ae
" poxxtent Yash secured 418 vores more i.e, 20128 votes.
"MANMOHAN KALIA _ YASH & OTHERS
April 2, 1984
[S. Murtaza Fazal ALI, A. VARADARAJAN AND RANGNATH
Mira, JJ.]
’ Election Lows—Corrupt Piactice, allegation of —Standard of proof must be proved strictly as a criminal charge and the p.ivciple of preponderance of Probabi:tties would mor apply to-the Representation of the People Act, 195]-— Credibili:y aad relevance of News tiem publ'shed Applicatiin- of the principle
Ia the election to the Assembly constituency No +31 Julundur Cantt.,
‘of jnue.do—Represen ation of the People Act, 1954, seetion-1 23 (4}, scope of.
which was held on 31.5 1980, the total votes polled from the constituency were 47650, out of which the appellant: polled 19730, whereas the res- Therefore, the appellant-sought to challenge the electioa of Respondent No. 3 on various grounds consisting of corrupt practices committed by respondent No. 1 wh.ch materially affected the result of-the election.” ‘appellant, Respoadent No. .1 through speeches either made by him or his friend carried out a villifying campaign to show that the appellant was directly connected with the murder of one . Asa Rapa harijan and one of ins supporters of Congress (I) party, $0 as to wean away the votes of the:
-harijans of the locality and members of the Congress ({) party. The Punjab and Haryana High Court disbelieved the oral evidence and found no nexus with the news items etc. and difmigsed the election petition. Hence the
_ appeal by speciai leave.
HELD (.1 Jt is well settled that where: the doctrine of inuendo is applied, it must be clearly proved that the defamatory allegation -was made in réspect of a person though not named yet so fully described . thats , 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 aad the documents produced, do dot ‘call for any inference of any close conection or direct link between the imputations made against the appellant in 1978
‘and those made ia 1980. Ia 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 allega- tions.and the allegations made ia 1980, the first category of the charge against the respondent candot be sustained, more particularly because in
Accotding to the
-
383,
SUPREME COURTS REPORTS [1984] 3.5. C. Re,
-
1978 a fresh election was not in the offing because the “jenata Government
‘came into power in 1977 and in norma) course would have completed its full termy 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. ‘E386E—F; GH]
_N.Vimala Devi ¥. K. sMadhusudhana Reddy [1975] 3, S.C.R. 128
‘followed .
«
/.2.1 It isnow well settled by several authorities - of the ‘Supreme
Court that an-allegation of-corrupt practice must be proved as ‘stric jy as acriminal charge and the principle of preponderénce of probabilities. would not apply tocorrupt practices envisaged by the Act because if th' s ‘test is not applied a very sericus prejudice would be caused to the elected candidate who may be disqualified for a period of six years fiom fighting ~' apy ‘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 Representatjon of - ‘ the People Act 1951 (1). About: the speech made on May 18, 1980, the ‘deposition of PW8 cannot be’ relied on inasmuch as itis impossible to .
conceive of contradictions made by him, If the’ witness apart from being
’ interested and partjsan, had been present in the meeting througheut, he ‘would not forget who-spoke first. Even PWi3 cannot be believed since, j white ddmitting i in his cross examination that he did not make 2 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 thati a year and half. [390G—D; 388B—D]
- 3. It is very difficult for a Court to rely on wnews items published in
‘any newspaper cn the basis of information given by correspondents because - that may not represent the true state of affairs. Itis at best a Second
-hand secondary evidence. [388F—6]
. Samant N.. Balakrishna v. George Fernandez & Ors. 1968) 3S.C_.R.
603," reiterated.
Crvit APPELLATE JURISDICTION : Civil Appeal No. 2691 of
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. , a
“Appellant in Person
$
O.. P. Sharma, KR. ‘Gupte, R. €. Cubicle, and R, €. , Bhafia,
_ for the Respondents.
¥K é
“MANMOHAN KALIA v. YASH (S. , Fazal Ali, J.) 385 Ths J udz nent of the Court was delivered by A
PAZAL ALR J. This election appeal i is directed against a judgment dated June 4, 1982 of the Punjab & Haryana High Court ~dism'ssing the election petition filed by the appellant against the es respondent. The present appeal arises out of an election to the . Assembly constituency No. 3:-Jullundur Cantt., which was held ‘ B 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. Th: total votes polled from the constituency were 47650, out of which the appellant polled 19710 whereas respon-— ‘dent No. { secured 20128° votes, the margin being rather small, - Viz., 418. - Cc
The appellant sought to challenge the election of respondent . No. t on various grounds consisting of corrupt practices committed. ° oy ‘by him (respondent No. 1), which, according to the appellant, 3 . materially affected the result of th> election.
The appellant, who ‘3 an Advocate, argued his case with ‘brevity and ingenhity 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: . “geferred to as the ‘Act’). In order to understand the ambit and E x: scop2 within th: confines of which the appellant has argued his » : “ease, it may be necessity to extract sub- “section {4)— “The publication bya. ‘candidate or his agent. or by cany other person, with the consent of a candidate or his’. -election agent, of any statement of fact which is false, and F - .. -which he either believes to be false or does not believe to’ yo be true, in relation to the persona] character or conduct of . any candidate, or in relation to the candidature, or with-, fk, . drawal, of any candidate, being a statement reasonably oa . calculated .to prejudice the Prospects of that gandidate’s : ' : election.” ; ‘GE.
In view of the concessions made by t the appellant, the case liés ‘within.a very narrow compass. The allegations made by the appellant against the respondent consist of two categorics—
~ (1) speeches having been made by the respondent or his friends near about the. time. of the electién and after the , H respondent was nominated as a candidate, which amounted .
“no contin la
" SUPREME COURT REPORTS’ * 11984} 3 scr to serious character assasination of the appellant by Ptojec- -ting himoas a murderer of one Asa Ram, who died as far back as 1978. - po
. According to the appellant, the Tespondent No. I carried out.
_. a villifying 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 (I). party because Asa Ram was harijan and one of the supporters of | Congress (1) 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. respon- - dent No. l.on varicus occasions proximate to thé date of the election. ; So (2) Similar acts committed by respondent No. 1. in élose proximity \to the election, i.e., sometime in May 1980.
‘After, having gone through the evidence. statement of witnesses. -”
andt he documents placed before us, we are.unable to find any close connection or direct link between the imputations miadc against the appellant in 1978 and those made in'1980. In none of the
~ gocuments produced by the ‘appellant, which refer 16 the activities .. . -of the first respondent, there is the slightcst possible hint that the appellant had anything to do.with the murder of Asa Ram.. Reali-. sing this difficulty, the appellant sought the application of the doctrine of innendo. It is well settled that where this doctrine’ is applied, ‘it maust be clearly proved that the defamatory allegation.
wie 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, gations made in 1978 being far too remote and there being uous link between those allegations aod 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 jn 1982, Thus, at that time nobody could have-predicted that the. elections -would be held only two years | ter which happened by & sudden spurt of events.
the alle
¥ Ww ay .
t
MANMOHAN KALIA v. YASH ( Fazal Ali, J.)
In these circumstances, we would place no reliance at all so far as the first category of the allegations against the respondenth is concerned. In N. Vimala Devi v. K. Madhusudhana Reddy\' this Court comipletely 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 documeilit they observed thus :
e ‘“*‘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 io besmirch the name of _ the appellant. Ex-A-57 contains many instances which have nothing-to do with the election in 1972'or the getting up of a Congress candidate in that election. That is the affinity between Ex. A-48 and Ex—Al.”
On a parity of reasoning, therefore, we cannot call into aid the allegations made as far back as 1978. _Itis, 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 chad 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 setious prejudice would be caused fo 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 proof required in such cases, we proceed to consider the evidence on which the appellant has relied in ordcr to determine whether or .
not the corrupt practice alleged has been proved, In this connec- tion, the first circumstance stressed before us was that a meeting —
(1) [1975] 3 SCR. 128,
A 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. fearned Judge disbelieved his evidence as being
B _ 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 Conr c tradiction if the witness apart from being interested and partisan, 7 had been present in the meeting throughout, he would not forget the sequence of such en 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 crossexamination that he did not make a note of what Yash had spoken and yet he was able to give fult 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 Urduw 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. More- over, it is very difficult for a court to rely onnews 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. (4 while dwelling on the
G relevance and credibility of such type of news items, this Court .) . made the foflowing 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 iH is of no value. It is at best a secondhand secondary evi-
—_—__—_—— (1) [1969] 3 8.C.R./603.
se
388 ; SUPREME COURT REPORTS 1984) 3 ser.
MANMOHAN KALIA v. YASH (Fazal Ali, J.) .
dence. [ft 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 getperverted 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. 1 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.
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 vent 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 reprodu- ced, no allegation has been made against him.
The appellant,-however, tried in vain to argue that the afore-
390°
SUPREME COURT REPORTS = —ts—s«*[1984] 3. S.C.
‘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, Teject t this contention also.
After a careful consideration of the documents, the circum-
-stances 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. .
ei ot, 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.
~SR. 0 7 Appeal dismissed.
ah od