# '· GURUn SHRIHAR BALIRAM nv ATODE v. VITHALRAO & ORS

- **Citation:** [1969] 2 S.C.R. 766
- **Court:** Supreme Court of India
- **Decided:** 1968-11-19
- **Case number:** Civil Appeal No. 1778 of 1967
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gurun-shrihar-baliram-nv-atode-v-vithalrao-ors-4589
- **Pages:** 13

## Headnote

'·
GURUn SHRIHAR BALIRAM nv ATODE
v.
VITHALRAO & ORS.
November 19, 1968
[G. K. MITTER AND K. S. HEGDE, JJ.] .
· Representation of the People Act, (43 of 1951) s. 123(4)--0b/ect of
section-Corrupt practice aso defined in sec~ion, ingredients of.
.
The appellant was the returned candidate from the Rajilra constituency
<If Maharashtra State Legislative Assembly in the general election held ill
February 1967. The first respondent who was one of the defeated candidates challenged the appellant's election in an election petition.
The
High Court held that the appellant had made false statements about the
personal character and conduct of the first respondent and was guilty of
corrupt practice within the meaning of s. 123 ( 4) of the Representation
of the People Act, 1951. On this view the High Court allowed the election petition and set aside the election of the appellant who appealed to
thi• Court.
HELD: (i) The election law in this country as in England guarantees
!freedom of criticism of political nature at the time of election. The freedom of criticism may sometimes be misused,· but the advantage gained
from free criticism-though sometimes it may turn out to be irresponsible
-in the long run outweighs the disadvantages. It is in the interests of
democracy that such criticism should be allowed.
However democracy
will be a farce if interested persons are allowed to freely indulge in
character assassination during election. A political
party may not be
affected by passing winds but a campaign of slander against an individual
is likely to create prejudiee in the mind of the people against him. Section
123(4) is designed to achieve the dual purpose df protecting freedom of
speech and prevention of malicious attack on the personal character and
conduct of rivals. [769 CJ
(b) The ingredients of the corrupt practice mentioned in s. 123 ( 4)
are ( 1) the publication by a candidate or his election agent or by "llY
other person with the consent of that candidate or his election agent of
"llY statement of fact; (2) which statement is false and which was believ-
.ed by the candidate to be false or at any rate was not believed by him to
.be true; (3) the said statement relates to the personal character or conduct of a candidate or is in relation to bis candidature or withdrawal; and
( 4) the same being a statement reasonably calculated to prejudice the
prospects of that candidate's election. The burden of proving every one
of the ingredients of the corrupt practice alleged is on him who alleges it.
[7 68 G; 771 B-:-CJ
· (c) Every false allegation does not come
within
the mischief of
s. 123(4). The language of the section is 'any statement of fact which
is f;)!se' and that language must be used in contrast to a false statement of
Opiriioi:t. · The statement in question must be in relation to the personal
character of candidate. It is when the false allegation pierces the politician and tquches the person o'f the candidate tl)at s. 123(4) is contravened.
Further one of the ingredients of the corrupt practice under the
section is that the statement complained df must be one reasonably calculated to prejudice the prospects of the election of the person against whom
it is made. 'Calculated' means designed : it denotes more than "mere
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767
likelihood and imports a design to affect voters. The emphasis in the last
limb of the section is not so much on the intention of the publisher but
on the proooble effect on the election of the candidate against whom
those statements are directed. [769 F-G; 770 El
(ii) In the present case the statements alle~ed t~ have been m~de by
the appellant did not amount to corrupt practice w1thlll the meanmg of
s. 123 ( 4) as they amounted either to fair political criticism or were mere
expressions of opinion. The complaint that the appellant had stated that
the respondent had a share in the profits earned by a contractor is neither

## Text

'·
GURUn SHRIHAR BALIRAM nv ATODE
v.
VITHALRAO & ORS.
November 19, 1968
[G. K. MITTER AND K. S. HEGDE, JJ.] .
· Representation of the People Act, (43 of 1951) s. 123(4)--0b/ect of
section-Corrupt practice aso defined in sec~ion, ingredients of.
.
The appellant was the returned candidate from the Rajilra constituency
<If Maharashtra State Legislative Assembly in the general election held ill
February 1967. The first respondent who was one of the defeated candidates challenged the appellant's election in an election petition.
The
High Court held that the appellant had made false statements about the
personal character and conduct of the first respondent and was guilty of
corrupt practice within the meaning of s. 123 ( 4) of the Representation
of the People Act, 1951. On this view the High Court allowed the election petition and set aside the election of the appellant who appealed to
thi• Court.
HELD: (i) The election law in this country as in England guarantees
!freedom of criticism of political nature at the time of election. The freedom of criticism may sometimes be misused,· but the advantage gained
from free criticism-though sometimes it may turn out to be irresponsible
-in the long run outweighs the disadvantages. It is in the interests of
democracy that such criticism should be allowed.
However democracy
will be a farce if interested persons are allowed to freely indulge in
character assassination during election. A political
party may not be
affected by passing winds but a campaign of slander against an individual
is likely to create prejudiee in the mind of the people against him. Section
123(4) is designed to achieve the dual purpose df protecting freedom of
speech and prevention of malicious attack on the personal character and
conduct of rivals. [769 CJ
(b) The ingredients of the corrupt practice mentioned in s. 123 ( 4)
are ( 1) the publication by a candidate or his election agent or by "llY
other person with the consent of that candidate or his election agent of
"llY statement of fact; (2) which statement is false and which was believ-
.ed by the candidate to be false or at any rate was not believed by him to
.be true; (3) the said statement relates to the personal character or conduct of a candidate or is in relation to bis candidature or withdrawal; and
( 4) the same being a statement reasonably calculated to prejudice the
prospects of that candidate's election. The burden of proving every one
of the ingredients of the corrupt practice alleged is on him who alleges it.
[7 68 G; 771 B-:-CJ
· (c) Every false allegation does not come
within
the mischief of
s. 123(4). The language of the section is 'any statement of fact which
is f;)!se' and that language must be used in contrast to a false statement of
Opiriioi:t. · The statement in question must be in relation to the personal
character of candidate. It is when the false allegation pierces the politician and tquches the person o'f the candidate tl)at s. 123(4) is contravened.
Further one of the ingredients of the corrupt practice under the
section is that the statement complained df must be one reasonably calculated to prejudice the prospects of the election of the person against whom
it is made. 'Calculated' means designed : it denotes more than "mere
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G. s. BALIRAM v. VITHALRAO (Hegde, /.)
767
likelihood and imports a design to affect voters. The emphasis in the last
limb of the section is not so much on the intention of the publisher but
on the proooble effect on the election of the candidate against whom
those statements are directed. [769 F-G; 770 El
(ii) In the present case the statements alle~ed t~ have been m~de by
the appellant did not amount to corrupt practice w1thlll the meanmg of
s. 123 ( 4) as they amounted either to fair political criticism or were mere
expressions of opinion. The complaint that the appellant had stated that
the respondent had a share in the profits earned by a contractor is neither
alleged in the election petition nor satisfactorily proved. [777 D, F]
Sheopat Singh v. Ram Pratap, [1965] I S.C.R. 175, T. K. Gangi Reddy
v. M. C. Anjaneya Reddy & Ors., XXII E.L.R. p. 266 and Dattatraya
Narayan Patil v. Dattatraya Krishnaji Khenvikar & Ors.
A.LR.
1964
Born. 244, relied on.
Cumberland
(Cockermouth
Division)
Case,
(1901)
5 O'M&H.
p. 155, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1778 of
1967.
Appeal under s. 116-A of the Representation of the People
Act, 1951 from the judgment and order dated October 3, 1967
of the Bombay High Court, Nagpur Bench in Election Petition
No. 14 of 1967.
C. B. Agarwala and A. G. Ratnaparkhi, for the appellant.
R. M. Hazarnavis, B. A. Masodkar, S. B. Wad, V. D. Chetande
E
and M. S. Gupta, for respondent No. 1.
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The Judgment of the Court was delivered by
Hegde, J. The appellant is the returned candidate from the
Rajura constituency of the Maharashtra State Legislative Assembly in the general election held in February 1967. In that election
he secured 21,435 votes as against 17,521 votes secured by his
nearest rival, the first respondent herein, the nominee of the
Indian National Congress.
The first respondent was representing
that constituency prior to the said general election.
The first
respondent challenged the validity of the appellant's election in
Election Petition No. 14 of 1967 in the High Court of Judicature
at Bombay (Nagpur Bench) on two grounds namely (1) that the
appellant was disqualified to be a candidate in that election and
(2) that he_ was guilty of corrupt practices under s. 123(4) of the
Representat10n of the People Act, 1951 (to be hereinafter referred
to as the Act). The High Court allowed the petition and set aside
the ~le~tion of the appellant on ~he ground that he was guilty of
pubhshmg statements of facts which are false and which he either
believed to be false or did not believe them to be true in relation
to the personal character and conduct of t]:ie first res~ndent. It
did not uphold the contention of the first respondent that the appel.
lant was disquaJified to be a candidate.
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SUPREME COURT REPORTS
[1969] 2 S.C.R.
Though at one stage. Mr .. Hazarnavis, learned Counsel for the
A
first respondent attempted to support the judgment of the trial
court on the ground that the appellant was disqualified to be a
candidate, he finally gave up that contention: Therefore it is_, 11of
necessary to .exam\ne the __ same.
·
;
The, High Court has. found. that the appe!lant was Iesponsible
for the publication of Exhs. 55 and 56 which according to it
B
contained statemi;nts -of facts relating to the personal character
and. conduct
of the first respondent and those statements were
either false to his knowledge or at any rate he did not believe
them to be true. It further came to the conclusion. that in some
of the election meetings the appellant had falsely stated that the •
first respondent had a share in the contract secured by him for one
c
Abid Huss:iin.
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The bulk of the evidence adduced in this case relates to the
controversy whether the appellant was responsible for the printing
and publication of Exhs. 55 and 56. ·The High Court has accepted
the case of the first respondent that the appellant was responsible·
for printing and publishing those pamphlets. We have beeri taken
through that evidence and we agree with the High Court on that
aspect of the case.
It is not necessary to deal with that evidence
as we are of opinion that the statements contained in those pamphlets do not amount to corrupt practice under s. 123 ( 4) of. the Act.
Section 123 ( 4) reads :
,
_"The .publication by ·a candidate or his agent or by
any other person (with. the consent of a candidate or
his election agent) of any statement. of fact which is
false, and which he either-believes to be false or does
not· believe to be true in relation tp the personal character or conduct .of any candidate, or in relation to . the
candidature . or withdrawal of any candidate, being a
. st!ltement. reason.ably calculated to prejudice the pros-
. pects of_ that ca!J.didate's electjon." . .
.
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The ingredients of.the corrupt practice-mentioned in. this section
are (1) the publication' by a. candidate or his election agent
or: by any other. person with the consent of that candidate or ,his
election agent ·of. any·statement of fact; (2) which statement.is
false.,and1which was believed .. by the candidate to be false.or. at
a.ny rate was. not believed.bv him to be :true; (.3) the said state•.
ment,relate t0< the,.personal character or condue<t-of..a candidate.'.Qr.
in. relation m .. his .candidature or withdrawal and ( 4) the same
bein~ l1 ~!~tf(IDEP.~ i:~a~R!1ably, 1;3;\(ful~t~4,to p~ej)ldice.tl/.~ prospycts
o! that ~'l!1d~?a~~-~%£~Jy~t12'1· ~ . .rti ~.u {} ,~ - 1.1 ..... ,
• 0 .,, oat.
_.f ;,•.t Jt~~ Lt'~
As explained by this Court in Sheopat Singh v. Ram Pratap( 1 )
s. 123 ( 4) is designed to achieve the dual purpose of protecting
(I) [!9651 1 S.C.R. 175.
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G. s. BALIRAM v. VITHALRAO (Hegde, J.)
769
freedom of speech and prevention of 'malicfous attack on the per'-
sonal character and conduct of rivals. A statement which reflects
on the mental or moral character of a person is one relating to his
personal character or conduct whereas any criticism of a person's
political or public activities and policies is outside it.
Section
123 ( 4) further requires that the candidate who made a false statement should have believed it to be false or did not believe it to be
true and lastly it should be a statement reasonably calculated. to
prejudice the prospects of the election of the candidate agamst
whom it was made.
The word 'calculated' means designed : it
·denotes more than mere likelihood and imports a design to affect
voters.
The election law in this country as in England guarantees
freedom of criticism of political nature at the time of election.
It is true that the freedom of criticism given might be sometime
misused.
The political history of even countries like England
shows that sensational false election propaganda against a political
party, particularly on the eve of election might upset the party's
electoral fortune.
But the advantage gained from free criticism
-though sometimes it may tum out to be irresponsible-in the
long run outweighs the disadvantages.
It is in the interest
of_
democracy that such criticism should be allowed. This is the view
of political thinkers. A political party's reputation is not built on
shifting sands. It has, at any rate, it should have, firmer foundation and should not be affected by passing winds. But in the case
of individuals a different approach is necessary. A campaign of
slander is likely to create prejudice in the mind of the people
against him. It cannot be put down as cynicism when it is sometimes said that the bigger the lie the greater is the chance of its
~ing accepted as true. There is unfortunately a tendency in the
mmds of the unwary public to believe the worst about individuals.
Democracy will be a farce if interested persons are allowed to
freely indulge in character assassination during election. Section
123 ( 4) as we understand it embodies the two principles discussed
above. Every false allegation does not come within the mischief
-o.f s. 123 ( 4 ). When any false allegation of fact pierce the politician and touches the. person of the candidate then s. 123 ( 4) is
contravened.
. Dealing ';Yith the !11eaning of the expression 'personal character
and c~nduct found . m s. 123 ( 4) Subba Rao J. speaking for the
Court m T. K. Gangi Reddy v. M. C. Anjaneya Reddy and Ors.(')
observed at p. 266 of the report :
.
"the words 'personal character or conduct' are so
clear. !hat they do not require further elucidation or
definition.
The character of a ·person may ordinarily
(I) XXII, E.L.R. p. 266,
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770
SUPREME COURT llEPORT&
(1969] 2 S.C.R.
be equated with his mental or moral nature. Conduct
connotes a person's actions or behaviour."
Dealing with a provision similar to s. 123 ( 4)
Darling J.,
Cumberland (Cockermouth Division) case(') observed : .
"What the Act forbids is this. You shall not make
or publish any false statement of fact in relation to the
personal character or conduct of such candidate; if you
do, it is an illegal practice. It is not •an offence to say
something which may be severe about another person nor
which may be unjustifiable nor which may be derogatory
unless it amounts to a false statement of fact in relation to the personal character or conduct of such candidate; and I think the Act says that there is a great
distinction to be drawn between a false statement of fact
which affects · the personal character or conduct of a
candidate and a false statement of fact which deals with
the political position or reputation or action of the
candidate. If that were not kept in mind, this statute
would simply have prohibited at election times al! sorts
of criticism which was not strictly true relating to the
political behaviour and opinions of the candidate. That
is why it carefully provides that the false statement, in
order to be an illegal practice, must relate to the personal character and personal conduct."
in
The language of s. 123 ( 4) is 'any statement of fact which is false'
and that language must be used in contrast to a: false statement of
opinion.
The language used is not merely a 'false statement' but
a 'statement of fact which is false'.
The statement in question
must be in relation to the personal character or conduct of a candidate, which means a false statement of fact bearing on the personal character or conduct of a candidate. Further one of the
ingredients of the corrupt practice under s. 123 ( 4) is that the ·
statement complained of must be one reasonably calculated to prejudice the prospects of the election of the person against whom it
is made. It may be noted that the section does not merely say
'being a statement calculated to prejudice the prospects of the
candidate's election' but on the other hand it says 'being a statement reasonably calculated to prejudice the prospects of that candidate's election'.
The meaning of that expression is as held by a
Division Bench of the Bombay High Court in Dattatraya Narayan
Patil v. Dattatraya Krishnaji Khenvikar and Ors.(2 ) that the publication of false statement of fact relating to the personal character
or conduct must be such as would, in the estimation of. the Court,
having regard to the nature of the publication, the evidence ten-
(!) (1901) 5, O'M & H. p. 155.
(2) A.l.R.1964 Born. 224.
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G. s. BALIRAM v. VITHALRAO (Hegde, /.)
771
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dcred in Court and the surrounding circumstances have its natural
and probable consequence of prejudicing the prospects of the
candidate relating to whose personal character or conduct the pu~
lication has been made.
So far as the last limb of s. 123 ( 4) IS
concerned, the emphasis is not so much on the intention of the
publislrer but on the probable effect on the election of the candiB
date against whom those statements are directed .
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It is trite to say that the burden of proving everyone of the
ingredients of the corrupt practice alleged is on hinI who alleges
it. 1f he fails to establish any one of them to the satisfaction of
the Court he must fail.
We shall now proceed to consider whether the statements of
facts contained in Exhs. 55 and 56 fall within the mischief of
s. 123 ( 4). Before doing so it is necessary to give the background
under which the statements complained of were made. As mentioned earlier the first respondent was representing the constituency
in question prior to the general election in 1967.
Sometime
before the election the cultivators in the Rajura constituency as in
other places were required to deliver to the Government a portion
of the juwar crop raised by them in pursuance of the levy orders
made. This circumstance must have undoubtedly caused dissatisfaction to the ryots. Rajura Taluka was previously a part of
the N~am's State and thereafter the State of Hyderabad till the
formation of the Maharashtra State. We understand that in that
Taluka, the boundary stones had not been fixed.
The State of
Maharashtra appears to have directed the landowners to fix the
ne~sary boundary stones for their property within a certain
penod. As some of them did not comply with that direction the
Government took upon
itself the responsibility of fixing those
boundary stones at the cost of those ryots.
That work was given
on cQiltract to ol!-e Abid Hussain. It was suggested that charges
!lxed wer_e excessive.
I~ may be mentioned at this stage that durmg th~ time when the 1uwar levy was imposed and the contract
~r fixmg :!1e bounda;y stones :nas given (as also at present) the
~ogress arty was m power m the State of Maharashtra 'The
~ respondent wa_s a Con~ress M.L.A. In the past toll~ were
leVIed on every vehicle entermg the municipal limits of R .
b
~me years befor~ the. election that levy had been abo1i:e~ b~~
th e~am~ :s a.\iam r~1!11posed sometimes before the election
At
C e
e re1IDpos1t1on of that levy Shr:i Shankarrao Deshniukh
a
ongressman was the Chairman of the R .
M
. .
. •
Having me~tioned tthese facts we shall now pro~1:rato e~~~l~al:.
statements m Exhts. 55 and 56.
e e
. Exh. 55 is a Mara~i poem composed by the appellant's election ~gent Dr .. Sur~h V1shvanathrao Upaganlawer (R.W 3)
Its
English rendermg IS as follows :
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. ': • .. -Stil'REME COUR'f iul:l'ORT!i'.-
,; [1969] 2 S.C.R.
-\';-; ·- · · • --
"'Request to Voters. :
·.
. ·Rise Rise Oh Voters Awake .at least now
. Understand and begin to work.
:You have suffered for five years, auspicious day has
·:dawned now, truthful to your conscience, wake to vote,
Oh brothers.wake to vote.
Today kick off (this) slavery in the freedom
(and) you should expose; yol! should expose the ·
. sins of. Vithalrao. -
He held out to be the leader of the·people
. (but) he put burden of stones (on the people)
. By those very stones (you) build his grave, brothers
- build his grave.
• For recovery of levy (from us) unlimited
force used a'gainst us.
·
·
·· They take white juwar and give red millow
(to us) and now confront him (witli this).
- - Today our luck has dawned, (in that)
we got a -
.- · great leader. ·
For protecting the interests or' poor people·
see this Guruji has taken an Avatar.
. (His) name is Jivtode Shrihari, has responded to
... our. immediate call
By giving your invaluable vote,
· To .Jivtode and Kaushik Pleader; Elect them this
- time.
_
·
Take vow like -Bhishma and· begin working today
brothers. .
-
.. begin working today,
Seeing Lion Symbol, by affiXing rubber stamp on it
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--.. We will show to the world,'Brother we wiUshow
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_ ~ur candidates that success garlands (him.)" .
-....;--
-Eirn. -5 6 is a pamphlet published in Marathi. It purports to
G
be an appeal by one Ganpat Patil Dhote. The English translation :_
of it}s fou_ndat p. 563-565 of the paper-book. -It reads thus·: -
- · - · ·· · ~ - -·<VOTERS BE CAREFUL
: :: · :··ill the forthco;ru~g General Elections the sitting
M.L.A. Shri Vithalrao Dhote is standing for Maharash-
~-.' tra,I;egislative ASSembly on behalf of Congress.
The"
. ,
.:i. · JlO<>r.:people- have;had experience· : of Shri -Vithalrao. ··:;:
Dhote as M.L.A.
·· ·:.·:·::: .. '.:· .;,· <<;:::·;.;·_::-::::---_::-..,.::::; -
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773
Havip.g been•elected· in.the 1st General Elections
Shri Vithalrao Dhote would work for the benefit of the
people and deyelop the backward Rajura Taluka was
our expectation. But the. People of Rajura Taluka have
been utterly disappointed by Shri Vithalrao Dhote. , ln
this Taluka the High School which was there in the
times of Nizam the High School is. there in .whole of
Rajura Taluka till to-day. Shri Vithalrao Dhote could
not construct a Single Pucca Road. Could not supply
electricity to any village anywhere.
Could not make
arrangements for watering agriculture. In this Talμka
though there is thousands of acres of fallow land, for
distributing it to landless no effort was made by Shri
Vithalrao Dhote. In the last five years no work for the
benefit of the people has been done by VithaJrao Dhote.
On the contrary, through his selfish and fraudulent
companion Shri Shankarrao Deshmukh, the Municipal
President of Rajura (he got) imposed the stopped toll
tax on the bullock cart (Rengi and Bandi) of poor people coming to Rajura. Its effect has been surely felt by
every poor man in the Taluka..
Similarly by fixing
boundary stones on the Dhuras of the cultivators in
Rajura Taluka and by recovering price of stones Shri
VithaJrao Dhote has worked for t)le benefit of Abid
Husain Thekedar alone. In this taluka the cultivators
could not get Taccavi loans without giving bribe at the
time of distributing taccavi.. Shri Vithalrao Dhote could
not check bribery. Shri Vithalrao Dhote has neglected
the poor people by looking to the interests of Thekedar
(contractor) ·alone. , By this, poor people have lost all
faith in Shri Vithalrao Dhote in ·Rajura Taluka.
By
this the poor people are very much harassed. When I
myself moved in the villages in this Taluka, I found that
public opinion is inclined against Shri Vithalrao Dhote.
People are organised as Shri Vithalrao Dhote has
harassed the poorer for furthering interests of his selfish
and deceitful companion.
Because .of this and with
great reluctance and keeping interests .of public in 'view
lam publishing this. pamphlet against Amdar Vithakao
Dhote to keep the true facts before the public.
The
man who is proving .dangerous to the majority in the
l:iociety and poorer section of the public has to · · be
pulled down from his office (and) except this, there is
no other way is my belie(
Hence I humbly request the voters in Rajura Co11stituency that they should not vote for the Congress candi·
"
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'174
SUPREME COURT REPORTS
[1969] 2 S.CJI..
date Shri Vithalrao Dhote. Contesting candidate from
Rajura Constituency Shri Jivatode Guruji has worked
for spread of Education by opening Janata High Schools.
Shri Jiotode Guruji has benefited the poor people by
opening all kinds of colleges of Chanda. "Shri Jiotode
Guruji" will bring about the development of backward
Rajura Taluka positively.
Hence by putting a cross on the Lion Symbol of
Vidarbha Joint Front's Shri Jiotode Guruji, Shri Jiotode
Guruji be elected by a large majority is my humble and
earnest request to the voters.
Yours humbly
Ganpat Patil Dhote
Symbol of Lion
Put Cross only on Lion.
In small type
Publish:
Ganpat Patil
(Shivshakti of
Chote r/o
Nimani T. Rajura
Chandrapur).
The various statements contained in these two pamphlets are
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summarised by the learned Trial Judge thus :
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"(a) (The Petitioner) has imposed the toll tax on
poor citizens on their bullock carts through his
selfish and bog11$ companion Shri Shankarrao
Deshmukh,
President of Rajura Municipality,
which has caused undue suffering to every poor
citizen residing in this part.
(b) Vithalrao Dhote has. only secured advantage for
Abid Husain, Contractor, by imposing the burden of paying for the border stones which were
compulsorily ordered to be fixed.
( c) In this taluq no cultivator has been able to get
taccavi without payment of bribe ·and Vithalrao is
unable to prevent it.
( d) Vithalrao Dhote has solely protected the interest
of the contractor and neglected the poor citizens
and on that account VithaJrao Dhote has forfeited confidence of poor. persons in Rajura
taluq.
( e) The poor population is simply harassed and I
have found that the inclination of the people is
against Vithalrao Dhote when I we11t around in
the village.
(f) Poor persons are simply harassed on account of
exploitation and ruin caused by Vithalrao Dhote
solely for the benefit of his selfish
and bogus
companions.
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(I, S, BALlllAM V. VITHALRAO (Hegde, /.)
775
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(g) Persons (meaning the petitioner)
who
is
a
menace to the majority of the community and
poor persons must be sacked from the office in
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my firm conviction."
None of the afore-mentioned allegations Can be held to relate
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to the personal character or conduct of the first respondent. They
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are undoubtedly criticism, true, false or exaggerated, of the first
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respondent's roll as a politician. Those statements do not make
any reflection on the moral or mental qualities of the first respondent.
As mentioned earlier a Congressman was the President of
the Rajura Municipality at the time the tolls were reimposed.
It
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may be that the first respondent had no hand in the matter of re·
imposition of the tolls and that the accusation that he got it reimposed is not true but that in no manner. can be said to reflect
on the personal character or conduct of the first respondent.
Similarly the accusation that the first respondent secured advantage
for Abid Hussain by imposing a burden on the land owners by
making them pay for the boundary stones cannot be said to
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reflect on the private character of the first respondent whether the
statement in question is true or false. The appellant had a right
to hold the first respondent responsible for the actions of the
Government as he was a member of the party in power.
The
allegation that in the Rajura Taluka no cultivator had been able
to get Taccavi loans without payment of bribe and that the first
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respondent was unable to prevent it, is undoubtedly a legitimate
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criticism.
The allegation that he solely protected the interests
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of the contractor and ignored that of the poor citizens and on
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that account he has forfeited the confidence of the poor persons
in his constituency is an expression of an opinion, whether the
same is true or not. The allegation that the poor population is
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simply harassed and that the signatory to the pamphlet found that
the inclination of the people is against the first respondent
when he went around in the village, is merely an opinion and not
a state!llent of fact. Similarly the allegation that the poor persons
are bemg harassed on account of the exploitation and ruin caused
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by the fi.rst respondent solely for the benefit of his selfish and bogus
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c~~~am~ns is ~
~xpression of an opinion and it is a permissible
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cnt1c1sm 1n a poht1cal debate. The assertion that the first respon-
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dent is a menace to the majority as also to the poor and therefore
~e must be sacked from the office is as stated in the pamphlet
itself is purported to be the conviction of the person who issued
!]le statement. He is entitled to hold that ooinion and propagate
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it. It must be remembered that during election time passions are
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roused; election propoganda should not be tested bv the standards
to be adopted in a debate carried on bv intellectuals. It mav be
that many of the charges levelled attainst a candidate as recrards
his political past or about his capacity to be a useful representative
776
SUPREME COURT REPORTS
[1969] 2 S.C.R.
are not true1 'It fa,.fgr the:eie.etorate:to· judge :those, accusations.
so. long as those accusations do not affect the personal character
or conduqt of the candidate;. the election law wilJ,not take note of
it. T)lat is: why it is said· that a politician must be thick skinned
and more so at election. time .. As mentioned earlier it is not a
corrupt practice to say something. which. may, be severe about another person, nor whicr may be unjustifiable nor which may be
derogatory unless it:amounts . .to a· false statement of fact in rela-
·tion to. his ,personal· character ·or conduct.
• ·It ·is unfortunate that the High Court exclusively focussed· its
atfontiori on. the 'question" whether or nbt the appellant caused to
get Exhs. 55 and 56 printed and published and . completely
ignored the true effect of the statements contained therein. · It
proceeded on the erroneous impression that every false or unjustified criticism of a candidate amounts to a contravention of s.
123( 4). Dealing with Exhs. 55 and. 56 this is what the learned
Trial Judge observed :.
"To say against anybody that he is responsible for
imposition· of ·a tax without justification through that
person's selfish and pretentious friend like the· President
of the-Municipal Council is, to say the least; to suggest
that such person ·. is the direct cause of harassment on
account of such taxation on poor people. It is said in
the third paragraph of the pamphlet and then there is. a
direct allegation against the petitioner th.at it is the petitioner;. who ·caused the cultivators in the Rajura taJuq
to be burdened with the expense of fix_ing the border
stones and that. in doing so the petitioner Vithalrao Dhote
· has solely secured an advance for Abid Hussain Thekedar: · In the fourth paragraph, it is categorically.alleged
· that the petitioner Vjthalrao Dhote has exploited· and
harassed poor people in order to benefit his i.e.' Vithalrao
selfish and pretentious · friends and such ·harassment
· bas caused· untold miseries.
That these allegations are
scurrilous does not admit of any doubt. They are defamatory per se.: Every citizen.'is entitled to be·presumed
to he innocent until contrary is proved. If therefore an
al!egation of a personal character is made against anyone, it js the maker of',.the allegation who has to establish that- there is. truth in: the allegation. ry
It ·is clear that the }Iigh Court faileci:to eX:aniine the effe~t of
the statements contained in Exhs. '55 and 56 by the tests prescnbed
in s. 12'.I ( 4). Further there -is no proof in this case that the statements contained.in Exhs __ 55. :and 56.are reasonably ealculated to
prejudice. the election .of. the respondent. .. The Trial Court did not
give any finding effect. . · .. · .... · ·
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-0. s. BALIRA.M v .. VITHALRAO (Hegde, 1.)
. 771
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This leaves us with the question whether the appellant had
announc ed in his election meetings that the first re.'ipondent had a
share in the profits earned by Abid Hussain ijl1 the matter ·of fixing
boundary stones. The High Court has held that the appellant made
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that accusation while addressing election meetings at two places.
If that finding is correct then undoubtedly there is a contravention
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of s. 123 ( 4) but after carefully examining the material on i;ecoi:d.
we have cbme to the conclusion that that finding is unsustainable.
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The election petition was filed on April 11, 1967. That petition merely sets out what according to the petitioner are the contents of Exts. 55 and 56. It is not stated therein that apart from
the statements contained in those pamphlets
any other false
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statement of fact relating to the personal character or conduct of
the first respondent had been made either by the appellant or his
supporters.
The allegation that the appellant in his election meetings had stated that the first respondent had a share in the profits
earned by Abid Hussain in the matter of fixing the boundary stone
is not mentioned there.
An application to amend the election
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petition was made on June 24, 1967. In that application also
there is no reference to the allegation in question. The election
petition was again amended on 3-7-1967. It was only then the
following allegation was made :
"He (the appellant) was falsely alleging that the
petitioner was or had actively helped Abid Hussain for
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his selfish ends to make illegal gains and thus allege
false corrupt motives to him."
Even this allegation is vague. That apart it is a highly belated allega~
tion. It appears to be an afterthought. It is not necessary for us to
decide in this case whether such an amendment could have been
permitted after the liniitation for filing the election petition had
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expired: But the very circumstance that the allegation in question
was made several months after the election petition was filed by
itself casts serious doubt on the veracity of that allegation. This
circumstance was completely overlooked by the High Court.
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The witnesses who spoke in support of the said allegation are
the first respondent (P.W. 2), P.W. 9, Arjan Kashinath Masirkar
and P.W. 12, Nazir Hussain Akbar Ali.
So far as P.W. 2 is
concerned he is undoubtedJy an interested witness. In the circums!ances mentioned above, his evidence can have very little persuasive value. So far as P.W. 9 is concerned on his own showing he
was highly interested in the first respondent and the Congress
Party. As elicited during his cross examination he was a Congress candidate for election as SarpMJ.Ch and as a member of the
Panchayat Samiti.
The appellant's cousin was his rival in that
election.
Admittedly during the last election he canvassed for the
778
SUPREMll COURT REPORTS
(1969} 2 S.C.R.
first respondent. Under these circumstances much reliance can·
not be placed on the testimony of this witness.
Then we come
to the evidence of P. W. 12. · During his cross-examination this is
what he stated :
"I have not received a summons.
Vithalrao had
asked me to produce the register where the hire of cycles
is noted and that is how the chits which I have filed came
with the register ...... "
His evidence is to the effect that the appellant while presiding over
the meeting at Rajura on Feb11Uary 13, 1967 stated that the first
respondent had a share in the contract for fixing of border stones
which was produced for him by Vithalrao. When he was crossexamined about that meeting this is what he stated :
"I don't remember who was the President of the
meeting.
I will not be able to name at this distance of
time the names of persons from the town or the villagers
who were listening at the meeting. I will not be able
to name a single person from amongst these."
Obviously he is a procured witness. No reliance can be placed
on his evidence.
For the reason~ mentioned above we hold that the election
petitioner (first respondent herein) has failed to make out that the
appellant had contravened s. 123(4). Hence this appeal succeeds
and the election petition stands dismissed. We are of opinion that
we should not award any costs to the appellant.
He had come
forward with a false case and had protracted the trial of the case
by adducing voluminous false evidence.
Hence we direct the
parties to bear their own costs both in this Court as we]J as in the
High Court.
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Appeal allowed.
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