Sheopat Singh Vs. Ram Pratap [1964] INSC
185 (28 August 1964)
28/08/1964 SUBBARAO, K.
SUBBARAO, K.
HIDAYATULLAH, M.
CITATION: 1965 AIR 677 1965 SCR (1) 175
CITATOR INFO:
RF 1967 SC 808 (17) R 1969 SC 677 (11) RF
1969 SC1201 (36,42) D 1970 SC1231 (13) R 1970 SC1841 (5) R 1971 SC1262 (19) R
1971 SC1943 (10) RF 1975 SC2299 (471)
ACT:
The Representation of the People Act (43 of
1951), ss. 82(b), 85 and 123(4)-Who are necessary parties to election
petition-Allegations on 'personal character-What are"Calculated",
meaning of.
HEADNOTE:
The election of the appellant to a seat in
the Legislative Assembly of "the State was challenged by the respondent,
an elector, on the ground inter alia, that by publishing a poster which
contained a statement of fact about the personal character and conduct of one
of the rival candidates, the, appellant was guilty of a corrupt practice under
s. 123 (4) of the Representation of the People Act (43 of 1951). The Tribunal
dismissed the petition, but the High Court reversed the decision of the
Tribunal. In the appeal to the Supreme Court., it was contended that : (i) the
poster, published and circulated by the appellant was not hit by the provisions
of s. 123(4) the Act and (ii) the election petition should have been dismissed
under 85 of the Act on the ground that another candidate against whom
allegation of corrupt practices were made was not impleaded.
HELD : (i) Section 123(4) is designed to
achieve the dual purpose of protecting freedom of speech and prevention of
malicious attack on the personal character and conduct of rivals. A statement
which reflects on the mental or moral character of a person is a reflection on
his personal character, whereas any criticism of a person's political or public
activities and policies is outside it. The subsection also requires that the
candidate making the statement believes it to be false or does 'not believe it
to be true, and it shall be a statement reasonably calculated to prejudice the
prospects of the election of the candidate against whom it is made. The word
"calculated" means designed it denotes more than mere likelihood and
imports a design to affect voters. Applying these tests and on a consideration
Of the entire evidence,-the appellant by publishing the poster was guilty of a
corrupt practice within the meaning of the sub-section. [178A-E; 18OC-E; 183H].
T. K. Gangi Reddy V. M. C. Anjaneya Reddy,
(1960) 22 E.L.R. 261 and Inder Lal v. Lal Singh, [1963] Supp. 3 S.C.R.
114, referred to.
(ii)As regards the candidate who was not
impleaded the only allegation made in the election petition was that the
appellant got the poster published through him and others, but there was no
allegation that the candidate believed the statement to be, false or did not
believe it to be &W. in the absence of any such averment it cannot be said
that there wall any allegation of any corrupt practice within the meaning of s.
82(b) Of Act against such candidate.
Also, under s. 123 (4) mens rea is -a
necessary ingredient of the corrupt practice and the person who publishes a
statement, whether he is the author of it or not, does not commit a corrupt
practice, unless he has the requisite knowledge. As there was no allegation of
corrupt practice against the candidate who was not impleaded, the penal provision
of s. 85 are not attracted and the petition was not liable to be dismissed.
[184E-H; 185A].
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 558 of 1964.
176 Appeal by special leave from the judgment
and order dated December 16, 1963 of the Rajasthan High Court in D. B. Election
Appeal No. 74 of 1963.
R. K. Garg, S. C. Agarwal, D. P. Singh and M.
K. Ramamurthi,for the appellant.
G. S. Pathak and Naunit Lal, for the
respondent.
The Judgment of the Court was delivered by
Subba Rao J. The appellant, Sheopat Singh, and two others, namely Ramchander
Chowdhary and Suria Ram, contested the election for a seat in the Rajasthan
Legislative Assembly from Hanumangarh constituency. The appellant polled, 1,285
votes Ramchander Chowdhary, 18,217 and Surja Ram, 1,285 votes. The appellant
was declared elected. The respondent, One of the' electors, filed an election
petition under S. 8 1 of the Representation of the People Act, 1951,
hereinafter called the Act, for setting aside the election of the appellant on
various grounds. 'Me Election Tribunal. by its order dated June 18. 1963, held
that the respondent had failed to substantiate the allegations made against the
appellant and, on that finding, dismissed the petition.
Against the said order, the respondent preferred
an appeal to the High Court of Judicature for Rajasthan at Jodhpur. A Division
Bench of that Court heard the appeal and came to the, conclusion that the
appellant was guilty of a corrupt practice under sub-s. (4) of s. 123 of the
Act in publishing a poster, Ex. 3, which contained a statement of fact about
the personal character and conduct Of Ramchander Chowdhary, one of the
candidates in the election. On that finding, it set aside the order of the
Election Tribunal and declared the election of the appellant void. The
appellant, by special leave, has preferred this appeal to this Court against
the said order of the High Court.
In Learned counsel for the appellant raised
before us two points, namely, (i) that Ex. 3, the poster, published and
circulated by 'the appellant is not hit by the provisions of S. 123 (4) of the
Act and (ii) that the election petition should have been dismissed d under s.
85 of the Act on the ground that it had not impeded Hariram, another duly
nominated candidate who withdrew his candidature before the election and
against whom allegations of corrupt practice were made.
The first argument of the learned counsel is
elaborated thus. Under S. 123(4) of the Act the burden is upon the person who;
is to impute corrupt practice described thereunder to establish the ingredients
of corrupt Practice laid down therein. He has 177 not only to prove that the
elected candidate published a statement of fact, which is false, in relation to
the personal character or conduct of another candidate, but also that he
believed it to be false or he did not believe it to be true. He has to prove
further that the said statement was calculated to prejudice the prospects of
the other candidate's election, that is to say that the voters had the
knowledge that the corrupt practice or practices were attributed to him and
because of that knowledge did not vote for him. In the instant case, Ex. 3
contained only general allegations against the misrule of the Congress Party
and even if the statements can be related to Ramchander Chowdhary, there is no
evidence that the voters knew that it was he who was referred to in the poster.
The first question is whether Ex. 3 is hit by
the provisions of s. 123(4) of the Act. Before we consider the terms of the
document it will be convenient and useful to notice the ingredients of the
section. It reads Section 123 (4) : The publication by a candidate or his agent
or by another 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.
The sub-section may be dissected into the
following component parts relevant to the present enquiry: (1) the publication
of any statement of fact by a candidate; (2) that fact is false; (3) the
candidate believes it to be false or does not believe it to be true; (4) the
statement is in relation to the personal character or conduct of the candidate;
and (5) the said statement is one being reasonably calculated to prejudice the
prospects of the other candidate's election.
An election is the expression of a popular
will. It shall be so conducted that the popular will shall be reflected on the
basis of the policy of the party which the candidate represents and on big
merits. That object cannot be achieved unless freedom of speech t assured at
the election and the merits and demerits of a candidate, personal as well as
political, are prominently brought to the notice of the voters in the
constituency. At the same time it shall not be allowed to degenerate into a
vilification campaign aimed at bringing down the personal character or conduct
etc. of the 178 candidates without any basis whatsoever. The subsection is
designed to achieve this dual purpose, namely, freedom Of speech and prevention
of malicious attack on personal character 'Dr conduct etc. of rivals. The
purity of an election is sought to be maintained without affecting the freedom
of expression. The sub-section prohibits any statement of fact in relation to
Personal which is not only false but character or conduct of any candidate,
which is not only false but also the candidate making it either believes it to
be false or does not believe it to be trueit implies that a statement of fact
relating to the personal character or conduct etc. of a candidate can be made,
if it is true. Even if it is false, the candidate making it is protected,
unless he makes it believing it to be false or not believing it to be true,
that is to say statements which are not true made bona fide are also outside
the ambit of the provision. To be' within the mischief of sub-s. (4) of S. 123
of the Act such a statement shall satisfy another test, namely, it shall be a
statement, reasonably calculated to prejudice the prospects of the election Of
the candidate against whom it is made. The word "calculated" r means
designed: it denotes more than mere likelihood and imports a design to affect
voters. It connotes a subjective element, though the actual effect of the
statement on the electoral mind reflected in the result may afford a basis to
ascertain whether the said statement was reasonably calculated to achieve that
effect. The emphasis is on the calculated effect, not on the actual result,
though the latter proves the former. But what is important to notice is that it
is not necessary to establish by positive evidence that. the voters, with the
knowledge of the contents of the statement, were deflected from voting for the
candidate against Whom the statement was made.
As considerable stress is laid upon the
burden of proof, reference may be made to the judgment of this Court in T. K. Gangi
Reddy v. M. C. Anjaneya Reddy("). In that case, dealing with the question
of burden of proof, this Court observed:
"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...........
The first remain-, constant and the second
shifts." The burden of proof as a matter of law and as a matter of
adducing evidence is on the respondent, who seeks to get the election set
aside, to establish corrupt practice; but, if he adduces sufficient evidence,
as in this case we are satisfied he has, the burden of (1) (1960) 22 E.L.R.
261, 268.
179 adducing evidence shifts on to the
appellant. That apart when the entire evidence has been adduced in the case the
question of burden of proof becomes merely academicals. In this case the High
Court considered the relevant evidence and came to the conclusion that the
respondent has proved his case. No error has been committed by the High Court
in this regard.
One of the important ingredients of the
sub-section is that the statement shall be made in relation to the personal
character or conduct etc. of another candidate. What is the meaning of the
expression "personal character or conduct" ? This question has been
considered by this Court in two decisions. In Gangi Reddy's case (1), dealing
with the said expression, this Court observed at p. 266 thus:
"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 equated with his mental
or moral nature. Conduct connotes a person's actions or behaviour........ 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 in Inder Lal v. Lal Singh(2), this Court again, adverting to this
aspect, observed thus:
"In discussing the distinction between
the private character and the public character, sometimes reference is made to
the "man beneath the politician" and it is said that if a statement
of fact affects the man beneath the politician it touches private character and
if it affects the politician, it does not touch his private character."
After referring to obvious statements which affect the private character of a
person, this Court proceeded to state "But there may be cases on the
border-line where the false statement may affect both the politician and the man
beneath the politician and it is precisely in dealing with cases on the
border-line that difficulties are experienced in determining whether the
impugned false statement constitutes a corrupt practice or not." It is not
necessary to refer to other decisions cited at the Bar.
(1)[1960] 22 E.L.R 261. (2) [1963] Supp. 3
S.C.R. 114,122.
180 The boundary between personal character
and conduct and public character and conduct is well drawn, though, sometimes,
it is thin. Sometimes a statement may appear to touch both the candidate's
personal as well as Public character. But a deeper scrutiny enables a court to
ascertain whether there is a reflection on his personal character or on his
public character. To illustrate:
suppose a statement is made to the effect
that a minister has taken a bribe in making an appointment or in giving a
contract. He, has taken the bribe in the course of discharging his duties as a
minister, but his act of taking bribe does not solely reflect on his public
character. By taking a bribe he does not discharge his Official duties;
taking a bribe has nothing to do with his
official or public dutyit reflects on his moral and mental fire. His position
as a minister may have given him the opportunity to take a bribe but the taking
of the bribe is mainly attributable to his deficiency in personal character.
We, therefore, hold that any statement made, which reflects on the mental or
moral character of a person is a reflection on his personal character, whereas
any criticism of a person's political or -public activities and policies is
outside it.
The fact such a statement is made in the
course of a political or public activity does not make it any the less a
statement in relation to his personal character or conduct.
It is a question of fact in each case under
what category a particular statement falls.
Now let us have a look at the terms of Ex. 3.
It is a big poster in which some portions have been printed in bold letters.
There is a large size photo of the appellant on the right top corner and the symbol
of the communist party at the end. The poster runs thus:
"Bounties of the Cement of the Rajasthan
Canal.-Cinema of seven lakhs in Ganganagar and magnificent kothis in the
neighbourhood of Jaipur's "Rajmahals".
Open loot in liquor contracts by Gandhi's
devotees and improper transfer of lands.
Hanumangarh's gentlemanliness, honest and
public welfare faced with the corrupt, permitloving and "police-raj"
of the Congress.
Give proof of bravery, modesty and
selflessness by giving vote to Sheopatsingh Makkasar who would bravely
sacrifice himself for the glory and prestige of Hanumangarh.
Election (Ears of com and sickle) Symbol 181
Vote for ears of corn and sickle, the symbol of prosperity,progress and popular
rule." Learned counsel for the appellant contends that the poster does not
overstep the limits of reasonable criticism of the opposite candidate and that
it says only generally that under the Congress rule many corrupt practices are
going unheeded and that if the appellant is elected he would rectify the
defects and restore the glory and prestige of Hanumangarh. It is not necessary
in this case to ascertain whether all the misdeeds narrated in the poster refer
to Ramchander Chowdhary, for we are satisfied that the first paragraph clearly
and reasonably refers to his activities.
The vernacular word for "bounties' is
"barkatain". The first paragraph of the poster means that the cinema
theatre of Rs. 7 lakhs in Gangangar was the barkat of the cement of the
Rajasthan canal. That means by misappropriating the cement of the Rajasthan
Canal the cinema theatre worth Rs. 7 lakhs was built. Ex facie the poster does
not say who misappropriated the cement and to whom the cinema belonged.
But the words in the context of the
well-known facts can reasonably lead only to one inference. At the crucial
time, Ramchander Chowdhary was the Minister-in-charge of the Rajasthan Canal
Project. During the election at Ganganagar a cinema theatre known as Adarsh
Theatre was being put up.
It is admitted by the appellant and his agent
that the theatre referred to in the poster is the Adarsh Theatre and it belongs
to Ramchander Chowdhary and his sons. In the context, therefore, it is manifest
that the poster meant to convey the idea that Ramchander Chowdhary
misappropriated the cement of the Rajasthan Canal, of which he was in charge,
and built a big theatre in the name of his sons.
That is to say the act of misappropriation
was in clear terms attributed to Ramchander Chowdhary. To make a statement that
a minister has misappropriated the cement in his charge and built a theatre
from out of the proceeds is certainly a reflection on his personal character
and conduct. Learned counsel's contention that it may mean that somebody other
than the Minister might have misappropriated the cement and sold it in the
black market and that the Ganganagar cinema theatre might have been built from
and out of the cement purchased there from. This is rather an unnatural
rendering of the clear recitals in the first paragraph of the poster. The word
"barkatain" shows that Rs. 7 lakhs was derived from the cement for
the canal. If the minister or his sons purchased cement in the black market,
the building cannot be the bounty of the cement of the Rajasthan Canal. In that
event only the cement misappropriated by somebody would have been used for
building the 182 cinema. The cost of building the theatre would have been borne
by the minister and his sons not out of the gift made from the cement of the
Rajasthan Canal. We are, therefore, clearly of the opinion that the first
paragraph of the poster is a direct reflection on the personal character of
Ramchander Chowdhary.
Even so, learned counsel for the appellant
argues that it has not been established that the appellant made the statement
believing it to be false or not believing it to be true. P.W. 4, Dharam Pal,
under whose supervision the cinema theatre was built, stated that 4,000 bags of
cement were used in its construction and that 2,000 of these bags were obtained
from the cement factory of Sawai Madhopur, 1,585 bags from the cement factory
at Charkhidadri and the remaining 415 bags were purchased locally against
permits issued by the department concerned. This evidence has been accepted by
the High Court. On the other hand,not only the appellant did not adduce any
evidence to rebut the evidence adduced by the respondent but the appellant as
well as his witness, D.W. 7, admitted in the witness-box that Ramchander
Chowdhary was an honest man. In this state of evidence, the respondent, on whom
the burden of proof lay, discharged that burden and the High Court rightly
found in his favour.
The next facet of the argument is that there
is no evidence in the case that the said statement was one reasonably
calculated to prejudice the prospects of the election of Ramchander Chowdhary.
It is asked, how could the statement deflect the voters from voting in favour
of the said Ramchander Chowdhary, if they did not know that the cinema theatre
that was being built in Ganganagar belonged to Ramchander Chowdhary or his sons
It is further said that there is no evidence in this case that all or any of
the voters knew the fact that the cinema theatre belonged to Ramchander
Chowdhary or his sons. Reliance is placed upon the decisions delivered in the
context of libel actions. In Nevill v. Fine Art and General Insurance Co.
Ltd.(1) Lord Halsbury, L.C., accepted the principle that the questioned
document should be taken in a defamatory sense by those to whom it was
published according to the primary meaning of the language used in it. In The
Capital and Counties Bank Ltd. v. George Henty & Sons(2) for the purpose of
ascertaining whether a statement was defamatory the test whether the
circumstances in which the writing was published, reasonable men, to whom the
publication was made, would be likely to understand (1) L.R. [1897] A.C. 68.
(2) L.R. (1882) 7 A.C. 741.
183 it in a libellous sense. In that case the
House of Lords came to the conclusion that it did not. This test is relied upon
in support of the argument that the voters should have known that the first
paragraph of the poster referred to Ramchander Chowdhary, for without such
knowledge, it could not have prejudiciously affected Ramchander Chowdhary's
chances in the election. We are not dealing with a libel action. We do not,
therefore, propose to refer to similar cases on libel cited at the Bar. We do
not express any opinion thereon. We are only concerned with the express terms
of s. 123(4) of the Act. The only question, therefore, is whether the said
statement was reasonably calculated to prejudice the prospects of Ramchander
Chowdhary's election. On behalf of the appellant it was not contended either
before the Election Tribunal or before the High Court that the voters had no
knowledge, of the fact that the cinema theatre at Ganganagar belonged to
Ramchander Chowdhary or his sons. That apart, as we have pointed out earlier,
the object with which the statement was made is the crucial test. Here it is
established that Ganganagar cinema theatre belonged to Ramchander Chowdhary's
sons. It is proved that Ramchander Chowdhary was the minister-in-charge of the
Rajasthan Canal. He was the only effective candidate against the appellant. The
appellant's intention in making that statement was therefore obvious and that
was to attack the personal character of Ramchander Chowdhary in order to
prejudice his prospects in the election. He must have reasonably calculated
that the voters, or at any rate the voters in and about the locality where the
cinema theatre was being put up, had knowledge of the fact that it was being
constructed by the minister or his sons. It cannot also be said that when a big
cinema theatre at a cost of Rs.
7 lakhs was being put up in Ganganagar, the
voters in and about that place would not have known about the ownership of that
building. The fact that the building was brought in for attacking" the
personal character of Ramchander Chowdhary, a rival candidate, clearly
indicates that the appellant knew that the voters had knowledge of its
ownership and expected that it would create the impression which it manifestly
intended to convey. On these facts, if the High Court held that the statement
was reasonably calculated to prejudice the rival candidate's prospects in
election, we cannot say that the finding is not supported by evidence or
admitted facts placed before the High Court. It was a reasonable inference from
the facts found by the High Court. We, therefore hold that Ex. 3 is hit by s.
123 (4) of the Act and, therefore, the High Court rightly held that the appellant
was guilty of corrupt practice.
184 To appreciate the second contention some
facts may be recapitulated. Hariram, the father of the appellant, was one Of
the candidates who stood for the election. His nomination paper was held to be
valid. But, later on, he withdrew his candidature. In the election petition it
was stated that the appellant got printed from lqbal Printing Press, Sri
Ganganagar, hundreds and thousands of posters and leaflets containing grossly
libellous and highly defamatory imputations against Ramchander Chowdhary and
that the appellant himself and through his workers and supporters got them
published by affixing them at conspicuous places in every village of the
constituency and freely distributed them among the electors. In one of the annexures
the names of the distributor of the posters and leaflets are given as Sheopat
Singh, the appellant, and his father, Hariram, among others. But there is no
allegation that Hariram published the statement believing it to be false or not
believing it to be true.
Under S. 82 of the Act a petitioner shall
join as respondent to his petition any other candidate against whom allegations
of any corrupt practice are made in the petition. Under s. 85 of the Act,
"if the provisions of...... S. 82 have not been complied with, the
Election Commission shall dismiss the petition". Assuming that Hariram was
a candidate within the meaning of s. 82 of the Act, the question is whether
allegations of any corrupt practice were made against him in the petition. The
only allegation made was that the appellant got published through him and
others the said statement; but there was no allegation that Hariram believed
the statement to be false or did not believe it to be true.
In the absence of any such averment, it
cannot be held that there was any allegation of any corrupt practice within the
meaning of S. 8 2 (b) of the Act against Hariram. In that event, as there was
no allegation of a corrupt practice against Hariram, the penal provisions of s.
85 are not attracted. In this context a novel argument has been advanced before
us. Publication with guilty knowledge under s. 123 ( 4) of the Act, the
argument proceeds, is a composite act and it involves two elements, namely, (i)
the statement of fact, and (ii) its publication; and, therefore, all persons
who take part in one or other of the said elements will be guilty of the
corrupt practice, even though some of them have and others do not have the
guilty knowledge. If this argument be accepted, not only the person who makes a
false statement of fact and gets it published through his servant, but his
innocent servant who mechanically obeys the order of his master would be guilty
of a corrupt practice. This contention is obviously untenable.
185 Under s. 123 (4) of the Act mens rea is a
necessary ingredient of the corrupt practice and the person who publishes a
statement, whether he is the author of it or not, does not commit a corrupt
practice, unless he has the requisite knowledge. The sub-section does not
accept the doctrine of constructive knowledge. The High Court has correctly
held that the petition was not liable to be dismissed on the ground that
Hariram was not included as respondent.
In the result, the appeal fails and is
dismissed with costs.
Appeal dismissed.
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