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PETITIONER: DEV KANTA BAROOAH

       Vs.

RESPONDENT: GOLOK CHANDRA BARUAH & ORS.

DATE OF JUDGMENT: 12/02/1970

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA SIKRI, S.M.

CITATION:  1970 AIR 1231            1970 SCR  (3) 662  1970 SCC  (1) 392  CITATOR INFO :  R          1971 SC1262  (21)

ACT:      Representation  of  the  People Act (34  of  1951),  s. 123(4)--Statements   in  leaflet--Comment   on   educational qualifications   of   candidate--Statement  of   facts   and expression  of opinion on the political position  of  candi- date--If amounts to corrupt practice.

HEADNOTE:      The  first  respondent  studied  for  his  intermediate examination in two ,colleges one after the other, but  never sat for the examination.  He entered government service as a clerk.   Some time after 1943 he resigned from  service  and joined  the  military  contract  business  which  was  being carried on by his brothers.  In 1952, though he was a member of  the Congress party, he, stood for election  against  the Congress   candidate   after  ,promising  not  to   do   so. Thereafter, he became Chairman of a Municipality and  during his tenure as such, several thousand rupees were taken  away from  the  Treasury  on  signatures  resembling  the   first respondent’s  signature, and some persons  were  prosecuted. Also,  while  he  was Chairman, he issued an  order  to  the effect that salaries of sweepers were to be paid by the head clerk.  In November 1964, the first respondent resigned  his chairmanship.   The  -head  clerk,  instead  of  paying  the sweepers, in December, misappropriated the money.  When  the misappropriation  was discovered by the, Vice-Chairman,  the head clerk committed suicide in December 1964.  In the  1967 election,  the first respondent again stood for election  to the  State Legislature against the Congress candidate,  once again  breaking his written promise not to do so.   However, the  appellant was declared elected.  The  first  respondent challenged  the  election  of the  appellant.   One  of  the grounds  in  the election petition was  that  the  following false  statements as to the personal character of the  first respondent, reasonably calculated to prejudice his prospects of  election,  had  been published in  a  leaflet  with  the consent of the appellant    (1)    That  the  first respondent  ’after  rolling  from several   colleges   failed   to   pass   the   intermediate

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examination;’     (2)   that  during  the  first  respondent’s  tenure  as Chairman  there were instances of corruption and chaos:  and that  the  criminal case in connection with  the  taking  of money from the treasury was pending hearing at the -time  of the publication of the leaflet;     (3)   that  ’at  that  time’ the  head  clerk  committed suicide; and     (4)   that  by taking military contracts he  helped  the British Government in India during the 1942-movement and  by his  standing for election against ,Congress  candidates  he was guilty of ’treachery’ Desadrohita) and ’breach of faith’ (Vishwasghatakta).     On  the question whether statements constituted  corrupt practice under s.123(4) of the Representation of the  People Act, 1951, HELD : (1) In an election it is open to a candidate to  show that  his  rival  candidate  is  lacking  in  knowledge  and education and that he is not capable of managing the affairs in -a public body.  The statement in the leaflet only stated that he failed to pass the examination -and not that he 663 failed at the examination.  There was a slight  exaggeration when the leaflet referred to several colleges, but it  could not be held to be -a false statement affecting the  personal character, or conduct of the first respondent. [668 B-E]     (2)The imputation was as to the mismanagement of  the affairs  of  the  Municipality  by  the  first   respondent, indicating  that  he was not a good administrator  and  not, that  he was; himself corrupt.  That part of  the  statement that the. criminal case was then pending, though  incorrect, did  not cast any as person on the conduct or  character  of the first respondent. [669 H; 670 A-B]      (3)The   expression   ’at  that   time’   interpreted literally  would mean that the suicide was  committed  while the  first respondent was the Chairman, which was not  true, because, he had resigned earlier.  But since the opportunity for  the  head clerk to misappropriate  the  money  occurred while the first respondent was the Chairman, it must be held that   the   allegation  made.  in  the   clause   is   also substantially correct.  Further, there was no suggestion  in the statement that the first respondent himself was  corrupt or  that  the  suicide  was  the  result  of  his   personal corruptions [672 F-H]       (4)The  vernacular  words used  for  ’treachery’  and ’breach  of faith’ though harsh, were not such -as  to  lead the  voters  to think that the first respondent  had  a  low moral character.  The leaflet was published in reply to  the first  respondent’s leaflet as to why he left the  Congress, giving reasons as to why he was expelled from the  Congress. Care was taken to give the facts from which inferences  were being  drawn  and the voters could very  well  perceive  for themselves  whether  the  inference,  which  was  drawn  and expressed  in  strong  terms, was  justified  or  not.   The treachery  or breach of faith towards the country refers  to the  first  respondent’s  help  to  the  British  by  taking military  contracts at about the time of the  1942-movement, and  his treachery or breach of faith towards  the  Congress has  reference to his standing for election as  against  the Congress nominee.  Therefore, since the facts were given and only  inferences were drawn, the words used at the  time  of putting  down  the  inferences  must  be  held  to  be  only expressions of opinion, on the first respondent’s  political position  and  do not themselves connote  any  statement  of facts involving moral depravity.  Hence, the publication  of

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the  leaflet, cannot be held to constitute corrupt  practice under s. 123(4) of the Act. [667 D-E, 673 C-F, H; 674 H; 67- 5 A, D, F-G; 676 D-E]       Guruji  Shrihari  Baliram Jivatode v. Vithal  Rao  and Ors.  [1961]  1  S.C. Cases 82 and Inderlal  v.  Bal  Singh, [19621 Supp. 3 S.C.R. 114. followed.       Kumara  Nand v. Brijmohan Lal Sharma, [1967] 2  S.C.R. 12 distinguished and explained.       Kultar  Singh v. Mukhtiar Singh, [1964] 7 S.C.R.  790, Cumberland  (Cockermouth Division) Case, (1901) O  M&H  155, Ellis   National   Union  of   Conservative   Constitutional Association  109  L.T. Jo 493, Parker’s Election  Agent  and Returning  Officer,  6th Edn. p. 91, Halsbury I  s  Laws  of England 3rd Edn.  Vol. 14, para. 394 and Rogers on Elections Vol.II, 20th Edn. p. 368, referred to.       T.K.  Gangi Reddy v. M. C. Anjanaya Reddy,, [1960]  22 E.L.R. 261, MohanSingh  v. Bhanwarlal and Ors.  [1964]  5 S.C.R.  12 and Sheopat Singh V. Ram Pratap, [1965] 1  S.C.R. 175, distinguished.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1701  of 1968. 664      Appeal  under  S. 116-A of the  Representation  of  the People  Act. 1951 from the judgment and order dated July  4, 1968  of  the  Assam and Nagaland  High  Court  in  Election Petition No. 3 of 1967.      C.  K. Daphtary, S. Mohan Kumaramangalam, S. K.  Nandy, V.J.  Francis,  R. K. Garg, S. C. Agarwala, D. P.  Singh  S. Chakravarty, for the appellant.       P.K.  Chatterjee,  R. B. Datar, B.  M.  Mahanto  and Rathin Das. for the respondents.     The Judgment of the Court was delivered by     Bhargava, J. The appellant, Dev Kanta Barooah, was  dec- lared   elected  at  the  last  General  Elections  to   the Legislative  Assembly of Assam in 1967, defeating  the  four rival candidates who are respondents 1 to 4 in this  appeal. Respondent  No. 1, Golok Chandra Baruah, filed  an  election petition  challenging  the  election  of  the  appellant  on various grounds, including a charge that false statements as to  the  personal  character of respondent No.  1  had  been published  with  the  consent of the  appellant,  thus  con- stituting  a  corrupt practice under section 123(4)  of  the Representation of the People Act, 1951 (hereinafter referred to  as "the Act").  This is the only ground which  has  been accepted  by  the High Court of Assam and Nagaland  and  the election of the appellant has been set aside on this ground. In  this appeal, consequently, the only question that  falls for decision is whether the High Court was right in  setting aside the election of the appellant on the ground of corrupt practice  having  been committed within the  meaning  of  s. 123(4)  of  the Act.  This corrupt practice was  alleged  by respondent No. 1 to have been committed by the appellant  by publication   of  a  leaflet  which  is,  for   convenience, reproduced below :-                   "Why Golok Barua was driven away from  the               Congress ?                    (Picture of a pair of bullock with yoke,)               Humble submission,                     One  leaflet bearing full  of  downright               falsehood   and  false  allegation  with   the               Caption  "Why  I have left the  Congress"  has

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                           been  published  and distributed by  S ri  Golok               Chandra  Barua in the  Samaguri  Constituency.               The patriot voters of Samaguri have sufficient               experience and political consciousness.   They               would  not  believe the abominable  and  false               publicity of Shri Golok Barua.  Still for  the               knowledge of the public a brief description of               the  activities of public life of  Shri  Barua               has  been  published.  From that  it  will  be               understood that 665               Sri  Golok  Barua is not  an  actual  congress               man., He is a driven-out congressman wearing a               mask.                  1.  Golok Barua after rolling from  several               Colleges failed to pass the I.A. and at  first               became   a   copyist  at  the   Katchery   and               thereafter became a Clerk.                  At  the mass-movement of 42 he earned  some               money by doing Military Contracts.                   2.  In  1952 by entering in  the  Congress               sought  nomination from the Congress from  the               Samaguri  Constituency.  The Congress did  not               give him nomination as in the ’42 Movement  he               helped  the British and revolted  against  the               Country.  After breach of promise he was badly               defeated  by  standing against  Shrimati  Usha               Barthakur who was a Congress nominee.                    3.  Again  by entreaties  he  joined  the               Congress  and  on  the sudden  death  of  Late               Pratap  Chandra Sarma Shri Golok Barua  became               the Chairman of Nowgong Municipality.   Please               note  some of the instances of  injustice  and               chaos during his tenure of Office.                    (Ka)  During  his time  several  thousand               Rupees  were  taken  away  from  the  Treasury               unlawfully  on signatures resembling to  those               of his signatures.  The matter is now  pending               for hearing.                    (Kha.)  When  a  huge  amount  of   money               withdrawn   from  the  National  Savings   was               misappropriated   the   Govt.    Examiner   of               Accounts  declared  Sri Golok Barua  alone  as               guilty.                    (Ga)  At  that time also  on  account  of               corruption  in  the  Municipality  alone  late               Dharmeswar  Sarma the then Head Clerk  of  his               time had to commit suicide.                    (Gha)  While  Sri  Golok  Barua  was  the               Chairman  at night like drunkard went  to  the               Ex-Chairman Dr. Birendra Kishore Guha and  not               finding Dr. Guha behaved his wife and daughter               unmannerly.   After  that assaulted  Dr.  Guha               with  shoes in presence of many  persons.   On                             that  offence Sri Golok Barua was comp elled  to               resign  his  Chairmanship  by  the   Executive               Committee of the District Congress Committee.                      4.  This  time Sri Golok  Barua  sought               for  nominanation  from  the  Congress  as   a               candidate  to  the  Parliament  from  Kaliabar               Constituency   and   a   candidate   to    the               Legislative   Assembly  from   the   Barhampur               Constituency

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666                     But   the  Congress  refused   to   give               nomination  due to his conduct  and  Character               and  due to his treachery towards the  Country               and  the  Congress.  Out of  that  grudge  he,               again, ’by breaking his written promise to the               effect  that  he  would  not  go  against  the               Congress if he was not given nomination by the               Congress,  has stood as a non-party  candidate               again  from the Samaguri Constituency  and  he               has  published  untrue  and  false  propaganda               against the Congress.                     5.  Due to the offence of the  treachery               he  has been completely driven away  from  the               Congress  for  a period of six  years  by  the               Assam  Provincial  Congress Committee.   As  a               matter of fact Sri Golok Barua has been driven               out from the Congress.  These facts have  been               published  for the knowledge of  the  vigilant               and patriot electors of Samaguri. Nowgong.                           Nowgong District Congress 5-2-67                             Election Committee." The  original leaflet was in Assamese and the above  version of  it  is  in  accordance  with  the  official  translation prepared in the paper book.  During the course of arguments, however, it was brought to our notice that, at some  places, the  translation  did not correctly  represent  the  meaning conveyed  in Assamese, so that the Assamese words were  read out  to  us.  Further, our attention was also drawn  to  the translation accepted by the learned Judge of the High  Court who  tried the election petition and who had some  knowledge of  Assamese  language.  We shall indicate  later  where  we consider  that  the translation reproduced above  cannot  be accepted  as  correctly representing the  text  in  Assamese language.      The ground taken in the election petition was that this leaflet  contained  false  statements  as  to  the  personal character  or  conduct  of  respondent,  No.  1  which  were reasonably  calculated to prejudice his prospects  of  being elected in this election.  The learned trial Judge held that some  of  the  statements of fact made in  the  leaflet  did relate  to the personal character or conduct  of  respondent No.  1 and that, except for two such statements  which  were proved  to be true, they were false to the knowledge of  the appellant.   It  was also held that this  leaflet  had  been published and distributed with the consent of the appellant, so  that  the election of the appellant was set  aside.   In this  appeal,  Mr.  Daphtary, appearing  on  behalf  of  the appellant, challenged the decision of the High Court in  two respects.   The first contention raised by him was that  the statements in this leaflet, which have been held 667 to  be  false, did not relate to the personal  character  or conduct  of respondent No. 1. and that the statements  which did   relate  to  the  personal  character  or  conduct   of respondent  No.  1  were  proved to be  true,  so  that  the provisions of s. 123(4) of the Act were not attracted.   The second  contention was that the High Court was not right  in holding that this leaflet had been published and distributed with  the  consent of the appellant.  Since,  after  hearing arguments of learned counsel for both parties, we have  come to the view that the first point raised by Mr. Daphtary must be  accepted,  we  did not consider  it  necessary  to  hear counsel on the second point relating to proof of consent  of the appellant to the publication of this leaflet.

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    The  leaflet purports to have been published on  behalf of the Nowgong District Congress Election Committee.  It  is admitted that respondent No. 1 wanted to be sponsored as the candidate for the Legislative Assembly by the Congress Party in  this  general  election, The  Congress  Party,  however, sponsored  the  candidature  of  the  appellant,   whereupon respondent  No.,  1  stood for election  as  an  independent candidate.   In this background, respondent No. 1  issued  a leaflet  explaining why he had left the Congress and it  was in reply to that leaflet that the Nowgong District  Congress Election  Committee  issued the leaflet  in  question.   The leaflet, thus, begins with the caption "Why Golok Barua  was driven  away  from the Congress ?"  The  leaflet  thereafter purports  to give the reasons why he was expelled  from  the Congress,  and the facts stated in it are divided into  five paragraphs.       The  first  paragraph mentions that respondent  No.  1 after  rolling  from  several Colleges failed  to  pass  the Intermediate  Examination and at first became -a copyist  at the  Kachery  and thereafter became a Clerk.  At  the  mass- movement  of  1942, he earned some money by  doing  Military Contracts.   The  High Court has held  that  this  paragraph amounts  to  publication of false statement  covered  by  s. 123(4)  of  the  Act  inasmuch  as  it  is  incorrect   that respondent  No. 1 rolled from several colleges and  that  at the  mass  movement of 1942 he earned some  money  by  doing military contracts.  The evidence disclosed that  respondent No.  1 studied for his Intermediate Examination in only  two Colleges  one after the other and did not move from  college to  college.   It was also found as a fact that he  did  not pass  the Intermediate Arts Examination and that the  reason was that he could not -appear at the Examination at all  due to  the  death  of  his father.  He did  not  fail  at  that examination.  The further finding was that he himself was in government  service at the time of the movement of 1942,  so that  he could not have done any military contract  work  in that year.  It was only later on that he resigned and joined the 668 military contract business which was being carried on by his two  brothers.   The  High Court was of the  view  that  the publication   of  these  statements  was  bound   to   lower respondent  No.  1  in  the  opinion  of  the  voters   and, consequently,   this  publication  amounted  to  a   corrupt practice.  As urged by Mr. Daphtary, we are unable to  agree that  the publication of the facts in this paragraph can  be held  to amount to false statements as to the personal  cha- racter or conduct of respondent No. 1. In an election, it is always open to a candidate to show that his rival  candidate is  lacking in knowledge in education and is not capable  of managing  the  affairs  properly in any  public  body.   The intention  in the first part of paragraph 1 of  the  leaflet was  to inform the voters of the educational  qualifications of  respondent  No.  1. He did move from one  college  to  a second  one during his period of study for the  Intermediate Arts   Examination.   May  be,  that  there  is   a   slight exaggeration  when the leaflet mentions that he rolled  from several colleges; but such an exaggeration is quite  natural on  occasions when canvassing is going on for  an  election. It  is  to  be noted that the leaflet does  not  state  that respondent   No.   1  failed  at   the   Intermediate   Arts Examination.   All  it says is that he failed to  pass  that Examination which has been admitted as being perfectly  true by respondent No. 1  himself.  He failed to pass, because he did not appear at the examination.  Such a statement cannot,

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in  our opinion, be held to be a false  statement  affecting the  personal character or conduct of respondent No. 1.  The second part of this paragraph can be conveniently dealt with while discussing the facts mentioned in paragraph 2.       In  paragraph  2 of the leaflet, the  reason  why  the Congress  did  not  give him nomination  is  given.   It  is stated, that in the 1942 movement, he helped the British and revolted  against  the country.   The  expression  "revolted against the country" is a translation for the Assamese  word "Deshdrohita" It is true that the High Court has come to the finding  of  fact  that  in 1942 respondent  No.  1  was  in government service working as a Clerk and it was only  later on,  after  1943,  that  he  actively  participated  in  the business  of his brothers of taking military  contracts  for the British.  The trend of the evidence, however, shows that his  brothers  had been carrying on the  military  contracts business even earlier than 1943.  Even for the later period, respondent No. 1 tried to deny that he actually participated in  the military contract business with his  brothers;  but, when cross-examined in detail and confronted with a power of attorney  in  his favour, he had to  make  admissions  which clearly show that he was 669 taking part in that business.  It appears to be quite likely that,  even before he actually resigned  government  service and  joined the business of his brothers, he may  have  been assisting  them, so that the allegation that he  helped  the British in 1942 movement by taking military contracts cannot be  said  to be a false statement; at best, there may  be  a slight  errors  about the period during which  he  did  that work.  Again, the aspect that he was helping the British  by taking  military  contracts relates to a reflection  on  his political  conduct  in siding with  the  British  Government rather  than  joining the Congress which was carrying  on  a movement  against the British for achieving independence  of the country.  It was in this background that his  activities were  described  by  using the word  "Deshdrohita"  in  this pamphlet.   Whether it amounted to "deshdrohita" or not  may be  a disputed question.  Members of the Congress, who  were carrying on the agitation against the British for  achieving independence  of the country, could very legitimately  think that any one who helped the British at that time was  guilty of "deshdrohita" inasmuch as his activities were against the interests  of  our  country.   This  expression  was   also, therefore,  used  to describe the nature of  his  activities which,  in fact, related to the political situation at  that time.  It cannot be said that this paragraph reflects on the personal character or conduct of respondent No. 1, as  there is  no  imputation of any depravity or  immorality  in  this paragraph.     Paragraph  3  is the principal paragraph  in  which  the conduct   of   respondent  No.  1   has   been   criticised. Admittedly, he was the Chairman to the Nowgong Municipality, and the principal part of this paragraph asks the voters  to note some of the instances of injustice and chaos during his tenure  of  office.  In Assamese, the two words  which  have been  translated as "injustice" and "chaos"  were  "Durniti" and  "Arajakta"  Our attention was drawn by learned  counsel for respondent No. 1 to the statement of Devendra Nath Bora, the writer of this leaflet, where he stated that he meant by these words "corruption" and "lack of administration".   The High  Court  took  these  words  to  mean  "corruption"  and "anarchism"  as  these  are the English words  used  in  the judgment of the High Court.  It may, however, be noted that, in this part, it is not stated that respondent No. 1 himself

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was corrupt.  The imputation only is that, during his tenure of  office,  there were instances of corruption  and  chaos. Thereafter,  the  four  instances  are  given.   It  cannot, therefore,  be held that the leaflet was intended to  convey to  the readers that respondent No. 1 was  himself  corrupt. The impression that would be expected to be created would be that   be  that  his  administration  as  Chairman  of   the Municipality was no unsatisfactory that corruption and chaos prevailed   in  the  affairs  of  the   Municipality.    The imputation, 670 therefore,  was  as to mismanagement of the affairs  of  the Municipality by respondent No. 1, indicating that he was not a  good  administrator.   The leaflet was  not  intended  to convey  to  the  voters  any  reflection  on  the   personal character of respondent No. 1.     In  clause (Ka), the instance given is that, during  his time,  several  thousand  rupees were taken  away  from  the Treasury unlawfully on signatures resembling his  signatures and  that the matter was still pending for hearing when  the leaflet was issued.  Mr. Daphtary drew our attention to  the admissions  made by respondent No. 1 himself when he was  in the witness-box that several thousand rupees were, in  fact, drawn  from  the Treasury in the municipal accounts  on  the basis of some cheques containing signatures which  resembled the signature of respondent No. 1. In substance,  therefore, the  truth  of  the statement contained in  this  clause  is admitted.   The only part of the statement in  this  clause, which  is  found to be incorrect, is that  the  matter.  was pending  for  hearing even at the time of  the  election  It appears that the criminal case relating to that incident had been. decided earlier.  The part of the statement, which was not  true,.  did  not,  by  itself,  contain  any  statement relating  to the conduct or character of respondent  No.  1. The first sentence, which cast reflection on respondent  No. 1  by indicating that the management of the affairs  of  the Municipality  in his time was not good and  successful,  has been admitted to be true.  Consequently, this clause  cannot be  held to constitute corrupt practice under S.  123(4)  of the Act.      In  clauses  (Kha) and (Cha), there  are,  undoubtedly, statements  which  reflect  on the  personal  character  and conduct  of  respondent No. 1. Clause (Kha)  mentions  that, when  a  huge amount of money withdrawn  from  the  National Savings  was  misappropriated, the  Government  Examiner  of Accounts declared Sri Golok Barua alone as guilty.  The word "guilty",  in fact, is not the correct translation  for  the Assamese word which was "’Daee"       The  learned Judge of the High Court  translated  this word as "responsible in his judgment, which appears to us to be   correct.   The’  learned  Judge  also  held  that   the allegation  contained in this clause has been proved  to  be true.  The report of the Government Examiner of Accounts was brought to our notice.  In that report, the Auditor wrote               "The    entire   responsibility   for    their               encashment  and credit to the fund rests  with               him  and  -the  fact that  the  accounts  were               maintained  by  the Head -Assistant  does  not               absolve the Chairman of his responsibility  in               this  connection.  The Chairman, . Sri  G.  C.               Barua, stands - 671               fully  liable  for the loss, which  should  be               recovered from him now." The contents of clause (Kha) do not go beyond what was found

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by the Auditor in his report, the relevant part of which has been  reproduced  by  us  above.   It  is  true  that   this statement,   to  some  extent,  reflects  on  the   personal character of respondent No. 11 inasmuch as it states that he was  held  responsible for the misappropriated  money;  but, that  being  a true fact, its publication has  rightly  been held by the High Court not to amount to corrupt, practice.    Similarly,  in  clause  (Gha), there  is  mention  of  an incident  when  respondent  No. 1,  while  Chairman  of  the Municipality,  is  alleged  to have gone  at  night  like  a drunkard  to the house of Ex-Chairman, Dr. Birendra  Kishore Guha,  and, not finding Dr.Guha, "behaved with his wife  and daughter unmannerly". It is further stated that, after that, he  assaulted  Dr. Guha with shoes in the presence  of  many persons,  and  that, on that offence, he  was  compelled  to resign  the Chairmanship by the Executive Committee  of  the District  Congress Committee. The High Court has  held  that the  facts  stated in this clause are also  true.  The  only point  that  Mr. Chatterjee, counsel for respondent  No.  1, could  urge  was  that, according to  the  evidence  of  the daughter of Dr.Guha, there was no misbehaviour with the wife and  the mention of the wife in this clause was intended  to convey  an  idea of some immoral behaviour on  the  part  of respondent No. 1 which is not supported by any statement  of fact.  We have examined the evidence of the  daughter,  Miss Sipra  Guha alias Miss Lily Guha, who related what  happened during that night. According to her, she and her mother were inside  the house when some one knocked at the door  calling out "Dr. Guha, Dr. Guha". At the instance of her mother, she opened the door and the gentleman who was there caught  hold of  her clothes just under the neck and pulled  her  towards him.  At this, -she shouted for her mother who came  to  the scene and recognised respondent No. 1. Respondent No.1  then angrily  asked where Dr. Guha was and whether he was  inside the  house.  Her mother replied to him that her  father  had gone  to see the Jatra performance. She also got  angry  and protested against his being there at such a ’time. She  also found  smell of alcohol coming from the mouth of  respondent No.  1.  The version given by this witness  seems  to  fully justify the statement contained in clause (Gha). The mention of  the  wife  is with  reference  to  unmannerly  behaviour towards  her. It does not say that any attempt was  made  by him  to  assault her. The High Court was,  therefore,  quite correct  in  recording the finding  that  these  allegations contained in this clause were true and, not 672 being  false statements, they could not  constitute  corrupt practice under S. 123(4) of the Act. There  remains  clause (Ga) of paragraph 3 in  which  it  is stated that, at that time also, on account of corruption  in the Municipality alone, late Dharmeswar Sarma, the then Head Clerk  of  his  time, had to commit suicide.   Some  of  the ingredients of this clause have been found by the High Court to   be  incorrect.   The  facts  found  show  that,   while respondent  No.  1 was Chairman, he issued an order  to  the effect that the salaries of sweepers were tobe paid by  the Head Clerk instead of the Accountant who wasto  hand   over the money for that purpose of the Head ClerkRespondent  No. 1  resigned  the  Chairmanship  in  November,1964  and   his resignation  was  accepted on 21st November, 1964.   It  was subsequently  of  in the month of December,  1964  that  the salary  of  the  sweepers was not paid by  the  Head  Clerk, Dharmeswar  Sarma,  who  had received  the  money  for  this purpose.  Under the orders of respondent No. 1, the payments had  to  be made by the Head Clerk in the  presence  of  the

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Chairman   or  the  Vice-Chairman  or  some,  other   member nominated  for  the  purpose by  the  Chairman.   The  Vice- Chairman  held  Dharmeswar Sarma responsible for  the  money when  he  found  that the sweepers had not  been  paid  and, thereupon,  directed  Dharmeswar  Sarma  to  make  good  the shortage  and  pay  up all the sweepers by 1  p.m.  on  10th December, 1964 positively, failing which legal action  would be  taken against him.  This order was not carried out  and, instead, on 10th December, 1964, Dharmeswar Sarma  committed suicide.    These  facts,  no  doubt,  indicate   that   the statements  made  in  clause (Ga) of  paragraph  3  are  not strictly  correct.   The  main  allegation  that  Dharmeswar Sarma, the Head Clerk, committed suicide and that it was the result of corruption which was going on in the  Municipality are  borne out by the facts found.  The expression used  "at that  time" in this clause, if interpreted literally,  would mean  that the suicide was committed while respondent No.  1 was  himself the Chairman which is not true inasmuch  as  he had resigned earlier.  It is, however, to be noted that  the opportunity for Dharmeswar Sarma to misappropriate the money occurred  only  because of an order which  had  been  passed earlier  by  respondent No. 1 while he was Chairman  of  the Municipality.   In  these circumstances, it has to  be  held that   the   allegation  made  in  this   clause   is   also substantially  correct.   The  allegation  was  intended  to convey that there was corruption in the Municipality at  the time when respondent No. 1 was the Chairman and that it  was so  has been found to be true.  There was no  suggestion  in this  clause that respondent No. 1 himself was  corrupt  and that the suicide was the result of his personal  corruption. Thus, this part of the 673 leaflet  also  cannot constitute corrupt practice  under  s. 123(4) of the Act.      Then,  we come to paragraphs 4 and 5 of the leaflet  in which the main objection is to the mention of his  treachery towards the country and the Congress.  In paragraph 4, it is stated  that the Congress refused to give nomination due  to his  conduct and character and due to his treachery  towards the country and the Congress, while paragraph 5 states that, due  to  the offence of treachery, he  had  been  completely driven  away from the Congress for a period of six years  by the   Assam   Provincial  Congress  Committee.    The   word "treachery"   is  a  translation  for  the   Assamese   word "Vishwasghatakta"  which probably can be more  appropriately translated  as "breach of faith", though treachery may  also be  one of the translations for this word.  On the  face  of it,  the  treachery or breach of faith towards  the  country again  refers to his help to the British by taking  military contracts  at about the time of the movement of 1942,  while his  treachery or breach of faith towards the  Congress  has reference  to  his  standing  as  a  candidate  against  the Congress nominee in ,:he earlier election as well as in this election.   Learned counsel for respondent No. 1 urged  that the  terms  used  in  this  leaflet,  viz."Deshdrohita"  and "Vishwasghatakta" are very strong terms and are, bound to be taken  by voters in such a light that they would have a  low opinion  about  the -character of respondent No. 1.  It  is, however, to be noted that these words have been used in  the context  of facts on the basis of which the writer  of  this leaflet  thought that respondent No. 1 had ’been  guilty  of "Deshdrohita"  and  "Vishwasghatakta".   It  is,  therefore, really an expression of opinion about respondent No. 1 based on  facts.   These  words  do  not  themselves  connote  any statement of fact which can be, said to be false.

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    In this connection, learned counsel for respondent  No. 1  relied  on the decision of this Court in Kumara  Nand  v. Brijmohan Lal Sharma,(’) where, in a poem, the candidate was described  as the "greatest of all thieves" The  Court  held that this description was not a mere opinion and that,  when the  candidate  was called the greatest of  all  thieves,  a statement  of  fact  was  being  made  as  to  his  personal character   or  conduct.   There  are  two  features   which distinguish  that  case from the case before us.   First,  a statement  that a person is a thief clearly imputes  to  him moral  depravity,  while  statements  saying  that  he   has committed "Deshdrohita" or "Vishwasghatakta" only reflect on his  conduct in the political field and do not bring in  any element  of  moral depravity.  Secondly, in  that  case,  no facts  were  given from which an inference might  have  been sought to be drawn that (1) [1967] 2 S.C.R. 127. L8Sup.Cl/70-13 674 the candidate was the greatest of all thieves, while, in the case  before  us, objectionable words have been  used  after giving the facts, on the basis of which it was held that the conduct of respondent No. 1 had been undesirable so as to be described  as "Deshdrohita" and "Vishwasghatakta".   Counsel for  the appellant, in this connection, relied on a  passage at page 91 of Parker’s Election Agent and Returning Officer, 6th Edition, which is to the following effect -.-               "But  the following have been held not  to  be               within  the  provision:-  a  statement   which               imputed that the candidate was a traitor,  and               was  one  of  certain  persons  who  were   in               correspondence  with the enemy shortly  before               the South African war broke out in 1899." This  passage  is  based on the decision  in  Ellis  v.  The National   Union   of   Conservative   and    Constitutional Association,  109  L.T.  Jo. 493 which  book  has  not  been available  to us.  Based on the same case, it is  stated  in note (a) at page 227 under paragraph 394 of Halsbury’s  Laws of England, 3rd Edn., Volume 14, that               "The words ’Radical traitors’ were held to  be               not within the provision, as being a statement               of opinion rather than of fact." Counsel for respondent No. 1, however, drew our attention to the  fact that in the case of Kumara Nand(1) this Court  did not  rely on Parker’s version of the decision on the  ground that  in  Rogers on Elections, Vol. II, 20th Edn.,  at  page 368,  the facts given indicated that there was no  statement of fact with respect to the candidate himself that he was  a traitor  and all that was said was that Radical  members  of the  House of Commons were in correspondence with the  Boers and the candidate happened to be one of the Radical members. On  this  ground,  the Court did not choose  to  accept  the dictum  reproduced  by Parker.  It, however,  appears  that, even  in Rogers on Elections, it was mentioned, in  addition to  the  facts noted in that case by this Court,  that  "any false  statements  were of opinion only and  not  of  fact". This  part of the sentence in Rogers on Elections  does  not seem  to have been brought to the notice of the  Court.   It appears that, apart from the allegation that Radical members of  the  House of Commons were in  correspondence  with  the enemy,  there  must have been an inference  drawn  that  the candidate  was  a traitor and it is with reference  to  this last   statement  that  Rogers  mentions  that   the   false statements  were held to be matters of opinion only and  not of  fact.   In  any  case, even if we do  not  rely  on  the

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principle laid down in that case in England, we are still of the view that, in the present case where the statements (1) [1967] 2 S.C.R. 127. 675 of  fact are given and only inferences are drawn, the  words used  at the time of putting down the inferences have to  be held  to  be expressions of opinion and  not  statements  of fact.     Reliance  was also placed on behalf of respondent No.  1 on  the quotation from the decision in T. K. Gangi Reddy  v. M.  C. Anjaneya Reddy(’) reproduced in the case  of  Sheopat Singh v. Ram Pratap(2) which is to the following effect --                  "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?" This view  expressed in that case is also not applicable  to the case  before  us, because here the  objectionable  words have been very clearly  and  obviously  used  as  inferences drawn by the writer from statements  of  fact given  in  the leaflet  itself.  Reference  was also made  by  counsel  for respondent  No.  1 to the decision of this  Court  in  Mohan Singh  v. Bhanwarlal & Others(’) where it was held that  the leaflets in question clearly implied that the candidate  had misappropriated the fund collected by him, and this was held to  be a statement of fact constituting a  corrupt  practice under s. 123(4) of the Act.  In that case, again, the  impu- tation was of a nature that affected the personal  character of  the candidate indicating that he had been  dishonest  in misappropriating  money,  while, in the case before  us,  no such facts have been found.     It  is  quite clear that these words  "Deshdrohita"  and "Vishwasghatakta"  have  been used in this leaflet  only  to bring  into light the conduct of respondent No. 1 which  was adverse  to the policies of the Congress and, at one  stage, against  the  interests of the  country.   Possibly,  milder words could have been used to describe his conduct on  those occasions,  but  even the use of strong words  is  not  very unnatural at the time of elections.  In judging whether  the use  of such words can be held to be a corrupt practice,  we have to keep in view the principles indicated by this Court, how  such  document should ’be read, in the case  of  Kultar Singh v.  Mukhtiar Singh(’).  The Court held :               "The  principles which have to be  applied  in               construing  such a document are  well-settled.               The  document must be read as a whole  and-its               purport and effect deter- (1)   [1960] 22 E.L.R. 261. (3)  [1964] 5 S.C.R. 12. (2)  [1965] 1 S.C.R. 175,179, (4)  [1964] 7 S.C.R.490. 676               mined  in  a fair,  objective  and  reasonable               manner.   In reading such documents, it  would               be  unrealistic to ignore the fact  that  when               election  meetings  are held and  appeals  are               made  by  candidates  of  opposing   political               parties, the atmosphere is usually  surcharged               with  partisan feelings and emotions  and  the

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             use of hyperboles or exaggerated language,  or               the  adoption  of metaphors,  and  the  extra-               vagance   of  expression  in   attacking   one               another,  are all a part of the game, and  so,               when the question about the effect of speeches               delivered or pamphlets distributed at election               meetings is argued in the cold atmosphere of a               judicial chamber, some allowance must be  made               and the impugned speeches or pamphlets must be               construed   in  that  light.   In  doing   so,               however,  it would be, unreasonable to  ignore               the question as to what the effect of the said               speech or pamphlet would be on the mind of the               ordinary  voter who attends such meetings  and               reads the pamphlets or hears the speeches.", Examined  on  these principles, it would be clear  that  the words that were used, though harsh, were not such as to lead the  voters to think that respondent No. 1 had a  low  moral character.   Care  was taken to give the  facts  from  which inferences  were being drawn and the voters could very  well perceive  for  themselves whether the inference,  which  was drawn and expressed in these strong terms, was justified  or not.  Schofield in his book on Parliamentary Elections,  2nd Edition,  at  page 437, has reproduced a  quotation  from  a decision of Darling, J.in Cumberland (Cockermouth Division) Case(’), where he said:--                   "You  must not make or publish  any  false               statement of fact in relation to the  personal               character  or conduct of a 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; 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 statements in order to  be  an               illegal (1) [1901] 5 O. M. & H. 155. 677               practice,   must   relate  to   the   personal               character and personal conduct." This  passage  was  quoted with approval by  this  Court  in Guruji Shrihari Baliram Jivatode v. Vithalrao and Others(’). It  is  to  be noted that Darling, J.,  held  that  a  false statement  of fact, which deals with the political  position or reputation or action of a candidate, cannot be held to be a corrupt practice.  The imputations that have been made  in paragraphs 1, 2, 4 and 5 of the leaflet and which have  been found  to be false in the case before us clearly  relate  to the  political position, reputation or action of  respondent No. 1. A similar distinction was also drawn by this Court in the  case  of Inder Lal v. Lal Singh(’).   All  these  cases clearly  indicate that imputations of the type which are  in

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question  in  the leaflet before us and which may,  to  some extent,  be false or inaccurate cannot be held to  be  false statements as to the personal character of respondent No.  1 and cannot, therefore, constitute corrupt practice under  s. 123(4) of the Act.  The only statements, which did relate to the personal character of respondent No. 1, have been  found to be true.     In support of his argument, counsel for respondent No. 1 drew our attention to the evidence of some of the  witnesses examined  on  his  behalf  in order to  show  what  was  the reaction  of  this leaflet on the various voters.   P.W.  2, Shashi Nath Bardoloi, stated that his own reaction was  that this leaflet had very much scandalised respondent No. 1 and, when  asked  what  he  remembered  about  the  leaflet,   he mentioned   that  respondent  No.  1  could  not  pass   the Intermediate  Examination, though he rolled from College  to College, whereafter he joined as a copyist and then became a clerk  at Nowgong Court, that there was an  allegation  that somebody  withdrew  some money from the  treasury  with  the forged signature of respondent No. 1 about which a case  was pending,  and  that, for his fault, one  Head-clerk  of  the Municipality  committed suicide.  It is to be  noticed  that none of the facts given in the leaflet casting reflection on the  personal  character of respondent No. 1  seem  to  have impressed  him  or stuck in his mind.  He also  stated  that some  persons, who were going to vote for respondent No.  1, decided  not to do so after the issue of this leaflet;  but, when  asked to name even one of those persons, he could  not do so.     The  evidence  of the next witness P.W. 3,  Golok  Chand Saikia, is even more unsatisfactory, because he did not give his own reaction to the leaflet at all and only stated that, after its publication, most of the people who were in favour of respondent No. 1 chanced their minds about respondent No. 1, but, again, he could not give (1) [1969] 1 S.C. Cases 82. (2) [1962] 3 Supp.  S.C.R. 114. 678 the  name of even one single person who wanted to  vote  for respondent No. 1 and did not in fact do so.     P.W. 4 is Bhola Ram Das.  According to his evidence,  he carried  the  impression that this leaflet had  stated  that respondent  No.  1 had misappropriated some money  from  the Congress and, consequently, he changed his mind about giving vote to him on receipt of this leaflet.  On the face of  it, there  is  nothing  at all in the  leaflet  to  justify  his inference,  as  there  was  no  suggestion  at  all  of  any misappropriation  of  money by respondent No. 1,  much  less money belonging to the Congress.  He purported to state that he had read the leaflet himself, though, when cross-examined and asked if he could read Assamese, he admitted that he was almost illiterate.     The  next witness P.W. 5, Hara Kanta Bora,  also  stated that,  on  reading the leaflet, he got the  impression  that respondent  No.  1  was a man of  bad  character,  the  main impression  which was carried by him being  that  respondent No.  1 had some bad relationship with the wife of Dr.  Guha. To  test  the veracity of this witness, he was  asked  which candidate  he had worked for in this election and he  stated that he had worked for the appellant, having been  appointed as  his polling agent.  When further cross-examined, he  was unable  to  state what the duties of a polling  agent  were, while evidence has been led to prove that another person  of the same name had worked as polling agent of the  appellant. This leads to the inference that this witness falsely  posed

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to  be  the polling agent of the appellant and  no  reliance can, therefore, be placed on the evidence of such a witness. The last witness, whose evidence was brought to our  notice, is  P.W. 6 Liladhar Barua who stated that, on  reading  this leaflet,  he gathered the impression that respondent  No.  1 was a man of bad character and that it was also stated in it that  respondent  No. 1 took the side of  the  military  and committed atrocities on the people in 1942 movement  period. In his case, again, the mention of commission of  atrocities in  1942  movement  could not have been  inferred  from  any statement  at  all contained in the  leaflet.   Counsel  for respondent   No.  1  stated  that  the  witness  knew   that atrocities were committed in 1942 and, consequently, he drew this  inference  from  the mention of respondent  No.  1  in connection with that movement stating that he had sided with the  British.  This witness was scarcely five years  old  in 1942  and he could not have any recollection  of  atrocities committed  about the year 1942, so that the suggestion  made by  counsel for respondent No. 1 offers no explanation.   It is  clear  that  all these witnesses have  merely  tried  to favour  the  case  of respondent No. 1  and  their  evidence relating  to the impression created by the leaflet is of  no value at all.  In the circumstances, the view we have formed above on our own assess- 679 ment  of  the material contained in this  leaflet  does  not require  to be revised on the basis of this  evidence.   The publication of the leaflet, as we have held above, cannot be held  to constitute corrupt practice under s. 123(4) of  the Act.     The  appeal is, consequently, allowed, the  decision  of the  High  Court is set aside and the election  petition  is dismissed with costs in both Courts. W J.P.S.             Appeal allowed. 680