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corrupt practice
Representation of the People Act (43 of 1951), s. 123(4)- Elections-Corrupt Practice-Statement alleging a candidate to be greatest of all thieves-Whether a statement of fact or of opinion only-Candidate with whose consent such statement is made must believe it to be true-Nature of onus in proving such belief. =The appellant was the winning candidate In an election to the Rajasthan Legislative Assembly. The respondent who was one of the unsuccessful candidates filed an’-election petition and alleged therein that the appellant was guilty of corrupt practice within the meaning of a. 123(4) of the Representation of the People Act, 1951. The corrupt practice alleged was that at a meeting presided over by the appellant a poem was read out which represented the respondent to be the greatest of all thieves’. The Election Tribunal as well as the High Court gave their findings against the ‘appellant who came to this Court with certificate. It was contended on behalf of the appellant that : (i) the statement in question was not a statement of fact but only of opinion, (ii) No attempt had been made to prove that the person who recited the poem containing the statement believed it to be false or did not believe that it was true, (iii) the onus to prove that corrupt practice had been committed lay on the respondent and that had not been discharged. HELD (i) The mere -absence of details as to time and place would not turn a statement of fact into a mere expression of opinion. [130 F-G] In the present case taking the poem as a whole there could be no doubt that when the respondent was called the greatest of all thieves there was a clear statement of fact about his personal character and conduct. [133 E-F] (ii) The appellant presided and his election agent was present at the meeting at which the poem in question was read.- The responsibility for the publication in the circumstances of the case was that of the appellant and it was the appellant’s belief that mattered and not- the belief of the person who read it with the consent of the appellant. [135 E-G] (iii) The onus on an election petitioner under s. 123(4) is to show that a statement of fact was published by a candidate or his agent or by any other person with the consent of the candidate or his election agent and also to show that that statement was false and related to his personal character or conduct. This onus is very light and can be discharged by the complaining candidate swearing to that effect. Once that is done the burden shifts to the candidate, making the false statement of fact to show what his belief was. [136E-F] It was for the appellant to show either that the statement was true or that he believed it to be true. The appellant had failed to do so. The High Court therefore rightly held that the respondent had discharged the burden which lay on him. [137 A-B] Case law considered. 128 =1967 AIR 808, 1967( 2 )SCR 127, , ,
PETITIONER: KUMARA NAND Vs. RESPONDENT: BRIJMOHAN LAL SHARMA DATE OF JUDGMENT: 29/11/1966 BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. BACHAWAT, R.S. SHELAT, J.M. CITATION: 1967 AIR 808 1967 SCR (2) 127 CITATOR INFO : R 1969 SC1201 (42,54) D 1970 SC1231 (12) R 1990 SC1731 (9) ACT: Representation of the People Act (43 of 1951), s. … Continue reading
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.
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 … Continue reading
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