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PETITIONER: MANMOHAN KALIA

       Vs.

RESPONDENT: YASH & OTHERS

DATE OF JUDGMENT02/04/1984

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA VARADARAJAN, A. (J) MISRA RANGNATH

CITATION:  1984 AIR 1161            1984 SCR  (3) 383  1984 SCC  (3) 499        1984 SCALE  (1)621  CITATOR INFO :  F          1985 SC  24  (2)  R          1985 SC  89  (22,45)

ACT:      Election Laws-Corrupt  Practice, allegation of-Standard of proof  must be  proved strictly  a, a criminal charge and the principle  of preponderance  of probabilities  would not apply  to  the  Representation  of  the  People  Act,  1951- Credibility  and   relevance   of   Needs   item   published Application of the principle of inuendo-Represenation of the People Act, 1951, section 123(4), scope of.

HEADNOTE:      In the  election to  the  Assembly  constituency  No-31 Jullundur Cantt.,  which was  held on  31.5.1980, the  total votes polled  from the constituency were 47650, out of Which the appellant  polled 19710,  whereas  the  respondent  Yash secured 418  votes more  i.e. 20128  votes;  Therefore,  the appellant sought to challenge the election of Respondent No. 1  on   various  grounds  consisting  of  corrupt  practises committed by  respondent No. 1 which materially affected the result  of   the  election.   According  to  the  appellant, Respondent No.  1 through speeches either made by him or his friend carried  out a  vilifying campaign  to show  that the appellant was  directly connected with the murder of one Asa Ram a  harijan and  one of Supporters of Congress (l) party, so as  to wean   away  the votes  of  the  harijans  of  the locality and  members of  the Congress (l) party. The Punjab and Haryana  High Court  disbelieved the  oral evidence  and found no  nexus with  the news  items etc. and dismissed the election petition. Hence the appeal by special leave. ^      HELD 1.1  It is well settled that where the doctrine of inuendo is  applied, it  must be  clearly  proved  that  the defamatory allegation was made in respect of a person though not named  yet so  fully described that the allegation would refer to  that person  and that person alone. Inuendo cannot be proved  merely  by  inferential  evidence  which  may  be capable of two possibilities.[386F-G]      1.2 In  the instant  case,  the  evidence-statement  of witnesses and  the documents  produced, do  not call for any

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inference of any close connection or direct link between the imputations made  against the  appellant in  1978 and  those made in  1980. In  none of  the documents  produced  by  the appellant  which  refer  to  the  activities  of  the  first respondent, there  is the  slightest possible  hint that the appellant had  anything to  do with  the murder  of Asa Ram. Further more,  the allegations  made in  1978 being  far too remote and  there being  no continuous  link  between  those allegations and  the allegations  made in  1980,  the  first category of  the charge  against the  respondent  cannot  be sustained, more particularly because in 384 1978 a  fresh election  was not  in the  offing because  the Janata Government  came into  power in  1977 and  in  normal course would  have completed its full term in 1982. Thus, at that time  no body  could have  predicted that  the election would be  held only  two years  later which  happened  by  a sudden spurt of events. [386E-F; G-H]      N. Vimala  Devi v.  K.  Madhusudhana  Reddy  [1975]  3. S.C.R. 128 followed.      2.1 It  is now  well settled  by several authorities of the Supreme  Court that  an allegation  of corrupt  practice must be  proved as  a 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.[387F-G]      2.2 In  the instant  case, the  evidence-both oral  and documentary-led by the appellant falls short of the standard of proof  required to bring his case within the four corners of section  123(4) of  the Representation  of the People Act 1951(1).  About  the  speech  made  on  May  18,  1980,  the deposition of  PW8 cannot  be relied  on inasmuch  as it  is impossible to conceive of contradictions made by him. If the witness apart  from being  interested and partisan, had been present in  the meeting  throughout, he would not forget who spoke first.  Even P.W  13 cannot  be believed  since, while admitting in  his cross  examination that  he did not make a noted of  what Yash had spoken, yet he was able to give full and grotesque  details of  the speech, that too, when he was examined in  the court  after more  than a  year  and  half. [390C-D, 388B-D]      3. It  is very  difficult for  a Court  to rely on news items published in any newspaper on the basis of information gives by  correspondents because  that may not represent the true state of affairs. It is at best a second hand secondary evidence. [388F-G]      Samant N. Balakrishna v. George Fernandez & Ors. [1969] 3 S.C R. 603, reiterated.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2691 of 1982.      From the  Judgment and Order dated the 4th day of June, 1982 of  the Punjab  and  Haryana  High  Court  in  Election Petition No.2 of 1980.      Appellant in Person      O.P. Sharma, K.R. Gupta, R.C. Gubrele, and R.C. Bhatia, for the Respondents. 385      The Judgment of the Court was delivered by

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    FAZAL ALI,  J. This election appeal is directed against a judgment  dated June  4, 1982 of the Punjab & Haryana High Court  dismissing   the  election   petition  filed  by  the appellant against  the respondent. The present appeal arises out of  an election  to the  Assembly  constituency  No.  3- Jullundur Cantt., which was held on 31.5.1980 and the result of which  was declared  on 3.6.1980.  Both the appellant and respondent No.  1 were  the main rival candidates. The total votes polled  from the constituency were 47650, out of which the appellant  polled 19710 whereas respondent No. 1 secured 20128 votes, the margin being rather small, viz., 418.      The appellant  sought  to  challenge  the  election  of respondent No.  1 on  various grounds  consisting of corrupt practices  committed   by  him   (respondent  No.1)   which, according to  the appellant,  materially affected the result of the election.      The appellant, who is an Advocate, argued his case with brevity and  ingenuity and  fairly conceded  that he was not going to  press all the allegations made in the petition but would  confine   his  arguments   only  to  the  allegations pertaining to  s. 123(4) of the Representation of the People Act,   1951 (for  short, to be referred to as the ’Act’). In order to  understand the ambit and scope within the confines of which  the appellant  has  argued  his  case  it  may  be necessary to extract sub-section (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 with drawl, of any candidate, being      a statement  reasonably  calculated  to  prejudice  the      prospects of that candidate’s election."      In view  of the  concessions made by the appellant, the case lies within a very narrow compass. The allegations made by the  appellant against  the  respondent  consist  of  two categories-           (1) speeches having been made by the respondent or      his friends  near about  the time  of the  election and      after the  respondent was  nominated  as  a  candidate,      which amounted 386      to serious  character assassination of the appellant by      projecting him  as a  murderer of one Asa Ram, who died      as far back as 1978.      According  to  the  appellant,  the  respondent  No.  1 carried out a vilifying compaign to show that he (appellant) was directly  connected with  the aforesaid  murder so as to wean away  the votes  of the  harijans of  the locality  and members of  the Congress  (l)  party  because  Asa  Ram  was harijan and  one of the supporters of Congress (I) party. In this connection,  the allegations  made may be classed under two separate categories:      (a)  Utterances,  speeches,  news  items  and  articles      regarding  the   allegation  that   the  appellant  was      directly connected  with the murder of Asa Ram in 1978,      and      (b)  speeches   and  news  items  made  and  issued  by      respondent No.  1 on various occasions proximate to the      date of the election.      (2)   Similar acts  committed by  respondent No.  1  in           close proximity to the election, i.e., sometime in           May 1980.      After having  gone through  the evidence  statement  of

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witnesses and  he documents  placed before us, we are unable to find  any close  connection or  direct link  between  the imputations made  against the  appellant in  1978 and  those made in  1980. In  none of  the documents  produced  by  the appellant, which  refer  to  the  activities  of  the  first respondent, there  is the  slightest possible  hint that the appellant had  anything to  do with  the murder  of Asa Ram. Realising  this   difficulty  the   appellant   sought   the application of  the doctrine  of inuendo. It is well settled that where  this doctrine  is applied  it  must  be  clearly proved that the defamatory allegation was made in respect of a person  though not  named yet  so fully described that the allegation would refer to that person and that person alone. Inuendo cannot  be proved  merely  by  inferential  evidence which may  be capable of two possibilities. Furthermore, the allegations made  in 1978  being far  too remote  and  there being no  continuous link  between those allegations and the allegations made  in 1980,  the first category of the charge against   the   respondent   cannot   be   sustained,   more particularly because in 1978 a fresh election was not in the offing because the Janata Government came into power in 1977 and in  normal course  would have completed its full term in 1982. Thus,  at that  time nobody  could have predicted that the elections  would be  held only  two  years  later  which happened by a sudden spurt of events. 387      In these  circumstances, we  would place no reliance at all so  far as the first category of the allegations against the respondent  is  concerned.  In  N.  Vimala  Devi  v.  K. Madhusudhana  Reddy(’)   this  Court  completely  ruled  out documents containing instances of corrupt practice which had nothing to  do with  the  1972  election  with  which  their Lordships were concerned in that case and in this connection while overruling an important document they observed thus:           "We are not impressed by the argument on behalf of      the respondent  that Ex. A-57, which shows that even in      1970 a representation of a similar kind was made, shows      that there were many others out to besmirch the name of      the appellant.  Ex-A-57 contains  many instances  which      have nothing  to do  with the  election in  1972 or the      setting up  of a  Congress candidate  in that election.      That is the affinity between Ex. A-48 and Ex-A1."      On a  parity of  reasoning, therefore,  we cannot  call into aid  the allegations  made as  far back as 1978. It is, therefore, not  necessary for  us to  consider or to go into the evidence  offered by  the appellant  as far  as the 1978 incident it concerned.      Coming now  to the  second category  of allegations, as the  appellant  has  confined  his  arguments  only  to  the averments made  regarding the  application of  s. 123 (4) of the Act,  the ambit  of the case is greatly reduced . Before examining the allegations, we might mention that the learned election Judge  of the  High Court  had dealt  with all  the allegations, and has given convincing and cogent reasons for holding that  they had  not been  proved either  by oral  or documentary evidence.  It is  now well  settled  by  several authorities of  this Court  that an  allegation  of  corrupt practice must be proved as strictly as a criminal charge and the principle  of preponderance  of probabilities  would not apply to  corrupt practice  envisaged by  the Act because if this test  is not  applied a very serious prejudice would be caused to  the elected candidate who may be disqualified for a period of six years from fighting any election, which will adversely affect the electoral process.      Keeping in  view, therefore,  the  strict  standard  of

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proof required  in such  cases ,  we proceed to consider the evidence on  which the  appellant has  relied  in  order  to determine whether  or not  the corrupt  practice alleged has been proved.  In this  connection,  the  first  circumstance stressed before us was that a meeting 388 was convened  in Gopal  Nagar, Ward  No. 22, on May 18, 1980 where respondent  No. 1  and, with  his consent , his friend Sansar  Chand,   delivered  fiery  speeches  connecting  the appellant with  the murder  of Asa Ram, which was deposed to by PWs  8 and 13. PW 8 has stated that he attended a meeting on 18.  5.80 at  Basti Guzan.  The learned Judge disbelieved his evidence  as being wholly improbable. Moreover, there is a contradiction in his evidence because at one place he says that Yash (respondent No. 1) spoke first and was followed by Sansar Chand  and yet  at another  place he says that Sansar Chand spoke first and was followed by Yash. It is impossible to conceive  of such  a contradiction  if the  witness apart from being  interested and  partisan had been present in the meeting throughout, he would not forget the sequence of such an important  matter. Another  witness relied  upon  by  the appellant was  PW 13  who has  also been  disbelieved by the learned Judge, and  he had admitted in his cross examination that he  did not make a note of what Yash had spoken and yet he was able to give full and grotesque details of the speech when he  was examined  in the  court, after more than a year and a  half. Furthermore,  he states  that when he talked to the appellant  he was  told that the respondent already knew about the meeting. This shows that the appellant himself did not take  this  witness  very  seriously.  We,  therefore  , entirely agree  with the  appreciation of  the  evidence  of these two witnesses made by the learned High Court Judge.      The evidence  of PWs  8 and  13 however,  is alleged to have been  corroborated by  a news item published in an Urdu daily ’Milap’  whose Chief Sub-Editor (PW 5) was examined by the appellant.  But the witness far from supporting his case has deposed  that he had absolutely no personal knowledge of the Report  made by  Prashar which was published on 24.5.80. Moreover, it  is very  difficult for a court to rely on news items published  on the  information given by correspondents because that may not represent the true state of affairs. In Samant N.  Balakrishna etc.  v. George Fernandez & Ors. etc. (1) while  dwelling on the relevance and credibility of such type  of   news  items   this  Court   made  the   following observations:           "The best  proof would have been his own speech or      some propaganda  material such as leaflets or pamphlets      etc., but  none was  produced.. A news item without any      further proof  of what  had actually  happened  through      witnesses is  of no  value. It  is at best a secondhand      secondary evi- 389      dence.  It   is  well-known   that  reporters   collect      information and  pass it on to the editor who edits the      news item  and then  publishes it.  In this process the      truth might  get perverted  or garbled. Such news items      cannot be said to prove themselves although they may be      taken into  account with  other evidence  if the  other      evidence is forcible."      In the  instant case,  there is no evidence to show the actual record  of the  speech made  by respondent  No  I  or Sansar Chand  and ,  therefore, the  said news item does not advance the  case of the appellant any further, particularly when it  has been  stoutly denied by respondent No. 1 and PW 5.

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    Reliance was  also placed  on another news item (Ex. PW 25/4) appearing on 20. 5.80 which also has to be rejected on the same ground as the first item.      The learned  Judge  has  rightly  pointed  out  in  his judgment that  PW 25, after he was shown the newspaper dated 12.5.80 (Ex.PW 25/3), has said that he did not know anything else, that is to say, neither the correspondent revealed the source from  which he  got the  information nor  does he say that  he   was  actually  present  when  the  speeches  were delivered. On  the other  hand,  RW-3,  Dev  Raj  Puri,  had clearly stated  that certain  changes were made in the items which he  had filed  and this  statement  of  RW-3  was  not challenged.      Thus   the evidence furnished by the aforesaid items is also  of   little  value  to  the  appellant.  On  the  same principles  of   reasoning  the   reports  of  the  meetings published in  ’Milap’ regarding  the speeches  delivered  on 17th and 28th May 1980 also suffer from the same infirmity.      Strong reliance  was placed on the document, Ex. RW-24, which had  been admitted  by the  first respondent.  We have gone through  the  entire  speech  published  in  the  daily ’Milap’ on  18.5.80 and we do not find even a single word to connect the  appellant with  the murder of Asa Ram. In fact, the entire  speech reproduced  in the said Paper does not at all show  that the  speaker viz.  the first respondent, made any  reference   to  the   appellant  at   all.   In   these circumstances, therefore,  even the appellant himself had to admit before  us that  as the  text of  the speech  has been reproduced, no allegation has been made against him.      The appellant  however, tried in vain to argue that the afore- 390 said speech would amount to inuendo because it has expressly referred to  the  circumstances  under  which  Asa  Ram  was murdered. By  no stretch  of imagination can the doctrine of inuendo be  invoked to  the aforesaid  speech. We therefore, reject this contention also.      After a  careful consideration  of the  documents,  the circumstances of  the case  and the  oral  evidence  of  the witnesses placed  before us.  We find ourselves in agreement with the  judgment of  the High  Court. Indeed,  it is  very difficult to  prove a  charge of  corrupt practice merely on the basis  of oral evidence because in election cases, it is very easy  to get  the help of interested witnesses but very difficult to  prove charges  of  corrupt  practice.  In  the instant case,  the evidence-both oral and documentary-led by the appellant  falls short of the standard of proof required to bring  his case  within the four corners of s. 123 (4) of the Act.      We must,  however, record our appreciation of the crisp and candid  manner in  which this  case has  been  presented before us by the appellant.      For the  reasons given  above, the judgment of the High Court is  affirmed and  the appeal  is dismissed  but in the circumstances without any order as to costs. S.R.                                       Appeal dismissed. 391