Manmohan Kalia Vs. Yash & Ors
[1984] INSC 73 (2 April 1984)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J) MISRA RANGNATH
CITATION: 1984 AIR 1161 1984 SCR (3) 383 1984
SCC (3) 499 1984 SCALE (1)621
CITATOR INFO :
F 1985 SC 24 (2) R 1985 SC 89 (22,45)
ACT:
Election Laws-Corrupt Practice, allegation
of-Standard of proof must be proved strictly a, a criminal charge and the
principle of preponderance of probabilities would not apply to the
Representation of the People Act, 1951- Credibility and relevance of Needs item
published Application of the principle of inuendo-Represenation of the People
Act, 1951, section 123(4), scope of.
HEADNOTE:
In the election to the Assembly constituency
No-31 Jullundur Cantt., which was held on 31.5.1980, the total votes polled
from the constituency were 47650, out of Which the appellant polled 19710,
whereas the respondent Yash secured 418 votes more i.e. 20128 votes; Therefore,
the appellant sought to challenge the election of Respondent No.
1 on various grounds consisting of corrupt
practises committed by respondent No. 1 which materially affected the result of
the election. According to the appellant, Respondent No. 1 through speeches
either made by him or his friend carried out a vilifying campaign to show that
the appellant was directly connected with the murder of one Asa Ram a harijan
and one of Supporters of Congress (l) party, so as to wean away the votes of
the harijans of the locality and members of the Congress (l) party. The Punjab
and Haryana High Court disbelieved the oral evidence and found no nexus with
the news items etc. and dismissed the election petition. Hence the appeal by
special leave.
^
HELD 1.1 It is well settled that where the
doctrine of inuendo is applied, it must be clearly proved that the defamatory
allegation was made in respect of a person though not named yet so fully
described that the allegation would refer to that person and that person alone.
Inuendo cannot be proved merely by inferential evidence which may be capable of
two possibilities.[386F-G]
1.2 In the instant case, the
evidence-statement of witnesses and the documents produced, do not call for any
inference of any close connection or direct link between the imputations made
against the appellant in 1978 and those made in 1980. In none of the documents
produced by the appellant which refer to the activities of the first
respondent, there is the slightest possible hint that the appellant had
anything to do with the murder of Asa Ram.
Furthermore, the allegations made in 1978
being far too remote and there being no continuous link between those
allegations and the allegations made in 1980, the first category of the charge
against the respondent cannot be sustained, more particularly because in 384
1978 a fresh election was not in the offing because the Janata Government came
into power in 1977 and in normal course would have completed its full term in
1982. Thus, at that time no body could have predicted that the election would
be held only two years later which happened by a sudden spurt of events.
[386E-F; G-H] N. Vimala Devi v. K. Madhusudhana Reddy [1975] 3.
S.C.R. 128 followed.
2.1 It is now well settled by several
authorities of the Supreme Court that an allegation of corrupt practice must be
proved as a strictly as a criminal charge and the principle of preponderance of
probabilities would not apply to corrupt practices envisaged by the Act because
if this test is not applied a very serious prejudice would be caused to the
elected candidate who may be disqualified for a period of six years from
fighting any election, which will adversely affect the electoral
process.[387F-G]
2.2 In the instant case, the evidence-both
oral and documentary-led by the appellant falls short of the standard of proof
required to bring his case within the four corners of section 123(4) of the
Representation of the People Act 1951(1). About the speech made on May 18,
1980, the deposition of PW8 cannot be relied on inasmuch as it is impossible to
conceive of contradictions made by him. If the witness apart from being
interested and partisan, had been present in the meeting throughout, he would
not forget who spoke first. Even P.W 13 cannot be believed since, while
admitting in his cross examination that he did not make a noted of what Yash
had spoken, yet he was able to give full and grotesque details of the speech,
that too, when he was examined in the court after more than a year and half.
[390C-D, 388B-D]
3. It is very difficult for a Court to rely
on news items published in any newspaper on the basis of information gives by
correspondents because that may not represent the true state of affairs. It is
at best a second hand secondary evidence. [388F-G] Samant N. Balakrishna v.
George Fernandez & Ors. [1969] 3 S.C R. 603, reiterated.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2691 of 1982.
From the Judgment and Order dated the 4th day
of June, 1982 of the Punjab and Haryana High Court in Election Petition No.2 of
1980.
Appellant in Person O.P. Sharma, K.R. Gupta,
R.C. Gubrele, and R.C. Bhatia, for the Respondents.
385 The Judgment of the Court was delivered
by FAZAL ALI, J. This election appeal is directed against a judgment dated June
4, 1982 of the Punjab & Haryana High Court dismissing the election petition
filed by the appellant against the respondent. The present appeal arises out of
an election to the Assembly constituency No. 3- Jullundur Cantt., which was
held on 31.5.1980 and the result of which was declared on 3.6.1980. Both the
appellant and respondent No. 1 were the main rival candidates. The total votes
polled from the constituency were 47650, out of which the appellant polled
19710 whereas respondent No. 1 secured 20128 votes, the margin being rather
small, viz., 418.
The appellant sought to challenge the
election of respondent No. 1 on various grounds consisting of corrupt practices
committed by him (respondent No.1) which, according to the appellant,
materially affected the result of the election.
The appellant, who is an Advocate, argued his
case with brevity and ingenuity and fairly conceded that he was not going to
press all the allegations made in the petition but would confine his arguments
only to the allegations pertaining to s. 123(4) of the Representation of the
People Act, 1951 (for short, to be referred to as the 'Act'). In order to
understand the ambit and scope within the confines of which the appellant has
argued his case it may be necessary to extract sub-section (4)- "The
publication by a candidate or his agent or by any other person, with the consent
of a candidate or his election agent, of any statement of fact which is false,
and which he either believes to be false or does not believe to be true, in
relation to the personal character or conduct of any candidate or in relation
to the candidature, or with drawl, of any candidate, being a statement
reasonably calculated to prejudice the prospects of that candidate's
election." In view of the concessions made by the appellant, the case lies
within a very narrow compass. The allegations made by the appellant against the
respondent consist of two categories- (1) speeches having been made by the
respondent or his friends near about the time of the election and after the
respondent was nominated as a candidate, which amounted 386 to serious
character assassination of the appellant by projecting him as a murderer of one
Asa Ram, who died as far back as 1978.
According to the appellant, the respondent
No. 1 carried out a vilifying compaign to show that he (appellant) was directly
connected with the aforesaid murder so as to wean away the votes of the
harijans of the locality and members of the Congress (l) party because Asa Ram
was harijan and one of the supporters of Congress (I) party. In this
connection, the allegations made may be classed under two separate categories:
(a) Utterances, speeches, news items and
articles regarding the allegation that the appellant was directly connected
with the murder of Asa Ram in 1978, and (b) speeches and news items made and
issued by respondent No. 1 on various occasions proximate to the date of the
election.
(2) Similar acts committed by respondent No.
1 in close proximity to the election, i.e., sometime in May 1980.
After having gone through the evidence
statement of witnesses and he documents placed before us, we are unable to find
any close connection or direct link between the imputations made against the
appellant in 1978 and those made in 1980. In none of the documents produced by
the appellant, which refer to the activities of the first respondent, there is
the slightest possible hint that the appellant had anything to do with the
murder of Asa Ram.
Realising this difficulty the appellant
sought the application of the doctrine of inuendo. It is well settled that
where this doctrine is applied it must be clearly proved that the defamatory
allegation was made in respect of a person though not named yet so fully
described that the allegation would refer to that person and that person alone.
Inuendo cannot be proved merely by
inferential evidence which may be capable of two possibilities. Furthermore,
the allegations made in 1978 being far too remote and there being no continuous
link between those allegations and the allegations made in 1980, the first
category of the charge against the respondent cannot be sustained, more
particularly because in 1978 a fresh election was not in the offing because the
Janata Government came into power in 1977 and in normal course would have
completed its full term in 1982. Thus, at that time nobody could have predicted
that the elections would be held only two years later which happened by a
sudden spurt of events.
387 In these circumstances, we would place no
reliance at all so far as the first category of the allegations against the
respondent is concerned. In N. Vimala Devi v. K. Madhusudhana Reddy(') this
Court completely ruled out documents containing instances of corrupt practice
which had nothing to do with the 1972 election with which their Lordships were
concerned in that case and in this connection while overruling an important
document they observed thus:
"We are not impressed by the argument on
behalf of the respondent that Ex. A-57, which shows that even in 1970 a
representation of a similar kind was made, shows that there were many others
out to besmirch the name of the appellant. Ex-A-57 contains many instances
which have nothing to do with the election in 1972 or the setting up of a
Congress candidate in that election.
That is the affinity between Ex. A-48 and
Ex-A1." On a parity of reasoning, therefore, we cannot call into aid the
allegations made as far back as 1978. It is, therefore, not necessary for us to
consider or to go into the evidence offered by the appellant as far as the 1978
incident it concerned.
Coming now to the second category of
allegations, as the appellant has confined his arguments only to the averments
made regarding the application of s. 123 (4) of the Act, the ambit of the case
is greatly reduced . Before examining the allegations, we might mention that
the learned election Judge of the High Court had dealt with all the
allegations, and has given convincing and cogent reasons for holding that they
had not been proved either by oral or documentary evidence. It is now well
settled by several authorities of this Court that an allegation of corrupt practice
must be proved as strictly as a criminal charge and the principle of
preponderance of probabilities would not apply to corrupt practice envisaged by
the Act because if this test is not applied a very serious prejudice would be
caused to the elected candidate who may be disqualified for a period of six
years from fighting any election, which will adversely affect the electoral
process.
Keeping in view, therefore, the strict
standard of proof required in such cases , we proceed to consider the evidence
on which the appellant has relied in order to determine whether or not the
corrupt practice alleged has been proved. In this connection, the first
circumstance stressed before us was that a meeting 388 was convened in Gopal
Nagar, Ward No. 22, on May 18, 1980 where respondent No. 1 and, with his
consent , his friend Sansar Chand, delivered fiery speeches connecting the
appellant with the murder of Asa Ram, which was deposed to by PWs 8 and 13. PW
8 has stated that he attended a meeting on 18. 5.80 at Basti Guzan. The learned
Judge disbelieved his evidence as being wholly improbable. Moreover, there is a
contradiction in his evidence because at one place he says that Yash
(respondent No. 1) spoke first and was followed by Sansar Chand and yet at
another place he says that Sansar Chand spoke first and was followed by Yash.
It is impossible to conceive of such a contradiction if the witness apart from
being interested and partisan had been present in the meeting throughout, he
would not forget the sequence of such an important matter. Another witness
relied upon by the appellant was PW 13 who has also been disbelieved by the
learned Judge, and he had admitted in his cross examination that he did not
make a note of what Yash had spoken and yet he was able to give full and
grotesque details of the speech when he was examined in the court, after more
than a year and a half. Furthermore, he states that when he talked to the
appellant he was told that the respondent already knew about the meeting. This
shows that the appellant himself did not take this witness very seriously. We,
therefore , entirely agree with the appreciation of the evidence of these two
witnesses made by the learned High Court Judge.
The evidence of PWs 8 and 13 however, is
alleged to have been corroborated by a news item published in an Urdu daily
'Milap' whose Chief Sub-Editor (PW 5) was examined by the appellant. But the
witness far from supporting his case has deposed that he had absolutely no
personal knowledge of the Report made by Prashar which was published on
24.5.80.
Moreover, it is very difficult for a court to
rely on news items published on the information given by correspondents because
that may not represent the true state of affairs. In Samant N. Balakrishna etc.
v. George Fernandez & Ors. etc.
(1) while dwelling on the relevance and
credibility of such type of news items this Court made the following
observations:
"The best proof would have been his own
speech or some propaganda material such as leaflets or pamphlets etc., but none
was produced.. A news item without any further proof of what had actually
happened through witnesses is of no value. It is at best a secondhand secondary
evi- 389 dence. It is well-known that reporters collect information and pass it
on to the editor who edits the news item and then publishes it. In this process
the truth might get perverted or garbled. Such news items cannot be said to
prove themselves although they may be taken into account with other evidence if
the other evidence is forcible." In the instant case, there is no evidence
to show the actual record of the speech made by respondent No I or Sansar Chand
and , therefore, the said news item does not advance the case of the appellant
any further, particularly when it has been stoutly denied by respondent No. 1
and PW 5.
Reliance was also placed on another news item
(Ex. PW 25/4) appearing on 20. 5.80 which also has to be rejected on the same
ground as the first item.
The learned Judge has rightly pointed out in
his judgment that PW 25, after he was shown the newspaper dated 12.5.80 (Ex.PW
25/3), has said that he did not know anything else, that is to say, neither the
correspondent revealed the source from which he got the information nor does he
say that he was actually present when the speeches were delivered. On the other
hand, RW-3, Dev Raj Puri, had clearly stated that certain changes were made in
the items which he had filed and this statement of RW-3 was not challenged.
Thus the evidence furnished by the aforesaid
items is also of little value to the appellant. On the same principles of
reasoning the reports of the meetings published in 'Milap' regarding the
speeches delivered on 17th and 28th May 1980 also suffer from the same
infirmity.
Strong reliance was placed on the document,
Ex. RW-24, which had been admitted by the first respondent. We have gone
through the entire speech published in the daily 'Milap' on 18.5.80 and we do
not find even a single word to connect the appellant with the murder of Asa
Ram. In fact, the entire speech reproduced in the said Paper does not at all
show that the speaker viz. the first respondent, made any reference to the
appellant at all. In these circumstances, therefore, even the appellant himself
had to admit before us that as the text of the speech has been reproduced, no
allegation has been made against him.
The appellant however, tried in vain to argue
that the afore- 390 said speech would amount to inuendo because it has
expressly referred to the circumstances under which Asa Ram was murdered. By no
stretch of imagination can the doctrine of inuendo be invoked to the aforesaid
speech. We therefore, reject this contention also.
After a careful consideration of the
documents, the circumstances of the case and the oral evidence of the witnesses
placed before us. We find ourselves in agreement with the judgment of the High
Court. Indeed, it is very difficult to prove a charge of corrupt practice
merely on the basis of oral evidence because in election cases, it is very easy
to get the help of interested witnesses but very difficult to prove charges of
corrupt practice. In the instant case, the evidence-both oral and
documentary-led by the appellant falls short of the standard of proof required
to bring his case within the four corners of s. 123 (4) of the Act.
We must, however, record our appreciation of
the crisp and candid manner in which this case has been presented before us by
the appellant.
For the reasons given above, the judgment of
the High Court is affirmed and the appeal is dismissed but in the circumstances
without any order as to costs.
S.R. Appeal dismissed.
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