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PETITIONER: A. YOUNUS KUNJU

       Vs.

RESPONDENT: R.S. UNNI & OTHERS

DATE OF JUDGMENT08/03/1984

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH FAZALALI, SYED MURTAZA

CITATION:  1984 AIR  960            1984 SCR  (3) 162  1984 SCC  (3) 346        1984 SCALE  (1)485  CITATOR INFO :  R          1985 SC  24  (2)  R          1985 SC  89  (21)

ACT:      Election Law-Representation of People Act, 1951 Section 123(4)-Allegation of  Corrupt Practice and irregularities in the matter of counting of ballot papers-Standard of proof of the charge of corrupt practice is the same in election case, as in a criminal case.

HEADNOTE:      In the election held on 19.5.1982 for the election of a member of  the Kerala Legislative Assembly from constituency No. 125  Eravipuram in  the Quilon  District of  that State, there were  eight candidates in all but the main contest was between  the   appellant  and  the  respondent  No.  1.  The appellant polled  37,073 while the respondent polled 37,862. There was  therefore an  excess of  789 votes.  As  per  the result declared  on 20.5.1982,  the respondent  was declared elected. The appellant therefore, filed an election petition in the  Kerala High  Court alleging  commission  of  corrupt practices within  the meaning of sub-sections 2, 4, and 7 of Section 123  of the  Act and  several irregularities  in the course of counting leading to wrong conclusion regarding the result. In paragraphs 4 to 8 of the election petition it had been alleged that election agent Azeez published a statement dated 13.5.1982  in the form of a hand-bill making false but serious  allegations  against  the  appellant  touching  his personal character  and conduct.  It was  alleged  that  the appellant had  caused the murder of one Omana, a lady worker supporting Respondent  No. 1 because she refused to work for the appellant.  The oral  evidence to  this effect by PWs 7, 8,11 and  12 who  were the workers of the appellants and the plea for nonsummoning the printer with the documents printed by him were not believed by the Election Judge. The election petition having  been dismissed,  the petitioner has come in appeal.      Dismissing the appeal, the Court ^      HELD:  1:1.   The  High  Court  rightly  negatived  the challenge to  the election of respondent No. 1 on grounds of corrupt practice. [168E]

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    1: 2.  There is  a total  consensus of judicial opinion that a  charge of  corrupt practice under the Representation of People Act, 1951 has to be proved beyond reasonable doubt and the standard of proof is the same as in a criminal case. When the High Court applied the right standard in the matter of appreciation  of the  material placed  before it  and has come to hold that the allegations of corrupt practice within the meaning  of section  123(4) of  the  Act  has  not  been proved,  the  Supreme  Court  would  not  re-appreciate  the evidence.                                               [167F-H, 168A] 163      Mahant Shreenath  v. Choudhry  Ranbir  Singh  [1970]  3 S.C.C. 647;  Boddepalli Rajagopala Rao v. N.G. Ranga, A.I.R. 1971 SC 267; applied.      1: 3.  Want of  proper steps  at  the  right  time  and negligence or  willful default  at the  trial to  cause  the summons and  production of  a document  must only  lead  the Court to  draw an adverse inference regarding non production of the relevant material. [165G-H]      1: 4.  Any report  of a  police officer which indicates that the  information was  gathered from  the gossips in the locality is  not admissible  and it  is hearsay of a type to which no credence could attach. [166A-B]      1: 5.  When an  election was  fought on party basis and there was  sharp division  of the electorate on the basis of political  parties,  workers  at  the  election  with  party alignment would  necessarily be  political supporter  of the respective candidates  and when  called  as  witnesses  they would support  their stand. Instances are not uncommon where such witnesses support their respective candidates and their cases even  though the  same may  be far from truth. In such circumstances on  the oral  testimony of PWs 7, 8, 11 and 12 who are  admittedly workers  of the  appellant the change of publication of  objectionable materials  can not  be said to have been established. [166B-D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 5992 of 1983      Appeal from  the  Judgment  and  order  dated  the  7th December, 1982 of the Kerala High Court in Election Petition No. 8 of 1982      M.M. Abdul Khader and E.M.S. Anam for the Appellant.      P. Govinden Nair and N. Sudhakaran for the Respondents.      The Judgment of the Court was delivered by      RANGANATH MISRA,  J. This  appeal under Section 116A of the Representation of People Act, 1951 (hereinafter referred to as  ’the Act’)  is directed  against the  decision of the Kerala High  Court dismissing  the election  petition of the appellant whereby  he challenged  the election of respondent No. 1  as a  member of  the Kerala Legislative Assembly from Constituency No.  125 Eravipuram  in the  Quilon district of that State.  Election was held on 19.5.82 and the result was declared on  the following  day. There were eight candidates in all  but the  main contest  was between the appellant and the respondent  No. 1.  The appellant  polled 37,  073 while respondent No.  1 polled  37, 862.  There was, therefore, an excess of  789 votes.  All the remaining candidates together polled about 2,000 votes. 164      Challenge to  the election  was laid  on two  grounds:- namely, commission  of corrupt  practices within the meaning

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of sub-sections  2, 4  and 7  of Section  123 of the Act and several irregularities  in the course of counting leading to wrong  conclusion   regarding  the   result.  The   returned candidate joined  issue and  denied these  allegations.  The learned Election  Judge in  the High Court came to hold that the appellant  had failed  to  bring  home  the  charges  of corrupt practices.  He also  did  not  accept  the  plea  of irregularities in  counting of ballot-papers. A request made to him  for recount was rejected and on these conclusions he held that the election petition was liable to be dismissed.      Appellant’s counsel  conceded that  the allegations  of corrupt practices covered by sub-section 2 of Section 123 of the Act  would not  be pressed.  He also fairly accepted the position  that   the  evidence   relating  to  obtaining  or procuring of assistance for the furtherance of the prospects of respondent  No. 1’s election from government servants was inadequate as  found by  the High  Court. Two  grounds were, therefore, pressed  in support  of the  appeal, namely,  the allegations of corrupt practice within the Section 123(4) of the Act  and the allegations of irregularities in the matter of counting of ballot-papers.           Section 123(4) provides:           "123. 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 candidates election."      Admittedly Azeez  was the  election agent of respondent No. 1. In paragraphs 4 to 8 of the election petition, it had been alleged that election agent Azeez published a statement dated 13.5.82  in the  form of  a hand-bill making false but serious  allegations  against  the  appellant  touching  his personal character  and conduct.  It was  alleged  that  the appellant had caused the murder of one Omana, a 165 lady worker  supporting the  respondent No.  1  because  she refused to  support his  campaign. A  meeting  was  held  on 14.5.82 at  a place  known Tatamala  Junction to condemn and condole the  said death.  It was  represented that the death was caused on the ground that the said helpless lady was not prepared to  work for  him. Azeez  along with other election workers carried wide scale propaganda with loud-speakers. At the said  meeting there  were many  speakers including Azeez and the respondent No. 1 who spoke in the same strain as the contents of  the hand-bill.  This was  done with  a view  to affecting the prospects of the appellant’s election. Similar propaganda  was  said  to  have  been  made  by  them  until canvassing  stopped.   The  respondent   No.1  denied  these allegations in  the  written  statement.  According  to  the appellant  the  corrupt  practices  within  the  meaning  of Section 123(4)  of the  Act related  to distribution  of the hand-bill  in   question,  namely,   at  two   places  being Mayyanana. and Thrikkovil Battom areas and the speeches were made at the public meeting held at Tatamala Junction.      Exhibit P-1  is a  copy of the hand-bill. No steps were taken to  summon the original documents from the press where the hand-bill  is said  to have  been got  printed by Azeez, though the  name of  the press  was borne  on the hand-bill. Soon after  the hand-bill came to be circulated a denial was

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published by  the press  to the effect that no such bill was printed  and/or   published  by  the  press  Admittedly  the relevant materials  if called from the press would have been the  best   evidence  to   provide  the   link  between  the publication of  the objectionable  material and the election agent of  the respondent  No. 1.  When we  made a query from counsel for  the appellant  as to  why such  steps were  not taken and the primary evidence was kept away from the Court, learned counsel  indicated to us that the press had come out with a  denial closely  following the circulation and it was not likely  that the  press would  have caused production of the document.  Since the  name of the press was given in the document and  appellant proceeded  on the  footing that  the document was printed in the said press, if the press did not comply with the summons, production could have been enforced by  law.  Want  of  proper  steps  at  the  right  time  and negligence  or  willful  default  at  the  trial  cannot  be answered in  the manner  appellant’s counsel  has  contended before us  and we  must draw  adverse inference  against the appellant  for  non-production  of  the  relevant  material. Reliance was  also placed  on a  report by  P.W.4, a  police officer where  there was  mention of  such propaganda  being carried on with reference to the death of the 166 lady. The report did not indicate the source but only stated that the  police officer  collected the information from the gossips in  the locality.  Such a  report as rightly held by the High  Court was  not admissible  and it was hearsay of a type to  which no  credence could attach. Though counsel was very vehement to press this document into service he was not in a  position to  cite any  legal basis for doing so. Apart from these  two documents  which we  hold had  been  rightly ruled out, the other evidence is oral in character and P.Ws. 7, 8,11  and 12 are the witnesses who have been spoken about it. Admittedly  all these  witnesses were the workers of the appellant. There  is over-whelming  material on  the record, and even  counsel fairly  admitted, that  the  election  was fought on  party basis  and there  was sharp division of the electorate on the basis of political parties. That being the position, workers at the election with party alignment would necessarily  be   political  supporters  of  the  respective candidates and  when called  as witnesses they would support their stand. Instances are not uncommon where such witnesses support their  respective candidates  and their  cases  even though the  same be far from truth. In such circumstances we do not  think on  the oral testimony of these four witnesses the charge  of publication of objectionable materials can be said to have been established.      Admittedly the meeting at Tatamala Junction was held on the 14.5.82  towards the  evening. It  is the  case  of  the appellant that  at this  meeting the  respondent No.  1, his election agent  Azeez and  several other  supporters  spoke. Each one  of them  referred to  the appellant  as the person responsible for  the murder of the lady. There is no dispute before us  that the picture drawn up as the appellant as the murderer of  the lady  would very  much tarnish  his  image, personality and  character and would have adversely affected the  prospects   of  his  winning  the  election  is  widely circulated in the constituency before polling. Three witness as have  been examined  being P.Ws. 2, 6 and 9 in respect of the Tatamala  meeting. P.W.  2 was  the Circle  Inspector of Police of  the area  and stated  that he  had  attended  the meeting. Though the meeting started at 7 p.m. he went to the meeting place  at about  9 p.m. and remained there for about an hour.  Thus at  about 10  p.m. he  left the place but the

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meeting was  still continuing.  He referred to the speech by Azeez but  did not  indicate as to what exactly he spoke. In cross-examination he  admitted that  though he  maintained a diary, the  details of the meeting were not available and he did not  report about  the meeting to his superior officers. This evidence  does not  lend any support to the case sought to be  made out  by the  appellant. P.W. 6 was a printer and publisher of 167 the newspaper  by name  Pauramitram. His evidence is that he was also  working as  reporter of  the paper and had gone to the meeting  in such  capacity. On the basis of his jottings he gave  a news item which was published in the paper marked Exhibit P-3.  He claims  to have  left the  meeting place at 9.30 p.m.  but the  meeting was  still continuing.  The news item as reported does indicate what Azeez spoke. The witness also deposed  on oath  about the  speech of  Azeez. The High Court refused  to place  any reliance on this witness mainly on  account   of  the  fact  that  this  paper  was  not  an established newspaper  of the  area and did not have regular publication. On  the basis  of the  evidence of  R.W. 1  the information officer  at the  state  headquarters,  the  High Court came  to doubt  the bona-fide  of P.W.6  as  also  his paper. We  have also perused the evidence of P.W.6 and R.W.1 and the  observations of  the High  Court in  regard to this aspect. We  are inclined  to agree  with the High Court that the evidence  of the  witness is  not impressive and we hold the same  was rightly  rejected by  the High Court which had occasion to  see him.  The only  other witness  who has been examined in  regard to  the meeting  is P.W.9.  a person who claims to be independent and unconnected with the lis. P.W.9 on his own showing had gone to see his father suffering from a heart-attack.  He came  from a  place about  20 kilometres away. According  to him  he left  father’s place  by  around 10.30 p.m.  If that  be so and he was covering a distance of about 20  kilometres, he  would not have reached the meeting place before  11 p.m.  when the  meeting  is  said  to  have concluded. His  evidence that he stayed at the meeting place to listen  to the speeches for quite sometime has therefore, to be ruled out as inconsistent with the other evidence. His evidence too has been rightly rejected by the High Court.      There is  total consensus  of judicial  opinion that  a charge of  corrupt practice  under the  Act has to be proved beyond reasonable doubt and standard of proof is the same as in a criminal case. See Mahant Shree Nath v. Choudhry Ranbir Singh. This  proposition  has  even  not  been  disputed  by counsel for  the appellant. We, therefore, do not propose to refer to  the catena  of decisions  affirming the  aforesaid view. The  High Court  applied the  right  standard  in  the matter of  appreciation of the material placed before it and has come  to hold  that the  allegations of corrupt practice within the meaning of Section 123(4) of the Act has not been proved. In such a situa- 168 tion as  pointed out by this Court in the case of Boddepalli Rajagopala  Rao   v.  N.G.   Ranga,  this  Court  would  not reappreciate the  evidence. Shah, J. as he then was observed thus:           "The finding  of the  learned Trial Judge is based      upon appreciation  of evidence  of the witnesses in the      light of  probabilities. A  charge of  corrupt practice      under the  Representation of  the People  Act  must  be      established by  clear and  cogent  evidence.  When  the      Court of  First Instance  on  a  consideration  of  the      evidence of  the witnesses  has refused  to  place  any

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    reliance upon their testimony the burden lying upon the      party setting  up a plea of corrupt practice becomes no      lighter  in   appeal.  The   charge  cannot   be   held      established merely  upon suspicion, or preponderance of      probabilities. Unless  the appellant  establishes  that      the appreciation  of evidence  was  vitiated  by  gross      misreading or  misconception of the evidence or because      of failure  to consider  important pieces  of  evidence      which had a bearing on the charge or because of serious      irregularities in procedure which amount to a denial of      a fair  trial the  appellate court  will not proceed to      reappreciate the  evidence on  which the  findings  are      recorded  by   the  Court  of  First  Instance  on  the      credibility of witnesses."      We are  in complete  agreement with these observations. Our conclusion,  therefore, is  that the  High Court rightly negatived the  challenge to the election of respondent No. 1 on grounds of corrupt practices.      The only  other contention  canvassed at the hearing is about the irregularities in the counting. The total rejected ballot-papers  were  within  the  range  of  500  while  the difference between  the appellant  and the  respondent No. 1 was about 800. The details necessary for obtaining a recount were not pleaded in the election petition nor was any cogent material placed  before the  Court  which  could  bring  the matter within  the rule indicated by this Court to justify a direction for  recount.  That  plea,  in  our  opinion,  has rightly been  negatived by  the High Court. The appeal fails and is dismissed. Parties shall bear their own costs in this Court. S.R.                                       Appeal dismissed. 169