Joseph M. Puthussery
Vs T.S. John & Ors
JUDGMENT
J.M. Panchal, J.
1.
This
appeal, filed under Section 116A of the Representation of People Act, 1951
(`the Act' for short), is directed against judgment dated August 8, 2005,rendered
by the learned Single Judge of the High Court of Kerala at Ernakulam in
Election Petition No. 6 of 2001 by which the election of the appellant as
Member of Kerala Legislative Assembly from No. 106, Kallooppara Constituency is
declared void on the ground that he was guilty of the corrupt practice within
the meaning of Section 123(4) of the Act as he extensively distributed directly
and through UDF workers, who did so with his consent, the copies of Ext. X4, which
contained statements of fact, which were false and which he believed to be
false or did not believe to be true in relation to the personal character and
conduct of the respondent No. 1.
2.
2.
The facts, emerging from the record of the case, areas under: The election to
the Kerala Legislative Assembly was held on May 10, 2001. From the
Constituency, i.e., No.106 Kallooppara Constituency, the appellant, i.e.,
Joseph M. Puthussery, the respondent No. 1, i.e., Advocate T.S. John, Prof.
P.K. Rajasekharan Nair, i.e., the respondent No. 2 and Mathew Pinakkulath
Padinjaremannil, i.e., the respondent No.3, contested the election. The result
of the election was declared on May 13, 2001 and the appellant was declared
elected with 42,238 votes cast in his favour. As far as the respondent No. 1 is
concerned, he was able to poll 31,013 votes. Thus, the appellant defeated the
respondent No. 1 by a margin of 11,225votes. The respondent Nos. 2 and 3
received 4,432 and361 votes respectively. On June 27, 2001, the respondent No.
1 filed Election Petition No. 6 of 2001 in the High Court of Kerala at
Ernakulam, under Section 100(1)(b) of the Act assailing the election of the
appellant. According to the respondent No. 1, the election of the appellant was
vitiated by corrupt practice defined under Section 123(4)of the Act for the
reason that copies of Ext. X4, which allegedly contained false statements of
fact in relation to the personal character and conduct of the respondent No. 1
having tendency to prejudice the prospects of the election of the respondent
No. 1, were distributed by the appellant, his election agent and workers of the
United Democratic Front, i.e., the party to which the appellant to we
allegiance, with his consent as well as with the consent of his election agent
on May 8, 2001 and May 9,2001 ignoring the stipulation that electoral campaign must
come to an end. The precise statements in Ext. X4,which, according to the
respondent No. 1, allegedly amounted to the corrupt practice within the meaning
of Section 123(4) of the Act, are extracted below: - "Adv. T.S. John Is He
A Servant of the People or Hero of Corruption? When tens of thousands of
Homeless wander on streets, this MLA, the people's servant acquires mansion
after in his name. Let us start journey from Anathapuri to take an account of
the number of flats owned by this esteemed personality. Even in the District of
Trivandrum a flat was allotted during 1980, when Gopi was the Chairman of the
Housing Board while he was MLA. During 1984, when P.J. Joseph of flats near the
Chairman's Quarters were acquired by this MLA in the name of daughter of his
elder brother. At that time, the Chairman of the Housing Board was Oommen
Mathew. By leasing out all the acquired flats on rent, he was fetching, Rs.1000
to 2000 per month. Nearly Rs.30,000/- was being received as profit from this
alone. 5T.S. John, who was allotted a plot earlier, got the flat in exchange by
paying the price in monthly installments. This flat cost Rs.12lakhs. Even the
third flat of the Housing Board came of T.S. John. In order to hoodwink the
people of Kallooppara, he still continues to live in a small house. His car
shed is even better. It would have been nice for T.S. John to live in the car
shed with concrete roof. Thengana Kadanthod Thankchan, who is running "Mariya
Store" on the Changanacherry- Karukachal road near the Thengana Waiting
Shed, had prized the lottery ticket. Now the only question that arises, is how
much profit Thankchan got in this transaction. Though a lot of such incidents had
happened in the State, in the history ofKerala this is the first time that an MLA
had indulged in this type of deceit. Poor Simpleton of a Little Hut Or
Many.....Many..... Corruption Stories. These repulsive stories of corruption
are a disgrace to thecountry. It should not be forgotten that by this ridiculed
are the people of this place. Corruption Hero T.S. John M.L.A.T.S. John M.L.A.
the people's representative who lives in his small house as a puritan poor folk,
has built up flats and properties under benami worth crores of rupees through
out the Kerala State. Even the Ambassador Car No. KL 3/E7 this M.L.A. owns is,
it is the name of Manjeri Bhaskaran Nair. 6 Role of P.J. Joseph, Minister and
T.S. John M.L.A. Embezzlement of crores of rupees behind Palemaad Vivekanada
School There is a school in the name of Palemaad Vivekanada village near Manjeri
in Malappuram District, which is populous with settlors, but is an undeveloped
area under the shield of this school, which started functioning during 1963, a
family is leading princely life at the expense of the Government, embezzling crores
of rupees. Those who liaise for them and receive lakhs of rupees as their share
are two important persons. Education Minister P.J. Joseph and the formal
Minister and the Assembly Speaker T.S. John. It is now years since P.J. Joseph
and T.S. John begun this business in the education with Bhaskara Pillai. Bhaskara
Pillai, who was removed from N.S.S. for indulge in financial irregularities,
has seen the green pasture in his life through the education business with P.J.
Joseph - T.S. John." The appellant filed written statement resisting the election
petition. In the written statement, distribution of Ext. X4 in the Constituency
on May 8, 2001 and May 9,2001 was not specifically denied meaning there by ignorance
was pleaded so far as distribution of the pamphlets was concerned. However, the
appellant took a specific stand that neither he nor his election agent or any
one with his and/or their consent had distributed Ext. X4. What was stated by
the appellant in the written statement was that the distribution was done by
the Youth Wing of the party to which the respondent No. 1belongs and that the
distribution of Ext. X4 does not amount to any publication. It was also averred
that, at any rate, the statement was not calculated to pre judice the prospects
of the respondent No. 1 in the election held on May 10, 2001 and, therefore,
the Election Petition was liable to be dismissed.
3.
Having
regard to the pleadings of the parties, the learned Single Judge framed as many
as eight issues for determination. On behalf of the respondent No. 1, who was
the original petitioner, as many as 90 witnesses were examined and documents
Ext. P-1 to P-22 were produced in support of his case that the election of the
appellant was liable to be voided. So far as the appellant is concerned, he had
examined 53 witnesses and produced documents at Ext. R-1 to R-20 in support of
his case that his election was not liable to be set aside on the ground of
alleged corrupt practice. Further, Ext. C-1 to C-3(b) were marked as Court Exhibits
whereas X-1 to X-24 documents were marked as proved by witnesses and Ext.
N-1(a) and N-1(b) were marked by the persons to whom the court had issued
notice under Section 99 of the Act.
4.
After
considering the evidence adduced and hearing the learned counsel for the
parties, the court proceeded to consider the question as to which standard of
proof is required to be applied while resolving election disputes raised in the
Election Petition and held that the standard of proof which is higher than one
made applicable to decide civil cases but which is lesser than the one applied
in criminal cases should be adopted. The High Court has further held that
relevant contemporaneous newspaper publications like Ext. P-5 and P-6 and entries
in official documents like Ext. X5 and X6corroborate the ocular version
tendered by the witnesses examined by the respondent No. 1 about the distribution
of Ext. X4 pamphlet in the constituency on May 8 and May 9, 2001 by UDF workers.
The learned Single Judge further observed that the act of the appellant in not
stopping his workers from continuing with distribution of objectionable
pamphlet Ext. X4 is sufficient to assume consent on his part. The learned Judge
held that it was not established by the respondent No. 1 that DW-52 Jaya Varma,
who was election agent of the appellant, had himself distributed the pamphlets
in question nor it was established that UDF workers had distributed the
pamphlets with consent of Jaya Varma. The learned Judge further held that the evidence
tendered about the involvement of DW-52 Jaya Varma in actual distribution did
not inspire confidence of the court.
5.
The
learned Judge further held that in releasing Ext. X4 for consumption of the
electorate by extensive distribution in the Constituency, there was publication
as contemplated by Section 123(4) of the Act. The learned Judge found that Ext.
X4 was not merely republication of the relevant portions of Exts. R-6, R-7 and
R-8, but in addition to what was available in Exts. R6, R-7 and R-8, defamatory
imputations by way of title, observations/comments in the sub-title, etc., were
available in Ext. X4. The learned Judge held that out of the three allegations
made in objectionable pamphlet Ext. X4, the third allegation, which relates to
misappropriation and fraud to the tune of crores, falls under category of
objectionable statement of fact under Section 123(4) of the Act and evidence of
PW-6 shows that the statement was false. The Court noted that publication of
Ext. X4 on the eve of election was calculated to prejudice the prospects of the
respondent No. 1 of winning the election. The Court concluded that the
appellant was guilty of corrupt practices under Section 123(4) of the Act. However,
the Court did not name any of the 77 workers of UDF under Section 99 of the Act
and held that there was no specific evidence against any of them.
6.
In
view of the above mentioned conclusions, learned Single Judge has allowed the
Election Petition filed by the respondent No. 1 and set aside the election of the
appellant, giving rise to the instant appeal.
7.
This
Court has heard the learned counsel for the parties at length and in great
detail. This Court has also considered the voluminous oral as well as documentary
evidence produced by the parties and read out before the Court.
8.
So
far as standard of proof is concerned, there is no manner of doubt that the
High Court misdirected itself on the point of standard of proof required under
Section 123 of the Representation of People Act, 1951. The learned Judge
without explaining invented a new standard of proof to be made applicable to
election disputes and has held that standard of proof higher than the one
applicable to the civil cases but certainly lesser than one applicable to the
criminal cases, should be adopted while determining the question whether an
elected candidate is guilty of corrupt practice/s within the meaning of the
Act. Normally, standard of proof made applicable to civil cases is
preponderance of probabilities and the one made applicable to criminal cases is
proof beyond reasonable doubt. Even with the ablest assistance of the learned counsel
for the parties, this Court could not comprehend as to which is that standard
of proof which is higher than the one applicable to civil cases and lesser than
the one applicable to criminal cases. The standard of proof, spoken of by the learned
Judge, neither gets recognition/stamp of authority either from the provisions
of the Indian Evidence Act or from any other statute or from judicial
precedents. There is no manner of doubt that the standard of proof, which
should be adopted according to the High Court while determining an election
dispute, is contrary to settled principles of law. The settled law is that an
election trial where corrupt practice is alleged is to be conducted as a criminal
trial. Unfortunately, the High Court has not referred to any decision of this
Court on the point though the learned counsel for the appellant claimed that
several decisions were cited by the learned counsel for the parties to guide
the High Court as to which standard of proof should be adopted while deciding
an election dispute. In Jagdev Singh Sidhanti vs. Pratap Singh Daulta(1964) 6
SCR 750, the Five Judge Constitution Bench of this Court has laid down, in
paragraph 11of the reported decision as under: -
"11. It may be
remembered that in the trial of an election petition, the burden of proving
that the election of a successful candidate is liable to be set aside on the
plea that he was responsible directly or through his agents for corrupt practices
at the election, lies heavily upon the applicant to establish his case, and unless
it is established in both its branches i.e. the commission of acts which the
law regards as corrupt, and the responsibility of the successful candidate
directly or through his agents or with his consent for its practice not by mere
preponderance of probability, but by cogent and reliable evidence beyond any reasonable
doubt, the petition must fail."It may be observed that the principle that
in an election petition based on corrupt practice the Court has to adopt standard
of proof beyond reasonable doubt, is enunciated in at least not less than six
other reported decisions of this Court. However, this Court does not wish to
burden the judgment unnecessarily by referring to those reported decisions in
detail because the learned counsel for the respondent has fairly conceded
before this Court that a wrong standard of proof was adopted by the High Court while
trying the election petition filed by the respondent No. 1 challenging the
election of the appellant.
9.
The
consequence of the conclusion, that the learned single Judge adopted a wrong
standard of proof while determining the election dispute raised by the respondent
No. 1, would be that the other findings recorded by the learned Judge will have
to be viewed in the light of this fundamental error committed by him.
10.
It
may be mentioned that the impugned judgment roughly runs into 87 pages. However,
this Court finds that no evidence of any witness is discussed in detail at all.
The conclusion of the High Court that distribution of Ext. X4 in the Constituency
concerned on 8th and 9th May, 2001 was by the appellant and by UDF workers with
the consent of the appellant is to be found on pages 28 to 33 of the impugned
judgment. It is relevant to notice that the appellant had stated in his written
statement that he was not aware of any such distribution and in the alternative
it was mentioned that even if the distribution had taken place, neither he nor
his agent nor any of the workers of UDF was/were involved in the distribution
of the Pamphlet Ext. X4. The learned Judge has observed that the appellant has
not expressly denied distribution of Ext. X4 on the above said dates in his
written statement. However, this Court finds that in an election trial it is
not permissible to the High Court to discard substantive oral evidence on
account of defect in the pleadings. This is so in view of the decision of this Court
in Dr. Jagjit Singh vs. Giani Kartar Singh and others AIR 1966 SC 773.
11.
What
is important to notice is that the testimony of the appellant that printing and
distribution had taken place in March, 2001 and not in May, 2001, as alleged by
the respondent No. 1, was discarded by the learned Judge only because it was
not so stated in his written statement. At this stage it would be advantageous
to refer to the testimony of PW-88. PW-88 is the owner of the press. He had deposed
before the Court on February 13, 2002 that Shaji P. Jacob, i.e., DW-10, had
entrusted him the printing of Ext. X4 Pamphlet on March 8, 2001.The said
witness had produced Ext. X17 Bill Book maintained by him in the ordinary
course of business to substantiate that Mr. Jacob, i.e., DW-10, had entrusted
him the printing of Ext. X4.Again, DW-10 had also deposed before the Court on March
6, 2002 that he had got printed Ext. X4 from the press of PW-88 and that he
himself had distributed the same in the month of March, 2001.It may be stated
that PW-88 was one of the witnesses produced by the respondent No. 1 himself in
support of his case that the election of the appellant was liable to be set
aside and the respondent No. 1 wanted the Court to rely upon the testimony of
PW-88. As observed earlier, PW-88had in categorical terms stated before the
Court that Mr. Jacob, i.e., DW-10, had entrusted him the printing of Ext. X4
Pamphlet on March 8, 2001.The testimony of PW-88 was never challenged by the
respondent No. 1 in the sense that PW-88 was never declared hostile to the
respondent No. 1 nor the respondent No. 1 had sought permission of the Court to
cross-examine PW-88. Thus, evidence tendered by PW-88 was accepted to be true
by the respondent No. 1. The testimony of DW-10, whose credibility could not be
impeached during his lengthy cross-examination by the learned counsel for the
respondent No. 1, had asserted that he had got printed Ext. X4 from the press
of PW-88 and that he had distributed the same in March, 2001.From the impugned
judgment it becomes evident that without assigning cogent and convincing reasons
the learned Judge had chosen to disbelieve the evidence of PW-88 and that of
DW-10. No convincing reason recorded by the learned Judge as to why the
testimony of PW-88 or for that matter the testimony of DW-10 should be
disregarded. The only and feeble reason, which has no legs to stand, given by
the learned Judge to disbelieve the testimony of PW-88 and DW-10, is that those
who distributed the pamphlets must have got the same printed in the press of
PW-88. Thus, this Court finds that the conclusion drawn by the learned Judge,
that the evidence of PW-88 and DW-10 was unreliable, will have to be regarded
as perverse. The finding recorded by the learned Judge that no adverse inference
can be drawn against the respondent No. 1 on the score that he had neither asserted
nor controverted that Ext. X4 was got printed by DW-10 in the press of PW-88,
has no factual basis and this Court, having regard to the facts of the case, is
inclined to draw an adverse inference against the respondent NO. 1 on the s core
that he had neither asserted nor controverted the fact that Ext. X4 was got
printed by DW-10 at the press of PW-88. Viewed in the light of what is held above,
the assertion made by the appellant, who had examined himself as DW-53 that he
had come to know about the distribution of Ext. X4 in the month of March from
DW-10 later on, deserves to be accepted and cannot be brushed aside as improvement
in the version as is done by the learned Judge.
12.
The
finding that there is overwhelming and satisfactory oral evidence on the point
that the distribution had taken place on May 8, 2001 and May 9, 2001, to say
the least is contrary to the evidence on record. What is the value of oral evidence
while deciding issue of corrupt practice within the meaning of Section 123(4)
of the Act will have to be considered? So far as election law is concerned by
now it is well settled that it would be unsafe to accept the oral evidence on
its face value without seeking for assurance from other circumstances or
unimpeachable document. It is very difficult to prove a charge of corrupt
practice merely on the basis of oral evidence because in election cases, it is
very easy to get the help of interested witnesses. In Abdul Hussain Mir vs. Shamsul
Huda and another (1975) 4 SCC 533,the Three Judge Bench of this Court held that
oral evidence, ordinarily is inadequate especially if it is of indifferent quality
or easily procurable. According to this Court, the oral evidence has to be analyzed
by applying common sense test. It must be remembered that in assessing the
evidence, which is blissfully vague in regard to the particulars in support of
averments of undue influence, cannot be acted upon because the court is dealing
with a quasi-criminal charge with serious consequences and, therefore, reliable,
cogent and trust worthy evidence has to be led with particulars. If this is absent
and the entire case is resting on shaky ipsedixits, the version tendered by
witnesses examined by election petitioner cannot be accepted. Before recording
the above finding, the learned Judge has not adverted to the evidence of any
witness nor taken into consideration the positive evidence ofDW-10 that he
himself had distributed Ext. X4 in the month of March, 2001. This Court does
not find from the impugned judgment as to why the High Court was inclined to prefer
testimony of a particular witness as against the reliable evidence tendered by
the appellant himself and the evidence tendered by DW-10. The finding that contemporaneous
newspaper publications produced at Exts. P-5 and P-6 corroborate the testimony
of the respondent No. 1, is also not supported by the evidence on record. If
one examines news paper publications produced at Exts. P-5 and P-6, it becomes
at once clear that the reports were entirely hearsay. The reporters of Exts.
P-5 and P-6 were examined in this case. They have categorically, and in no
uncertain terms, stated that they had no personal knowledge of the events
published in Exts.P-5 and P-6. Therefore, what was reported in the newspapers
could not have been regarded anything except hearsay. There is no manner of
doubt that the High Court has misdirected itself in placing reliance on the
hearsay evidence, which was produced before the Court in the form of Exts. P-5 and
P-6. In view of clear proposition of law laid down by this Court in Quamarul
Ismam vs. S.K. Kanta and others 1994 Supp. (3) SCC 5 and Laxmi Raj Shetty and
another vs. State of Tamil Nadu (1988) 3 SCC 319, the hearsay evidence could
not have been used by the learned Judge for coming to the conclusion that
contemporaneous newspapers publications Exts. P-5 and P-6 corroborate the
testimony of the respondent No. 1.
13.
13.
The first question, which deserves to be addressed by this Court, is whether it
is satisfactorily established that the appellant himself had distributed the
pamphlets in question on May 8 and May 9, 2001.
14.
As
noticed earlier, the High Court has recorded a finding that Ext. X4 pamphlets
were distributed on May 8, 2001 and May 9, 2001 by the appellant and also by
UDF workers with his consent and for this purpose the High Court has relied on
the testimony of PW-12 to PW21. The learned counsel for the respondent No. 1
would contend that the fact that the appellant had distributed the pamphlets in
question stands satisfactorily proved by the evidence of PW-12 to PW-21, out of
whom PW-16, PW-18, PW-19 and PW-20 are independent witnesses and, therefore,
the finding recorded by the High Court that the appellant had distributed pamphlets
on May 8. 2001 and May 9, 2001 based on appreciation of evidence, should be
upheld by this Court. The above mentioned submission makes it abundantly clear
that PW-12, PW-13, PW- 14, PW-15, PW-17 and PW-21 were not independent witnesses
and had affiliation with the party to which the respondent No. 1 belongs. What
is important to note is that once the testimony of PW-88 read with that of
DW-10 is believed that pamphlets Ext. X4were printed in the press of PW-88 at
the instance of DW-10 and that DW-10 had distributed the same in the month of
March, 2001, the assertion made by witnesses examined as PW-12 to PW-21 that
the pamphlets were distributed by the appellant and also by UDF workers with
the consent of the appellant on May 8, 2001 and May 9, 2001 becomes highly
doubtful and their say cannot be accepted. It is relevant to notice that G.
Govindan Nampoothiri, who is examined as PW-88, is witness for the respondent
No. 1. The respondent No. 1 desires this Court to act upon the testimony of the
said witness, who is examined by him. The respondent No. 1 has not disowned the
testimony of PW-88 in the sense that the said witness was not declared hostile nor
cross-examined on behalf of the respondent No. 1. Once the testimony of
PW-88read with that of DW-10 is acted upon, it becomes evident that the
respondent No. 1 had led two sets of evidence each contradicting the other
regarding distribution of pamphlets and obviously in such circumstances the
reasonable benefit of doubt would go to the elected candidate, namely, to the appellant.
Further, the claim made by the learned counsel for the respondent No. 1 that
PW-16, PW-18, PW-19 and PW-20 were independent witnesses, who had deposed
before the Court that the appellant had distributed Ext. X4 pamphlets on May 8,
2001 and May 9, 2001, on scrutiny, is found to be hollow. The scrutiny of
evidence of PW-16Kuttappai K.K. indicates that in cross-examination it was put
to him that Ext. X4 was brought out by the President of Youth Front (J) against
another member of the same party and in answer to the said question he replied
that he was not knowing that it was brought out by the President of Youth Front
(J),but admitted that it was so written/mentioned in Ext. X4 itself. Though he
admitted that he had not bothered to peruse the full text of Ext. X4, he had audacity
to state before the Court that Ext. X4contained defamatory matter and that
allegation of corrupt practice at the personal level were made against the
respondent No. 1. When it was put to him that Ext. X4 did not contain any
reference a out the personal conduct of the respondent No. 1other than as a
servant of the people, the claim of this witness was that he had not read the
full text A witness, who claims before the Court on oath that Ext. X4 pamphlets
contained defamatory matter without reading the contents of the same, would hardly
inspire confidence of the Court. A perusal of testimony of PW-18 K. Anil Kumar
would indicate that in an answer to the question i.e. whether there was
anything in Ext. X4 causing defamation of the candidate as such or about
election, the witness replied that those words were not used in Ext. X4and he
agreed that Ext. X4 did not contain the words `election' or `candidate'.
Initially, this witness maintained that he was an independent witness and had
nothing to do with Marxist Party to which the respondent No. 1 belongs, but in
cross-examination he admitted that he had worked in the SFI, which was the
Student Front of the Marxist Party, in the year 1984-85. He further admitted
that at the time when he had worked in the SFI, which was the Student Front of
the Marxist Party, he was in the college and had occasion to mingle with the
party leaders. In the opinion of this Court the admission made by the witness
makes it more than clear that he was not an independent witness as claimed by the
learned counsel for the respondent No. 1 and had come to the Court to oblige
the respondent No.1. Again, a critical scrutiny of evidence of PW-19M.M. Simon
would indicate that he had informed one Mr. Pradeep, who was an LDF worker,
about the distribution of the pamphlets by the appellant. This witness also
admitted that he had not read the contents of Ext. X4 and had only read the headlines.
This witness admitted in the cross-examination that he had deposed before the
Court on the basis of information that he had got from others during the
election propaganda. This statement made by the witness makes it doubtful whether
in fact this witness had seen the appellant distributing the offending
pamphlets. Thus on there-appreciation of evidence of this witness this Court does
not find it prudent to place implicit faith on the testimony of this witness. The
evidence ofPW-20 Verghese Mathew shows that his vegetable shop and the LDF
Committee Office are situated in one and the same building and both are
separated by a wall. A question was put to witness that whether both sides had raised
allegations of corruption against each other. In answer to the said question
the witness stated that according to his knowledge such allegations were raised
only by the UDF and not by the LDF. Earlier this witness on his own had
mentioned that the respondent No. 1 had issued notices soliciting votes and had
not published any pamphlet of the nature of Ext. X4raising allegations against
the UDF. It is important to note that it was nobody's case and certainly it was
not the case of the appellant that the respondent No. 1 had published any
pamphlet of the nature of Ext. X4 raising allegations against the UDF.
Therefore, making of such a statement shows to what extent this so called
independent witness was interested in the respondent No. 1. His claim that his
wife told him that the copy of Ext. X4 was distributed along with the identity
slip by the UDF party workers can hardly be believed. Such an evidence would
never be made available and/or left by the distributors of the pamphlet
concerned. Though this witness denied that he was member of the party to which
the respondent No. 1 belonged, after reading his testimony a general impression
is created that he was in active politics and had supported an independent
candidate, who was contesting Panchayat Elections. His evidence further shows
that in connection with the disputes relating to the said election a criminal
case was registered against him and he was prosecuted. Therefore, his attempt
to project himself as a totally independent witness does not inspire confidence
of this Court at all, more particularly, when on presumption the witness had
audacity to claim on oath that since the respondent No. 1, who belongs to LDF,
was maligned. He had presumed that the publication was brought out by UDF and
after seeing bottom portion of Ext. X4 he had to admit that it was brought out
in the name of Shaji P.Jacob Kallunkal, who was a former member of the Youth Front
of Joseph Group of Thiruvalla Constituency. Thus the so called independent witnesses
examined by the respondent No. 1 to establish that the appellant had
distributed the offending pamphlets on May 8, 2001 and May 9,2001 are in fact
not independent witnesses and are not reliable at all. The finding recorded by
the learned Judge of the High Court that there is overwhelming and satisfactory
oral evidence on the point that distribution of pamphlet Ext. X4 on May 8, 2001
and May 9, 2001 was made by the appellant, is not borne out from the record of
the case. In fact there is no discussion as to which witness has testified to
this fact and why the High Court has preferred that testimony as against the evidence
tendered by the appellant.
15.
This
Court further finds that the High Court has recorded a finding that the pamphlets
were distributed by the appellant by observing that "the allegation in
para 13.1(iii) is also to be found to be established satisfactorily by the
evidence tendered". This Court notices that before recording above mentioned
finding, the High Court has not taken trouble of referring to any evidence on
the record. The High Court while recording the said finding should have
referred to the evidence which had tendency to establish the said fact. Thus,
most oft he findings recorded by the High Court are based on surmises and
inferences and have no factual basis at all. While discussing whether the distribution
of the pamphlets was with the consent of the appellant, the High Court mentions
the testimony of PW-12 to PW-21. All these witnesses were produced by the
respondent No. 1 during the course of the election trial. Many of them admitted
that they were affiliated to the respondent No. 1and/or his party, whereas rest
of them have been found to be interested witnesses. There is absolutely nothing
on the record to show that the appellant had indulged in the act of
distribution of pamphlets and thus committed a corrupt practice. The case of
the respondent No. 1 in the election petition was that on May 8, 2001 seven UDF
workers were arrested by the police in connection with the distribution of
pamphlets and the appellant had personally got them released from the Police Station
and after coming out from the police station, the appellant himself had
distributed the pamphlets and directed others to distribute the same. As noticed
earlier, the respondent No. 1 had examinedPW-7, Additional S.I., and produced
Ext. X5, which is GD entry to substantiate this case. Apart from the evidence
of PW-12 to PW-21, who are his own party workers and/or interested witnesses,
the official evidence has completely disproved the case of the respondent No.
1, because PW-7 specifically stated that the seven UDF workers were not arrested
and so the appellant had no occasion to getthem released. The GD entry also
states that the ASI had gone to the spot and removed the UDF workers from the
scene to avoid breach of law and order and later on they were let off on the
advice of the superior officers. Once it is held that the respondent No. 1 has
failed to prove that seven UDF workers, who were distributing the pamphlets,
were arrested and lodged in the police station and that the appellant had gone
to the police station and got the seven workers released from the police
station, the further case of the respondent No. 1, that after coming out of the
police station, the appellant himself had distributed the offending pamphlets and
directed others to distribute the pamphlets, becomes highly doubtful and
improbable. This Court finds that the High Court has placed reliance on
unreliable and scanty evidence to find the appellant guilty of corrupt practice
and, therefore, the finding that the appellant is disqualified under Section 99
of the Act is completely unsustainable.
16.
The
second question, which needs to be considered, is whether it is satisfactorily proved
by the respondent No. 1 that whether the pamphlets in question were distributed
by the workers of UDF.
17.
This
Court further finds that the High Court has recorded a finding in paragraph 39
of the impugned judgment that the official documents, which have come from
proper custody, corroborate the ocular version of the witnesses about
distribution of Ext.X4 on May 8, 2001 and May 9, 2001. On scrutiny of the whole
evidence on record this Court finds that the High Court has not pointed out as
to which were the official documents referred to in paragraph39 of the impugned
judgment. The learned counsel for the respondent No. 1 also could not point out
to this Court any document which can be termed as official document, which, in
turn, corroborated the ocular version of the witnesses regarding distribution
of Ext. X4 on May 8, 2001 and May 9,2001. This Court finds that the learned
Judge has referred to Ext. X5, which is General Diary maintained in the Police
Station read with the testimony of Additional S.I. of Police at Thiruvalla, Mr.
V.R. Rajendran Nair to conclude that official document corroborated the version
of the witnesses that distribution of pamphlets, copy of which was produced as
Ext. X4, had taken place on May 8 and May 9, 2001. Ext. X5, which is referred
to by the learned Judge, is to be found on page 130 of Volume V of the appeal.
It is General Diary entry of the Police Station. The Additional S.I. PW-7, who made
the GD entry, has in terms disproved the arrest of seven UDF workers, who were
allegedly distributing the pamphlets, and the involvement of the appellant in
getting them released from the Police Station as alleged by the respondent No.
1. Therefore, this Court fails to understand as to how General Diary entry of
the Police Station and the testimony of Additional S.I. PW-7 proved that seven UDF
workers were distributing the offending pamphlets and that the appellant was
involved in getting them released from the Police Station.
18.
Further,
while concluding that the pamphlets were distributed by the UDF workers on May
8, 2001 and May 9, 2001, what is observed by the learned Judge is that the
benefit of the distribution would have enured to none other than the appellant
and, therefore, inference can be drawn that UDF workers had distributed the
pamphlets with the consent of the appellant. This Court finds that such a conclusion,
based on unwarranted inferences and surmises, is recorded only because High
Court had misdirected itself on the question of standard of proof required to
be adopted to resolve a dispute raised under Section 123 of the Act. The theory
that the benefit of distribution could have enured only to the appellant is
misplaced in the light of principles laid down in D. Venkata Reddy vs. R. Sultan
and others (1976) 2 SCC 455. It is relevant to notice that in his written
statement the appellant had denied that 77 persons named in the election
petition, who had allegedly distributed the pamphlets, were UDF workers.
However, the High Court found that the appellant had in his testimony admitted
that some of them were in fact UDF workers. Therefore, the High Court preceded further
to record a finding that "this must go a long way when the court considers
the question as to who had distributed copies of Ext. X4". Although from
the record it is evident that out of 77 persons named in the election petition,
the appellant had admitted that a few were UDF workers but from this it would
be unwise to jump on to the conclusion and that too on inferences that the UDF
workers had distributed the pamphlets. The High Court in the impugned judgment
could not even identify a single UDF worker, who, according to it, had distributed
the pamphlets and has simply held that there is evidence to show that UDF
workers had distributed the pamphlets. The testimonies of 77persons named in
the election petition could not have been accepted because their testimonies
are self-serving and interested one. The finding thatDW-14 Mustafa Kutty
admitted during his cross-examination that UDF workers had distributed the pamphlets
is nothing else but the result of complete misreading of the testimony of the
said witness. The said witness does not make any such admission as is referred
to by the High Court in the impugned judgment. On the contrary the said witness
had stated that he had distributed only the pamphlets issued from the Election
Committee Office and nowhere had he stated that the Election Committee Office
of the appellant had issued the pamphlet's, copy of which was produced at Ext.
X4, and that he had distributed those pamphlets.
19.
The
discussion made above makes it evident that the respondent No. 1 has failed to
prove that UDF workers had distributed the offending pamphlets on May 8 and May
9, 2001. The finding of the High Court on this score being against the weight
of evidence is hereby set aside.
20.
In
the alternative, it was argued on behalf of the appellant that even if the
distribution of pamphlets by UDF workers was held to be proved, no satisfactory
evidence was adduced by the respondent No. 1 to establish that distribution of the
pamphlets by the UDF workers was with the consent of the appellant and, therefore,
the judgment impugned is liable to be set aside.
21.
It
is well-settled that to prove that the corrupt practice of a third person is
attributable to a candidate under Section 123 of the Act, it must be shown that
the candidate consented to the commission of such act. The finding that the appellant
knew about such distribution because benefit of such distribution could only
enure to him, but he kept silent despite knowledge of such distribution, is
nothing else but an unwarranted inference and surmise on the part of the court.
Similarly, the finding that seven UDF workers, who were allegedly arrested on
May 8, 2001 by the police for distribution of the pamphlets, were released at the
behest of the appellant who went to the Police Station and, therefore, there
was consent of the appellant is quite contrary to the testimonies of the witnesses.
It may be mentioned that this finding is arrived at on the basis of (i) the
averments in the election petition which have no basis to justify the finding,
(ii) the testimonies of PW-12 to PW-21, but scrutiny of their evidence reveals
that none of the said witnesses had witnessed the appellant going to the police
station and securing release of the seven workers and (iii) entries in the
General Diary Ext.X5 which contains no details and only records what the
Sub-Inspector heard from other people over the telephone about distribution of some
printed notices. Nothing is mentioned in the said entrya bout involvement of
any of UDF workers or the appellant and, therefore, the finding that UDF workers
had distributed the pamphlets with the consent of the appellant being against
evidence on record is liable to be set aside and is hereby set aside.
22.
The
High Court's understanding of law that the appellant would be liable for
penalty under Section 99 of the Act for the acts of his agents without the conviction
of such agents is completely erroneous in law. It is relevant to notice that
Mr. Jaya Varma was validly appointed as election agent of the appellant. The
High Court, on appreciation of the evidence adduced, has recorded a clear
finding that no reliable evidence was led by the respondent No. 1 to establish
that Mr. Jaya Varma himself had distributed the offending pamphlets or that UDF
workers had distributed the pamphlets with the consent of Mr. Jaya Varma. The
conclusion of the High Court that distributer of objectionable pamphlets Ext.
X4 need not be named nor a finding with name of the distribution be recorded
under Section 99(1)(a)(ii) of the Act, to say the least, is contrary to the
ratio laid down by this Court in Chandrakanta Goyal vs. Sohan Singh Jodh Singh Kohli
(1996) 1 SCC 378, wherein the principle is laid down that when a candidate is
held to be guilty of corrupt practice vicariously, for an act done by any
person other than his agent with his consent, then the ultimate finding to this
effect has to be recorded and that too only after notice under Section 99 to
that other person and an inquiry must be held as contemplated therein naming
the other person simultaneously for commission of such corrupt practice. There
is no manner of doubt that making of an order under Section 98 against the appellant,
who is returned candidate, without complying with the requirements of Section
99when the corrupt practice against the appellant is held to be proved
vicariously for the act of another person, by itself vitiates the impugned
judgment. Further, in view of the principles laid down in the above mentioned
reported decision, it is also clear that the court has no option in this matter
and it isIncumbent to name such a person in the final verdict given in the
election petition under Section98 of the Act after making due compliance of Section
99 of the Act. The High Court has not only acted contrary to law and ignored
the mandate of Section 99 of the Act but taken the view that there was an
option available to the Court to ignore the requirement of Section 99 to give
notice to the distributors of the pamphlets and to name them as persons guilty
of the corrupt practice even though the distribution of pamphlets by the UDF
workers is made the foundation of the corrupt practice, allegedly committed by
the appellant. The judgment is obviously vitiated since no concluded finding on
this question is recorded against the UDF workers, who had allegedly
distributed Ext. X4, choosing to ignore the requirement of Section 99 of the
Act. The approach of the learned Judge of the High Court in finding the
appellant guilty for distribution of pamphlets vicariously in the sense that
UDF workers had distributed the pamphlets with the consent of the appellant,
after holding that there is no sufficient data to conclude that those UDF workers
who had distributed Ext. X4 pamphlets had the requisite contumacious mind, is
contrary to law and difficult to uphold. If the workers had no contumacious
mind, the appellant hardly could have been fastened with any vicarious
liability for the so called alleged corrupt practice.
23.
The
net result of the above discussion is that the finding, recorded by the High
Court that the pamphlets were distributed on May 8 and May 9, 2001, is not only
perverse but contrary to the facts proved and, therefore, the same is liable to
be set aside.
24.
Another
alternative plea, which was raised on behalf of the appellant, was that even if
the court were to hold that it was proved by the respondent No. 1 that the
appellant and/or the UDF workers with the consent of the appellant had distributed
the pamphlets in question, there was no publication of the same within the
meaning of Section 123(4) of the Act as the contents of Ext. X4 were already previously
published in "Crime" Magazine having circulation in the constituency
concerned.
25.
The
High Court further committed error in holding that the distribution of the
pamphlets amounted to publication for the purposes of Section 123 of the Act.
Section 123(4) of the Act provides as follows: - "Corrupt Practices. -
The following shall be deemed to be corrupt practices for the purposes of this
Act: - (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 withdrawal, of any candidate, being a
statement reasonably calculated to prejudice the prospects of that candidate's election."
48
It is an admitted
fact that the objectionable pamphlets contained statements, which were
previously published in the three editions of the "Crime" magazine
which has circulation in the Constituency concerned. Though the High Court
holds that the pamphlet additionally contains a heading and a caption,
ultimately, the appellant is found guilty for republishing material from Crime magazine
relating to misappropriation of the funds from one Vivekananda College. The question
is whether republishing material from the "Crime" Magazine, which was
already distributed earlier, can be regarded as an act of publication of
statements of fact relating to the personal character and/or conduct of the
respondent No.1, within the meaning of Section 123(4) of the Act. The word
"publication" occurring in Section 123(4) of the Act, has not been
defined under the Act. Therefore, it would be relevant to refer to the meaning
of the word" publication" as given in standard dictionary. The word "publication"
has been defined in Black's Dictionary of Law (6th Edition) as follows: -
"to make
public; to make known to people in general; to bring before public; to exhibit;
display, disclose or reveal.........the act of publishing anything; offering it
to public notice, or rendering it accessible to public scrutiny. An advising of
the public; a making known of something to them for a purpose. It implies the
means of conveying knowledge or notice."A similar meaning has been
ascribed to the word" publication" in State of M.P. and another etc.
etc. vs. Ram Raghubir Prasad Agarwal and others (1979) 4SCC 686. The first and
foremost ingredient of publishing is making information known to the public in
general. Publication is an act by which some information is exhibited,
displayed, disclosed or revealed before the public. By publication, the
necessary information is made accessible for public scrutiny. It is an act of making
known of something to the public in general for a purpose. In the present case,
this Court finds that the information as contained in the pamphlet about the respondent
No. 1 having misappropriated the funds of the school was already exhibited,
displayed, disclosed, made known, revealed and brought to the notice of general
public residing within the constituency when "Crime" magazine was previously
published and circulated in the constituency. The reproduction and distribution
of the same information within the space of a few months cannot amount to
publication for the purposes of Section 123 of the Act. It must be remembered
that a trial under Section 123 of the Act is a criminal trial. Conviction under
the provisions of Section123, may lead to disqualification of the candidate concerned
for a period of six years under Section 99 of the Act, which is a serious
matter. Therefore, the provisions will have to be construed strictly. So construed,
there is no manner of doubt that reproduction and distribution of the
reproduced information within the space of few months cannot be regarded as
publication of the statements of fact relating to the personal character and/or
conduct of the respondent No. 1 within the meaning of Section 123 of the Act. Instead,
the impugned judgment holds that as in law of defamation, the republication of
statements of fact also amounts to publication for the purpose of Section
123(4) of the Act. This Court is of the firm opinion that there is no warrant for
such a conclusion and it is wrong to say that republication as in defamation law
amounts to publication so far as Section 123(4) of the Act is concerned.
26.
Another
alternative plea raised on behalf of the appellant for consideration of this
Court was even if it was assumed that the respondent No. 1 had proved that the
appellant and/or UDF workers with the consent of the appellant had distributed the
pamphlets and distribution of the pamphlets amounted to publication notwithstanding
the fact that the contents of the pamphlets were previously published in "Crime"
Magazine, it was contended that evidence adduced establishes that the appellant
had believed the imputations made against the respondent No. 1 in Ext.X4 to be
true, whereas it was not established by the respondent No. 1 that the
imputations made in Ext. X4were believed to be untrue by the appellant and, therefore,
no corrupt practice as alleged was committed by the appellant.
27.
The
High Court has further erred in holding that the appellant believed the
published material to be false at the time of its distribution. One of the
important ingredients in proving the offence of corrupt practice under Section
123(4) of the Act is that it has to be established that the returned candidate
believed the statement that was published, to be an untrue statement. It is
significant that unlike the law of defamation, where truth is a defence,
Section 123(4) of the Act not only recognizes truth as a defence by using the
words "publication of any statement of fact ..... which is
false....." but additionally protects the maker of the statement by
stipulating that the maker must believe the statement to be false. This Court
has held that the onus of proving that the maker believed the statement to befalse
rests with the election petitioner (see Dr. Jagjit Singh vs. Giani Kartar Singh
and others AIR 1966 SC773 - paragraph 21). The High Court does not explain how
and by way of what evidence led by the respondent No. 1 it stands proved that
the appellant believed that the contents of the pamphlets were false. On the
contrary, the defence of the appellant that he believed the statements made in
Ext. X4 to be true because of their prior publication in "Crime"
magazine and failure of the respondent No. 1 to initiate any legal action
against the Crime magazine, if tested on preponderance of probability stands
proved. However, this defence of the appellant is discarded by the High Court
by making the following observations: -
"71. There are
many in this country who may believe that the printed word is truth. But that
certainly is not the yardstick or touch stone on which the contumacious state
of mind of the maker of a statement of fact will be assessed. Merely because
the Crime Magazine is one having circulation, popularity and notoriety, D.W. 53
(the appellant) cannot assert that he believed the printed words in Exts. R6,
R7 and R8 to be the gospel truth. If 54such an approach were permitted,
section123(4) of the Act can be violated with impunity if some yellow
journalist publishes unfounded allegations and the offender-facing proceedings for
defamation or for corrupt practice under Section 123(4) of the Act, repeats the
allegation with impunity and claims immunity from consequences of his conduct.
That cannot certainly be the law. That cannot be approach that this court will
adopt. The 1st respondent who has had a fairly long political career cannot
contend that he simply swallowed the publications made earlier in Exts. R6, R7
andR8 and hence did not believe the statement off acts made in Ext. X4 to be
false or he did not believe them to be not true.""78. .....the
publication of the same statement of fact earlier in the Crime Magazine cannot justify
the 1st respondent. Even the fact that some other gullible members of the
public who read the relevant Crime Magazines and came to know of these
allegations believed or did not doubt the truth of such statement of fact cannot
help the 1st respondent at all. At worst, that can only prove the pregnant
possibilities of such false assertion of fact. Except the earlier publication
of the same statement off act in the Crime Magazine i.e. Exts. R6, R7and R8,
there is not a semblance of scintilla or data which can persuade this Court to
assume that the maker of the said objectionable statement or any other had
reasons to believe the said statement of fact to be true or did not believe it
to be false." 55
It is not clear from
the extracts quoted above as to how the High Court has concluded that the
appellant could not have relied upon the publications of the offending information
in "Crime" magazine. The reference to" Crime" magazine as a
yellow journal is also not proper. The term "yellow journal" has its
origins in Americans lang. It was initially used by some people to describe a newspaper
called the "New York World" in the early1900s because the paper used
to print sensational stories and had a cartoon strip called the "yellow
kid" which was printed with yellow ink. Black's Law Dictionary (6th
Edition) defines "yellow journalism" as follows: - "type of
journalism which distorts and exploits the news by sensationalism in order to
sell copies of the newspapers or magazines."The High Court has summarily
described "Crime" Magazine to be a yellow journal. Whether
"Crime" magazine is a yellow journal is a matter of opinion and not
of fact. It is impossible to conclude that an opinion of this sort is a
judicially noticeable fact for the purposes of Section 56 or Section 57 of the
Evidence Act, 1872.There is nothing in the impugned judgment which indicates that
any evidence was led, much less considered as to whether "Crime"
magazine is a yellow journal and hence magazine could not have been relied upon
by the appellant in forming a belief that the contents of the magazine were not
untrue. Further, between the time of publication of offending material in Crime
magazine and the alleged distribution of the pamphlet, the respondent No. 1 did
not pursue any action in law by way of criminal complaint or suit against the
publishers of the Crime Magazine for defamation. It is only after the
institution of the election petition that such a complaint was filed,
presumably as an afterthought. Even in the said complaint for defamation, filed
by respondent No. 1 against the printer and publisher of crime, the third
imputation which is found as offending by the High Court was not included. This
would show that the respondent No. 1 himself considered the said imputation as
not defamatory or at least not capable of being proved to be false. The
appellant, in these circumstances, not only had an explanation but a satisfactory
explanation as to why he believed the objectionable statements in the pamphlet
Ext. X4 to be true. There is no manner of doubt that the High Court, therefore,
erred in holding otherwise, despite the fact that the respondent No. 1 had not
discharged initial on us resting on him. In view of the fundamental mistake committed
by the High Court in the matter of standard of proof while resolving dispute of
corrupt practice and faulty appreciation of evidence by applying wrong standard
of proof as also the fact that the election of the appellant is set aside on
the basis of broad probabilities and presumptions, without even referring to
any of the evidence adduced by the parties, the impugned judgment is liable to
be set aside.
28.
For
the foregoing reasons the appeal succeeds. The judgment dated August 8, 2005,
rendered by the learned single Judge of the High Court of Kerala at Ernakulam
in Election Petition No. 6 of 2001 by which the election of the appellant as a
member of Kerala Legislative Assembly No. 106 Kallooppara Constituency is
declared to be void on the ground that he is guilty of corrupt practice under Section
123(4) of the Representation of People Act, 1951,is hereby set aside. There
shall be no order as to costs.
.....................................J.
[J.M. Panchal]
.....................................J.
[Gyan Sudha Mishra]
New
Delhi;
December
01, 2010.
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