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REPRESENTATION OF THE PEOPLE ACT, 1951: s.123 – Election petition alleging corrupt practices – Nature of – Standard of proof – Held: An election trial where corrupt practice is alleged, is to be conducted as a criminal trial – Standard of proof made applicable to criminal cases is proof beyond reasonable doubt – High Court misdirected itself on the point when it held that standard of proof higher than the one applicable to civil cases but lesser than that applicable to criminal cases should be adopted in the case – Evidence. s.123(4) – Election petition alleging corrupt practice of distributing the offending pamphlets by returned candidate and his election agent as also the party workers – Allowed by High Court on the basis of oral evidence – Election of returned candidate set aside – Held: The election petitioner led two sets of evidence each contradicting the other regarding distribution of pamphlets and, therefore, the benefit of doubt would go to the elected candidate – Besides, it would be unsafe to accept oral evidence on its face value without seeking for assurance from other circumstances or unimpeachable documentary evidence – The witnesses produced by election petitioner were not independent witnesses as they had affiliation with his party – No evidence of any witness has been discussed in detail in the impugned judgment – The assertion made by the elected candidate denying the allegation is supported by the evidence, and deserves to be accepted – High Court misdirected itself in placing reliance on hearsay evidence – There is nothing on record to show that the elected candidate, his election agent or his party workers with his consent and/or the consent of his election agent, had indulged in the act of distribution of pamphlets and committed the corrupt practice – The judgment of the High Court set aside – Evidence. s.123 r/w ss.98 and 99 – Corrupt practice of election agent or a third person attributable to the elected candidate – Notice to such third person – Held: To prove that the corrupt practice of a third person is attributable to the candidate, it must be shown that the candidate consented to the commission of such an act – The High Court’s view that the elected candidate would be liable for penalty u/s 99 for the acts of his election agent without the conviction of such agent is completely erroneous in law – The High Court, on appreciation of the evidence adduced, has recorded a clear finding that no reliable evidence was led by election petitioner to establish that the election agent himself had distributed the offending pamphlets or that the party workers had distributed the pamphlets with his consent – Further, if 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 u/s 99 to that other person – The High Court, choosing to ignore the requirement of s.99 of the Act, has not recorded any concluded finding on this question against the UDF workers, who had allegedly distributed Ext. X-4. If the workers had no contumacious mind, the elected candidate hardly could have been fastened with any vicarious liability for the so called alleged corrupt practice – Notice – Vicarious liability. s.123(4) – Corrupt practice of false publication – “Publication” – Ingredients of – Explained – HELD: The information contained in the pamphlet alleged to have been published by appellant had already been published in a magazine and circulated in the Constituency – The provisions have to be construed strictly and, therefore, reproduction and distribution of reproduced information within the space of few months cannot be regarded as “publication” in terms of s.123(4) – Further, onus of proving that the maker of the statement believed it to be false rests with the election petitioner and, in the instant case, it has not been discharged – Interpretation of statutes – Strict interpretation – Evidence – Burden of proof. EVIDENCE: Oral evidence in election matters – Evidentiary value of – Discussed – Hearsay evidence. Election petition before High Court – Evidence – appreciation of – HELD: In an election trial, it is not permissible to the High Court to discard substantive oral evidence on account of defect in pleadings – High Court erred in discarding the testimony of returned candidate that distribution had taken place in March 2001 and not in May 2001, only because it was not so stated in his written statement – Evidence – Practice and Procedure – Pleadings. Words and Phrases: “Publication” in the context of election law – Connotation of. Respondent no. 1 lost to the appellant the election for the Member of the Legislative Assembly which was held on 10.5.2001. He filed an election petition alleging that the election of the appellant was vitiated by corrupt practice in terms of s.123(4) of the Representation of the People Act, 1951, as copies of Ext. X4, which contained false statements in relation to the personal character and conduct of respondent no. 1 having tendency to prejudice his election prospects, were distributed on 8th and 9th May, 2001 by the appellant, and his election agent and, with their consent, by the workers of the political party to which the appellant belonged. The returned candidate denied the allegations. However, the High Court allowed the election petition and declared the election of the returned candidate as void. Aggrieved, the returned candidate filed the appeal. =Allowing the appeal, the Court HELD: 1. The High Court misdirected itself on the point of standard of proof required u/s 123 of the Representation of the People Act, 1951, when it held that the standard of proof higher than the one applicable to the civil cases but certainly lesser than that 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. This is contrary to settled law, i.e., an election trial where corrupt practice is alleged is to be conducted as a criminal trial. Normally, the 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’. [para 8] [446-B-D] Jagdev Singh Sidhanti vs. Pratap Singh Daulta (1964) 6 SCR 750 – followed. 2.1 In the impugned judgment, no evidence of any witness is discussed in detail at all. The High Court erred in holding that distribution of Ext. X4 in the Constituency concerned on 8th and 9th May, 2001 was by the appellant and by UDF workers with his consent. 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 distribution had taken place, neither he nor his election agent nor any of the workers of UDF was/were involved therein. In an election trial, it is not permissible to the High Court to discard substantive oral evidence on account of defect in the pleadings. Testimony of the appellant that printing and distribution had taken place in March, 2001 and not in May, 2001, as alleged by respondent No. 1, was discarded by the High Court only because it was not so stated in his written statement. It is significant to note that PW-88, the owner of the press, deposed before the High Court that DW-10 had entrusted him the printing of Ext. X4 pamphlet on 8.3.2001. He produced Ext. X17, the Bill Book maintained by him in the ordinary course of business. The testimony of PW-88 was never challenged by respondent No. 1 in the sense that PW-88 was never declared hostile to respondent No. 1 nor did he seek permission of the Court to cross-examine PW-88. Thus, the evidence tendered by PW-88 was accepted to be true by respondent No. 1. The testimony of DW-10, whose credibility could not be impeached during his lengthy cross-examination on behalf of 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. The High Court, without assigning any cogent and convincing reasons, chose to disbelieve the evidence of PW-88 and DW-10. Thus, the conclusion drawn by the High Court that the evidence of PW-88 and DW-10 was unreliable, will have to be regarded as perverse. Having regard to the facts of the case, an adverse inference has to be drawn against 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 this light, the assertion made by the appellant, who had examined himself as DW-53 that he came to know about the distribution of Ext. X4 in the month of March, 2001 from DW-10 later on, deserves to be accepted and cannot be brushed aside as improvement in the version, as has been done by the High Court. [paras 10 and 11] [447-H; 448- A-H; 449-A-H] Dr. Jagjit Singh vs. Giani Kartar Singh and others AIR 1966 SC 773 – relied on. 2.2 PW-12, PW-13, PW-14, PW-15, PW-17 and PW-21, on whose testimony the High Court relied on, were not independent witnesses, as they had affiliation with the party to which respondent No. 1 belonged and their evidence cannot held to be reliable at all. 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 the 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 8th and 9th May, 2001 becomes highly doubtful and their say cannot be accepted. Once the testimony of PW-88 read with that of DW-10 is acted upon, it becomes evident that 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, the appellant. [para 14] [451-G-H; 452-A-E] 2.3 So far as election law is concerned, by now it is well settled that it would be unsafe to accept oral evidence on its face value without seeking for assurance from other circumstances or unimpeachable documentary evidence. 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 the election petitioner cannot be accepted. [para 12] [450-B-F] Abdul Hussain Mir vs. Shamsul Huda and another 1975 (3) SCR 106= (1975) 4 SCC 533 – relied on. 2.4 In the instant case, the High Court has not adverted to the evidence of any witness nor has it 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. [para 12] [450-E-H] 2.5 The finding of the High Court that contemporaneous newspaper publications produced as Exts. P-5 and P-6 corroborate the testimony of respondent No. 1, is also not supported by the evidence on record. The reporters of Exts. P-5 and P-6 were examined. 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 newspapers could not have been regarded anything except hearsay. The High Court has misdirected itself in placing reliance on the hearsay evidence, namely Exts. P-5 and P-6. In view of clear proposition of law laid down in Quamarul Ismam’s case*, hearsay evidence could not have been used by the High Court for coming to the conclusion that contemporaneous newspaper publications Exts. P-5 and P-6 corroborate the testimony of respondent No. 1. [para 12] [450-G-H; 451-A-D] *Quamarul Ismam vs. S.K. Kanta and others 1994 (1) SCR210=1994 Supp. (3) SCC 5 and Laxmi Raj Shetty and another vs. State of Tamil Nadu 1988 (3) SCR 706= (1988) 3 SCC 319 – relied on. 2.6 Similarly, the finding that seven UDF workers, who were allegedly arrested on 8.5.2001 by the police for distribution of the pamphlets, were released at 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 telephone about distribution of some printed notices. Nothing is mentioned in the said entry about involvement of any of UDF workers or the appellant. Respondent No.1 examined PW-7, Additional S.I., and produced Ext. X5, the GD entry, to substantiate the allegation. 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 respondent No.1 has failed to prove the arrest of seven UDF workers, and their release at the instance of the appellant, the further case of respondent No. 1, that after coming out of the police station, the appellant himself distributed the offending pamphlets and directed others to distribute the pamphlets, becomes highly doubtful and improbable. [para 15 and 21] [459-A-H; 456-A-F] 2.7 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 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 u/s 99 of the Act is completely unsustainable. Further, the High Court could not even identify a single UDF worker, who, according to it, had distributed the pamphlets; it has simply held that there is evidence to show that UDF workers had distributed the pamphlets. It is evident that respondent No. 1 has failed to prove that UDF workers had distributed the offending pamphlets on 8th and 9th May 2001. The finding of the High Court on this score being against the weight of evidence is not only perverse but is also contrary to the facts proved and, as such, set aside. [para 15, 18,19 and 22] [455-G; 456-E-F; 460-C; 458-H; 459-A] D. Venkata Reddy vs. R. Sultan and others 1976 (3) SCR445= (1976) 2 SCC 455 – relied on 2.8 The High Court erred in concluding that the pamphlets were distributed by the UDF workers on 8th and 9th May, 2001, observing that the benefit of the distribution would have enured to none other than the appellant and, therefore, inference could be drawn that UDF workers had distributed the pamphlets with the consent of the appellant. Such a conclusion, based on unwarranted inferences and surmises, is recorded only because the High Court had misdirected itself on the question of standard of proof required to be adopted to resolve a dispute raised u/s 123 of the Act. The theory that the benefit of distribution could have enured only to the appellant is misplaced. It is well-settled that to prove that the corrupt practice of a third person is attributable to a candidate u/s 123 of the Act, it must be shown that the candidate consented to the commission of such an 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. [para 18 and 21] [457-F-H; 458-A; 459-C-D] 3.1 The High Court’s view that the appellant would be liable for penalty u/s 99 of the Act for the acts of his election agent without the conviction of such agent is completely erroneous in law. It is relevant to notice that `JV’ was validly appointed as an 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 respondent No. 1 to establish that `JV’ himself had distributed the offending pamphlets or that UDF workers had distributed the pamphlets with the consent of `JV’. The conclusion of the High Court that the distributer of objectionable pamphlets Ext. X4 need not be named nor a finding with the name of the distributor be recorded u/s 99(1)(a)(ii) of the Act, to say the least, is contrary to the ratio laid down in Chandrakanta Goyal’s case* wherein the principle has been 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 u/s 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. [para 22] [460-B-F] *Chandrakanta Goyal vs. Sohan Singh Jodh Singh Kohli 1995 ( 6 ) Suppl. SCR 522= (1996) 1 SCC 378 – relied on. 3.2 The High Court has not only acted contrary to law and ignored the mandate of s.99 of the Act but has also taken the view that there was an option available to the Court to ignore the requirement of s. 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 the High Court, choosing to ignore the requirement of s.99 of the Act, has not recorded any concluded finding on this question against the UDF workers, who had allegedly distributed Ext. X4. 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. [para 22] [460-A-E] 4.1 The High Court also committed an error in holding that the distribution of the pamphlets amounted to publication for the purposes of s. 123 of the Act. It is an admitted fact that the objectionable pamphlets contained statements, which were previously published in three editions of the “Crime” magazine which has circulation in the Constituency concerned. The word “publication” occurring in s. 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 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 instant case, this Court finds that the information as contained in the pamphlet about respondent No. 1 having misappropriated the funds of the school was already exhibited, displayed, disclosed, 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. [para 25] [462-A; E-G; 463-B-E] State of M.P. and another etc. etc. vs. Ram Raghubir Prasad Agarwal and others 1979 ( 3 ) SCR 41= (1979) 4 SCC 686 – relied on. 4.2 A trial for an offence punishable u/s.123 of the Act is a criminal trial, and conviction thereunder may lead to disqualification of the candidate concerned for a period of six years u/s.99 of the Act, which is a serious matter. Therefore, the provisions will have to be construed strictly and, as such, 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 respondent No. 1 within the meaning of s.123 of the Act. The High Court, erred in holding that as in law of defamation, the republication of statements of fact also amounts to publication for the purpose of s.123(4) of the Act. [para 25] [463-F-H; 464-A] 4.3 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 u/s 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, s.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. The onus of proving that the maker believed the statement to be false rests with the election petitioner and, in the instant case, respondent no. 1 has not discharged the initial onus that rested on him. 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 respondent No. 1 to initiate any legal action against the said magazine, if tested on preponderance of probability stands proved. [para 27] [464-E-H; 465-A-B] Dr. Jagjit Singh vs. Giani Kartar Singh and others AIR 1966 SC 773 – relied on. 5. In view of the fundamental mistake committed by the High Court in the matter of standard of proof while resolving the 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 set aside. [para 27] [467-D-E] Case Law Reference: (1964) 6 SCR 750 followed Para 8 AIR 1966 SC 773 relied on Para 10 and 27 1975 (3) SCR 106 relied on para 12 1994 (1) SCR210 relied on para 13 1988 (3) SCR706 relied on para 13 1976 (3) SCR445 relied on para 18 1995 (6) Suppl. SCR 522 relied on para 22 1979 (3) SCR 41 relied on para 25 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5310 of 2005. From the Judgment & Order dated 08.08.2005 of the High Court of Kerala at Ernakulam in E.P. No. 6 of 2001. L. Nagaswara Rao, Roy Abraham, Hari Kumar, Seema Himinder Lal for the Appellant. Jasawini Mishra, Romy Chacko for the Respondents.

English:

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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.
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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
7
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
11
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
18
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.
24
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.

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