Appeal No 558 of 1964
176 Appeal by special leave from the judgment and order dated December 16 1963 of the Rajasthan High Court in D B Election Appeal No 74 of 1963
R K Garg section C Agarwal D P Singh and M K Ramamurthifor the appellant
G section Pathak and Naunit Lal for the respondent
The Judgment of the Court was delivered by Subba Rao J
The appellant Sheopat Singh and two others namely Ramchander Chowdhary and Suria Ram contested the election for a seat in the Rajasthan Legislative Assembly from Hanumangarh constituency
The appellant polled 1285 votes Ramchander Chowdhary 18217 and Surja Ram 1285 votes
The appellant was declared elected
The respondent One of the  electors filed an election petition under section 8 1 of the Representation of the People Act 1951 hereinafter called the Act for setting aside the election of the appellant on various grounds Me Election Tribunal
by its order dated June 18
1963 held that the respondent had failed to substantiate the allegations made against the appellant and on that finding dismissed the petition
Against the said order the respondent preferred an appeal to the High Court of Judicature for Rajasthan at Jodhpur
A Division Bench of that Court heard the appeal and came to the conclusion that the appellant was guilty of a corrupt practice under sub section
4 of section 123 of the Act in publishing a poster exhibit 3 which contained a statement of fact about the personal character and conduct Of Ramchander Chowdhary one of the candidates in the election
On that finding it set aside the order of the Election Tribunal and declared the election of the appellant void
The appellant by special leave has preferred this appeal to this Court against the said order of the High Court
In Learned counsel for the appellant raised before us two points namely i that exhibit 3 the poster published and circulated by the appellant is not hit by the provisions of section 123 4 of the Act and ii that the election petition should have been dismissed d under section 85 of the Act on the ground that it had not impeded Hariram another duly nominated candidate who withdrew his candidature before the election and against whom allegations of corrupt practice were made
The first argument of the learned counsel is elaborated thus
Under section 1234 of the Act the burden is upon the person who is to impute corrupt practice described thereunder to establish the ingredients of corrupt Practice laid down therein
He has 177 not only to prove that the elected candidate published a statement of fact which is false in relation to the personal character or conduct of another candidate but also that he believed it to be false or he did not believe it to be true
He has to prove further that the said statement was calculated to prejudice the prospects of the other candidate s election that is to say that the voters had the knowledge that the corrupt practice or practices were attri buted to him and because of that knowledge did not vote for him
In the instant case exhibit 3 contained only general allegations against the misrule of the Congress Party and even if the statements can be related to Ramchander Chowdhary there is no evidence that the voters knew that it was he who was referred to in the poster
The first question is whether exhibit 3 is hit by the provisions of section 1234 of the Act
Before we consider the terms of the document it will be convenient and useful to notice the ingredients of the section
It reads Section 123 4  The publication by a candidate or his agent or by another 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
The sub section may be dissected into the following component parts relevant to the present enquiry 1 the publication of any statement of fact by a candidate 2 that fact is false 3 the candidate believes it to be false or does not believe it to be true 4 the statement is in relation to the personal character or conduct of the candidate and 5 the said statement is one being reasonably calculated to prejudice the prospects of the other candidate s election
An election is the expression of a popular will
It shall be so conducted that the popular will shall be reflected on the basis of the policy of the party which the candidate represents and on big merits
That object cannot be achieved unless freedom of speech t assured at the election and the merits and demerits of a candidate personal as well as political are prominently brought to the notice of the voters in the constituency
At the same time it shall not be allowed to degenerate into a vilification campaign aimed at bringing down the personal character or conduct etc
of the 178 candidates without any basis whatsoever
The subsection is designed to achieve this dual purpose namely freedom Of speech and prevention of malicious attack on personal character Dr conduct etc
of rivals
The purity of an election is sought to be maintained without affecting the freedom of expression
The sub section prohibits any statement of fact in relation to Personal which is not only false but character or conduct of any candidate which is not only false but also the candidate making it either believes it to be false or does not believe it to be true it implies that a statement of fact relating to the personal character or conduct etc
of a candidate can be made if it is true
Even if it is false the candidate making it is protected unless he makes it believing it to be false or not believing it to be true that is to say statements which are not true made bona fide are also outside the ambit of the provision
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 r means designed 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
As considerable stress is laid upon the burden of proof reference may be made to the judgment of this Court in T K Gangi Reddy vs M C Anjaneya Reddy
In that case dealing with the question of burden of proof this Court observed Burden of proof has two distinct meanings viz i the burden of proof as a matter of law and pleading and ii the burden of proof as a matter of adducing evidence  
The first remain  constant and the second shifts The burden of proof as a matter of law and as a matter of adducing evidence is on the respondent who seeks to get the election set aside to establish corrupt practice but if he adduces sufficient evidence as in this case we are satisfied he has the burden of 1  268
179 adducing evidence shifts on to the appellant
That apart when the entire evidence has been adduced in the case the question of burden of proof becomes merely academical
In this case the High Court considered the relevant evidence and came to the conclusion that the respondent has proved his case
No error has been committed by the High Court in this regard
One of the important ingredients of the sub section is that the statement shall be made in relation to the personal character or conduct etc
of another candidate
What is the meaning of the expression personal character or conduct  This question has been considered by this Court in two decisions
In Gangi Reddy s case 1 dealing with the said expression this Court observed at p 266 thus The words personal character or conduct  are so clear that they do not require further elucidation or definition
The character of a person may ordinarily be equated with his mental or moral nature
Conduct connotes a person s actions or behaviour 
What is more damaging to a person s character and conduct than to state that he instigated a murder and that he was guilty of violent acts in his political  career in Inder Lal vs Lal Singh2 this Court again adverting to this aspect observed thus In discussing the distinction between the private character and the public character sometimes reference is made to the man beneath the politician and it is said that if a statement of fact affects the man beneath the politician it touches private character and if it affects the politician it does not touch his private character
 After referring to obvious statements which affect the private character of a person this Court proceeded to state But there may be cases on the border line where the false statement may affect both the politician and the man beneath the politician and it is precisely in dealing with cases on the border line that difficulties are experienced in determining whether the impugned false statement constitutes a corrupt practice or not
 It is not necessary to refer to other decisions cited at the Bar
11960 2 1963 Supp
3 SCR 114122
180 The boundary between personal character and conduct and public character and conduct is well drawn though sometimes it is thin
Sometimes a statement may appear to touch both the candidate s personal as well as Public character
But a deeper scrutiny enables a court to ascertain whether there is a reflection on his personal character or on his public character
To illustrate suppose a statement is made to the effect that a minister has taken a bribe in making an appointment or in giving a contract
He has taken the bribe in the course of discharging his duties as a minister but his act of taking bribe does not solely reflect on his public character
By taking a bribe he does not discharge his Official duties taking a bribe has nothing to do with his official or public duty it reflects on his moral and mental fire
His position as a minister may have given him the opportunity to take a bribe but the taking of the bribe is mainly attributable to his deficiency in personal character
We therefore hold that any statement made which reflects on the mental or moral character of a person is a reflection on his personal character whereas any criticism of a person s political or public activities and policies is outside it
The fact such a statement is made in the course of a political or public activity does not make it any the less a statement in relation to his personal character or conduct
It is a question of fact in each case under what category a particular statement falls
Now let us have a look at the terms of exhibit 3
It is a big poster in which some portions have been printed in bold letters
There is a large size photo of the appellant on the right top corner and the symbol of the communist party at the end
The poster runs thus Bounties of the Cement of the Rajasthan Canal
Cinema of seven lakhs in Ganganagar and magnificent kothis in the neighbourhood of Jaipur s Rajmahals
Open loot in liquor contracts by Gandhi s devotees and improper transfer of lands
Hanumangarh s gentlemanliness honest and public welfare faced with the corrupt permit loving and police raj of the Congress
Give proof of bravery modesty and selflessness by giving vote to Sheopatsingh Makkasar who would bravely sacrifice himself for the glory and prestige of Hanumangarh
Election Ears of com and sickle Symbol 181 Vote for ears of corn and sickle the symbol of prosperityprogress and popular rule
 Learned counsel for the appellant contends that the poster does not overstep the limits of reasonable criticism of the opposite candidate and that it says only generally that under the Congress rule many corrupt practices are going unheeded and that if the appellant is elected he would rectify the defects and restore the glory and prestige of Hanumangarh
It is not necessary in this case to ascertain whether all the misdeeds narrated in the poster refer to Ramchander Chowdhary for we are satisfied that the first paragraph clearly and reasonably refers to his activities
The vernacular word for bounties  is barkatain
The first paragraph of the poster means that the cinema theatre of Rs 7 lakhs in Gangangar was the barkat of the cement of the Rajasthan canal
That means by misappropriating the cement of the Rajasthan Canal the cinema theatre worth Rs 7 lakhs was built
Ex facie the poster does not say who misappropriated the cement and to whom the cinema belonged
But the words in the context of the well known facts can reasonably lead only to one inference
At the crucial time Ramchander Chowdhary was the Minister in charge of the Rajasthan Canal Project
During the election at Ganganagar a cinema theatre known as Adarsh Theatre was being put up
It is admitted by the appellant and his agent that the theatre referred to in the poster is the Adarsh Theatre and it belongs to Ramchander Chowdhary and his sons
In the context therefore it is manifest that the poster meant to convey the idea that Ramchander Chowdhary misappropriated the cement of the Rajasthan Canal of which he was in charge and built a big theatre in the name of his sons
That is to say the act of misappropriation was in clear terms attributed to Ramchander Chowdhary
To make a statement that a minister has misappropriated the cement in his charge and built a theatre from out of the proceeds is certainly a reflection on his personal character and conduct
Learned counsel s contention that it may mean that somebody other than the Minister might have misappropriated the cement and sold it in the black market and that the Ganganagar cinema theatre might have been built from and out of the cement purchased therefrom
This is rather an unnatural rendering of the clear recitals in the first paragraph of the poster
The word barkatain shows that Rs 7 lakhs was derived from the cement for the canal
If the minister or his sons purchased cement in the blackmarket the building cannot be the bounty of the cement of the Rajasthan Canal
In that event only the cement misappropriated by somebody would have been used for building the 182 cinema
The cost of building the theatre would have been borne by the minister and his sons not out of the gift made from the cement of the Rajasthan Canal
We are therefore clearly of the opinion that the first paragraph of the poster is a direct reflection on the personal character of Ramchander Chowdhary
Even so learned counsel for the appellant argues that it has not been established that the appellant made the statement believing it to be false or not believing it to be true
PW 4 Dharam Pal under whose supervision the cinema theatre was built stated that 4000 bags of cement were used in its construction and that 2000 of these bags were obtained from the cement factory of Sawai Madhopur 1585 bags from the cement factory at Charkhidadri and the remaining 415 bags were purchased locally against permits issued by the department concerned
This evidence has been accepted by the High Court
On the other handnot only the appellant did not adduce any evidence to rebut the evidence adduced by the respondent but the appellant as well as his witness DW 7 admitted in the witness box that Ramchander Chowdhary was an honest man
In this state of evidence the respondent on whom the burden of proof lay discharged that burden and the High Court rightly found in his favour
The next facet of the argument is that there is no evidence in the case that the said statement was one reasonably calculated to prejudice the prospects of the election of Ramchander Chowdhary
It is asked how could the statement deflect the voters from voting in favour of the said Ramchander Chowdhary if they did not know that the cinema theatre that was being built in Ganganagar belonged to Ramchander Chowdhary or his sons It is further said that there is no evidence in this case that all or any of the voters knew the fact that the cinema theatre belonged to Ramchander Chowdhary or his sons
Reliance is placed upon the decisions delivered in the context of libel actions
In Nevill vs Fine Art and General Insurance Co Ltd1 Lord Halsbury LC accepted the principle that the questioned document should be taken in a defamatory sense by those to whom it was published according to the primary meaning of the language used in it
In The Capital and Counties Bank Ltd vs George Henty  Sons2 for the purpose of ascertaining whether a statement was defamatory the test whether the circumstances in which the writing was published reasonable men to whom the publication was made would be likely to understand 1 2 183 it in a libellous sense
In that case the House of Lords came to the conclusion that it did not
This test is relied upon in support of the argument that the voters should have known that the first paragraph of the poster referred to Ramchander Chowdhary for without such knowledge it could not have prejudiciously affected Ramchander Chowdhary s chances in the election
We are not dealing with a libel action
We do not therefore propose to refer to similar cases on libel cited at the Bar
We do not express any opinion thereon
We are only concerned with the express terms of section 1234 of the Act
The only question therefore is whether the said statement was reasonably calculated to prejudice the prospects of Ramchander Chowdhary s election
On behalf of the appellant it was not contended either before the Election Tribunal or before the High Court that the voters had no knowledge of the fact that the cinema theatre at Ganganagar belonged to Ramchander Chowdhary or his sons
That apart as we have pointed out earlier the object with which the statement was made is the crucial test
Here it is established that Ganganagar cinema theatre belonged to Ramchander Chowdhary s sons
It is proved that Ramchander Chowdhary was the minister in charge of the Rajasthan Canal
He was the only effective candidate against the appellant
The appellant s intention in making that statement was therefore obvious and that was to attack the personal character of Ramchander Chowdhary in order to prejudice his prospects in the election
He 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 of the fact that it was being constructed by the minister or 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 Ganganagar the voters in and about that place would not have known about the ownership of that building
The fact that the building was brought in for attacking the personal character of Ramchander Chowdhary a rival candidate clearly indicates that the appellant knew that the voters had knowledge of its ownership and expected that it would create the impression which it manifestly intended to convey
On these facts if the High Court held that the statement was reasonably calculated to prejudice the rival candidate s prospects in election we cannot say that the finding is not supported by evidence or admitted facts placed before the High Court
It was a reasonable inference from the facts found by the High Court
We therefore hold that exhibit 3 is hit by section 123 4 of the Act and therefore the High Court rightly held that the appellant was guilty of corrupt practice
184 To appreciate the second contention some facts may be recapitulated
Hariram the father of the appellant was one Of the candidates who stood for the election
His nomination paper was held to be valid
But later on he withdrew his candidature
In the election petition it was stated that the appellant got printed from lqbal Printing Press Sri Ganganagar hundreds and thousands of posters and leaflets containing grossly libellous and highly defamatory imputations against Ramchander Chowdhary and that the appellant himself and through his workers and supporters got them published by affixing them at conspicuous places in every village of the constituency and freely distributed them among the electors
In one of the annexures the names of the distributor of the posters and leaflets are given as Sheopat Singh the appellant and his father Hariram among others
But there is no allegation that Hariram published the statement believing it to be false or not believing it to be true
Under section 82 of the Act a petitioner shall join as respondent to his petition any other candidate against whom allegations of any corrupt practice are made in the petition
Under section 85 of the Act if the provisions of section 82 have not been complied with the Election Commission shall dismiss the petition
Assuming that Hariram was a candidate within the meaning of section 82 of the Act the question is whether allegations of any corrupt practice were made against him in the petition
The only allegation made was that the appellant got published through him and others the said statement but there was no allegation that Hariram believed the statement to be false or did not believe it to be true
In the absence of any such averment it cannot be held that there was any allegation of any corrupt practice within the meaning of section 8 2 b of the Act against Hariram
In that event as there was no allegation of a corrupt practice against Hariram the penal provisions of section 85 are not attracted
In this context a novel argument has been advanced before us
Publication with guilty knowledge under section 123  4 of the Act the argument proceeds is a composite act and it involves two elements namely i the statement of fact and ii its publication and therefore all persons who take part in one or other of the said elements will be guilty of the corrupt practice even though some of them have and others do not have the guilty knowledge
If this argument be accepted not only the person who makes a false statement of fact and gets it published through his servant but his innocent servant who mechanically obeys the order of his master would be guilty of a corrupt practice
This contention is obviously untenable
185 Under section 123 4 of the Act mens rea is a necessary ingredient of the corrupt practice and the person who publishes a statement whether he is the author of it or not does not commit a corrupt practice unless he has the requisite knowledge
The sub section does not accept the doctrine of constructive knowledge
The High Court has correctly held that the petition was not liable to be dismissed on the ground that Hariram was not included as respondent
In the result the appeal fails and is dismissed with costs
Appeal dismissed


Summary:
The election of the appellant to a seat in the Legislative Assembly of the State was challenged by the respondent an elector on the ground inter alia that by publishing a poster which contained a statement of fact about the personal character and conduct of one of the rival candidates the appellant was guilty of a corrupt practice under section 123 4 of the Representation of the People Act 43 of 1951
The Tribunal dismissed the petition but the High Court reversed the decision of the Tribunal
In the appeal to the Supreme Court it was contended that  i the poster published and circulated by the appellant was not hit by the provisions of section 1234 the Act and ii the election petition should have been dismissed under 85 of the Act on the ground that another candidate against whom allegation of corrupt practices were made was not impleaded
HELD  i Section 1234 is designed to achieve the dual purpose of protecting freedom of speech and prevention of malicious attack on the personal character and conduct of rivals
A statement which reflects on the mental or moral character of a person is a reflection on his personal character whereas any criticism of a person s political or public activities and policies is outside it
The sub section also requires that the candidate making the statement believes it to be false or does not believe it to be true and 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 designed it denotes more than mere likelihood and imports a design to affect voters
Applying these tests and on a consideration Of the entire evidence the appellant by publishing the poster was guilty of a corrupt practice within the meaning of the sub section
178A E 18OC E 183H
T K Gangi Reddy V M C Anjaneya Reddy and Inder Lal vs Lal Singh 1963 Supp 3 SCR 114 referred to
iiAs regards the candidate who was not impleaded the only allegation made in the election petition was that the appellant got the poster published through him and others but there was no allegation that the candidate believed the statement to be false or did not believe it to be W in the absence of any such averment it cannot be said that there wall anY allegation of any corrupt practice within the meaning of section 82b Of Act against such candidate
Also under section 123 4 mens rea is a necessary ingredient of the corrupt practice and the person who publishes a statement whether he is the author of it or not does not commit a corrupt practice unless he has the requisite knowledge
As there was no allegation of corrupt practice against the candidate who was not impleaded the penal provision of section 85 are not attracted and the petition was not liable to be dismissed
184E H 185A