Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5310 OF 2005

Joseph M. Puthussery       ... Appellant

Versus

T.S. John & Ors.       ... Respondents

J U D G M E N T

J.M. Panchal, J.

This  appeal,  filed  under  Section  116A  of  the  

Representation of People Act, 1951 (‘the Act’ for short), is  

directed  against  judgment  dated  August  8,  2005,  

rendered by the learned Single Judge of the High Court of  

Kerala at Ernakulam in Election Petition No. 6 of 2001 by

which the election of the appellant as Member of Kerala  

Legislative  Assembly  from  No.  106,  Kallooppara  

Constituency is declared void on the ground that he was  

guilty  of  the  corrupt  practice  within  the  meaning  of  

Section 123(4)  of  the  Act  as he  extensively  distributed  

directly and through UDF workers, who did so with his  

consent,  the  copies  of  Ext.  X4,  which  contained  

statements  of  fact,  which  were  false  and  which  he  

believed  to  be  false  or  did  not  believe  to  be  true  in  

relation  to  the  personal  character  and  conduct  of  the  

respondent No. 1.

2. The facts, emerging from the record of the case, are  

as under:

The election to the Kerala Legislative Assembly was  

held on May 10, 2001.  From the Constituency, i.e., No.  

106 Kallooppara Constituency, the appellant, i.e., Joseph  

M. Puthussery, the respondent No. 1, i.e., Advocate T.S.  

John, Prof. P.K. Rajasekharan Nair, i.e., the respondent  

No. 2 and Mathew Pinakkulath Padinjaremannil, i.e., the  

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respondent No.3,  contested the election.   The result  of  

the  election  was  declared  on  May  13,  2001  and  the  

appellant was declared elected with 42,238 votes cast in  

his favour.  As far as the respondent No. 1 is concerned,  

he was able to poll  31,013 votes.   Thus, the appellant  

defeated  the  respondent  No.  1  by  a  margin  of  11,225  

votes.  The respondent Nos. 2 and 3 received 4,432 and  

361 votes respectively.

On  June  27,  2001,  the  respondent  No.  1  filed  

Election  Petition  No.  6  of  2001  in  the  High  Court  of  

Kerala at Ernakulam, under Section 100(1)(b) of the Act  

assailing the election of the appellant.  According to the  

respondent  No.  1,  the  election  of  the  appellant  was  

vitiated by corrupt practice defined under Section 123(4)  

of the Act for the reason that copies of Ext. X4, which  

allegedly contained false statements of fact in relation to  

the  personal  character  and conduct  of  the  respondent  

No. 1 having tendency to prejudice the prospects of the  

election of the respondent No. 1, were distributed by the  

appellant, his election agent and workers of the United  

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Democratic Front, i.e., the party to which the appellant  

owe  allegiance,  with  his  consent  as  well  as  with  the  

consent of his election agent on May 8, 2001 and May 9,  

2001  ignoring  the  stipulation  that  electoral  campaign  

must come to an end.  The precise statements in Ext. X4,  

which,  according  to  the  respondent  No.  1,  allegedly  

amounted to the corrupt practice within the meaning of  

Section 123(4) of the Act, are extracted below: -

“Adv. T.S. John Is He A Servant of the People  or Hero of Corruption?

When tens of thousands of Homeless wander  on  streets,  this  MLA,  the  people’s  servant  acquires mansion after in his name.

Let us start journey from Anathapuri to take  an account of  the number of  flats owned by  this esteemed personality.  Even in the District  of Trivandrum a flat was allotted during 1980,  when Gopi was the Chairman of the Housing  Board while he was MLA.

During 1984, when P.J.  Joseph of flats near  the Chairman’s Quarters were acquired by this  MLA  in  the  name  of  daughter  of  his  elder  brother.   At  that  time,  the  Chairman  of  the  Housing  Board  was  Oommen  Mathew.   By  leasing out all  the acquired flats on rent, he  was  fetching,  Rs.1000  to  2000  per  month.  Nearly  Rs.30,000/-  was  being  received  as  profit from this alone.

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T.S. John, who was allotted a plot earlier, got  the  flat  in  exchange  by  paying  the  price  in  monthly  installments.   This  flat  cost  Rs.12  lakhs.   Even  the  third  flat  of  the  Housing  Board came of T.S. John.

In  order  to  hoodwink  the  people  of  Kallooppara,  he  still  continues  to  live  in  a  small house.  His car shed is even better.  It  would have been nice for T.S. John to live in  the car shed with concrete roof.

Thengana  Kadanthod  Thankchan,  who  is  running  “Mariya  Store”  on  the  Changanacherry-Karukachal  road  near  the  Thengana Waiting Shed, had prized the lottery  ticket.  Now the only question that arises, is  how  much  profit  Thankchan  got  in  this  transaction.   Though a lot  of  such incidents  had happened in the State,  in the history of  Kerala this is the first time that an MLA had  indulged in this type of deceit.

Poor  Simpleton  of  a  Little  Hut  Or  Many.....  Many.....  Corruption Stories.  These repulsive  stories  of  corruption  are  a  disgrace  to  the  country.   It  should  not  be  forgotten  that  by  this ridiculed are the people of this place.

Corruption Hero T.S. John M.L.A.

T.S.  John  M.L.A.  the  people’s  representative  who lives in his small house as a puritan poor  folk,  has built  up flats and properties under  benami worth crores of rupees through out the  Kerala State.

Even the Ambassador  Car  No.  KL 3/E7 this  M.L.A.  owns  is,  it  is  the  name  of  Manjeri  Bhaskaran Nair.

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Role  of  P.J.  Joseph,  Minister  and  T.S.  John  M.L.A.

Embezzlement  of  crores  of  rupees  behind  Palemaad Vivekanada School

There  is  a  school  in  the  name  of  Palemaad  Vivekanada  village  near  Manjeri  in  Malappuram District, which is populous with  settlors, but is an undeveloped area under the  shield of this school, which started functioning  during 1963, a family is leading princely life at  the  expense  of  the  Government,  embezzling  crores of  rupees.  Those who liaise for  them  and receive lakhs of rupees as their share are  two  important  persons.   Education  Minister  P.J.  Joseph and the formal Minister and the  Assembly Speaker T.S. John.

It is now years since P.J. Joseph and T.S. John  begun  this  business  in  the  education  with  Bhaskara Pillai.

Bhaskara Pillai, who was removed from N.S.S.  for indulge in financial irregularities, has seen  the  green  pasture  in  his  life  through  the  education  business  with  P.J.  Joseph  –  T.S.  John.”

The appellant filed written statement resisting the  

election petition.  In the written statement, distribution of  

Ext. X4 in the Constituency on May 8, 2001 and May 9,  

2001  was  not  specifically  denied  meaning  thereby  

ignorance  was  pleaded  so  far  as  distribution  of  the  

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pamphlets was concerned.  However, the appellant took a  

specific stand that neither he nor his election agent or  

any one with his and/or their  consent had distributed  

Ext. X4.  What was stated by the appellant in the written  

statement  was  that  the  distribution  was  done  by  the  

Youth Wing of the party to which the respondent No. 1  

belongs  and  that  the  distribution  of  Ext.  X4  does  not  

amount to any publication.  It was also averred that, at  

any rate, the statement was not calculated to prejudice  

the prospects of the respondent No. 1 in the election held  

on May 10, 2001 and, therefore, the Election Petition was  

liable to be dismissed.

3. Having regard to the pleadings of  the parties,  the  

learned  Single  Judge  framed  as  many  as  eight  

issues  for  determination.   On  behalf  of  the  

respondent No. 1, who was the original petitioner,  

as  many  as  90  witnesses  were  examined  and  

documents  Ext.  P-1  to  P-22  were  produced  in  

support of his case that the election of the appellant  

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was liable to be voided.  So far as the appellant is  

concerned,  he  had  examined  53  witnesses  and  

produced documents at Ext. R-1 to R-20 in support  

of his case that his election was not liable to be set  

aside  on  the  ground  of  alleged  corrupt  practice.  

Further, Ext. C-1 to C-3(b) were marked as Court  

Exhibits  whereas  X-1  to  X-24  documents  were  

marked as proved by witnesses and Ext. N-1(a) and  

N-1(b)  were  marked  by  the  persons  to  whom the  

court had issued notice under Section 99 of the Act.

4. After considering the evidence adduced and hearing  

the  learned  counsel  for  the  parties,  the  court  

proceeded  to  consider  the  question  as  to  which  

standard  of  proof  is  required  to  be  applied  while  

resolving  election  disputes  raised  in  the  Election  

Petition and held that the standard of proof which is  

higher  than  one  made  applicable  to  decide  civil  

cases but which is lesser than the one applied in  

criminal cases should be adopted.  The High Court  

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has  further  held  that  relevant  contemporaneous  

newspaper publications like Ext. P-5 and P-6 and  

entries  in  official  documents like  Ext.  X5 and X6  

corroborate  the  ocular  version  tendered  by  the  

witnesses examined by the respondent No. 1 about  

the  distribution  of  Ext.  X4  pamphlet  in  the  

constituency on May 8 and May 9,  2001 by UDF  

workers.  The learned Single Judge further observed  

that  the  act  of  the  appellant  in  not  stopping  his  

workers  from  continuing  with  distribution  of  

objectionable  pamphlet  Ext.  X4  is  sufficient  to  

assume consent  on  his  part.   The  learned  Judge  

held that it was not established by the respondent  

No.  1 that  DW-52 Jaya Varma,  who was election  

agent of the appellant, had himself distributed the  

pamphlets in question nor it was established that  

UDF workers  had distributed  the  pamphlets  with  

consent of Jaya Varma.  The learned Judge further  

held  that  the  evidence  tendered  about  the  

involvement  of  DW-52  Jaya  Varma  in  actual  

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distribution did not inspire confidence of the court.   

5. The  learned  Judge  further  held  that  in  releasing  

Ext.  X4  for  consumption  of  the  electorate  by  

extensive  distribution  in  the  Constituency,  there  

was publication as contemplated by Section 123(4)  

of the Act.  The learned Judge found that Ext. X4  

was  not  merely  republication  of  the  relevant  

portions of Exts. R-6, R-7 and R-8, but in addition  

to  what  was  available  in  Exts.  R6,  R-7  and  R-8,  

defamatory  imputations  by  way  of  title,  

observations/comments in the sub-title,  etc.,  were  

available in Ext. X4.  The learned Judge held that  

out of  the three allegations made in objectionable  

pamphlet Ext. X4, the third allegation, which relates  

to misappropriation and fraud to the tune of crores,  

falls  under  category  of  objectionable  statement  of  

fact under Section 123(4) of the Act and evidence of  

PW-6  shows  that  the  statement  was  false.   The  

Court noted that publication of Ext. X4 on the eve of  

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election was calculated to prejudice the prospects of  

the respondent No. 1 of winning the election.  The  

Court  concluded  that  the  appellant  was  guilty  of  

corrupt practices under Section 123(4) of the Act.  

However,  the  Court  did  not  name  any  of  the  77  

workers  of  UDF under  Section 99 of  the Act  and  

held that there was no specific evidence against any  

of them.

6. In view of the above mentioned conclusions, learned  

Single Judge has allowed the Election Petition filed  

by the respondent No. 1 and set aside the election of  

the appellant, giving rise to the instant appeal.

7. This Court  has heard the learned counsel  for  the  

parties at length and in great detail.  This Court has  

also  considered  the  voluminous  oral  as  well  as  

documentary evidence produced by the parties and  

read out before the Court.

8. So far as standard of proof is concerned, there is no  

manner of doubt that the High Court misdirected  

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itself  on  the  point  of  standard  of  proof  required  

under Section 123 of the Representation of People  

Act,  1951.  The learned Judge without explaining  

invented  a  new  standard  of  proof  to  be  made  

applicable  to  election  disputes  and has  held  that  

standard of proof higher than the one applicable to  

the  civil  cases  but  certainly  lesser  than  one  

applicable to the criminal cases, should be adopted  

while determining the question whether an elected  

candidate is guilty of corrupt practice/s within the  

meaning  of  the  Act.   Normally,  standard  of  proof  

made applicable to civil cases is preponderance of  

probabilities  and  the  one  made  applicable  to  

criminal  cases  is  proof  beyond  reasonable  doubt.  

Even  with  the  ablest  assistance  of  the  learned  

counsel  for  the  parties,  this  Court  could  not  

comprehend as to which is that standard of proof  

which  is  higher  than  the  one  applicable  to  civil  

cases and lesser than the one applicable to criminal  

cases.   The  standard  of  proof,  spoken  of  by  the  

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learned  Judge,  neither  gets  recognition/stamp  of  

authority  either  from the  provisions  of  the  Indian  

Evidence  Act  or  from  any  other  statute  or  from  

judicial precedents.  There is no manner of doubt  

that the standard of proof, which should be adopted  

according to the High Court while  determining an  

election dispute, is contrary to settled principles of  

law.  The settled law is that an election trial where  

corrupt practice is alleged is to be conducted as a  

criminal  trial.   Unfortunately,  the High Court  has  

not  referred to  any  decision  of  this  Court  on the  

point though the learned counsel for the appellant  

claimed  that  several  decisions  were  cited  by  the  

learned  counsel  for  the  parties  to  guide  the  High  

Court  as  to  which  standard  of  proof  should  be  

adopted  while  deciding  an  election  dispute.   In  

Jagdev Singh Sidhanti vs.  Pratap Singh Daulta  

(1964)  6  SCR  750,  the  Five  Judge  Constitution  

Bench of this Court has laid down, in paragraph 11  

of the reported decision as under: -

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“11. It may be remembered that in the trial of  an election petition, the burden of proving that  the election of a successful candidate is liable  to  be  set  aside  on  the  plea  that  he  was  responsible directly or through his agents for  corrupt  practices  at  the  election,  lies  heavily  upon the applicant to establish his case, and  unless  it  is  established in  both its  branches  i.e.  the  commission  of  acts  which  the  law  regards  as  corrupt,  and the  responsibility  of  the  successful  candidate  directly  or  through  his agents or with his consent for its practice  not by mere preponderance of probability, but  by  cogent  and  reliable  evidence  beyond  any  reasonable doubt, the petition must fail.”

It may be observed that the principle that in an election  

petition based on corrupt practice the Court has to adopt  

standard of proof beyond reasonable doubt, is enunciated  

in at least not less than six other reported decisions of  

this Court.  However, this Court does not wish to burden  

the judgment unnecessarily by referring to those reported  

decisions in detail  because the learned counsel  for the  

respondent has fairly conceded before this Court that a  

wrong standard of proof was adopted by the High Court  

while trying the election petition filed by the respondent  

No. 1 challenging the election of the appellant.

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9. The consequence of the conclusion, that the learned  

single  Judge  adopted  a  wrong  standard  of  proof  

while determining the election dispute raised by the  

respondent No. 1, would be that the other findings  

recorded  by  the  learned  Judge  will  have  to  be  

viewed  in  the  light  of  this  fundamental  error  

committed by him.

10. It may be mentioned that the impugned judgment  

roughly runs into 87 pages.  However,  this Court  

finds that no evidence of any witness is discussed in  

detail at all.  The conclusion of the High Court that  

distribution  of  Ext.  X4  in  the  Constituency  

concerned  on  8th and  9th May,  2001  was  by  the  

appellant and by UDF workers with the consent of  

the appellant is to be found on pages 28 to 33 of the  

impugned judgment.  It is relevant to notice that the  

appellant had stated in his written statement that  

he was not aware of any such distribution and in  

the  alternative  it  was  mentioned  that  even  if  the  

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distribution  had  taken  place,  neither  he  nor  his  

agent  nor  any  of  the  workers  of  UDF  was/were  

involved in the distribution of the Pamphlet Ext. X4.  

The learned Judge has observed that the appellant  

has not expressly denied distribution of Ext. X4 on  

the  above  said  dates  in  his  written  statement.  

However, this Court finds that in an election trial it  

is  not  permissible  to  the  High  Court  to  discard  

substantive oral evidence on account of defect in the  

pleadings.  This is so in view of the decision of this  

Court in  Dr. Jagjit Singh vs.  Giani Kartar Singh  

and others AIR 1966 SC 773.   

11. What is important to notice is that the testimony of  

the  appellant  that  printing  and  distribution  had  

taken place in March, 2001 and not in May, 2001,  

as alleged by the respondent No. 1, was discarded  

by the learned Judge only  because it  was not  so  

stated  in  his  written  statement.   At  this  stage  it  

would be advantageous to refer to the testimony of  

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PW-88.  PW-88 is the owner of the press.  He had  

deposed before the Court on February 13, 2002 that  

Shaji P. Jacob, i.e., DW-10, had entrusted him the  

printing  of  Ext.  X4  Pamphlet  on  March  8,  2001.  

The said witness had produced Ext. X17 Bill Book  

maintained  by  him  in  the  ordinary  course  of  

business to substantiate that Mr. Jacob, i.e., DW-

10,  had  entrusted  him  the  printing  of  Ext.  X4.  

Again, DW-10 had also deposed before the Court on  

March 6, 2002 that he had got printed Ext. X4 from  

the  press  of  PW-88  and  that  he  himself  had  

distributed the same in the month of March, 2001.  

It  may  be  stated  that  PW-88  was  one  of  the  

witnesses produced by the respondent No. 1 himself  

in  support  of  his  case  that  the  election  of  the  

appellant  was  liable  to  be  set  aside  and  the  

respondent No. 1 wanted the Court to rely upon the  

testimony  of  PW-88.   As  observed  earlier,  PW-88  

had  in  categorical  terms  stated  before  the  Court  

that Mr. Jacob, i.e., DW-10, had entrusted him the  

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printing  of  Ext.  X4  Pamphlet  on  March  8,  2001.  

The  testimony  of  PW-88 was  never  challenged by  

the respondent No. 1 in the sense that PW-88 was  

never declared hostile to the respondent No. 1 nor  

the respondent No. 1 had sought permission of the  

Court  to  cross-examine  PW-88.   Thus,  evidence  

tendered by PW-88 was accepted to be true by the  

respondent No. 1.  The testimony of DW-10, whose  

credibility  could  not  be  impeached  during  his  

lengthy  cross-examination  by  the  learned  counsel  

for the respondent No. 1, had asserted that he had  

got printed Ext.  X4 from the press of  PW-88 and  

that he had distributed the same in March, 2001.  

From the  impugned  judgment  it  becomes  evident  

that  without  assigning  cogent  and  convincing  

reasons the learned Judge had chosen to disbelieve  

the  evidence  of  PW-88  and  that  of  DW-10.   No  

convincing reason recorded by the learned Judge as  

to why the testimony of PW-88 or for that matter the  

testimony  of  DW-10  should  be  disregarded.   The  

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only and feeble reason, which has no legs to stand,  

given  by  the  learned  Judge  to  disbelieve  the  

testimony of PW-88 and DW-10, is that those who  

distributed the pamphlets must have got the same  

printed in the press of PW-88.   Thus, this Court  

finds  that  the  conclusion  drawn  by  the  learned  

Judge, that the evidence of PW-88 and DW-10 was  

unreliable,  will  have  to  be  regarded  as  perverse.  

The finding recorded by the learned Judge that no  

adverse  inference  can  be  drawn  against  the  

respondent No. 1 on the score that he had neither  

asserted  nor  controverted  that  Ext.  X4  was  got  

printed  by DW-10 in the  press of  PW-88,  has no  

factual basis and this Court, having regard to the  

facts  of  the  case,  is  inclined  to  draw  an  adverse  

inference against the respondent NO. 1 on the score  

that he had neither asserted nor controverted the  

fact that Ext. X4 was got printed by DW-10 at the  

press of PW-88.  Viewed in the light of what is held  

above,  the  assertion  made  by  the  appellant,  who  

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had examined himself as DW-53 that he had come  

to  know about  the  distribution  of  Ext.  X4  in  the  

month of March from DW-10 later on, deserves to  

be  accepted  and  cannot  be  brushed  aside  as  

improvement  in  the  version  as  is  done  by  the  

learned Judge.

12. The  finding  that  there  is  overwhelming  and  

satisfactory  oral  evidence  on  the  point  that  the  

distribution had taken place on May 8, 2001 and  

May  9,  2001,  to  say  the  least  is  contrary  to  the  

evidence  on  record.   What  is  the  value  of  oral  

evidence  while  deciding  issue  of  corrupt  practice  

within the meaning of Section 123(4) of the Act will  

have  to  be considered?  So far  as election law is  

concerned by now it is well settled that it would be  

unsafe to accept the oral evidence on its face value  

without  seeking  for  assurance  from  other  

circumstances or unimpeachable  document.   It  is  

very difficult to prove a charge of corrupt practice  

20

merely  on  the  basis  of  oral  evidence  because  in  

election  cases,  it  is  very  easy  to  get  the  help  of  

interested  witnesses.   In  Abdul  Hussain  Mir vs.  

Shamsul  Huda and another (1975)  4  SCC 533,  

the Three Judge Bench of this Court held that oral  

evidence, ordinarily is inadequate especially if it is  

of  indifferent  quality  or  easily  procurable.  

According to this Court, the oral evidence has to be  

analyzed by applying common sense test.  It must  

be  remembered  that  in  assessing  the  evidence,  

which is blissfully vague in regard to the particulars  

in support of averments of undue influence, cannot  

be acted upon because the court is dealing with a  

quasi-criminal  charge  with  serious  consequences  

and,  therefore,  reliable,  cogent  and  trustworthy  

evidence has to be led with particulars.  If  this is  

absent and the entire case is resting on shaky ipse  

dixits, the version tendered by witnesses examined  

by election petitioner  cannot be accepted.   Before  

recording the above finding, the learned Judge has  

21

not  adverted  to  the  evidence  of  any  witness  nor  

taken  into  consideration  the  positive  evidence  of  

DW-10 that he himself had distributed Ext. X4 in  

the month of March, 2001.  This Court does not find  

from the  impugned judgment as to why the  High  

Court  was  inclined  to  prefer  testimony  of  a  

particular witness as against the reliable evidence  

tendered by the appellant himself and the evidence  

tendered  by  DW-10.   The  finding  that  

contemporaneous newspaper publications produced  

at Exts. P-5 and P-6 corroborate the testimony of  

the respondent No. 1, is also not supported by the  

evidence  on  record.   If  one  examines  newspaper  

publications  produced  at  Exts.  P-5  and  P-6,  it  

becomes at once clear that the reports were entirely  

hearsay.  The reporters of Exts. P-5 and P-6 were  

examined in this case.  They have categorically, and  

in  no  uncertain  terms,  stated  that  they  had  no  

personal knowledge of the events published in Exts.  

P-5 and P-6.  Therefore, what was reported in the  

22

newspapers could not have been regarded anything  

except hearsay.  There is no manner of doubt that  

the  High  Court  has  misdirected  itself  in  placing  

reliance  on  the  hearsay  evidence,  which  was  

produced before the Court in the form of Exts. P-5  

and P-6.   In view of  clear  proposition of  law laid  

down by this Court in  Quamarul Ismam vs.  S.K.  

Kanta  and  others 1994  Supp.  (3)  SCC  5 and  

Laxmi Raj Shetty and another vs. State of Tamil  

Nadu (1988)  3  SCC  319,  the  hearsay  evidence  

could not have been used by the learned Judge for  

coming  to  the  conclusion  that  contemporaneous  

newspapers  publications  Exts.  P-5  and  P-6  

corroborate the testimony of the respondent No. 1.

13. The first question, which deserves to be addressed  

by  this  Court,  is  whether  it  is  satisfactorily  

established  that  the  appellant  himself  had  

distributed the pamphlets in question on May 8 and  

May 9, 2001.

23

14. As noticed earlier,  the High Court has recorded a  

finding that Ext. X4 pamphlets were distributed on  

May 8, 2001 and May 9, 2001 by the appellant and  

also by UDF workers with his consent and for this  

purpose the High Court has relied on the testimony  

of  PW-12  to  PW21.   The  learned  counsel  for  the  

respondent No. 1 would contend that the fact that  

the  appellant  had  distributed  the  pamphlets  in  

question  stands  satisfactorily  proved  by  the  

evidence of PW-12 to PW-21, out of whom PW-16,  

PW-18,  PW-19  and  PW-20  are  independent  

witnesses  and,  therefore,  the  finding  recorded  by  

the High Court that the appellant had distributed  

pamphlets on May 8. 2001 and May 9, 2001 based  

on appreciation of  evidence,  should be  upheld  by  

this  Court.   The  above  mentioned  submission  

makes it abundantly clear that PW-12, PW-13, PW-

14, PW-15, PW-17 and PW-21 were not independent  

witnesses and had affiliation with the party to which  

the respondent No. 1 belongs.  What is important to  

24

note is that once the testimony of PW-88 read with  

that of DW-10 is believed that pamphlets Ext.  X4  

were printed in the press of PW-88 at the instance  

of DW-10 and that DW-10 had distributed the same  

in the month of March, 2001, the assertion made by  

witnesses  examined  as  PW-12  to  PW-21  that  the  

pamphlets  were  distributed  by  the  appellant  and  

also  by  UDF  workers  with  the  consent  of  the  

appellant on May 8, 2001 and May 9, 2001 becomes  

highly doubtful and their say cannot be accepted.  It  

is relevant to notice that G. Govindan Nampoothiri,  

who  is  examined  as  PW-88,  is  witness  for  the  

respondent  No.  1.   The  respondent  No.  1  desires  

this  Court  to  act  upon the  testimony  of  the  said  

witness, who is examined by him.  The respondent  

No. 1 has not disowned the testimony of PW-88 in  

the  sense  that  the  said witness was not  declared  

hostile  nor  cross-examined  on  behalf  of  the  

respondent  No.  1.   Once  the  testimony  of  PW-88  

read with that of DW-10 is acted upon, it becomes  

25

evident that the respondent No. 1 had led two sets  

of evidence each contradicting the other regarding  

distribution  of  pamphlets  and  obviously  in  such  

circumstances  the  reasonable  benefit  of  doubt  

would go to the elected candidate,  namely,  to the  

appellant.  Further, the claim made by the learned  

counsel for the respondent No. 1 that PW-16, PW-

18, PW-19 and PW-20 were independent witnesses,  

who  had  deposed  before  the  Court  that  the  

appellant  had  distributed  Ext.  X4  pamphlets  on  

May 8, 2001 and May 9, 2001, on scrutiny, is found  

to  be  hollow.   The  scrutiny  of  evidence  of  PW-16  

Kuttappai K.K. indicates that in cross-examination  

it was put to him that Ext. X4 was brought out by  

the  President  of  Youth  Front  (J)  against  another  

member of the same party and in answer to the said  

question he replied that he was not knowing that it  

was brought out by the President of Youth Front (J),  

but  admitted that it  was so written/mentioned in  

Ext. X4 itself.  Though he admitted that he had not  

26

bothered to peruse the full text of Ext. X4, he had  

audacity  to  state  before  the  Court  that  Ext.  X4  

contained defamatory matter and that allegation of  

corrupt  practice  at  the  personal  level  were  made  

against the respondent No. 1.  When it was put to  

him  that  Ext.  X4  did  not  contain  any  reference  

about the personal conduct of the respondent No. 1  

other than as a servant of the people, the claim of  

this witness was that he had not read the full text.  

A witness, who claims before the Court on oath that  

Ext.  X4  pamphlets  contained  defamatory  matter  

without  reading  the  contents  of  the  same,  would  

hardly inspire confidence of the Court.  A perusal of  

testimony of PW-18 K. Anil  Kumar would indicate  

that in an answer to the question i.e. whether there  

was anything in Ext. X4 causing defamation of the  

candidate  as  such  or  about  election,  the  witness  

replied that those words were not used in Ext. X4  

and  he  agreed  that  Ext.  X4  did  not  contain  the  

words ‘election’ or ‘candidate’.  Initially, this witness  

27

maintained that he was an independent witness and  

had nothing to do with Marxist Party to which the  

respondent No. 1 belongs, but in cross-examination  

he admitted that he had worked in the SFI, which  

was the Student Front of the Marxist Party, in the  

year 1984-85.  He further admitted that at the time  

when  he  had  worked  in  the  SFI,  which  was  the  

Student Front of the Marxist Party, he was in the  

college and had occasion to mingle with the party  

leaders.  In the opinion of this Court the admission  

made by the witness makes it more than clear that  

he was not an independent witness as claimed by  

the learned counsel  for the respondent No. 1 and  

had come to the Court to oblige the respondent No.  

1.  Again, a critical scrutiny of evidence of PW-19  

M.M. Simon would indicate  that  he  had informed  

one Mr.  Pradeep, who was an LDF worker,  about  

the distribution of the pamphlets by the appellant.  

This witness also admitted that he had not read the  

contents  of  Ext.  X4  and  had  only  read  the  

28

headlines.   This  witness  admitted  in  the  cross-

examination that he had deposed before the Court  

on the basis  of  information that he  had got  from  

others  during  the  election  propaganda.   This  

statement made by the witness makes it  doubtful  

whether in fact this witness had seen the appellant  

distributing the offending pamphlets.  Thus on the  

re-appreciation  of  evidence  of  this  witness  this  

Court does not find it prudent to place implicit faith  

on the testimony of this witness.  The evidence of  

PW-20 Verghese Mathew shows that his vegetable  

shop and the LDF Committee Office are situated in  

one and the same building and both are separated  

by  a  wall.   A  question  was  put  to  witness  that  

whether  both  sides  had  raised  allegations  of  

corruption  against  each  other.   In  answer  to  the  

said question the witness stated that according to  

his knowledge such allegations were raised only by  

the UDF and not by the LDF.  Earlier this witness  

on his own had mentioned that the respondent No.  

29

1 had issued notices soliciting votes  and had not  

published any pamphlet  of  the  nature  of  Ext.  X4  

raising allegations against the UDF.  It is important  

to note  that it  was nobody’s case and certainly it  

was  not  the  case  of  the  appellant  that  the  

respondent  No.  1 had published any pamphlet  of  

the nature of Ext. X4 raising allegations against the  

UDF.  Therefore, making of such a statement shows  

to what extent  this so called independent witness  

was interested in the respondent No. 1.  His claim  

that his wife told him that the copy of Ext. X4 was  

distributed along with the identity slip by the UDF  

party  workers  can  hardly  be  believed.   Such  an  

evidence would never be made available and/or left  

by  the  distributors  of  the  pamphlet  concerned.  

Though this witness denied that he was member of  

the party to which the respondent No. 1 belonged,  

after reading his testimony a general impression is  

created  that  he  was  in  active  politics  and  had  

supported  an  independent  candidate,  who  was  

30

contesting  Panchayat  Elections.   His  evidence  

further shows that in connection with the disputes  

relating  to  the  said  election  a  criminal  case  was  

registered  against  him  and  he  was  prosecuted.  

Therefore, his attempt to project himself as a totally  

independent witness does not inspire confidence of  

this  Court  at  all,  more  particularly,  when  on  

presumption the witness had audacity to claim on  

oath that since the respondent No. 1, who belongs  

to LDF, was maligned.  He had presumed that the  

publication  was  brought  out  by  UDF  and  after  

seeing bottom portion of Ext.  X4 he had to admit  

that  it  was  brought  out  in  the  name  of  Shaji  P.  

Jacob Kallunkal, who was a former member of the  

Youth  Ftont  of  Joseph  Group  of  Thiruvalla  

Constituency.   Thus  the  so  called  independent  

witnesses  examined  by  the  respondent  No.  1  to  

establish  that  the  appellant  had  distributed  the  

offending pamphlets  on May 8,  2001 and May 9,  

2001 are in fact not independent witnesses and are  

31

not  reliable  at  all.   The  finding  recorded  by  the  

learned  Judge  of  the  High  Court  that  there  is  

overwhelming and satisfactory oral evidence on the  

point that distribution of pamphlet Ext. X4 on May  

8,  2001  and  May  9,  2001  was  made  by  the  

appellant, is not borne out from the record of the  

case.   In  fact  there  is  no discussion as to  which  

witness has testified to this fact and why the High  

Court has preferred that testimony as against the  

evidence tendered by the appellant.   

15. This  Court  further  finds  that  the High Court  has  

recorded  a  finding  that  the  pamphlets  were  

distributed by the appellant by observing that “the  

allegation in para 13.1(iii) is also to be found to be  

established satisfactorily by the evidence tendered”.  

This  Court  notices  that  before  recording  above  

mentioned finding,  the  High Court  has not  taken  

trouble of referring to any evidence on the record.  

The  High  Court  while  recording  the  said  finding  

32

should  have  referred  to  the  evidence  which  had  

tendency to establish the said fact.  Thus, most of  

the findings recorded by the High Court are based  

on  surmises  and  inferences  and  have  no  factual  

basis  at  all.   While  discussing  whether  the  

distribution of the pamphlets was with the consent  

of  the  appellant,  the  High  Court  mentions  the  

testimony of PW-12 to PW-21.  All these witnesses  

were produced by the respondent No. 1 during the  

course of the election trial.  Many of them admitted  

that  they  were  affiliated  to  the  respondent  No.  1  

and/or his party, whereas rest of them have been  

found  to  be  interested  witnesses.   There  is  

absolutely nothing on the record to show that the  

appellant had indulged in the act of distribution of  

pamphlets and thus committed a corrupt practice.  

The  case  of  the  respondent  No.  1  in  the  election  

petition  was  that  on  May  8,  2001  seven  UDF  

workers were arrested by the police in connection  

with the distribution of pamphlets and the appellant  

33

had personally  got  them released  from the  Police  

Station and after coming out from the police station,  

the appellant himself had distributed the pamphlets  

and  directed  others  to  distribute  the  same.   As  

noticed earlier, the respondent No. 1 had examined  

PW-7, Additional S.I., and produced Ext. X5, which  

is GD entry to substantiate this case.  Apart from  

the evidence of PW-12 to PW-21, who are his own  

party  workers  and/or  interested  witnesses,  the  

official evidence has completely disproved the case  

of the respondent No. 1, because PW-7 specifically  

stated  that  the  seven  UDF  workers  were  not  

arrested and so the appellant had no occasion to get  

them released.  The GD entry also states that the  

ASI  had  gone  to  the  spot  and  removed  the  UDF  

workers from the scene to avoid breach of law and  

order and later on they were let off on the advice of  

the  superior  officers.   Once  it  is  held  that  the  

respondent No. 1 has failed to prove that seven UDF  

workers, who were distributing the pamphlets, were  

34

arrested and lodged in the police station and that  

the appellant had gone to the police station and got  

the seven workers released from the police station,  

the further case of the respondent No. 1, that after  

coming  out  of  the  police  station,  the  appellant  

himself  had  distributed  the  offending  pamphlets  

and  directed  others  to  distribute  the  pamphlets,  

becomes  highly  doubtful  and  improbable.   This  

Court finds that the High Court has placed reliance  

on  unreliable  and  scanty  evidence  to  find  the  

appellant guilty of corrupt practice and, therefore,  

the finding that the appellant is disqualified under  

Section 99 of the Act is completely unsustainable.   

16. The second question, which needs to be considered,  

is  whether  it  is  satisfactorily  proved  by  the  

respondent  No.  1  that  whether  the  pamphlets  in  

question were distributed by the workers of UDF.

17. This  Court  further  finds  that  the High Court  has  

recorded a finding in paragraph 39 of the impugned  

35

judgment  that  the  official  documents,  which have  

come from proper custody,  corroborate  the ocular  

version of the witnesses about distribution of Ext.  

X4 on May 8, 2001 and May 9, 2001.  On scrutiny  

of  the  whole  evidence  on  record  this  Court  finds  

that the High Court has not pointed out as to which  

were the official documents referred to in paragraph  

39 of the impugned judgment.  The learned counsel  

for the respondent No. 1 also could not point out to  

this Court any document which can be termed as  

official document, which, in turn, corroborated the  

ocular  version  of  the  witnesses  regarding  

distribution of Ext. X4 on May 8, 2001 and May 9,  

2001.  This Court finds that the learned Judge has  

referred  to  Ext.  X5,  which  is  General  Diary  

maintained  in  the  Police  Station  read  with  the  

testimony of Additional S.I. of Police at Thiruvalla,  

Mr.  V.R.  Rajendran  Nair  to  conclude  that  official  

document corroborated the version of the witnesses  

that distribution of pamphlets,  copy of which was  

36

produced as Ext. X4, had taken place on May 8 and  

May 9, 2001.  Ext. X5, which is referred to by the  

learned  Judge,  is  to  be  found  on  page  130  of  

Volume V of the appeal.  It is General Diary entry of  

the Police Station.  The Additional S.I.  PW-7, who  

made  the  GD  entry,  has  in  terms  disproved  the  

arrest  of  seven  UDF workers,  who  were  allegedly  

distributing the pamphlets, and the involvement of  

the  appellant  in  getting  them  released  from  the  

Police Station as alleged by the respondent No. 1.  

Therefore, this Court fails to understand as to how  

General  Diary entry of  the Police Station and the  

testimony of Additional S.I. PW-7 proved that seven  

UDF  workers  were  distributing  the  offending  

pamphlets and that the appellant  was involved in  

getting them released from the Police Station.

18. Further, while concluding that the pamphlets were  

distributed by the UDF workers on May 8, 2001 and  

May 9, 2001, what is observed by the learned Judge  

37

is  that  the  benefit  of  the  distribution would have  

enured  to  none  other  than  the  appellant  and,  

therefore, inference can be drawn that UDF workers  

had distributed the pamphlets with the consent of  

the  appellant.   This  Court  finds  that  such  a  

conclusion,  based on unwarranted inferences and  

surmises, is recorded only because High Court had  

misdirected  itself  on  the  question  of  standard  of  

proof  required to  be  adopted to  resolve  a dispute  

raised  under  Section 123 of  the  Act.   The  theory  

that the benefit  of  distribution could have enured  

only  to  the  appellant  is  misplaced in  the  light  of  

principles laid down in  D. Venkata Reddy vs.  R.  

Sultan  and  others (1976)  2  SCC  455.   It  is  

relevant to notice that in his written statement the  

appellant had denied that 77 persons named in the  

election petition, who had allegedly distributed the  

pamphlets, were UDF workers.  However, the High  

Court found that the appellant had in his testimony  

admitted  that  some  of  them  were  in  fact  UDF  

38

workers.   Therefore,  the  High  Court  proceeded  

further to record a finding that “this must go a long  

way when the  court  considers  the  question as to  

who had distributed copies of Ext. X4”.  Although  

from the record it is evident that out of 77 persons  

named in  the  election petition,  the  appellant  had  

admitted that a few were UDF workers but from this  

it  would be unwise to jump on to the  conclusion  

and that  too on inferences that  the UDF workers  

had distributed the pamphlets.  The High Court in  

the impugned judgment  could not  even identify  a  

single  UDF  worker,  who,  according  to  it,  had  

distributed the pamphlets and has simply held that  

there  is  evidence  to  show that  UDF workers  had  

distributed the pamphlets.   The testimonies of  77  

persons  named  in  the  election  petition  could  not  

have  been accepted because  their  testimonies  are  

self-serving  and  interested  one.   The  finding  that  

DW-14  Mustafa  Kutty  admitted  during  his  cross-

examination that UDF workers had distributed the  

39

pamphlets is nothing else but the result of complete  

misreading  of  the  testimony  of  the  said  witness.  

The said witness does not make any such admission  

as is referred to by the High Court in the impugned  

judgment.   On the  contrary the  said witness had  

stated that he had distributed only the pamphlets  

issued  from  the  Election  Committee  Office  and  

nowhere had he stated that the Election Committee  

Office of the appellant had issued the pamphlet’s,  

copy of which was produced at Ext. X4, and that he  

had distributed those pamphlets.   

19. The discussion made above makes it  evident that  

the respondent No. 1 has failed to prove that UDF  

workers had distributed the offending pamphlets on  

May 8 and May 9, 2001.  The finding of the High  

Court  on  this  score  being  against  the  weight  of  

evidence is hereby set aside.

20. In the alternative,  it  was argued on behalf  of  the  

appellant that even if the distribution of pamphlets  

40

by  UDF  workers  was  held  to  be  proved,  no  

satisfactory  evidence  was  adduced  by  the  

respondent  No.  1 to  establish that  distribution of  

the  pamphlets  by  the  UDF workers  was with  the  

consent  of  the  appellant  and,  therefore,  the  

judgment impugned is liable to be set aside.

21. It  is  well-settled  that  to  prove  that  the  corrupt  

practice  of  a  third  person  is  attributable  to  a  

candidate under Section 123 of the Act, it must be  

shown  that  the  candidate  consented  to  the  

commission  of  such  act.   The  finding  that  the  

appellant  knew  about  such  distribution  because  

benefit of such distribution could only enure to him,  

but  he  kept  silent  despite  knowledge  of  such  

distribution,  is  nothing  else  but  an  unwarranted  

inference  and  surmise  on  the  part  of  the  court.  

Similarly, the finding that seven UDF workers, who  

were allegedly arrested on May 8, 2001 by the police  

for distribution of the pamphlets, were released at  

41

the behest of the appellant who went to the Police  

Station  and,  therefore,  there  was  consent  of  the  

appellant is quite contrary to the testimonies of the  

witnesses.  It may be mentioned that this finding is  

arrived at on the basis of (i)  the averments in the  

election petition which have no basis to justify the  

finding, (ii) the testimonies of PW-12 to PW-21, but  

scrutiny of their evidence reveals that none of the  

said witnesses had witnessed the appellant going to  

the police station and securing release of the seven  

workers and (iii)  entries in the General Diary Ext.  

X5 which contains no details and only records what  

the Sub-Inspector heard from other people over the  

telephone  about  distribution  of  some  printed  

notices.   Nothing  is  mentioned  in  the  said  entry  

about  involvement  of  any  of  UDF workers  or  the  

appellant  and,  therefore,  the  finding  that  UDF  

workers  had  distributed  the  pamphlets  with  the  

consent of the appellant being against evidence on  

record is  liable  to  be  set  aside  and is  hereby set  

42

aside.   

22. The  High  Court’s  understanding  of  law  that  the  

appellant would be liable for penalty under Section  

99 of the Act for the acts of his agents without the  

conviction of such agents is completely erroneous in  

law.  It is relevant to notice that Mr. Jaya Varma  

was  validly  appointed  as  election  agent  of  the  

appellant.  The High Court, on appreciation of the  

evidence adduced, has recorded a clear finding that  

no reliable evidence was led by the respondent No. 1  

to  establish  that  Mr.  Jaya  Varma  himself  had  

distributed  the  offending  pamphlets  or  that  UDF  

workers  had  distributed  the  pamphlets  with  the  

consent of Mr. Jaya Varma.  The conclusion of the  

High  Court  that  distributer  of  objectionable  

pamphlets Ext. X4 need not be named nor a finding  

with  name  of  the  distribution  be  recorded  under  

Section  99(1)(a)(ii)  of  the  Act,  to  say  the  least,  is  

contrary  to  the  ratio  laid  down  by  this  Court  in  

43

Chandrakanta Goyal vs. Sohan Singh Jodh Singh  

Kohli (1996) 1 SCC 378, wherein the principle is  

laid down that when a candidate is held to be guilty  

of corrupt practice vicariously,  for an act done by  

any person other than his agent with his consent,  

then the  ultimate  finding  to  this  effect  has to  be  

recorded  and  that  too  only  after  notice  under  

Section 99 to that other person and an inquiry must  

be held as contemplated therein naming the other  

person  simultaneously  for  commission  of  such  

corrupt practice.  There is no manner of doubt that  

making of  an order under Section 98 against  the  

appellant,  who  is  returned  candidate,  without  

complying  with  the  requirements  of  Section  99  

when the corrupt practice against the appellant is  

held to be proved vicariously for the act of another  

person,  by  itself  vitiates  the  impugned  judgment.  

Further, in view of the principles laid down in the  

above mentioned reported decision, it is also clear  

that the court has no option in this matter and it is  

44

incumbent  to  name  such  a  person  in  the  final  

verdict given in the election petition under Section  

98  of  the  Act  after  making  due  compliance  of  

Section 99 of the Act.  The High Court has not only  

acted contrary to law and ignored the mandate of  

Section 99 of the Act but taken the view that there  

was an option available to the Court to ignore the  

requirement  of  Section  99  to  give  notice  to  the  

distributors of the pamphlets and to name them as  

persons guilty of the corrupt practice even though  

the distribution of pamphlets by the UDF workers is  

made  the  foundation  of  the  corrupt  practice,  

allegedly committed by the appellant.  The judgment  

is obviously vitiated since no concluded finding on  

this question is recorded against the UDF workers,  

who had allegedly distributed Ext. X4, choosing to  

ignore the requirement of Section 99 of the Act.  The  

approach of the learned Judge of the High Court in  

finding  the  appellant  guilty  for  distribution  of  

pamphlets  vicariously  in  the  sense  that  UDF  

45

workers  had  distributed  the  pamphlets  with  the  

consent of the appellant, after holding that there is  

no  sufficient  data  to  conclude  that  those  UDF  

workers who had distributed Ext. X4 pamphlets had  

the requisite contumacious mind, is contrary to law  

and  difficult  to  uphold.   If  the  workers  had  no  

contumacious  mind,  the  appellant  hardly  could  

have been fastened with any vicarious liability for  

the so called alleged corrupt practice.

23. The net result of the above discussion is that the  

finding,  recorded  by  the  High  Court  that  the  

pamphlets were distributed on May 8 and May 9,  

2001, is not only perverse but contrary to the facts  

proved and, therefore, the same is liable to be set  

aside.

24. Another alternative plea, which was raised on behalf  

of the appellant, was that even if the court were to  

hold that it was proved by the respondent No. 1 that  

the  appellant  and/or  the  UDF  workers  with  the  

46

consent  of  the  appellant  had  distributed  the  

pamphlets in question, there was no publication of  

the same within the meaning of Section 123(4)  of  

the  Act  as  the  contents  of  Ext.  X4  were  already  

previously  published  in  “Crime”  Magazine  having  

circulation in the constituency concerned.

25. The High Court further committed error in holding  

that the distribution of the pamphlets amounted to  

publication for the purposes of Section 123 of the  

Act.  Section 123(4) of the Act provides as follows: -

“Corrupt  Practices.  –  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  candidate’s  election.”

47

It  is an admitted fact that the objectionable pamphlets  

contained statements,  which were previously published  

in the three editions of the “Crime” magazine which has  

circulation in the Constituency concerned.  Though the  

High Court holds that the pamphlet additionally contains  

a  heading  and  a  caption,  ultimately,  the  appellant  is  

found  guilty  for  republishing  material  from  Crime  

magazine relating to misappropriation of the funds from  

one  Vivekananda  College.   The  question  is  whether  

republishing material from the “Crime” Magazine, which  

was already distributed earlier, can be regarded as an act  

of  publication  of  statements  of  fact  relating  to  the  

personal character and/or conduct of the respondent No.  

1, within the meaning of Section 123(4) of the Act.  The  

word “publication” occurring in Section 123(4) of the Act,  

has not been defined under the Act.  Therefore, it would  

be  relevant  to  refer  to  the  meaning  of  the  word  

“publication” as given in standard dictionary.  The word  

“publication”  has been defined in Black’s  Dictionary of  

Law (6th Edition) as follows: -

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“to make public; to make known to people in  general;  to  bring  before  public;  to  exhibit;  display,  disclose  or  reveal………the  act  of  publishing  anything;  offering  it  to  public  notice,  or  rendering  it  accessible  to  public  scrutiny.  An advising of the public; a making  known of something to them for a purpose.  It  implies the means of conveying knowledge or  notice.”

A  similar  meaning  has  been  ascribed  to  the  word  

“publication” in State of M.P. and another etc. etc.  vs.  

Ram Raghubir  Prasad  Agarwal  and  others (1979)  4  

SCC 686.  The first and foremost ingredient of publishing  

is  making information known to the public  in general.  

Publication  is  an  act  by  which  some  information  is  

exhibited,  displayed,  disclosed  or  revealed  before  the  

public.   By  publication,  the  necessary  information  is  

made  accessible  for  public  scrutiny.   It  is  an  act  of  

making known of something to the public in general for a  

purpose.  In the present case, this Court finds that the  

information  as  contained  in  the  pamphlet  about  the  

respondent  No.  1 having misappropriated the funds of  

the  school  was  already  exhibited,  displayed,  disclosed,  

49

made  known,  revealed  and  brought  to  the  notice  of  

general  public  residing  within  the  constituency  when  

“Crime”  magazine  was  previously  published  and  

circulated  in  the  constituency.   The  reproduction  and  

distribution of the same information within the space of a  

few  months  cannot  amount  to  publication  for  the  

purposes  of  Section  123  of  the  Act.   It  must  be  

remembered that a trial under Section 123 of the Act is a  

criminal trial.  Conviction under the provisions of Section  

123,  may  lead  to  disqualification  of  the  candidate  

concerned for a period of six years under Section 99 of  

the  Act,  which  is  a  serious  matter.   Therefore,  the  

provisions  will  have  to  be  construed  strictly.   So  

construed, there is no manner of doubt that reproduction  

and distribution of the reproduced information within the  

space of few months cannot be regarded as publication of  

the statements of fact relating to the personal character  

and/or  conduct  of  the  respondent  No.  1  within  the  

meaning  of  Section  123  of  the  Act.   Instead,  the  

impugned judgment holds that as in law of defamation,  

50

the republication of statements of fact also amounts to  

publication for the purpose of Section 123(4) of the Act.  

This Court is of the firm opinion that there is no warrant  

for  such  a  conclusion  and  it  is  wrong  to  say  that  

republication  as  in  defamation  law  amounts  to  

publication  so  far  as  Section  123(4)  of  the  Act  is  

concerned.

26. Another  alternative  plea  raised  on  behalf  of  the  

appellant for consideration of  this Court was even if  it  

was assumed that the respondent No. 1 had proved that  

the appellant and/or UDF workers with the consent of  

the  appellant  had  distributed  the  pamphlets  and  

distribution  of  the  pamphlets  amounted  to  publication  

notwithstanding  the  fact  that  the  contents  of  the  

pamphlets  were  previously  published  in  “Crime”  

Magazine,  it  was  contended  that  evidence  adduced  

establishes  that  the  appellant  had  believed  the  

imputations made against the respondent No. 1 in Ext.  

X4  to  be  true,  whereas  it  was  not  established  by  the  

51

respondent No. 1 that the imputations made in Ext. X4  

were  believed  to  be  untrue  by  the  appellant  and,  

therefore, no corrupt practice as alleged was committed  

by the appellant.

27. The High Court has further erred in holding that the  

appellant believed the published material to be false at  

the  time  of  its  distribution.   One  of  the  important  

ingredients  in  proving  the  offence  of  corrupt  practice  

under  Section  123(4)  of  the  Act  is  that  it  has  to  be  

established  that  the  returned  candidate  believed  the  

statement  that  was  published,  to  be  an  untrue  

statement.   It  is  significant  that  unlike  the  law  of  

defamation, where truth is a defence, Section 123(4) of  

the Act not only recognizes truth as a defence by using  

the words “publication of any statement of fact ….. which  

is  false…..”  but  additionally  protects  the  maker  of  the  

statement by stipulating that the maker must believe the  

statement to be false.  This Court has held that the onus  

of proving that the maker believed the statement to be  

52

false  rests  with  the  election  petitioner  (see  Dr.  Jagjit  

Singh vs.  Giani Kartar Singh and others  AIR 1966 SC  

773 – paragraph 21).  The High Court does not explain  

how and by way of what evidence led by the respondent  

No. 1 it stands proved that the appellant believed that the  

contents of the pamphlets were false.  On the contrary,  

the  defence  of  the  appellant  that  he  believed  the  

statements made in Ext. X4 to be true because of their  

prior publication in “Crime” magazine and failure of the  

respondent No. 1 to initiate any legal action against the  

Crime  magazine,  if  tested  on  preponderance  of  

probability stands proved.  However, this defence of the  

appellant is discarded by the High Court by making the  

following observations: -

“71. There are many in this country who may  believe  that  the  printed  word  is  truth.   But  that  certainly  is  not  the  yardstick  or  touch  stone  on  which  the  contumacious  state  of  mind of the maker of a statement of fact will be  assessed.  Merely because the Crime Magazine  is  one  having  circulation,  popularity  and  notoriety,  D.W.  53  (the  appellant)  cannot  assert  that  he  believed  the  printed  words  in  Exts. R6, R7 and R8 to be the gospel truth.  If  

53

such  an  approach  were  permitted,  section  123(4) of the Act can be violated with impunity  if some yellow journalist publishes unfounded  allegations and the offender-facing proceedings  for  defamation  or  for  corrupt  practice  under  Section 123(4) of the Act, repeats the allegation  with  impunity  and  claims  immunity  from  consequences  of  his  conduct.   That  cannot  certainly be the law.  That cannot be approach  that this court will adopt.  The 1st respondent  who  has  had  a  fairly  long  political  career  cannot contend that he simply swallowed the  publications made earlier in Exts. R6, R7 and  R8 and hence did not believe the statement of  facts made in Ext. X4 to be false or he did not  believe them to be not true.”

“78. …..the publication of the same statement  of  fact  earlier  in  the  Crime Magazine  cannot  justify the 1st respondent.  Even the fact that  some other gullible members of the public who  read the relevant Crime Magazines and came  to know of these allegations believed or did not  doubt  the  truth  of  such  statement  of  fact  cannot help the 1st respondent at all.  At worst,  that can only prove the pregnant possibilities  of  such  false  assertion  of  fact.   Except  the  earlier  publication  of  the  same  statement  of  fact  in the Crime Magazine i.e.  Exts.  R6, R7  and R8, there is not a semblance of scintilla or  data which can persuade this Court to assume  that  the  maker  of  the  said  objectionable  statement or any other had reasons to believe  the said statement of fact to be true or did not  believe it to be false.”

54

It is not clear from the extracts quoted above as to how  

the High Court has concluded that the appellant could  

not  have  relied  upon the  publications  of  the  offending  

information  in  “Crime”  magazine.   The  reference  to  

“Crime” magazine as a yellow journal is also not proper.  

The  term  “yellow  journal”  has  its  origins  in  American  

slang.  It was initially used by some people to describe a  

newspaper  called  the  “New  York  World”  in  the  early  

1900s  because  the  paper  used  to  print  sensational  

stories and had a cartoon strip called the “yellow kid”  

which  was  printed  with  yellow  ink.   Black’s  Law  

Dictionary  (6th Edition)  defines  “yellow  journalism”  as  

follows: -

“type of journalism which distorts and exploits  the  news  by  sensationalism  in  order  to  sell  copies of the newspapers or magazines.”

The  High  Court  has  summarily  described  “Crime”  

Magazine  to  be  a  yellow  journal.   Whether  “Crime”  

magazine is a yellow journal is a matter of opinion and  

55

not of fact.  It is impossible to conclude that an opinion of  

this sort is a judicially noticeable fact for the purposes of  

Section  56  or  Section  57  of  the  Evidence  Act,  1872.  

There  is  nothing  in  the  impugned  judgment  which  

indicates  that  any  evidence  was  led,  much  less  

considered as to whether “Crime” magazine is a yellow  

journal and hence magazine could not have been relied  

upon  by  the  appellant  in  forming  a  belief  that  the  

contents  of  the  magazine  were  not  untrue.   Further,  

between the time of publication of offending material in  

Crime  magazine  and  the  alleged  distribution  of  the  

pamphlet,  the  respondent  No.  1  did  not  pursue  any  

action in law by way of criminal complaint or suit against  

the publishers of the Crime Magazine for defamation.  It  

is only after the institution of the election petition that  

such  a  complaint  was  filed,  presumably  as  an  after  

thought.  Even in the said complaint for defamation, filed  

by respondent No. 1 against the printer and publisher of  

crime, the third imputation which is found as offending  

by the High Court was not included.  This would show  

56

that  the  respondent  No.  1 himself  considered the  said  

imputation as not defamatory or at least not capable of  

being  proved  to  be  false.   The  appellant,  in  these  

circumstances,  not  only  had  an  explanation  but  a  

satisfactory  explanation  as  to  why  he  believed  the  

objectionable statements in the pamphlet Ext. X4 to be  

true.  There is no manner of doubt that the High Court,  

therefore, erred in holding otherwise, despite the fact that  

the  respondent  No.  1  had  not  discharged  initial  onus  

resting  on  him.   In  view  of  the  fundamental  mistake  

committed by the High Court in the matter of standard of  

proof  while  resolving  dispute  of  corrupt  practice  and  

faulty  appreciation  of  evidence  by  applying  wrong  

standard of proof as also the fact that the election of the  

appellant is set aside on the basis of broad probabilities  

and presumptions, without even referring to any of the  

evidence adduced by the parties, the impugned judgment  

is liable to be set aside.

57

28. For the foregoing reasons the appeal succeeds.  The  

judgment dated August 8, 2005, rendered by the learned  

single Judge of the High Court of Kerala at Ernakulam in  

Election Petition No. 6 of 2001 by which the election of  

the appellant as a member of Kerala Legislative Assembly  

No. 106 Kallooppara Constituency is declared to be void  

on the ground that he is guilty of corrupt practice under  

Section 123(4) of the Representation of People Act, 1951,  

is hereby set aside.  There shall be no order as to costs.

                                                         .............................. .......J.

                     [J.M. Panchal]

.....................................J. [Gyan Sudha Misra]

New Delhi; December 01, 2010.

58