Dev Kanta Barooah Vs. Golok Chandra
Baruah & Ors [1970] INSC 21 (12 February 1970)
12/02/1970 BHARGAVA, VISHISHTHA BHARGAVA,
VISHISHTHA SIKRI, S.M.
CITATION: 1970 AIR 1231 1970 SCR (3) 662 1970
SCC (1) 392
CITATOR INFO:
R 1971 SC1262 (21)
ACT:
Representation of the People Act (34 of
1951), s. 123(4)--Statements in leaflet--Comment on educational qualifications
of candidate--Statement of facts and expression of opinion on the political
position of candidate--If amounts to corrupt practice.
HEADNOTE:
The first respondent studied for his intermediate
examination in two colleges one after the other, but never sat for the
examination. He entered government service as a clerk. Sometime after 1943 he
resigned from service and joined the military contract business which was being
carried on by his brothers. In 1952, though he was a member of the Congress
party, he, stood for election against the Congress candidate after promising
not to do so.
Thereafter, he became Chairman of a
Municipality and during his tenure as such, several thousand rupees were taken
away from the Treasury on signatures resembling the first respondent's
signature, and some persons were prosecuted.
Also, while he was Chairman, he issued an
order to the effect that salaries of sweepers were to be paid by the head
clerk. In November 1964, the first respondent resigned his chairmanship. The
-head clerk, instead of paying the sweepers, in December, misappropriated the
money. When the misappropriation was discovered by the, Vice-Chairman, the head
clerk committed suicide in December 1964. In the 1967 election, the first
respondent again stood for election to the State Legislature against the
Congress candidate, once again breaking his written promise not to do so.
However, the appellant was declared elected. The first respondent challenged
the election of the appellant. One of the grounds in the election petition was
that the following false statements as to the personal character of the first
respondent, reasonably calculated to prejudice his prospects of election, had
been published in a leaflet with the consent of the appellant (1) That the
first respondent 'after rolling from several colleges failed to pass the
intermediate examination;' (2) that during the first respondent's tenure as
Chairman there were instances of corruption and chaos: and that the criminal
case in connection with the taking of money from the treasury was pending
hearing at the -time of the publication of the leaflet;
(3) that 'at that time' the head clerk
committed suicide; and (4) that by taking military contracts he helped the
British Government in India during the 1942-movement and by his standing for
election against ,Congress candidates he was guilty of 'treachery' Desadrohita)
and 'breach of faith' (Vishwasghatakta).
On the question whether statements
constituted corrupt practice under s.123(4) of the Representation of the People
Act, 1951,
HELD : (1) In an election it is open to a
candidate to show that his rival candidate is lacking in knowledge and
education and that he is not capable of managing the affairs in -a public body.
The statement in the leaflet only stated that he failed to pass the examination
-and not that he 663 failed at the examination. There was a slight exaggeration
when the leaflet referred to several colleges, but it could not be held to be
-a false statement affecting the personal character, or conduct of the first
respondent. [668 B-E] (2)The imputation was as to the mismanagement of the
affairs of the Municipality by the first respondent, indicating that he was not
a good administrator and not, that he was; himself corrupt. That part of the
statement that the. criminal case was then pending, though incorrect, did not
cast any as person on the conduct or character of the first respondent. [669 H;
670 A-B] (3)The expression 'at that time' interpreted literally would mean that
the suicide was committed while the first respondent was the Chairman, which
was not true, because, he had resigned earlier. But since the opportunity for
the head clerk to misappropriate the money occurred while the first respondent
was the Chairman, it must be held that the allegation made. in the clause is
also substantially correct. Further, there was no suggestion in the statement
that the first respondent himself was corrupt or that the suicide was the
result of his personal corruptions [672 F-H] (4)The vernacular words used for
'treachery' and 'breach of faith' though harsh, were not such -as to lead the
voters to think that the first respondent had a low moral character. The
leaflet was published in reply to the first respondent's leaflet as to why he
left the Congress, giving reasons as to why he was expelled from the Congress.
Care was taken to give the facts from which
inferences were being drawn and the voters could very well perceive for
themselves whether the inference, which was drawn and expressed in strong
terms, was justified or not. The treachery or breach of faith towards the
country refers to the first respondent's help to the British by taking military
contracts at about the time of the 1942-movement, and his treachery or breach
of faith towards the Congress has reference to his standing for election as
against the Congress nominee. Therefore, since the facts were given and only
inferences were drawn, the words used at the time of putting down the
inferences must be held to be only expressions of opinion, on the first
respondent's political position and do not themselves connote any statement of
facts involving moral depravity. Hence, the publication of the leaflet, cannot
be held to constitute corrupt practice under s. 123(4) of the Act. [667 D-E,
673 C-F, H; 674 H; 675 A, D, F-G; 676 D-E] Guruji Shrihari Baliram Jivatode v.
Vithal Rao and Ors. [1961] 1 S.C. Cases 82 and Inderlal v. Bal Singh, [19621
Supp. 3 S.C.R. 114. followed.
Kumara Nand v. Brijmohan Lal Sharma, [1967] 2
S.C.R.
12 distinguished and explained.
Kultar Singh v. Mukhtiar Singh, [1964] 7
S.C.R. 790, Cumberland (Cockermouth Division) Case, (1901) O M&H 155, Ellis
National Union of Conservative Constitutional Association 109 L.T. Jo 493,
Parker's Election Agent and Returning Officer, 6th Edn. p. 91, Halsbury I s
Laws of England 3rd Edn. Vol. 14, para. 394 and Rogers on Elections Vol.II,
20th Edn. p. 368, referred to.
T.K. Gangi Reddy v. M. C. Anjanaya Reddy,,
[1960] 22 E.L.R. 261, MohanSingh v. Bhanwarlal and Ors. [1964] 5 S.C.R. 12 and
Sheopat Singh V. Ram Pratap, [1965] 1 S.C.R.
175, distinguished.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1701 of 1968.
664 Appeal under S. 116-A of the Representation
of the People Act. 1951 from the judgment and order dated July 4, 1968 of the
Assam and Nagaland High Court in Election Petition No. 3 of 1967.
C. K. Daphtary, S. Mohan Kumaramangalam, S.
K. Nandy, V.J. Francis, R. K. Garg, S. C. Agarwala, D. P. Singh S.
Chakravarty, for the appellant.
P.K. Chatterjee, R. B. Datar, B. M. Mahanto
and Rathin Das. for the respondents.
The Judgment of the Court was delivered by
Bhargava, J. The appellant, Dev Kanta Barooah, was declared elected at the last
General Elections to the Legislative Assembly of Assam in 1967, defeating the
four rival candidates who are respondents 1 to 4 in this appeal.
Respondent No. 1, Golok Chandra Baruah, filed
an election petition challenging the election of the appellant on various grounds,
including a charge that false statements as to the personal character of
respondent No. 1 had been published with the consent of the appellant, thus constituting
a corrupt practice under section 123(4) of the Representation of the People
Act, 1951 (hereinafter referred to as "the Act"). This is the only
ground which has been accepted by the High Court of Assam and Nagaland and the
election of the appellant has been set aside on this ground.
In this appeal, consequently, the only
question that falls for decision is whether the High Court was right in setting
aside the election of the appellant on the ground of corrupt practice having
been committed within the meaning of s.
123(4) of the Act. This corrupt practice was
alleged by respondent No. 1 to have been committed by the appellant by
publication of a leaflet which is, for convenience, reproduced below :"Why
Golok Barua was driven away from the Congress ? (Picture of a pair of bullock
with yoke,) Humble submission, One leaflet bearing full of downright falsehood
and false allegation with the Caption "Why I have left the Congress"
has been published and distributed by S ri Golok Chandra Barua in the Samaguri
Constituency.
The patriot voters of Samaguri have
sufficient experience and political consciousness. They would not believe the
abominable and false publicity of Shri Golok Barua. Still for the knowledge of
the public a brief description of the activities of public life of Shri Barua
has been published. From that it will be understood that 665 Sri Golok Barua is
not an actual congress man., He is a driven-out congressman wearing a mask.
1. Golok Barua after rolling from several
Colleges failed to pass the I.A. and at first became a copyist at the Katchery
and thereafter became a Clerk.
At the mass-movement of 42 he earned some
money by doing Military Contracts.
2. In 1952 by entering in the Congress sought
nomination from the Congress from the Samaguri Constituency. The Congress did
not give him nomination as in the '42 Movement he helped the British and
revolted against the Country. After breach of promise he was badly defeated by
standing against Shrimati Usha Barthakur who was a Congress nominee.
3. Again by entreaties he joined the Congress
and on the sudden death of Late Pratap Chandra Sarma Shri Golok Barua became
the Chairman of Nowgong Municipality. Please note some of the instances of
injustice and chaos during his tenure of Office.
(Ka) During his time several thousand Rupees
were taken away from the Treasury unlawfully on signatures resembling to those
of his signatures. The matter is now pending for hearing.
(Kha.) When a huge amount of money withdrawn
from the National Savings was misappropriated the Govt. Examiner of Accounts
declared Sri Golok Barua alone as guilty.
(Ga) At that time also on account of
corruption in the Municipality alone late Dharmeswar Sarma the then Head Clerk
of his time had to commit suicide.
(Gha) While Sri Golok Barua was the Chairman
at night like drunkard went to the Ex-Chairman Dr. Birendra Kishore Guha and not
finding Dr. Guha behaved his wife and daughter unmannerly. After that assaulted
Dr. Guha with shoes in presence of many persons. On that offence Sri Golok
Barua was comp elled to resign his Chairmanship by the Executive Committee of
the District Congress Committee.
4. This time Sri Golok Barua sought for
nominanation from the Congress as a candidate to the Parliament from Kaliabar
Constituency and a candidate to the Legislative Assembly from the Barhampur
Constituency 666 But the Congress refused to give nomination due to his conduct
and Character and due to his treachery towards the Country and the Congress.
Out of that grudge he, again, 'by breaking his written promise to the effect
that he would not go against the Congress if he was not given nomination by the
Congress, has stood as a non-party candidate again from the Samaguri
Constituency and he has published untrue and false propaganda against the
Congress.
5. Due to the offence of the treachery he has
been completely driven away from the Congress for a period of six years by the
Assam Provincial Congress Committee. As a matter of fact Sri Golok Barua has
been driven out from the Congress. These facts have been published for the
knowledge of the vigilant and patriot electors of Samaguri.
Nowgong. Nowgong District Congress 5-2-67
Election Committee." The original leaflet was in Assamese and the above
version of it is in accordance with the official translation prepared in the
paper book. During the course of arguments, however, it was brought to our notice
that, at some places, the translation did not correctly represent the meaning
conveyed in Assamese, so that the Assamese words were read out to us. Further,
our attention was also drawn to the translation accepted by the learned Judge
of the High Court who tried the election petition and who had some knowledge of
Assamese language. We shall indicate later where we consider that the
translation reproduced above cannot be accepted as correctly representing the
text in Assamese language.
The ground taken in the election petition was
that this leaflet contained false statements as to the personal character or
conduct of respondent, No. 1 which were reasonably calculated to prejudice his
prospects of being elected in this election. The learned trial Judge held that
some of the statements of fact made in the leaflet did relate to the personal
character or conduct of respondent No. 1 and that, except for two such
statements which were proved to be true, they were false to the knowledge of
the appellant. It was also held that this leaflet had been published and
distributed with the consent of the appellant, so that the election of the
appellant was set aside. In this appeal, Mr. Daphtary, appearing on behalf of
the appellant, challenged the decision of the High Court in two respects. The
first contention raised by him was that the statements in this leaflet, which
have been held 667 to be false, did not relate to the personal character or
conduct of respondent No. 1. and that the statements which did relate to the personal
character or conduct of respondent No. 1 were proved to be true, so that the
provisions of s. 123(4) of the Act were not attracted. The second contention
was that the High Court was not right in holding that this leaflet had been
published and distributed with the consent of the appellant. Since, after
hearing arguments of learned counsel for both parties, we have come to the view
that the first point raised by Mr. Daphtary must be accepted, we did not
consider it necessary to hear counsel on the second point relating to proof of
consent of the appellant to the publication of this leaflet.
The leaflet purports to have been published
on behalf of the Nowgong District Congress Election Committee. It is admitted
that respondent No. 1 wanted to be sponsored as the candidate for the
Legislative Assembly by the Congress Party in this general election, The
Congress Party, however, sponsored the candidature of the appellant, whereupon
respondent No., 1 stood for election as an independent candidate. In this background,
respondent No. 1 issued a leaflet explaining why he had left the Congress and
it was in reply to that leaflet that the Nowgong District Congress Election
Committee issued the leaflet in question. The leaflet, thus, begins with the
caption "Why Golok Barua was driven away from the Congress ?" The
leaflet thereafter purports to give the reasons why he was expelled from the
Congress, and the facts stated in it are divided into five paragraphs.
The first paragraph mentions that respondent
No. 1 after rolling from several Colleges failed to pass the Intermediate
Examination and at first became -a copyist at the Kachery and thereafter became
a Clerk. At the massmovement of 1942, he earned some money by doing Military
Contracts. The High Court has held that this paragraph amounts to publication
of false statement covered by s.
123(4) of the Act inasmuch as it is incorrect
that respondent No. 1 rolled from several colleges and that at the mass
movement of 1942 he earned some money by doing military contracts. The evidence
disclosed that respondent No. 1 studied for his Intermediate Examination in
only two Colleges one after the other and did not move from college to college.
It was also found as a fact that he did not pass the Intermediate Arts Examination
and that the reason was that he could not -appear at the Examination at all due
to the death of his father. He did not fail at that examination. The further
finding was that he himself was in government service at the time of the
movement of 1942, so that he could not have done any military contract work in
that year. It was only later on that he resigned and joined the 668 military
contract business which was being carried on by his two brothers. The High
Court was of the view that the publication of these statements was bound to
lower respondent No. 1 in the opinion of the voters and, consequently, this
publication amounted to a corrupt practice. As urged by Mr. Daphtary, we are
unable to agree that the publication of the facts in this paragraph can be held
to amount to false statements as to the personal character or conduct of
respondent No. 1. In an election, it is always open to a candidate to show that
his rival candidate is lacking in knowledge in education and is not capable of
managing the affairs properly in any public body. The intention in the first
part of paragraph 1 of the leaflet was to inform the voters of the educational
qualifications of respondent No. 1. He did move from one college to a second
one during his period of study for the Intermediate Arts Examination. May be,
that there is a slight exaggeration when the leaflet mentions that he rolled
from several colleges; but such an exaggeration is quite natural on occasions
when canvassing is going on for an election.
It is to be noted that the leaflet does not
state that respondent No. 1 failed at the Intermediate Arts Examination. All it
says is that he failed to pass that Examination which has been admitted as
being perfectly true by respondent No. 1 himself. He failed to pass, because he
did not appear at the examination. Such a statement cannot, in our opinion, be
held to be a false statement affecting the personal character or conduct of
respondent No. 1. The second part of this paragraph can be conveniently dealt
with while discussing the facts mentioned in paragraph 2.
In paragraph 2 of the leaflet, the reason why
the Congress did not give him nomination is given. It is stated, that in the
1942 movement, he helped the British and revolted against the country. The
expression "revolted against the country" is a translation for the
Assamese word "Deshdrohita" It is true that the High Court has come
to the finding of fact that in 1942 respondent No. 1 was in government service
working as a Clerk and it was only later on, after 1943, that he actively
participated in the business of his brothers of taking military contracts for
the British. The trend of the evidence, however, shows that his brothers had
been carrying on the military contracts business even earlier than 1943. Even
for the later period, respondent No. 1 tried to deny that he actually
participated in the military contract business with his brothers; but, when
cross-examined in detail and confronted with a power of attorney in his favour,
he had to make admissions which clearly show that he was 669 taking part in
that business. It appears to be quite likely that, even before he actually
resigned government service and joined the business of his brothers, he may
have been assisting them, so that the allegation that he helped the British in
1942 movement by taking military contracts cannot be said to be a false
statement; at best, there may be a slight errors about the period during which
he did that work. Again, the aspect that he was helping the British by taking
military contracts relates to a reflection on his political conduct in siding
with the British Government rather than joining the Congress which was carrying
on a movement against the British for achieving independence of the country. It
was in this background that his activities were described by using the word
"Deshdrohita" in this pamphlet. Whether it amounted to
"deshdrohita" or not may be a disputed question. Members of the
Congress, who were carrying on the agitation against the British for achieving
independence of the country, could very legitimately think that anyone who
helped the British at that time was guilty of "deshdrohita" inasmuch
as his activities were against the interests of our country. This expression
was also, therefore, used to describe the nature of his activities which, in
fact, related to the political situation at that time. It cannot be said that
this paragraph reflects on the personal character or conduct of respondent No.
1, as there is no imputation of any depravity or immorality in this paragraph.
Paragraph 3 is the principal paragraph in
which the conduct of respondent No. 1 has been criticised.
Admittedly, he was the Chairman to the
Nowgong Municipality, and the principal part of this paragraph asks the voters
to note some of the instances of injustice and chaos during his tenure of
office. In Assamese, the two words which have been translated as
"injustice" and "chaos" were "Durniti" and
"Arajakta" Our attention was drawn by learned counsel for respondent
No. 1 to the statement of Devendra Nath Bora, the writer of this leaflet, where
he stated that he meant by these words "corruption" and "lack of
administration". The High Court took these words to mean
"corruption" and "anarchism" as these are the English words
used in the judgment of the High Court. It may, however, be noted that, in this
part, it is not stated that respondent No. 1 himself was corrupt. The
imputation only is that, during his tenure of office, there were instances of
corruption and chaos.
Thereafter, the four instances are given. It
cannot, therefore, be held that the leaflet was intended to convey to the
readers that respondent No. 1 was himself corrupt.
The impression that would be expected to be
created would be that be that his administration as Chairman of the Municipality
was no unsatisfactory that corruption and chaos prevailed in the affairs of the
Municipality. The imputation, 670 therefore, was as to mismanagement of the
affairs of the Municipality by respondent No. 1, indicating that he was not a
good administrator. The leaflet was not intended to convey to the voters any
reflection on the personal character of respondent No. 1.
In clause (Ka), the instance given is that,
during his time, several thousand rupees were taken away from the Treasury
unlawfully on signatures resembling his signatures and that the matter was
still pending for hearing when the leaflet was issued. Mr. Daphtary drew our
attention to the admissions made by respondent No. 1 himself when he was in the
witness-box that several thousand rupees were, in fact, drawn from the Treasury
in the municipal accounts on the basis of some cheques containing signatures
which resembled the signature of respondent No. 1. In substance, therefore, the
truth of the statement contained in this clause is admitted. The only part of
the statement in this clause, which is found to be incorrect, is that the
matter. was pending for hearing even at the time of the election It appears
that the criminal case relating to that incident had been. decided earlier. The
part of the statement, which was not true,. did not, by itself, contain any
statement relating to the conduct or character of respondent No. 1.
The first sentence, which cast reflection on
respondent No.1 by indicating that the management of the affairs of the Municipality
in his time was not good and successful, has been admitted to be true.
Consequently, this clause cannot be held to constitute corrupt practice under
S. 123(4) of the Act.
In clauses (Kha) and (Cha), there are,
undoubtedly, statements which reflect on the personal character and conduct of
respondent No. 1. Clause (Kha) mentions that, when a huge amount of money
withdrawn from the National Savings was misappropriated, the Government
Examiner of Accounts declared Sri Golok Barua alone as guilty. The word
"guilty", in fact, is not the correct translation for the Assamese
word which was "'Daee" The learned Judge of the High Court translated
this word as "responsible in his judgment, which appears to us to be
correct. The' learned Judge also held that the allegation contained in this
clause has been proved to be true. The report of the Government Examiner of
Accounts was brought to our notice. In that report, the Auditor wrote "The
entire responsibility for their encashment and credit to the fund rests with him
and -the fact that the accounts were maintained by the Head -Assistant does not
absolve the Chairman of his responsibility in this connection. The Chairman, .
Sri G. C.
Barua, stands 671 fully liable for the loss,
which should be recovered from him now." The contents of clause (Kha) do
not go beyond what was found by the Auditor in his report, the relevant part of
which has been reproduced by us above. It is true that this statement, to some
extent, reflects on the personal character of respondent No. 11 inasmuch as it
states that he was held responsible for the misappropriated money; but, that
being a true fact, its publication has rightly been held by the High Court not
to amount to corrupt, practice.
Similarly, in clause (Gha), there is mention
of an incident when respondent No. 1, while Chairman of the Municipality, is
alleged to have gone at night like a drunkard to the house of Ex-Chairman, Dr.
Birendra Kishore Guha, and, not finding Dr.Guha, "behaved with his wife
and daughter unmannerly". It is further stated that, after that, he
assaulted Dr. Guha with shoes in the presence of many persons, and that, on
that offence, he was compelled to resign the Chairmanship by the Executive
Committee of the District Congress Committee. The High Court has held that the
facts stated in this clause are also true. The only point that Mr. Chatterjee,
counsel for respondent No. 1, could urge was that, according to the evidence of
the daughter of Dr.Guha, there was no misbehaviour with the wife and the
mention of the wife in this clause was intended to convey an idea of some
immoral behaviour on the part of respondent No. 1 which is not supported by any
statement of fact. We have examined the evidence of the daughter, Miss Sipra
Guha alias Miss Lily Guha, who related what happened during that night.
According to her, she and her mother were inside the house when someone knocked
at the door calling out "Dr. Guha, Dr. Guha". At the instance of her
mother, she opened the door and the gentleman who was there caught hold of her
clothes just under the neck and pulled her towards him. At this, -she shouted
for her mother who came to the scene and recognised respondent No. 1.
Respondent No.1 then angrily asked where Dr. Guha was and whether he was inside
the house. Her mother replied to him that her father had gone to see the Jatra
performance. She also got angry and protested against his being there at such a
'time. She also found smell of alcohol coming from the mouth of respondent No.
1. The version given by this witness seems to fully justify the statement
contained in clause (Gha). The mention of the wife is with reference to
unmannerly behaviour towards her. It does not say that any attempt was made by
him to assault her. The High Court was, therefore, quite correct in recording
the finding that these allegations contained in this clause were true and, not
672 being false statements, they could not constitute corrupt practice under S.
123(4) of the Act.
There remains clause (Ga) of paragraph 3 in
which it is stated that, at that time also, on account of corruption in the
Municipality alone, late Dharmeswar Sarma, the then Head Clerk of his time, had
to commit suicide. Some of the ingredients of this clause have been found by
the High Court to be incorrect. The facts found show that, while respondent No.
1 was Chairman, he issued an order to the effect that the salaries of sweepers
were to be paid by the Head Clerk instead of the Accountant who wasto hand over
the money for that purpose of the Head Clerk Respondent No.1 resigned the
Chairmanship in November,1964 and his resignation was accepted on 21st
November, 1964. It was subsequently of in the month of December, 1964 that the
salary of the sweepers was not paid by the Head Clerk, Dharmeswar Sarma, who
had received the money for this purpose. Under the orders of respondent No. 1,
the payments had to be made by the Head Clerk in the presence of the Chairman
or the Vice-Chairman or some, other member nominated for the purpose by the
Chairman. The Vice Chairman held Dharmeswar Sarma responsible for the money
when he found that the sweepers had not been paid and, thereupon, directed
Dharmeswar Sarma to make good the shortage and pay up all the sweepers by 1
p.m. on 10th December, 1964 positively, failing which legal action would be
taken against him. This order was not carried out and, instead, on 10th
December, 1964, Dharmeswar Sarma committed suicide. These facts, no doubt,
indicate that the statements made in clause (Ga) of paragraph 3 are not
strictly correct. The main allegation that Dharmeswar Sarma, the Head Clerk,
committed suicide and that it was the result of corruption which was going on
in the Municipality are borne out by the facts found. The expression used
"at that time" in this clause, if interpreted literally, would mean
that the suicide was committed while respondent No. 1 was himself the Chairman
which is not true inasmuch as he had resigned earlier. It is, however, to be
noted that the opportunity for Dharmeswar Sarma to misappropriate the money
occurred only because of an order which had been passed earlier by respondent
No. 1 while he was Chairman of the Municipality. In these circumstances, it has
to be held that the allegation made in this clause is also substantially
correct. The allegation was intended to convey that there was corruption in the
Municipality at the time when respondent No. 1 was the Chairman and that it was
so has been found to be true. There was no suggestion in this clause that
respondent No. 1 himself was corrupt and that the suicide was the result of his
personal corruption.
Thus, this part of the 673 leaflet also
cannot constitute corrupt practice under s. 123(4) of the Act.
Then, we come to paragraphs 4 and 5 of the
leaflet in which the main objection is to the mention of his treachery towards
the country and the Congress. In paragraph 4, it is stated that the Congress
refused to give nomination due to his conduct and character and due to his
treachery towards the country and the Congress, while paragraph 5 states that,
due to the offence of treachery, he had been completely driven away from the
Congress for a period of six years by the Assam Provincial Congress Committee.
The word "treachery" is a translation for the Assamese word
"Vishwasghatakta" which probably can be more appropriately translated
as "breach of faith", though treachery may also be one of the
translations for this word. On the face of it, the treachery or breach of faith
towards the country again refers to his help to the British by taking military
contracts at about the time of the movement of 1942, while his treachery or
breach of faith towards the Congress has reference to his standing as a
candidate against the Congress nominee in ,:he earlier election as well as in
this election. Learned counsel for respondent No. 1 urged that the terms used
in this leaflet, viz."Deshdrohita" and "Vishwasghatakta"
are very strong terms and are, bound to be taken by voters in such a light that
they would have a low opinion about the -character of respondent No. 1. It is,
however, to be noted that these words have been used in the context of facts on
the basis of which the writer of this leaflet thought that respondent No. 1 had
'been guilty of "Deshdrohita" and "Vishwasghatakta". It is,
therefore, really an expression of opinion about respondent No. 1 based on
facts. These words do not themselves connote any statement of fact which can
be, said to be false.
In this connection, learned counsel for
respondent No. 1 relied on the decision of this Court in Kumara Nand v.Brijmohan
Lal Sharma,(') where, in a poem, the candidate was described as the
"greatest of all thieves" The Court held that this description was
not a mere opinion and that, when the candidate was called the greatest of all
thieves, a statement of fact was being made as to his personal character or
conduct. There are two features which distinguish that case from the case
before us. First, a statement that a person is a thief clearly imputes to him
moral depravity, while statements saying that he has committed
"Deshdrohita" or "Vishwasghatakta" only reflect on his
conduct in the political field and do not bring in any element of moral
depravity. Secondly, in that case, no facts were given from which an inference
might have been sought to be drawn that (1) [1967] 2 S.C.R. 127.
L8Sup.Cl/70-13 674 the candidate was the
greatest of all thieves, while, in the case before us, objectionable words have
been used after giving the facts, on the basis of which it was held that the
conduct of respondent No. 1 had been undesirable so as to be described as
"Deshdrohita" and "Vishwasghatakta". Counsel for the
appellant, in this connection, relied on a passage at page 91 of Parker's
Election Agent and Returning Officer, 6th Edition, which is to the following
effect -."But the following have been held not to be within the provision:a
statement which imputed that the candidate was a traitor, and was one of
certain persons who were in correspondence with the enemy shortly before the
South African war broke out in 1899." This passage is based on the decision
in Ellis v. The National Union of Conservative and Constitutional Association,
109 L.T. Jo. 493 which book has not been available to us. Based on the same
case, it is stated in note (a) at page 227 under paragraph 394 of Halsbury's
Laws of England, 3rd Edn., Volume 14, that "The words 'Radical traitors'
were held to be not within the provision, as being a statement of opinion
rather than of fact." Counsel for respondent No. 1, however, drew our
attention to the fact that in the case of Kumara Nand(1) this Court did not
rely on Parker's version of the decision on the ground that in Rogers on
Elections, Vol. II, 20th Edn., at page 368, the facts given indicated that
there was no statement of fact with respect to the candidate himself that he
was a traitor and all that was said was that Radical members of the House of
Commons were in correspondence with the Boers and the candidate happened to be
one of the Radical members.
On this ground, the Court did not choose to
accept the dictum reproduced by Parker. It, however, appears that, even in
Rogers on Elections, it was mentioned, in addition to the facts noted in that
case by this Court, that "any false statements were of opinion only and
not of fact".
This part of the sentence in Rogers on
Elections does not seem to have been brought to the notice of the Court. It
appears that, apart from the allegation that Radical members of the House of
Commons were in correspondence with the enemy, there must have been an
inference drawn that the candidate was a traitor and it is with reference to
this last statement that Rogers mentions that the false statements were held to
be matters of opinion only and not of fact. In any case, even if we do not rely
on the principle laid down in that case in England, we are still of the view
that, in the present case where the statements (1) [1967] 2 S.C.R. 127.
675 of fact are given and only inferences are
drawn, the words used at the time of putting down the inferences have to be
held to be expressions of opinion and not statements of fact.
Reliance was also placed on behalf of
respondent No. 1 on the quotation from the decision in T. K. Gangi Reddy v. M.
C. Anjaneya Reddy(') reproduced in the case of Sheopat Singh v. Ram Pratap(2)
which is to the following effect -"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?" This view expressed in that case is also not applicable to the
case before us, because here the objectionable words have been very clearly and
obviously used as inferences drawn by the writer from statements of fact given
in the leaflet itself. Reference was also made by counsel for respondent No. 1
to the decision of this Court in Mohan Singh v. Bhanwarlal & Others(')
where it was held that the leaflets in question clearly implied that the
candidate had misappropriated the fund collected by him, and this was held to
be a statement of fact constituting a corrupt practice under s. 123(4) of the
Act. In that case, again, the imputation was of a nature that affected the
personal character of the candidate indicating that he had been dishonest in
misappropriating money, while, in the case before us, no such facts have been
found.
It is quite clear that these words
"Deshdrohita" and "Vishwasghatakta" have been used in this
leaflet only to bring into light the conduct of respondent No. 1 which was
adverse to the policies of the Congress and, at one stage, against the
interests of the country. Possibly, milder words could have been used to
describe his conduct on those occasions, but even the use of strong words is
not very unnatural at the time of elections. In judging whether the use of such
words can be held to be a corrupt practice, we have to keep in view the principles
indicated by this Court, how such document should 'be read, in the case of
Kultar Singh v. Mukhtiar Singh('). The Court held :
"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 deter(1) [1960] 22 E.L.R. 261.
(3) [1964] 5 S.C.R. 12.
(2) [1965] 1 S.C.R. 175,179, (4) [1964] 7
S.C.R.490.
676 mined 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
in the cold atmosphere of a judicial chamber, some allowance must be made and
the impugned speeches or pamphlets must be construed in that light. In doing
so, however, it would be, unreasonable to ignore the question as to what the
effect of the said speech or pamphlet would be on the mind of the ordinary
voter who attends such meetings and reads the pamphlets or hears the
speeches.", Examined on these principles, it would be clear that the words
that were used, though harsh, were not such as to lead the voters to think that
respondent No. 1 had a low moral character. Care was taken to give the facts
from which inferences were being drawn and the voters could very well perceive
for themselves whether the inference, which was drawn and expressed in these
strong terms, was justified or not. Schofield in his book on Parliamentary
Elections, 2nd Edition, at page 437, has reproduced a quotation from a decision
of Darling, J.in Cumberland (Cockermouth Division) Case('), where he said:-"You
must not make or publish any false statement of fact in relation to the
personal character or conduct of a candidate; if you do, it is an illegal
practice. It is not an offence to say something which may be severe about
another person nor which may be unjustifiable nor which may be derogatory
unless it amounts to a false statement of fact in relation to the personal
character or conduct of such candidate; there is a great distinction to be
drawn between a false statement of fact which affects the personal character or
conduct of a candidate and a false statement of fact which deals with the
political position or reputation or action of the candidate. If that were not
kept in mind, this statute would simply have prohibited at election times all
sorts of criticism which was not strictly true relating to the political
behaviour and opinions of the candidate. That is why it carefully provides that
the false statements in order to be an illegal (1) [1901] 5 O. M. & H. 155.
677 practice, must relate to the personal
character and personal conduct." This passage was quoted with approval by
this Court in Guruji Shrihari Baliram Jivatode v. Vithalrao and Others(').
It is to be noted that Darling, J., held that
a false statement of fact, which deals with the political position or
reputation or action of a candidate, cannot be held to be a corrupt practice.
The imputations that have been made in paragraphs 1, 2, 4 and 5 of the leaflet
and which have been found to be false in the case before us clearly relate to
the political position, reputation or action of respondent No. 1. A similar
distinction was also drawn by this Court in the case of Inder Lal v. Lal
Singh('). All these cases clearly indicate that imputations of the type which
are in question in the leaflet before us and which may, to some extent, be
false or inaccurate cannot be held to be false statements as to the personal
character of respondent No. 1 and cannot, therefore, constitute corrupt
practice under s. 123(4) of the Act. The only statements, which did relate to
the personal character of respondent No. 1, have been found to be true.
In support of his argument, counsel for
respondent No. 1 drew our attention to the evidence of some of the witnesses
examined on his behalf in order to show what was the reaction of this leaflet
on the various voters. P.W. 2, Shashi Nath Bardoloi, stated that his own
reaction was that this leaflet had very much scandalised respondent No. 1 and,
when asked what he remembered about the leaflet, he mentioned that respondent
No. 1 could not pass the Intermediate Examination, though he rolled from
College to College, whereafter he joined as a copyist and then became a clerk
at Nowgong Court, that there was an allegation that somebody withdrew some
money from the treasury with the forged signature of respondent No. 1 about
which a case was pending, and that, for his fault, one Head-clerk of the
Municipality committed suicide. It is to be noticed that none of the facts
given in the leaflet casting reflection on the personal character of respondent
No. 1 seem to have impressed him or stuck in his mind. He also stated that some
persons, who were going to vote for respondent No. 1, decided not to do so
after the issue of this leaflet; but, when asked to name even one of those
persons, he could not do so.
The evidence of the next witness P.W. 3, Golok
Chand Saikia, is even more unsatisfactory, because he did not give his own
reaction to the leaflet at all and only stated that, after its publication,
most of the people who were in favour of respondent No. 1 changed their minds
about respondent No.
1, but, again, he could not give (1) [1969] 1
S.C. Cases 82.
(2) [1962] 3 Supp. S.C.R. 114.
678 the name of even one single person who
wanted to vote for respondent No. 1 and did not in fact do so.
P.W. 4 is Bhola Ram Das. According to his
evidence, he carried the impression that this leaflet had stated that
respondent No. 1 had misappropriated some money from the Congress and,
consequently, he changed his mind about giving vote to him on receipt of this
leaflet. On the face of it, there is nothing at all in the leaflet to justify
his inference, as there was no suggestion at all of any misappropriation of
money by respondent No. 1, much less money belonging to the Congress. He
purported to state that he had read the leaflet himself, though, when
cross-examined and asked if he could read Assamese, he admitted that he was
almost illiterate.
The next witness P.W. 5, Hara Kanta Bora,
also stated that, on reading the leaflet, he got the impression that respondent
No. 1 was a man of bad character, the main impression which was carried by him
being that respondent No. 1 had some bad relationship with the wife of Dr.
Guha.
To test the veracity of this witness, he was
asked which candidate he had worked for in this election and he stated that he
had worked for the appellant, having been appointed as his polling agent. When
further cross-examined, he was unable to state what the duties of a polling
agent were, while evidence has been led to prove that another person of the
same name had worked as polling agent of the appellant.
This leads to the inference that this witness
falsely posed to be the polling agent of the appellant and no reliance can,
therefore, be placed on the evidence of such a witness.
The last witness, whose evidence was brought
to our notice, is P.W. 6 Liladhar Barua who stated that, on reading this
leaflet, he gathered the impression that respondent No. 1 was a man of bad
character and that it was also stated in it that respondent No. 1 took the side
of the military and committed atrocities on the people in 1942 movement period.
In his case, again, the mention of commission
of atrocities in 1942 movement could not have been inferred from any statement
at all contained in the leaflet. Counsel for respondent No. 1 stated that the
witness knew that atrocities were committed in 1942 and, consequently, he drew
this inference from the mention of respondent No. 1 in connection with that
movement stating that he had sided with the British. This witness was scarcely
five years old in 1942 and he could not have any recollection of atrocities
committed about the year 1942, so that the suggestion made by counsel for
respondent No. 1 offers no explanation. It is clear that all these witnesses
have merely tried to favour the case of respondent No. 1 and their evidence relating
to the impression created by the leaflet is of no value at all. In the
circumstances, the view we have formed above on our own assess679 ment of the
material contained in this leaflet does not require to be revised on the basis
of this evidence. The publication of the leaflet, as we have held above, cannot
be held to constitute corrupt practice under s. 123(4) of the Act.
The appeal is, consequently, allowed, the
decision of the High Court is set aside and the election petition is dismissed
with costs in both Courts.
W J.P.S. Appeal allowed.
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