M.J. Zakharia
Sait Vs. T.M. Mohammed & Ors [1990] INSC 161 (25 April 1990)
Sawant,
P.B. Sawant, P.B. Sharma, L.M. (J)
CITATION:
1990 SCR (2) 719 1990 SCC (3) 396 JT 1990 (2) 404 1990 SCALE (1)816
ACT:
Representation
of People Act, 1951: Sections 40, 83, 100, 123(4) and 127-A.
Election--Corrupt
practice--Pleadings and proof of--Requirements-Oral testimony--Corroboration by
contempo- raneous documents-Need for.
Statement
maligning personal character and conduct of candidate-Innuendo meaning to be
proved by special or ex- trinsic facts-Statements must be proved to have been
reason- ably calculated to prejudice the prospects of the candidate.
Electoral
offence--Complaint under s. 127-A of the Act and s. 171/PC--Evidence of corrupt
practice.
Libel
action and corrupt practice--Difference between.
Status
of election agent--Almost similar to that of candi- date.
HEAD NOTE:
In the
1987 election to Kerala Legislative Assembly the appellant contested against
the first respondent.
The
appellant and respondents belonged to two different fronts, each consisting of
several political parties. The appellant was declared elected, by a margin of
1873 votes over his nearest rival, the first respondent.
The
first respondent filed an election petition in the High Court claiming that the
appellant's election was void and that he should be declared elected in place
of the appellant. In support of his contention, he alleged various corrupt
practices on the part of the appellant. The High Court negatived all except two
of the allegations, viz., (i) printing and publication on March 22, 1987, a day
prior to the election, pamphlets containing a news item in daily "Malayala
Manorama" dated May 22, 1983, and (ii) publication of a wail poster,
maligning the 720 personal character and conduct of the first respondent.
The
High Court held that both the said acts amounted to corrupt practices within
the meaning of Section 123(4) of the Representation of People Act, 1951 and
were sufficient to void the election.
This
appeal under s. 116A of the Representation of People Act, is against the High
Court's judgment.
Allowing
the appeal, this court,
HELD:
1.1.
As regards the pamphlets, the first respond- ent in his election petition had
relied upon an innuendo, and the innuendo was based upon the fact that,
firstly, he was a Marxist leader and, secondly, he was arrested for harbouring
the murderers. However, in the election petition, no averment was made that it
was because he was a Marxist leader and was also arrested for harbouring the murderers
that the electorate was likely to construe the said two statements as accusing
him as the murderer. No facts were pleaded in the Election Petition whereby the
electorate would gather an impression that the first respondent was the
murderer of the said four victims. [733B-C; 746 E-F]
1.2.
Barring his own testimony, all other evidence led by the first respondent is
also totally silent on this aspect of the matter. None of his witnesses has
stated anywhere that the contents of the pamphlet had made out the first
respondent as the murderer of the four victims or even that they were capable
of doing so. On the other hand, all his witnesses without exception are
unanimous that after reading the pamphlet the impression it created on them was
that it referred to an incident which had taken place on the previous day or to
an earlier incident and nothing more.
None
of the witnesses has stated that the said pamphlet even remotely connected the
first respondent with the murders.
The
impression conveyed by the document that the Marxists or Communists were
murderers and therefore the electorate should not vote for them and hence it
was unfavourable to the first respondent, was not an impression about his per- sonal
character/ conduct. It was an impression at best about his political character/
conduct. In particular there was no impression that he was the murderer or one
of the murderers.
Although
the first respondent has also added at the end that many persons who gathered
such an impression, viz., that he was meant by the publication, had contacted
him over phone, he admitted that he did not examine anyone from among the said
persons. This is a telling circumstance against him because he had 721 followed
as a witness after all his witnesses were examined, and he knew that none of
his witnesses had stated that they had connected the imputations in the
publication with him.
On the
other hand, as stated earlier, not only all his witnesses had stated that they
had gathered the impression that the incident had taken place the previous day
but he himself was of the view that the publication was meant to create such
impression and that it did so. Hence, there was no reason for the electorate to
connect him with the said incident even remotely. On his own testimony as well
as on the testimony of his witnesses, therefore, it is clear that the
publication was intended to create an impression and did create an impression
that the incident of murders had taken place a day previous to the election. If
that is so, then the publication and the two allegedly offending statements in
the same did not connect him with the murders much less had they called him a
murderer. Even his arrest for harbour- ing the accused in the old incident of
murders was not capable of identifying him as the murderer in the eyes of the
people. None knew who were the accused and who were arrested in connection with
the murders which were committed the previous day. The people, however,
certainly knew that the first respondent was not arrested in connection with
the said murders. Hence the extrinsic facts which the first respondent stated
in his testimony for the first time even if they were given in the pleadings
would not have spelt out the corrupt practice. For those facts in the face of
the assertion of the first respondent himself were incapable of identifying him
as the murderer in the eyes of the elector- ate. For these reasons, the
extrinsic facts given for the first time by the first respondent in his
testimony were incapable of identifying him as the hand behind the murders or
as the murderer in the eyes of the people. [746F-H; 751A-B; 755D-H; 756A-B]
1.3.
In the absence of the extrinsic facts supporting the innuendo meaning of the
publication, the petition lacked the statement of material facts for spelling
out the corrupt practice complained of. Either, therefore, the allegation of
the corrupt practice should have been struck off or the petitioner ought not to
have been allowed to lead evidence in support of it. [756C]
2.1.
Where the defamatory words complained of are not defamatory in the natural or
ordinary meaning, or in other words, they are not defamatory per se but are
defamatory because of certain special or extrinsic facts which are in the
knowledge of particular persons to whom they are ad- dressed, such innuendo
meaning has to be pleaded and proved specifically by giving the particulars of
the said extrinsic facts. It is immaterial in such cases as to whether the
action is for 722 defamation or for corrupt practice in an election matter, for
in both cases it is the words complained of together with the extrinsic facts
which constitute the cause of action. It is true that Section 123(4) of the Act
states that the statement of fact in question must be "reasonably
calculated to prejudice the prospects" of the complaining candidate's
election. However, unless it is established that the words complained of were
capable of being construed as referring to the personal character or conduct of
the candi- date because of some specific extrinsic facts or circum- stances
which are pleaded and proved, it is not possible to hold that they were
reasonably calculated to prejudice his prospects in the elections. For, in the
absence of the knowledge of the special facts on the part of the elector- ate,
the words complained of cannot be held to be reasonably calculated to prejudice
such prospects. Once, however, it is proved by laying the foundation of facts
that the words in question were, by virtue of the knowledge of the special
facts, likely to be construed by the electorate as referring to the personal
character or conduct of the complaining candidate, it may not further be
necessary to prove that in fact the electorate had understood them to be so.
That is because all that Section 123(4) requires is that the person publishing
the complaining words must have intended and reasonably calculated to affect
the prospects of the com- plaining candidate in the election. [745E-H; 746A-B]
2.2.
Whenever an innuendo is alleged, a statement of material facts as required by
Section 83(i)(a) of the Act is not complete without stating the extrinsic facts
spelling out the innuendo meaning. It is the publication together with the
extrinsic facts which in such circumstances consti- tute the corrupt practice.
The absence of the statement of such facts is not an absence of the particulars
of corrupt practice but an absence of the averment of material facts
themselves.
Sheopat
Singh v. Ram Pratap, [1965] 1 SCR 175; Kumara Nand v. Brijmohan Lal Sharma,
[1967] 2 SCR 127; Habib Bhai v. Pyarelal & Ors., AIR 1964 MP 62; Manmohan Kalia
v. Yash & Ors., [1984] 3 SCR 383; W. Hay & Ors. v. Aswini Kumar Saman- ta,
AIR 1958 Cal. 269; Hough v. London Express Newspaper Ltd., [1940] 3 All ER 31; Fullam
v. Newscastle Chronicle and Journal Ltd. & Anr., [1977] 3 All ER 32;
Cassidy v. Daily Mirror Newspapers, [1929] 2 KB 331; Nevill v. Fine Art and
General Insurance Co. Ltd., L.R. 1887 AC 68 and Capital and Counties Bank Ltd.
v. George Henty & Sons, LR 1882 7 AC 741, referred to.
Halsbury's
Laws of England, Vol. 28, 4th Edn. paras 174-178; Gatley
on Libel and Slander, 8th Edn. paragraph 95;
Street
on Torts, 723 6th Edn., p. 294 and Duncan & Neil on Defamation, [1978] Edn.,
p. 17, referred to.
3.
Both, for libel action as well as for an allegation of corrupt practice in an
election petition, it is necessary to plead as well as to prove the extrinsic
facts to spell out the innuendo meaning of the words complained of. Howev- er,
whereas in a libel action it may further be necessary to prove that those with
special knowledge of the extrinsic facts were likely to interpret or understand
the words complained of in a defamatory sense, in an election action, it may
not be necessary to do so and all that is necessary is to prove that the words
complained of were reasonably calculated to prejudice the prospects of the
defamed candi- date's election. However, this latter distinction does not
obliterate the similarity between the two actions viz., that in each case in
the first instance the defamation is to be spelt out by pleading the necessary
extrinsic facts. In a libel action, the extrinsic facts constitute a cause of
action whereas in the election action they constitute the corrupt practice. In
other words, without them, there is no cause of action in the libel suit and no
allegation of corrupt practice in an election petition. [756F-H; 757A]
4.1.
As regards the wail-posters in which the first respondent was described as a
murderer and it is stated that hence he should be defeated, the first
respondent in his petition has stated generally that it was the appellant, his
agents and his workers who had pasted the wallposters. He has not specified any
wail or wails on which the poster was pasted. He has not mentioned either the
agent or the elec- tion agent nor did he state that the pasting was done with
the knowledge and consent of the election agent. It is important to note that
he mentioned the pasting of the poster only on one wail, though there was a
vague reference to "walls". [761F-H; 765B]
4.2.
Time and again, the courts have uttered a warning against the acceptance of a
non-corroborted oral testimony in an election matter because it is not only
difficult to get a non-partisan witness but is also easy to procure partisan
witnesses in such disputes. The courts have, there- fore, insisted upon some
contemporaneous documentary evi- dence to corroborate the oral testimony when
in particular such evidence could have been maintained. Such a danger is
illustrated by the testimony of PW. 25 in the instant case.
It is
not only contradictory, and fails to impress this court but also leads to the
belief that there is much force in the contention of the appellant that the
poster in ques- tion was concocted at a later day. It is difficult to ex- plain
as to why the witness a 724 professional photographer who in the ordinary
course should maintain his accounts and other documents should keep them off
from the court on pretexts which are not only far from convincing but
positively doubtful. Although he stated that he was paid Rs.8,00 for the
photographs and Rs.1,000 for copies thereof, he did not enter the amounts in
his ac- counts. He stated that he had a Bank account but he did not remit the
amount to the Bank. He then stated that in his studio there would be no record
to show that the photographs were taken. He also stated that he had not given
any receipt for receiving the payment. [764G-H; 767A-D]
4.3.
"Election agent" as defined in Section 40 of the Act is accorded a
special status of almost an alter ego of the candidate so much so that whatever
is done by the elec- tion agent or with his consent is deemed to have been done
by the candidate himself whether it is with the candidate's consent or not. He
is empowered to discharge almost all the functions that a Candidate can himself
perform. 1729E-FI
4.4.
It was alleged that the wall-poster was written at the specific instructions of
the Chief Agent and the Conven- or. It was not specified who the Chief Agent
and the Conven- or of the Election Committee were. The argument that the
expression "Chief Agent" should be construed to mean elec- tion
agent, cannot be accepted since the pleadings with regard to corrupt practice
have to be specific since every- one who is guilty of the corrupt practice is
liable to be prosecuted for the offence. And except in one place, there is no
reference to any such person as Chief Agent. Wherever the first respondent
wanted to refer to the election agent, he has done so. It cannot, therefore, be
said that he did not know the difference between the election agent and the
Chief Agent. [762B-E]
4.5.
The first respondent has come to the court with a version that the wail-poster
and such other posters were pasted on wails in the different parts of the
constituency at least a week prior to the election. Admittedly, such false
propaganda is an electoral offence punishable both under Section 127A of the
Act and Section 171-C of the Indian Penal Code. The first respondent or his
agents and workers could have made complaints both to the Election Officer as
well as to the police in that connection immedi- ately, and a regular panchnama
of the same could ,also have been made at the time. That would have been the
best evi- dence of the said allegation. The first respondent and his workers
would not have failed to do so had the posters been pasted at the time alleged
by them. [767E-F] 725
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 3951 (NCE) of:1987.
From
the Judgment and Order dated 19.11.1987 of the Kerala High Court in E.P. No. 3
of 1987.
K.K. Venugopal,
E.M.S. Anam, E. Ahmad and V.K. Beeram for the Appellant.
Dr.
Y.S. Chitale, M.K. Damodaran, V.J. Mathew, Aseem Mehrotra and K.M.K. Nair for
the Respondents.
The
Judgment of the Court was delivered by SAWANT, J. This is an appeal under
Section 116A of the Representation of the People Act, 1951 (hereinafter
referred to as the 'Act') against the judgment of the High COurt of Kerala in
Election Petition No. 3 of 1987, by which the election of the appellant to the Kerala
Legislative Assembly from Mattancherry Constituency No. 73 was declared void on
the ground that the appellant had committed two corrupt practices within the
meaning of Section 123(4) of the Act.
2. The
admitted facts are that election to the Kerala Legislative Assembly from all
the constituencies was held on March 23, 1987. The main contest in almost all
the constitu- encies was between the United Democratic Front (UDF) con- sisting
of Congress-I, Kerala Congress, Indian Union Muslim League (IUML) and others on
the one hand, and the Left Democratic Front (LDF) consisting of the Communist
Party of India--Marxist (CPI-M), Revolutionary Socialist Party and others on
the other. The appellant was the candidate of the LDF and the first respondent
was the candidate of the UDF.
In the
said election, the appellant was declared elected by a margin of 1873 votes
over his nearest rival, the first respondent.
3. On May 8, 1987, the first respondent filed an elec- tion petition
claiming a declaration that the appellant's election was void and that he was entitled
to be declared duly elected from the said constituency. In support of the
petition, the first respondent alleged various corrupt practices on the part of
the appellant. However, the High Court negatived all the said corrupt practices
except two, viz., (i) printing and publication on March 22, 1987, a day prior
to the election, pamphlets containing a news item in daily "Malayala Manorama"
dated May 22, 1983, and (ii) publication of a wall poster, both maligning the
personal character and conduct of the first respondent. The High Court held
that both these acts amounted to corrupt prac- tices within the meaning of
Section 123(4) of the Act and were sufficient to 726 void the election. The
pamphlet containing the reprint of the daily "Malayala Manorama" was
marked as Ex. P-1 and two photographs of the wall-poster were marked as Exs.
P-14 and P-15 before the High Court and would be referred to herein- after as
such. Ex. P-14 is the close-up and Ex. P-15 is the distant photograph of the
same wall-poster.
4.
Before we refer to the rival contentions and the material on record, it would
be convenient if we reproduce here the contents of Ex. P-1 and Exs. P-14 and
P-15 to understand the allegations made in the said documents.
Ex.
P-1 is a reprint of a page of the issue of 22nd May, 1983 of a daily newspaper "Malayala
Manorama". It contains the names and the photographs of four men, who were
admit- tedly murdered in May 1983. It also carries two other photo- graphs, one
showing two killed bodies lying and the other showing the front part of the
court building where allegedly all the four were killed. It also carries a
photograph of the appellant with his election symbol which was 'ladder' and a
photograph of the then Prime Minister, Rajiv Gandhi.
Apart
from the contents of the said newspaper as they ap- peared in the said old
issue, it carries additions on the left hand, the English translation of which
is as follows:
"ELECT
ZAKHARIA THE UNITED FRONT CANDIDATE MATTANCHERRY.
On
March 23rd a decisive election is taking place in our State. We wish to have a
Government who will protect life and property of the people. In the light of
past expe- rience the only front acquired legitimate claim to give protection
is the United Democratic Front under the leader- ship of Congress (I). Marxist
Party has only created insecu- rity in the country.
X X X X
X The Marxist Comrades who create lawlessness and commit murders while in power
and out of power, is a chal- lenge to peace loving inhabitants of Mattancherry.
Mattan- cherry is a constituency which has witnessed terrible cruel- ties of
the Marxists. The Mattancherry Town, once the centre of commerce, today became
equal to a grave 727 yard only due to violent activities of the Marxist people.
The
wounds created by their cruelties are always unhealed.
They
need not be detailed by one.
X X X X
X You may remember only the cruel murder that shocked Mattancherry in 1983.
Four youngsters were cut to death in the road in broad day light. The relevant
portion of the Malayala Manorama which published that news is given herewith
as, such; everybody knows the hands behind that murder. The Marxist leader
arrested is also known.
X X X X
X Dear sisters, brothers, you may think a while.
Should
we have the rule of the Marxist terrorists.
We
believe that the people of Mattancherry who wish peaceful life in the country
will defeat Marxists.
X X X X
X Believers in democracy should be specially careful not to split their votes.
It is possible to defeat Marxists only through unity of the believers in
democracy. That is why the Indian National Congress lead by Shri Rajiv Gandhi'-
the stalvert of democratic Bharath is giving leadership to the democratic
front. It is the necessity of peace lovers that United Democratic Front should
win for law and order and stable administration. Therefore, it is humbly
requested that M.J. Zakharia may be elected with big majority casting votes to
his Ladder Symbol.
---------------------------------------------------------
Photo of Vote Democratic Front Photo of candidate- to avoid Marxist Rule Rajiv
Gandhi M.J. Zakharia of Terror
--------------------------------------------------------- Constituency Election
Committee Give Strength United Democratic Front, to Rajiv Gandhi's Mattancherry
hands 728 VOTE FOR UNITED DEMOCRATIC FRONT CANDIDATE M.J. ZAKHARIA IN LADDER
SYMBOL Printed at Veekshanam." The High Court has found that the following
statement in paragraph 3 above, viz., "everybody knows the hands behind
that murder. The Marxist leader arrested is also known" was in relation to
the personal character/conduct of the first respondent. Exs. P-14 and P-15 are
the photographs, as stated earlier, of the poster pasted on a wall, with the
pamphlet (Ex. P-1) pasted on its left side. The contents of the wall-poster are
as follows:
"Defeat
murderer T.M. Mohammed who murdered four Christian brothers at Fort Cochin.
Our
Symbol." The symbol is the ladder. This poster directly accused the first
respondent as being murderer of the said four killed persons and requested the
voters to vote for the appellant.
5. As
regards Ex. P-1, there is no mention of the first respondent directly by his
name anywhere in the poster.
However,
the first respondent has alleged that there is an innuendo by which he is
projected there as the murderer of the four victims. The High Court has
accepted that the first respondent is referred to in the said pamphlet by
innuendo.
The
High Court has also found that the pamphlets were got printed by one Latif who
was appellant's agent, on behalf of his Election Committee and at the instance
of and with the consent and connivance of the appellant and his election agent
and was distributed by them among the electors knowing the imputation to be
false and calculated to affect the prospectus of his election. As regards Exs.
P- 14 and P-15, the High Court has recorded a finding that the said wall-
poster was pasted on a wall at the instance and with the consent of the
appellant's election agent. Thus, the High Court has recorded a finding that
the first respondent had proved that the appellant was guilty of the corrupt prac-
tices within the meaning of Section 123(4) of the Act.
6.
Before we proceed to discuss the relevant evidence on record, it is necessary
to understand the correct posi- tion of law on the subject. The corrupt
practices and elec- toral offences are mentioned in Part-7 of the Act. Chapter
I of the said Part deals with corrupt practices and contains Section 123
whereas Chapter III thereof enumerates electoral offences. and penalties
therefore, and contains Sections 125 to 136.
729
Section 123(4) with which alone we are concerned in the present appeal reads as
follows:
"123(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- drawal, of any candidate, being a
statement reasonably calculated to prejudice the prospectus of that candidate's
election." It is obvious from the aforesaid provisions of Section 123(4)
that for a publication to constitute the corrupt practice (a) it must be a
statement of fact: by (i) a candi- date; or (ii) his agent; or (iii) any other
person with the consent of the candidate or his election agent; (b) the
statement must be false or the candidate must believe it to be false or should
not believe it to be true; (c) the state- ment should refer to the personal
character and conduct of another candidate and (d) that it must be reasonably calcu-
lated to prejudice the prospects of that other candidate's election.
Explanation 1 to Section 123 states that in that Section the expression
"agent" includes election agent, a polling agent and any person who
is held to have acted as an agent in connection with the election with the
consent of the candidate. The expression "election agent" is defined
in Section 40 and is accorded a special status of almost an alter ego of the
candidate so much so that whatever is done by the election agent or with his
consent is deemed to have been done by the candidate himself whether it is with
the candidate's consent or not. It is further sufficient to note that the
election agent is empowered to discharge almost all the functions that a
candidate can himself perform.
7. The
further provisions of the Act which are necessary to be noted are those of
sub-sections (1)(b), (1)(d) and (2) of Section 100. They read as under:
"100.
Grounds for declaring election to be void-- (1) Subject to the provisions of
sub-section (2) if the High Court is of opinion-- (a)...............
730
(b) that any corrupt practice has been committed by a re- turned candidate or
his election agent or by any other person with the consent of a returned
candidate or his election agent; or (c)................
(d) that
the result of the election, in so far as it con- cerns a returned candidate,
has been materially affected-- (i)................
(ii) by
any corrupt practice committed in the interests of the returned candidate by an
agent other than his election agent, or (iii)
................................................
the
High Court shall declare the election of the returned candidate to be void.
(2) If
in the opinion of the High Court, a returned candi- date has been guilty by an
agent, other than his election agent of any corrupt practice but the High Court
is satis- fied-- (a) ................................................
(c).................................................
(d)..................................................
then
the High Court may decide that the election of the returned candidate is not
void".
The
aforesaid provisions of Section 100 show that where the corrupt practice is
committed not by the candidate or his election agent or any other person with
the consent of the candidate or his election agent but by an agent other than
the election agent and in his interest, and the corrupt practice by such agent
has materially affected the result of his election, the High Court is enjoined
to declare the election of the candidate to be void. Sub-section (2) of Section
100 enacts a rider to sub-section (1) thereof, and states that even if the 731
agent has committed the corrupt practice in the interest of the returned
candidate, if the High Court is satisfied that the said corrupt practice was
not committed by the candidate or his election agent and every such corrupt
practice was committed contrary to the orders and without the consent of the
candidate or his election agent and that the candidate and his election agent
took all reasonable means for pre- venting the commission of the corrupt
practice at the elec- tion, and that in all other respects the election was
free from any corrupt practice the part of the candidate or any of his agents,
the High Court may decide that the election of the returned candidate is not
void.
8.
With this statement of law in mind, we may now refer to the two corrupt
practices alleged to have been committed by the appellant. We will first deal
with Ex. P-1 the print- ing, publication and distribution of which is held to
have been one of the two corrupt practices committed by the appellant's agent
at his instance and with his consent and connivance as well as of his election
agent. As far as the petition is concerned, the relevant averments with regard
to Ex. P-1 are as follows:
"13.
Another important aspect which will amount to corrupt practice is the
publication of pamphlets by the candidate, his agents and his workers with his
consent and knowledge.
14. Malayala
Manorama dated 23.5.1983 was reported by the candidate at the expenses of the
first respondent. This re- printing is intended to propagate false statements
which the candidate, his agents and as workers ..........
X X X X
X
19. It
is clear from these that the reprinting of Malayala Manorama by the candidate
was with a view to create a false impression among the electorate that the
petitioner is a murderer and hence the electorate shall not vote in favour of
him. This was done with a mala fide intention to propa- gate false news among
the electorate.
X X X X
X
46. Malayala
Manorama daily dated 22nd May, 1983 was re- printed with certain additions and
also with photographs 732 of Prime Minister and the candidate with the
candidate's symbol. This was reprinted from the Veekshanam Press at Ernakulam
and got printed by the Election Committee of the first respondent ....
47.
Annexure I reprinted Malayala Manorama was widely dis- tributed in the
constituency. It was distributed on 22nd March, 1987. March 22, 1987 was a
Sunday and May 1983 was also a Sunday. The petitioner is reliably informed that
about 25,000 copies of Annexure I were printed and those copies of reprinted Malayala
Manorama were distributed throughout the constituency." In paragraphs 48
to 53 of the petition, the first re- spondent has proceeded to give the names
of the persons who distributed the said pamphlet in different divisions of the
constituency and of the persons whom he was going to examine as witnesses to
prove the same. In paragraph 54, he has made further averments in connection
with the said pamphlet as follows:
"Annexure
was really the reproduction of Malayala Manorama daily dated 22.5.1983. Since a
news item regarding the murder of 4 persons was reported in the daily mentioned
above, to mislead the electorate, the Malayala Manorama printed and published
on 22.5.1983 was reprinted ...... "
9. It
will be apparent from these averments in the petition that although the first
respondent has stated in his petition that the pamphlet was printed and
distributed with a view to create a false impression among the elector- ate
that he was a murderer, he has not stated as to why it will create such an
impression among the electorate. It was necessary for him to state so in the
petition because admit- tedly the pamphlet nowhere names him as a murderer of
the said four victims. What was, however, argued by Dr. Chitale on behalf of
the first respondent was that the statements in the pamphlet, viz.,
"everybody knows the hands behind that murder. The Marxist leader arrested
also is known" were a clear and a direct reference to the first
respondent, be- cause it was an admitted fact that the first respondent was
arrested for an offence of harbouring the accused in that murder case. There
was also a protest meeting held in that connection, and the appellant who was
his agent at that time had also addressed the said meeting condemning his
arrest.
According
to Dr. Chitale, therefore, 733 the arrest of the first respondent though for
the offence of harbouring the murderers, was in connection with the murder and
the statement in the pamphlet that "The Marxist leader arrested is also
known" read with the earlier statement that "Everybody knows the
hands behind that murder" was clearly calculated to create an impression
in the mind of the elec- torate that it was the first respondent who was the
murder- er. Admittedly, therefore, even according to Dr. Chitale, these were
the only two statements which could be said to have had a reference to the
first respondent as the murderer and there was no direct reference to or
implication of the first respondent as the murderer of the said four victims.
In
other words, the first respondent even in his petition had relied upon an
innuendo, and the innuendo was based upon the fact that, firstly, the first
respondent was a Marxist leader and, secondly, he was arrested for harbouring
the murderers. However, in the petition, no averment is made anywhere that it
was because he was a Marxist leader and was also arrested for harbouring the
murderers that the elector- ate was likely to construe the said two statements
as accus- ing him as the murderer.
10.
The facts and/or particulars which spell out the innuendo where one is alleged
or relied upon to constitute a corrupt practice are themselves material facts
and it is necessary to state them in the petition in view of the mandatory
provisions of Section 83(1) of the Act. The provi- sions of Section 83(1) are as
follows:
"83.
Contents of petition--(1) An election petition-- (a) shall contain a concise
statement of the material facts on which the petitioner relies;
(b)
shall set forth full particulars of any corrupt practice that the petitioner
alleges, including as full a statement as possible of the names of the parties
alleged to have committed such corrupt practice and the date and place of the
commission of each such practice; and (c) shall be signed by the petitioner and
verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of
1908) for the verification of pleadings:
Provided
that where the petitioner alleges any corrupt practice, the petitioner shall
also be accompanied by an affidavit in the prescribed form in support of the allega-
734 tion of such corrupt practice and the particulars thereof." It is
clear from the provisions of both clauses (a) and (b) of the Section that
election petition has to contain (i) a concise statement of the material facts
on which the petitioner relies and also (ii) give full particulars of any
corrupt practice that the petitioner alleges. In a case therefore, where what
constitutes a corrupt practice is not a bare statement/statements published but
those which are not published, and yet are implied, a statement of material
facts will not be complete without the statement of such implicit facts. In
other words, without the statement of the said facts, the statement will not be
a statement of materi- al facts within the meaning of the said Section. This provi-
sion of law is indisputable.
11.
Much of the debate that took place before us cen- tered round this aspect which
has assumed all importance in the context of the first charge of the corrupt
practice.
Various
authorities were cited on both sides in support of the respective contentions
on the subject. We may briefly refer to them to the extent they are relevant
for our pur- pose.
In
Hough v. London Express Newspaper Ltd., [1940] 3 All ER 31 it was a case of an
action for an alleged libel pub- lished in the newspaper. The plaintiff,
Florence Sarah Hough, married Frank Hough in 1933 and lived with him in
Battersea as his wife and had one child from him. In Febru- ary, 1936, he
deserted her, and in June 1936 he was ordered to pay maintenance for the child.
He was known at Battersea, where he lived at the time of the order, and after
the desertion also he continued to live there. He acquired some notoriety as a
boxer, and the plaintiff became known in the district as his wife. On December 22, 1937, an article appeared in Daily
Express, a newspaper owned by the defend- ants, containing the words:
"Frank
Hough's curly-headed wife sees every fight.
"I
should be in more suspense at home." she says, "I always get nervous
when he gets in the ring although I know he won't get hurt. Nothing puts him
off his food. He always eats a cooked meal last thing at night, however late it
is when he gets in"." From the description given of the wife, it was
obvious to those who knew the wife that another person was referred to.
Hence,
the plaintiff brought an action for libel alleging that the words by innuendo
meant that she was falsely repre- senting herself to be the wife and that she
was 735 an unmarried woman who had cohabited with and had children by the
boxer. On these facts, the Court of Appeal held: (i) the words were defamatory
as reasonable persons knowing the circumstances would understand the words in
defamatory sense (ii) it was not necessary for the plaintiff to prove that one
or more persons understood the words in a defamatory sense. 1t is sufficient
that reasonable persons might so understand them. The decision, therefore,
shows that it is not necessary that a person publishing a defamatory state- ment
should intend that the statement should refer to the defamed person. It is
sufficient that reasonable persons should understand it to refer to him or her.
The words need not be defamatory in the primary sense. They are actionable if
the existence of certain circumstances makes it reasona- ble that persons to
whom those circumstances are known, might understand them in a defamatory
sense. It is not necessary to prove that in fact persons with such knowledge
did so understand them. What is necessary, however, is that the special
circumstances which are known to others and by which they are likely to
understand the reference as being one to that defamed persons must be pleaded
and proved.
In Fullam
v.Newscastle Chronicle and Journal Ltd. & Anr., [1977] 3 All ER 32 the
facts were that prior to 1962, the plaintiff was a Roman Catholic priest and a
curate in the dioceses of Salford near Manchester. In 1962, he gave up the priesthood
and became a schoolteacher. In 1964, he married and in 1965 he and his wife had
their first child.
The
plaintiff took a teaching post at Wakefield. South
Yorkshire, where he
lived. In July 1973, he applied for the deputy headmastership at a school in Redcar on Teesside, which was about 80
miles north of Wakefield, and he was appointed to that post.
There had been a controversy about the previous deputy headmaster. On 21st
July, a local news- paper which circulated in the districts of Teesside and Newscastle-Upon-Tyne
but not in the Wakefield area, pub- lished an article about the plaintiff's
appointment which stated inter alia that he was a former Catholic priest, that
he had left his parish in the Salford diocese and later had married and that it
was claimed by the general secretary of the National Association of School
masters that he "went off very suddenly from the parish where he was
curate 'about seven years ago'." The plaintiff pleaded in his statement of
claim that the words in the article meant and would be understood to mean that
he (a) had lathered a child whilst still a priest serving in a parish, (b) had
lathered an,,illegitimate child, (c) had wrongly continued to serve as a priest
after his marriage, (d) had wrongly withheld the fact of his marriage from his eclesiastical
736 superiors and parishioners and accordingly was unfit to be deputy
headmaster of the school at Redcar. Pursuant to RSC Order 82, rule 3(1), the
plaintiff gave as the particulars of the facts on which he relied in support of
innuendoes (i) that he had married on 15th February, 1964 and (ii) that his eldest child had
been born in May 1965. He did not give particulars of the persons who knew one
or the other of those extrinsic facts and who, therefore, having regard to the
statement in the article that he had left the parish suddenly "seven years
ago", might have derived from the article the imputations alleged in (a) to
(d) of para 5 of the statement of claim. The defendants applied to strike out para
5 of the claim on the ground that it disclosed no reasonable cause of action.
The Court of Appeal held as follows:
"(i)
Although it was not the usual practice in libel actions to plead particular
acts of publication if the words com- plained of had been published in a
newspaper, in cases where the action was based on a legal, or 'true', innuendo
and the ordinary readers of the paper would not have derived from the words complained
of the innuendo alleged, the plaintiff was required, under RSC Order 18, rule
7(I) and Order 82, rule 3(I) to particularise not only the special circum-
stances which were alleged to give rise to the innuendo but also the identity
of the readers of the paper who were alleged to know of those special
circumstances, since the identity of those readers was a material fact on which
the plaintiff relied in support of his cause of action.
(ii)
Since the only readers of the article who could have concluded that the
plaintiff had lathered a child or married while he was still a priest were
readers who new either the date of birth of his 'eldest child or the date of
his mar- riage but did not know both those facts and such readers would be rare
and exceptional, having regard in particular to the area where the paper
circulated, the plaintiff should be ordered to give particulars identifying
those readers.
Accordingly,
unless such particulars were given, para 5 of the statement of claim should be
struck out." While discussing the law on the subject, Lord Denning MR
observed as follows:
"The
essence of libel is the publication of written words to 737 a person or persons
by whom they would be reasonably under- stood to be defamatory of the
plaintiff. But those words may give rise to two separate and distinct causes of
action ..... First, the cause of action based on a popular innuendo. If the
plaintiff relies on the natural and ordi- nary meaning of the words, he must in
his statement of claim satisfy the person or persons to whom they were
published, save in the case of newspaper or periodical which is pub- lished to
the world at large, when the persons are so numer- ous as to go without saying.
Secondly,
the cause of action based on a legal innuendo. If the plaintiff relies on some
special circumstances which convey some particular person or persons knowing
the circum- stances, a special defamatory meaning other than the natural and
ordinary meaning of the words when he must in his state- ment of claim specify
the particular person or persons to whom they were published and the special
circumstances known to that person or persons for the simple reason that these
are the material facts on which he relies and must rely for this cause of
action. It comes straight within the general rule of pleading contained in RSC
Order 82, rule 3. In the second cause of action, there is no exception in the
case of a newspaper because the words would not be so understood by the world
at large but only by the particular person or persons who know the special
circumstances." (emphasis supplied) Lord Denning further observed that
this rule of pleading was not observed in Cassidy v. Daily Mirror Newspapers,
[1929] 2 KB 331 or in Hough v. London Express Newspaper Ltd., (supra) because the
defendant did not ask for particu- lars. After referring to paragraph 5 of the
plaint, he then observed that paragraph 5 was utterly inadequate as it stood
and that no ordinary reader could ever derive those imputa- tions about
"fathering a child" etc. from the article. It would have to be some
particular person with knowledge of some special circumstances. He further
observed that the pleading in that case told the circumstances, viz., the
marriage in 1964 and the birth of a son in 1965 but it did not tell as to who
were the persons who knew of the circum- stances and derived the imputations
from the article.
In the
same case, Scarman LJ stated that it was obvious that a 738 material fact in
such a cause of action was that the persons to whom the words were published
knew the extrinsic facts.
In
principle, therefore, their knowledge being a material fact should be pleaded.
He further observed that there may be a case where the facts may be very well '
known in the area of the newspaper distribution in which even it would suffice
to plead merely that the plaintiff would rely on inference that some of the
newspaper readers must have been aware of the facts which are said to give rise
to the innu- endo. But that was not the case in that action and, there- fore,
justice required that the plaintiff should fully particularise the publication
relied on so that the defend- ants may understand the nature of the case they
have to make.
These
two decisions, however, are in libel action and not in election matters.
12. In
Sheopat Singh v. Ram Pratap, [1965] 1 SCR 175, one of the questions that
directly arose for consideration was of the burden of proving the ingredients
of the corrupt practice under Section 123(4). The facts were that an alle- gation
was made against the personal character and conduct of one of the candidates in
the election, viz., that a cinema theatre of Rs.7 lakhs in Ganganagar was the barkat
of the cement of the Rajasthan Canal. The candidate concerned was at the crucial time the
Minister-in-charge of the Rajas- than Canal Project. During the election, a
cinema theatre known as Adarsh Theatre was being put up at Ganganagar.
There
was no dispute that the theatre referred to in the poster was the said Adarsh
Theatre and it belonged to the concerned candidate and his sons. In that
context, there- fore, it was manifest that the poster meant to convey the idea
that the candidate had misappropriated the cement of the Rajasthan Canal of which he was in-charge and built a big theatre in the
name of his sons. Hence, it was a clear reflection on the candidate's personal
character and con- duct. The argument advanced on behalf of the returned candi-
date was that there was no evidence in the case that the said statement was one
reasonably calculated to prejudice the prospects of the election of the
candidate against whom the said statement was meant, viz., Ramchander Chowdhary.
In that connection, it was argued that if the voters did not know that the
cinema theatre which was being built in Ganga- nagar belonged to Ramchander Chowdhary or his sons, the statement
concerned would not deflect the voters from voting in favour of Chowdhary. It
was also argued that there was no evidence in the case that all or any of the
voters knew the fact that the cinema theatre belonged to Chowdhary or his sons.
This Court stated in that case that they were not dealing with a libel action
and, therefore, the 739 cases cited at the Bar on libel action such as Nevill
v.
Fine
Art and General Insurance Co. Ltd., LR 1887 AC 68 and the Capital and Counties
Bank Ltd. v. George Henty & Sons, LR 1882 7 AC 741 had no relevance for
determining the ques- tion under Section 123(4) of the Act. The only question
is whether the statement in question was reasonably calculated to prejudice the
prospects of Chowdhary's election. The Court then pointed out that on behalf of
the returned candi- date it was not contended either before the Election Tribu-
nal or before the High Court that the voters had no knowl- edge of the fact
that the cinema theatre at Ganganagar belonged to Chowdhary or his sons. The
Court further ob- served that apart from that the object with which the state- ment
was made was the crucial test. Since it was proved that Ganganagar cinema
theatre belonged to Chowdhary's sons and that Chowdhary was the
Minister-in-charge of the Rajasthan Canal and he was also the only effective
candidate against the returned candidate who was the appellant in that case,
the appellant's intention in making that statement was obvious and that was to
attack the personal character of Chowdhary in order to prejudice his prospects
in election.
The
appellant must have reasonably calculated that the voters, or at any rate the
voters in and about the locality where the cinema theatre was being put up, had
knowledge or the tact that It was being constructed by the Minister of his
sons. It cannot also be said that when a big cinema theatre at a cost of Rs.7 lakhs
was being put up in Gangana- gar the voters in and about that place would not
have known about the ownership of that building. Hence, the fact that the
building was brought in for attacking the personal character of Chowdhary
merely indicated that the appellant knew that the voters had knowledge of its
ownership and expected that it would create the impression which it mani- festly
indicated to convey. Hence, this Court held that the High Court's finding that
the statement was reasonably calculated to prejudice Chowdhary's prospects in
election could not be said to be unsupported by evidence or by the.
admitted
facts placed before the High Court. It was a rea- sonable inference from the
facts found by the High' Court.
It
must be said that in this case the question whether it was necessary for the
election petitioner to state in the petition the extrinsic facts which would
connect the person concerned with the libelous statement was not raised and,
therefore, was not answered. The only question which was agitated was whether
the voters without knowing that the theatre belonged to the defamed candidate
would be deflected from voting and this Court upholding the finding of the High
Court, observed that it was not contended either before the Election 740
Tribunal or before the High Court that the voters had no knowledge of the fact
that the cinema theatre belonged to Chowdhary or his sons. Secondly, it was
held that whether the voters had such knowledge was immaterial since what was
crucial for the corrupt practice under Section 123(4) of the Act is the object
with which it was made. Since the election petitioner had proved that the
theatre belonged to Chowd- hary's sons and that Chowdhary was the
Minister-in-charge of the Rajasthan Canal, it must be held that the returned
candidate had reasonably calculated that the voters or at any rate the voters
in and about the locality where the theatre was being put up, had knowledge of
the fact that it was being constructed by the Minister or his sons, and that
such extrinsic facts could not have been unknown to the voters. This decision
may be construed as laying down that even if the petition does not state the
extrinsic facts but the electorate is well aware of them, the petitioner can
lead evidence and prove them. Whether the petition in that case did or did not
state the extrinsic facts is not clear from the decision. It is also not clear
from the judgment whether any evidence was led that in fact the voters had
understood the said statement to refer to Chowdhary. On the other hand, one of
the observations made in the judgment shows that the proof of such an
impression of the voters is dispensable for the purpose of establishing a
corrupt prac- tice under Section 123(4) of the Act. That observation is as
follows:
"To
be within the mischief of sub-section (4) of Section 123 of the Act such a
statement shall satisfy another test, namely, it shall be a statement
reasonably calculated to prejudice the prospects of the election of the
candidate against whom it is made. The word "calculated" means de-
signed: it denotes more than mere likelihood and imports a design to affect voters.
It connotes a subjective element, though the actual effect of. the statement on
the electoral mind reflected in the result may afford a basis to ascertain
whether the said statement was reasonably calculated to achieve that effect.
The emphasis is on the calculated effect, not on the actual result, though the
latter proves the former. But what is important to notice is that it is not
necessary to establish by positive evidence that the voters, with the knowledge
of the contents of the statement were deflected from voting for the candidate
against whom the statement was made." In Kumara Nand v. Brijmohan Lal
Sharma. [1967] 2 SCR 127 the 741 facts were that the complaining candidate was
called "the greatest of the thieves" in a poem recited at a public
meeting in the presence of the returned candidate. It was held that it was not
a mere expression of opinion but was a statement of fact. It was further held
that in such circum- stances, particulars are not necessary before a bald
state- ment with respect to personal character or conduct of the candidate can
be said to be a statement of fact. It was also observed that whether
particulars are necessary will depend on the facts and circumstances of each
case. We may state here that the discussion in that case mainly centered around
the question whether the particular statement was a state- ment of fact or an
expression of opinion.
In Habib
Bhai v. Pyarelal & Ors., AIR 1964 MP 62 dealing with the question of
innuendo the High Court referred to certain English cases on the point and held
that "in view of these decisions, it is obvious that an innuendo is simply
an averment that such a one, means such a particular person; or that such a
thing, means such a particular thing: and, when coupled with the introductory
matter, it is an averment of the whole connected proposition by which the
charge may be brought home to the person concerned. The whole attempt of the
learned counsel for the appellant before us was to suggest that the words,
though not per se defamatory of the third respondent, were definitely so in
their secondary meaning read in the context of circumstances. But, as no
attempt was made in the pleadings to plead the extrinsic facts to show by those
facts as to how the allegations contained in annexure I were related to the
third respond- ents, we are of opinion that it must he held that by refer- ring
to any possible meaning of the words used, no imputa- tion could be read in the
words as against him." It can, therefore, be said that in this case the
Court had insisted that it was necessary to plead the extrinsic facts to show
all those facts as to how allegations were related to the defamed or
complaining candidate.
In Manmohan
Kalia v. Yash & Ors., [1984] 3 SCR 383 which is more or less on par with
the present case, it was alleged by the election petitioner that the returned
candidate through speeches either made by him or his friends had carried on a
vilifying campaign to show that the complaining candidate was directly
connected with the murder of one Asa Ram, a Harijan and one of the supporters
of Congress (I) Party so as to wean away the votes of the harijans of the
locality and members of the Congress (I) Party. The High Court had disbelieved
oral evidence and found no nexus with the news items etc. and had 742 dismissed
the petition. This Court held that where the doctrine of innuendo 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.
Innuendo
cannot be proved merely by inferential evidence which may be capable of two
possibilities. On the facts, the Court held that after having gone through the
evidence, statement of witnesses and the documents placed before the Court, it
was difficult to find any close connection or direct link between the
imputations made against the appel- lant in 1978 and those made in 1980. In
none of the docu- ments produced by the complaining candidate which referred to
the activities of the returned candidate, there was the slightest possibility
that the appellant had anything to do with the murder of Asa Ram.
The
Court further observed as follows:
"It
is now well-settled by several authorities of the Su- preme 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
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".
In W.
Hay & Ors. v. Aswini Kumar Samanta, AIR 1958 Cal. 269 a Division Bench of the Calcutta High Court held that
it is well-settled that in a "libel action" the ordinary defam- atory
words must be set out in the plaint. Where the words are per se or prima facie
defamatory only the words need be set out. Wherever the defamatory sense is not
apparent on the face of the words, the defamatory meaning or as it is
technically known in law, the innuendo must also be set out and stated in clear
and specific terms. Where again the offending words would be defamatory only in
the particular context in which they were used, uttered or published, it is
necessary also to set out except where as in England, the law is or has been
made expressly otherwise, the offending context (colloquium) in the plaint, and
to state or ever further that this context or the circumstances constituting
the same, were known to the persons to whom the words were published, or, at
least, that they understood the words in the defamatory sense. In the absence
of these necessary averments, the plaint would be liable to be rejected on the
ground that it does not disclose any cause of action.
743
13.
What exactly should be pleaded in an action for defamation has been stated also
in Halsbury's Laws of Eng- land Vol. 28 4th ed. In paragraphs 174, 175, 176,
177 and 178 of the said Volume, we have discussion with regard to natural and
ordinary meaning of the words complained of, and about the innuendo and the
facts and matters supporting innuendo which should be pleaded and proved. It is
stated there that in drafting a statement of claim in libel or slander, it is
necessary to distinguish between cases in which the words complained of are
alleged to be defamatory in their natural and ordinary meaning, whether the
literal or the inferential meaning, and those in which the defamato- ry meaning
is a secondary meaning derived from extrinsic or special facts or matters, so
that a legal or true innuendo must be pleaded. If it is claimed that the words
are defama- tory in their natural and ordinary meaning and the words bear only
one literal meaning, which is clear and explicit, it is not necessary to plead
the meaning in the statement of claim. However, if the words are reasonably
capable of bearing more than one literal meaning or if the defamatory meaning
relied on is inferential (a "false or popular" innuendo), it is
desirable and may even be necessary to plead the defamatory meaning or
meanings. Where the plain- tiff wishes to claim that the words complained of
were understood to be defamatory in a secondary or extended meaning by those persons
having knowledge of some special facts or matters, such a meaning constitutes a
separate cause of action and the same should be pleaded expressly in a separate
paragraph in the statement of claim (emphasis supplied). Particulars must be
given of the facts and mat- ters on which the plaintiff relies in support of
any second- ary or extended defamatory meaning which it is decided to plead.
These special facts or matters may be extrinsic to the words used or there may
be some special meaning of the words themselves. The plaintiff should plead
that particular words bore the innuendo meaning.
14. In
Gatley on Libel and Slander (8th ed.) in para- graph 95, while dealing with
"True and False Innuendoes", it is observed that in distinguishing
between the ordinary and natural meaning and the innuendo meaning or words, the
substantive law cannot be separated from the requirements of pleadings and the
rules of evidence. When the plaintiff wishes to rely on any special facts as
giving the words a defamatory or any particular defamatory meaning, he must
plead and prove such facts including, where necessary, any special knowledge
possessed by those to whom the words are published which gives the words that
meaning, and must set out the meaning in his pleading. Where words are not defama-
tory in their natural and ordinary mean- 744 ing but are so only by reason of
extrinsic circumstances, the plaintiff must plead also those circumstances and
the precise defamatory meaning conveyed by them to those persons to whom the
words were published. Otherwise, the statement of claim will disclose no cause
of action. Such an innuendo is required to be pleaded whenever the plaintiff
relies on any extrinsic facts as giving to the words the meaning he alleges.
The plaintiff must plead the words, the extrinsic facts and knowledge of those
facts on the part of one or more of those persons to whom the words were
published. He can also give evidence of any facts and circumstances which he
has pleaded and which would lead reasonable persons to infer that the words
were understood in that meaning provid- ed such facts or circumstances were
known to those persons to whom the words were published. The evidence required
is the evidence of special facts causing the words to have a meaning revealed
to those who knew the special facts.
Street
in his treatise on Torts (6th ed.) at page 294, has stated that where nothing
is alleged to give an extended meaning, words must be construed by the judge in
their ordinary and natural meaning. The whole of the statement must be looked
at, not merely that part on which the plain- tiff relies as being defamatory,
although, of course, it may be relevant to take account of the greater
importance of some part of a statement, e.g., the headlines of an article in a
newspaper. There may be circumstances where the plain- tiff alleges that the
statement is defamatory because spe- cific facts known to the reader give to
the statement a meaning other than or additional to its ordinary meaning;
this
is known as a true or legal innuendo. In that case, the plaintiff must plead
and prove such facts, for the defendant is entitled to know that meaning of the
statement on which the plaintiff relies so that he is able to argue either that
the statement in that meaning is not defamatory or that it is then true of the
plaintiff. There is a third possibility.
The
words may have a meaning beyond their literal meaning which is inherent in them
and arises by inference or impli- cation: this is sometimes known as the
"false" innuendo. The plaintiff has to plead separately any such
"false" innuendo.
A
"false" innuendo differs from a "true" innuendo in that the
pleader of a "false" innuendo does not set out any extrinsic facts in
support of his plea.
Duncan
& Neil in their book on defamation (1978 ed.) while referring to
"innuendo" on page 17 onwards have stated that the law of defamation recognises
that (a) some words have technical or slang meaning or meanings which depend on
some special knowledge possessed not by the general public but by a limited
number of persons 745 and (b) that ordinary words may on occasions bear some
special meaning other than their natural and ordinary mean- ing because of
certain extrinsic facts and circumstances.
The
plaintiff who seeks to refer to an innuendo meaning has to plead and prove the
facts and circumstances which give words a special meaning'. He has also to
prove that the words were published to one or more persons who knew these facts
or circumstances or where appropriate, the meaning of the technical terms etc.
While
referring to the test where identification depends on extrinsic facts, the
learned authors have stated that where identification is in issue, the matter
can sometimes be decided by construing the words themselves in their context.
More often, however, the plaintiff will be seeking to show that the words would
be understood to refer to him because of some facts or circumstances which are
extrinsic to the words themselves. In these cases the plaintiff is required to
plead and prove the extrinsic facts on which he relies to establish
identification and, if these facts are proved, the question becomes: would
reasonable persons knowing these facts or some of them, reasonably believe that
the words referred to the plaintiff.
Where
identification depends on extrinsic facts these extrinsic facts must be pleaded
because they form part of the cause of action.
15.
The conspectus of the authorities thus shows that where the defamatory words
complained of are not defamatory in the natural or ordinary meaning, or in
other words, they are not defamatory per se but are defamatory because of
certain special of extrinsic facts which are in the knowl- edge of particular
persons to whom they are addressed, such innuendo meaning has to be pleaded and
proved specifically by giving the particulars of the said extrinsic facts. It
is immaterial in such cases as to whether the action is for defamation or for
corrupt practice in an election matter, for in both cases it is the words
complained of together with the extrinsic facts which constitute the cause of
action. It is true that Section 123(4) of the Act states that the statement of
fact in question must be "reasonably calculated to prejudice the
prospects" of the complaining candidate's election. However, unless it is
established that the words complained of were capable of being construed as
referring to the personal character or conduct of the candi- date because of
some specific extrinsic facts or circum- stances which are pleaded and proved,
it is not possible to hold that they were reasonably calculated to prejudice
his prospects in the elections. For, in the absence of the knowledge of the
special facts on the part of the 746 electorate, the words complained of cannot
be held to be reasonably calculated to prejudice such prospects. Once, however,
it is proved by laying the foundation of facts that the words in question were,
by virtue of the knowledge of the special facts, likely to be construed by the
electorate as referring to the personal character or conduct of the complaining
candidate, it may not further be necessary to prove that in fact the electorate
had understood them to be so. That is because all that Section 123(4) requires
is that the person publishing the complaining words must have in- tended and
reasonably calculated to affect the prospects of the complaining candidate in
the election.
16. It
is in the light of this position in law that we have to examine as to whether
the first respondent (elec- tion-petitioner) had discharged this primary burden
cast on him. We have already shown above by referring to the por- tions of the
petition relating to Ex. P-1, that beyond alleging that the pamphlet in
question and particularly the two statements therein, viz., "everybody
knows the hands behind that murder. The Marxist leader arrested also is
known", the first respondent has not shown as to how the said two
statements or the rest of the contents of Ex. P-1 had projected him as the
murderer in the eyes of the elec- torate. Dr. Chitale, learned counsel
appearing for the first respondent relied upon the contents of paragraphs 14
and 19 of the petition to contend that the extrinsic facts to spell out the
innuendo were sufficiently set out there and those facts being known to the
electorate the said two offending statements were enough to point to the first
respondent as the murderer in the eyes of the electorate. We have already
referred to the relevant portions from the said paragraphs.
We do
not find any facts pleaded there whereby the elector- ate would gather an
impression that the first respondent was the murderer of the Said four victims.
17.
Barring his own testimony, all other evidence led by the first respondent is
also totally silent on this aspect of the matter. None of his witnesses has stated
anywhere that the contents of Ex. P- 1 had made out the first re- spondent as
the murderer of the four victims or even that they were capable of doing so. On
the other hand, all his witnesses without exception are unanimous that after
reading Ex. P- 1 the impression it created on them was that it referred to an
incident which had taken place on the previ- ous day or to an earlier incident
and nothing more. None of the witnesses has stated that Ex. P-1 even remotely
connect- ed the first respondent with the murders. This is what the witnesses
have stated:
747
V.H. Ashraft, PW-2 states in his examination-in-chief as follows:
"I
read Ex. P-1. The impression that it created in me was that it referred to an
incident that took place on the previous day." In cross-examination, the
witness states:
"On
seeing a copy of Ex. P- 1 my first impression was that it is an issue of the
daily paper for that day ..... I did not go through Ex. P-1 in full.
Immediately I have gone through the daily issue also. At that time I realised
that Ex P-1 did not relate to an incident that took place on the previous day.
After that when I read Ex. P-1 I further realised that it relates to some
incident on an earlier occasion".
VSA Muthaliff,
PW-3 in his examination-in-chief states as follows:
"On
reading Ex. P-1 I thought that it is a supplement pub- lished in connection
with the election. I thought that it is a supplement of Malayala Manorama Daily
for that day. I thought that it was the report regarding murders in connec- tion
with the election".
M.K. Saidalavi,
PW-4 in his examination-in-chief states as follows:
"On
reading Ex. P- 11 thought that it was the news about a murder that took place
the previous day. The impression that 1 gathered was that murder was committed
by the Communists ...... I thought that Ex. P-1 is likely to affect Left United
Front adversely." In cross-examination, the witness says as follows:
"I
had occasion to talk to my friends about Ex. P-1. After reading Ex. P-11
understood that it was not the news of a recent incident. I had occasioned to
read about that inci- dent earlier in 1983. On going through Ex. P-1 I
understood that it related to an incident that took place in 1983." C.J.
Dominic, PW-5 in his examination-in-chief states as follows:
748
"On reading the headlines I went to the market. When I returned home the
talk there was as if murder took place the previous day. Then in order to clear
doubt I went to the reading room. On going through the daily issue of the Ma- layala
Manorama I was not able to find the news in Ex. P- 11 felt sorry that such a
murder took place on the eve of the election." K.D. Abdu, PW-6 states in
his examination-in-chief as fol- lows:
"I
read the copy of Ex. P-1 I realised that it was a con- scious attempt on the
part of the United Democratic Front to defeat the petitioner in the election.
Copies of Ex. P- 1 were supplied by them in almost all the houses in the local-
ity. Majority of the voters in that locality was ladies and they were
illiterate also." In cross-examination, the witness states as follows:
"Regarding
Ex. P- 1 my enquiry revealed that almost all the persons of the locality had
complained. I went through the entire copy of Ex. P- 1." Then it appears
that there is a note by the court that the witness says that Ex. P-1 was
purposely intended to defame the petitioner. The witness further stated in
cross-examina- tion as follows:
"When
I talked to the petitioner (i.e., the first respond- ent) about the speeches I
made mention of the copy of Ex. P- 1 also. He did not ask for a copy. ' ' K. Prakash,
PW-7 in his examination-in-chief states as follows:
"On
reading such posters Ex. P-1 the news appeared to me to be true. It was only
after the election that I came to know that the impression was not
correct." Though T.M. Darar, PW-8 states in his examination-in- chief that
he had seen copies of Ex. P- 1 being distributed in 7th Division and he also
alleges that he had seen the copy of the said pamphlet and the wall posters
containing the photographs of the appellant seen pasted there, he does not give
the impression about the same. However, in crossex- amination he states as
follows:
749
"I went through the copy of Ex. P-1. On reading I understood that it is an
old story." Thanhapen, PW-9 in examination-in-chief has nothing to state.
However, in cross-examination he states as follows:
"1
did not read the copy of Ex. P- 1 in full when it was given to me. Even before
reading I was pained to see it.
Pain
was because I saw that four persons were murdered.
After
going over to my daughter's residence on the same day I read another copy of
Ex. P-1 in full. On reading I under- stood that it is an old story. Then the
pain that I felt at first was slightly relieved. But the pain continued because
after all murder is murder." C.S Devadas, PW-10 in his cross-examination
states as fol- lows:
"The
impression that I gathered was that the Marxists are murderers and therefore
instead of giving votes to them it must be given to the 1st respondent (i.e.,
the appellant)." Sathyan, PW-13 in his examination-in-chief states as fol-
lows:
"In
Ex. P-1 there was also a statement of the 1st respond- ent. The reading of the
news regarding 4 murders appears at first sight to be an item of news going
adverse to the petitioner. This news item was a general discussion in the
locality." In cross-examination he states as follows:
"When
I got Ex. P-1 I read through the same. Even after reading Ex. P-1 in full I was
not able to realise that it was the news of murders committed much earlier.
Even after discussions with others I did not realise that it was an earlier
incident. It had news importance. It was only after the election that I came to
understand that the news item in Ex. P-1 related to an earlier incident.
Discussion was with my colleagues. They said that they also got the copies of
Ex. P-1. They are persons without politics. I did not bring this news item to
the notice of the petitioner (i.e., the first respondent).
750
5. The
workers of the petitioner (i.e., the first respond- ent) also used to come to
me for canvassing. I asked them about the news in Ex. P- 1. They said they knew
about it.
This
was after lunch on the date previous to election. When Rajappan and Vasukutty
gave a copy of Ex. P-1 to me others were waiting outside. On seeing and reading
a copy of Ex.
P-1 it
appeared to me to be a supplement of Malayala Manora- ma daily for that day.
Even after reading. the news item in Ex. P- I, on account of the importance of
the news, I had no occasion to think about it further to ascertain whether it
is a recent news or an old news." P.M. Kaviraj, PW-14 in his
examination-in-chief has only this to say:
"I
heard ladies saying that the news contained in Ex. P-1 is a cruel act." In
cross-examination he says as follows:
"On
getting PW- 1, I read through it in entirety. Even then 1 understand (sic) that
it is the news of an old incident.
My
impression was that it was the news relating to an inci- dent which took place
on that date. I did not inform the petitioner that I read EX. P- 1. I wanted to
tell him but I did not do so. Till now I did not inform him. That is be- cause
I am not interested. I told my friends. It was then that I knew that it was an
old news." T.A. Guide, PW-15 in his examination-in-chief states as
follows:
"The
persons mentioned in Ex. P-1 who have been murdered are my neighbours." In
cross-examination he states as follows:
"On
reading of Ex. P-11 understood that it related to an earlier incident. We
discussed the matter at home. I also discussed the matter with some
friends."
18.
Thus, it is clear from the testimony of the first respondent's witnesses that
the contents of Ex. P-1 gave them an impression variously as either the
incident had occurred the previous day or that it was 751 an old story or that
the Communists or Marxits were murder- ers or that it was a cruel act or that
it was unfavourable to the first respondent. The impression conveyed by the
document that the Marxists or Communists were murderers and therefore the
electorate should not' vote for them and hence it was unfavourable to the first
respondent, was not an impression about his personal character/conduct. It was
an impression at best about his political character/conduct. In particular
there was no impression that he was the murderer or one of the murderers.
19. As
far as the petitioner himself is concerned, in paragraph 2 of his deposition in
examination-in-chief he makes a general statement as follows:
"Personally
against me the propaganda on behalf of the first respondent (i.e., the
appellant) was that I am a murderer, a non-religious man and one who is unfit
to be elected as a member of the legislative assembly." Thereafter in
paragraph 19 of his deposition he says with reference to Ex. P- 1 as follows:
"The
original of Ex. P-1 was printed and published on a Sunday which was 22.5.83,
distribution was on a Sunday which was 22.3.1987. Four murders were described
as incidents which took place on the previous day. Out of the 4 murdered, the
photos of two dead bodies lying in the hospital were also published therein.
Ex. P-1 mainly contained the news about murders alone. The intention behind the
publication was to make the electors understand 4 murders that took place in
1983 as murders that took place on the previous day. That paper also contains a
request by the committee with the photos of 1st respondent (i.e., the
appellant) and Rajiv Gandhi. In the request it is specifically stated 'that it
is only common knowledge as to who is behind the murder.
So
also it is written that the Marxist leader who is arrest- ed is also known to
all. That was the result of a conspiracy consciously entered into for the
purpose of maligning and exposing me as a murderer and an undesirable person. I
was never an accused of any murder case.
20. In
connection with the 4 murders described in Ex. P- 1 a 752 case was registered
against me for having given shelter to the accused in that case. There were
several meetings in protest against my rest in connection with that case
stating that it is a false case. 1 had absolutely no involvement in giving
protection or shelter to those persons. Subsequently that case ended in
acquittal. In the main protest meeting held at Thoppumpadi one of the speakers
was the 1st respond- ent himself. (i.e., the appellant). At the time of those
murders in 1983 Mr. Vayalar Ravi was the Home Minister. He was also the leader
of the Union in the Cochin Port Trust. I was
also a worker of a rival union there. There were differ- ences of opinion
between myself and Mr. Vayalar Ravi. There- fore it was at his instigation that
I was implicated in a false case." (emphasis supplied) Then there is a
Court question: Whether the murders of those persons were political murders?
The answer is: Those four murdered persons were anti-social elements. There was
no politics involved in it. Then he continues to state:
"The
publication of Ex. PW-1 on the date previous to the election had the effect of
creating an impression among the impartial electors that I am a person involved
in murders ..... If such a propaganda is made as was done in this case the
opposite candidate will not be getting an opportunity to rectify the result.
1st respondent and his workers were fully aware of the fact that I am
completely innocent in connection with the murders of the said four persons.
Since they were fully aware of the fact that I am sure to succeed in the
election, this story was purposely manipulated as a result of conspiracy."
"22. Ex. PW-1 when it was published had the appearance of a real issue of Manorama.
Daily People on reading the report went under the impression that what was
contained therein was the news of an incident which took place the previous
day. On seeing copies of Ex. PW-1, many of my workers and electors also
telephoned and told me that a supplement of Malayala Manorama was seen. They
also inquired about the murders mentioned therein. Since I was not able to get
an opportunity of bringing the real facts 753 before the electors, myself and
my workers were in a help- less condition." (emphasis supplied) In his
cross-examination he states in paragraph 32 of his deposition as follows:
"The
fight hand side of Ex. P- 1 contains a true copy of the Malayala Manorama. In
that portion there is no difference.
On the
left hand side and the lower portion of the right side there are certain
additions. The news item in Ex. P-1 regarding murders are correct in all
details. What is wrong is only that it was published as if to appear that it
was an incident that took place on the previous day. My complaint is that an
impression was created among the people that it was an incident that took place
on 21.3.1987. Even after reading the whole of Ex. P-I people go only under the im-
pression that the incident happened on the previous day. My memory is that I
have specifically alleged in the petition that such an impression was created.
It was unfavourable to my interest only on account of the creation of such an
impression that it was an incident that happened on the previous day. My
complaint is that I did not get an opportu- nity to correct the impression
before the polling. I have alleged in the petition that such an impression was
created among the voters and I did not get time to correct the impression
before the polling. In the true copy of Malayala Manorama contained in Ex.. P-1
there is nothing against me.
On the
left hand side of Ex. P-1 is the request to vote for the 1st respondent even
though my name was not mentioned it was intended against me. Even without
mentioning my name it is possible to know that it was intended against me. The
writings in that request capable of identifying me as the culprit are the
statements that the persons responsible are known to all and the Marxist leader
who was arrested was also known to all." (emphasis supplied).
He was
then asked the question: "Have you so stated in the petition?" The
answer was "My memory is that it is so stat- ed". He then proceeds to
state as follows:
"If
I remember correct I have stated in the petition that the person intended by
the arrested Marxist leader is my- self.
754
Many persons who gathered such an impression contacted me over phone. I did not
examine anybody among them. I have examined several persons for proving the
distribution of Ex.
P-1.
None of those witnesses were asked by my counsel wheth- er any of them
understood the reference in the request contained in Ex. P-1 as concerning me.
I was present in court when those witnesses were examined. I did not ask any of
them whether they continued to hold the impression that the murder took place
on the previous day ..... My impres- sion is only from what my workers told
me." (emphasis supplied)
20. We
have supplied the emphasis at the proper places in the first respondent's
testimony reproduced above. He has himself admitted that all those who read Ex.
P-1 gathered an impression that the incident had occurred on the day previous
to its publication. If that is so, then even the statements in Ex. P-1 that
"Every body knows the hands behind that murder. The Marxist leader
arrested is also known" were not connected by the people with his arrest
for harbouring the accused in the old murder case and vice versa. The first
respondent has repeated his allegation that the people had thought that the
incident had taken place on the day previous to the publication of Ex. P-1 at
places more than one in his testimony. He has also placed his own
interpretation on the said publication which is incompatible with the extrinsic
facts stated by him in support of the innuendo meaning of the publication.
According
to him
(i) the
four murders were described as incident which had taken place on the previous
day;
(ii) the
intention behind its publication was to make the electorate believe that the
murders which had taken place in 1983 were murders that had taken place on the
previous day;
(iii) it
is in the context of this intention that it was specifically stated that it was
only common knowledge as to who was behind the murders.
So
also in the context of this intention that it was written that the Marxist
leader who was arrested was also known to all;
(iv) again
it is to explain this intention that he has given the extrinsic facts, viz.,
that in connection with the four murders described in the publication a case
was registered against him for having given shelter to the accused in that
case. He has also stated that there were several meetings in protest against
his arrest and that in the main protest meeting the appellant was one of the
speakers on his behalf;
(v)
according to him further the people on reading the report gathered the
impression that what was stated in the publication was the news of an incident
which had taken place the previous day;
(vi) further
what 755 was wrong with the publication, according to him, was only that it was
published as if to appear that it was an inci- dent that had taken place on the
previous day. He has reit- erated this by specifically stating that his
complaint was that an impression was created among the people that it was an
incident that had taken place on March 21, 1987. Accord- ing to him, further
even after reading the whole of Ex. P- 1 people went only under the impression
that the incident had occurred on the previous day. It is his case further that
he has specifically alleged in the petition that such an im- pression was
created and that it was unfavourable to his interest only on account of the
creation of such an impres- sion, viz., that it was an incident that had
happened on the previous day. He has then stated that even though his name was
not mentioned, it was intended against him, and that even without mentioning
his name it was possible to know that it was intended against him and that the
publication was capable of identifying him as the culprit because of the
statements that "the persons responsible were known to all" and
"the Marxist leader arrested was also known to all.
Although
he has also added at the end that many persons who gathered such an impression,
viz., that he was meant by the publication, had contacted him over phone, he
admitted that he did not examine anyone from among the said persons.
This
is a telling circumstance against him because he had followed as a witness
after all his witnesses were examined, and he knew that none of his witnesses
had stated that they had connected the imputations in the publication with him.
On the
other hand, as stated earlier, not only all his witnesses had stated that they
had gathered the impression that the incident had taken place the previous day
but he himself was of the view that the publication was meant to create such
impression and that it did so. Hence, there was no reason for the electorate to
connect him with the said incident even remotely.
21. On
his own testimony as well as on the testimony of his witnesses, therefore, it
is clear that the publication was intended to create an impression and did
create an impression that the incident of murders had taken place a day
previous to the election. If that is so, then the publi- cation and the two
allegedly offending statements in the same did not connect him with the murders
much less had they called him a murderer. Even his arrest for harbouring the
accused in the old incident of murders was not capable of identifying him as
the murderer in the eyes of the people.
None
knew who were the accused and who were arrested in connection with the murders
which were committed the previ- ous day. The people, however, certainly knew
that the first 756 respondent was not arrested in connection with the said
murders. Hence the extrinsic facts which the first respond- ent stated in his
testimony for the first time even if they were given in the pleadings would not
have spelt out the corrupt practice. For those facts in the face of the asser- tion
of the first respondent himself were incapable of identifying him as the
murderer in the eyes of the elector- ate. For these reasons, we are of the view
that the extrin- sic facts given for the first time by the first respondent in
his testimony were incapable of identifying him as the hand behind the murders
or as the murderer in the eyes of the people.
22. We
are also of the view that in the absence of the extrinsic facts supporting the
innuendo meaning of the publication, the petition lacked the statement of
material facts for spelling out the corrupt practice complained of.
Either,
therefore, the allegation of the corrupt practice should have been struck off
or the petitioner ought not to have been allowed to lead evidence in support of
it. For, as stated earlier, whenever an innuendo is alleged, a statement of
material facts as required by Section 83(i)(a) of the Act is not complete
without stating the extrinsic facts spelling out the innuendo meaning. It is
the publication together with the extrinsic facts which in such circumstances consti-
tute the corrupt practice. The absence of the statement of such facts is not an
absence of the particulars of corrupt practice but an absence of the averment
of material facts themselves. Hence, it is not necessary for us to deal with
the controversy raised before us with regard to the respon- sibility of
furnishing of or asking for particulars.
23. It
is necessary, in this connection, to make a distinction between a purely libel
action and an allegation of corrupt practice in an election petition. Both, for
libel action as well as for an allegation of corrupt practice in an election
petition, it is necessary to plead as well as to prove the extrinsic facts to
spell out the innuendo meaning of the words complained of. However, whereas in
a libel action it may further be necessary to prove that those with special
knowledge of the extrinsic facts were likely to interpret or understand the
words complained of in a defama- tory sense, in an election action, it may not
be necessary to do so and all that is necessary is to prove that the words
complained of were reasonably calculated to prejudice the prospectus of the
defamed candidate's election. However, this latter distinction does not
obliterate the similarity between the two actions, viz., that in each case in
the first instance the defamation is to be spelt out by pleading the necessary
extrinsic facts. In a libel action, the ex- trinsic facts constitute a cause of
action whereas in the election action they 757 constitute the corrupt practice.
In other words, without them, there is no cause of action in the libel suit and
no allegation of corrupt practice in an election petition.
24.
Dr. Chitale, however, contended that the appellant had nowhere stated that the
first respondent was not intend- ed to be referred to by the said publication.
In this con- nection, he invited our attention to the appellant's deposi- tion.
In his cross-examination on the subject. In paragraph 25 the appellant has
stated as follows:
"The
statement contained in Ex. P-1 may give an impression that it was in the name
of the Election Committee. On a reading of that statement, it would appear that
it was on behalf of the Election Committee." There were then the following
questions and answers:
Question:
Do you agree to the contents of the statement included in Ex. P-17 Answer: I do
not have any disagreement.
Question:
In the statement contained in Ex. P-1 it is stated that everyone knows persons
behind the murder and also the Marxist leader who was arrested in that
connection. What is your opinion regarding those statements? Answer: That is
only a repetition of an incident that took place in 1983. I cannot say what was
the intention behind that statement and who was intended thereby. Question: No
Marxist leader was arrested in connection with that case. Further on a reading
of that statement the impression that could be gathered is that the Marxist
leader in the election was responsible for the murder and he was arrested. Is
it so? Answer: I have nothing to do with that statement. And I was not able to
gather such an impression on reading it. I do not think that anybody else also
will go under that impression. Question:
When
any such statement is reprinted and published, it must be intended for
upsetting the candidate..Answer: That de- pends upon the intention entertained
by the person. I cannot give an opinion. Question: When the petitioner (the
first respondent) was the Deputy Mayor of the Cochin Corporation, was he not
arrested in connection with that case under the false accusation that he gave
shelter to the accused? An- swer: I remember that the petitioner (the first
respondent) was arrested in connection with such a case. He then pro- ceeds as
follows:
"I
was a speaker in a meeting in protest against his arrest.
I
spoke in that meeting because I felt that it is a politi- cally motivated false
case. In 1983, I have gone to the hospital 758 where the dead bodies were taken
for post mortem." In the first instance, in the absence of the statement
of the material facts in the petition as stated above, the appellant was not
called upon to join issue with them in his written statement. Secondly, there
is nothing in his testi- mony referred to above, which helps the first
respondent in his case that the publication had referred to him as the
murderer. This is more so, because, as stated above, the first respondent
himself has interpreted the publication as creating an impression of a
different murder.
25.
The next corrupt practice of which the High Court has found the appellant
guilty is the wall-poster affixed on the Palace Road on the northern side of
the City Rationing Office, within 25 yards from the polling station. Near this
wall-poster was also affixed Ex. P- 1. The contents of the wall-poster are as
follows:
"Defeat
murderer T.M. Mohammed who murdered four Christian brothers at Fort Cochin.
Our
symbol." Ex. P-14 is the close-up photograph of the said poster whereas
Ex. P-15 is a photograph from a distance as stated earlier. There is no doubt
that the contents of this wall- poster directly named the first respondent as
the murderer of the four victims, and if it is proved that the said poster was
affixed prior to the election by the workers of the appellant with his
knowledge and consent as alleged in the petition, nothing more has to be
established to hold the appellant guilty of the corrupt practice within the
meaning of Section 123(4) of the Act. The finding of the High Court on this
corrupt practice is recorded in paragraph 50 of its judgment. The High Court
has stated there that the writings were at the instance of the appellant and
with the consent of his election agent and that it was published in the
presence of and under the supervision of the appellant's election agent and
hence it attracts all the requirements of Section 123(4) of the Act. This
finding is attacked on behalf of the appellant before us. It is necessary,
there- fore, first to find out the allegations made by the first respondent in
his election petition in that behalf. The first respondent has alleged in
paragraphs 17, 34, 84 and 120 of his petition as follows:
"17.
The wall posters and writings on the walls arc done by the first respondent,
his agents and his workers with a view to propagate false aspects against the
petitioner and to mis- 759 lead the electorate that the petitioner is a
murderer and if anyone votes in favour of him the law and order of the society
will be adversely affected. This has misled the whole electorate which has
caused serious prejudice in the election of the petitioner.
X X X X
X
34. On
the Palace Road, on the northern side of the City Rationing Office the workers
of the first respondent with the knowledge and consent of the first respondent
affixed wall poster that the petitioner had murdered 4 Christian brothers at
Fort Cochin and hence the electorate shall vote against the petitioner and they
have to vote in favour of the first respondent. It is also relevant to note
that this is within 25 yards from the polling station and near this writing
they have affixed the reprinted Malayala Manorama daily on 22nd March, 1987
morning. This is to mislead the public that the petitioner is a murderer and he
had murdered four Christian brothers .....
X X X X
X
84. To
prove Annexures 20 and 21 the wall posters pasted on the walls near the City
Rationing Office, Palace Road, COchin, the petitioner is examining two witnesses
namely, (1) K. Prakash, House No. 8/796, T.D. East Raod, Cherali, Cochin-2 and
(2) J. Sundaram, Kocherry Junction, Pandikuddy, Cochin-2.
X X X X
X 120. Even before the distribution of reprinted Malayala Manorama the first
respondent has specifically instructed his workers to write on the walls and
also paste handwritten wall posters throughout the constituency publishing that
the petitioner is a murderer. The hand-written wall poster was pasted near the
City Rationing Office on the Palace Road, a
photostat copy of which is produced and marked as Annexure
20.
This was pasted by Anil Raj S. Thamaraparambu, Amarava- thy, Cochin-1. This
wall poster was written at the specific instruction of the Chief Agent and
convener of the election committee and in their 760 presence Anil Raj pasted
this wail poster on the wails. This fact was witnessed by K. Prakash and J. Sundaram.
Really these writings misled the whole electorate and give a bad impression
about the petitioner that he is a murderer, and he is responsible for the
murder of 4 Christian brothers.
This
is absolutely falsehood. This publication was done by the candidate, his agents
and by his workers with the con- sent and knowledge of the candidate and they
knew that this statement is false in relation to the petitioner."
26.
The allegations in the petition were denied by the appellant in his written
statement as follows:
"12.
Averments in paragraphs 30 to 35 are also false and are hereby denied. Neither
the first respondent nor his agents or workers have any knowledge of the wail
writings filed by the petitioner as Annexures 15 to 22. Nor were any such
writings made by any person with the consent or knowledge of this respondent.
Nor do the writings show anything beyond a criticism of the Marxist party on
grounds of law and order.
However,
the wall writings shown as Annexure 20 were not seen anywhere in the
constituency nor made by the respondent or his workers. It is deliberately
concocted by the peti- tioner. In these paragraphs also no material facts
required to impute a corrupt practice against the first respondent have been
stated. The entire allegations in the aforesaid paragraphs have been falsely
made.
X X X X
X 18 ...... The annexure 20 appears to have been deliberate- ly concocted by
the petitioner with an ulterior motive and the rest of the aforesaid annexures
are also similarly concocted nor do they show any corrupt practice. The further
contention in para 98 that these writing and wall posters appeared in the
constituency between 10th and 14th March 1987
is absolutely false. Nor were they done by this re- spondent or by his agents
or workers of the UDF. Neither, with the consent of the knowledge of the
respondent. The witness mentioned in paragraph 98 also appears to be parti-
sans of the petitioner.
X X X X
X 761
25.
The averments in paragraph 120 that the reprinted Ma- layala Manorama was
pasted and hand-written wallposter was published stating that the petitioner is
a murderer is entirely false and the averment that the first respondent
instructed his workers to do so is false. The averment that annexure 20 is a
photo copy of a handwritten wall poster near the City Rationing Office on the
Palace Road and this was pasted by Anil Raj and they are written on the
specific instruction of the Chief Agent and convener of the election committee
is wholly untrue and is denied ...........
X X X X
X
26.
The averments in paragraph 121 that this respondent has spent more than two lakhs
for the election purpose is wholly untrue. The expense incurred by this
respondent for the election has been strictly within the limits prescribed by
law, and the ejection accounts of this respondent have been duly submitted as
required by law. The petitioner is fur- nishing a wholly fanciful idea of Auto rikshaws
and cars etc. out of his imagination in paragraph 121."
27. It
will thus be seen that in paragraph 17 of the petition, the first respondent
has averred generally that it was the appellant, his agents and his workers who
had pasted the wall-posters. Secondly, in this paragraph he has not specified
any wail or walls on which the poster was pasted.
Thirdly,
he has attributed the pasting only to the appel- lant, his agents and his
workers. There is no mention of the election agent. What is further in this
paragraph he has not said whether the workers had done it with the Appellant's
consent or knowledge.
As
regards the averments in paragraph 34 of the peti- tion, the first respondent
does state that the workers of the appellant had pasted the wall-poser with the
knowledge and consent of the appellant. But it is necessary to remem- ber here
that he does not mention in this paragraph either the agent or the election
agent nor does he state here that the pasting was ,done with the knowledge and
consent of the election agent. What is further important to note is that in
this paragraph he mentions the pasting of the poster only on one wall and that
is the Palace Road wall near the City Rationing
Office.
762 In
paragrah 84 again, he specifies that he is going to examine witnesses in
connection with the pasting only on one wall, viz., the same wall on the Palace
Road near the City Rationing Office, and he gives the names of two witnesses
and one of them, viz., K. Prakash (PW-7) has been examined in that connection.
In the
last paragraph where there is a reference to the said posters. Exs. P- 14/P-
15, viz., paragraph 120, al- though there is a vague mention of the
"walls", the only wall specified is the same wall on the Palace Road. In this paragraph, again the
averment is that the said pasting was done by the workers and agents with the
knowledge and con- sent of the appellant. In this paragraph, for the first time
he has introduced the "Chief Agent" and the convenor of the Election Committee,
and the allegation is that the wall- poster was written at the specific
instructions of the said Chief Agent and the Convenor. He has not specified who
the Chief Agent and the Convenor of the Election Committee were.
Although
Dr. Chitale submitted that the expression "Chief Agent" should be
construed to mean election agent, it is not possible for us to accept the
submission for reasons more than one. In the first instance, the pleadings with
regard to corrupt practice have to be specific since everyone who is guilty of
the corrupt practice is liable to be prosecuted for the offence. Secondly,
except in this paragraph, we don't find there is a reference to any such person
as Chief Agent. Wherever the first respondent wanted to refer to the election
agent, he has done so. It cannot, therefore, be argued that he does not know
the difference between the election agent and the Chief Agent.
28.
The averments in the petition, therefore, bring out two facts in particular
prominently. One is that, though the first respondent has alleged vaguely in
paragraphs 17 and 120 of the petition, that the wall-posters were on more walls
than one he has specified no wall in paragraph 17 and he has referred to only
one wall, i.e., the Palace Road wall in all the other relevant paragraphs, viz.
,, 34, 84 and 120. What is more, in paragraph 84, he had made it clear that he
was going to examine witnesses only in connection with the pasting of the
poster on the said one wall and no more. Secondly, even with regard to the
pasting of the wall-poster on the said wall, he is not sure as to who had done
it and with whose knowledge and consent. As pointed out above, in paragraph 17
he has stated that only the appel- lant's agents and workers had pasted it. He
has not stated that his workers had done it with the appellant's consent or
with the consent of the election agent. In paragraph 34 no doubt he states that
the appellant's workers had done it with the knowledge of the appellant, but in
paragraph 120, he 763 states that it was done at the specific instructions of the
Chief Agent of the appellant and in the presence of the Chief Agent and the convenor
of the Election Committee.
Nowhere
in the petition it is stated that it was done with the knowledge and consent
and at the instance of or in the presence of the appellant's election agent.
This assumes importance because his witness, K. Prakash (PW-7) as will be
pointed out hereafter, has come out with a version which is inconsistent with
the averments in the petition and has stated that the pasting of the poster on
the Palace Road wail was being done under the supervision among others of
Joseph Katithara, who was the appellant's election agent.
29. As
regards the evidence which the petitioner has led to prove Exs. P-14 and P-15. we
find that although he had cited two witnesses, viz., K. Prakash and J. Sundaram,
to prove the lone wallposter on the Palace Road only one wit- ness, viz. K. Prakash is examined. Though K. Prakash
(PW-7) was cited to prove the lone wail-poster on the Palace Road, he has from the witness box deposed
to the fact that he had seen "wall-posters" being pasted on the
Saturday, a week prior to the election. Since he is the only witness who has
been examined to prove the actual pasting of the wall-poster and the appearance
of the wail-poster prior to the election, his deposition has to be scanned
carefully. He has stated that he resided in the 8th Division of the Mattancherry
Assembly Constituency. In examination-inchief, he stated that he was a medical
wholesale distributor. He had also an occasion to see a copy of Ex. P-1. It was
given to him at his residence on the date previous to the election. He has also
named the appellant and M/s. M.K. Latif, Naveen Kumar, Radhakrishnan and others
as being the persons who had brought the copy of Ex. P-1 to his residence.
Indeed he seems to be a very important man, since not only the workers of the
appellant but the appellant himself had, according to him, gone to his
residence specially to deliver a copy of Ex. P-1 to him. Then he has deposed to
the fact that he had seen copies of Exs. P-14 and P-15 being pasted on the
"wails" and not only one wail near the City Rationing Office on the Palace Road. He admits that Ex. P-14 is the
close-up photo and Ex. P-15 is the distant photo of the same poster.
It is,
therefore, difficult to understand how he could have seen both being pasted.
May that be as it is. It has further to be remembered that both Exs. P- 14 and
P- 15 are the photographs of not only the wail-poster but also of Ex. P-1 which
was pasted by its side. Because, he has gone on to say that he had seen
"wall-posters" being pasted on Saturday, one week prior to the
election. Since it is the case of the first respondent himself that Ex. P-1 was
printed and pub- lished only a day prior to the election, it is difficult to
understand as to how this witness 764 could have seen the wall-poster together
with Ex. P- 1 being pasted one week prior to the election. He has then named
Anil Raj, Joseph Katithara who is the election agent of the appellant, K.M.
Mohammed, Radhakrishnan and other unnamed workers of the UDF being persons
present to supervise the pasting of the wail-posters.' Thereafter, he has
corrected himself by saying that at that time the "photo" of Ex. P-1
was not there, a statement difficult to follow. According to him at the time he
saw the pasting being done, his co-worker was also there. He has not named him
nor is he examined. It is then his case that on the day previous to the
election, he also saw a copy of Ex. P-1 being pasted near the wall- poster. Of
course, this witness has also deposed to the writings on walls which are Exs.
P-16, P-17 and P-18 with which we are not concerned in this appeal but about
which the first respondent had made serious complaint in the petition before
the High Court which has been rejected by the High Court. He is thus a witness
not only for the past- ing of Exs. P- 14/P- 15 on all the walls in the City but
for a similar pasting of all other exhibits complained of. An omnipresent
witness indeed.
In
cross-examination he was asked whether he was not the Secretary of the Election
Committee of the first respondent in Division No. 8 and also the branch
Secretary of the Marxist Communist Party. He denied the said suggestion and
stated that he did not work in the election for the first respondent and that
he had no politics and he was not a member or sympathizer of any political
party. He has also gone on to maintain that he had seen wail-posters similar to
Ex. P-14 in other places and has named some of the places as Anavadil, UCO
Bank, Cherlai, Pandikuddy Junction. He has then stated contrary to what he had
stated in his examina- tion-in-chief, that he had not seen the act of pasting
of Ex. P-1 and he did not know who pasted Ex. P-1 near Ex. P-14 although in
examination-in-chief he has categorically stated as follows:
"On
the day previous to the election I saw copy of Ex. P-1 being pasted near the
wall-poster."
30.
Time and again, the courts have uttered a warning against the acceptance of a
non-corroborated oral testimony in an election matter because it is not only
difficult to get a non-partisan witness but is also easy to procure partisan
witnesses in such disputes. The courts have, there- fore, insisted upon some
contemporaneous documentary evi- dence to corroborate the oral testimony when
in particular such evidence could have been maintained. The dangers of
accepting only 765 the oral testimony are illustrated by this witness. In the
first instance, this witness was cited by the first respond- ent himself to
prove only Exs. P- 14/P- 15 pasted on one wail, viz., the City Rationing Office
wall on the Palace Road as has been stated clearly in paragraph 84 of the
petition. Even if we construe the said paragraph in the petition liberally, it
can only mean that this witness was cited to prove the "wallposters"
being pasted on the "walls" near the City Rationing Office on the
Palace Road. He was not cited to depose to posters on walls in any other part
of the City. Secondly, the petitioner has not produced any documentary evidence
such as the photographs of the posters on the other walls even near the City
Rationing Office not to speak of the walls in other parts of the City. Ex. P-15
shows the long length of the wall. But except for this poster there is no
poster on any other part of that wall seen in the photograph. Assuming that
there were posters on the other walls, even near the City Rationing Office, we
have no evidence in that behalf much less of the posters on the walls in the
other parts of the City. The witness has, however, chosen to depose to his
having seen posters on walls in other pans of the City to which again there is
no specific reference in the petition. It was the duty of the petitioner to
give the particulars of the posters on the other wails or in other parts of the
City. His testimony is also suspect for other reasons as well. Firstly, this
wit- ness has also deposed to the fact that he had received a copy of Ex. P-1
on the day prior to the election and what is' further, he has gone to the
extent of saying that it was the appellant himself who along with his election
agent and other workers had gone to his residence to deliver the said copy. It
is difficult to believe that on the day prior to the election the appellant and
his election agent in partic- ular, will have no other work but to go from
house to house distributing Ex. P-1. Secondly, the witness has also deposed to
the fact that he had not only seen the wall-poster, Exs. P- 14/P- 15 but he had
also seen other wall-posters which were the subject matter of the petition.
What is further, according to him, he had also seen Exs. P- 14/P- 15 being
pasted in his presence by one, Anil Raj under the supervi- sion of the
appellant's election agent Joseph Katithara and the workers of the UDF one week
prior to the election. We have pointed out above that in the petition there is
no reference to the election agent in this connection anywhere and the
reference to the Chief Agent cannot be construed as a reference to him. What is
further, he has also in his examination-in-chief gone to the extent of saying
that even when Ex. P- 1 was pasted near Ex. P- 14, a day prior to the election,
he had seen the actual pasting. This, of course, he retracted in his
cross-examination when he stated that he had not seen the said act of pasting.
We have, therefore, a witness here who is 766 omnipresent at all crucial times
and places and has no compunction in contradicting himself on vital matters. It
is this witness that we are asked to believe in support of the first
respondent's case that the wail-poster Exs. P-14/P-15 was pasted by the
appellant's agents and workers under the supervision of the appellant's
election agent. Needless to say that his testimony has to be discarded being of
a very doubtful nature.
31.
The only other witness who is examined in connection with Exs. P-14/P-15 is the
photographer, K.J. Simon (PW-25).
Even
according to this witness, he had taken the photo- graphs, Exs. P-14/ P-15 on
March 25 and 26, 1987, i.e., two days after the election. Therefore, even if we
accept his evidence that he had taken the photographs in question on the said
days, that will not support the first respondent's case that the said posters
were there prior to the election day. The appellant's cross-examination of this
witness was directed to prove that he had not taken the photographs even on
25th and 26th March,
1987 but at a much
later date and just prior to the filing of the present election petition.
The
appellant's case both in his written statement as well as in the Court is that
the wall poster of which Exs. P- 14 and P-15 are the photographs was concocted
much after the election and only for the purpose of the election petition.
It is
in the light of this case of the appellant that we have to scrutinise the
testimony of this witness. The wit- ness says that Ex. P-14 is the chose-up
photograph of the wail writing near the City Rationing Office and Ex. P-15 is
its long-distance view and that he had taken the photographs in question on
March 25 and 26, 1987. In cross-examination, he was asked whether since he was
a professional photogra- pher and had his studio, he kept accounts. His answer
was that he kept accounts only for the indoor work and not for the out-door
work--an answer which is very difficult to appreciate. The answer was given
obviously to forestall the further investigation in the matter by compelling
him to produce his account books which would have shown the date on which he
had actually taken the photographs. He was then asked as to how he had
remembered the dates on which he had taken the photographs of various other
posters including Exs. P-14/P-15. To that he replied that he had given the
dates of the photographs from his memory. To test his memo- ry, he was asked
that since he was also taking photographs of marriage ceremonies which were on
an average three or four times in a month, he could give the dates on which he
had taken photographs in connection with some of the mar- riages. To that
question, of course, he answered in the negative. This witness, further, who
was called only to depose to the fact that he had taken the photographs in
question, has 767 gone further and stated that all the wall-writings and
wall-posters appeared to him to be old and he had "seen them
earlier". According to him, further, they were written even two days prior
to the date of election. He also goes on to say that Ex. P-1 was seen by him on
the day prior to the election. Although he stated that he was paid Rs.800 for
the photographs and Rs.1,000 for copies thereof, he did not enter the amounts
in his accounts. He stated that he had a Bank account but he did not remit the
amount to the Bank. He then stated that in his studio there would be no record
to show that the photographs were taken. He also stated that he had not given
any receipt for receiving the payment. It was then suggested to him that he was
a sympathizer of the Marxist Party which suggestion, of course, he denied.
His
testimony not only fails to impress us, but leads us to believe that there is
much force in the contention of the appellant that the poster in question was
concocted at a later day. For otherwise it is difficult to explain as to why
the witness who in the ordinary course should maintain his accounts and other
documents should keep them from the court on pretexts which are not only far
from convincing but positively doubtful.
32.
There is yet another and a very important reason as to why the entire version
with regard to Exs. P-14/P-15 has to be rejected. The first respondent has come
to the court with a version that the wall-poster and such other posters were
pasted on walls in the different parts of the constitu- ency at least a week
prior to the election. Admittedly, such false propaganda is an electoral
offence punishable both under Section 127A of the Act and Section 17 I-C of the
Indian Penal Code. The first respondent or his agents and workers could have
made complaints both to the Election Officer as well as to the police in that
connection immedi- ately, and a regular panchnama of the same could also have
been made at the time. That would have been the best evi- dence of the said
allegation. We have no doubt that the first respondent and his workers would
not have failed to do so had the posters been pasted at the time alleged by
them.
We
are, therefore, impelled to reject the evidence produced by the first
respondent in connection with the publication of the wallposter represented by Exs.
P- 14/P- 15.
33. In
the circumstances, the finding of the High Court in respect of both the alleged
corrupt practices will have to be set aside and 768 is hereby set aside. Hence,
we allow the appeal, set aside the order of the High Court and dismiss the
election peti- tion. Interim order passed by this Court also stands vacat- ed.
In the circumstances of the case, the parties will bear their own costs.
The
Registry will take immediate action under Section 116C (2) of the Act.
G N.
Appeal al- lowed.
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