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MANMOHAN KAUA

Y'ASH & OTHERS

April 2, 198'

[S. MURTAZA

FAZAL ALI, A. YARADARAJAN

AND

RANGNATH.

MISRA, JJ.]

Eleclion Lo•s-Corrupt P; ac1ict. aJlgotiQn of;_StantMrd of proof must

b~ prnved s1ric1Jy at a crimhsal char1e a"fd lhe p. i1cipJe of prepond.:ra11C<!. of

probabi.dlits woUJJ Ml app.I> tothtt Rtpresenta1ion of tht People A(f, I 9Sl- Cred1bil( .v a.1d rtlvaf!ct: Of Nt"'s item pub/1shtd ApplicaliJn-1•/ the principle 'of Jnut1.do-Rtprstn ation of Iht P1oplt Act, J9jJ, Sttrion-.J 2:J (4} 1 scope of.

l.J tbe oloction to the A1scmb1y consituehcy No -31 J_ullundur Cntt., which. -was held on 31.S 1980, the total Voles polled from the cons.1itueacy ·· were 47t>50, out of which the appellantpolled 19710, whereas te res~

po:ldnt Yash secured 41_8 voco1. more i.e. 20118 vqtes.

Therefor.e, the appe11ant+sou1b.t to challcn10 \he clcctioa of Respon.:11nt No. l on-various grounds c005-i•tin• of corrupt practio:es com:iliSted by .res;:toodent No. 1 wb, ch materially affected the result of the election.· 1\cCording to the "app:llartt,. Re&, oad.m1 No . .I thr0uah spec.ches ci thcr ma.de by him or his

ff1end carded out a vilhfyi.na ca.mpai111_ to show that he appellant was directly connected Wt1h the murd" of one Asa Rai1 a ha"r.ijan and one of

th•; supporters of Cona:rffs ll) party, 50 as to w.eaa away the votes of the hanj-1ns of th_e locality and tnembers of the Conaress (l) party. The Punjab and H:lry3-n1 -High Court disbelieved the 9!al vidence and found no nexus with tbc riews items etc. and dii.miid the election petition.

Hence the appealb'y special leaYc.

HELD L 1 It is well soa1ed that where the doctrine of iouendo is applied, it m11Jt be clearly proved that the defamatory alteaation -was m3de ia rCp_ect of a person thoUgh rio~ named Jet so fully described -that•

tile allegation wOUtd refer to that. person and that person alone. lnuendo cannot be proved merely by inFerentiJ.I evidence whih 'm:i.y be capable of two possibilities. [386F-G]

1. 2 ln the instant case, the evidence.statement pf.. witnesses aad the documents produced,- do not can for ar{y. inference Qr any close COn9ection or direct iink between the imputations made against the appellarit in 1978 and those made in 1980.

In none of the documents produced by the 3ppellant whicb °refer to the activities of the_ first respondent,"' there is the

slightest possible hint that th• appellant had anything to do with tho

muder of Aia Ram.

Further more, the allegadons made in 1978 being far too remote and there being no cootinuou~ link between those allega- . tions.and the allegati0115 made io 1980, thC first c1tcgory of the cbarse

11gaiost 'tb-e respondent cannot be sustained, more particularly because in

38 3',

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' SUPREME COURTS REPORTS

. [1984] 3 S.C.R"

1978. a fre&h election was not in the offina because .th.e Jznata' GOvernent came into.power iq 1977 and._in normal course would have completed its fuJI term~ in ~82_ ... Thus, ac that tinlno bp~1 coiil~ have predicted that the election would be held only two ye'ars Jter which happened by a suddtn spurt of events.

~386E--F; G-H]

N. Vimala [Jevi v. K •• Madhusudhana Reddy [1975] 3. S.C.R. 128 Jo!lowed.

2.J It is'now well settled by Eevcral aufkorities of the Sup1eme

ourt. t~1 an -aUe8a1iqn of: corrupt Practice musi be proved as. :stric tlY as a 1=rirninal charge and the principle of prepondertnce of .probaf:?iliti .es woutd not apply'- to corrupt practices envisaged by the Act because if th1 s test is no(applied a very sericus prtjudi.ce would be caused to the elected candidate who may be diqualified _for period of six years f1 om fight in& any election, whiCCh will adversely affect the elctoral process. !.JB7F-G]

2.2 In the instant case, ths evidence.both oral and documentary_ .. Jed by the appellant falls short of the •tandard of proof required to bring his case within the four corners of.section 123 (4) of the Representatjon of

th~ People Act 1951 (!) .• Aboutthe speech made on May 18, 1980, the deposition of PW8 ca'nnot be relied on inasmuch as it is i{qpolible to conceive of contradicti'On5 made by him..

If tho Witness a:pari from being 'interested and part jsan, had been Present in 'the meeting throughe_ut, he

would not forget whOspoke Brit.

Ev"en PW J 3 c.annot. b~ believed since,. : white admittinjl in Iris cross exaniinatio.p: that he did not make a notc:d of Wh3t YB.sh had Sl)okcn, yet he was able to givr: "full and grotesque details 'of t"be .spcech 1 that toa, when he was exarnind in 'thecourt after more .thati a year and half.

[390Q--D; ; J88B-D] ·

3. It is very difficult for a Court to rely on , news items pi.iblished in ;:i:ny new!papCr <:n the basis of infrrnation given b, r crrespondents beC-ause that may .not represent the true state of affairs.

It is at best a secoDd , h•nd •econdary evidence.

[388F-G]

:samant N. Balkrishnt1 v. George Fernandez & Ors. f1969] 3 S.CR •

. 603, reit~..fated.

CIVIL APPELLATE JUR!SDICTiON : Civil Appeal No. 2691 of .· 1982.

From the Judgment and Order dated the 4th day of Jun'e, 1982 of the Punjab and Haryana High Court in Election Petition No. 2 of !980.

Appllant in Person

O .. P. Sharma, .K, R. llu1i11, R. t:. 6ub;'1~. and R. ·~ •. 'Bhqftt1, . for the Regpondents.

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MANMOHAN f<AtJA v. YASH (s. , pazalAli, J.)

Th~ Ju13.n:nt of the Court was delivered by

PAZAL Au, J. This election appeal is directed agaimt a judgment dated June 4, I 982 of the Punjab & Haryana High Court <lism'ssing the election petition filed by the appellant against the respondent. The present appeal arises out of an election to , the Assembly constituency No. 31-Jullundur Cantt., which wa~ held on 31. 5. 1980 and the result of which was declared on 3.6.1980.

Both the appdlanl and respondent No ... ) wee the main rival "clnd'd3tes.

Tti: total votes pollea from the constituency were 47650, oqt of which the appellant polled 19710 whereas respondent No. 1 securd 20128' votes, the margin being rather small,

Vif'., 4JS. .

• The appelhnt sought to challenge the election of respondent No. I on various grounds consisting of corrupt practices committed by him (respondent No. !}, which, according to the appelhnt,

.mterially affected the result of th election.

The appellant, who is an Advocate, argued his case with brevity and ingenuity and fairly concedeathat l)e was not going . to press alJ. the allegations made inthe petition but would confine ·

his arguments only to the allegations pertaining to s. 123 (4) of : the Representation sif the People Act, 1951 (for short, to be referred to as the 'Act'). In orde' to understand the ambit and scope within the c?nfiites of which the appellant h1s argued his . case, it mw be necessir)' to extract sub-section (4)-

"The publication by a candidate or h!s agent or by

my other person, with the onsent Of a candidate or his' election agent, of any staten1ent of fact wh'ch is false, and which he either believes to b.e false or does not believe to . "be true, in relation to the personal character or conduct of

any candidate, or in relation to the candidature, or with-. drawal, o( any candidate, being a statement reasonably calculated to prejudice the prospects of that oondidate's

election." ·

Jn view of the concessions made by the appellant, the case lies within a very narrow compass. ']; he allegations made by the appellant against the respondent consist oftwo categories-,

(I)' speeches having been made y , the respondent or his friends near about. the. time. of the electi6n and after the , respondent was , nominated as a candidate, which amounted

'G.

to serious character aisasination of the appellant by projec- . trng bimas a murderer of one Asa.Ram, who died as far

back as 1978. ·

According to the appellant, the respondent No. I carried out . a villifying compaign to show that be (appellant) was directly conneted with the aforesaid murder so as to wean way the vote~. of the harijans 9f the locality. and members of the Congress (I). part)' because Asa Rm was harijan an.d one of the supporters or Congress (I) party. Jn thi~ <;.onnection, the allegations made ma:ir be clased under t'Yo. separate categ()ries:. -

(a) Utterances; speeches, 31e'l'(s items and articles regarding the allegation that •tho appellant was directly connected with tbe murder of Asa Ram in.1978, and ·

(b} speeces 'and news item~ mde and issued by respondent N1>. 1 on varic us occasions proximate to the date of the election. ·

(2)' Similar acts comm(tted by respondent No. I in closeproximity vto the election, i.e., sometime in May 1980_ After, hav!ng gone through the ovidonce. statemcnr.ofwitnesses. andt he ·.iocuments placed before us, weare. un.able to find any close connection or direct link beNeen the imputations n:iadc against the appelillnt in 1978 and those made in'l980. In none ofthedocui; nents produced by the 'appellant, which refer t6 the act.ivities of the firstrespondent, there is the slightest possible hint that the appellant had anything to do wilh tho murder of Asa Ram .. Realiiing. this diffiCl!ltY, the appellant sought the application of the doctrine of inµendo: It is well settled that where t.his doctrine is applied, it must be cl¢ar)y proved that the defamat9ry allegation was m.:i1le in respect of a person though not . nam.ed . Yet so fully described that the allegation would refer to. that person and that.

prson alone.· ]nuendo canot b.e proved. '?rely by inferentiat evidence which may be capable of two po~1b1ht1es. Furthermore, the allegations made in l 978 being far to? remote and there being: no continuous link botween those al!egat1on9 aod the allegations. made in J 980, the first categor)' of the charge against the respon' dent cannot sustai, ned, more particularly because in. 1978 a. fresh election was not in . the offi!lg because the Janata Govern,

ent came into power in 1977 and in normal courae would have:> :rinpleted itsfuU term in 1982. Thus, at that time nobody could have.predicted that the elections .would be held only two yean .. later which happened by a , udden spurt of events.

' --t .

<.•

)u.

~·

A..

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" MANMOHAN KALIA v. YASH ( Fazal Ali, J.)

In these circumstances, we would place no reliance at all so far as the first category of the allegations against the respondenth is concerned. In N. Vimala Devi v. K. Madhusud!uma Reddy(1) this Court corrtpletely ruled out documents containmg instances of corrupt practice which had nothing to .do with the 1972 election with which their Lordships were concerned in that case and in.' this connection while overruling an important documeltt they observed thus : ·

, "We are not impressed by the argument on behalf of the. respondent that Ex. A-57, whiph shows that even in

1970 a representation of a similar kind was made,' shows that there were many others out to besmirch the name of the appellant. Ex-A-57 contains many instanees which have nothingto do with the election in 1972'or the detting up of a Congress candidate in that election. T.hat is the affinity between Ex. A-48 and E, x-Al."

' A

On a parity of reasoning, tl\erefore, we cannot call into aid D the allegations made as far back as 1978. It is, therefore, not necessary for us to consider or to go into the 'evidence offered by • tlie appellant as far as the 1978 incident it concerned.

Coming now to the second category of allegations, as the appellant has confined his arguments only to the averments made regarding the application ofs. 123 (4) of the Act, the ambit of the case is greatly reduced.

Before examining the allegati'ons, we might mention that the learned election Jndge of the High Conrt had dealt with all the allegations and has given convincing and cogent reason§ for holding that they had not been proved either by oral or documentary evidence. It is now well settled by several authorities of this Court that an allegation of corrupt practice must be proved as .strictly as a criminal charge and the principle of preponderance of probabilities would not apply to corrupt practice envisaged by the Act because .if this test is not applied a very serious prejudice would be caused to the elected candidate who may be disqualified for a period of six years from fighting any election, which will adversely affect the electoral process.~

Keeping in view, therefore, the strict standard of proof required in. such cases, we proceed to consider the evidence on which the appellant has relied in order to determine whether or not the corrupt practice alle$ed has been proved. In this connection, the first circ.uinstance stNssed before 11s was that a meeting

(Jl [191s] 3 s.c, R,. 1;:s,

,,.

- \ was convenea in Gopal Nagar, Ward No. 22, on May 18, 1980 where respondent No. 1 and, with his consent, his friend Sansar Chand, delivered fiery speeches connectmg the appellant with the •murder of Asa Ra!ll, which was deposed to by PWs 8 and 13.

PW 8 has stated that he attended a meting on 18. 5. 80 at Bas ti Guzan. The. learned Judge disbelieved his evidence as being wholly improbable. Moreover, there is a .contradiction• in his evidence li'ecause at one place he says tl; l.at Yash (respondent .

No. 1) spoke first and was followed by Sansar Chand and yet at another place. he says. that Sansar Chand spoke first and w.as followed by Yash. It is. impossible to conceive of such a co~ trad}ction if .the witness apart from being interested and partisan, had been present in the meeting throughout, he would not forget the sequence of such 2n important matter. Another witness relied upon by the appellant was PW 13 who has also been dis believed by the learned Judge, and he had admitted in his cross examination that he did not make a note of what Yash had spoken and yet.he was able to give fult and grotesque details of the speech when he was examined in the court, after more than a year and a half. Furthermore, _he states that when he talked to the appellant he was told that the respondent already knew about the meeting. this shows that the appellant himself did not take this witness very seriously. We, therefore, entirely agree with the appreciation of the evidence of these two witnesses made by the learned High Court Judge.

The evidence of.PWs 8 and 13, however, is alleged to have been corroborated by a news item published in an Urdu-daily 'Milap' whose Chief Sub-Editor (PW 5) was examined by, the • appellant. But the witness far from supporting his case has deposed that he had absolutely no personal knowledge of the Report'made by Prnshar which was published on 24.5.80. M; ore, over, it is very difficult for a court to rely on, new; jtems published on the information given by correspondents because that may not represent the true state of affairs.

In Samant N. Ba!akrishna etc. v. George Fernandez..&> Ors. eta. (l) while dwelling on the relevance and credibility of such type of news items. this Court made the fqJlowing observations :

"The best proof would have been his own speech or soine propaganda ma, terial such as leaflets or pamphlets etc., but none was produced ...... A news item without any fur- • ther proof of what had actually happened through witnesses is of no value. It is at bes\ a secondha1,1d secondary evi-

(1) (1969] 3 S.<;.R.~603.

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MANMOHAN KALiA v. YA.SH (Faza!.A/i, J.)

dence. It is well-known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In. this process the trnth m\ght i; et

perverted or garbled: Such news items canuot be said to pcove themselves although they may be taken into account with other evidence if the other evidence is forcible,"

In the instant case, there is no evidence to show the actual record of the speech made by respondent No. I or Sansar Chand and, therefore, the said news item does. not advance the case of the appellant any further, particularly when it has been stoutly denied by respondent No. I and PW 5.

Reliance was also placed on another news item (Ex. PW 25/4) appearing on 20-. 5. 80 which also has to be rejected on the same gronnd as the firstitem •

. The learned Judge has rightly pointed out in his judgment that PW 25, after he was shown the newspaper dated 12. 5. 80 (Ex. PW 25/3), has said that he did not know anything else, that is to say, neither the correspondent revealed the source from which he got the information nor does he ay that he was actually present when the speeches were delivered. On the other.hand, RW-3, Dev Raj Puri, had clearly stated that certain changes were made in the items which he had filed and this statement of RW3 was n<)t challenged .

Thus, the evidence furnished oy the aforesaid items is also of little value to the appellant. On the same principles of reasoning the reports ot the meetings published in 'Milap' regarding the

speeches delivered on 17th and 28th May 1980 also suffer from the F same infirmity.

Strong reliance was placed on the document, Ex. R W-24, which had been admitted by the first respondent.

We have gone . through the entire speech published in the daily 'Milap' on 18.5.80

and we do not find even a •ingle word to connect the appellant with the murder of Asa Ram.

In fact, the entire speech repro duced in the said Paper does not at all show that the speaker, viz., the first respondent, made any reference to the appellant at all.

Ill these circumstances, therefore, even the appellant himself had to admit before us that as the text of the speech has been reprodu. ced, no allegation has been made against him. ·

The appella11t, h9wever, tried in vain to argue that the afore-

A said speech would amount t9 inuendo because it has expressly referred to the drcumstances under which Asa Ram was murdered. By no stretch of imagination can the doctrine of inuendo be invoked to the aforesaid .speech. We therefore, reject this contention also.

. ,,

After a careful consideration of the documents, the circum- . stances of' the case and the oral evidence of the witnesses placed before us. We find ourselves in agreement with the judgment of . the High Court. Indeed, it is very difficult to prove a charge of

corrupt practice merely on the basis. of ornl evidence because in . election cases, it is very easy to get the help of interested witnesses but very difficult ro prove charges of corrupt practice. Iu the instant case, the evidence-both oral and documentary-led by. the appellant falls short of'the standard of proof required to bring his case within the four corners f s. 123 (4) of the Act.

We must, however, record our appreciation of the crisp and candid manner ill which this case has been presented before us by the appellant.

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For the reasOl)S given above; the judgment of the High Court is affirmed and . the appeal is dismissed but in the circumstances without any order ils to costs. ·

S. R ..

Appeal dismissed •

...