P. C. Purushothama Reddiar Vs. S.
Perumal [1971] INSC 333 (2 December 1971)
GROVER, A.N.
GROVER, A.N.
HEGDE, K.S.
RAY, A.N.
CITATION: 1972 AIR 608 1972 SCR (2) 646 1972
SCC (1) 9
CITATOR INFO:
D 1974 SC 66 (62) R 1975 SC 308 (28,50) RF
1978 SC1162 (13) RF 1981 SC1068 (9) F 1983 SC 684 (38)
ACT:
Representation of the People Act 1951--S.
123(6)--When corrupt practice--Evidence Act--S. 35--When police report
admissible in evidence where the officer concerned not examined personally.
HEADNOTE:
The appellant challenged the validity of the
election of the respondent to the Pondicherry Legislature Assembly on various
grounds including corrupt practices. The High Court dismissed the election
petition. In the appeal to this Court, the appellant contended (i) that the
appellant's amendment application of the election petition giving more
particulars of meetings held by the respondent was wrongfully rejected by the
Trial Court on the sole ground that it sought to include additional grounds of
corrupt practice and (ii) that the respondent had actually incurred expenses in
connection with 4 more meetings thereby exceeding the prescribed limit.
The respondent, on the other band, contended
that the various police reports about the meetings relied on by the appellant
were not admissible in evidence as the head constable who covered the meetings
had not been examined in the case- that even if the reports were admissible,
the Court could not look into the contents of those documents and that the
evidence afforded by the Police reports was not relevant.
Allowing the appeal,
HELD : (i) The incurring or authorising of an
expenditure in contravention of s., 77 of the Act is one single corrupt
practice. The incurring or authorising of an expenditure in connection with the
election is Dot by itself a corrupt practice. The corrupt practice is the
incurring or authorising the expenditure of more than the prescribed limit.
Hence, the Trial Court erred in thinking that each item of expenditure is a
corrupt practice by itself. The particulars of corrupt practice failing under
sections 123(6) of the Act may, in an appropriate case, be introduced by
amendment. By doing so, no additional ground of corrupt practice can he said to
have been introduced. [650 H] D. P. Misra and Anr-. v. Kamal Narain Sharma and
Anr. [1971] I .S.C.R. 8, referred to.
(ii) As regards the number of meetings held
by the respondent, although he denied having held any meeting at all however
admitted in his evidence that he had arranged seven meetings between, February
27, 1969 to March 6, 1969.
The appellant, however, had been able to
prove that the respondent had held four more meetings between February 23, 1968
to March 6, 1969. In support of his claim, the appellant examined a number of
witnesses and their evidence was corroborated by a number of applications
(which the respondent made to the Inspector of Police asking permission to hold
the meetings) and by the police reports (which the Head constables made to
their superior after attending the meetings). Therefore, on an average, if the
respondent spent Rs. 32/- per meeting (which he admitted), the total for the 4
extra meetings must have cost the Respondent Rs. 128/-. If this expense was
added to the sum of Rs. 18,86.09 which the respondent had spent for his entire
election, the 647 total expenditure, would exceed the prescribed limit of Rs. 2,000/-.
Hence, the respondent was clearly guilty of corrupt practices mentioned in
123(6). [652 H] (iii) The police reports were marked without any objection.
Hence, it was not open to the respondent to object to their admissibility at a
later stage.
Bhagat Ram v. Kheta Ram and Anr., A.I.R. 1929
P.C. 110, referred (iv) Further as regards the contents of the document, once a
document is properly admitted the contents of that document are also admitted
in evidence although the contents may not be conclusive evidence. [654 F] (v)
The first part of S. 35 of the Evidence Act says that an entry in any public
record stating a fact in issue or relevant fact made by a public servant in discharge
of his official duties is relevant evidence. Quite clearly the reports in
question were made by public servants in discharge of their official duty.
The issue before the Court was whether the
respondent had arranged certain election meetings on certain dates. The police
reports in question were extremely relevant to establish that fact. Hence, it
came within the ambit of the first part of S. 35 of the Evidence Act. [655 B]
Naveneetha Krishna Thelavar- v. Ramesway Pandia Thelavar, I.L.R. 40, Madras 871,
approved.
In the present case, the police reports in
question were by government officials who were not shown to be inimically
disposed towards the respondent or his party. They were made when there was no
dispute and the dispute in question would not have been anticipated. Therefore,
such reports carry greatest possible weight and could not be dismissed lightly.
[656 D] Arjuno Naiko and Ors. v. Madonomohano Naiko & Ors., A. I. R.
1940, P.C. 153, referred to.
CIVIL APPELLATE JURISDICTION: C.A. No. 1239
of 1970.
Appeal under Section 116-A of the
Representation of the People Act, 1951 from the judgment and order dated
February 13, 1970 of the Madras High Court in Election Petition No. 1 of 1969.
K. K. Venugopal, R. Gopalakrishnan and T. L.
Garg, for the Appellant.
M. K. Ramamurthi, Vineet Kumar, S. S.
Khanduja and N. Natrajan, for the Respondent.
The Judgment of the Court was delivered by
Hegde, J. This is an election appeal arising from a judgment of the Madras High
Court. It relates to the Election to the Ariyankuppam Assembly constituency of
the Pondicherry Legis- lative Assembly. The said election was held on March 9,
1969. In that election, the appellant as well as the respondent contested. The
appellant was the Congress nominee and the respondent was. the nominee of the
D.M.K. After the counting of votes, the respondent was declared elected as
having obtained 3774 votes as against 3758 obtained by the appellant. The
appellant challenged the validity of the election of the respondent on various
grounds. In his election petition he alleged that the respondent war, guilty of
canvassing votes on the basis of his caste, that he had, bribed the voters,
that the election was not conducted property, that there was improper reception
of void votes and lastly that he had incurred expenditure more than the
prescribed limit. The charge of bribery was not pressed at the time of the
trial. The other grounds pleaded on behalf of the appellant were rejected by
the High Court and the election petition was dismissed.
After hearing the Counsel for the parties
regarding the allegation relating to the contravention of S. 123(6) of the
Representation of the People Act, 1951 (,to be hereinafter referred to as the
Act), we have come to the conclusion that the respondent was guilty of an
offence falling within that section as he is proved to have incurred
expenditure more than the prescribed limit. We therefore thought that it was
not necessary to go into the other charges levelled against the respondent. The
limit of expenditure prescribed for the constituency was Rs. 2,000/-. In his
election return, the respondent had stated that he had incurred an expenditure
of Rs. 1865/59 P. The trial court came to the conclusion, which conclusion was
not challenged before us, that he had incurred a further expenditure of Rs.
20/50 P. Hence if the appellant is able to establish that the respondent had
incurred at least a further expenditure of Rs. 113/92 P., then the election of
the respondent will have to be set aside under s. 100 ( 1 ) (b) of the Act on
the ground that the respondent was guilty of the corrupt practice falling under
S. 123(6).
The appellant had alleged in his election
petition that the respondent had suppressed in the return submitted by him
expenditure incurred under various heads such as, expenditures incurred in
connection with, the holding of election meetings, hire paid for the cars used
in connection with the elections as well as the price of petrol used for the
cars used in that connection.
We shall first take up the question of
expenditure said to have been incurred in connection with the holding of
meetings. The allegation as regards the same is found in paragraph 8(v) of the
,election petition. The material portion of that allegation reads "The
total expenditure incurred or authorised by the respondent herein in connection
with the election exceeded the limit prescribed under the Act and the Rules
made there under.
The accounts submitted by the respondent to
the Special Officer (Election), Pondicherry showing a sum of Rs. 1,865/59 are
false 649 and unrelated to the actual expenditure incurred or authorised by the
respondent for his purposes. In his election account the respondent has failed
to show the following items of expenditure (v) The respondent held a large number
of election meetings and all these election meetings were conducted in a pandal
where a dias was constructed for the speakers. All these meetings were
installed with loud- speakers, tube-lights and other electrical fittings were
also provided. The construction of the pandal and dais and the installation of
loudspeakers and other electrical equipment such as lights etc. would have at
least cost Rs. 100/- for each meeting except for the meeting at Ariyankuppam on
5-3-69 at 7.30 p.m.
when Shri V. R. Nedunchezian presided in
which meeting several loudspeakers and extra light fittings were provided
costing over Rs. 200.
The dates, the time and the place of the
meetings are as follows :
(i) On 5-3-1969 at about 8.30 p.m. at
Poornamukuppam.
(ii) On 6-3-1969 at about 10.00 p.m. at
Nonamkuppam.
(iii) On 28-2-69 at about 8.00 p.m. at
Manaveli.
(iv) On 5-3-69 at about 9.00 p.m. at
Manaveli.
(v) On 27-2-1969 at about 7.30 p.m. at
Ariyankuppam.
Three other election meetings at Ariyankuppam
and one meeting at Periaveerampatinam were also held at the instance of the
respondent.
(vi) On 23-2-1969 at about 8.00 p.m. at
Ariyankuppam.
(vii) On 24-2-1969 at about 8.00 p.m. it
Ariyankuppam.- (viii) On 26-2-1969 at about 8.00 p.m. at Veerampattinam."
The respondent's plea relating to those allegations are found paragraph 17 of
his written statement. Therein he averred "The allegations made in
paragraph 8 of the petition are totally false and they are hereby denied. Every
one of the allegations made therein are factually incorrect and false.
None of the expenditure alleged therein was
incurred, by the Respondent or under his authority." 650 This is a general
denial. The respondent did not deal with .the various facts stated in the
election petition.
From those averments, it is clear that the
respondent denied having arranged .any of the meeting mentioned in the election
petition.
After the respondent filed his written
statement, the appellant applied for and obtained permission of the court to
amend certain clerical mistakes that had crept into the election petition.
After those amendments were carried out, the respondent filed an additional
written statement. In paragraph 3 of that statement the .averred thus :
"I state that no public meeting took
place either on 27-2-1969 or on 28-2-1969 in the manner as alleged by the
petitioner in paragraph 4(iii) and 4(iv) of the Election Petition.
Consequently, the allegations as amended in paragraph 8 (v) (iii) and 8 (v) (v)
are also ,not correct. I further state that no meeting took place on 5-3-69 at
Ariyankuppam in the manner as alleged by the petitioner in the amendment
application No. 2204 of 1969".
On October 13, 1969, the appellant applied
for amendment of the election petition by giving some more particulars of the
meetings held by the respondent. By that application he sought, to give
particulars of about six other meeting; in addition to what he had already
stated in his election petition, said to have been arranged by the respondent.
The court rejected that application on the ground that by that application,
additional grounds on, corrupt practice were sought to be included in the
election petition and the same cannot be permitted to be done after the period,
prescribed for filing the election petition was over. It may be noted that the trial
of the case started on January 9, 1970. In the order rejecting the amendment
application though the court, referred to the delay in filing the application,
it did not reject is on the ground of laches, nor did it reject the application
on the ground that it was not a bona fide one. The sole ground or which it was
rejected was that it was not 'maintainable as is sought to include additional
grounds of corrupt practice.
In our opinion, the High Court was wholly
wrong in coming to the conclusion that the amendment application moved on
-behalf of the appellant sought to add any new corrupt practice The incurring
or authorising of an expenditure in contravention of s. 77 of the Act is one
single corrupt practice. The incurring or authorising of an expenditure in
connection with the election is not by itself a corrupt practice. The corrupt
practice is the incurring or authorising the expenditure of more than the
prescribed limit. Hence the trial court erred in thinking that each 651 item of
expenditure is a corrupt practice by itself. This position is obvious from the
language of the section itself.
This Court had occasion to go into that
question in D. P. Mishra and anr. v Kamal Narayan Sharma and anr.(1). In that
case this Court came to the conclusion that the particulars of a corrupt
practice falling under s. 123 (6) may in an appropriate case be introduced by
amendment. By doing so, no additional ground of corrupt practice can be said to
have been introduced. If it had been necessary for the case, we would have
allowed that amendment application and sent back the case for further trial.
But for the reasons to be presently stated, we have thought it unnecessary to
do so.
In dealing with the expenditure incurred in
connection with the election meetings, the first and the important question
that has to be decided is as to when the election campaign of the respondent
commenced. According to the appellant, it commenced on February 23, 1969. But
according to the respondent it commenced on February 27, 1969. Decision on this
question has great bearing on the other points arising for decision. Hence we
shall first address ourselves to that question. The learned trial judge did not
give any positive finding on this question. In the course of his judgment he
doubted the evidence of the respondent on this point but by taking a facile
view of the evidence on record, he just rejected the evidence of the appellant
as un- acceptable and wholly accepted the evidence of the respondent as regards
the number of meetings held though he felt that the respondent has not come
forward with a truthful version.
It is true that in election cases oral
evidence has to be examined with great deal of care because, of the partisan
atmosphere continuing even after the election. But it will be wrong on the part
of courts to just brush aside the oral evidence even when the evidence is
highly probable and the same is corroborated by unimpeachable documentary
evidence.
As mentioned earlier, according to the
appellant, the respondent started his election campaign with a well attended
meeting on February 23, 1969 at Ariyankuppam. In support of that version he
examined P.Ws. 3, 4, 7, 13, 16 and 19. Their evidence was corroborated by
Exhts. P. 15 and P. 3. But the learned trial judge rejected this evidence
without examining them. He came to the conclusion that the witnesses examined
are partisan witnesses. Therefore much reliance cannot be placed on their
testimony. But he failed to attach sufficient importance to the tell-tale
evidence (1) [1971] I S.C.R. 8.
652 afforded by Exhts. P. 17 and P. 35. Ex.
P. 15 is an application made by the respondent to the Inspector of Police, 'C'
Circle, Pondicherry. Therein the respondent stated :
"Please grant me permission to hold a
public meeting at Ariyankuppam Cuddalore Road in front of market, on the
occasion of inauguration of my electoral office on 23-2-1969 from 9 to 12 a.m.
and to make use of loud-speakers." The permission sought for was granted
by the Inspector. The Inspector, P.W. 24 deposed that he deputed a Head-constable
to cover that meeting and report about the same. It is gathered from the
evidence of P.W. 24, that in Pondicherry, before holding a meeting, permission
of the police will have to be obtained and it is the usual practice there to
depute a police officer to cover the meetings and report about the speeches
made by the speakers, P.W. 24, further says that he deputed a Head-constable to
cover the meeting to be held in connection with the inauguration of the
election campaign of the respondent and in that connection the Head-constable
in question submitted to him the report Exh. P-35. The report in question was
proved through the Inspector without any objection. The report says that the
election campaign of the respondent was inaugurated by holdings a public
meeting on February 23, 1969 and that meeting was addressed by as many as eight
persons in addition to the respondent. This report was received by the
Inspector on the 25th of February. Despite this clinching evidence afforded by
Exhts. P. 15 and P. 35, the respondent made bold to deny the factum of having
held a meeting on the 23rd. In view of this documentary evidence, the learned
trial judge was unable accept the evidence of the respondent. All the same he
opined that it was immaterial whether the election campaign was inaugurated on
the 23rd or on the 27th, since he was inclined to accept the evidence of the
respondent that he had held only seven meetings and not more. This in our
opinion, is an erroneous approach. As seen earlier, the respondent has denied
having held any meeting on February
23. But this denial cannot be accepted as
true. For the reasons already mentioned we feel satisfied that the respondent's
election campaign commenced on the 23rd February 1969 and in that connection a
meeting was held in Ariyankuppam on that date.
Before proceeding further, we may at this
stage mention that though in his written statement, respondent denied having
held any meeting at all a statement which on the face of it cannot be true-in
his evidence he admitted having arranged seven meetings. This he had to admit
in view of the receipts that be had produced along with his return. In his
evidence he admitted 653 that he held meetings on February 27, 1969, March 5,
1969 and March 6, 1969 at Ariyankuppam. He also admitted that he held a meeting
on March 5, 1969 at Poornamukuppam and on March 6. 1969 at Manaveli and again
on the same day at Veerampatnam. Hence admittedly he held seven meetings. Let
us now proceed to see whether the appellant has satisfactorily proved that the
respondent had held any more meetings. We have earlier come to the conclusion
that he had held a meeting at Ariyankuppam on February 23, 1969.
The appellant alleged that the respondent had
held one more meeting at Ariyankuppam on February 24, 1969. To prove this fact
he had examined P.Ws. 3 and 4. Their evidence is corro- borated by Exh. P-16,an
application admittedly given by the respondent to the police for permission for
holding a meeting on that day and Ex. P.36, the police report sent in that
connection, The learned trial judge did not accept the contention of the
respondent that he had not hold a meeting on Ariyankuppam on February 24, 1969.
Then we come to the meeting alleged to have been held on February 26, 1969 at
Veerampatinam. On this question the trial court has come to the conclusion that
the respondent bad held a meeting at Veerampattinam on February 26, 1969. On
this point the oral evidence adduced by the appellant is corroborated by Ex. P.
17, the application made by the respondent to
the police for permission to hold that meeting and P. 38, the report made by
the police. Then we come to the meeting said to have been held at Manaveli on
February 28, 1969. The respondent himself admitted in his evidence that he did
arrange a meeting at Manaveli on that date.
In his evidence the respondent admitted as
having arranged a meeting at Ariyankuppam on March 6, 1969. According to him he
arranged that meeting but curiously the learned trial judge came to the
conclusion, despite that admission of the respondent that P.W. 6 arranged that
meeting as that witness in his evidence claimed that he arranged that meeting
and spent for the same. The learned trial judge over looked the fact that no
such plea was taken by the respondent in his written statement nor was it his
case in his evidence that meeting was arranged for P.W. 6.
For the reasons mentioned above,we are
satisfied that in addition to the seven election meetings which the respondent
admitted having arranged, the appellant has been able to satisfactorily prove
that the respondent had arranged at least four more meetings.
Now coming to the question as to the
expenditure incurred in collection with those meetings, it is no doubt for the
appellant -L643SupCI/72 654 to prove the same. According to the respondent he
had not maintained any accounts in connection with his election.
The expenditure incurred for his election is
specially within the knowledge of the respondent. He has not adduced any
evidence in that connection. He has totally denied having held those meetings.
That denial for the reasons already mentioned cannot be accepted. Therefore we
have now to find out what would have been the reasonable expenditure incurred
in connection with those meetings. Even according to the respondent for the
seven meetings held by him, he incurred an expenditure of more than Rs. 225/-.
That means on an average he had incurred an expense of about Rs. 32/- per
meeting. This is clearly an underestimate. But even if we accept that to be
correct, for the four meetings referred to earlier, he would have incurred an
expenditure of Rs.
128/-. If this expense is added to the sum of
Rs. 1886/9 p., referred to. earlier, the total expenditure incurred exceeds the
prescribed limit of Rs. 2,000/,'-. Hence the respondent is clearly guilty of
the corrupt practice mentioned in s. 123(6).
Before leaving this case it is necessary to
refer to one of the contentions taken by Mr. Ramamurthi, learned Counsel for
the respondent. He contended that the police reports referred to earlier are
inadmissible in evidence as the Head-constables who covered those meetings have
not been examined in the case. Those reports were marked without any objection.
Hence it is not open to the respondent now to object to their admissibility-see
Bhagat Ram v. Khetu Ram and anr. (1).
It was next urged that even if the reports in
question are admissible, we cannot look into the contents of those documents.
This contention is again unacceptable. Once a document is properly admitted,
the contents of that document are also admitted in evidence though those
contents may not be conclusive evidence.
It was lastly contended that the, evidence
afforded by the police reports is not relevant. This again is untenable
contention. Reports in question were made by government officials in the
discharge of their official duties. Those officers had been deputed by their
superiors to cover the meetings in question. Obviously they were deputed in
connection with the maintenance of law and order which is the special responsibility
of the police. Hence, the question whether those reports were made in
compliance with any particular provision of law is irrelevant.
The first part of s. 35 of the Evidence Act
says that an entry in any public record stating a fact in issue or relevant
fact and (1) A.I.R.1929P.C.110.
655 made by a public servant in the discharge
of his official duty is relevant evidence. Quite clearly the reports in
question were made by public servants in discharge of their official duty.
The issue before the court is whether the
respondent had arranged certain election meetings on certain dates. The police
reports in question are extremely relevant to establish that fact. Hence they
come within the ambit of the 1st part of s. 35, of the Evidence Act. In this
connection we would like to refer to the decision of the Madras High Court in
Navaneetha Krishna Thevar v. Ramaswami Pandia Thalavar(1). Therein the learned
judges observed thus:
"As however the case may not stop here,
we think it right to allow the petitioners in Civil Miscellaneous Petitions
Nos. 845 and 1655 of 1915 for the admission of certain documents rejected by
the Subordinate Judge, namely (1) the decree of the Zilah Court of Tinnevelly,
dated 31st May 1859 in Original Suit No. 4 of 1859, (2) the Takid of the
Collector to the Muzumdar on the death of the raja in 1850, (3) the reply of
the Muzumdar and (4) the Collector's Takid in 1853 on the complaint of the
zamindar's widow as to the conduct of Maruthappa Thevar who according to the
plaintiff's case was the father of Gnanapurani's mother. They will accordingly
be marked as Exhibits XXXIV, XXXV, XXXVI and XXXVII respectively and
incorporated in the record. The learned Advocate-General did not support the
exclusion of the last three on the ground that the copies of correspondence
kept in the Collector's and taluk offices were not signed but contended that
they were not admissible under section 35 of the Indian Evidence Act. We think
however that copies of actual letters I made, in registers of official correspondence
kept for reference and record are admissible under section 35 as reports and
records of acts done by public officers in the course of their official duty
and of statements made to them, and that in the words of their Lordships in
Rajah Muttu Ramalinga Setupati v. Periyanayagam Pillai (2 ) they are entitled
to great consideration in so far as they supply information of material facts
and also in so far as they are relevant to the conduct and acts of the parties
in relation to the proceedings of Government founded upon them." We are in
agreement with the view taken by the Madras High Court in that case.
(1) I.L. R. 40 Mad, 871 at 678 & 870.
(2) [1974] L. R. I.A. 209.p. 238.
656 Now coming to the value to be attached to
the evidence afforded by those reports, we may usefully refer to the decision
of the Judicial Committee in Arjuno Naiko and ors.
v. Modonomohano Naiko and ors.(1) In fact
case a person brought a suit for establishing that lie was the adopted son of a
dismissed Sirdar and as such entitled to succeed to the Sirdarship. In evidence
documents coming from official sources recording statements as to adoption made
to the officials in the locality not merely by the plaintiff himself in the
presence of others but also by other member and by the dismissed Sirdar himself
were produced. These statements were made at a time when no disputes had arisen
and were made in connexion with a matter of local interest viz. the appointment
of a new Sirdar. The Judicial Committee held that the documents carried greatest
possible weight and could not be dismissed as mere self-assertions.
Similarly in this case, the police reports in
question were made by the government officials who are not shown to be
inimically disposed towards the respondent or his party.
They were made when there was no dispute and
the dispute in question could not have been anticipated.- In view of the above
conclusion, it is not necessary to go to the other contentions advanced on
behalf of the appellant.
In the result we allow this appeal, set aside
the order of the High Court, accept the election petition of the appellant and
set aside the election of the respondent. The respondent shall pay the costs of
the appellant both in this Court as well as in the High Court.
S.C. Appeal allowed.
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