Mahendra
Singh Vs. Gulab [2005] Insc 325 (10 May 2005)
Cji
R.C. Lahoti, G.P. Mathur & P.K. Balasubramanyan P.K. Balasubramanyan, J.
This
is an appeal under Section 116A of the Representation of the People Act, 1951
(hereinafter referred to as 'the Act'). The appellant was the petitioner in the
election petition filed before the High Court. The appellant and the respondent
contested from 94 Erandol Assembly Constituency in Maharashtra in the general elections held on
5.9.1999.
The
respondent was declared elected. The appellant, so to say, was the runner up.
The appellant filed the election petition before the High Court of Bombay, Aurangabad
Bench, under Section 80 of the Act seeking a declaration that the election of
the respondent was vitiated since the respondent was guilty of corrupt
practices as defined in Section 123 (4) of the Act. Various statements said to
have been made by the respondent during the election campaign were put forward
as amounting to corrupt practices, before the High Court. The respondent denied
some of the statements, pleaded that none of them amounted to corrupt practice
within the meaning of the Act and that there was not even adequate pleading of
corrupt practices so as to justify the election petition even going to trial.
The
High Court rejected the preliminary objection raised by the respondent and
proceeded to try the election petition. The High Court found that the appellant
has not established the corrupt practices imputed to the respondent and has not
been able to successfully challenge the election of the respondent. Thus, the
election petition was dismissed. It is this dismissal that is challenged in
this appeal.
2.
Though as noticed above, various statements allegedly made by the respondent or
his supporters were put forward as constituting corrupt practices, before us,
only four instances and statements were urged as constituting corrupt practice.
The first was, the statement made by one Subhash Deorao Patil to the effect
that the appellant had taken money while voting for the Rajya Sabha elections.
The said allegation was made by Subhash Deorao Patil in the presence of the
respondent and it was urged that it must be taken to have been made with the
consent of the respondent.
The
other three statements were attributed to the respondent himself and according
to the appellant the respondent had alleged that the appellant had distributed
money to voters for securing their votes; that the appellant was drunkard and
that he had indulged in unfair practices to pass his examinations in his
earlier days. These statements were false to the knowledge of the respondent
and they related to the personal character of the appellant and these
statements were reasonably calculated to prejudice the prospects of the
appellant's selection. It may be stated that the Court which tried the election
petition, came to the conclusion that the appellant had not established his
case based on these aspects and dismissed the election petition. Learned
counsel for the appellant attacked the findings of the trial court and learned
counsel for the respondent defended the findings and sought dismissal of the
appeal.
3.
Section 123 of the Act describes what are corrupt practices. Sub- section (4)
thereof says that 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
or fact which is false, and which he either believes to be false or does not
believe to be true, in relation to the personal character or conduct of any candidate,
or in relation to the candidature, or withdrawal of any candidate, being a
statement reasonably calculated to prejudice the prospects of the election of
that candidate, amounts to a corrupt practice. In the light of this position,
we shall now deal with the effect of the four statements, one attributed to a
supporter of the respondent and the other three to the respondent himself.
i. The
statement attributed to Subhash Deorao Patil In the election petition it was
averred that Subhash Deorao Patil who was a leader of the Bhartiya Janata Party
(BJP), spoke at an election meeting held on 31.8.1999 at the instance of the
respondent, a Shivsena candidate, at Village Salva, Taluka Dhargaon, District Jalgaon.
The meeting was attended by approximately 2500 voters. It is alleged that Subhash
Deorao Patil made a speech lasting 3 to 4 minutes. The respondent, the winning
candidate, came to the dais while Subhash Deorao Patil was in the midst of his
speech. After the respondent had taken his seat on the dais, Subhash Deorao Patil
made the following statement:, "Money, when he remained with alliance in Zila
Parishad, he took money, Money. This is very important thing. I am telling the
citizens who are going. Money from the elections to Rajya Sabha is there. He
has taken money for voting as a voter. This money belongs to us. It is ours. He
has not earned it from home." The election petition after setting out the above,
proceeded to say that this statement was made in the presence of the respondent
and with his consent. The respondent in the speech he subsequently delivered,
did not disassociate himself from the above statement and did not protest
against it in any manner. According to the election petition, it was clearly
stated that the petitioner had accepted money for voting for the candidates in
the election to the Legislative Council. He was a sitting Member of the
Legislative Assembly.
The
Members of the Legislative Assembly are also voters for the election to the Rajya
Sabha. It was a clear statement that the appellant had accepted money for
voting in those elections. The statements made by Subhash Deorao Patil with the
consent of the respondent were clearly false and the maker of the statement as
well as the respondent believed it to be false and never believed it to be
true. The statement was in relation to the personal character or conduct of the
appellant and it was a statement reasonably calculated to prejudice the
prospects of election of the appellant. It cast a reflection on the appellant
as a person who takes bribe for voting and for supporting alliance in Zila Parishad,
Jalgaon. In support of this allegation, a certified copy of the video cassette
of the speech delivered by Subhash Deorao Patil delivered in Marathi, along
with the English translation was produced.
4. The
respondent in his written statement denied that the meeting at Salva was
attended by 2500 voters. He denied that Subhash Deorao Patil had addressed the
meeting with the consent of the respondent. He pleaded that he was not present
on the dais when Subhash Deorao Patil was addressing the meeting. The contents
of the election petition in that regard and the statement attributed to Subhash
Deorao Patil were denied. It was pleaded that the statements made by Subhash Deorao
Patil were not with the consent of the respondent. The cassette produced in
support of the election petition was not a certified copy of the video
recording. The respondent was not guilty of any corrupt practice in that
regard.
5. The
trial Court had framed a omnibus issue as issue No.1 reading "Whether the
petitioner proves that the respondent has committed corrupt practices under
Section 123(4) of the Representation of the People Act, 1951 on the grounds
mentioned in paragraph Nos. 5, 9, 13, 15, 17, 19, 21 and 23 of the petition?"
It was subsequently split up into nine issues so as to enable the Court to
specifically consider the allegations meeting-wise.
The
relevant issue regarding the allegation in paragraph 23 of the election
petition with which we are concerned here, was considered as issue No.1/9.
Though
a number of witnesses were examined in support of the election petition,
learned counsel for the appellant referred only to the deposition of the
appellant examined as PW 1 in support of his submission. Of course, he also
referred to the deposition of the respondent. It appears that no other witness
was examined specifically in support of this allegation in the election
petition. The High Court, after discussing the speech and the evidence,
recorded a finding that this part of the speech attributed to Subhash Deorao Patil
must be taken to be a statement regarding the personal character of the
appellant. But the High Court found that there was neither pleading nor
evidence that the speech delivered by Subhash Deorao Patil materially affected
the election in question. It also found that the appellant has not discharged
the onus cast on him, to prove that concerned statement was made by Subhash Deorao
Patil with the consent of the respondent. As a fact, the High Court found that
the respondent was no doubt occupying a seat in the dais at the moment the
particular statement was made by Subhash Deorao Patil, but then, the respondent
had arrived on to the scene while Subhash Deorao Patil was midway through his
speech.
There
was, therefore, no sufficient material to infer that the respondent had
consented to the above statement being made by Subhash Deorao Patil or that the
respondent had induced Subhash Deorao Patil to make such an allegation. The
Court found that though the respondent was a candidate of the BJP-Shivsena
alliance, the fact remained that the respondent was a member of the Shivsena
whereas Subhash Deorao Patil was a member of the BJP. According to the High
Court, the appellant did not have the needed control over Subhash Deorao Patil.
The High Court thereafter relied on the relevant decisions of this Court
referred to in the judgment under appeal and came to the conclusion that the
statement attributed could not be said to be a corrupt practice indulged in by
the respondent. The High Court noticed that the respondent had delivered his
speech after conclusion of the speech of Subhash Deorao Patil but had not
specifically repudiated the statement. But even then, the Court held that there
was no adequate material to find that this amounted a corrupt practice. The
Court also did not enter a finding that the statement was a false statement
made to the knowledge of the respondent or his agent. It noticed that there was
not even a plea that the prospects of the appellant in the election was
materially affected by the above statement.
6.
Learned counsel for the appellant relied on the decision in Chandrakanta Goyal
v. Sohan Singh Jodh Singh Kohli , (1996) 1 SCC 378 and read to us paragraph 9
of that decision. He placed emphasize on the observation, "It is a
different matter that the consent may be implied more readily from
circumstances such as conduct of the candidate evident from his personal
presence at that time and place without any protest."
He
submitted that since Subhash Deorao Patil was not a leader of the BJP, the
inference of consent was readily available in this case. Learned counsel for
the respondent relying on the very same judgment pointed out that the
circumstances clearly show that there was neither express or implied consent on
the part of the respondent to the statement so made by Subhash Deorao Patil as
it is established that the respondent himself arrived on the dais only when Subhash
Deorao Patil was midway through his speech, though of course the particular
statement was made after the respondent had seated himself on the dais.
He
pointed out that this was a case where a consent could not be implied, not only
because of the reasons mentioned above but also because of the fact that Subhash
Deorao Patil belonged to another party, though in alliance with the party of
the respondent and it was not a case where consent could be readily inferred.
It was a case where consent had to be established positively and there was
hardly any evidence on the basis of which such an inference could be drawn. He
also pointed out that this was not part of any sustained campaign on the part
of the respondent or his agents and it was a solitary statement attributed to
the leader of a supporting party during the course of the entire election
campaign and this also negatived any presumption of consent. He also pointed
out that there was no finding that the statement was false and made so
knowingly. He further submitted that there is no pleading or evidence that the
prospects of the election of the appellant was in any manner affected by the
above sporadic statement attributed to Subhash Deorao Patil.
7. The
burden to prove the corrupt practice is on the election petitioner, the
appellant before us. Considering the materials made available and the arguments
raised before us, it cannot be said that the High Court was in error in finding
that the appellant has not established a corrupt practice as contemplated by
Section 123 (4) of the Act by the making of the above statement by Subhash Deorao
Patil. The statement is seen to be vague and not very precise. It is seen that
it was a sporadic statement made by the leader of a party which was in alliance
with the party of the returned candidate. The statement was one made by that
leader during the course of his speech in a meeting for which the respondent,
the returned candidate, arrived in the middle of that speech. There is no
evidence attempted by the appellant to show that any of the listeners at the
meeting formed an adverse impression about the appellant and the statement had
caused harm to the prospects of the appellant at the hustings. In such a
situation, it is not possible to disagree with the High Court, when it held
that the appellant has failed to establish that the above statement made by the
Subhash Deorao Patil can be taken to be a statement made with the consent of
the respondent, the returned candidate, knowing it to be false and that it has
affected the election prospects of the appellant. Thus, on the whole, this
aspect urged by the learned counsel for the appellant is seen to be not
acceptable to upset the finding of the High Court in that regard. We feel that
there is no adequate pleading or evidence to find the respondent guilty of
corrupt practice on this score.
8. The
allegation regarding distributing of money to voters It was pleaded in the
election petition that at a meeting on 1.9.1999 at village Bhavarkhede, the
respondent made the following statement:
"They
have now only one capital. Shopping with money has begun. You all know how
motorcycles are going to the bungalow. Daily couple of people are being picked
up on the motorcycle, pay money, administer oath and then send him out.
How
much will be paid per vote? Rs.500/-" According to the appellant, this
part of the speech delivered by the respondent amounted to an allegation of a
personal character made with the knowledge that it was false and making of such
an allegation amounted to corrupt practice within the meaning of Section 123(4)
of the Act. This speech, said to have been made by the respondent, was the
subject matter of issue No.1/7 in the trial court. The trial court took the
view that the statement attributed could not be treated as a positive
allegation aimed at the appellant. It found that the respondent had not named
the appellant in the speech and had used the expression "they". In
the circumstances, it was difficult to say that it was an accusation that the
appellant was distributing money for votes. It was not a statement regarding
personal character or conduct of the appellant and the statement was also
ambiguous. In such a situation, especially when on a question of corrupt
practice, proof beyond reasonable doubt was needed, the issue could not be
found in favour of the appellant, the election petitioner.
9.
Learned counsel for the appellant relied on Sheopat Singh v. Ram Pratap, [1965
(1) SCR 175] in support of his contention that the statement indicated above is
one relating to the personal character or conduct of the appellant. On going
through the said decision, it is seen that their Lordships have stated that it
is a question of fact in each case, under what category a particular statement
falls. Therefore, it is really a question of assessing the scope and the effect
of the statement quoted above, in the circumstances of the case. As we have
noticed in relation to the statement dealt with earlier, the appellant did not
adduce enough evidence at least to make out how the statement attributed to the
respondent was understood by the audience at the meeting. The statement is also
not definite. No doubt, learned counsel for the appellant rightly pointed out
that the respondent, when examined, has admitted that the residence of the
appellant was known as the bungalow, which was the expression used in the quoted
speech. But then, we find that the respondent has also stated that the house he
was residing in, was also called a bungalow. Therefore, the so called admission
of the respondent relied on by learned counsel for the appellant is not
sufficient to justify interference with the finding of the trial Court that the
above statement attributed to the respondent would not amount to a corrupt
practice within the meaning of Section 123 (4) of the Act. On the whole, we
find it not possible to disagree with that finding of the trial Court.
10.
Allegation regarding drunkenness The third allegation, according to the
appellant, is that the respondent had characterized him as a drunkard and this
amounts to character assassination especially since the respondent knew it to
be false and the making of such a statement amounts to a corrupt practice. The
issue in that behalf was dealt with by the trial Court as issue No. 1/8. The
translation of that part of the speech read as follows :
"Hotel
Surya was inaugurated by Mahendra Babu. He is answerable for this. If this man
inaugurated the hotel, why did he? Open a beer bar at home, and criticize
others. Both the brothers consume by common glass. Whole the town will confirm
this. Jaiveer, as also Mahendra Babu." The respondent denied that he had
described the appellant as a drunkard.
The
trial Court found that the appellant had himself in a campaign meeting at Kasoda
on 3.9.1999, suggested that the respondent was a visitor to bars.
The
statement at best was only a retaliation, while defending himself. Even if the
statement could be treated as not true, the general allegation as above, would
not amount to an allegation which could be treated as amounting to a corrupt
practice especially these days when drinking alcohol as such is not taboo and
in society, people generally consume alcohol. The High Court took the view that
in the speech concerned, the respondent had only suggested in a manner, that
the appellant has encouraged drinking by inaugurating a beer bar and that the appellant
also consumes liquor. This was not, according to that Court, calculated to
prejudice the election prospects of the appellant. Learned counsel for the
appellant submitted that in a rural society the constituency here, according
to him, was rural charging a person with drinking alcohol, itself brings that
person down in the estimation of the people and it can and does prejudicially
affect his election prospects. Learned counsel for the respondent submitted
that there was no plea or evidence on this aspect on the side of the appellant.
On a scrutiny of the evidence available in the light of the reasons given by
the High Court, it is not possible to say that that Court was in error in
holding that the appellant has not been able to establish this ground as well.
It appears to us that the argument on behalf of the appellant, does not have
the necessary factual foundation in the pleadings and evidence to support it.
We
are, therefore, constrained to reject this submission as well.
11.
Allegation of unfair practice at examinations in college days.
The
particular statement attributed to the respondent as relied upon by the
appellant, was that in a speech made at Erandol, the respondent had stated:
"I
have learnt that he has indulged into unfair practice at college examination
and, therefore, he is raw in his studies." On reading that sentence in the
context of the speech made, it could not be said that it was any specific
allegation against the appellant that he had indulged in unfair practices in
his examinations in his college days. On going through the statement as a
whole, we are not satisfied that there is any justification in interfering with
the conclusion of the trial court that the said allegation also does not amount
to a corrupt practice. Learned counsel for the appellant also could not bring
to our notice any material on the basis of which we could disagree with the
conclusion arrived at by the trial court.
12. On
an anxious consideration of all the four aspects thus urged before us in the
light of the pleadings, the evidence and the findings recorded by the High
Court, we are satisfied that no ground is made out for interference with the
dismissal of the election petition filed by the appellant on the ground that he
had failed to establish any corrupt practice by the respondent in terms of
Section 123 (4) of the Act.
Consequently,
we confirm the decision of the High Court and dismiss this appeal. In the facts
and circumstances of the case, we direct the parties to suffer their respective
costs in this Court.
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