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TMI Blog2009 (3) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... acter. This, in our opinion, does not attract Section 123(4) of the Act. Appeal allowed. - 3611 OF 2008 - - - Dated:- 6-3-2009 - R.V. Raveendran and Markandey Katju, JJ. JUDGMENT These appeals have been filed under Section 116 A of the Representation of People Act, 1951 (in short `the Act ), against the final judgment and order dated 5.5.2008 passed by the High Court of Kerala in Election Petition No. 2/2006, declaring the election of the appellant (M.J. Jacob) from no.79 Piravom Legislative Assembly Constituency to be a member of Kerala Legislative Assembly, the polling for which was held on 29.4.2006, as void. The High Court has also made an order recording the names of O.N. Vijayan (election agent of the returned candidate) and two others Jinson V. Paul and P.G. Manu as persons who have been proved at the trial to have been guilty of corrupt practice under Section 123 (4) of the Act of preparing, publishing and distributing the pamphlet (Ex.P1). C.A. No.3611 of 2008 is by the returned candidate. C.A. No.5183 of 2008 is by his election agent and C.A. No.5774 of 2008 is filed by the persons named under Section 99(1)(a)(ii) of the Act. 2. Heard Shri Fali Nariman, learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culated to prejudice the prospects of that candidate s election. 6. The entire pamphlet Ext. P-1 has been quoted in the impugned judgment, but it is not necessary to repeat the same here except the relevant allegation in the said pamphlet which is in paragraph 2 which states :- CHARIOT RIDE OF DEVELOPMENT TRICKERY WITH THE RIDDLES OF A QUARTER CENTURY. xxxxxxxxxxxxxxxxxxxx 2. A member of your personal staff who had attempted to murder Thirumaradi Congress Mandalam president P.J. Baby, Joseph Babu and K.P. Jacob at Onakoor is still continuing as an absconder. Can you give an answer to the ordinary Congressmen in this regard? xxxxxxxxxxxxxxxxxxxxx RECOGNIZE THE SHAMELESS HYPOCRITE OF DEVELOPMENT TRICKERY REACT AGAINST THE DECEIVER OF PEOPLE. 7. It is on the basis of this statement in the said pamphlet Ext. P1 that the election of the appellant has been declared void by the High Court on the ground that it amounts to a corrupt practice. The High Court has held:- The foregoing discussions and reasons lead to the following conclusions: i. Question no.2 in page 3 of Ext.P1 amounts to a statement of facts affecting the personal character and conduct of Shri T.M. Jaco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the evidence of several witnesses to support his contention. We do not agree. There is no mention in paragraph (2) of the pamphlet that Shri T.M. Jacob was harbouring Shri Scaria. 10. Even assuming that an inference can be drawn from the allegation that Shri T.M. Jacob was harbouring Shri Scaria, that is only one possible inference. There may be any number of other inferences also. It is well settled that in an Election Petition for proving an allegation of corrupt practice the standard of proof is like that in a criminal case. In other words, the allegation must be proved beyond reasonable doubt, and if two views are possible then the benefit of doubt should go to the elected candidate vide Manmohan Kalia vs. Yash Ors. (1984) 3 SCC 499 vide paragraph 7 in which it is stated :- It is now well settled by several authorities of this Court that an allegation of corrupt practice must be proved as strictly as a criminal charge and the principle of preponderance of probabilities would not apply to corrupt practices envisaged by the Act because if this test is not applied a very serious prejudice would be caused to the elected candidate who may be disqualified for a period of six y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which cannot be established by mere balance of probabilities, and, if, after giving due consideration and effect to the totality of the evidence and circumstances of the case, the mind of the Court is left rocking with reasonable doubt not being the doubt of a timid, fickle or vacillating mind as to the veracity of the charge, it must hold the same as not proved. We have reiterated the above principles not as a ceremonial refrain of what has been said by this Court again and again but to emphasise their importance as a guide in the matter. A court embarking upon an appreciation of evidence, without this rudder and compass, is apt to find itself at sea, mistaking every flotsam for shore, suspicion for proof and illusion for reality. Since these principles were not constantly kept in mind, the approach of the High Court in this case to the issues involved, and the treatment of evidence, appears to have gone awry. It is therefore, necessary to reappraise the evidence from the standpoint indicated above. 12. In Surinder Singh vs. Hardial Singh (1985) 1 SCC 91 vide paragraph 23 it was observed:- It is thus clear beyond any doubt that for over 20 years the position has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... probabilities; the standard of proof required is akin to that of proving a criminal or a quasi-criminal charge. Clear-cut evidence, wholly credible and reliable, is needed to prove beyond doubt the charge of corrupt practice. 15. The same view has been taken by this Court in Mahanth Shreo Nath vs. Choudhary Ranbir Singh 1970 (3) SCC 647 at Para 4, Manphul Singh vs. Surinder Singh 1973 (2) SCC 599 at Para 13, Rahim Khan vs. khurshid Ahmed and Others 1974 (2) SCC 660 at Para 9, Bir Chandra Barman vs. Shri Anil Sarkar and Others 1976 (3) SCC 88 Para 5, Lakshi Raman Acharya vs. Chandan Singh and Others 1977 (1) SCC 423 at Para 2, Amolakachand Chhazed Vs. Bhagavandas Arya and Another 1977 (3) SCC 566 at Para 13. 16. It may be noted that in Exhibit P-2 there is no statement that Shri T.M Jacob harboured any of the accused persons. The allegation about the attempt to murder some persons is not against Shri T.M Jacob but against Shri Scaria. Hence, we fail to understand how the allegation in paragraph 2 of Ext.P1 affects the personal character or conduct of Shri T.M. Jacob. In our opinion, paragraph 2 does not convey to the electorate that Shri T.M. Jacob harboured a member of his pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e equated with his mental or moral nature. Conduct connotes a person s actions or behaviour. The said acts attributed to the first respondent certainly relate to his personal character and conduct. What is more damaging to a person s character and conduct than to state that he instigated a murder and that he was guilty of violent acts in his political career. We, therefore, have no hesitation in holding that the allegations in the two leaflets, Exts. P3 and P4, are in relation to the personal character and conduct of the first respondent. The leaflets were, therefore, calculated to create an impression in the minds of the voters not to vote for the first respondent, who was described as a murderer and a man of bad antecedents. The leaflets, Exts. P-3 and P-4, were, therefore, in our view, calculated to prejudice the prospects of the first respondent s election. 20. In Jagjit Singh (supra), this Court held: The question as to what allegations can be said to amount to allegations in regard to the personal character of a candidate, as distinguished from the public character, is not always easy to decide on considerations of abstract principles. The policy underlying the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idate during the period preceding elections is likely to work against the freedom of election itself inasmuch as the effect created by false statements cannot be met by denials in proper time and so the Constituency has to be protected against the circulation of such false statements which are likely to affect the voting of the electors. That is why it is for the protection of the constituency against acts which would be fatal to the freedom of election that the statute provides for the inclusion of the circulation of false statements concerning the private character of a candidate amongst corrupt practices. Dissemination of false statements about the personal character of a candidate thus constitutes a corrupt practice. 22. In Gadakh Yashwantrao Kankarrao (supra), this Court held: Before adverting to the particular statements alleged to have been by Gadakh and Sharad Pawar which are alleged to constitute the corrupt practice under Section 123(4), it would be appropriate to deal with one submission made by Shri Ashok Desai and followed up by Shri Ram Jethmalani with greater vigour relating to the manner of appreciation of evidence in such a case. Shri Desai submitted that eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m to prove the same. Whether the maker of the statement believed it to be false or did not believe it to be true, is then ordinarily a matter of inference from the facts so proved. 23. It is now well settled that the five ingredients required to establish a corrupt practice under Section 123(4) of the Act are: (i) there should be a publication by the candidate or his agent, or by any other person, with the consent of a candidate or his election agent; (ii) the said publication should contain a statement of fact which is false; (iii) the person making such publication should either believe such statement to be false or not believe it to be true; (iv) such false statement should be in relation to the personal character or conduct of any candidate; and (v) such false statement should reasonably be calculated to prejudice the prospects of that candidate s election. 24. There is thus no doubt that any false accusation relating to the personal character or conduct of any candidate calculated to prejudice the prospect of his election would amount to a corrupt practice. But what is crucial is that the false statement should relate to the personal character or conduct of a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that the character or conduct of the appellant was attacked and therefore the matter does not fall within sub-section (4) of Section 123. We are, therefore, of opinion that the appellant has failed to prove the corrupt practice that he alleged against the respondent even as the learned Judge did. 26. We may also refer to the principles relating to construing offending pamphlets, laid down in Kultar Singh v. Mukhtiar Singh (1964) 7 SCR 790: The principles which have to be applied in construing such a document are well-settled. The document must be read as a whole and its purport and effect determined in a fair, objective and reasonable manner. In reading such documents, it would be unrealistic to ignore the fact that when election meetings are held and appeals are made by candidates of opposing political parties, the atmosphere is usually surcharged with partisan feelings and emotions and the use of hyperboles or exaggerated language, or the adoption of metaphors, and the extravagance of expression in attacking one another, are all a part of the game, and so, when the question about the effect of speeches delivered or pamphlets distributed at election meetings is argued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missed. 29. It may be noted that in paragraph 3 of the Election Petition it is stated:- The reference in annexure A that Shri T.M. Jacob has harboured a member of his personal staff and that he is an absconder escaping arrest is totally false as he had appeared in Court and was granted bail. 30. The above statement is totally different from alleging that the statement in para 2 of Ext. P1 that Shri Scaria is an absconder is an innuendo. As already mentioned above, in paragraph 2 of Ext. P1 there is no mention that Shri T.M. Jacob is harbouring Shri Scaria, and the mention is only that Shri Scaria who was in the personal staff of Shri T.M. Jacob is absconding. Hence, there should have been a clear pleading in the Election Petition that the statement in paragraph 2 of Ext. P1 is an innuendo, and that it really means that Shri T.M. Jacob harboured Shri Scaria, but there is no such pleading as already stated above. Innuendo is to be clearly pleaded but that has not been done in the Election Petition. 31. Shri Venugopal, learned counsel for the respondent, has invited our attention to the decision of this Court in Mohan Singh vs. Bhanwarlal (1964) 5 SCR 12 and has relied on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37. As already stated above, election results should not be lightly set aside and the will of the electorate should ordinarily be respected. Setting aside an election is a serious matter, and should not have been done lightly. We regret to say that in this case the election of the returned candidate has been set aside by the High Court, though no doubt by a rather elaborate judgment, by observing, according to us unwarrantedly, that paragraph No. (2) in Ext.P1 amounts to a false statement affecting the personal character and conduct of Shri T.M Jacob. Once it is held that paragraph No.(2) did not contain any statement regarding the personal character and conduct of Shri T.M Jacob it follows that the tail piece of Ext.P1 that is the exhortation to recognize the shameless hypocrite of development trickery .. react against the deceiver of the people will have to be considered as not against the personal character and conduct of Shri T.M Jacob, but as a statement in respect of his public and political character. This, in our opinion, does not attract Section 123(4) of the Act. 38. In a democracy many allegations and counter-allegations are made, and sometimes these are incorrec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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