. But
that certainly is not the yardstick or touch
stone on which the contumacious state of
mind of the maker of a statement of fact will be
assessed. Merely because the Crime Magazine
is one having circulation, popularity and
notoriety, D.W. 53 (the appellant) cannot
assert that he believed the printed words in
Exts. R6, R7 and R8 to be the gospel truth. If
54
such an approach were permitted, section
123(4) of the Act can be violated with impunity
if some yellow journalist publishes unfounded
allegations and the offender-facing proceedings
for defamation or for corrupt practice under
Section 123(4) of the Act, repeats the allegation
with impunity and claims immunity from
consequences of his conduct. That cannot
certainly be the law. That cannot be approach
that this court will adopt. The 1st respondent
who has had a fairly long political career
cannot contend that he simply swallowed the
publications made earlier in Exts. R6, R7 and
R8 and hence did not believe the statement of
facts made in Ext. X4 to be false or he did not
believe them to be not true.”
“78. …..the publication of the same statement
of fact earlier in the Crime Magazine cannot
justify the 1st respondent. Even the fact that
some other gullible members of the public who
read the relevant Crime Magazines and came
to know of these allegations believed or did not
doubt the truth of such statement of fact
cannot help the 1st respondent at all. At worst,
that can only prove the pregnant possibilities
of such false assertion of fact. Except the
earlier publication of the same statement of
fact in the Crime Magazine i.e. Exts. R6, R7
and R8, there is not a semblance of scintilla or
data which can persuade this Court to assume
that the maker of the said objectionable
statement or any other had reasons to believe
the said statement of fact to be true or did not
believe it to be false.”
55
It is not clear from the extracts quoted above as to how
the High Court has concluded that the appellant could
not have relied upon the publications of the offending
information in “Crime” magazine. The reference to
“Crime” magazine as a yellow journal is also not proper.
The term “yellow journal” has its origins in American
slang. It was initially used by some people to describe a
newspaper called the “New York World” in the early
1900s because the paper used to print sensational
stories and had a cartoon strip called the “yellow kid”
which was printed with yellow ink. Black’s Law
Dictionary (6th Edition) defines “yellow journalism” as
follows: –
“type of journalism which distorts and exploits
the news by sensationalism in order to sell
copies of the newspapers or magazines.”
The High Court has summarily described “Crime”
Magazine to be a yellow journal. Whether “Crime”
magazine is a yellow journal is a matter of opinion and
56
not of fact. It is impossible to conclude that an opinion of
this sort is a judicially noticeable fact for the purposes of
Section 56 or Section 57 of the Evidence Act, 1872.
There is nothing in the impugned judgment which
indicates that any evidence was led, much less
considered as to whether “Crime” magazine is a yellow
journal and hence magazine could not have been relied
upon by the appellant in forming a belief that the
contents of the magazine were not untrue. Further,
between the time of publication of offending material in
Crime magazine and the alleged distribution of the
pamphlet, the respondent No. 1 did not pursue any
action in law by way of criminal complaint or suit against
the publishers of the Crime Magazine for defamation. It
is only after the institution of the election petition that
such a complaint was filed, presumably as an after
thought. Even in the said complaint for defamation, filed
by respondent No. 1 against the printer and publisher of
crime, the third imputation which is found as offending
by the High Court was not included. This would show
57
that the respondent No. 1 himself considered the said
imputation as not defamatory or at least not capable of
being proved to be false. The appellant, in these
circumstances, not only had an explanation but a
satisfactory explanation as to why he believed the
objectionable statements in the pamphlet Ext. X4 to be
true. There is no manner of doubt that the High Court,
therefore, erred in holding otherwise, despite the fact that
the respondent No. 1 had not discharged initial onus
resting on him. In view of the fundamental mistake
committed by the High Court in the matter of standard of
proof while resolving dispute of corrupt practice and
faulty appreciation of evidence by applying wrong
standard of proof as also the fact that the election of the
appellant is set aside on the basis of broad probabilities
and presumptions, without even referring to any of the
evidence adduced by the parties, the impugned judgment
is liable to be set aside.
58
28. For the foregoing reasons the appeal succeeds. The
judgment dated August 8, 2005, rendered by the learned
single Judge of the High Court of Kerala at Ernakulam in
Election Petition No. 6 of 2001 by which the election of
the appellant as a member of Kerala Legislative Assembly
No. 106 Kallooppara Constituency is declared to be void
on the ground that he is guilty of corrupt practice under
Section 123(4) of the Representation of People Act, 1951,
is hereby set aside. There shall be no order as to costs.
…………………………
…….J.
[J.M. Panchal]
……………………………….J.
[Gyan Sudha Misra]
New Delhi;
December 01, 2010.
advocatemmmohan 
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