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TMI Blog1960 (2) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Appellant by an election petition on various grounds.. One of the grounds was that exhibits P-3 and P-4, two leaflets, were published and circulated on 26th February, 1957, either by or at the instance of the Appellant with false allegations attacking the personal character and conduct of the first Respondent and, therefore, the election was void under Section 100(1)(b) of the Representation of the People Act, 1951 (hereinafter called the Act). It is not necessary to particularize the other allegations as nothing turns upon them in this appeal. The Appellant filed objections to the petition, but the other Respondents did not take any interest in the proceedings. In the objections filed by the Appellant, he denied that he either published or circulated the said leaflets and also pleaded that the allegations in the said documents did not amount to corrupt practice within the meaning of Section 123(4) of the Act. The Election Tribunal held that the said leaflets did not contain allegations affecting the personal character and conduct of the first Respondent and that there was no evidence to establish that they were published and distributed directly or with the consent of the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on on this question, as the appeal can be disposed of on other grounds. 4. The next question turns, upon the construction of exhibits P-3 and P-4, the two leaflets published on 26th February, 1957. One Narayanaswamy was done to death on 24th February, 1957, in Chintamani Town. The first Respondent claimed that the deceased belonged to the Congress Party, while the Appellant claimed that he belonged to the Communist Party. The election was scheduled to be held on 4th March, 1957. Exhibit D-62 purports to be a printed Tamil pamphlet published under the signature of the Secretary, Kolar District Congress Committee. It is stated therein as follows: Hunt of men by Communist goondas at Chintamani. Congress volunteers terribly murdered. Countless Congress people terribly wounded. Congress Office attacked and looted. Havoc of Communists. Hunt of men by Communist goonda people at Market Shandy--shops looted. 5. It is said that to offset the insinuations made in this pamphlet, exhibits P-3 and P-4 were published on 26th February, 1957. Both exhibits P-3 and P-4 were published in Kanada. The leaflets claimed the deceased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Anjaneya Reddy was responsible for the murder of Narayanaswamy, that he threw stones at a meeting arranged to be addressed by Shri K.C. Reddy, and that he also indulged in organised wicked acts during the municipal elections and that he was guilty, of violent acts during his political career. The question is whether these allegations fall within the mischief of Section 123(4) of the Act. Section 123(4) of the Act reads: The publication by a candidate or his agent or by any other person, 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, or retirement from contest, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election. 8. Do the aforesaid allegations refer to the personal character and conduct of Anjaneya Reddy who was a candidate for the election. The words personal character or conduct are so clear that they do not require further elucidation or definition. The character of a person may ordinarily be equa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in fact and substance, arrives at the findings on the ground that the Appellant has not proved the said facts. We do not think that there is any justification for this comment. The relevant sections of the Indian Evidence Act dealing with burden of proof are Sections 101 and 102. Under Section 101 thereof, Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 of the said Act, on the other hand, says, The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Burden of proof has two distinct meanings, viz., (i) the burden of proof as a matter of law and pleading, and (ii) the burden of proof as a matter of adducing evidence. Section 101 deals with the former and Section 102 with the latter. The first remains constant and the second shifts. In the present case, the burden of proof, in the first sense, certainly lies on the first Respondent; but he has examined himself and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exhibits P-3 and P-4. The learned Counsel have taken us through the evidence and we are satisfied that there is no reliable evidence on behalf of the Appellant to support the allegations made against the first Respondent in exhibits P-3 and P-4. The observations of the learned judges are correct. In the result, we must accept the finding of the High Court that the allegations in exhibits P-3 and P-4 were made by the Appellant knowing full well that they were not true. 12. We do not find any force in the contention that exhibits P-3 and P-4 were published as a counterblast to exhibit D-62 and, therefore, the said documents are not hit by Section 123(4) of the Act. Sub-section (4) of Section 123 defining a corrupt practice is not conditioned by any proviso to the effect that it would cease to be a corrupt practice if the statement was made to counteract the rival statement of an opponent. It is unqualified by any such proviso. If the conditions of that sub-section are satisfied, it is irrelevant to enquire whether the statement has been a counterblast to another. That apart, there is no reliable evidence on record--none has been brought to our notice--to show that exhib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t then argues that the High Court in an appeal has no jurisdiction to set aside the finding of the Election Tribunal on question of fact arrived at on an appreciation of the evidence. The proposition so stated is obviously untenable. Under Section 116A(1) of the Act, an appeal shall lie from every order made by a Tribunal under Section 98 or Section 99 to the High Court of the State in which the Tribunal is situated. Sub-section (2) thereof says the High Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority and follow the same procedure, with respect to an appeal under this Chapter as if the appeal were an appeal from an original decree passed by a civil court situated within the local limits of its civil appellate jurisdiction. It is, therefore, manifest that the jurisdiction of the High Court in the disposal of such an appeal is similar to that it has in the disposal of appeals against original decrees. No doubt, this is subject to the provisions the Act and no provision has been brought to our notice which curtails that jurisdiction of the High Court. Therefore, when an appeal is filed, the entire case is reopened in the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of exhibits P-3 and P-4. But a perusal of the evidence of P.Ws. 1 to 6, 13, 16 and 25 shows that the Appellant was responsible for the distribution of exhibits P-3 and P-4. The Tribunal also comments upon the fact that an alternative case is made in the petition filed by the first Respondent and it seems to suggest that in election matters pleading on an alternative basis is not permissible. We do not find any support for such a legal proposition either in the provisions of the Act or on general principles. A Petitioner, just like a Plaintiff in a suit, is entitled to plead on an alternative basis, though having regard to the circumstances of a particular case, a tribunal or a court might take that fact into consideration in weighing the evidence; it cannot be asserted as a proposition of law that such a course is not available in an election petition. 16. The learned Counsel for the Appellant further contends that the first Respondent has not given any particulars as regards the publication of exhibits P-3 and P-4 by the Appellant; but it does not appear that this objection was taken before the Tribunal. That apart, the first Respondent did file an annexure (annexure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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