Appeal No 1778 of 1967
Appeal under section 116 A of the Representation of the People Act 1951 from the judgment and order dated October 3 1967 of the Bombay High Court Nagpur Bench in Election Petition No 14 of 1967
CB Agarwala and AG Ratnaparkhi for the appellant
RM Hazarnavis BA Masodkar section B Wad VD Chetande and MS Gupta for respondent No 1
The Judgment of the Court was delivered by Hegde J
The appellant is the returned candidate from the Rajura constituency of the Maharashtra State Legislative Assembly in the general election held in February 1967
In that election he secured 21435 votes as against 17521 votes secured by his nearest rival the first respondent herein the nominee of the Indian National Congress
The first respondent was representing that constituency prior to the said general election
The first respondent challenged the validity of the appellant s election in Election Petition No 14 of 1967 in the High Court of Judicature at Bombay Nagpur Bench on two grounds namely 1 that the appellant was disqualified to be a candidate in that election and 2 that he was guilty of corrupt practices under section 1234 of the Representation of the People Act 1951 to be hereinafter referred to as the Act
The High Court allowed the petition and set aside the election of the appellant on the ground that he was guilty of publishing statements of facts which are false and which he either believed to be false or did not believe them to be true in relation to the personal character and conduct of the first respondent
It did not uphold the contention of the first respondent that the appellant was disqualified to be a candidate
768 Though at one stage Mr Hazarnavis learned Counsel for the first respondent attempted to support the judgment of the trial court on the ground that the appellant was disqualified to be candidate he finally gave up that contention
Therefore it is no necessary to examine the same
The High Court has found that the appellant was responsible for the publication of Exhs
55 and 56 which according to contained statements of facts relating to the personal character and conduct of the first respondent and those statements were either false to his knowledge or at any rate he did not believe them to be true
It further came to the conclusion that in some of the election meetings the appellant had falsely stated that the first respondent had a share in the contract secured by him for Abid Hussain
The bulk of the evidence adduced in this case relates to the controversy whether the appellant was responsible for the printing and publication of Exhs
55 and 56
The High Court has accepted the case of the first respondent that the appellant was responsible for printing and publishing those pamphlets
We have been taken through that evidence and we agree with the High Court on that aspect of the case
It is not necessary to deal with that evidenced as we are of opinion that the statements contained in those pamphlets do not amount to corrupt practice under section 123 4 of the Act Section 1234 reads 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
 The ingredients of the corrupt practice mentioned in this section are 1  the publication by a candidate or his election agent or by any other person with the consent of that candidate or his election agent of any statement of fact 2 which statement is false and which was believed by the candidate to be false or a any rate was not believed by him to be true 3 the said statement relate to the personal character or conduct of a candidate on in relation to his candidature or withdrawal and 4 the same being a statement reasonably calculated to prejudice the prospects of that candidate s election
As explained by this Court in Sheopat Singh vs Ram Pratap1 section 1234 is designed to achieve the dual purpose of protecting 1  769 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 one relating to his personal character or conduct whereas any criticism of a person s political or public activities and policies is outside it
Section 123 4further requires that the candidate who made a false statement should have believed it to be false or did not believe it to be rue and lastly it should be a statement reasonably calculated to prejudice the prospects of the election of the candidate against whom it was made
The word calculated  means designed it denotes more than mere likelihood and imports a design to affect voters
The election law in this country as in England guarantees freedom of criticism of political nature at the time of election
It is true that the freedom of criticism given might be sometime misused
The political history of even countries like England shows that sensational false election propaganda against a political party particularly on the eve of election might upset the party s electoral fortune
But the advantage gained from free criticism though sometimes it may turn out to be irresponsible in the long run outweighs the disadvantages
It is in the interest of democracy that such criticism should be allowed
This is the view of political thinkers
A political party s reputation is not built on shifting sands
It has at any rate it should have firmer foundation and should not be affected by passing winds
But in the case of individuals a different approach is necessary
A campaign of slander is likely to create prejudice in the mind of the people against him
It cannot be put down as cynicism when it is sometimes said that the bigger the lie the greater is the chance of its being accepted as true
There is unfortunately a tendency in the minds of the unwary public to believe the worst about individuals
Democracy will be a farce if interested persons are allowed to freely indulge in character assassination during election
Section 1234 as we understand it embodies the two principles discussed above
Every false allegation does not come within the mischief of section 1234
When any false allegation of fact pierce the politician and touches the person of the candidate then section 1234 is contravened
Dealing with the meaning of the expression personal character and conduct  found in section 1234 Subba Rao J speaking for the Court in TK Gangi Reddyv
MC Anjaneya Reddy and Ors1 observed at p 266 of the report 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 1 XXH ELR p 266
770 be equated with his mental or moral nature
Conduct connotes a person s actions or behaviour
 Dealing with a provision similar to section 1234 Darling J Cumberland Cockermouth Division casex observed What the Act forbids is this
You shall not make or publish any false statement of fact in relation to the personal character or conduct of such candidate if you do it is an illegal practice
It is not an offence to say something which may be severe about another person nor which may be unjustifiable nor which may be derogatory unless it amounts to a false statement of fact in relation to the personal character or conduct of such candidate and I think the Act says that there is a great distinction to be drawn between a false statement of fact which affects the personal character or conduct of a candidate and a false statement of fact which deals with the political position or reputation or action of the candidate
If that were not kept in mind this statute would simply have prohibited at election times all sorts of criticism which was not strictly true relating to the political behaviour and opinions of the candidate
That is why it carefully provides that the false statement in order to be an illegal practice must relate to the personal character and personal conduct
 The language of section 123 4 is any statement of fact which is false  and that language must be used in contrast to a false statement of opinion
The language used is not merely a false statement  but a statement of fact which is false 
The statement in question must be in relation to the personal character or conduct of a candidate which means a false statement of fact bearing on the personal character or conduct of a candidate
Further one of the ingredients of the corrupt practice under section 123 4 is that the statement complained of must be one reasonably calculated to prejudice the prospects of the election of the person against whom it is made
It may be noted that the section does not merely say being a statement calculated to prejudice the prospects of the candidate s election  but on the other hand it says being a statement reasonably calculated to prejudice the prospects of that candidate s election 
The meaning of that expression is as held by a Division Bench of the Bombay High Court in Dattatraya Narayan Patil vs Dattatraya Krishnaji Khenvikar and Ors2 that the publication of false statement of fact relating to the personal character or conduct must be such as would in the estimation of the Court having regard to the nature of the publication the evidence ten 1 1901 5 O M  Hp
2 AI R 771 dered in Court and the surrounding circumstances have its natural and probable consequence of prejudicing the prospects of the candidate relating to whose personal character or conduct the publication has been made
So far as the last limb of section 1234 is concerned the emphasis is not so much on the intention of the publisher but on the probable effect on the election of the candidate against whom those statements are directed
It is trite to say that the burden of proving everyone of the ingredients of the corrupt practice alleged is on him who alleges it
If he fails to establish any one of them to the satisfaction of the Court he must fail
We shall now proceed to consider whether the statements of facts contained in Exhs
55 and 56 fall within the mischief of section 1234
Before doing so it is necessary to give the background under which the statements complained of were made
As mentioned earlier the first respondent was representing the constituency in question prior to the general election in 1967
Sometime before the election the cultivators in the Rajura constituency as in other places were required to deliver to the Government a portion of the juwar crop raised by them in pursuance of the levy orders made
This circumstance must have undoubtedly caused dissatisfaction to the rooting
Rajura Taluka was previously a part of the Nizam s State and thereafter the State of Hyderabad till the formation of the Maharashtra State
We understand that in that Taluka the boundary stones had not been fixed
The State of Maharashtra appears to have directed the landowners to fix the necessary boundary stones for their property within a certain period
As some of them did not comply with that direction the Government took upon itself the responsibility of fixing those boundary stones at the cost of those ryots
That work was given on contract to one Abid Hussain
It was suggested that charges fixed were excessive
It may be mentioned at this
stage that during the time when the juwar levy was imposed and the contract for fixing the boundary stones was given as also at present  the Congress Party was in power in the State of Maharashtra
The first respondent was a Congress MLA
In the past tolls were levied on every vehicle entering the municipal limits of Rajura but some years before the election that levy had been abolished but the same was again reimposed sometimes before the election At the time of the reimposition of that levy Shri Shankarrao Deshmukh a Congressman was the Chairman of the Rajura Municipality
Having mentioned these facts we shall now proceed to examine the statements in Exhts
55 and 56
55 is a Marathi poem composed by the appellant s election agent Dr Suresh Vishvanathrao Upaganlawer RW 3
Its English rendering is as follows 772 Request to Voters
Rise Rise Oh Voters Awake at least now Understand and begin to work
You have suffered for five years auspicious day has dawned now truthful to your conscience wake to vote Oh brothers wake to vote
Today kick off this slavery in the freedom and you should expose you should expose the sins of Vithalrao
He held out to be the leader of the people but he put burden of stones on the people By those very stones you build his grave brothers build his grave
For recovery of levy from us unlimited force used against us
They take white juwar and give red millow to us and now confront him with this
Today our luck has dawned in that we got a great leader
For protecting the interests of poor people see this Guruji has taken an Avatar
His name is Jivtode Shrihari has responded to our immediate call
By giving your invaluable vote
To Jivtode and Kaushik Pleader Elect them this time
Take vow like Bhishma and begin working today brothers
begin working today Seeing Lion Symbol by affixing rubber stamp on it We will show to the world Brother we will show our candidates that success garlands him Exh 56 is a pamphlet published in Marathi
It purports to be an appeal by one Ganpat Patil Dhote
The English translation of it is found at p 563 565 ofthe paper book
It reads thus VOTERS BE CAREFUL In the forthcoming General Elections the sitting MLA Shri Vithalrao Dhote is standing for Maharashtra Legislative Assembly on behalf of Congress
The poor people have had experience of Shri Vithalrao Dhote as MLA 773 Having been elected in the 1St General Elections Shri Vithalrao Dhote would work for the benefit of the people and develop the backward Rajura Taluka was our expectation
But the People of Rajura Taluka have been utterly disappointed by Shri Vithalrao Dhote
In the this Taluka the High School which was there in the times of Nizam the High School is there in whole of Rajura Taluka till to day
Shri Vithalrao Dhote could not construct a Single Pucca Road
Could not supply electricity to any village anywhere
Could not make arrangements for watering agriculture
In this Taluka though there is thousands of acres of fallow land for distributing it to landless no effort was made by Shri Vithalrao Dhote
In the last five years no work for the benefit of the people has been done by Vithalrao Dhote
On the contrary through his selfish and fraudulent companion Shri Shankarrao Deshmukh the Municipal President of Rajura he got imposed the stopped toll tax on the bullock cart Rengi and Bandi of poor people coming to Rajura
Its effect has been surely felt by every poor man in the Taluka
Similarly by fixing boundary stones on the Dhuras of the cultivators in Rajura Taluka and by recovering price of stones Shri Vithalrao Dhote has worked for the benefit of Abid Husain Thekedar alone
In this taluka the cultivators could not get Taccavi loans without giving bribe at the time of distributing taccavi Shri Vithalrao Dhote could not check bribery
Shri Vithalrao Dhote has neglected the poor people by looking to the interests of Thekedar contractor alone
By this poor people have lost all faith in Shri Vithalrao Dhote in Rajura Taluka
By this the poor people are very much harassed
When I myself moved in the villages in this Taluka I found that public opinion is inclined against Shri Vithalrao Dhote
People are organised as Shri Vithalrao Dhote has harassed the poorer for furthering interests of his selfish and deceitful companion
Because of this and with great reluctance and keeping interests of public in view I am publishing this pamphlet against Amdar Vithalrao Dhote to keep the true facts before the public
The man who is proving dangerous to the majority in the Society and poorer section of the public has to be pulled down from his office and except this there is no other way is  my belief
Hence I humbly request the voters in Rajura Constituency that they should not vote for the Congress candi 774 date Shri Vithalrao Dhote
Contesting candidate from Rajura Constituency Shri Jivatode Guruji has worked for spread of Education by opening Janata High Schools
Shri Jiotode Guruji has benefited the poor people by opening all kinds of colleges of Chanda Shri Jiotode Guruji will bring about the development of backward Rajura Taluka positively
Hence by putting a cross on the Lion Symbol of Vidarbha Joint Front s Shri Jiotode Guruji Shri Jiotode Guruji be elected by a large majority is my humble and earnest request to the voters
yours humbly Symbol of Lion Ganpat Patil Dhote Put Cross only on Lion
In small type Publish Ganpat Patil Shivshakti of Chote ro Nimani T Rajura Chandrapur
The various statements contained in these two pamphlets are summarised by the learned Trial Judge thus a The Petitioner has imposed the toll tax on poor citizens on their bullock carts through his selfish and bogus companion Shri Shankarrao Deshmukh President of Rajura Municipality which has caused undue suffering to every poor citizen residing in this part
b Vithalrao Dhote has only secured advantage for Abid Husain Contractor by imposing the burden of paying for the border stones which were compulsorily ordered to be fixed
c In this taluq no cultivator has been able to get taccavi without payment of bribe and Vithalrao is unable to prevent it
d Vithalrao Dhote has solely protected the interest of the contractor and neglected the poor citizens and on that account Vithalrao Dhote has forfeited confidence of poor persons in Rajura taluq
e The poor population is simply harassed and I have found that the inclination of the people is against Vithalrao Dhote when I went around in the village
f Poor persons are simply harassed on account of exploitation and ruin caused by Vithalrao Dhote solely for the benefit of his selfish and bogus companions
775 g Persons meaning the petitioner who is a menace W the majority of the community and poor persons must be sacked from the office in my firm conviction
 None of the afore mentioned allegations can be hold to relate to the personal character or conduct of the first respondent
They are undoubtedly criticism true false or exaggerated of the first respondent s roll as politician
Those statements do not make any reflection on the moral or mental qualities of the first respondent
As mentioned earlier a Congressman was the President of the Rajura Municipality at the time the tolls were reimposed
It may be that the first respondent had no hand in the matter of reimposition of the tolls and that the accusation that he got it reimposed is not true but that in no manner can be said to reflect on the personal character or conduct of the first respondent
Similarly the accusation that the first respondent secured advantage for Abid Hussein by imposing a burden on the land owners by making them pay for the boundary stones cannot be said to reflect on the private character of the first respondent whether the statement in question is true or false
The appellant had a right to hold the first respondent responsible for the actions of the Government as he was a member of the party in power
The allegation that in the Rajura Taluka no cultivator had been able to get Taccavi loans without payment of bribe and that the first respondent was unable to prevent it is undoubtedly a legitimate criticism
The allegation that he solely protected the interests of the contractor and ignored that of the poor citizens and on that account he has forfeited the confidence of the poor persons in his constituency is an expression of an opinion whether the same is true or not
The allegation that the poor population is simply harassed and that the signatory to the pamphlet found that the inclination of the people is against the first respondent when he went around in the village is merely an opinion and not a statement of fact
Similarly the allegation that the poor persons are being harassed on account of the exploitation and ruin caused by the first respondent solely for the benefit of his selfish and bogus companions is an expression of an opinion and it is a permissible criticism in a political debate
The assertion that the first respondent is a menace to the majority as also to the poor and therefore he must be sacked from the office is as stated in the pamphlet itself is purported to be the conviction of the person who issued the statement
He is entitled to hold that opinion and propagate it
It must be remembered that during election time passions are roused election propaganda should not be tested by the standards to be adopted in a debate carried on by intellectuals
It may be that many of the charges levelled against a candidate as regards his political past or about his capacity to be a useful representative 776 are not true
It is for the electorate to judge those accusations
So long as those accusations do not affect the personal character or conduct of the candidate the election law will not take note of it
That is why it is said that a politician must be thick skinned and more so at election time
As mentioned earlier it is not a corrupt practice to say something which may be severe about another person nor which may be unjustifiable nor which may be derogatory unless it amounts to a false statement of fact in relation to his personal character or conduct
It is unfortunate that the High Court exclusively focussed its attention on the question whether or not the appellant caused to get Exhs
55 and 56 printed and published and completely ignored the true effect of the statements contained therein
It proceeded on the erroneous impression that every false or unjustified criticism of a candidate amounts to a contravention of section 1234
Dealing with Exhs
55 and 56 this is what the learned Trial Judge observed To say against anybody that he is responsible for imposition of a tax without  justification through
that person s selfish and pretentious friend like the President of the Municipal Council is to say the least to suggest that such person is the direct cause of harassment on account of such taxation on poor people
It is said in the third paragraph of the pamphlet and then there is a direct allegation against the petitioner that it is the petitioner who caused the cultivators in the Rajura taluq to be burdened with
the expense of fixing
the border stones and that in doing so the petitioner Vithalrao Dhote has solely secured an advance for Abid Hussain Thekedar
In the fourth paragraph it is categorically alleged that the petitioner Vithalrao Dhote has exploited and harassed poor people in order to benefit his ie Vithalrao selfish and pretentious friends and such harassment has caused untold miseries
That these allegations are scurrilous does not admit of any doubt
They are defamatory per se
Every citizen is entitled to be presumed to be innocent until contrary is proved
If therefore an allegation of a personal character is made against anyone it is the maker of the allegation who has to establish that there is truth in the allegation
 It is clear that the High Court failed to examine the effect of the statements contained in Exhs
55 and 56 by the tests prescribed in section 1234
Further there is no proof in this case that the statements contained in Exhs
55 and 56 are reasonably calculated to prejudice the election of the respondent
The Trial Court did not give any finding effect
777 This leaves us with the question whether the appellant had announced in his election meetings that the first respondent had a share in the profits earned by Abid Hussain in the matter of fixing boundary stones
The High Court has held that the appellant made that accusation while addressing election meetings at two places
If that finding is correct then undoubtedly there is a contravention of section 1234 but after carefully examining the material on record we have come to the conclusion that finding is unsustainable
The election petition was filed on April 11 1967
That petition merely sets out what according to the petitioner are the contents of Exts
55 and 56
It is not stated therein that apart from the statements contained in those pamphlets any other false statement of fact relating to the personal character or conduct of the first respondent had been made either by the appellant or his supporters
The allegation that the appellant in his election meetings had stated that the first respondent had a share in the profits earned by Abid Hussain in the matter of fixing the boundary stone is not mentioned there
An application to amend the election petition was made on June 24 1967
In that application also there is no reference to the allegation in question
The election petition was again amended on 3 7 1967
It was only then the following allegation was made He the appellant was falsely alleging that the petitioner was or had actively helped Abid Hussain for his selfish ends to make illegal gains and thus allege false corrupt motives to him Even this allegation is vague
That apart it is a highly belated allegation
It appears to be an afterthought
It is not necessary for us to decide in this case whether such an amendment could have been permitted after the limitation for filing the election petition had expired
But the very circumstance that the allegation in question was made several months after the election petition was filed by itself casts serious doubt on the veracity of that allegation
This circumstance was completely overlooked by the High Court
The witnesses who spoke in support of the said allegation are the first respondent PW 2 PW 9 Arjan Kashinath Masirkar and PW 12 Nazir Hussain Akbar Ali
So far as PW 2 is concerned he is undoubtedly an interested witness
In the circumstances mentioned above his evidence can have very little persuasive value
So far as PW 9 is concerned on his own showing he was highly interested in the first respondent and the Congress Party
As elicited during his cross examination he was a Congress candidate for election as Sarpanch and as a member of the Panchayat Samiti
The appellant s cousin was his rival in that election
Admittedly during the last election he canvassed for the 778 first respondent
Under these circumstances much reliance cannot be placed on the testimony of this witness
Then we come to the evidence of PW 12
During his cross examination this is what he stated I have not received a summons
Vithalrao had asked me to produce the register where the hire of cycles is noted and that is how the chits which I have filed came with the register   His evidence is to the effect that the appellant while presiding over the meeting at Rajura on February 13 1967 stated that the first respondent had a share in the contract for fixing of border stones which was produced for him by Vithalrao
When he was crossexamined about that meeting this is what he stated I don t remember who was the President of the meeting
I will  not be able to name at this distance of time the names of persons from the town or the villagers who were listening at the meeting
I will not be able to name a single person from amongst these
 Obviously he is a procured witness
No reliance can be placed on his evidence
For the reasons mentioned above we hold that the election petitioner first respondent herein  has failed to make out that the appellant had contravened section 1234
Hence this appeal succeeds and the election petition stands dismissed
We are of opinion that we should not award any costs to the appellant
He had come forward with a false case and had protracted the trial of the case by adducing voluminous false evidence
Hence we direct the parties to bear their own costs both in this Court as weld as in the High Court
GC  Appeal allowed


Summary:
The appellant was the returned candidate from the Rajura constituency Maharashtra State Legislative Assembly in the general election held in February 1967
The first respondent who was one of the defeated candidates challenged the appellant s election in an election petition
The High Court held that the appellant had made false statements about the personal character and conduct of the first respondent and was guilty of corrupt practice within the meaning of section 1234 of the Representation of the People Act 1951
On this view the High Court allowed the election petition and set aside the election of the appellant who appealed to this Court
HELD i The election law in this country as in England guarantees freedom of criticism of political nature at the time of election
The freedom of criticism may sometimes be misused but the advantage gained from free criticism though sometimes it may turn out to be irresponsible in the long run outweighs the disadvantages
It is in the interests of democracy that such criticism should be allowed
However democracy will be a farce if interested persons are allowed to freely indulge in character assassination during election
A political party may not be affected by passing winds but a campaign of slander against an individual is likely to create prejudice in the mind of the people against him
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
769 C b The ingredients of the corrupt practice mentioned in section 1234 are 1 the publication by a candidate or his election agent or by any other person with the consent of that candidate or his election agent of any statement of fact 2 which statement is false and which was believed by the candidate to be false or at any rate was not believed by him to be true 3 the said statement relates to the personal character or conduct of a candidate or is in relation to his candidature or withdrawal and 4 the same being a statement reasonably calculated to prejudice the prospects of that candidate s election
The burden of proving every one of the ingredients of the corrupt practice alleged is on him who alleges it
768 G 77 c Every false allegation does not come within the mischief of section 1234
The language of the section is any statement of fact which is false  and that language must be used in contrast to a false statement of opinion
The statement in question must be in relation to the personal character of candidate
It is when the false allegation pierces the politician and touches the person of the candidate that section 1234 is contravened
Further one of the ingredients of the corrupt practice under the section is that the statement complained of must be one reasonably calculated to prejudice the prospects of the election of the person against whom it is  made Calculated  means designed it denotes more than mere 767 likelihood and imports a design to affect voters
The emphasis in the last limb of the section is not so much on the intention of the publisher but on the probable effect on the election of the candidate against whom those statements are directed
769 F G 770 E ii In the present case the statements alleged to have been made by the appellant did not amount to corrupt practice within the meaning of section 1234 as they amounted either to fair political criticism or were mere expressions of opinion
The complaint that the appellant had stated that the respondent had a share in the profits earned by a contractor is neither alleged in the election petition nor satisfactorily proved
777 D F Sheopat Singh vs Ram Pratap 1965 t SCR 175 TK Gangi Reddy MC Anjaneya Reddy  Ors XXII ELRp
266 and Dattatraya Narayan Patil vs Dattatraya Krishnaji Khenvikar  Ors  relied on
Cumberland Cockermouth Division Case  referred to