# DEV KANTA BAROOAH v. GOLOK CHANDRA BARUAH & ORS

- **Citation:** [1970] 3 S.C.R. 662
- **Court:** Supreme Court of India
- **Decided:** 1970-02-12
- **Bench:** S. M. Sikri, V. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dev-kanta-barooah-v-golok-chandra-baruah-ors-5069
- **Pages:** 19

## Headnote

Representation of the People Act (34 of 1951), s. 123(4)-Statements
in leaflet-Com1nent on educational
qualificaiions of candidate-Staten1ent of facts and expression of opinion on the political position of candidate-If amounts ro corrupt. practice.
A
B
The first respondent studied for his intermediate examination in two
colleges one after the other, but never s.at for the examination. He enC
tered government service as a clerk.
Some. time after 1943 he resigned
from service and joined the military contract business which was being
carried on by his brothers.
Jn 1952, though he was a member of the
Congress party, he. stood for election against the Congress candidate after
promising not to do so. Thereafter, he became Chairman of a Municipality and during his tenure as such,- several thousand rupees were taken
away from the Treasury on signatures re5embling the first respondenfs
signature. and Some persons were prosecuted. Also, while be was ChairI)
man, he issued an order to the effe.ct that salarie~ of sv.·eepers were to be
paid by the head clerk. In November 1964, the first respondent resigned
his chairmanship. The head clerk, instead of paying the sweepers. in December, misappropriated the money. When the misapprQpriation was discove'red
by the Vice-Chairman, the head clerk committed suicide in
December
1964.
In the 1967 election, the first respondent again Mood for election.
to the State Legislature against the Congress candidate, once again breaking his written promise not to do so.
Hoy,;ever, the appellant was deeE
Jared elected. The first respondent challenged the election of the appel-.
Iant.
One of the. grounds in the election petition was that the following
false statements as to the personal
character of the first
respondent,
reasonably calculated to prejudice his prospects of election. had been published in. a leaflet with the con&ent of the appellant :
(I) That the first respondent 'after rolling from several colleges failed
to pass the intermediate examination;'
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(2) that during the first respondent's tenure as Chairman there were
instances of corruption and chaos; and that the criminal case in connection
with the taking of money from the treasury was pending hearing at the
time of the publication of the leaflet;
(3) that 'at that tin1e' the head clerk committed suicide; and
( 4) that by taking military contracts he helped the British Goverrunent
in India during the 1942-movement and by his standing for election against
Congress candidates he was guilty of 'treachery' Desadrohita) and 'b~ach
of faith' (Vishll'asghatakta).
On the question whether statements constituted corrupt practice under
s. 123(4) of the Representation of the People Act, 1951,
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HELD : (1) In an election it is open to a candidate to show that hi>
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rival candidate is lacking in knowledge and education and that he is not
capable of managing the affairs in a public body. The statement in the
leaflet only stated that he failed to pass the examination and not that he
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D. K, BAROOAH v. G. c. BARUAH (Bhargava, 1.)
663
failed at the examination. There was a slight exaggeration when the leaflet
referred to several colleges, but it could not be held to be a false statement
affecting the personal character, or conduct of the first respondent.
[668 B-E]
(2) The imputation was as to the mismanagement of the affairs of
the Municipality by the first respondent, indicating that he was not a
good administrator and not, that be was himself corrupt. · That part of
the statement that the criminal case was then pending, though incorrect,
did not cast any as person on the conduct or character of the first respondent. [669 H; 670 A-Bl
( 3) The expression 'at that time' interpreted literally would mean that
the suicide was committed while the first respondent was the Chairman,
which was not true, because, be had resigned earlier. But since the opportμnity for the bead clerk to misappropriate the money occurred while
the first respondent was the Chai

## Text

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R. C. COOPER v. UNION (Ray,/.)
661
A
1969 is invalid and the action taken or deemed to be taken in
exercise of the powers under the Act is declared unauthorised.
Petition No. 222 is dismissed. There will be no order as to costs.
in these three petitions.
K.B.N.
662
DEV KANTA BAROOAH
v.
GOLOK CHANDRA BARUAH & ORS.
February 12, 1970
(S. M. SIKRI AND V. BHARGAVA, JJ.)
Representation of the People Act (34 of 1951), s. 123(4)-Statements
in leaflet-Com1nent on educational
qualificaiions of candidate-Staten1ent of facts and expression of opinion on the political position of candidate-If amounts ro corrupt. practice.
A
B
The first respondent studied for his intermediate examination in two
colleges one after the other, but never s.at for the examination. He enC
tered government service as a clerk.
Some. time after 1943 he resigned
from service and joined the military contract business which was being
carried on by his brothers.
Jn 1952, though he was a member of the
Congress party, he. stood for election against the Congress candidate after
promising not to do so. Thereafter, he became Chairman of a Municipality and during his tenure as such,- several thousand rupees were taken
away from the Treasury on signatures re5embling the first respondenfs
signature. and Some persons were prosecuted. Also, while be was ChairI)
man, he issued an order to the effe.ct that salarie~ of sv.·eepers were to be
paid by the head clerk. In November 1964, the first respondent resigned
his chairmanship. The head clerk, instead of paying the sweepers. in December, misappropriated the money. When the misapprQpriation was discove'red
by the Vice-Chairman, the head clerk committed suicide in
December
1964.
In the 1967 election, the first respondent again Mood for election.
to the State Legislature against the Congress candidate, once again breaking his written promise not to do so.
Hoy,;ever, the appellant was deeE
Jared elected. The first respondent challenged the election of the appel-.
Iant.
One of the. grounds in the election petition was that the following
false statements as to the personal
character of the first
respondent,
reasonably calculated to prejudice his prospects of election. had been published in. a leaflet with the con&ent of the appellant :
(I) That the first respondent 'after rolling from several colleges failed
to pass the intermediate examination;'
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(2) that during the first respondent's tenure as Chairman there were
instances of corruption and chaos; and that the criminal case in connection
with the taking of money from the treasury was pending hearing at the
time of the publication of the leaflet;
(3) that 'at that tin1e' the head clerk committed suicide; and
( 4) that by taking military contracts he helped the British Goverrunent
in India during the 1942-movement and by his standing for election against
Congress candidates he was guilty of 'treachery' Desadrohita) and 'b~ach
of faith' (Vishll'asghatakta).
On the question whether statements constituted corrupt practice under
s. 123(4) of the Representation of the People Act, 1951,
G
HELD : (1) In an election it is open to a candidate to show that hi>
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rival candidate is lacking in knowledge and education and that he is not
capable of managing the affairs in a public body. The statement in the
leaflet only stated that he failed to pass the examination and not that he
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663
failed at the examination. There was a slight exaggeration when the leaflet
referred to several colleges, but it could not be held to be a false statement
affecting the personal character, or conduct of the first respondent.
[668 B-E]
(2) The imputation was as to the mismanagement of the affairs of
the Municipality by the first respondent, indicating that he was not a
good administrator and not, that be was himself corrupt. · That part of
the statement that the criminal case was then pending, though incorrect,
did not cast any as person on the conduct or character of the first respondent. [669 H; 670 A-Bl
( 3) The expression 'at that time' interpreted literally would mean that
the suicide was committed while the first respondent was the Chairman,
which was not true, because, be had resigned earlier. But since the opportμnity for the bead clerk to misappropriate the money occurred while
the first respondent was the Chairman, it must be held that the allegation made in the clause is also substantially correct. Further, there was
no suggestion in the statement . that the first respondent himself was
corrupt or that the suicide was the result of his personal corruption..
[67.2 F-HJ
( 4) The vernacular words used for 'treachery' and 'breach of faith'
though harsh, were not such as to lead the voters to think that the first
respondent had a low moral character. The leaflet was published in reply
to the fir.t respondent's leaflet as to why he left the Congress, giving
reasons as to why he was expelled from the Congress. Care was taken
to give the facts from which inferences were being drawn and the voters
could very well perceive for themselves whether the inference, which was
drawn and expressed in strong terms, was justified or not.
The treachery
or breach of faith towards the country refers to the first respondent's
help to the British by taking military contracts at about the time of the
194 2-movement, and his treachery or breach of faith towards the Congress ha's reference to his standing fdr election as against the Congress
nominee. Therefore, since the facts were given and only inferences were
drawn, the words used at the time of putting down the inferences must
be held, to be only expressions of opinion, on the first respondent's political
position and do not themselves connote any statement of facts involving
moral depravity. Hence, the publication of the leaflet, cannot be held to
cqnstitute corrupt practice under s. 123(4) of the Act. (667 D-E, 673
C-F, H; 674 H; 675 A, D, F-G; 676 D-EJ
Guruii Shrihari Baliram Jivatode v. Vithal Rao and Ors. (1961] 1
S.C. Cases 82 an.d
Inderlal v.
Bal Singh, (1962]
Supp. 3 S.C.R.
114. followed.
Kumara Nand v. Bri;mohan Lal Sharma, [1967] 2 S.C.R. 12 distinguished and explained:
Kultar Singh v. Mukhtiar Singh, [1964] 7 S.C.R. 790, Cumberland
(Cockermouth Division) Case, (1901) O'M&H 155, Ellis National Union
of Conservative Constitutional Association 109 L.T. Jo 493, Parkers
Election Agent and Returning Officer, 6th Edn. p. 91, Halsbury's fAws
of England 3rd Edn. Vol. 14, para. 394 and Rogers on Elections Vol. II,
20th Edn. p, 368, referred to.
T. K. Gangi Reddy v. M. C. An;anaya Reddy, [1960] 22 E.L.R. 261,
Mohan Singh v. Bhanwarlal and Ors. [1964] 5 S.C.R. 12 and Sheopat
Singh v. Ram Pratap, [1965] 1 S.C.R. 175, distinguished.
CrvrL APPELLATE JURISDICTION : Civil Appeal No. 1701 of
1968.
664
SUPREME COURT REPORTS
(l 970) 3 S.C.R.
Appeal under s. 116-A of the Representation of the People Act,
1951 from the judgment and order dated July 4, 1968 of the Assam
and Nagaland High Court in Election Petition No. 3 of 1967.
C. K. Daphtary, S. Mohan Kumaramangalam, S. K. Nandy,
V. J. Francis, R. K. Garg, S. C. Agarwa/a, D. P. Singh and
S. Chakravarty, for the appellant.
P. K. Chalterjee, R. B. Datar, B. M. Mahanto and Rathin Das.
for the respondents.
The Judgment of the Court was delivered by
Bhargava, J.
The appellant, Dev Kanta Barooah, was declared elected at the las~ General Elections to the Legislative Assembly of Assam in 1967, defeating the four rival candidates who
are respondents 1 to 4 in this appeal.
Respondent No. l, Golok
Chandra Baruah, filed an election petition challenging the election of the appellant on various grounds, including a charge that
false statements as to the personal character of respondent No. 1
had been published with the consent of the appellant, th'lS constituting a corrupt practice under section 123(4) of the Representation of the People Act, 1951 (hereinafter referred to as "the
Act").
This is the only ground which has been accepted by the
High Court of Assam and Nagaland and the election of the appellant has been set aside on this ground. In this appe~, consequently, the only question that falls for decision is whether the
High Court was right in setting aside the election of the appellant on the ground of corrupt practice having been committed
within the meaning of s. 123(4) of th.e Act.
This corrupt practice was alleged by respondent No. 1 to have been committed by
the appellant by publication of a leaflet which is, for convenience,
reproduced below :-
"Why Golok Barna was driven away from the Congress?
(Picture of a pair of bullock with yoke)
Humble submission,
One leaflet bearing full of downright falsehood and
false allegation with the Caption "Why I have left the
Congress" has been published and distributed by Sri
Golok Chandra Barna in the Samaguri Constituency.
The
patriot voters
of Samaguri have sufficient
experience and political consciousness.
They would not
believe the abominable and false publicity of Shri Golok
Barna .. Still for the knowledge of the public a brief description of the activities of public life of Shri Barna has
been published. From that it will be understood that
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D. K. BAROOAH v. G. c. BARUAH (Bhargava, J.)
Sri Golok Barua is not an actual congress man.
He is
a driven-out congressman wearing a mask.
I. Golok Barua after rolling from several Colleges
failerl to pass the I.A. and at first became a copyist at the
Katchery and thereafter became a Clerk.
At the mass-movement of '42 he earned some money
by doing Military Contracts.
2. In 1952 by entering in the Congress sought nomination from the Congress from the Samaguri Constituency.
The Congress did not give him nomination as in
:he '42 Movement he helped the British and revolted
against the Country.
After breach of promise he was
badly defeated by standing against Shrimati Usha Barthakur who was a Congress nominee.
3. Again by entreaties he joined the Congress and
<'n the sudden death of Late Pratap Chandra Sarma
Shri Golok Barua became the Chairman of Nowgong
'.\fonicipality.
Please note some of the instances of
injustice and chaos during his tenure of Office.
(Ka) During his time several thousand Rupees were
taken away from the Treasury unlawfully on signatures
resembling to those of his signatures.
The matter is
now pending for hearing.
(Kha.) When a huge amount of money withdrawn
from the National Savings was misappropriated the Govt.
Examiner of Accounts declared Sri Golok Barna alone
as guilty.
(Ga) At that time also on account of corruption in
the Municipality alone late Dharmeswar Sarma the then
Head Clerk of his time had to commit suicide.
(Gha) While Sri Go!ok Barua was the Chairman at
night like dn1nkard went to the Ex-Chairman Dr.
Birendra Kishore Guha and not finding Dr. Guha behaved his wife and daughter unmannerly.
After that
assaulted Dr. Guha with shoes in presence of many persons.
On that offence Sri Golok Barua was compelled
to resign his Chairmanship by the Executive Committee
of the District Congress Committee.
4. This time Sri Golok Barua sought for nominanation from the Congress as a candidate to the Parliament from Kaliabar Constituency and a candidate to the
Legislative Assembly from the Barhampur Constituency
665
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SUPREME COURT REPORTS
[1970) 3 S.C.R.
But the Congress refused to give nomination due
to his conduct and Character and due to his treachery
towards the Country and the Congress.
Out of that
grudge he, again, by breaking his written promise to
the effect that he would not go against the Congress
if he was not given nomination by the Congress, has
stood as a non-party candidate again from the Samaguri
Consthuency and he has published untrue and false propaganda against the Congress.
5. Due to the offence of the treachery he has been
compie.tely driven away from the Congress for a period
of six- years by the Assam Provincial Congress Committee.
As a matter of fact Sri Golok Barua has been
driven out from the Congress.
These facts have been
published for the knowledge of ~he vigilant and patriot
electors of Samaguri.
Nowgong.
5-2-67
Nowgong District Congress
Election Committee."
The original leaflet was in Assamese and the above version of
it is in accordance with the official translation prepared in the
paper book.
During the course of arguments, however, it was
brought to our notice that, at some places, the translation did
not correctly represent the meaning conveyed in Assamese, so
that the Assamese words were read out to us.
Further, our
attention was also drawn to the translation accepted by the learned Judge of the High Court who tried the election petition and
who had some knowledge of Assamese language.
We shall indi·
cate later where we consider that the translation reproduced above
cannot be accepted as correctly representing the text in Assamese
language.
The ground taken in the election petition was that this leaflet
contained false statements as to the personal character or conduct
of respondenc No. 1 which were reasonably calculated t0 pre·
judice his prospects of being elected in this election.
The learned
trial Judge held that some of the statements of fact made in the
leafl.et did relate to the personal character or conduct of respondeni No. 1 and that, except for two such statements which were
proved to be true, they were false to the knowledge of the appellant.
It was .also held that this leaflet had been published and
distributed with the consent of the appellant, so that the election
of the appellant was set aside.
In this appeal, Mr. Daphtary.
appearing on behalf of the appellant, challenged the decision of
the High Court in two respects.
The firsi contention raised by
him was that the statements in this leaflet, which have been held
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. D. K. BAROOAH V. G. c. BARUAH (Bhargava, J.)
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to be false, did not relate to tJ:ie personal character or conduct
of respondem No. 1, and that the statements which did relate
to the personal character or conduct of respondent No. 1 were
proved to be true, so that the provisions of s. 123(4) of the Act
were not attracted.
The second contention was that the High
Court was not right in holding that this leaflet had been publish·
ed and distributed with the consent of the appellant.
Since, after
hearing arguments of learned counsel for both parties, we have
come to the view that the first point raised by Mr. Daphtary must
be accepted, we did not consider it necessary to hear counsel
on the second point relating to proof of consent of the appellant
to the publication of this leaflet.
The leaflet purports to have been published on behalf of the
N owgong District Congress Election Committee.
It is admitted
that respondent No. 1 wanted to be sponsored as the candidate
for the Legislative Assembly by the Congress Party in this general
election.
The Congress Party, however, sponsored the candi·
dature of the appellant, whereupon respondent No. 1 stood for
election as an independent candidate.
In this background, respondent No. 1 issued a leaflet explaining why he had left the
Congress and it was in reply tc that leaflet that the Nowgong
District Congress Election Committee issued the leaflet in question.
The leaflet, thus, begins with the caption "Why Golok Barna
was driven away from the Congress ?"
The leaflet thereafter
purports to give the reasons why he was expelled from the Congress, and the
facts stated in
it are divided
into five paragraphs.
The first paragraph mentions that respondent No. 1 after roll·
ing from several Colleges failed to pass the Intermediate Exami·
nation and at first became a copyist at the Kachery and there·
after became a Clerk.
At the mass-movement of 1942, he earned some money by doing Military Contracts.
The High Cour!
has held that this paragraph amounts to publication of false statement covered by s. 123(4) of the Act inasmuch as it is incorrect
that respondent No. 1 rolled from several colleges and that at the
mass movement of 1942 he earned some money by doing military
contracts.
The evidence disdosed that respondent No. 1 studied
for his Intermediate Examination in only two Colleges one after
the other and did not move from college to college.
It was also
found as a fact that he did not pass the Intermediate Arts Examination and that the reason was that he could not appear at the
Examination at all due to the death of his father.
He did not
fail at that examination.
The further finding was that he himself
was in government service at the time of. the movement of 1942.
so that he could not have done any military contract work in
that year.
It was only later on that he resigned and joined the
668
SUPREME COURT REPORTS
[1970) 3 S.C.R.
military contract business which was being carried on by his two
brothers.
The High Court was of the view that the publication
of these statements was bound to lower respondent No. l in the
opinion of the voters and, consequently, this publication amounted to a corrupt practice.
As urged by Mr. Daphtary, we are
unable to agree that the publication of the facts in this paragraph
can be held to amount to false statements as to the personal character or conduct of respondent No. l. In an election, it is
always open to a candidate to show that his rival candidate is
Jacking in knowledge in education and is not capable of managing
the affairs properly irt any public body.
The intention in the
first part of paragraph l of the leaflet was to inform the voters
of the educational qualifications of respondent No. l. He did
move from one college to a second one during his period of study
for the Intermediate Arts Examination. May be, that there is a
slight exaggeration when the leaflet mentions that he rolled from
several colleges; but such an exaggeration is quite natural on
occasions when canvassing is going on for an election.
It is to
be noted that the leaflet does not state that respondent No. l
failed at the Intermediate Arts Examination.
All it says is that
he failed to pass that Examination which has been admitted as
being perfectly true by respondent No. l himself.
He failed to
pass, beClluse he did not appear at the examination.
Such a statement cannot, in our opinion, be held to be a false statement
affecting the personal character or conduct of respondent No. l.
The second part of this paragraph can be conveniently dealt with
while discussing the facts mentioned in paragraph 2.
In paragraph 2 of the leaflet, the reason why the Congress
did not give him nomination is given.
It is stated, that in the
1942 movement. he helped the British and revolted against the
country.
The expression "revolted against the country" is a
translation for the Assamese word "Deshdrohita"
( ~m-1~;;;).
It is true that the High Court has come to the finding of fact that in
1942 respondent No. I was in government service working as a
Clerk and it was qnly later on, after 1943, that he actively participated in the business of his brothers of taking military contracts for
the British.
The trend of the evidence.· however, shows that
his brothers had been carrying on the military contracts business
even earlier than 1943.
Even for the later period, respondent
No. 1 tried to deny that he actually participated in the military
contract business with his brothers; but, when cross-examined
in detail and confronted with a power of attorney in his favour,
he had to make admissions which clearly show that he was
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taking part in that business.
It appears to be quite likely that,
even before he actually resigned government service and joined
the business of his brothers, he may have been assisting them,
so that the allegation that he helped the British in 1942 movement by taking military contracts cannot be said to be a false
statement; at best, there may be a slight errors about the period
during which he did that work.
Again, the aspect that he was
helping the British by taking military contracts relates to a reflection on his political conduct in siding with the British Government
rather than joining the Congress which was carrying on a movement against the British for achieving independence of the country.
It was in this background that his activities were described by
using the word "Deshdrohita" in this pamphlet.
Whether it amounted to "deshdrohita" or not may be a disputed question.
Members of the Congress, who were carrying on the agitation
against the British for achieving independence of the country,
could very legitimately think that any one who helped the British at that time was guilty of "deshdrohita" inasmuch as his
activities. were against the interests of our country.
This expression was also, there.fore, used to describe the nature of his activities which, in fact, related to the political situation at tha!
time.
It cannot be said that this paragraph reflects on the personal character or conduct of respondent No. 1, as there is no
imputation of any depravity or immorality in this paragraph.
Paragraph 3 is the principal paragraph in which the conduct
of respondent No. 1 has been criticised.
Admittedly, he was
the Chairman fo the Nowgqng Municipality, and the principal
part of this paragraph asks the voters to note some of the instances of injustice and chaos during his tenure of office.
In
Assamese, the two words which have been translated as "injustice" 'and "chaos" were "Durniti" ( 'l:f;;fu ) and "Arajakta"
(ilf\nr;i;m).
Our attention was drawn by learned counsel
for respondent No. 1 to the statement of Devendra Nath Bora.
the writer of this leaflet, where he stated that he meant by these
words "corruption" and "lack of administration".
The High
Court took these words to mean "corruption" and "anarchism"
as these are the English words used in the judgment of the High
Court.
It may, hol\'ever, be noted that, in this part, it is not
stated that respondent No. I himself was corrupt.
The imputation only is that, during his tenure of office, there were instances
of corruption and chaos.
Thereafter, thci 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 b.e !hat his administration as Chairman of the
Municipality was no unsatisfactory that · corruption and chaos
prevailed in the affairs of the Municipality.
The imputation,
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670
SUPREME COURT REPORTS
[1970] 3 S.C.R.
therefore, was as to mis-management 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.
In clause (Ka), the instance given is that, during his time,
several ihousand rupees were taken away from the Treasury unlawfully on signatures resembling his signatures and that the
matter was still ·pending for hearing when the leaflet was issued.
Mr. Daphtary drew our attention to the admissions made by respondent No. 1 himself when he was in the witness-box ihat
several thousand rupees were, in fact, dra~ from the Treasury in
the municipal accounts on the basis of some cheques containing
signatures which resembled the signature of respondent No. 1.
In substance, therefore, the truth of the statement contained
in this clause is admitted.
The only part of the statement in
this clause, whieh is found to be incorrect, is that the maaer
was pending for hearing even at the time of the election.
It
appears that the criminal case relating to that incideni had been
decided earlier. The part of the statement, which was not true,
did not, by itself, contain any statemeni relating to the conduct
or character of respondent No. 1.
The first sentence, which
cast reflection on respondent No. 1 by indicating that the management of the affairs of the Municipality in his time was not good
and successful, has been admitted to be true.
Consequently, this
clause cannot be held to constitute corrupt practice under s. 123(4)
of the Act.
·
In clauses (Kha) and (Cha), there are, undoubtedly, statements which reflect on the· personal character and conduct of respondent No. 1.
Clause (Kha) mentions that, when a huge amount
of money withdrawn from the National Savings was misappropriated, the Government Examiner of Accounts declared Sri
Golok Barua alone as guilty.
The word "guilty", in fact, is
not the correct translation for the Assamese word which was "Daee"
~ The learned Judge of the High Court translated this
word as "responsible" in his judgment, which appears to us to
be correct.
The learned Judge also held that the allegation
contamed in this clause has been proved to be true. The report
of the Government Examiner of Accounts was brought to our
notice.
In that report, the Auditor wrote :-
"The entire responsibility for their encashment and
credit to the fund rests with him and the fact that the
accounts were maintained by the Head Assistant does
not absolve the Chairman of his responsibility in thjs
connection. The Chairman, Sri G. C. Barua, stands
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fully liable for the loss, which should be recovered from
him now."
The contents of clause (Kha) do not go beyond what was found
by the Auditor in his report, the relevant part of which has been
reproduced by us above.
It is true that this statement, to some
extent, reflects on the personal character of respondent No. 1
inasmuch as it states that he was held responsible for the mis·
appropriated money; but, that being a true fact, its publication
has rightly been held by the High Court not to amount to corrupt
practice.
Similarly, in clause ( Gha), there is mention of an incident
when respondent No. l, while Chairman of the Municipality, is
alleged to have gone at night like a drunkard to the house of Ex·
Chairman, Dr. Birendra Kish ore Guha, and, not finding Dr.
Guha, "behaved with his wife and daughter unmannerly''. It is
further stated that, after that, he assaulted Dr. Guha with shoes
in the presence of many persons, and that, on that offence, he
was compelled to resign the Chairmanship by the Executive Committee of the District Congress Committee.
The High Court has
held that the facts stated in this clause are also true.
The only
point .that Mr. Chatterjee, counsel for respondent No. l, could
urge was that, according to the evidence of the daughter of Dr.
Guha, there was no misbehaviour with the wife and the mention
of the wife in this clause was intended to convey an idea of some
immoral behaviour on the part of respondent No. 1 which is not
supported by any statement of fact.
We have examined the evidence of the daughter, Miss Sipra Guha alias Miss Lily Guha, who
related what happened during that night.
According to her, she
and her mother were inside the house when some one knocked at
the door calling out "Dr. Guha, Dr. Guha".
At the instance of
her mother, she opened the door and the gentleman who was
there caught hold of her clothes just under the neck and pulled
her towards him.
At this, she shouted for her mother who came
to the scene and recognised respondent No. 1.
Respondent No.
1 then angrily asked where Dr. Guha was and whether he was
inside the house.
Her mother replied to him that her father had
gone to see the J atra performance.
She also got angry and protested against his being there at such a time.
She also found
smell of alcohol coming from the mouth of respondent No. 1.
The
version given by this witness seems to fully justify the statement
contained in clause (Gha).
The mention of the wife is with
reference to unmannerly behaviour towards her.
It does not say
that any attempt was . made by him to. assault her.
The- High
Court was, therefore, quite correct in recording the finding that
these allegations contained in this clause were ti'ue and, not
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being false statements, they could not constitute corrupt practice
under s. 123(4) of the Act.
There remains clause (Ga) of paragraph 3 in which it is
stated that, at that time also, on account of corruption in the
Municipality alone,
late Dharmeswar Sarma, the then Head
Clerk of his time, . had to commit suicide.
Some of the ingredients of this clause have been found by the High Court to be
incorrect.
The facts found show that, while respondent No. 1
was Chairman, he issued an order to the effect that the salaries
of sweepers were to be paid by the Head Clerk instead of the
Accountant who was to hand over the money for that purpose
of the Head Clerk
Respondent No. 1 resigned the Chairmanship in November, 1964 and his resignation
was accepted
on 21st November, 1964.
It was subsequently in the month of
December, 1964 that the salary of the sweepers was not paid
by the Head Clerk, Dharmeswar Sarma, who had received the
money for this purpose.
Under the orders of respondent No.
1, the payments had to be made by the Head Clerk in the presence of the Chairman or the Vice-Chairman or some other member nominated for the purpose by the Chairman.
The ViceChairman held Dharmeswar Sarma responsible for the money
when he found that the sweepers had not been paid and, thereupon, directed Dharmeswar Sarma to make good the shortage
and pay up all the sweepers by 1 p.m. on 10th December, 1964
positively, failing which legal action would be taken against him.
This order was not carried out and, instead, on 10th December,
1964, Dharmeswar Sarma committed suicide.
These facts, no
doubt, indicate that the statements made in clause (Ga) of paragraph 3 are not strictly correct. The main allegation that Dharmeswar Sarma, the Head Clerk, committed. suicide and that it
was the result of corruption which was going on in the Municipality are borne out by the facts found.
The expression used "at
that time" in this clause, if interpreted literally, would mean that
the suicide was committed while respondent No. 1 was himself
the Chairman which is not true inasmuch as he had resigned earlier.
It is, however, to be noted that the opportunity for Dharmeswar Sarma to misappropriate the money occurred only because of an order which had been passed earlier by respondent
No. 1 while he was Chairman of the Municipality.
In these circumstances, it has to be held that the allegation made in this
clause is also substantially eorrect. The allegation was intended
to convey that there was corruption in the Municipality at the time
when respondent No. 1 was the Chairman and that it was so has
been found to be true.
There was no suggestion in this clause
that respondent No. 1 himself was corrupt and that the suicide
was the result of his personal corruption.
Thus, this part of the
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leaflet ulso cannot constitute corrupt practice under s. 123(4) of
the Act.
Then, we come to paragraphs 4 and 5 of the leaflet in which
the main objection is to the mention of his treachery towards
the country ano the Congress.
In paragraph 4, it is sta:ed that
the Congress refused to give nomination due to his conduct and
character and due to his treachery towards the country and the
Congress, while paragraph 5 states that, due to the offence of
treachery, he had been completely driven away from the Congress
for a period of six years by the Assam Provincial Congress Committee.
The word "treachery" is a translation for the Assamese
word "Vishwasghatakta"
(f'ITT'T<l"l"Ti'fii>cff)
which prob~bly can
be more appropriately translated as "breach of faith", though
treachery may also be one of the translations for this word.
On
the face of it, the_ treachery or breach of faith towards the country
again refers to his help to the British by taking military contracts
at about the time of the movement of 1942, while his treachery
or breach of faith towards the Congress has reference to his standing as a candidate against the Congress nominee in the earlier
election as, well as in this election.
Learned counsel for respondent No. 1 urged that. the terms used iri this leaflet, viz., "Deshdrohita" and "Vishwasghatakta" are very strong terms and are
bound to be taken by voters in such a light that they would have
a low· opinion about the character of respondent No. 1.
It is,
however, to b~ noted that these words have been used in the
context of facts on the basis of which the writer of this leaflet
thouht that respondent No. 1 had been guilty of "Deshdrohita"
and "Vishwasghatakta".
It is, therefore, really an expression
of opinion about respondent No. 1 based on facts.
These words
do not themselves connote any statement of fact which can be
said to be false.
In this .connection, learned counsel for respondent No. 1
relied on the decision of this Court in Kumara Nand v. Brijmohan
Lal Shwma, (1) where, in a poem, the candidate was described
as the "greatest of all thieves",
The Court held that this description was not a mere opinion and that, when the candidate
was called the greatest of all thieves, a statement of fact was
being made as to his personal character or conduct.
There are
two features which distinguish that case from the case before us.
First, a statement that a person is a thief clearly imputes to him
moral depravity, while statements saying that ho has committed
"Deshdrohita" or "Vishwasghatakta" only reflect on his conduct
in tho political field and do not bring in any elcm~nt of moral
depravity.
Secondly, in that case, no facts were given from
which an inference might have been sought to be drawn that
{I) [1967] 2 S.C.R. 127.
LBSup.Cl/70-13
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(1970] 3 S.C.R.
the candidate was the greatest of all tl!ieves, while, in the case
before us, objectionable words have been used after giving the
facts, on the basis of which it was held that the conduct of respondent No. l had been undesirable so as to be described as
"Deshdrohita" and "Vishwasghatakta".
Counsel for the appellant, in this connection, relied on a passage at page 91 of Parker's Election Agent and Returning Officer, 6th Edition, which
is to the following effect :-
"But the following have been held not to be within
tl!e provision :- a statement which imputed that the
candidate was a traitor, and was one of certain persons
who were in correspondence with the enemy shortly
before the South African war broke out in 1899."
This passage is based on the decision in Ellis v. The National
Union of Conservative and Constitutional Association, 109 L.T.
Jo. 493 which book has not been available to us.
Based on
the same case, it is stated in note (a) at page 227 under paragraph 394 of Halsbury's Laws of England, 3rd Edn., Volume 14,
that:
"The words 'Radical traitors' were held to be not
within the provision, as being a statement of opinion
rather than of fact."
Counsel for respondent No. 1, however, drew our attention to
the fact that in the case of Kumara Nand~) this Court did
not rely on Parker's version of the decision on the ground that
in Rogers on Elections, Vol. II, 20th Edn., at page 368, the
facts given indicated that there was no statement of fact with
respect to the candidate himself that he was a traitor and all that
was said was that Radical members of the House of Commons
were in correspondence with the Boers and the candidate happened to be one of the Radical members.
On this ground, the
Court did not choose to accept the dictum repro.duced by Parker.
It, however, appears that, even in Rogers on Elections, it was
mentioned, in addition to the facts noted in that case by this
Court, that "any false statements were of opinion only and not
of fact".
This part of the sentence in Rogers on Elections does
. not seem to have been brought to the notice of the Court.
It
appears that, apart from the allegation that Radical members of
the House of Commons were in correspondence with the enemy,
there must have been an inference drawn that the candidate was
a traitor and it is with reference to this last statement that Rogers
mentions that the false statements were held to be matters of
opinion only and not of fact. In any case, even if we do not
rely on the principle laid down in that case in England, we are
s~ill of the view that, in the present case where the statements
O) !19671 2 s.c.R. 121.
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675
of fact are given and only inferences are drawn, the words used
at the time of putting down the inferences have to be held to be
expressions of opinion and not statements of fact.
Reliance was also placed on behalf of respondent No. 1 on
the quotation from the decision in T. K. Gangi Reddy v. M. C.
Anjan1eya Reddy(') reproduced in the case of Sheopat Singh v.
Ram Pratap(') which is to the following effect :-
"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 ...... 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?"
This view expressed in that case is also not applicable to the
case before us, because here the objectionable words have been
very clearly and obviously used as inferences drawn by the writer
from statements of fact given in the leaflet itself.
Reference was
also made by counsel for respondent No. 1 to the decision of
this Court in Mohan Singh v. Bhanwarlal & Others(') where it
was held that the leaflets in question clearly implied that the
candidate had misappropriated the fund collected by him, and
this was held to be a statement of fact constituting a corrupt practice under s. 123(4) of the Act.
In that case, again, the imputation was of a nature that affected the personal character of the
candidate indicating that he had been dishonest in misappropriating money, while, in the case before us, no such facts have been
found.
It is quite clear that these words "Deshdrohita" and "Vishwasghatakta" have been used in this leaflet only to bring into light the
conduct of respondent No. I which was adverse to the policies
of the Congress and, at one stage, against the interests of the
country.
Possibly, milder words could have been used to describe his conduct on those occasions, but even the use of strong
words is not very unnatural at the time of elections.
In judging
whether the use of such words can be held to be a corrupt practice, we have to keep in view the principles indicated by this Court,
how such document should be read, m the case of Ku/tar Singh
v. Mukhtiar Singh(').
The Court held:
"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 deter0) !1960] 22 E.L.R. 261.
(2) [1965] I S.C.R. m. 179.
(3) [1964] 5 S.C.R.