REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 3611  OF 2008

M. J. Jacob ………..Appellant

Versus

A. Narayanan & Ors. ..……Respondents

WITH Civil Appeal Nos. 5774/2008, 5783/2008

J U D G M E N T

MARKANDEY KATJU, J.

1. These  appeals  have been filed  under  Section 116  A of  the  Representation of

People Act, 1951 (in short `the Act’), against the final judgment and order dated 5.5.2008

passed by the High Court of Kerala in Election Petition No. 2/2006, declaring the election of

the appellant (M.J. Jacob) from no.79 Piravom Legislative Assembly Constituency to be a

member of Kerala Legislative Assembly, the polling for which was held on 29.4.2006, as

void.  The High Court has also made an order recording the names of O.N. Vijayan (election

agent of the returned candidate) and two others Jinson V. Paul and P.G. Manu as persons

who have been proved at the trial to have been guilty of corrupt practice under Section 123

(4) of the Act of preparing, publishing and distributing the pamphlet (Ex.P1).  C.A. No.3611

of 2008 is by the returned candidate.  C.A. No.5183 of 2008 is by his election agent and

C.A. No.5774 of 2008 is filed by the persons named under Section 99(1)(a)(ii) of the Act.   

2. Heard Shri Fali Nariman, learned Senior Advocate assisted by Ms. Malini Poduval

and  Vishnu  B.  Saharia  for  the  appellants,  and  Shri  K.K.  Venugopal,  learned  Senior

Advocate assisted by Ms.  Bina Madhavan for the respondents.   The impugned judgment

was passed on an Election Petition challenging the election of the appellant M.J. Jacob as an

MLA for the Kerala Legislative Assembly in the polling held on 29.4.2006.  The High Court

by the impugned judgment has declared the said election to be void on the ground that the

appellant was  guilty of corrupt practice  under Section 123 (4) of the Representation of

People Act, 1951 (in short “the Act”).

3. The Election Petition in question was filed by a voter in the election and not a

candidate.   

4. The  ground  on  which  the  Election  Petition  was  allowed  was  that  a  corrupt

practice  was  committed  by  the  publication  of  the  pamphlet   Ext.  P1  and  that  such  a

publication has been made by the appellant’s election agent, one Shri O.N. Vijayan (RW1),

and by two other persons (RW2 and RW3) with the consent of the appellant or his election

agent, that the statement of facts in  Ext. P1 was made in relation to the personal character

or conduct of PW-30 Shri T.M. Jacob, who was a candidate in the said election,  which is

false and which the publisher of  Ext. P1 either believes to be false or does not believe  to be

true, and that  such statement was reasonably calculated to prejudice the prospects of Shri

T.M Jacob PW 30 in the election. Hence it was prayed that the election be declared to be

void under Section 100 (1) (b) of the Act r/w Section 123 (4) thereof. Though in the election

petition, it was contended that several statements in Ext.P1 amounted to false statements in

relation to the personal character and conduct of Shri T.M. Jacob, in this appeal, we are

concerned with only one allegation, viz., question No.2 posed to Shri T.M. Jacob in Ext.P1.

5. Section 123(4) of the Representation of the People Act states that the following is

one of the corrupt practices :  

“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.”   

6. The entire pamphlet  Ext. P-1 has been quoted in the impugned judgment, but it is

not necessary to repeat the same here except the relevant allegation in the said pamphlet

which is in paragraph 2 which states :-

CHARIOT RIDE OF DEVELOPMENT TRICKERY WITH THE RIDDLES OF A QUARTER CENTURY.

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“2. A member of your personal staff who had attempted to

murder  Thirumaradi  Congress  Mandalam president  P.J.  Baby, Joseph Babu and K.P. Jacob at Onakoor is still continuing as an absconder.  Can you give an answer to the ordinary Congressmen in this regard?”

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RECOGNIZE  THE  SHAMELESS  HYPOCRITE   OF DEVELOPMENT  TRICKERY  REACT  AGAINST  THE DECEIVER OF PEOPLE.      

7. It is on the basis of this statement in the said pamphlet Ext. P1 that the election of

the appellant has been declared void by the High Court on the ground that it amounts to a

corrupt practice. The High Court has held:-     

“The  foregoing discussions  and  reasons  lead  to  the  following conclusions:

i. Question  no.2  in  page  3  of  Ext.P1  amounts  to  a  statement  of  facts affecting the personal character and conduct of Shri T.M. Jacob.  The said statement in Ext.P1 is false.

ii. The  tail-piece  of  Ext.P1,  namely,  the  exhortation  to  `recognize  the shameless  hypocrite  of  development  trickery……….react  against  the deceiver of the people…….’ amounts to a statement of facts affecting the personal character and conduct of Shri T.M. Jacob in the setting in which it is placed, referable to Question no.2 in page 3 of Ext.P1.

iii. The publication of Ext.P1 containing the aforesaid statements has been made by the respondent, he having owned up the responsibility of the said  publication  by  having  its  expenditure  met  by  making  payment through  his  election  agent  and  showing  such  expenditure  as  an expenditure incurred by him in the return filed under Section 77 of the Act and by RW1, the election agent of the respondent and RW2 and RW3.

iv. Publishers  of  Ext.P1,  namely,  the  respondent  and  RW1,  his  election agent and those who were involved in the preparation, publication and distribution of Ext.P1, namely, RWs 2 and 3, had no reason to believe that the aforesaid statements are true and had every reason to believe

that they are false.

v. The aforesaid statements made in Ext.P1, were reasonably calculated to prejudice the prospects of Shri T.M. Jacob in the election.     

8. We fail to see how the aforesaid statement in the said pamphlet amounts to a

corrupt practice.  There are two allegations in the said paragraph 2.  Firstly, that a member

of the personal staff of Shri T.M. Jacob had attempted to murder some persons.  According

to the evidence, this statement was regarding one Shri Scaria who was on the personal staff

of Shri T.M. Jacob when he was a Minister.  Admittedly, there is no dispute that the said

Shri Scaria was an accused in the aforesaid murder case and in fact a charge sheet had been

filed by the Police.  The second part of the said statement in paragraph (2) is that Shri Scaria

is absconding.  There is a  serious dispute between the parties whether this statement is

correct or not, but even if it is incorrect we fail to understand how this would make the said

allegation a corrupt practice for the purposes of the Act.  

9. Shri K.K Venugopal, learned counsel for the respondent submitted that in fact this

statement that Shri Scaria was an absconder in the said criminal case of attempt to murder

meant that Shri T.M Jacob was harbouring Shri Scaria when the latter was absconding.  He

referred to the evidence of several witnesses to support his contention.  We do not agree.

There is no mention in paragraph (2) of the pamphlet that Shri T.M. Jacob was harbouring

Shri Scaria.   

10. Even assuming that an inference can be drawn from the allegation that Shri T.M.

Jacob was harbouring Shri Scaria, that is only one possible inference.  There may be any

number of other inferences also.  It is well settled that in an Election Petition for proving an

allegation of corrupt practice the standard of proof is like that in a criminal case.  In other

words,  the  allegation  must  be  proved  beyond reasonable  doubt,  and  if  two  views  are

possible then the benefit of doubt should go to the elected candidate vide Manmohan Kalia

vs. Yash & Ors. (1984) 3 SCC 499 vide paragraph 7 in which it is stated :-

“It  is  now  well  settled  by  several  authorities  of  this Court  that  an allegation of corrupt  practice  must be  proved as strictly as a criminal charge and the principle of preponderance of probabilities would not apply to corrupt practices  envisaged by the Act because if this test is not applied a very serious prejudice would be caused to the elected candidate who may be disqualified for a period of six years from fighting any election, which will adversely affect the electoral process.”

11. In Razik Ram vs.  Jaswant Singh Chouhan (1975) 4 SCC 769 vide paragraphs

15 and 16 it was observed:-

“Before considering as to whether the charges of corrupt practice were  established,  it  is  important  to  remember  the  standard  of  proof required in such cases. It is well settled that a charge of corrupt practice is substantially akin to a criminal charge. The commission of a corrupt practice  entails  serious  penal  consequences.  It  not  only  vitiates  the election of the candidate concerned but also disqualifies him from taking part  in  elections  for  a  considerably  long time.  Thus,  the  trial  of  an election  petition  being  in  the  nature  of  an  accusation,  bearing  the indelible  stamp of  quasi-criminal action,  the  standard  of  proof is  the same as in a criminal trial. Just as in a criminal case, so in an election petition, the respondent against whom the charge of corrupt practice is levelled, is presumed to be innocent unless proved guilty. A grave and heavy onus therefore, rests on the accuser to establish each and every ingredient  of  the  charge  by  clear,  unequivocal  and  unimpeachable evidence beyond reasonable doubt. It is true that there is no difference between the general rules of evidence in civil and criminal cases, and the definition of “proved” in Section 3 of the Evidence Act does not draw a distinction between civil and criminal cases.  Nor does  this  definition

insist  on  perfect  proof  because  absolute  certainty  amounting  to demonstration is rarely to be had in the affairs of life. Nevertheless, the standard of measuring proof prescribed by the definition, is that  of a person of prudence and practical good sense. “Proof” means the effect of the evidence adduced in the case. Judged by the standard of a prudent man, in the light of the nature of onus cast by law, the probative effect of evidence in civil and criminal proceedings is  markedly different.  The same evidence which may be sufficient to regard a fact as proved in a civil suit, may be considered insufficient for a conviction in a criminal action. While in the former, a mere preponderance of probability may constitute an adequate basis of decision, in the latter a far higher degree of assurance and judicial certitude is requisite for a conviction. The same is largely true about proof of a charge of corrupt practice, which cannot be established by mere balance of probabilities, and, if, after giving due consideration and effect to the totality of the evidence and circumstances of the case, the mind of the Court is left rocking with reasonable doubt — not being the doubt of a timid, fickle or vacillating mind — as to the veracity of the charge, it must hold the same as not proved.

We  have  reiterated  the  above  principles  not  as  a  ceremonial refrain  of  what  has  been  said  by  this  Court  again and  again  but  to emphasise their importance as a guide in the matter. A court embarking upon an appreciation of evidence, without this rudder and compass, is apt to find itself at sea, mistaking every flotsam for shore, suspicion for proof and illusion for reality. Since these principles were not constantly kept in mind, the approach of the High Court in this case to the issues involved, and the treatment of evidence, appears to have gone awry. It is therefore,  necessary  to  reappraise  the  evidence  from the  standpoint indicated above.”

12. In Surinder Singh vs. Hardial Singh (1985) 1 SCC 91 vide paragraph 23 it was

observed:-

“It  is  thus  clear  beyond any doubt  that  for  over  20  years  the position has been uniformly equated  with criminal charges  and proof thereof would be not preponderance of probabilities as in civil action but proof beyond reasonable doubt as in criminal trials…”

13.       The above  decision has  been followed in  Mercykutty Amma vs.  Kadavoor

Sivadasan (2004) 2 SCC 217 vide paragraph 27 where it was observed:-

“Allegations of corrupt practices are quasi-criminal charges and

the proof that would be required in the support thereof would be as in a criminal charge. The charges of corrupt practices are to be equated with criminal  charges  and  proof  thereof  would  be  not  preponderance  of probabilities as in civil action but proof beyond reasonable doubt as in a criminal trial.”

14.         A basic principle in the law relating to Elections and Election Petitions is that the

mandate of the people as expressed in the election results should ordinarily be respected by

courts, and the election of a successful candidate should not be lightly set aside vide R.P

Moidutty vs. P. T. Kunj Muhammed (2000) 1 SCC 481 vide  paragraph 14 where it was

observed:-  

“It is basic to the law of elections and election petitions that in a democracy, the mandate of the people as expressed at the hustings must prevail and be respected by the courts and that is why the election of a successful candidate is not to be set aside lightly. A heavy onus lies on the  election  petitioner  seeking  setting  aside  of  the  election  of  a successful candidate to make out a clear case for such relief both in the pleadings and at the trial. The mandate of the people is one as has been truly, freely and purely expressed. The electoral process in a democracy such as ours is too sacrosanct to be permitted to be polluted by corrupt practices.  If  the  court  arrives  at  a  finding of  commission of  corrupt practice by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent then the election of the returned candidate shall be declared to be void. The underlying principle is that corrupt practice having been committed, the result of the election does not echo the true voice of the people. As the consequences flowing from the proof of corrupt practice at the election are serious, the onus of establishing commission of corrupt practice lies heavily on the person who alleges the same. The onus of proof is not discharged merely on preponderance  of  probabilities;  the  standard  of proof required is akin to that of proving a criminal or a quasi-criminal charge. Clear-cut evidence,  wholly credible and reliable,  is needed to prove beyond doubt the charge of corrupt practice.”

15. The  same  view has  been  taken  by  this  Court  in   Mahanth Shreo Nath vs.

Choudhary Ranbir Singh 1970 (3) SCC 647 at Para 4,  Manphul Singh vs.  Surinder

Singh 1973 (2) SCC 599 at Para 13, Rahim Khan vs. khurshid Ahmed and Others 1974

(2) SCC 660 at Para 9, Bir Chandra Barman vs. Shri Anil Sarkar and Others 1976 (3)

SCC 88 Para 5,  Lakshi Raman Acharya vs. Chandan Singh and Others 1977 (1) SCC

423 at Para 2,  Amolakachand Chhazed Vs.  Bhagavandas Arya and Another  1977 (3)

SCC 566 at Para 13.

16. It  may be noted that in Exhibit P-2 there is no statement that Shri T.M Jacob

harboured any of the accused persons.  The allegation about the attempt to murder some

persons is not against Shri T.M Jacob but against Shri Scaria.  Hence, we fail to understand

how the allegation in paragraph 2 of Ext.P1 affects the personal character or conduct of Shri

T.M. Jacob.  In our opinion, paragraph 2 does not convey to the electorate that Shri T.M.

Jacob harboured a member of his personal staff.  Paragraph 2 only speaks about absconding

of a member of the personal staff of Shri T. M. Jacob and not about the harbouring of a

personal staff by Shri T. M. Jacob.  

17. Shri K.K. Venugopal, learned senior counsel appearing for the respondents, relied

upon the decisions of this Court in Mohan Singh vs. Bhanwarlal 1964 (5) SCR 12, T.K.

Gangi Reddy vs. M. C. Anjaneya Reddy  1960 (22) ELR 261,  Jagjit Singh vs. Giani

Kartar Singh  AIR 1966 SC 773,  Inder Lal vs. Lal Singh  1962 Supp (3) SCR 114,

Gadakh Yashwantrao Kankarrao vs. Balasaheb Vikhe Patil  1994 (1) SCC 682. These

are  cases  where  this  Court  held that  pamphlets/leaflets  published and circulated by the

elected candidate (or his agent or by other persons with the consent of the candidate or his

election agent) containing false statements as to the personal character and conduct of a

defeated  candidate,  reasonably  calculated  to  prejudice  the  prospects  of  that  candidate,

constituted a corrupt practice under Section 123(4) of the Act and consequently declared the

election of the elected candidate as void.

18.  In Mohan Singh (supra), this Court observed :   

“But in considering whether a publication amounts to a corrupt practice within the meaning of Section 123(4)  the Tribunal would be entitled to take into account matters of common knowledge among the electorate and read the publication in that background, for one of the ingredients  of  the  particular  corrupt  practice  is  the  tendency  of  the statement in the publication to be reasonably calculated to prejudice the prospects of that candidate’s election.”

‘The test in cases under section 123(4) is whether the imputation beside being false in fact, is published with the object of lowering the candidate in the estimation of the electorate and calculated to prejudice his prospects at the election. And in ascertaining whether the candidate is lowered in the estimation of the electorate, the imputation made must be viewed in the light of matters generally known to them.”

19 In T.K. Gangi Reddy (supra), referring to the provisions of         Section 123(4),

this Court held:  

“Do the aforesaid allegations refer to the personal character and conduct of Anjaneya Reddy, who was a candidate for the election. 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.  The  said  acts  attributed  to  the  first respondent certainly relate to his personal character and conduct. 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.  We,  therefore,  have no hesitation in holding that the

allegations in the two leaflets,  Exts.  P3 and P4, are in relation to the personal character and conduct of the first respondent. ……The leaflets were, therefore, calculated to create an impression in the minds of the voters  not  to  vote  for  the  first  respondent,  who was  described  as  a murderer and a man of bad antecedents. The leaflets, Exts. P-3 and P-4, were, therefore, in our view, calculated to prejudice the prospects of the first respondent’s election.”  

20. In Jagjit Singh (supra), this Court held:  

“The question as  to  what allegations can be said to amount to allegations  in  regard  to  the  personal  character  of  a  candidate,  as distinguished from the public character, is not always easy to decide on considerations of abstract principles. The policy underlying the present provision  is  that  in  the  matter  of  elections,  the  public  and  political character  of  a  candidate  is  open  to  scrutiny  and  can  be  severely criticized by his opponents, but not so his private or personal character. In order that the elections in a democratic country should be freely and fearlessly  conducted,  considerable  latitude  has  to  be  given  to  the respective competing candidates to criticize their opponents' political or socio-economic philosophy or their antecedents and character as public men. That is why even false statements as  to the public character  of candidates are not brought within the mischief of           Section 123(4), because  the legislature thought that  in the heat  of election it  may be permissible for competing parties and candidates to make statements in relation to the public character of their opponents, and even if some of the  statements  are  false,  they would not  amount  to  corrupt  practice. Having regard to this policy of the statute, it often becomes necessary to examine carefully whether the false statement impinges on the personal character of the candidate concerned. Though it is not easy to lay down any general considerations which would help the determination of this issue in every case,  in actual practice  it may not be very difficult to decide whether the false statement impinges on the personal character of the candidate or on his public character….”

21. In Inder Lal (supra), this Court held:  

“The public and political character of a candidate is open to public

view and public  criticism and even if any false  statements  are  made about  the  political  views  of  a  candidate  or  his  public  conduct  or character, the electorate would be able to judge the allegations in that behalf.  It  is  on this  theory that  false  statements  of fact  affecting the public or political character of a candidate are not brought within the mischief of Section 123(4). In order that the elections should be free, it is necessary that the electorate should be educated on political issues in a  fearless  manner,  and so  the legislature  thought that  full and ample scope should be left for free and fearless criticism by candidates against the public and political character of their opponents.

But the position with regard to the private or personal character of the candidate is very different. Circulation of false statements about the private  or  personal  character  of  the  candidate  during  the  period preceding elections  is  likely to  work  against  the  freedom of election itself inasmuch as the effect created by false statements cannot be met by denials  in  proper  time and  so  the  Constituency has  to  be  protected against the circulation of such false statements which are likely to affect the voting of the electors.  That  is  why it is  for the protection of the constituency against acts which would be fatal to the freedom of election that  the  statute  provides  for  the  inclusion of  the  circulation of  false statements  concerning  the  private  character  of  a  candidate  amongst corrupt practices. Dissemination of false statements about the personal character of a candidate thus constitutes a corrupt practice.”  

22. In Gadakh Yashwantrao Kankarrao (supra), this Court held:  

“Before  adverting to  the  particular  statements  alleged  to  have been by Gadakh and Sharad Pawar which are alleged to constitute the corrupt practice under Section 123(4), it would be appropriate to deal with one submission made by Shri Ashok Desai and followed up by Shri Ram  Jethmalani  with  greater  vigour  relating  to  the  manner  of appreciation of evidence in such a case. Shri Desai submitted that even though it may not be quite proper to make statements reflecting on the personal character  of a  candidate,  yet  every such statement does  not amount to a corrupt practice since it does not prejudice the election in the prevailing political climate.  Shri Desai submitted that the existing

norms do not match the earlier norms and, therefore, every reflection on a candidate's character does not necessarily prejudice his election since the electorate  is not  influenced by such a statement in the prevailing electoral scene……..

……….We would also like to observe that the suggestion of a liberal construction  of  the  election  law  relating  to  corrupt  practices  by appreciation of evidence in the manner suggested in the existing political climate wherein mud-slinging' is common place, does not commend to us as  the  proper  approach  envisaged  by  the  election  law.  If  purity  of election is the essence of democracy and providing for invalidation of an election on the  ground of  commission of  any corrupt  practice  is  the object  of  enacting  these  provisions,  it  cannot  be  accepted  that  the election  scene  having  degenerated  over  the  years,  appreciation  of evidence for determining the commission of a corrupt practice must be made liberally because of the lower values in the arena of elections. If the rule of law has to be preserved as the essence of the democracy of which purity of elections is a necessary concomitant, it is the duty of the courts  to  appreciate  the  evidence  and  construe  the  law in a  manner which would subserve this higher purpose and not even imperceptibly facilitate  acceptance,  much  less  affirmance,  of  the  falling  electoral standards. For democracy to survive, rule of law must prevail, and it is necessary  that  the  best  available  men should  be  chosen  as  people's representatives for proper governance of the country. This can be best achieved through men of high moral and ethical  values who win the elections on a positive vote obtained on their own merit and not by the negative vote of process of elimination based on comparative demerits of the candidates.”

“The  primary  requirement  of  Section  123(4)  is  that  the statement should be a ‘statement of fact’ which is ‘false’, and which the maker either “believes to be false” or “does not believe to be true”…

“…. The maker of the statement knows best the material on which his belief  was  formed  and,  therefore,  it  is  for  him to  prove  the  same. Whether the maker of the statement believed it to be false or did not believe it to be true, is then ordinarily a matter of inference from the facts so proved.”

23. It  is  now well  settled  that  the  five ingredients  required  to  establish  a  corrupt

practice under Section 123(4) of the Act are:

(i) there should be a publication by the candidate or his agent, or by any other person,  with the consent of a  candidate  or his election agent;

(ii) the said publication should contain a statement of fact which is false;

(iii) the person making such publication should either believe such statement to be false or not believe it to be true;

(iv) such  false  statement  should  be  in  relation  to  the  personal character or conduct of any candidate; and  

(v) such  false  statement  should  reasonably  be  calculated  to prejudice the prospects of that candidate’s election.   

24. There is thus no doubt that any false accusation relating to the personal character

or  conduct  of  any candidate  calculated  to  prejudice  the  prospect  of his  election would

amount to a corrupt practice. But what is crucial is that the false statement should relate to

the personal character or conduct of a defeated  candidate. Where the false statement was

about some one other than the candidate, this Court has refused to consider the publication

to be a corrupt practice under Section 123(4). In Dev Kanta Barooah v. Golak Chandra

Baruah  (1970) 1 SCC 392 a statement imputed corruption and chaos when the defeated

candidate was chairman of a Municipality and asked the voters to note the injustices and

chaos during his tenure. This Court refused to hold the same as a corrupt practice under

Section 123(4) on the following reasoning :  

“It may, however, be noted that, in this part, it is not stated that Respondent  No.1  himself  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 his administration as Chairman of the Municipality was so unsatisfactory that corruption and chaos prevailed in the affairs of  the  Municipality.  The  imputation,  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.”  

25. In Jagdish Prasad Tiwari v. Ramdhani Mishra  (1975) 1 SCC 108, this court

held (vide para 3) :

“Under Section 123(4) of the Representation of the People Act the  false  statement  must  be  in  relation  to  the  personal  character  or conduct of the candidate. We should here set out the offending portion in Ext. P1 :  

Then Tewariji who now proclaims himself a Congressman, and has as well been accepted, had no satiety from reviling using abusive and debased  terms,  Prime Minister  Indira Gandhi,  and the  Congress.  His supporters were raising slogans of very mean standard,

Gali Gali mein Jhandi hai Indira Gandhi Randi hai.

x x x x x

The Hindi words used are “Khari Khoti” which mean true and false rather than legitimate and illegitimate. However, as pointed out by the learned Judge the first sentence relates to what the appellant himself did. The second sentence relates to what his supporters  did.  It  is the second  sentence  that  is  obscene  and  abusive  of  the  Prime Minister. Therefore, it cannot be said that the character or conduct of the appellant was attacked and therefore the matter does not fall within sub-section (4) of Section 123. We are, therefore, of opinion that the appellant has failed to prove the corrupt practice that he alleged against the respondent even as the learned Judge did.”       

26. We may also refer to the principles relating to construing offending pamphlets, laid

down in Kultar Singh v. Mukhtiar Singh (1964) 7 SCR 790:

“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  determined 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 use of hyperboles or  exaggerated  language,  or  the  adoption  of  metaphors,  and  the extravagance 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.”   

27. In this case, the pamphlet published on behalf of the appellant – Shri M. J. Jacob,

addressed certain questions to Shri T.M. Jacob - one of the rival candidates. Question (2)

extracted above required Shri T.M. Jacob to give an answer to the ordinary Congressmen in

regard to a  member of his personal staff (one Scaria) attempting to  murder a  Congress

Mandalam President -- P J Baby and two others -- Joseph Babu and K.P. Jacob at Onakoor

and remaining an absconder.  The allegations therein were  against  Scaria,  a  member of

personal staff of J. M. Jacob, that is, (i) he attempted to murder three persons and (ii) he

continued to be an absconder. Neither of these allegations are made against the candidate

Shri T M Jacob. Nor did it contain any allegation that Shri T.M. Jacob was in any way

involved either in Scaria’s alleged attempt to murder the said three persons or that he helped

Scaria to remain an absconder by harbouring him or otherwise. It is not therefore possible to

read into the question, an implied false statement  that Shri TM Jacob harboured a member

of his personal staff who was an murder accused and absconder.  

28. As already stated above, there is no mention in paragraph 2 of Ext. P1 that Shri T.

M. Jacob has harboured any accused.  However, Shri K. K. Venugopal, learned counsel for

the respondent submitted that the conclusion that T.M. Jacob harboured the accused can be

drawn by innuendo.  We   regret we cannot agree, for the reason already mentioned above.

Moreover, it has been held  in M. J. Zakharia Sait vs. T. M. Mohammed (1990) 3 SCC

396 that (vide paragraph 57) that for an allegation of corrupt practice by innuendo in an

Election Petition, it is necessary to plead as well as to prove the extrinsic facts to spell out

the  innuendo meaning of the words complained of. We have carefully perused the Election

Petition and we find that there is no clear pleading of the extrinsic facts to spell out the

innuendo.  On this ground only the Election Petition should have been dismissed.  

29. It may be noted that in paragraph 3 of the Election Petition it is stated:-

“The  reference  in  annexure  “A”  that  Shri  T.M.  Jacob  has harboured a member of his personal staff and that he is an absconder escaping arrest  is  totally false as  he had appeared  in Court  and was granted bail.”

30. The above statement is totally different from alleging that the statement in para 2

of Ext. P1 that Shri Scaria is an absconder is an innuendo.  As already mentioned above, in

paragraph 2 of Ext. P1 there is no mention that Shri T.M. Jacob is harbouring Shri Scaria,

and the mention is only that Shri Scaria who was in the personal staff of Shri T.M. Jacob is

absconding.  Hence, there should have been a clear pleading in the Election Petition that the

statement in paragraph 2 of Ext. P1 is an innuendo, and that it really means that Shri T.M.

Jacob  harboured  Shri  Scaria,  but  there  is  no  such  pleading  as  already  stated  above.

Innuendo is to be clearly pleaded but that has not been done in the Election Petition.   

31. Shri Venugopal, learned counsel for the respondent, has invited our attention to the

decision of this Court in Mohan Singh  vs.  Bhanwarlal (1964) 5 SCR 12 and has relied on

the following observation therein :

“The interrogative  form is  often  employed not  with a  view to secure information but to make and emphasize an assertion.”

In  that  case  the  statement  in  the  leaflet  in  question  was  “Did  you  not  defraud  the

agriculturists  with respect  to  the licences  of opium ?”   It  was  held that  the  use  of the

interrogative form would not make the statement any the less an imputation if it is fairly

capable of being so read.

32. In the present case in paragraph (2) of the pamphlet in question the last sentence

stated  “Can  you  give  an  answer  to  the  ordinary  Congressman  in  this  regard?”   Shri

Venugopal submitted that the interrogative form used here will not make it  any less  an

imputation against personal character.

33. In this connection it may be pointed out that this Court in Mohan Singh’s case has

itself stated that the interrogative is `often’ employed as an assertion.  The use of the word

`often’  indicates  that  the  Court  did  not  lay  down in that  decision that  it  is  always  or

invariably so employed.  Hence we have to see the facts of each case and not go by any rule

of the thumb.

34. However,  even  if  the  statement  in  the  interrogative  form in  paragraph  (2)  is

regarded as an assertion in our opinion it will not amount to a corrupt practice under Section

123(4), for the reasons given above.

35. It may be noted that Shri T.M. Jacob has not filed any Election Petition nor made

any complaint about the said pamphlet.  In fact, the Election Petitioner Mr. A N. Narayanan

has stated in his evidence “Shri T.M Jacob has not complained of any authority regarding

publication of Ext. P1”.  It is also significant that Shri T.M Jacob chose to complain about

another candidate (C.P. Saju) but not against the elected candidate.  This clearly indicates

that Shri T.M Jacob himself did not consider Ext.P1 as casting any aspersions against his

personal character and conduct.  

36.Arguments were advanced in great detail on behalf of both the parties as to whether the

allegation that Shri Scaria is an absconder was true or not, and whether the appellant

believed it  to  be  true  or  not,  but in our opinion it  is  not  necessary  to  go into these

allegations and counter-allegations.  In fact no effort was made to examine Shri Scaria as

a witness.  In our opinion, even if the allegation was true it does not attract Section 123

(4) for the reasons already given above.

37. As already stated above, election results should not be lightly set aside and the will

of the electorate  should ordinarily be respected.  Setting aside an election is a  serious

matter,  and should not have been done lightly. We regret to say that in this case the

election of the returned candidate has been set aside by the High Court, though no doubt

by  a  rather  elaborate  judgment,  by  observing,  according  to  us  unwarrantedly,  that

paragraph No. (2) in Ext.P1 amounts to a false statement affecting the personal character

and conduct of Shri T.M Jacob.  Once it is held that paragraph No.(2) did not contain any

statement regarding the personal character and conduct of Shri T.M Jacob it follows that

the tail piece of Ext.P1 that is the exhortation to “recognize the shameless hypocrite of

development trickery……..  react  against  the deceiver  of the  people”  will have to  be

considered as not against the personal character and conduct of Shri T.M Jacob, but as a

statement in respect of his public and political character.  This, in our opinion, does not

attract Section 123(4) of the Act.  

38. In a democracy many allegations and counter-allegations are made, and sometimes

these are incorrect, but that does not mean that an election should be set aside straightaway

on that account, as has been done in the present case, unless all the ingredients of Section

123(4) of the Act are clearly made out, otherwise almost every election will have to be set

aside.  

39.For  the  reasons  given  above  these  appeals  are  allowed, the Impugned judgment is

set aside and the Election Petition is dismissed. There shall be no order as to costs.

….……………………J. (R.V. Raveendran)

 .......…………………..J.

         (Markandey Katju) New Delhi: March 06, 2009