Kanhaiyalal Vs. Mannalal & Ors
 INSC 70 (23 March 1976)
FAZALALI, SYED MURTAZA
CITATION: 1976 AIR 1886 1976 SCR (3) 808 1976
SCC (3) 646
R 1977 SC 813 (13) R 1978 SC 351 (15) RF 1985
SC 236 (63)
Representation of the People Act, 1950-S.
123(4)- Corrupt practice-Degree of proof-Election dispute not a private feud.
Respondent No. 1, an elector in the
constituency in his election petition alleged that the appellant, the
successful candidate, got printed and published and personally distributed on a
large scale throughout the constituency a pamphlet containing statements in
relation to the personal character or conduct of one of the candidates,
reasonably calculated to prejudice the prospects of his election, and thereby
committed the corrupt practice under s. 123(4) of the Representation of People
Act, 1950. The High Court allowed the election petition.
Allowing the appeal- ^
HELD : (1) (a) The allegations mentioned in
the document related to the personal character and conduct of one of the
candidates and were reasonably calculated to prejudice the prospects of his
election. If the distribution of the same by the appellant was established and
if it was also established that the statements of facts therein were false and
that the appellant either believed them to be false or did not believe them to
be true, he would be guilty of corrupt practice under s. 123(4) of the Act.
[815 E-G] (b) The charge of electoral corrupt practice being of a quasi-criminal
character, the onus on an election petitioner is heavy as if in a criminal
charge. The allegations must be established beyond reasonable doubt to the
satisfaction of the court by independent and unimpeachable evidence. [817 G- H]
2.(a) There is no doubt that the pamphlet was in existence prior to the date of
poll. [817 A-B] (b) The High Court committed a serious error in linking up the
printing of the document allegedly at the instance of the appellant, for which
there was no evidence whatsoever, with the distribution of the same by the
appellant in the constituency. It further committed an error of law in not
dealing with the two matters of printing and its distribuion separately and
independently. [819 F-H] (c) The High Court did not adopt a uniform standard in
appreciating the evidence of the witnesses of the contending parties. Nor was
it right in its conclusion that the charge of distribution of the pamphlet by
the appellant was established against him. While one of the defeated candidates
took care to prepare a panchnama for the distribution of the offending pamphlet
by the agents of the appellant, and lodged a complaint with the returning
officer, there was no documentary evidence, no complaint or service of lawyers'
notice or preparation of a panchnama in regard to the distribution of the
pamphlet by the appellant himself. It is absurd to suppose that the respondent
would not have moved in the matter when the appellant had personally
distributed the pamphlet. The petitioner had not been able to establish the
allegations about the distribution of the pamphlet by the appellant before the
election. [820 B-F] 3 (a) An election dispute is not a private feud between one
individual and another. The whole constituency is intimately involved in such a
dispute. Shaky and wavering oral testimony of a handful of witnesses cannot
still the dominant voice of the majority of the electorate. [826 A-B] 809 (b)
It is difficult to hold that a serious charge of this nature is established on
the mere oral testimony of the petitioner's witnesses. [825 E] (c) Oral
testimony will have to be judged with the greatest care and an electoral
victory cannot be allowed to be nullified by a mouthful of oral testimony
without contemporaneous assurance of a reliable nature from an independent
source. [825 H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 870 of 1974.
From the Judgment and Order dated the 7-3-74
of the Madhya Pradesh High Court (Indore Bench) in Election Petition No. 9 of
B. R. Nahata and Rameshwar Nath for the
Hardayal Hardy and S. K. Gambhir for
Respondent No. 1.
S. S. Khanduja and Sushil Kumar Jain for
Respondent No. 4.
Ex parte; Respondent Nos. 2 and 3.
The Judgment of the Court was delivered by
GOSWAMI, J.-This is an appeal under section 116A of the Representation of the
People Act, 1951, against the judgment of the High Court of Madhya Pradesh in
an election petition filed by an elector named Mannalal (respondent No. 1 in
this appeal), hereinafter to be described as the petitioner, for setting aside
the election of the appellant Kanhaiyalal Nagori.
The constituency was Javad Constituency of
the Madhya Pradesh Legislative Assembly. The poll took place on March 8, 1972
and the result was declared on March 12, 1972. There were four contesting
candidates. The appellant Kanhaiyalal who was a Congress candidate and
respondent No. 1 in the election petition, obtained 25,594 votes. Virendrakumar
Saklecha (for brevity Saklecha) who was a Jan Sangh candidate, being respondent
No. 4 both in the election petition as well as in this appeal, obtained the
second highest number of votes viz., 23,064. Ravishankar Sharma (respondent No.
2) who was a Socialist candidate, obtained 1300 votes and Jagmohan (respondent
No. 3) an independent candidate obtained 1,104 votes. The last two candidates
forfeited their security deposit. The appellant Kanhaiyalal was declared
elected by a margin of 2,530 votes.
Saklecha was being returned from this
constituency since 1957 having won the election in that year and in the next
two successive years 1962 and 1967. In the 1967 election wherein he won, there
was an election petition against him. The High Court set aside the election on
the ground of certain corrupt practices, but this Court set aside the judgment
of the High Court in January 1972.
In the year 1968, Congress Government was
defeated and Samyukat Vidhayak Dal (briefy S.V.D.) came into power in the
State. Saklecha was the Deputy Chief Minister in that Government from July 1967
to March 1969. The S.V.D.
Government fell in 1969.
As stated earlier the election of the
appellant was challenged by an elector Mannalal by an election petition filed
on April 24, 1972, 810 alleging corrupt practices under section 123(4) of the
Representation of the People Act (briefy the Act) which reads as follows:- 123.
"The following shall be deemed to be corrupt practices for the purposes of
this Act:- x x x x (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." It may be appropriate to describe from the
election petition itself the allegations against the returned candidate,
"5. That the election of the returned
candidate, respondent No. 1 is liable to be declared void and set aside on the
following grounds:- (A) That the respondent No. 1 got published through Block
Congress Committee, Javad, a pamphlet entitled "Saklecha Ke Karyakal Par
Ek Nazar" and it was distributed throughout the Javad constituency by the
respondent No. 1 himself and by his workers and agents with his consent. The
said pamphlet was printed in Shriman Press, Neemuch and the signatories to the
said pamphlets are all members and important office bearers of the Congress
party and who were actively conducting the election propaganda of the
respondent No. 1.
Respondent No. 1 was official Congress
candidate and he was also Provincial Congress Committee member representing
Block Committee Javad and President Janpad Panchayat Javad. The said pamphlet
is in Malvi dialect and was distributed on a large scale throughout the
constituency by the candidate himself and through his workers and agents by his
consent and connivance. By the said pamphlet the respondent No. 1 through his
agents Parasram Agarwal of Singoli, Chosarmalji of Singoli, Bhanwarlal Badolia
of Kadwasa, Ghanshyam Patidar of Neemuch. Vijaychankar Sharma of Neemuch,
Shankarlal Bhatevara, President of Block Congress, Javad, and Dheeraj Vyas,
Secretary, Block Yuvak Congress Javad, published statements of fact which are
totally false and which the respondent No. 1 and his said agents believed to be
false or did not believe to be true, in relation to the personal character or
conduct of the respondent No. 4, being statements reasonably calculated to
prejudice the prospects of 811 the election of respondent No. 4. The said
pamphlet contained allegations against the respondent No. 4, which are totally
false to the knowledge of respondent No. 1 and his said agents and other
persons who distributed the said pamphlet. The aforesaid pamphlet (an English
rendering) reproduced below (sic) false allegations against the personal
character and conduct of respondent No. 4:
"Ex. P-1" INDIRA GANDHI JINDABAD/PRAKASHCHAND
SETHI JINDABAD Election Symbol Birds Eye View of Saklecha's Regime Dear
Villagers, This is the election period. In our constituency voting shall be on
8th, the Wednesday. We have been returning the Deepakwala-Saklecha for the last
15 years and he has been sitting in the Assembly for the last 15 years.
Saklecha has remained Deputy Chief Minister but did no work. He only served his
interest. You have read this news in 'Nai Dunia' newspaper that Saklech ahas
devoured lakhs of rupees from dacoits. During his period of rule he has
tortured people by selecting them. He troubled people indiscreetly. Saklecha
has ploughed thousands of bighas of land on the Sukhanad side, when people are
not getting land. Saklecha has ploughed the grass land of Bhutiakhal of Baval
and has installed electric water pump on the Khal, when people are starving for
water for irrigation of their land. This is a matter for consideration that
what has been done by Saklecha for the villagers.
He filled his belly. You gave him opportunity
to work for 15 years, but he did nothing. Arey? you think about it, that if you
would have given water to a Babool tree, then it would have also given you a
bleesing, but Saklecha has done nothing in 15 years. On our side we have a
great scarcity of water, if he would have desired, then at the time of his
Govt. he would have got Tube wells prepared. But he did not think about it as
for him there is a water pump fitted at Bhutia Khal and there is road for him
to go to his home. He has helicopter and aeroplane for his travel. He talks
only in the air. In Saklecha's Govt. they purchased Dodge Chasis in place of
Mercedez and did much bungling with (sic) which God alone knows. He has
devoured the land of one Baba of Javad area. This is known to the whole world.
Therefore you have to consider it and be not deceived this time otherwise we
will lay behind for other five years. Our area is lagging behind. This is a
matter for you to remember. Therefore for the development of the area and for
removal of shortage of water you have to put your seal on the Cow & 812
Calf symbol of Kanhaiyalal Nagori and make him succeed.
Remember this. Our interest lies in this. You
have to strengthen the hands of Indiraji. Do not forget it.
You have to put your seal this time on Cow
Parasram Agarwal, Singoli, Vice-President of
Janpad Panchayat Javad, Chosarmal Sarpanch, Panchayat, Singoli, Bhanwarlal
Badolia, Sarpanch, Panchayat Kadwasa, Ghanshyam Patidar, Pleader, Neemuch
(Janakpur), Vijayshankar Sharma, Neemuch (Mahudia) Shankarlal Bhatevara,
President, Block Congress Javad, Dheeraj Vyas, Secretary, Block Youth Congress.
Best place for Printing-Shriram Printing Press, in front of Jaju Bhawan,
Neemuch." "5(B). The said pamphlet was distributed by the respondent
No. 1 and with his consent and in his presence and under his direction by his
agents and workers who were accompanying him in the jeep while touring the
constituency the particulars of which are given below:- Name of the person
Place Date who distributed Pamphlet.
1. Kanhaiyalal Naogri Newas 2.3.72
2. Shankarlal Bhatevara Jawi 2.3.72 of Javad,
Thadoli 2.3.72 President, Block Lasur 2.3.72 Congress, Javad. Daroli 2.3.72
1. Kanhaiyalal Nagori Diken
2. Dheeraj Vyas Mantri Ratangarh of
Ratangarh, Carwada 3.3.1972 Block Yuvak Congress, Alori Javad. Kabriya 3.3.1972
Singoli 3.3.1972 ___________________________________________________________ 5(C).
The said pamphlet was also distributed with the consent of the respondent No. 1
by the following persons the particulars whereaf are as follows:-
___________________________________________________________ Name of the person
Place Date ___________________________________________________________ 1.
Ghanshyam Patidar Village 25.2.72.
2. Jagdishchandra Airen Dhaneria
3. Shivlal Rawat, and Jawi Advocate of
4. Parasmal s/o Kanhaiyalal Nagori Neemuch
____________________________________________________________ The said persons
were active workers and agents of the respondent No. 1 and the said Parasmal is
his son and 813 agent. The said persons distributed the said pamphlet which
they were carrying on for the respondent No. 1.
The statements contained in the said pamphlet
are false and which the said persons and the respondent No.
1 believed to be false and did not believe to
5(D). That the respondent No. 1 through the
Block Congress Committee Javad published an election bulletin dated 6.3.1972
under the caption of 'Congress Tatha Anya Dalo Kee Sachhi Hakeekat' and got it
distributed free on a large scale throughout the Javad constituency. In this
buletin there is a reference to an interview with the Congress candidate
1 in the form of questions and answers. The
questions put to him and answers given by him included the following
It is not necessary to reproduce what was
published in the "Haquikat" particularly because the charge of
distribution of the same by Kanhayalal on 6th March, 1972, in various places
such as Morwan, Daroli, Diken, Ratangarh, Singoli and Jhantla, is not being
pressed by Mr. Hardy although evidence was led to that effect in the trial
In the affidavit annexed to the election
petition, the petitioner stated as follows:- "(c) The information
regarding distribution has been received as detailed below:-
____________________________________________________________ Name of the person
Place of corrupt practice committed and para of the petition
1. Modidas Bairagi, village Newas . . . Newad
2. Madanlal Sharma, village Jawi . . . Jawi
3. Onkarlal Khati, village Thandoli. . .
4. Ramniwas Patidar, village Lasoor. . .
5. Mishrilal Tailor, village Diken . . .
6. Lakshminarayan Latha, vill Ratangarh .
7. Shankerlal Cheran, vill Garwada Aloni.
Garwada 5(B) Aloni
8. Bhanwar Singh, village Kabriya . . . .
9. Bapalal son of Bhanwarlal, vill Singoli
Singoli 5(B)(D) 10.Keshar Singh, village Dhaneria . . . . Dhaneria 5(C)
11.Khemraj Moti Jat, village Morwan . . . Morwan 5(D) 12.Balooram Dhakar,
village Jhatla . . . Jhatla 5(D)" ____________________________________________________________
The petition was contested only by Kanhaiyalal. He denied the printing,
publication and distribution of the aforesaid two pamphlets either by himself
or by others with his consent.
814 On the pleadings the following issues
were raised in the trial:- "1. Whether respondent No. 1 Kanhaiyalal
through the Block Congress Committee, Javad, got published the pamphlet
(Saklecha Ke Karyakal Par Ek Nazar) as reproduced in para 5(A) of the Petition?
2(a) Whether respondent No. 1 Kanhaiyalal and with his consent, in his presence
and under his direction his agents and workers named in paragraph 5(B) of the
petition also distributed the said phmphlet at the places and on the dates
mentioned in the said paragraph? (b) (i) Whether the said pamphlet was also
distributed with consent of respondent No. 1 Kanhaiyalal by the persons at the
places and on the dates mentioned in paragraph 5(C) of the petition? (ii)
Whether the persons named in paragraph 5 (C) of the petition were active
workers and agents of the respondent No. 1 ?
3. Whether the said pamphlet contained
statements of facts which were false and/or which the respondent No. 1 and his
alleged agents and workers did not believe it to be true ? 4(a) Whether
respondent No. 1 Kanhaiyalal through the Block Congress Committee, Javad,
published the bulletin as reproduced in para 5(D) of the petition and also got
it freely distributed on a large scale and on the dates mentioned in para 5(d)
of the petition ? (b) Whether the statement of facts in the said bulletin was
false and/or which the respondent No. 1 did not believe it to be true in regard
to the personal character and conduct of respondent No. 4 ? (c) Whether the
said statement was calculated to prejudice the result of the election of
respondent No. 4 ?
5. To what relief the parties are entitled
to?" The trial judge answered the first question in favour of the election
petitioner, issue No. 2(a) also in favour of the petitioner except at the
places Newad and Kabriya, Issue No. 2(b)(i), 2(b)(ii) and Issue No. 3 in favour
of the petitioner, Issue No. 4(a) also in favour of the petitioner except at
the places, Dadoli, Diken and Jhantia, and Issue No. 4(b) and (c) also in
favour of the petitioner. The trial judge answered Issue No. 5 holding that the
petition deserved to be allowed.
Mr. Nahata, who appeared on behalf of the
appellant, the returned candidate, has addressed us with reference to all the
issues that were held against him. Mr. Hardy, the learned counsel on behalf of
the petitioner (respondent), however, did not press the charges 815 with regard
to the distribution of "Haquikat" (Ex.P-13). He also did not press
the charges with regard to the distribution of Ex.P-1 by agents and by workers
of the returned candidate with his consent, as alleged in the election
petition, some of which have even been held in his favour by the High Court.
He, however, submits that pamphlet Ex.P-1 is a false and libellous document
affecting the personal character or conduct of the respondent, Saklecha, and so
far as the same was distributed by Kanhaiyalal personally at Jawi and Thadoli
on 2nd March, 1972, the charges have been fully established and this Court
should not interfere with the findings of the High Court in favour of the
appellant. Mr. Khanduja appearing on behalf of the respondent, Saklecha,
adopted the submission of Mr. Hardy in toto.
Before we proceed further we should observe
that in the trial the petitioner produced evidence to prove all the allegations
mentioned in the election petition by exaamining as many as 42 witnesses
including himself and by producing relevant documents. The appellant also gave
rebuttal evidence with regard to all the charges levelled against him by
examining 21 witnesses including himself and by producing various documents.
In this appeal we are concerned with only one
species of corrupt practice contemplated in section 123(4) of the Act. Section
123(4) consists of three types of corrupt practices, namely (1) the publication
of an offending or incriminating statement by a candidate, (2) by his agent
within the meaning of the Explanation (1) to section 123 and (3) by any other
person with the consent of the candidate or his election agent. We are not
concerned in this appeal with the types in (2) and (3) in view of the stand
taken by Mr.
Hardy and Mr. Khanduja.
We may first examine whether Ex.P-1 comes
within the mischief of section 123(4). The allegations mentioned in Ex.P-1, if
false, and believed to be so, or not believed to be true, would come within the
mischief of section 123(4).
We have gone through the document and we are
clearly of opinion that the allegations mentioned in the document relate to the
personal character and conduct of Saklecha and are reasonably calculated to
prejudice the prospects of Saklecha's election. If the distribution of the same
by Kanhaiyalal is established and if it is also established that the statements
of facts therein are false and Kanhaiyalal either believed them to be false or
did not believe them to be true, he will be guilty of corrupt practice under
section 123(4) of the Act.
Since the pamphlet on the face of it is shown
as being printed at Shriram Printing Press, Neemuch, evidence was led by the
petitioner by examining Harishankar (PW 32), the proprietor of the Press, who
produced the register containing the printing orders. He stated that during the
last General Elections 5000 copies of the pamphlet like Ex.P-1 were printed in
his Press. He was, however, unable to state who had come to place the order as
he was indisposed and his son Shivshankar took the order. The entry in the
register also was not made by him but was made by his son, Shivshankar, who 816
was not examined in the case. From the entry in the register (Ex.P-14) it
appears that on 24th February, 1972, Congress Committee Javad placed orders for
printing of 5000 pamphlets with the caption "Saklecha Ke Karyakal Par Ek
Nazar". There is an obvious interpolation in the entry showing that
Ghanshyam Patidar placed the orders on behalf of the Block Congress Committee,
but the witness could not say who had made this interpolation. He could not
identify the handwriting in the interpolation. The trial judge has noted the
demeanour of this witness stating that "it appears that he did not intend
to stick to any particular answer and tried to change his version as and when
he found it convenient". The petitioner wanted to establish that Ghanshyam
Patidar, who according to him, was actively working for the Congress went to
the Press for placing the orders and later on even distributed some pamphlets
with the consent of Kanhaiyalal. It is in that context that this interpolation
assumes significance. We are unable to hold that on the evidence of PW 32 the
fact of Ghanshyam Patidar placing the order is established. There was no
attempt to examine the son who had personal knowledge about the placing of the
order. Even so, we are satisfied that the pamphlets were printed in this Press
but it is difficult to hold as to who placed the orders for printing. That this
pamphlet was printed in order to advance the cause of the Congress candidate
and to prejudice the interests of Saklecha cannot be in doubt. Apart from this
the proprietor was prosecuted for printing this pamphlet for contravention of
the provisions of section 127A of the Representation of the People Act, and he
was convicted on his plea and sentenced to pay a fine of Rs. 50/-. We are,
therefore, satisfied that the pamphlet was printed in the Shriram Printing
Press, but in the absence of the evidence of Shivshankar we are unable to agree
with the High Court that Ghanshyam Patidar had anything to do with the placing
of the orders or printing of Ex.P-1.
We must next consider as to when this
document came into existence. The register of the Press shows that the order
for Ex. P-1 was placed on 24th February, 1972, that is to say about two weeks
before the pool and the allegations of its distribution were on 25th February
and on 2nd March, 1972. Having come to know of the distribution of this
offending pamphlet, Saklecha complained to the Returning officer by a letter
dated 26th February, 1972, by enclosing a panchnama testifying to the
distribution of the pamphlet at Jawi. Although it is not specifically
established that this letter was posted on 26th February, 1972, or that it was
received by post by the Returning Officer, it is clear even from the
application on behalf of the respondent Kanhaiyalal for summoning the Returning
Officer that Saklecha had personally handed over this complaint to the
Returning Officer on 5th March, 1972, which was definitely prior to the poll.
There is a further fact which has been established. Under the instructions of
Saklecha, Hiralal Mehta, Advocate (PW 1) sent out registered notices dated 27th
February, 1972, to seven signatories of the pamphlet (Ex.P-1), namely, Parasram
Agarwal, Chosarmal, Bhanwarlal, Ghanshyam Patidar, Vijayshankar Sharma,
Shankarlal Batevara and Dheeraj Vyas. Some of the witnesses examined on behalf
of the 817 respondent, Kanhaiyalal, (RWs 5, 6 and 8) admitted to have received
the registered notices of the Advocate to which they did not send any reply.
The fact of denial by Ghanshyam Patidar (RW 1) is not of much significance.
There is, therefore, no doubt whatsoever that the pamphlet (Ex.P-1) was in
existence during the election period prior to the date of poll on 8th March,
We are satisfied that 5,000 copies of the
pamphlet were printed in the Shriram Printing Press. Evidently these were
printed for the purpose of distribution in order to advance the cause of the appellant
and to harm the interests of Saklecha. We are not concerned in this appeal with
the distribution of the pamphlet on 25th February, 1972. Since these pamphlets
were alleged to be distributed on 25th February, 1972, not by the appellant
himself but by other persons, the petitioner had also to establish consent of
the appellant in the distribution. Although the High Court has held that even
consent was established, Mr. Hardy has not pressed his case regarding the
allegation of distribution of the pamphlet on 25th February, 1972.
Mr. Nahata submits that in view of the
newspaper reports and the Assembly proceedings, in particular the statements on
the floor of the Assembly on a Vote of No Confidence against the S.V.D.
Ministry where particular reference had been, inter alia, made in severe terms
creating a furore about the activities of Saklecha in his capacity as the
Deputy Chief Minister in-charge of the Home Department, any person reading
these will have reasonable belief that the allegations in Ex.P-1 are true and
at least not false. It is also emphasised by counsel that at no time Saklecha
ever publicly contradicted the allegations, nor took any action against the
Mr. Hardy submits that none of the
correspondents of the newspapers, nor the authors of the allegations whether
made through the Press or on the floor of the House, or through a regular
complaint, were examined by the appellant to make out even a prima facie case
for reasonable belief of the truth of the wild allegations against the personal
character and conduct of Saklecha. It is submitted by Mr.
Hardy that the statements made on the floor
of the Assembly are privileged and they are also privileged when published in
the authorised organs under the order of the House, but to publish these again
without the authority of the House will not be protected by privilege under
article 194(2) of the Constitution.
Section 123(4) is a punitive rule against
character assassination of candidates during the period of election. A charge
of electoral corrupt practices being of a quasi- criminal character, the onus
on an election petitioner is heavy as if in a criminal charge. The allegations
must be established beyond reasonable doubt to the satisfaction of the court by
cogent and unimpeachable evidence. That being the position in law the
petitioner will have to satisfy the court that the returned candidate had
reason to believe that the allegations in the offending pamphlet were false or
not true. Even assuming this ingredient is satisfied, since the charge may
fail, if it is not established that the appellant himself distributed the
offending pamphlet as 818 alleged, we will immediately address ourselves to
that aspect of the matter.
Before adverting to the evidence we have to
take note of certain factors. Ex concessis, the allegations of the publication
of the pamphlet (Ex.P-1) on 25th February, 1972, by the workers and agents with
the consent of the appellant have to be held as not established. So far as the
distribution of the pamphlet on 25th February, 1972, at Jawi and at Dhaneria,
two respective panchnamas were exhibited. A complaint enclosing a copy of the
panchnama regarding the distribution of the pamphlet on 25th February, 1972,
was lodged before the Returning Officer and it was received by him prior to the
poll although the exact date was not proved. So far as the distribution of the
pamphlet Ex.P-1 on 25th February, 1972, there was, therefore, both oral and
documentary evidence. Even so, since the appellant was not associated with the distribution,
it could not be established that the distribution, even if it took place, was
with his consent. The charges relating to the 25th February, 1972, were,
therefore, rightly abandoned before us.
So far as, however, the distribution of the
pamphlet on 2nd March, 1972, at Jawi and Thadoli, which alone survives for
consideration, the petitioner relies entirely upon oral testimony and the court
will have to be cautious and circumspect in accepting the same.
This Court in Rahim Khan v. Khurshid Ahmed
& Ors.(1), dealing with the oral testimony in election cases pithily
observed at page 656 as follows:- "We must emphasize the danger of
believing at its face value oral evidence in an election case without the
backing of sure circumstances or indubitable documents. It must be remembered
that corrupt practices may perhaps be proved by hiring half-a-dozen witnesses
apparently respectable and disinterested, to speak to short simple episodes
such as that a small village meeting took place where the candidates accused
his rival of personal vices. There is no x-ray whereby the dishonesty of the
story can be established and, if the Court were gullible enough to gulp such
oral versions and invalidate elections, a new menace to our electoral system
would have been invented through the judicial apparatus. We regard it as
extremely unsafe, in the present climate of kilkenny cat election competitions
and partisan witnesses wearing robes of veracity, to upturn a hard won
electoral victory merely because lip service to a corrupt practice has been
rendered by some sanctimonious witnesses. The Court must look for serious
assurance, unlying circumstances or unimpeachable documents to uphold grave
charges of corrupt practices which might not merely cancel the election result,
but extinguish many a man's public life".
Ordinarily this Court will be slow to
interfere with the findings of the High Court regarding appreciation of
evidence except for good 819 and sufficient reasons. Have we good and
sufficient reasons to depart from the findings of the High Court? Our answer is
in the affirmative and we will set out the reasons:
(1) The High Court while dealing with the
distribution of the pamphlet (Ex.P-1) at Jawi by Ghanshyam Patidar and others
felt assured from "the subsequent conduct on the part of Virendrakumar
Saklecha" in preparing panchnama (Ex.P-11), instructing Advocate, Hiralal
(PW 1) to serve registered notices (Ex.P-17) to the distributors of the
pamphlet and in making a complaint (Ex.P-18) to the Returning Officer enclosing
a panchnama. The High Court held that "this subsequent conduct on the part
of Virendrakumar Saklecha naturally lends corroboration to his statement and
the statements of the petitioner's witnesses who have deposed about the
publication and distribution of this pamphlet on the dates referred to by them
in their statements. Thus on a consideration of the petitioner's evidence I
feel satisfied that the pamphlet Ex.P-1 was distributed by Ghanshyam Patidar,
Jagdishchandra Airen, Shivlal Rawat and Parsamal in Jawi and Dhaneria as
alleged in the petition." The above approach, which is correct,
particularly in an election matter, was totally lost sight of by the High Court
in dealing with the allegations of distribution of the pamphlet (Ex.P-1) by
Kanhaiyalal at Jawi and Thadoli on March 2, 1972. The High Court did not look
for or adopt the same test with regard to the aforesaid distribution of the
(2) The High Court arrived at a completely
erroneous finding regarding the printing of the document Ex.P-1 at the instance
of Ghanshyam Patidar. As shown earlier, there was no legal evidence before the
High Court on which it could come to the conclusion that "the person who
got this Ex.P-I printed in the Press of PW 32 Harishankar was none else than RW
1 Ghanshyam Patidar on behalf of the Javad Block Congress Committee". In
the absence of any direct evidence from the press the above finding cannot be
sustained in law from the fact that Ghanshyam Patidar denied receipt of and did
not reply to the registered notice of the Advocate and that he denied his
signature in a certain tour programme Ex.P-29.
(3) The High Court committed a serious error
in linking up the printing of the document Ex.P-1 by Ghanshyam Patidar at the
instance of Kanhaiyalal for which there was no evidence whatsoever with the
distribution of the same by Kanhaiyalal in the constituency for holding:
"If the respondent Kanhaiyalal had not
in any way been associated with the printing and publication of this pamphlet,
then he would not have been one of the persons who would have distributed this
pamphlet, as alleged in paragraph S(B) of the petition".
The High Court committed an error of law in
not dealing with the two matters of printing of the pamphlet and of its
distribution separately and independently.
820 (4) The High Court did not adopt a
uniform standard in appreciating the evidence of the witnesses of the two
contending parties. For example, while RW 2 was disbelieved by the High Court
holding "admittedly he was the pollining agent of the respondent
Kanhaiyalal and must have had sympathies for him during the election
period", polling agents of the respondent Seklecha did not come under the
same hostile comment for rejecting their testimony.
(5) It is manifest that the High Court was
largely influenced by its finding that the pamphlet was printed by the Javad
Block Congress Committee through Ghanshyam Patidar at the instance of the
appellant. When this finding disappears, as we have shown above, the edifice of
the judgment cracks and it is no more a matter of mere reappreciation by us of
the evidence, simpliciter, but of proper appreciation by us of the evidence,
simpliciter, but of proper appreciation of only oral evidence produced
regarding distribution of the pamphlet by Kanhaiyalal at Jawi and Thadoli on
March 2, 1972, which we will, next, undertake.
Saklecha took care to prepare panchnamas for
the distribution of the offending pamphlets at Jawi and Dhaneria on 25th
February, 1972. He instructed his lawyer to serve registered notices on the
signatories of the pamphlets and registered notices bear the date 27th
Seklecha lodged a complaint dated 26th
February, 1972, with the Returning Officer about the distribution of the
pamphlet enclosing a copy of the panchnama prepared at Jawi on 25th February
1972. This was quick action indeed. All this documentary evidence lands
corroboration to the existence of the pamphlet prior to the poll and even to
On the other hand, there is no documentary
evidence of any complaint or service of lawyer's notice or preparation of a
panchnama regarding distribution of the pamphlet by Kanhaiyalal Nagori on 2nd
March, 1972. It is absurd to suppose that if Kanhaiyalal had actually
personally distributed the pamphlet at Jawi and Thadoli the matter would not
have taken air and Saklecha would not have moved in the matter. This is
particularly so, since, in the case of distribution by workers and other
persons, consent of Kanhaiyalal was necessary to establish the corrupt practice
whereas if Kanhaiyalal had personally distributed, the charge would have been
established without the requirement of proof of consent.
So far as the distribution of the pamphlet
Ex. P-1 at Jawi on 2nd March, 1972, is concerned, we have the evidence of PWs.
2, 3, 4 and 5 on behalf of the petitioner and RWs 15, 16, 17 and 21 in rebuttal
on behalf of the appellant.
Madanlal (PW 2), Nanalal (PW 3), Mohanlal (PW
4) and Ramshankar (PW 5) stated about distribution of the pamphlet (Ex. P-1) by
Kanhaiyalal and Shankarlal Bhatevara at Jawi Bazar on March 2, 1972.
There is a significant revelation in the
evidence of Madanlal (PW 2) which the High Court has absolutely failed to
consider. According to Madanlal he did not personally know about the pamphlet
being distributed on 25th of February, 1972, at Jawi. He also did not see a
panchnama being prepared. He deposed only about the distribution 821 of the
pamphlet by Kanhaiyalal and Shankarlal Bhatevara at Jawi about five or six days
before the date of poll. This would show that he was deposing only with regard
to the distribution of the pamphlet by Kanhaiyalal on 2nd March, 1972. He
stated in his evidence:
"I met Saklecha the same day when I saw
Ex.P-1. I had a talk with Saklecha regarding the pamphlet Ex. P- 1".
He further stated that- "this pamphlet
was given to me by Kanhaiyalal....I handed over the same pamphlet to Saklecha
which was given to me by Kanhaiyalal".
If the above statements are true, he met
Saklecha on 2nd March, 1972. In the way Saklecha reacted to the distribution of
the pamphlet on 25th February, 1972, his utter inaction with regard to the
distribution of the pamphlet by Kanhaiyalal on 2nd March, 1972, is absolutely
The absence of any complaint to the Returning
Officer against Kanhaiyalal even after receipt of the information and the
pamphlet from Madanlal would go to show that the entire allegation regarding
Kanhaiyalal's distribution of the pamphlet is an after-thought to reinforce the
charge against the returned candidate. In the way Sakclecha was following a
certain procedure of his own regarding the alleged illegal activities of the
appellant's campaigners, there was no reason why a panchnama would not have
been prepared at Jawi on 2nd March, 1972, when Madanlal informed him about
Kanhaiyalal's distribution of the pamphlet which was even handed over to him
that very evening.
We find that Madanlal (PW 2) is contradicted
by Nandlal (PW 3). Although Madanlal, who is the in formant about the
distribution of the pamphlet by Kanhaiyalal at Jawi on 2nd March, 1972, denied
the fact of the panchnama being prepared on 25th February, 1972, at Jawi,
Nanalal (PW 3) stated:
"While the panchnama was under
preparation Ramshankar, Madanlal Tiwari, who has been examined to- day, and two
others had also come there".
It is difficult to appreciate why Madanlal
had suppressed the fact of his knowledge of the panchnama prepared on 25th
February, 1972. It will be relevant to note here that in the affidavit annexed
to the election petition, Madanlal has been shown as the informant regarding
the distribution of the pamphlet at Jawi on 25th February as well as on 2nd
March, 1972. Madanlal, however, in his evidence disowns personal knowledge
about the distribution of the pamphlet on 25th February, 1972. According to
Nanalal (PW 3) after the preparation of the Panchnama on 25th February, 1972,
Saklecha addressed a meeting in front of his shop by the public address system.
Madanlal (PW 3) also deposed that he only saw once Saklecha addressing some
persons assembled in front of Nanalal's shop by the public address system. He
further stated that he handed over the pamphlet to Saklecha on that date. This
falsifies his evidence regarding March 2, 1972.
822 Madanlal's statement about distribution
of the pamphlet by Kanhaiyalal to him on 2nd March, 1972, is open to grave
suspicion, rather smacks of padding.
Madanlal is admittedly a member of the Jan
Sangh party although, according to him, he is not an active worker.
Since his evidence is intrinsically
unaceptable, it is not necessary to refer to the various contradictions in his
evidence. To mention one instance only, he contradicted himself in the
cross-examination when he stated that "some time before the pamphlet was
given to me by Kanhaiyalal, I got another copy of the same pamphlet from some
boys in the village earlier and that was given by me to Saklecha. I cannot say
if the pamphlet given to me by Kanhaiyalal is or is not still with him
Nanalal (PW 3) deposed to the distribution of
the pamphlet at Jawi on 25th February as well as on 2nd March, 1972. In the
course of cross-examination he stated that he did not personally tell anyone
that Kanhaiyalal had distributed the pamphlet in the village. He did not have
any talk with Nanalal Agarwal (the petitioner) regarding the pamphlet. He
further stated that when Kanhaiyalal Nagori gave the pamphlet to him he was the
only person present in his shop. He admmitted that on the date of poll he acted
as a Polling Agent of Saklecha. If the same standard has to be adopted which
the High Court has done with regard to the appreciation of the evidence of
Shivlal Rawat (RW 2) whose testimony was rejected because he acted as the
Polling Agent of Kanhaiyalal, Nanalal's evidence would have to be treated in
the same manner. Even by the standard adopted by the High Court the testimony
of this witness cannot be accepted.
Mohanlal Jain (PW 4) is the second grocer
examined on behalf of the petitioner. He deposed to the distribution of the
pamphlet on both the dates, on 25th February and on 2nd March, 1972. He
admitted that he exhibited posters and put up banner of the Jan Sangh Party. He
is, therefore, a highly interested witness. He also admitted that he did not
tell anyone that any pamphlet had been given to him by Kanhaiyalal. His
evidence also cannot be acted upon.
The last witness examined with regard to Jawi
distribution is Ramshankar (PW 5), a real brother of Madanlal (PW 2). The
evidence of Madanlal about distribution in Jawi is that the offending pamphlet
was distributed to all the shopkeepers and to also those who met them. It
appears that the Jawi bazar has about eight or nine shops.
Yet only two shopkeepers, namely, Nanalal and
Mohanlal Jain were examined Madanlal and his brother, Ramshankar are
cultivators and not shopkeepers at Jawi bazar. As against this the appellant
examined two shopkeepers of Jawi, namely, Ratanlal (RW 15) and Gordhanlal (RW
16), who denied the distribution of the pamphlet by Kanhaiyalal. Kanhaiyalal
himself also stated on oath that he did not distribute the pamphlet nor
accompanied Shankarlal Bhatevara for the purpose of distribution of the
pamphlet. Similarly, Shankarlal Bhatevara (PW 8) also denied the distribution.
It is not even necessary to closely scrutinise the evidence of the appellant
and his witnesses when we are satisfied that the petitioner has not been able
to establish the allegations about the distribution of the pamphlet by
Kanhaiyalal at Jawi on 823 2nd March, 1972. We are of opinion that the High
Court is not right in its conclusion that the charge of distribution of
pamphlet by Kanhaiyalal at Jawi is established against the appellant.
This takes us to the distribution of the
pamphlet by Kanhaiyalal on 2nd March, 1972, at Thadoli. Onkarlal Khati (PW 9)
was the informant regarding the distribution at Thadoli. According to him about
five or six days before the date of poll he was sitting with a few others by
the side of the village temple when he saw Kanhaiyalal Nagori and Shankarlal
Bhatevara coming to them. Amongst others, Tulsiram (PW 7) and Bhanwarlal (PW 8)
were also sitting with him. He stated that Kanhaiyalal told them that the Jan
Sangh candidate was being elected for the last fifteen years and the
constituency was very much handicapped and that this time the Congress candidate
should be elected. Then he distributed the pamphlet similar to Ex. P-1. The
pamphlet was distributed both by Kanhaiyalal and Shankarlal Bhatevara. He
further stated that about six days after the poll he met Mannalal and talked to
him about "the incorrect statement circulator in the form of
pamphlet" which affected the result of the election. In the course of
cross- examination he stated that Kanhaiyalal and Shankarlal Bhatevara were not
accompanied by any person on that day. He denied that he was a Jan Sangh
worker. He did not preserve the pamphlet which was given to him and it was
destroyed after he had read it. Two other witnesses are Tulsiram (PW 7) and
Bhanwarlal (PW 8) to corroborate him about the distribution of the pamphlet by
Kanhaiyalal and Shankarlal Bhatevara five or six days before the date of poll.
Amongst these Tulsiram was a Polling Agent
for Saklecha at Thadoli as has been admitted by Saklecha himself. This witness,
however, suppressed this fact and denied that he was a Polling Agent of Saklecha.
Bhanwarlal (PW 8) similarly deposed that five
or six days before the date of poll when he and others were sitting in the
temple precincts he saw Kanhaiyalal and Shankarlal Bhatevara coming to them and
after some canvassing both of them distributed pamphlets like Ex. P-1.
We are invited to rely on the above oral
testimony to hold that Kanhaiyalal distributed the offending pamphlet.
Kanhaiyalal (RW 21) and Shankarlal Bhatevara
(RW 8) have denied the allegations. The appellant also examined Mangilal of
Thadoli (RW 18) to state that Tulsiram, Bhanwarlal and Onkarlal are the Jan
Sangh party workers at Thadoli. He was admittedly a person who accompanied the
distributors to the village. There is thus practically oath against oath with
regard to the distribution of the pamphlet by Kanhaiyalal at Thadoli.
To summarise this part of the case, the High
Court while deciding about the truth or otherwise of the allegations of
distribution of the pamphlet by Kanhaiyalal at Thadoli, as also in other
places, seems to have a large degree of assurance from its finding that the
offending 824 pamphlet was got printed by Kanhaiyalal through Ghanshyam
Patidar. That finding, as shown above, no longer survives.
We are now only left with the oral testimony
of PWs 7, 8 and 9 regarding distribution of the pamphlet at Thadoli by
Kanhaiyalal and Shankarlal Bhatevara. These three witnesses are pitted against
three others, Kanhaiyalal (RW 21), Shankarlal (RW 8) and Mangilal (RW 18)
stating to the contrary. Mangilal was admittedly in the company of the
distributors of the pamphlet when they entered Thadoli village. Mangilal as RW
18 denies the visit of Kanhaiyalal to Thadoli. Again PW 7 speaks with two
voices regarding the day of Kanhaiyalal's visit to Thadoli for the purpose of
distribution of the pamphlet. He stated at first that it was ten or twelve days
before the poll and then said about five or six days before the poll.
Bhanwarlal (PW 8) saw Kanhaiyalal and
Shankarlal Bhatevara coming on foot and only heard the sound of vehicle coming
near the village. PW 7 saw them coming in a motor vehicle. They were all
sitting together and even then they are discrepant as to how Kanhaiyalal and
Shankarlal Bhatevara came there. PW 8 makes a curious statement in cross
"All those who were sitting by my side
had seen the distribution of pamphlets. Besides them I did not tell anyone
about the distribution of pamphlets".
It passes one's comprehension why he had to
tell them. He also stated that- "besides Shankarlal and Kanhaiyalal there
was no other person who accompanied them".
On the other hand, according to PW 7
Bhanwarlal Sutar and Mangilal Mahajan accompanied them when they entered the
village after parking the car outside.
Onkarlal (PW 9) stated in
"About six days after the polling I met
Mannalal in Neemuch Dhan Mandi where he enquired from me about the result of
the election. I then told him as to what was the result. I also talked to him
about the incorrect statement circulated in the form of pamphlet".
In the course of cross-examination he stated:
"The only talk that I had with Mannalal
was that the false pamphlets had its effect on the election. At that time I had
no other talk with him".
Whatever be the effect of the above
statements which Mr. Hardy wanted to explain away, it is clear that PW 9 did
not mention at all that he had told the petitioner, Mannalal, the names of
Kanhaiyalal and Shankarlal Bhatevara as distributing the pamphlet at Thadoli.
On the other hand, he referred to the only talk which he had about the 825
effect of the pamphlet. He also admitted that his talk with Mannalal was only a
casual talk. This is not the quality of evidence we expect from the only
informant of the publication of the pamphlet at Thadoli.
We have referred to some of the above
incongruities and inconsistencies in the evidence of PWs 7, 8 and 9 in order to
show how unsafe it is to rely merely on oral testimony which is not vouchsafed
from any other safe source.
It is true that the High Court has relied
upon the oral testimony of the above witnesses but we express grave doubt if
the High Court would have based its decision to upset an election merely on
their oral testimony if it had not come to conclusion that Kanhaiyalal had
earlier got the offending pamphlet printed at the Press. The latter finding had
obviously its decisive effect on the mind of the learned trial judge.
We are unable to suppose that Saklecha would
not know of such illegal activities of his opponent, if true. It is alleged
that the offending pamphlets had been distributed by Kanhaiyalal in a number of
places in the constituency commencing from March 2 and ending on March 6, 1972;
in one case, even in a bus stand, watched by the petitioner. It is impossible
to imagine that such nefarious activities, if true, would not reach the ears of
Saklecha with his network of workers and compaigners for the purpose of the
Between March 2 and March 8, no complaint had
been made by Saklecha or by anyone regarding distribution of the offending
pamphlet by Kanhaiyalal. We are, therefore, unable to hold that a serious
charge of this nature is established on the mere oral testimony of the
aforesaid three witnesses.
Before concluding, we may only refer to the
petitioner, Mannalal's evidence to highlight how far oral testimony can go.
Both Kanhaiyalal and Mannalal are residents of village Daroli. It is the
evidence of Mannalal (PW 42) that Kanhaiyalal distributed the offending
pamphlet Ex. P-1 on 2nd March, 1972, at Daroli to him and to many others.
Although we are not concerned with the
distribution of the pamphlet by Kanhaiyalal at Daroli in this appeal, it is
absurd that Kanhaiyalal would choose to hand over an offending pamphlet of this
nature to Mannalal who is an active worker of Jan Sangh party and keen
supporter of Saklecha unless he foolishly chose to create evidence against him.
It is true that the charge regarding distribution at Daroli is not pressed
before us but we cannot close our eyes to the extent to which the petitioner
could go in levelling charges of corrupt practice against the appellant.
Oral testimony, therefore, will have to be
judged with the greatest care and an electoral victory cannot be allowed to be
nullified by a mouthful of oral testimony without contemporaneous assurance of
a reliable nature from an independent source. The matter would have been
different if there had been an immediate written complaint to the Returning
Officer against Kanhaiyalal as had been made in the case of his workers.
826 An election dispute is not a private feud
between one individual and another. The whole constituency is intimately
involved in such a dispute. Shaky and wavering oral testimony of a handful of
witnesses cannot still the dominant voice of the majority of an electorate.
We are, therefore, clearly of opinion that
the distribution of the pamphlet (Ex. P-1) by Kanhaiyalal at Jawi and Thadoli
has not been satisfactorily established on the oral testimony of the witnesses.
It is, therefore, not necessary to deal with
the submission of Mr. Nahata as to whether Kanhaiyalal had reason to believe
that the statements of facts in Ex. P-1 were not false or that they were not
In the result the appeal is allowed with
costs in this Court as well as in the High Court. The judgment of the High Court
is set aside and the election petition stands dismissed.
P.B.R. Appeal allowed.