# 14 (ADDL.) S.C.R. 427 JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS

- **Citation:** [2010] 14 S.C.R. 427
- **Court:** Supreme Court of India
- **Decided:** 2010-12-01
- **Case number:** Civil Appeal No. 5310 of 2005
- **Bench:** J.M. Panchal, Gyan Sudha Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/14-addl-s-c-r-427-joseph-m-puthussery-v-t-s-john-ors-26489
- **Pages:** 41

## Headnote

REPRESENTATION OF THE PEOPLE ACT, 1951:
A
B
s. 123 - Election petition alleging corrupt practices -
c
Nature of - Standa.rd of proof - Held: An election trial where
corrupt practice is alleged, is to be conducted as a criminal
trial - Standard of proof made applicable to criminal cases
is proof beyond reasonable doubt - High Court misdirected
itself on the point when it held that standard of proof higher 0
than the one applicable to civil cases but lesser than that
applicable to criminal cases should be adopted in the case
- Evidence.
s.123(4) - Election petition alleging corrupt practice of
distributing the offending pamphlets by returned candidate
E
and his election agent as also the party workers - Allowed by
High Court on the basis of oral evidence - Election of returned
candidate set aside - Held: The election petitioner led two
sets of evidence each contradicting the other regarding
distribution of pamphlets and, therefore, the benefit of doubt
F
would go to the elected candidate - Besides, it would be
unsafe to accept oral evidence on its face value without
seeking for assurance from other circumstances or
unimpeachable documentary evidence -
The witnesses
produced by election petitioner were not independent
G
witnesses as they had affiliation with his party - No evidence
of any witness has been discussed in detail in the impugned
judgment - The assertion made by the elected candidate
denying the a/legation is supported by the evidence, and
427
H
428 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A deserves to be accepted - High Court misdirected itself in
placing reliance on hearsay' evidence - There is nothing on
record to show that the elected candidate, his election agent
or his party workers with his consent and/or the consent of his
election agent, had indulged in the act of distribution of
B pamphlets and committed the corrupt practice -
The
judgment of the High Court set aside - Evidence.
s. 123 rlw ss. 98 and 99 - Corrupt practice of election
agent or a third persorr attributable to the elected candidate
- Notice to such third person - Held: To prove that the corrupt
C practice of a third person is attributable to the candidate, it
must be shown that the candidate consented to tf1e
commission of such an act - The High Court's view that the
elected candidate would be liable for penalty uls 99 for the
acts of his election agent without the conviction of such agent
D is completely erroneous in law -
The High Court, on
appreciation of the evidence adduced, has recorded a clear
finding that no reliable evidence was led by election petitioner
to establish that the election agent himself had distributed the
offending pamphlets or that the party workers had distributed
E the pamphlets with his consent - Further, if 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 u/s 99 to that other person - The High Court,
F choosing to ignore the requirement of s. 99 of the Act, has not
recorded any concluded finding on this question against the
UDF workers, who had allegedly distributed Ext. X-4. If the
workers had no contumacious mind, the elected candidate
hardly could have been fastened with any vicarious liability
G for the so called alleged corrupt practice - Notice - Vicarious
liability.
s.123(4) -
Corrupt practice of false publication -
"Publication" - Ingredients of - Explained - HELD: The
information contained in the pamphlet alleged to have been
H published by appellant had already been published in a
-
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS.
429
magazine and circulated in the Constituency - The provisions
A
have to be construed strictly and, therefore, reproduction and
distribution ofreproduced information within the space of few
months cannot be regarded as "publication" in terms of
s.123(4) - Further, onus of proving that the maker of the
stat

## Text

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[2010] 14 (ADDL.) S.C.R. 427
JOSEPH M. PUTHUSSERY
v.
T.S. JOHN & ORS.
(Civil Appeal No. 5310 of 2005)
December 1, 2010
[J.M. PANCHAL AND GYAN SUDHA MISRA, JJ.]
REPRESENTATION OF THE PEOPLE ACT, 1951:
A
B
s. 123 - Election petition alleging corrupt practices -
c
Nature of - Standa.rd of proof - Held: An election trial where
corrupt practice is alleged, is to be conducted as a criminal
trial - Standard of proof made applicable to criminal cases
is proof beyond reasonable doubt - High Court misdirected
itself on the point when it held that standard of proof higher 0
than the one applicable to civil cases but lesser than that
applicable to criminal cases should be adopted in the case
- Evidence.
s.123(4) - Election petition alleging corrupt practice of
distributing the offending pamphlets by returned candidate
E
and his election agent as also the party workers - Allowed by
High Court on the basis of oral evidence - Election of returned
candidate set aside - Held: The election petitioner led two
sets of evidence each contradicting the other regarding
distribution of pamphlets and, therefore, the benefit of doubt
F
would go to the elected candidate - Besides, it would be
unsafe to accept oral evidence on its face value without
seeking for assurance from other circumstances or
unimpeachable documentary evidence -
The witnesses
produced by election petitioner were not independent
G
witnesses as they had affiliation with his party - No evidence
of any witness has been discussed in detail in the impugned
judgment - The assertion made by the elected candidate
denying the a/legation is supported by the evidence, and
427
H
428 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A deserves to be accepted - High Court misdirected itself in
placing reliance on hearsay' evidence - There is nothing on
record to show that the elected candidate, his election agent
or his party workers with his consent and/or the consent of his
election agent, had indulged in the act of distribution of
B pamphlets and committed the corrupt practice -
The
judgment of the High Court set aside - Evidence.
s. 123 rlw ss. 98 and 99 - Corrupt practice of election
agent or a third persorr attributable to the elected candidate
- Notice to such third person - Held: To prove that the corrupt
C practice of a third person is attributable to the candidate, it
must be shown that the candidate consented to tf1e
commission of such an act - The High Court's view that the
elected candidate would be liable for penalty uls 99 for the
acts of his election agent without the conviction of such agent
D is completely erroneous in law -
The High Court, on
appreciation of the evidence adduced, has recorded a clear
finding that no reliable evidence was led by election petitioner
to establish that the election agent himself had distributed the
offending pamphlets or that the party workers had distributed
E the pamphlets with his consent - Further, if 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 u/s 99 to that other person - The High Court,
F choosing to ignore the requirement of s. 99 of the Act, has not
recorded any concluded finding on this question against the
UDF workers, who had allegedly distributed Ext. X-4. If the
workers had no contumacious mind, the elected candidate
hardly could have been fastened with any vicarious liability
G for the so called alleged corrupt practice - Notice - Vicarious
liability.
s.123(4) -
Corrupt practice of false publication -
"Publication" - Ingredients of - Explained - HELD: The
information contained in the pamphlet alleged to have been
H published by appellant had already been published in a
-
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS.
429
magazine and circulated in the Constituency - The provisions
A
have to be construed strictly and, therefore, reproduction and
distribution ofreproduced information within the space of few
months cannot be regarded as "publication" in terms of
s.123(4) - Further, onus of proving that the maker of the
statement believed it to be false rests with the election
B
petitioner and, in the instant case, it has not been discharged
- Interpretation of statutes - Strict interpretation - Evidence
- Burden of proof.
EVIDENCE:
Oral evidence in election matters - Evidentiary value of
- Discussed - Hearsay evidence.
c
Election petition before High Court -
Evidence -
appreciation of -
HELD: In an election trial, it is not o
permissible to the High Court to discard substantive oral
evidence on account of defect in pleadings - High Court
erred in discarding the testimony of returned candidate that
distribution had taken place in March 2001 and not in May
2001, only because it was not so stated in his written
E
statement - Evidence - Practice and Procedure - Pleadings.
Words and Phrases:
"Publication" in the context of election law - Connotation
of.
F
Respondent no. 1 lost to the appellant the election
for the Member of the Legislative Assembly which was
held on 10.5.2001. He filed an election petition alleging
that the election of the appellant was vitiated by corrupt
G
practice in terms of s.123(4) of the Representation of the
People Act, 1951, as copies of Ext. X4, which contained
false statements in relation to the personal character and
conduct of respondent no. 1 having tendency to
prejudice his election prospects, were distributed on 8th
H
430
SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A and 9th May, 2001 by the appellant, and his election agent
and, with their consent, by the workers of the political
party to which the appellant belonged. The returned
candidate denied the allegations. However, the High
Court allowed the election petition and declared the
B election of the returned candidate as void. Aggrieved, the
returned candidate filed the appeal.
c
Allowing the appeal, the Court
HELD:
1. The High Court misdirected itself on the point of
standard of proof required u/s 123 of the Representation
of the People Act, 1951, when it held that the standard of
proof higher than the one applicable to the civil cases but
D certainly lesser than that 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. This is contrary
to settled law, i.e., an election trial where corrupt practice
E is alleged is to be conducted as a criminal trial. Normally,
the 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'. [para 8] [446-8-D]
F
Jagdev Singh Sidhanti vs. Pratap Singh Dau/ta (1964)
6 SCR 750 - followed.
2.1 In the impugned judgment, no evidence of any
witness is discussed in detail at all. The High Court erred
G in holding that distribution of Ext. X4 in the Constituency
concerned on 8th and 9th May, 2001 was by the appellant
and by UDF workers with his consent. It is relevant to
notice that the appellant had stated in his written
statement that he was not aware of any such distribution
H
-
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS.
431
and, in the alternative, it was mentioned that even if the
A
distribution had taken place, neither he nor his election
agent nor any of the workers of UDF was/were involved
therein. In an election trial, it is not permissible to the High
Court to discard substantive oral evidence on account of
defect in the pleadings. Testimony of the appellant that
B
printing and distribution had taken place in March, 2001
and not in May, 2001, as alleged by respondent No. 1, was
discarded by the High Court only because it was not so
stated in his written statement. It is significant to note that
PW-88, the owner of the press, deposed before the High c
Court that DW-10 had entrusted him the printing of Ext.
X4 pamphlet on 8.3.2001. He produced Ext. X17, the Bill
Book mairitained by him in the ordinary course of
business. The testimony of PW-88 was never challenged
by respondent No. 1 in the sense that PW-88 was never
0
declared hostile to respondent No. 1 nor did he seek
permission of the Court to cross-examine PW-88. Thus,
the evidence tendered by PW-88 was accepted to be true
by respondent No. 1. The testimony of DW-10, whose
credibility could not be impeached during his lengthy
E
cross-examination on behalf of respondent No. 1, had
asserted that he1lad got printed Ext. X4 from the press
of PW-88 and that he had distributed the same in March,
2001. The High Court, without assigning any cogent and
convincing reasons, chose to disbelieve the evidence of
PW-88 and DW-10. Thus, the conclusion drawn by the
F
High Court that the evidence of PW-88 and DW-1 O was
unreliable, will have to be regarded as perverse. Having
regard to the facts of the case, an adverse inference has
to be drawn against respondent No. 1 on the score that
he had neither asserted nor controverted the fact that Ext.
G
X4 was got printed by DW-10 at the press of PW-88.
Viewed in this light, the assertion made by the appellant,
who had examined himself as DW-53 that he came to
know about the distribution of Ext. X4 in the month of
H
432 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A March, 2001 from DW-10 later on, deserves to be
accepted and cannot be brushed aside as improvement
in the version, as has been done by the High Court.
[paras,10 and 11] [447-H; 448-A-H; 449-A-H]
B
Dr. Jagjit Singh vs. Giani Kartar Singh and others AIR
1966 SC 773 - relied on.
2.2 PW-12, PW-13, PW-14, PW-15, PW-17 and PW-21,
on whose testimony the High Court relied on, were not
independent witnesses, as they had affiliation with the
C party to which respondent No. 1 belonged and their
evidence cannot held to be reliable at all. Once the
testimony of PW-88 read with that of DW-10 is believed
that pamphlets Ext. X4 were printed in the press of PW88 at the instance of DW-10 and that DW-10 had
D distributed the same in the month of March, 2001, the
assertion made by the 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 8th and 9th May, 2001 becomes highly
E doubtful and their say cannot be accepted. Once the
testimony of PW-88 read with that of D.W-10 is acted upon,
it becomes evident that respondent No. 1 had led two sets
of evidence each contradicting the other regarding
distribution of pamphlets and obviously in such
F circumstances the reasonable benefit of doubt would go
to the elected candidate, namely, the appellant. [para 14]
[ 451-G-H; 452-A-E]
2.3 So far as election law is concerned, by now it is
well settled that it would be unsafe to accept oral
G evidence on its face value without seeking for assurance
from
other
circumstances
or
unimpeachable
documentary evidence. Oral evidence has to .be analyzed
by applying common sense test. It must be remembered
that in assessing the evidence, which is blissfully vague
H in regard to the particulars in support of averments of
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS.
433
undue influence, cannot be acted upon because the
A
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
B
the election petitioner cannot be accepted. [para 12) [450B-F]
Abdul Hussain Mir vs. Shamsu/ Huda and another 1975
(3) SCR 106 = (1975) 4 sec 533 - relied on.
c
2.4 In the instant case, the High Court has not
adverted to the evidence of any witness nor has it 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
D
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. [para 12) [450-E-H]
2.5
The
finding
of the
High
Court that
contemporaneous newspaper publications produced as
Exts. P-5 and P-6 corroborate the testimony of
respondent No. 1, is also not supported by the evidence
E
on record. The reporters of Exts. P-5 and P-6 were
examined. 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 newspapers could not have been
regarded anything except hearsay. The High Court has_
misdirected itself in placing reliance on the hearsay G
evidence, namely Exts. P-5 and P-6. In view of clear
proposition of law laid down in Quamaru/ /smam's case*,
hearsay evidence could not have been used by the High
Court
for
coming
to
the
conclusion
that
contemporaneous newspaper publications Exts. P-5 and
F
H
434
SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A P-6 corroborate the testimony of respondent No. 1. [para
12) [450-G-H; 451-A-D]
*Quamaru/ lsmam vs. S.K. Kanta and others 1994 (1)
SCR 210 =1994 Supp. (3) SCC 5 and Laxmi Raj Sheffy and
8 another vs. State of Tamil Nadu 1988 (3) SCR 706 = (1988)
3 sec 319 - relied on.
2.6 Similarly, the finding that seven UDF workers,
who were allegedly arrested on 8.5.2001 by the police for
distribution of the pamphlets, were released at the behest
C 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
D 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
E which contains no details and only records what the
Sub-Inspector heard from other people over telephone
about distribution of some printed notices. Nothing is
mentioned in the said entry about involvemenJ of any of
UDF workers or the appellant. Respondent No.1
F examined PW-7, Additional S.I., and produced Ext. X5, the
GD entry, to substantiate the allegation. 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
G 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 respondent No.1
has failed to prove the arrest of seven UDF workers, and
their release at the instance of the appellant, the further
case of respondent No. 1, that after coming out of the
H
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS.
435
police station, the appellant himself distributed the
A
offending pamphlets and directed others to distribute the
pamphlets, becomes highly doubtful and improbable.
[para 15 and 21] [459-A-H; 456-A-F]
'
2.7 There is absolutely nothing on the record to show
8
that the appellant had indulged in the act of distribution
of pamphlets and thus committed a corrupt practice. 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 u/s 99 of the Act is completely unsustainable.
C
Further, the High Court could not even identify a single
UDF worker, who, according to it, had distributed the
pamphlets; it has simply held that there is evidence to
show that UDF workers had distributed the pamphlets.
It is evident that respondent No. 1 has''failed to prove that
D
UDF workers had distributed the offending pamphlets on
8th and 9th May 2001. The finding of the High Court on
this score being against the weight of evidence is not
only perverse but is also contrary to the facts proved
and, as such, set aside. [para 15, 18,19 and 22] [455-G;
E
456-E-F; 460-C; 458-H; 459-A]
0. Venkata Reddy vs. R. Sultan and others 1976 (3)
SCR 445 = (1976) 2 sec 455 - relied on
F
2.8 The High Court erred in concluding that the
pamphlets were distributed by the UDF workers on 8th
and 9th May, 2001, observing that the benefit of the
distribution would have enured to none other than the
appellant and, therefore, inference could be drawn that
UDF workers had distributed the pamphlets with the G
consent of the appellant. Such a conclusion, based on
unwarranted inferences and surmises, is recorded only
because the High Court had misdirected itself on the
question of standard of proof required to be adopted to
resolve a dispute raised u/s 123 of the Act. The theory
H
,.,.
436 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A that the benefit of distribution could have enured only to
the appellant is misplaced. It is well-settled that to prove
that the corrupt practice of a third person is attributable
to a candidate u/s 123 of the Act, it must be shown that
the candidate consented to the commission of such an
B 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. (para 18
c and 21] [457-F-H; 458-A; 459-C-D]
3.1 The High Court's view that the appellant would
be liable for penalty u/s 99 of the Act for the acts of his
election agent without the conviction of such agent is
completely erroneous in law. It is relevant to notice that
D 'JV' was validly appointed as an 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 respondent No. 1 to establish
that 'JV' himself had distributed the offending pamphlets
E or that UDF workers had distributed the pamphlets with
the consent of 'JV'. The conclusion of the High Court that
the distributer of objectionable pamphlets Ext. X4 need
not be named nor a finding with the name of the
distributor be recorded u/s 99(1 )(a)(ii) of the Act, to say
F the least, is contrary to the ratio laid down in Chandrakanta
Goyars case* wherein the principle has been 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
G to this effect has to be recorded and that too only after
notice u/s 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.
(para 22] (460-B-F]
H
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS.
437
*Chandrakanta Goyal vs. Sohan Singh Jodh Singh Kohli
A
1995 ( 6 ) Suppl. SCR 522 = (1996) 1 sec 378 - relied
on.
3.2 The High Court has not only acted contrary to law
and ignored the mandate of s.99 of the Act but has also
8
taken the view that there was an option available to the
Court to ignore the requirement of s. 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
C
the foundation of the corrupt practice, allegedly
committed by the appellant. The judgment is obviously
vitiated since the High Court, choosing to ignore the
requirement of s.99 of the Act, has not recorded any
concluded finding on this question against the UDF
workers, who had allegedly distributed Ext. X4. If the
D
workers had no contumacious mind, the appellant hardly
could have been fastened with any vicarious liability for
the so called alleged corrupt practice. [para 22] [460-AE]
4.1 The High Court also committed an error in
holding that the distribution of the pamphlets amounted
to publication for the purposes of s. 123 of the Act. It is
E
an admitted fact that the objectionable pamphlets
contained statements, which were previously published
F
in three editions of the "Crime" magazine which has
circulation in the Constituency concerned. The word
"publication" occurring in s. 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"
G
as given in standard dictionary. The fir$t 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
H
438
SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A an act of making known of something to the public in
general for a purpose. In the instant case, this Court finds
· that the information as contained in the pamphlet about
respondent No. 1 having misappropriated the funds of
the school was already exhibited, displayed, disclosed,
B 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. [para 25) [462-A; E-G; 463B-E]
c
State of M. P. and another etc. etc. vs. Ram Raghubir
Prasad Agarwal and others 1979 ( 3 ) SCR 41 = (1979) 4
sec 686 - relied on.
4.2 A trial for an offence punishable u/s.123 of the Act
D is a criminal trial, and conviction thereunder may lead to
disqualification of the candidate concerned for a period
of six years u/s.99 of the Act, which is a serious matter.
Therefore, the provisions will have to be construed
strictly and, as such, reproduction and distribution of the
E 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
respondent No. 1 within the meaning of s.123 of the Act.
The High Court, erred in holding that as in law of
F defamation, the republication of statements of fact also
amounts to publication for the purpose of s.123(4) of the
Act. [para 25) [463-F-H; 464-A]
4.3 The High Court has further erred in holding that
the appellant believed the published material to be false
G at the time of its distribution. One of the important
ingredients in proving the offence of corrupt practice
u/s 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
H
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS.
439
unlike the law of defamation, where truth is a defence, A
s.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. The onus of proving that B
the maker believed the statement to be false rests with
the election petitioner and, in the instant case, respondent
no. 1 has not discharged the initial onus that rested on
him. On the contrary, the defence of the appellant that he
believed the statements made in Ext. X4 to be true c
because of their prior publication in "Crime" magazine
and failure of respondent No. 1 to initiate any legal action
against the said magazine, if tested on preponderance of
probability stands proved. [para 27] [464-E-11; 465-A-B]
Dr. Jagjit Singh vs. Giani Kartar Singh and others AIR D
1966 SC 773 - relied on.
5. In view of the fundamental mistake committed by
the High Court in the matter of standard of proof while
resolving the dispute of corrupt practice and faulty E
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 F
is set aside. [para 27] [467-D-E]
Case Law Reference:
(1964) 6 SCR 750
followed
Para 8
AIR 1966 SC 773
relied on
Para 10
G
and 27
1975 (3) SCR 106
relied on
para 12
1994 (1) SCR 210
relied on
para 13
H
A
B
440
SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
1988 (3) SCR 706
relied on
1976 (3) SCR 445 relied on
1995 (6) Suppl. SCR 522 relied on
1979 (3) SCR 41 relied on
para 13
para 18
para 22
para 25
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5310 of 2005.
From the Judgment & Order dated 08.08.2005 of the High
c Court of Kerala at Ernakulam in E.P. No. 6 of 2001.
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L. Nagaswara Rao, Roy Abraham, Hari Kumar, Seema
Himinder Lal for the Appellant.
Jasawini Mishra, Romy Chacko for the Respondents.
The Judgment of the Court was delivered by
J.M. PANCHAL, J. 1. 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,
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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
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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
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character and conduct of the respondent No. 1.
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2. The facts, emerging from the record of the case, are as
under:
The election to the Kerala Legislative Assembly was held
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS.
441
[J.M. PANCHAL, J.]
on May 10, 2001. From the Constituency, i.e., No. 106
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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 respondent No.3,
contested the election. The result of the election was declared
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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 c
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 D
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
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the respondent No. 1, were distributed by the appellant, his
election agent and workers of the United 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
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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: -
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"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.
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442
SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
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.
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 tlie 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.
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS.
443
[J.M. PANCHAL, J.]
T.S. John M.L.A. the people's representative who lives in
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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.
Role of P.J. Joseph, Minister and T.S. John M.L.A.
Embez.zlement of crores of rupees behind Palemaad
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Vivekanada School
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There is a school in the name of Palemaad Vivekanada
village near Manjeri in Malappuram District, which is
populous with settlers, but is an undeveloped area under
the shield of this school, which started functioning during
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1963, a family is leading princely life at the expense of the
Government, embezzling Qrores 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.
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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."
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The appellant filed written statement resisting the election
petition. In the written statement, distribution of Ext. X4 in the
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Constituency on May 8, 2001 and May 9, 2001 was not
specifically denied meaning thereby ignorance was pleaded so
far as distribution of the 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
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444 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A 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
B 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
C 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 was liable to be
voided. So far as the appellant is concerned, he had examined
D 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.
E 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
F 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 has further held that relevant contemporaneous
G 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
H learned Single Judge further observed that the act of the
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS.
445
[J.M. PANCHAL, J.]
appellant in not stopping his workers from continuing with
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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
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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
distribution did not inspire confidence of the court.
5. The learned Judge further held that in releasing Ext. X4 c
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,
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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,
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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 election was calculated to prejudice the
prospects of the respondent No. 1 of winning the election. The
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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.
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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.
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SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.
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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.
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8. So far as standard of proof is concerned, there is no
manner of doubt that the High Court misdirected 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
C 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
D 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
E one applicable to civil cases and lesser than the one applicable
to criminal cases. The standard· of proof, spoken of by the
learned Judge, neither gets recognition/stamp of authority either
froni the provisions of the Indian Evidence Act or from any other
statute or from judicial precedents. There is no manner of doubt
F 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 li:iw is that an
election trial where corrupt practice is alleged is to be
conducted as a criminal trial. Unfortunately, the High Court has
G 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
H Sidhanti vs. Pratap Singh Dau/ta (1964) 6 SCR 750, the Five
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS.
447
[J.M. PANCHAL, J.]
Judge Constitution Bench of this Court has laid down, in
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paragraph 11 of the reported decision as under: -
"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
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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
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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 o
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
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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.
9. The consequence of the conclusion, that the learned
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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.
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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.