# •• K. M. MANI ETC v. P. J. ANTONY AND OTHERS

- **Citation:** [1979] 1 S.C.R. 701
- **Court:** Supreme Court of India
- **Decided:** 1978-09-12
- **Case number:** Civil Appeal No. 99 of 1978
- **Bench:** S. l'v!URTAZA FAZAL ALI, P. N. Shjnghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-m-mani-etc-v-p-j-antony-and-others-7526
- **Pages:** 21

## Headnote

7 0 I
Representation of the People Act 1951-Sec. 123(7)__;;_Allegation that Police
Officer addrt•ssed an election nieeting for furtherance of candidate's election1
U'hether corrupt practice.
A
B
Practice & Procedure-Election cases-Pleadb1gs & Proof-An allegation of
corrupt prllcticc to be established beyond reasonable doubt-Addressing nieetingAllegation of corru'pt practice-No doc1anentary evidence produced-Transcript
C
of speech or conten1poraneous record of speech-If should be produced.
Section 123(7) of the Representation of the People Act, 1951 provides,
among others, that the obtaining or procuring by a candidate of any assistance
(other tha·n giving of vote) for the furtherance of the pro.spects of that candi~
date's election from any person in the service of the Government is a corrupt
practice.
D
The appeliant in Civil Appeal No. 99 of 1978 \Vho was declared elected to
1he State Assembly in the General Elections of 1977 \Vas a Minister of the
State Government at the tin1e of election. The appellant in Civil Appeal No.
i9 of 1978 was a Police Officer belonging to the Indian Police Service posted
as Commissioner of Police at that time. The first respondent in both cases was
an elector in the constituency. All the three were Roman Catholics.
In his election petition respondent No. 1 alleged that, at the instance of the
-first appellant or with his knowledge and consent, the Police Officer assisted the
convening of a meeting of the priests of the various parishes of the Roman
Catholic Church at the Bishop's house which was presided over by the Bishop
for the furtherance of the appeilant's victory in the election. The Police (>fticer
wais alleged to have exhorted them to work for the appellant's victory as it was
in the interest of the Church and community. The first appellant was
also
.alleged to be at the meeting. The respondent alleged that this constituted a
corrupt practice within the me~ning of s. 123(7) of the Act.
The High Court declared the election void. In addition it declared that
the Police Officer was guilty of corrupt practice.
E
F
On appeal the appellant contended ( i) that the High Court was in error in
G
·holding that the appellant had committed a corrupt practice within the meaning
of the section and (ii) that the election petition was not maintainable for
-vagueness of the pleadings in paragraph 5 of the election petition.
Allowing the appeal :
HELD : !. There is no direct evidence to prove that the Police Officer went
to attend the meeting at the Bishop's house at the instance of the appellant and
spoke there at his instance and as the· circumstantial evidence produced
was
inadequate to reach that conclusion the High Court was wrong in holding that
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702
SUPREME COURT REPORTS
(1979] l s.c.R.
A
the appellant obtained and procured the· services of the Police Officer in
furtherance of the prospects of his election and
thereby
committed a
corrupt
practice under s. 123(7) of the Act.
[721B·C]
B
c
D
E
2. An allegation regarding the commission of a corrupt
practice at an
election is a very serious matter not only for the candidate but for the public
at !arge as it relates to the purity of the electoral process.
[712H]
3(a) An allegation regarding the commission of a corrupt practice is in the
nature of a quasi-criminal proceeding which has to
be
established
beyond
reasonable doubt and not merely by preponderance of probabilities.
17 L~C]
3(b) The election petitioner must exclude every hypothesis except that of
guilt on the pa.rt of the returned candidate or his election agent. The trial
court erred in basing its finding on a mere probability.
[720FJ
R. M. Seshadri v. G. Vasantha Pai [1969] 2 SCR
1019;
Bhagwan Datta
Shastri v. I~atn Ratanji Gupta & Others AIR 1960 SC 200;
Ba/want Sing/1 v.
Prakash Chand & Ors. [1976] 3 SCR 335 referred to.
4. The High Court was right in holding that there was no sufficient evidence
to substantiate the allegation that the Police Officer went to the place of nlceting at the appe

## Text

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••
K. M. MANI ETC.
v.
P. J. ANTONY AND OTHERS
September 12, 1978
[S. l'v!URTAZA FAZAL ALI AND P. N. SHJNGHAL, JJ.]
7 0 I
Representation of the People Act 1951-Sec. 123(7)__;;_Allegation that Police
Officer addrt•ssed an election nieeting for furtherance of candidate's election1
U'hether corrupt practice.
A
B
Practice & Procedure-Election cases-Pleadb1gs & Proof-An allegation of
corrupt prllcticc to be established beyond reasonable doubt-Addressing nieetingAllegation of corru'pt practice-No doc1anentary evidence produced-Transcript
C
of speech or conten1poraneous record of speech-If should be produced.
Section 123(7) of the Representation of the People Act, 1951 provides,
among others, that the obtaining or procuring by a candidate of any assistance
(other tha·n giving of vote) for the furtherance of the pro.spects of that candi~
date's election from any person in the service of the Government is a corrupt
practice.
D
The appeliant in Civil Appeal No. 99 of 1978 \Vho was declared elected to
1he State Assembly in the General Elections of 1977 \Vas a Minister of the
State Government at the tin1e of election. The appellant in Civil Appeal No.
i9 of 1978 was a Police Officer belonging to the Indian Police Service posted
as Commissioner of Police at that time. The first respondent in both cases was
an elector in the constituency. All the three were Roman Catholics.
In his election petition respondent No. 1 alleged that, at the instance of the
-first appellant or with his knowledge and consent, the Police Officer assisted the
convening of a meeting of the priests of the various parishes of the Roman
Catholic Church at the Bishop's house which was presided over by the Bishop
for the furtherance of the appeilant's victory in the election. The Police (>fticer
wais alleged to have exhorted them to work for the appellant's victory as it was
in the interest of the Church and community. The first appellant was
also
.alleged to be at the meeting. The respondent alleged that this constituted a
corrupt practice within the me~ning of s. 123(7) of the Act.
The High Court declared the election void. In addition it declared that
the Police Officer was guilty of corrupt practice.
E
F
On appeal the appellant contended ( i) that the High Court was in error in
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·holding that the appellant had committed a corrupt practice within the meaning
of the section and (ii) that the election petition was not maintainable for
-vagueness of the pleadings in paragraph 5 of the election petition.
Allowing the appeal :
HELD : !. There is no direct evidence to prove that the Police Officer went
to attend the meeting at the Bishop's house at the instance of the appellant and
spoke there at his instance and as the· circumstantial evidence produced
was
inadequate to reach that conclusion the High Court was wrong in holding that
H
702
SUPREME COURT REPORTS
(1979] l s.c.R.
A
the appellant obtained and procured the· services of the Police Officer in
furtherance of the prospects of his election and
thereby
committed a
corrupt
practice under s. 123(7) of the Act.
[721B·C]
B
c
D
E
2. An allegation regarding the commission of a corrupt
practice at an
election is a very serious matter not only for the candidate but for the public
at !arge as it relates to the purity of the electoral process.
[712H]
3(a) An allegation regarding the commission of a corrupt practice is in the
nature of a quasi-criminal proceeding which has to
be
established
beyond
reasonable doubt and not merely by preponderance of probabilities.
17 L~C]
3(b) The election petitioner must exclude every hypothesis except that of
guilt on the pa.rt of the returned candidate or his election agent. The trial
court erred in basing its finding on a mere probability.
[720FJ
R. M. Seshadri v. G. Vasantha Pai [1969] 2 SCR
1019;
Bhagwan Datta
Shastri v. I~atn Ratanji Gupta & Others AIR 1960 SC 200;
Ba/want Sing/1 v.
Prakash Chand & Ors. [1976] 3 SCR 335 referred to.
4. The High Court was right in holding that there was no sufficient evidence
to substantiate the allegation that the Police Officer went to the place of nlceting at the appellant's instance to assist him in convening the meeting in furtherance of his prospects in the election.
It therefore rightly considered the other
question \Vhether he addressed that meeting.
[710F-G}
5. The High Court \Vas not justified in reaching the
conclusion
that.,. thC
Police Officer intentionally took the great risk of committing an offence under
s. 129(2) and of losing his job out of fear or favour of the appellant.
Even if
all the premises set up by the High Court were aocepted as correct, it would
not follow that they would establish a nexus between the two, for it may well
be that the Police Officer did all that at the instance of some one else, or out of
his own desire to curry favour with the appellant in the hope of some future
advantage. The High Court erred in basing its finding on a mere prribability.
[720B·C]
F
Mohan Singh v. Bhanwarlal & Ors. AlR 1964 SC 1366; Samanand N.
G
H
Balakrishna etc. v. George Fernandez & Others [1969} 3 SCR 603 referred to.
6. It was established that the Police Officer was present after the
meeting
had commenced and said something there. But there
v.'as
no
satisfactory
evidence to prove that the Police Officer spoke anything at the meeting for
furtherance of the appellant's electoral prospects or that he
went
there
and
spoke at his instance.
[712H; 719HJ
7. Where an allegation relates to a charge that a candidate obtained
the
assistance of a Police Officer for the purpose of addressing a
meeting and
exhorting those present to work for his victory, it is reasonable to expect that
a transcript of his speech should be made available to the Court in support of
the allegation. This would also give the candidate an opportunity of meeting
a precise allegation. Where it. is not possible to give a transcript it would be
reasonabie to expect that the petitioner would
produce
a contemporaneous
record of the points made in the. speech, or at least its sub~tance. [713A-C]
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K. M. MANI v. P. J. ANTONY (Shinghal, !.)
703
In the inslant case, no such record was made availa-ble. Even a gist was not
furnished.
The allegation may well have been the impression or the opinion of
the petitioner on hearing what others told him about the speech because he \Vns
not present at the meeting. [713D]
8. A Police Officer is a citizen. and an elector and is entitled to have his
A
own belief that a particular candidate would wini and to express that belief withB
out lending the impression that it was meant to assist him in the election in ilny
manner. It .would ha,ve been open _to objection only if the Police Officer had
stated at the meeting that it was necessary for the bMefit of the Christian co1i;imunity that a• person like the appellant should win and become a Minister to
save them from the rigour of the Land Reforms Act.
r_714A-Il]
9. &suming that· the Police, Officer's statement in his evidence that he had
gone to th.e place of meeting to consult one of the priests on a personal matter
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was not quite satisfactory, his presence at the meeting or expression of his personal views there could not possibly amount to the commission of a corrupt
practice under s. 123(7). [716H]
10. The Bishop stated in his evidence that there wa!i a news items
in a
newspaper that the Catholic Church was silent about the election, that he (the
Bishop) was against the appellant, a<Ild that some priests thought that such a
D
wrong impression should be dispelled. He said that -the meeting was convened
by him for the purpose of clarifying his position. That evidence had
been
corroborated. Clearly, therefore, the meeting \Vas held at the
Bishop's
own
initiative.
[712E-F]
11 (a) There \"las nothing in the Bishop's statement to ·;how that the Police
Officer exhorted the audience to work for the appellant'::. victory.
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11 (b) The Bishop stated in his evidence that the Police Officer said that he
would give up his uniform and job if that was necessary. This statement cannot be used for the purpose of proving the ~Ueged corrupt practice. That was
a statement regarding his future course of action. It showed that he realised
that without giving up his job it was not possible for him to assist the appellant
in the election. \Vb.en he was conscious of that limitation, it could not be believed
that he would throw discretion to the winds, and then and there launch an
exhortation for the appellant's success at the polls.
The fact that no such
impression Vi'as created will be clear from the Bishop's answer that he did not
know what for the witness mentioned his \\1illingncss to give up his job
Vi'hen
necessary.
[714C.E]
12. Taking an overall view of the evidence on record it must be held that
the- High Court erred in preferring the statements of the petitioner's -witnesses
to the testimony of the Bishop. [7160]
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13. Assuming that the appellant was in or around the place of meeting and
\Vas attending one or the other of his election meetings, it would not necessarily
follow that he visited the Bishop's house· while the meeting was going on. The
election petitioner did not venture to plead that the appellant . attended the
Bishop's meeting even though such a plea would have helped him in establishing a direct conne<:tion between the appeltant and the meeting on the one hand
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and between the appellant and what was said by the Police Officer on the other.
[7180-EJ
11-549 SCJ/78
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704
SUPREME COURT REPORTS
[1979] I S-C.R.
14. The argument that the appellant was driven by the prospect of defeat to
seek assistance of the Police Officer openly on pain of losing his success at the
hands of an elector has no force.
What a candidate would do or how he would
react in such circumstances essentially depends on his mental make up and his
reaction in such a matter is really one of the imponderables of an electoral
contest and cannot form the basis of a definite finding one way or the other.
At any rate the appellant was not new to the contest. He had won the · elections on three earlier occasions. {720G-721A]
15(a) The appellant's contention that the allegation in paragraph 5 of the
election petition which constituted the subject matter of the appeal \Vas vague,
was clearly an after thought and should be rejected. fie had nOt shown that it
has prejudiced his defence.
[708C.D]
15(b) The la'\v in regard to the verification of election petition is contained
in the proviso to s. 83 ( 1) of the Act which requires that the affidavit should
be in the "prescribed form".
A reference to r. 94A and Form 25 of the Conduct of Election Rules, 1961 shows that it would be enough for the election
petitioner to say that the statements made in the relevant paragraph were true
to bis "information". ·The election petitioner in the instant case had done this.
[708E-F]
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Virendra Kumar Sakleclia v. Jagjiwan and Ors. [1972] 3 SCR 955 inappliE
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cable.
15(c) The appellant cannot be heard to say for the first tin1e in this appeal
that he Willi not answerable for what the Police Officer was alleged to have
stated at the meeting and that his case should be judged on the limited allegation that the Police Officer lent his assistance to convene the
meeting. The
proper way to examine the controversy was to consider the substance of the
allegation and not its form. The allegation should be read as a_ whole and not
in a disjointed way or to tear a line here or a line there, from the context The
paragraph taken as a whole relates to- the allegation regarding the commission
of corrupt practice under s. 123(7). The allegation was rightly taken in the
trial court to mean that the assistance of the Police Officer was obtained or
procured both for convening and addressing the meeting for the furtherance of
the appellant's prospects in the election.
[709C, H, D, E, G)
C1v1L A1•PELLATE JURISDICTION : Civil Appeal No. 99 and 79
of 1978.
From the Judgment and Order dated 21-12-1977 of the Kerala
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High Court in Election Petition No. 17 of 1977.
A. K. Sen, Y. S. Chitale, P. Surendaran, P. B. Dadachanji, J. K.
John, C. K. Srivashanker Panicker, T. R. Raman Pillai and Man;ul
Kumar, for the Appellant (In C.A. 99 /78).
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Y. S. Chitale, Miss P. Nambiar and A. S. Nambiar for the Appelt
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!ant in C.A. No. 79/78.
P. Govi11da11 Nair, N. Sudhakaran, Mathew Zachiiriah a!ld Mrs.
Baby Krishan for Respondent No. 1. (In both the Appeals)
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K. M. MANI V. P. J. ANTONY (Shingha/, J.)
705
The Judgment of the Court was delivered by
&m«mAL, ].-These two appeals are directed against two orders
of the Kerala High Court dated December 21, 1977, in the election
petition of respondent P. J. Ahtony, an elector of the Palai constituency
(No. 94) of Legislative Assembly.
P. J. Antony challenged the election of K. M. Mani in the general election of 1977 and prayed for a
declaration that the other candidate N. C. Joseph, respondent No. 2,
had been duly elected in that election.
The High Court held that.
K. M. Mani "obtained and procured the services of Joseph Thomas, a
police officer," in furtherance of the prospecis of his election and a
corrupt practice was committed under sub-section (7 of section 123 of
the Representation of the People Act, 1951, hereinafter referred to as
the Act. It therefore declared K. M. Mani's election from the conSti·
tuency to be void, with costs, but rejected the prayer for directing
N. C. Joseph to have been elected. It made a separate order the same
day naming K. M. Mani and Joseph Thomas as the persons who were
guilty of the corrupt practice.
While K. M. Mani has filed appeal
No. 99 of 1978 and will hereafter be referred to as the appellant,
Joseph Thomas has filed appeal No. 79 of 1978.
Polling at the. election was held on March 19, 1977, and the result
was declared on March 20.
The appellant obtained 39,664 votes,
N. C. Joseph, who was the nearest rival at the election, obtained 24,807
votes and the other defeated candidate Joseph Cheriyan obtained 521
votes.
The appellant was a Roman Catholic and was working as the
Finance Minister of the Kerala Government at the time of the election.
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He was the candidate of the Kerala Congress, which had entered into
some sort of an election alliance with some other parties. N. C. Joseph,
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who was also a Roman Catholic, was an indepengent candidate. The
contest was thus between Roman Catholics.
The election of the appellant was challenged with the allegations
that he had committed corrupt practices under sub-sections (1), (2),
(3), (4) and (7) of section 123 of the Act.
But the election petiG
tioner did not even allege the ground for the commission of any corrupt ·
practice under sub-section ( 4) and did not press his case in regard
to the commission of the corrupt practice under sub-section (3) of
section 123. It is also not in controversy that he did not find it
possible to prove his allegations under sub-sections (1) and (2). The
trial court however found that the appellant had committed a corrupt
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practice under sub-section (7) of section 123 and, as has been stated,
it named him and Joseph Thomas as the persons who had been proved
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706
SUPREME COURT REPORTS
[ 1979] 1 s.c.R.
at the trial to be guilty of that corrupt practice.
We shall therefore
confine ourselves to the question whether that corrupt practice was
committed by the appellant and Joseph Thomas. In doing so we shall
refer only to the pleadings and the evidence relating to it.
·
It was alleged in the election petition !!hat a meeting of the priests
of the various parishes of the Roman Catholic Church within the area
of the Palai constituency and "certain other leaders of the Catholic
Community" was convened at the Bishop's house Palai, on March 12,
1977, at 8 p.m. which was presided over by the Bishop and was attended and addressed by Joseph Thomas who was an officer of the Indian
Police Service and was posted as City Police Commissioner, Trivandrum. As the entire allegation in that respect has been stated in paragraph 5 of the election petition, it will be convenient to extract it
here,-
"5. The same meeting was attended and add1essed by
Shri Joseph Thomas, I.P.S., City Police Commissioner, Trivandrum.
Addressing the meeting he exhorted the Parish
Priests and leaders of Community assembled in that meeting
to work for the success pf Shri K. M. Mani Ist respondent-
"as it was in the interest of the Church and f'ommunity".
Shri Joseph Thomas went to Palai at the instance of 1st respondent-Minister or with his consent and knowledge to
assist the convening of the meeting of the Bishop and Priests
for the furtherance of the prospect of the victory of the lst
respondent in the election.
Shri J oscph Thomas actually
addressed this meeting exhorting to work for the victory of
the lst respondent.
The said Joseph Thomas is a member
of the Police Force and a Gazetted Officer.
The said Police
Officer is known for his antipathy towards the Opposition
Parties.
Obtaining or procuring his services for the furtherance of the prospects of the lst respondent's election is a
corrupt practice falling within the mischief of Sec. 123 (7) of
the Representation of People Act, 1951."
The appellant filed a written statement in which he traversed the
averments in the election petition and, in regard to the allegation in
paragraph 5, be set up the following defence,-
"This respondent denieS the averments in para 5 of the
petition. This respondent does not know whether Shri Joseph
Thomas attended or addressed the meeting as alleged in para
5 of the election petition.
This respondent is not aware of
any exhortation having been made by Shri Joseph Thomas
as alleged in paragraph 5 of the petition. This respondent
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K. M. MANI v. P. J. ANTONY (Shinghal, /.)
707
denies that Shri Joseph Thomas went to Palai at the instance
of this respondent. He has not gone to Palai with this respondent's consent and knowledge to assist the convening of
any meeting of Bishop and Priests for furtherance of the
prospect of the victory of this respondent in the election. This
respondent is not aware as to whether Shri Joseph Thomas
actually addressed the said 'meeting exhorting to work for the
victory of this respondent.
This respondent is not aware of
Shri Joseph Thomas having any antipathy towards the opposition parties. This respondent has not obtained or procured
his services for furtherance of the prospects of this respondent's election.
This respondent is not guilty of any corrupt
practice falling within the mischief of s. 123 ( 7) of the Rrpresentation of Peoples Act."
A reply was filed by Joseph Cheriyan substantially supporting theelection petition, but it has no bearing on the case.
The High Court framed three rather general issues
ratsmg
the
questions : (1) whether the election petition was maintainable, (2)
whether the election of the appellant was vitiated by all or any of the
corrupt practices alleged in the petition, and (3) what costs and reliefs
were admissible to the parties.
The High Court found that the election petition was maintainable
and that finding has not been challenged before us except in regard to
the vagueness of the pleading in paragraph 5.
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The allegations about the commission of the corrupt practices were
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set out in paragraphs 4, 5 and 6 of the election petition.
Although the
appellant specifically took the plea in his written statement that the
averments in paragraphs 4 and 6 were vague, he did not take any such
plea in regard to paragraph 5.
This shows that the allegation in paragraph 5, which constitutes the subject matter of the present appeal,
was not found to be vague and the appellant had no difficulty in setting
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out his defence thereto in paragraph 8 of his written statement. Realising that the appellant had not found it possible to raise any objection
about the vagueness of the allegation in paragraph 5, his learried counsel
· invited our attention to paragraph 11 of the written statement where
it was stated that the "allegations in the petition as well as the affidavit
are too vague tb be accepted and. acted upon," and that "the averments
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in the petition and affidavit are purposely left vague with intent to
fish out materials to fill up the lacuna."
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SUPREME COURT REPORTS
[1979] 1 s.c.R.
A reading of the whole of paragraph l 1 shoWll, however, that it
was essentially meant for the purpose of showing that the affidavit
which had been filed along with the election petition did not conform
to the requirements of the law, and could not be acted upon, and it
was in that context that the aforesaid averment was made about the
vagueness of the allegations in the election petition as well as the affidavit. But even if we were to correlate that averment of paragraph 11
to the allegations in the election petition, we have no doubt that it
could be said to relate only to the allegations in paragraphs 4 and 6
of the election petition regarding the commission of corrupt practices
under sub-sections (2), (3) and (1) of section 123 of the Act which,
as has been stated, have not been raised for consideration in these
appeals.
There is therefore justification for the argument of learned
counsel for the respondent that the argument regarding the vagueness
of the allegation in paragraph 5 of the election petition is an afterthuoght and should be rejected as it bas, at any rate, not been shown
that it bas prejudiced the defence.
It has also been argued that the election petition has not been
properly verified as it has not been stated which of the averments in
paragraphs 3 to 6 were true "according to the information received
by the petitioner" and which were "believed" by him to be true.
Our
attention bas in this connection been invited to a judgment of this Court
in Virendra Kumar Sak/echa v. Jagiiwan and others('). We find that
the only objection which was taken in the written statement {paragraph
11) was that the "affidavit filed along with the Petition (was) not in
conformity with the requirements of law".
The law in that respect
is contained in the proviso to section 83 (1) which requires that the
affidavit shall be in the "prescribed form".
A cross reference to rule
F
94A and Form 25 of the Conduct of Elections Rules, 1961, shows
that it was enough for the election petitioner to say that the statements
made in the relevant paragraphs (3 to 6) were true to his "information"
and that is what he has done.
The decision in Sak/echa turned on the
Rules of the High Court, but no breach of any rule of the Kerala Hlgh
Court has been brought to our notice.
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It has then been argued that the allegation regarding the commission of the corrupt practice under sub-section (7) of section 123 was
merely to the effect that Joseph Thomas went to Palai at the instance
of the appellant to assist the "convening" of the meeting of the Bishop
and priests for the furtherance of the appellant's prospects in the electicm, and that the further averment in paragraph 5 that Joseph Thomas
"actually addressed" the meeting exhorting those present to work for
(I) [1972) 3 S.C.R. 955.
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K. M. MANI V. P. J:. ANTONY (Shinghal, ].)
709
the victory of the appellant, was not at the instance of the appellant
and he was therefore not responsible for it even on the basis of the
averment made in election petition.
We are nnable to uphold this
argument for two reasons.
Firstly, it was not the appellant's case in
the written statement, or dnring the course of the trial, that the alle.
gation against him was limited to Joseph Thomas's assistance in "convening" the meeting at the Bishop's house and did not extend to his
exhortation to those present to work for the appellant's victory in the
election, and the argument that has now been addressed has been made
up subsequently.
The appellant cannot therefore be heard to say for .
the first time in this appeal that he is not answerable for what Joseph
Thomas is alleged to have said at the meeting and that the case against
him shonld stand or fall on the basis of the limited allegation that he
lent his assistance to the convening of the meeting at the Bishop's
house.
Secondly, it is necessary, for the purpose of appreciating an
argument of this nat~e bearing on the contents, nature and extent of
an allegation regarding the commission of a corrupt practice, to read
the allegation as a whole, and not to disjoint it, or to tear a line here or
a line there, from the context. If this test is applied to the averment in
paragraph 5 of the election petition, it will be quite clear that the
paragraph taken as a whole relates to the allegation regarding the
commisson of the corrupt practice under sub-section (7) of section 123
of the Act in obtaining or procuring the assistance of Joseph Thomas
not only for convening the meeting of the Bishop and the priests for
the furtherance of the prospects of the appellants in the election but also
his addressing that meeting and exhorting those present to work for
that purpose. The mere fact that the allegation regarding addressing
the meeting and exhorting the audience is contained m a separate
sentence, will not justify the argument that the allegation in paragraph
5 was confined to "convening" the meeting and not to addressing it.
This is borne out by the sentences that precede and follow the allegation about convening the meeting where it has clearly been stated that
the police officer's services were also obtained or procured for eXhort.
ing the priests to work for the furtherance of the prospects of the
appellant's election.
The allegation was therefore rightly taken in the
trial court to mean that the assistance of Joseph Thomas was obtained
or procured both for convening and addressing the meeting for the
furtherance of the appellant's prospects at the election.
The proper
way to examine a contro¥ersy like this is to consider the substance of
the allegation and not its mere form.
It may be that a part of the
aliegation may, be made in a separate sentence or sentences, and it
may also be that it may appear to be disjointed from the earlier allegation because of inartistic drafting, but it is the substance of the alleA
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gation which is material and not its mere form. It is equally necessary
that ,the allegation should be read as a ·whole and construed properly
so as to understand its true nature and content.
On such an examination, we have no doubt that there is no force in the argument that the
allegation regarding the corrupt practice under sub-section (7) of section 123 did not relate to the addressing of meeting
by
Joseph
Thomas.
There is however justification for the argument of
the
learned
counsel for the appellant that the allegation in paragraph 5 of the
election petition is confined to the commission of the corrupt practice
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by the candidate, namely K. M. Mani, and not by his- agent or by
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any other person with the consen~ of K. M. Mani or his election agent.
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The use of the words "or with his consent and knowledge" are therefore
of no consequence and it is in fact not disputed before us that the
allegation is confined to the obtaining or procuring of Joseph Thomas's
assistance in convening and addressing the meeting at the Bishop's
house by the appellant himself.
Before examining the controversy on the merits, it will be convenient
to make a mention of those facts which are not in controversy before
us.
II is thus not disputed now that a meeting was called by Dr.
Sebastian Vayalil (P.W. 2), Bishop of Palai Diocese, on March 12,
1977, at 8 p.m. at his residence.
It was addressed by the Bishop and
Joseph Thomas was present there. He was an officer belonging to the
Indian Police Service and was posted as City Commissoner of Police,
Trivandrum, in those days, so that he was a member of the
police
forces within the meaning of clause (d) of sub-section (7) of section
123 of the Act.
fr would be recalled that it was alleged, inter alia, in paragraph 5
of the election petition that Joseph Thomas went to Palai at the instance of the appellant to assist the convening of the meeting for furtherance of the appellant's prospects in the election.
The trial court however found that sufficient evidence was not available to substantiate the
allegation, and it therefore proceeded to consider the question whether
he addressed that meeting as alleged in the election petition.
That
finding of fact of the High Court is quite correct and has rightly not
been challenged before us.
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We shall therefore examine the evidence in regard to the other two
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allegations that Joseph Thomas addressed the meeting at the instance of
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the appellant and exhorted those present to work for his victory in the
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election.
In order to arrive at a decision, it will be- convenient to
examine why Joseph Thomas went to Palai, why he visited the Bishop's
house and what exactly he said in the meeting there.
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K. M. MANI v. P. J .. ANTONY (Shinghul, ].)
711
It has been stated by Joseph Thomas, and has not been disputed
before us, that he was posted in those days as City Commissioner of
Police, Trivandrum, and no part of the Palai constituency fell within
his jurisdiction. It is also not in controversy that his father was laid
up with prolonged illness as an indoor patient in the hospital at
Bharananganam at a distance of three miles from Palai where they
belonged.
Joseph Thomas's statement .that he was sent on duty, by a
written order, to Cannanore, that he took a half day's casual leave on
March 12, 1977 on return to Ernakulam from Cannanore and went to
Bharananganam hospital to meet his ailing father via Palai without
stopping there and reached the hospital at 2.30 p.m., has not been dis·
proved by any evidence on the record.
On the other hand, we find
that Dr. Sebastian Vayalil (P.W. 2), the Bishop of Palai, has also
stated about the illness of the father of Joseph Thomas for the preceding two or three years.
The Bishop was in a position to know about
it because he has stated that Joseph Vathavayalil, father of Joseph
Thomas, was the legal adviser of the Bishop's house.
He has further
stated that he actually asked Joseph Thomas how his
father
was.
Nothing has been brought on· the record to disprove the testimony of
Joseph Thomas (P.W. 6) and Dr. Sebastian Vayalil (P.W. 2) in this
respect.
In fact as Joseph Thomas's father was suffering from a prolonged illness in the Bharananganam hospital, it was nothing unusual
for his son Joseph 'fhomas to visit him off and on, and he cannot be
blamed if he took the1 opportunity of his presence 'near Bharananganam
to take leave of absence for a few hours and go and meet him. Nothing
could therefore possibly tum on the mere fact that Joseph Thomas was
in Palai on March 12, 1977.
The question which however arises for consideration is why Joseph
Thomas went to the Bishop's house at a time when a meeting was being
held there at about 8 p.m.
An easy way of proving the allegation
which had been made in this connection in the election petition was
to establish that the meeting was convened at the instance of Joseph
Thomas, but, as has been stated, the election petitioner failed to establish that this was so.
The Bishop (P.W. 2) has in fact left us in no
doubt that he himself decided to hold the meeting, and that the way
from Bharananganam to Palai was by the road which lay in front of
his house.
Dr. Joseph Pallikkaparambil (P.W. 7), who was the
Auxilliary Bishop of Palai Diocese, has also stated that the decismn
to convene the meeting was taken by the Bishop.
It was therefore
imperative for the election petitioner to establish the remaining allegation that Joseph Thomas went to the Bishop's house for the purpose of
exhorting those present at the meeting to work for the appellant's victory in the election and that he actually did. so.
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Joseph Thomas (P.W. 6) has stated that he left Bharananganam
hospital at about 3.30 p.m. and went to tbe Bishop's house to see the
Father Chancellor Madathilparambil in connection with his suggestion
regarding the marriage of the sister of a priest with his
(Joseph
Thomas's) brother.
He has stated further that he met the Bishop
and the Father Chancellor together at about 3.45 p.m. because the
Father Chancellor lived in the same premises.
He left there after
4.15 p.m. for his house at Palai and returned to the Bishop's house at
about 8 p.m. to inform Father Chancellor about his reaction regarding the proposal for his brother's marriage and there he learnt that he
was in tbe dining room.
He went there and found a number of persons.
He met tbe Father Chancellor and returned soon after.
We
shall revert to Joseph Thomas's talk in the Bishop's house on that occasion, but we find it difficult to reach the conclusion that he went there
for the purpose of exhorting the audience to work for the appellant's
success at the polls. It may be that Joseph Thomas's statement about
the purpose of his visit to the Bishop's house is not very convincing,
but it will not be possible for us to hold the appellant responsible for
it in the absence of any evidence to that effect on the record.
Bishop Sebastian Vayali!- (P.W. 2) at whose instance and at whose
house the meeting was held, has stated the reason for holding it. Briefly
stated, his version is that news items Ex. 1 appeared in the Indian
Express on March 12, 1977, stating that tbe Catholic Church was
silent, and he received some anonymous letters saying that he was
against Mani.
As some' priests also thought that such a wrong impression had been created, he thought it necessary to call the aforesaid
meeting to clarify that he was not against the appellant. This statement
of the Bishop has been corroborated by Father Joseph Chovvathukunnel
(P.W. 7) who was tin Auxilliary Bishop of the Diocese.
We have
therefore no hesitation in holding that the meeting was held at the
Bishop's own initiative and for the purpose of making the clarification
referred to by him.
The Bishop has stated that he clarified that he
was "not against Mani or any other candidate", that the exercise of
franchise was important and that all should use it prudently.
His
statement to that effect has not been shaken in cross-examination and
has not been disproved.
It has been established by the evidence on record
that Joseph
Thomas was present after tbe meeting had commenced and said something there. The question is what exactly did he say ?
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An allegation regarding tbe commission of a corrupt practice at
an election is a very serious matter not only for the candidate but for
the public at large as it relates to the purity of the electoral process.
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K. M. MANI V. P. J. ANTONY (Shinghal, /.)
713
Where therefore the allegation relates to the Charge that a candidate
obtained the assistance of a police officer for the purpose of addressing
a meeting on the eve of the poli and exhorting these present to work
for his victory, it is reasonable to expect that wherever possible, a
transcript of his speech shall be made available to the Court in support
of the allegation.
Besides furnishing the precise material relating to
the allegation to the election Court, it has the advantage of giving the
respondent an opportunity of meeting a precise allegation.
But it may
be that this may not be possible in a given situation. In that case it
will be reasonable and fair to expect that the election petitioner will
produce a contemporaneous record of the points that were made in the
speech, or at least its substance.
But no such record has been made
available in this case.
Even a gist of what Joseph Thomas said at
the meeting, has not been stated in the election petition and the election
petitioner has contended himself by making the cryptic statement that
Joseph Thomas "addressed this meeting exhorting to work for the victory of the 1st respondent".
That may well have been the impression
or the opinion of the election petitioner on hearing what others told
him about the speech because he was admittedly not present at the
meeting.
All the same, some other witnesses have been examined
about the purport of the speech, and we shall examine whaf they have
~lated.
Dr. Sebastian Vayalil (P.W. 2), the Bishop who called the meet!ng
in his house, bas stated that Joseph Thomas spoke at the meeting after
his own speech was over and several priests and expressed their opinion.
He said that the Bishop had spoken about document Ex. 1 and the
anonymous letters and that "there is nothing much to fear".
The witness has further stated that Joseph Thomas said that his belief was that
K. M. Mani will win.
When he was asked whether Joseph Thomas
~aid that for the benefit of migrated Christians who had lost their lands
on account of the Land Reforms Act, 1964, persons like Mani who
loved the Christian community should win and become a minister, the
witness categorically stated that he "didn't say anything like that."
When he was asked further whether Joseph Thomas said that he was
prepared to give up his uniform for the sake of Mani's success, the
witness stated that what Joseph Thomas said was that "If it is necessary
I will give up my uniform and job." When the witness was clearly
asked whether that was said for the success of the appellant, he replied
that he did not know what for.
There is thus nothing in. the statement
of the Bishop, who was the prime mover of the meeting, to show that
Joseph Thomas exhorted the audience to work for the victory of the
appellant or rendered him any assistance for the furtherance of his
prospects in that direction.
Even a police officer whose assistance has
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been prohibited under ~b-section (7) of section 123 of the Acl, is
nonetheless a citizen and an elector, and is entitled ·to have his own
belief that a particular candidate woukl win, and to express that belief
without lending an impression that. it was meant to assist him in the
election in any manner.
It would have been open to objection if
Joseph Tl1omas had stated at the meeting that it was necess'1ry for the
benefit of the Christian community that persons like Mani should win
and become a Minister to save them from the rigour of the Land
Reforms Act, but the Bishop has returned a categorical answer that
Joseph Thomas did not ~y any such thing.
The remaining part of the statement of the witness relates to Joseph
Thomas's statement that if it was necessary he would give up his uniform and job.
That question was asked of the witness in the context ·
of the appellant's success in the election but, even so, his reply, as
staled by the Bishop, cannot be said to be open· to o'bjection. Accordthat limitation, it cannot be believed that he wonld throw discretion
job if that was necessary.
That was a statement regarding his future
course of action, and it shows that Joseph Thomas realised that without giving up his job it was not possible for him to assist the appellant
in the election.
When therefore Joseph Thomas was conscious of
that limitation, it cannot be believed that he would throw discretion
to the winds and then and there launch an exhortation for the appellant's success at the polls.
The fact that no such impression was created from what Joseph Thomas said at the meeting, will be clear from
the Bishop's answer. that he did not know what for the witness mentioned his willingness to give up his job when necessary.
We have
no reason to disbelieve the statement of the Bishop, and we are unable·
to take the view that it can be used for the purpose of proving the
alleged corrupt practice of obtaining or procuring the assistance of
the police officer for furtherance of the appellant's prospects in the
election.
Cherian J.