# KANHAIY ALAL v. MANNALAL & OTHERS

- **Citation:** [1976] 3 S.C.R. 808
- **Court:** Supreme Court of India
- **Decided:** 1976-03-23
- **Case number:** Civil Appeal No. 870 of 1974
- **Bench:** P. K. Goswami, S. MURTAZA FAZAL Au
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kanhaiy-alal-v-mannalal-others-6837
- **Pages:** 19

## Headnote

Representation oj the People Act,
1950!--S~ 123(4)--Corrupt practiceDegree of proof-Election dispute not a private feud.
Respondent No. 1, an elector in the constituency in his election petition
alleged _that the appe:llant, the successful candidate, got printed and published
and personally d1stnbuted on a large scale throughout the constituency a
pamphlet containing slat'ements ih relation to the personal character or conduct
of one of the candidates, reasonably calculated to prejudice the prospects of
his elect_ion, and thereby committed the corrupt practice under s. 123 ( 4) of
the Representation of People Act, 1950.
The High Court allowed the election petition.
·
Allowing the appealHELD: (I) (a) The allegations mentioned in the document related to the
personal character and conduct of one of the candidates and wer:e reasonably
calculated to prejudice the prospects of his election.
If the distribution of the
same by the appe1Iant was established and if it \vas also established that the
statements of facts therein were false and that the appe1lant
eith~r believed
them to be false or did not believe· them to be true, he would be guilty of
corrupt practice uhder s. 123(4) of the r\ct. [815 E-G]
(b) The charge of electoral corrupt
practice being of a
qua~i-criminal
character, the onus on an election petitioner is heavy as if in a criminal charge.
The allegations must be established beyond reasonable doubt to the ,Satisfaction of the court by independent and unimpeach:abJe evidence. [817 G-H]
2.(a) There is no doubt that the pamphlet \vas in existence prior to the
date of poll.
[817 A-BJ
(b) The High Court comn1itted a serious error in linking up the printing
of the document allegedly at- the instance of the nppellant, for which there
was no evidence whatsoever, with the distribution of the san1c by the appellant in the constituency. It flirther committed an error of law in not dealing
with the two matters of printing and its distribuion separately and independently. [819 F-H]
( c) The High Court did not adopt a uniform standard in appreciating the
evidence of the witnesses of the contending parties.
Nor was it right in its
conclusion that the charge of distribution of the pamphlet by the appellant
\Vas established against him.
While one of the defeated candidates took care
to prepare a panchnan1a for the distribution of the offending pamphlet by the
agt'nts of the appetlaht, and lodged a complaint with the returning: officer,
there was no documentary evidence,
no con1plaint or service of hnvyers'
notice or preparation of a panchnan1a in regard to the
distributio~ of the
pamphlet by the appellant himself. It is absurd to· suppOse that the respondent
would not have moved in the matter \Vhen the appellant had personally distributed the pamphlet.
The petitioner had not been able to establish the
allegations about the distribution of the pamphlet by the appellant before the
election. [820 B-F]
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3 (a) An election dispute is not a private feud between one individual and
another. The \vhole constituency is intimately involved in such a dispute.
Shaky and V.'avering oral testimony of a handful of \.vitnesses cannot still the
dominant voice of the majority of the electorate.
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·, . )(ANHAIYALl\L v. MANNALAL (Goswami, !.)
809
( b) It· is d_iffictilt to hold that a serious charge of this nature is established
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on the ~ere oral testimony"' of the petitioner's witnesses. [825 El_
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( c) Oral testimony \Vil! have to be judged with the greatest care and an
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electoral victory cannot be allowed to be nullified by a mouthful of oral testimony without contemporaneous assurance of a reliable nature from an independent source. [825 H]

## Text

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KANHAIY ALAL
v.
MANNALAL & OTHERS
March 23, 1976
[P. K. GOSWAMI AND S. MURTAZA FAZAL Au, JJ.]
Representation oj the People Act,
1950!--S~ 123(4)--Corrupt practiceDegree of proof-Election dispute not a private feud.
Respondent No. 1, an elector in the constituency in his election petition
alleged _that the appe:llant, the successful candidate, got printed and published
and personally d1stnbuted on a large scale throughout the constituency a
pamphlet containing slat'ements ih relation to the personal character or conduct
of one of the candidates, reasonably calculated to prejudice the prospects of
his elect_ion, and thereby committed the corrupt practice under s. 123 ( 4) of
the Representation of People Act, 1950.
The High Court allowed the election petition.
·
Allowing the appealHELD: (I) (a) The allegations mentioned in the document related to the
personal character and conduct of one of the candidates and wer:e reasonably
calculated to prejudice the prospects of his election.
If the distribution of the
same by the appe1Iant was established and if it \vas also established that the
statements of facts therein were false and that the appe1lant
eith~r believed
them to be false or did not believe· them to be true, he would be guilty of
corrupt practice uhder s. 123(4) of the r\ct. [815 E-G]
(b) The charge of electoral corrupt
practice being of a
qua~i-criminal
character, the onus on an election petitioner is heavy as if in a criminal charge.
The allegations must be established beyond reasonable doubt to the ,Satisfaction of the court by independent and unimpeach:abJe evidence. [817 G-H]
2.(a) There is no doubt that the pamphlet \vas in existence prior to the
date of poll.
[817 A-BJ
(b) The High Court comn1itted a serious error in linking up the printing
of the document allegedly at- the instance of the nppellant, for which there
was no evidence whatsoever, with the distribution of the san1c by the appellant in the constituency. It flirther committed an error of law in not dealing
with the two matters of printing and its distribuion separately and independently. [819 F-H]
( c) The High Court did not adopt a uniform standard in appreciating the
evidence of the witnesses of the contending parties.
Nor was it right in its
conclusion that the charge of distribution of the pamphlet by the appellant
\Vas established against him.
While one of the defeated candidates took care
to prepare a panchnan1a for the distribution of the offending pamphlet by the
agt'nts of the appetlaht, and lodged a complaint with the returning: officer,
there was no documentary evidence,
no con1plaint or service of hnvyers'
notice or preparation of a panchnan1a in regard to the
distributio~ of the
pamphlet by the appellant himself. It is absurd to· suppOse that the respondent
would not have moved in the matter \Vhen the appellant had personally distributed the pamphlet.
The petitioner had not been able to establish the
allegations about the distribution of the pamphlet by the appellant before the
election. [820 B-F]
H
3 (a) An election dispute is not a private feud between one individual and
another. The \vhole constituency is intimately involved in such a dispute.
Shaky and V.'avering oral testimony of a handful of \.vitnesses cannot still the
dominant voice of the majority of the electorate.
f826 A-B]
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·, . )(ANHAIYALl\L v. MANNALAL (Goswami, !.)
809
( b) It· is d_iffictilt to hold that a serious charge of this nature is established
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on the ~ere oral testimony"' of the petitioner's witnesses. [825 El_
S'
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( c) Oral testimony \Vil! have to be judged with the greatest care and an
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electoral victory cannot be allowed to be nullified by a mouthful of oral testimony without contemporaneous assurance of a reliable nature from an independent source. [825 H]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 870 of 1974.
From ·the Jiidgrnent and Order dated the 7-3-74 of the Madhya
Pradesh· High. Court (Indore Bench) in Election Petition No. 9 of
1972.
B. R. Nahata and Rameshwar Nath for the Appellant.
Hardayal 'Hardy and S. K. Gambhir for Respondent No. 1.
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S. S. Khanduja and Sushil Kumar lain for Respondent No. 4.
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Lx paric; Respondent Nos. 2 and 3.
·The Judgment of the Court was delivered by
GqsW/\¥1, J.--Thi8 is an appeal under section 116A of
the
Representation of the People Act, 1951, against the judgment of the
High Court of Madhya Pradesh in an election petition filed by an
elector named Mannalal (respondent No. 1 in this appeal), hereinafter to be described as the. petitioner, for setting aside the election
of the appellant Kanhaiyalal N agori.
The constituency was Javad Constituency of the Madhya Pradesh
Legislative Assembly.
The poll took place on March 8, 1972 and
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the result was declared on March 12, 1972. There were four contesting candidates.
The appellant Kanhaiyalal who was a Congress
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candidate and respondent No. 1 in the election petition, obtained
25,594 votes.
Virendrakumar Saklecha (for brevity Saklecha) who
was a Jan Sangh candidate, being respondent No. 4 both in
the
election petition as well as in this appeal, obtained the second highest number of votes viz., 23,064. Ravishankar Sharma (respondent
No. 2) who was a Socialist candidate, obtained 1300 votes
and
Jagmohan (respondent No. 3) an independent candidate obtained
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1,104 votes.
The last two candidates forfeited their security deposit ..
The appellant Kanhaiyalal was declared elected by a margin of 2,530
votes .
Saklecha was being returned from this constituency since 1957
having won the election in that year and in the next two successive years
1962 and 1967. In the 1967 election wherein he won, there was
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an election petition against him.
The High Court set aside
the
election on the ground of certain corrupt practices, but this Court
set aside the judgment of the High Court in January 1972.
In the year 1968, Congress Government was defeated and Samyukat Vidhayak Dal (briefly S.V.D.) came into power in the State.
Saklecha was the Deputy Chief Minister in that Government from
July 1967 to March 1969. The S.V.D. Government fell in 1969.
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As stated earlier the election of the appellant was challenged by
an elector Mannalal by an election petition filed on April 24, 1972,
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810
SUPREME COURT REPORTS
[1976) 3 S.C.R.
alleging corrupt practices under section 123 ( 4) of the Representation of the People Act (briefly the Act) which reads as follows:-
123. "The following shall be deemed to be
corrupt
practices for the purposes of this Act :-
x
x
x
x
( 4) The publication by a candidate or his agent or by
any other person, with the consent of a candidate or
bis 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 to the personal character or conduct of any candidate, or in
relation to the candidature, or withdrawal, of any
candidate, being a statement reasonably calculated
to prejudice the prospects of that candidate's election."
It may be appropriate to describe from the election petition itself
the allegations against the returned candidate, Kanhaiyalal Nagori :
"5. That the election of the returned candidate, respondent No. 1 is liable to be declared void and set aside on
the following grounds :-
(A) That the respondent No. l got published through
Block Congress Committee, J avad, a
pamphlet
entitled
"Saklecha Ke Karyakal Par Ek Nazar" and it was distributed throughout the Javad constituency by the respondent
No. 1 himself and by his workers and agents with his consent.
The said pamphlet was printed in Shriman Press,
Neemuch and the signatories to the said pamphlets are all
members and important office bearers of the Congress party
and who were actively conducting the election propaganda
of the respondent No. 1. Respondent No. 1 was official
Congress candidate and he was also Provincial Congress
Committee member representing Block Committee Javad
and President Janpad Panchayat Javad. The said pamphlet is
in Malvi dialect and was distributed on a large scale throughout the constituency by the candidate himself and through
his workers and agents by his consent and connivance. By
the said pamphlet the respondent No. 1 throngh his agents
Parasram Agarwal of Singo!i,
Chosarmalji
of
Singoli,
Bhanwarlal Badolia
of
Kadwasa,
Ghanshyam
Patidar
of Neemuch. Vijaychankar Sharma of Neemuch, Shankar.Jal
Bhatevara. President of Block Congress, Javad, and Dhecrai
Vyas, Secretary, Block Yuvak Congress Javad, published
statements of fact which are totally false and which
the
respondent No. 1 and his said agents believed to be false
or did not believe to be true, in relation to the personal
character or conduct of the respondent No. 4, being statements reasonably calculated to prejudice the prospects of
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KANHAIYALAL v. MANNALAL (Goswami, J.)
811
the election of respondent No. 4.
The said pamphkt contained allegations against the respondent No. 4, which are
totally false to the knowledge of respondent No. 1 and his
said agents and other persons who distributed the said pamphlet.
The aforesaid pamphlet (an English rendering)
reproduced below (sic) false allegations against the personal character and conduct of respondent No. 4 :
"Ex. P-1"
INDIRA GANDHI JINDABADIPRAKASHCHAND SETHI
JINDABAD
Election
Symbol
Dear Villagers,
Birds Eye View of Saklecha"s Regime
This is the election period. In our constituency voting shall be
on 8th, the Wednesday.
We have been returning the DeepakwalaSaklecha for the last 15 years and he has been sitting in the Assembly
for the last 15 years.
Saklecha has remained Deputy Chief Minister
but did no work.
He only served his interest. You have
read
this news in 'Nai Dunia' newspaper that Saklech ahas devoured lakhs
of rupees from dacoits. During his period of rule he has
tortured
people by selecting them. He troubled people indiscreetly. Saklecha
has ploughed thousands of bighas of land on the Sukkanad
side,
when people are not getting land.
Saklecha has ploughed the grass
land of Bhutiakhal of Bava! and has installed electric water pump on
the Kha!, when people are starving for water for irrigation of their
land.
This is a matter for consideration that what has been done by
Saklecha for the villagers.
He filled his belly.
You gave him opportunity to work for 15
years, but he did nothing.
Arey?
you think about it, that if you
would have given water to a Babool tree, then it would have also
given you a blessing, but Saklecha has done nothing in 15 years. On
our side we have a great scarcity of water, if he would have desired,
then at the time of his Govt. he would have got Tube wells prepared.
But he did not think about it as for him there is a water pump fitted
at Bhutia Kha! and there is road for him to go to his home.
He has
helicopter and aeroplane for his travel.
He talks only in the
air.
In Saklecha's Govt. they purchased Dodge Chasis in place of Mercedez and did much bungling with (sic) which God alone knows.
He has devoured the land of one Baba of Javad area.
This is
known to the whole world. Therefore you have to consider it and
be not deceived this time otherwise we will lay behind for other five
years.
Our area is lagging behind.
This is a matter for you
to
remember. Therefore for the development of the area and for removal of shortage of water you have to put your seal on the Cow &
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812.
SUPREl\1E COURT REPORTS
[1976] 3 S.C.R.
Calf symbol of Kanhaiyalal N agori and make him succeed.
Remember this,
Our interest lies in tais. . You have .to strengthen the
hands pf; Indiraji.
Do not forget it.
. . ' .
· .
Y o\i have to put your seal th)s time on Cow and Calf.
Parasram' Agarwal, Singoli, Vice-President of
Janpad
Panchayat
Javad, Chosarmal Sarpanch, l'anchayat, Singoli, Bhanwarlal Badolia,
Sarpanch, Panchayat Kadwasa, Ghanshyam Patidar,
Pleader,
Neemuch (Janakpur), Vijayshankar' Sharma,
Neemuch
(Mahudia)
Shankarlal Bhatevara, President, Block Congress
Javad,
Dheeraj
Vyas, Secretary, Block Youth Congress,
·---~----~---
Best place for Printing-Shriram Printing Press, in front
of Jaju
Bhawan, Neemuch."
"5 (B). The said pamphlet was distributed by the respondent No. l and with his consent and in his presence and
under his direction by his agents and workers who were
accompanying him in the jeep while touring the constituency
the particulars of which are given below :-
·Name of the person
who distributed
·'Pamphlet.
1. Kanhaiyalal N aogri
2. Shankarlal Bhatevara
of Javad,
President, Block
Congress, Javad.
1. Kanhaiyalal Nagori
2. Dheeraj Vyas Mantri
of Ratangarh,
Block Yuvak Congress,
Javad.
Place
. Date
Ne wad
Jawi
Thadoli
Lasur
Daro Ii
Diken
2.3.72
2.3.72
2.3.72
2.3.72
2.3.72
Ratangarhl
Carwada
~3.3.1972
Alori
j
Kabriya
3.3.1972
Singoli
3.3.1972
5 ( C). The said pamphlet was also distributed with the
consent of the respondent No. 1 by the following persons
the particulars whereaf are as follows :-
Name of the person
Place
Date
1. Ghanshyam Patidar
2. Jagdishchandra Airen
c.1
3. Shivlal Rawat,
r
Advocate of Neemuch.
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4. Parasmal s/ o Kanhaiyalal N agori l
Village
25.2.72.
Dhaneria
and Jawi
Tehsil
Neemuch
The said persons were active workers and agents of the
r1JSpondcnt No. 1 and the said Parasmal is his son and
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KANHAIYALAL v. MANNALAL (Goswami, J.)
813
agent.
The said persons distributed the said pamphlet which
they were carrying on for the respondent No. 1.
The statements contained in the said pamphlet are false
and which the said persons and the respondent No. 1 believed to be false and did not believe to be true.
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5 (D). That the respondent No. 1 through the Block
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Congress Committee J avad published an election bulletin
dated 6.3.1972 under the caption of 'Congress Tatha Anya
Dalo Kee Sachhi Hakeekat' and got it distributed free on a
large scale throughout the Javad constituency. In this bulletin there is a reference to an interview with the Congress
candidate respondent No. 1 in the form of questions and
answers.
The questions put to him and answers given by
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him included the following question-answers" :
It is not necessary to reproduce what
was
published in
the
"Haquikat" particularly because the charge of distribution of
the
same by Kanhayalal on 6th March, 1972, in various places such as
Morwan, Daroli, Diken, Ratangarh, Singoli and Jhantla, is not being
pressed by Mr. Hardy although evidence was led to that effect in the
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trial court.
In the affidavit annexed to the election petition. the petitioner
stated as follows :-
"( c) The information regarding distribution has been
received as detailed below :-
.. --- -·--------
Naine of the person
Place of corrupt practice
committed and para of
the Petition:
-------
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1. Modidas Bairagi, village Newad
Newad
S(B)
2. Madanlal Sharma, village Jawi
Jawi
S(B) (C)
3. Onkar1al Khati, village Thandoli
Thandoli
S(B)
4. Ramniwas Patidar, village Lasoor
Lasoor
S(B)
5. Mishrilal Tailor, village Diken
Diken
S(B) (D)
6. Lakshminaraya.n Latha, village Ratangarh
Ratangarh
S(B) (D)
7. Shankerlal Cheran, village Garv .... ada Aloni
Garwada
Aloni
S(B)
8. Bhanwar Singh, village Kabriya
Kabriya
S(B)
9. Bapalal son of Bhanwarlal,_. village Singoli
Singoli
S(B)(D)
10. Keshar Singh, village Dhaneria
Dhaneria
5(C)
11. Khemraj MOti Jat, village Morwan
Morwan
S(D)
12. Balooram Dhakar, village Jhatla
Jhatla
S(D)"
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The petition was contested only by Kanhaiyalal.
He denied the
printing, publication and distribution of the aforesaid two pamphlets
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either by himself or by others with his consent.
2-725SCl/76
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814
SUPREME COURT REPORTS
(1976] 3 S.C.R.
On the pleadings the following issues were raised in the trial :-
"1. Whether respondent No. 1 Kanhaiyalal through the
Block Congress Committee, Javad, got published the pamphlet (Saklecha Ke Karyakal Par Ek Nazar) as reproduced
in para 5 (A) of the Petition ?
. 2(a) Whether respondent No. 1 Kanhaiyalal and with
his consent, in his presence and under his direction his
agents and workers named in paragraph 5 (B) of the petition also distributed the said phmphlet at the places and on
the dates mentioned in the said paragraph ?
(b) (i) Whether the said pamphlet was also distributed
with consent of respondent No. 1 Kanhaiyalal by the persons at the places and on the dates mentioned in paragraph
5(C) of the petition?
(ii) Whether the persons named in paragraph 5 (C)
of the petition were active \\'.Orkers and agents of the respondent No. 1 ?
3. Whether the said pamphlet contained statements of
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facts which were false and/or which the respondent No. 1
and his alleged agents and workers did not believe it to be
true?
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4(a) Whether respondent No. 1 Kanhaiyalal through the
Block Congress Committee, Javad, published the bulletm
as reproduced in para 5 (D) of the petition and also got it
freely distributed on a large scale and on the dates mentioned in para S(d) of the petition?
(b) Whether the statement of facts in the said bullcHn
was false and/or which the respondent No. 1 did not believe it to be true in regard to the personal character and
conduct of respondent No. 4?
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( c) Whether the said statement was calculated to preG
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judice the result of the election of respondent No. 4?
5. To what relief the parties are entitled to?"
The trial jndge answered the first question in favour of
the
election petitioner, issue No. 2(a) also in favour of the petitioner
except at the places Newad and Kabriya, Issue No. 2(b)(i), 2(b)(ii)
and Issue No. 3 in favour of the petitioner, Issue No. 4(a) also in
favour of the petitioner except at the places. Dadoli,
Diken
and
Jbantia, and Issue No. 4(b) and (c) also in favour of the petitioner.
The trial judge answered Issue No. 5 holding that the petition deserved to be allowed.
Mr. Nahata, who appeared on behalf of the appellant, the returned candidate, has addressed us with reference to all the issues that
were held against him.
Mr. Hardy, the learned counsel on behalf
of the petitioner (respondent) , however, did not press the charges
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KANBAIYALAL v. MANNALAL (Goswami, !.)
8l5
with regard to the distribution of '"Haquikat" (Ex.P-13).
H~ also
did not press the charges with regard to the distribution of Ex.P-1
by agents and by workers of the returned candidate with his consent,
.as alleged in the election petition, some of which have even
been
held in his favour by the High Court.
He, however, submits that
pamphlet Ex.P-1 is a false and libellous document affecting the personal character or conduct of the respondent, Saklecha, and so far as
the s;;m~ was distributed by Kanhaiyalal personally at J awi
and
Thadoli on 2nd March, 1972, the charges have been fully established and this Court should not interfere with the findings of the High
Court in favour of the appellant.
Mr. Khanduja appearing vn behalf of the respondent, Saklecha, adopted the submission ot
Mr.
Hardy in tow.
Before we proceed further we should observe that in the trial the
petitioner produced evidence to prove all the allegations mentioned
in the election petition by examining as many as 42 witnesses including himself and by producing relevant documents.
The appellant
also gave rebuttal evidence with regard to all the charges levelled
against him by examining 21 witnesses including himseif and
by
producing various documents.
In this appeal we are concerned with only one species of corrupt
practice contemplated in section 123 ( 4) of the Act.
Section 123 ( 4)
consists of three types of corrupt practices, namely (I) the publication of an offending or incriminating statement by a candidate, (2)
by his agent within the meaning of the Explanation ( 1) to section
123 and ( 3) by any other person with the consent of the candidate
or his election agent.
We are not concerned in this appeal with the
types in (2) and (3) in view of the stand taken by Mr. Hardy and
Mr. Khanduja.
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We may first examine whether Ex.P-1 comes within the mischief of section 123 ( 4). The allegations mentioned in Ex.P-1,
if
false, and believed to be so, or not believed to be true, would come
within the mischief of section 123(4). We have gone through the
document and we are clearly of opinion that the allegations menff
tioned in the document relate to the personal character and conduct
of Saklecha and are reasonably calculated to prejudice the prospects
of Saklecha's election. If the distribution of the same by KanhaiyaJal is established and if it is also established that the statements of
facts therein are false and Kanhaiyalal either believed them to be
false or did not believe them to be true, he will be guilty of corrupt
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practice under section 123 ( 4) of the Act.
Since the pamphlet on the face of it is shown as being printed at
Shriram Printing Press, Neemuch, evidence was led by the petitioner
by examining Harishankar (PW 32), the proprietor of the Press,
who produced the register containing the printing orders.
He stated
that during the last General Elections 5000 copies of the pamphlet
like Ex.P-1 were printed in his Press.
He was, however, unable
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t'! state w~o had come to place the order as he ~as indisposed and
his son Shtvshankar took the order. The entry m the register also
was not made by him but was made by his son, Shivshankar, who
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SUPREME COURT REPORTS
(1976] 3 S.C.R.
was not examined in the case.
From the entry in the register (Ex.
P-14) it appears that on 24th February, 1972, Congress Committee Javad placed orders for printing of 5000 pamphlets with
the
caption "Sak:lecha Ke Karyakal Par' Ek Nazar".
There is an obvious interpolation in the entry showing that Ghanshyam Patidar placed
the orders on behalf of the Block Congress Committee, but the witness could not say who had made this interpolation.
He could not
identify the handwriting in the interpolation.
The trial judge has
noted the demeanour of this witness stating that "it appears that he
did not intend to stick to any particular answer and tned to change
his version as and when he found ,j( convenient". The petitioner
wanted to establish that Ghanshyam Patidar, who according to him,
was actively working for the Congress went to the Press for placing
the orders and later on even distributed some pamphlets with
the
consent of Kanhaiyalal. It is in that context that this interpolation
assumes significance.
We are unable to hold that on the evidence
of PW 32 the fact of Ghanshyam Patidar placing the order is established. There was no attempt to examine the son who haJ personal
knowledge about the placing of the order.
Even so, we are satisfied
that the pamphlets were printed in this Press but it is di!lieult to
hold as to who placed the orders for printing.
That this pamphlet
was printed in order to advance the cause of the Congress candidate
and to prejudice the interests of Saklecha cannot be in doubt.
Apart
from this tbe proprietor was prosecuted for printing this pamphlet for
contravention of the provisions of section 127 A of the Representation
of the People Act, and be was convicted on bis plea and sentenced to
pay a fine of Rs. 50/-.
We are, therefore, satisfied that the pamphlet was printed in the Shriram Printing Press, but in the absence
of the evidence of Shivshankar we are unable to agree with the High
Court that Ghanshyam Patidar had anything to do with the placing
of the orders or printing of Ex.P-1.
We must next consider as to when this document came into existence.
The register of the Press shows that the order for Ex. P-1 was
placed on 24th February, 1972, that is to say about two weeks before
the pool and the allegations of its distribution were on 25th February
and on 2nd March, 1972. Having come to know of the distribution
of this offending pamphlet, Saklecba complained to the Returning
officer by a letter dated 26th February, 1972, by enclosing a panchnama testifying to the distribution of the pamphlet at Jawi. Although
it is not specifically established that this letter was posted on 26th
February, 1972, or that it was received by post by tile
Returning
Officer, it is clear even from the application on behalf of the respondent Kanhaiyalal for snmmoning the Returning Officer that Saklccha
had personally handed over this complaint to the Returning O!licer
on 5th March, 1972, which was definitely prior to the poll.
There
is a further fact which has been established.
Under the instructions
of Saklecha, Hiralal Mehta, Advocate (PW 1) sent out registered
notices dated 27th February, 1972, to seven signatories of the pamphlet (Ex.P-1), namely, Parasram Agarwal, Chosarmal, Bbanwarlal.
Ghanshyam Patidar, Vijayshankar Sharma, Shankarlal Batevara and
Dbeeraj Vyas.
Some of the witnesses examined on behalf of
the
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KANHAIYALAL v. MANNALAL (Goswarni, !.)
8 17
respondent, Kanhaiyalal, (RWs 5, 6 and 8) admitted to have received the registered notices of the Advocate to which they did not send
any reply.
The fact of denial by Ghanshyam Patidar (RW 1) is not
of much significance.
There is, therefore, no doubt whatsoever that the
pamphlet (Ex.P-1) was in existence during the election period prior
to the date ol poll on 8th March, 1972.
We are satisfied that 5,000 copies of the pamphlet were printed
in the Shriram Printing Press. Evidently these were printed for the
purpose of distribution in order to advance the cause of the appellant
and to harm the interests of Saklecha.
We are not concerned in
this appeal with the distribution of the pamphlet on 25th February,
1972. Since these pamphlets were alleged to be distributed
on
'25th February, 1972, not by the appellant himself but by other
persons, the petitioner had also to establish consent of the appellant
in the distribution.
Although the High Court has heid that even
consent was established, Mr. Hardy has not pressed bis case regarding the allegation of distribution of the pamphlet on 25th February,
1972.
Mr. Nahata submits that in view of the newspaper reports and
the Assembly proceedings, in particular the statements on the floor
of the Assembly on a Vote of No Confidence against the S.V.D.
Ministry where particular reference had been, inter alia, made in
severe terms creating a furore about the activities of Sakiecha in his
capacity as the Deputy Chief Minister in-charge of the Home Department, any person reading these will have reasonable belief that
the allegations in Ex.P-1 arc true and at least not false. It is also
emphasised by counsel that at no time Saklecha ever publicly contradicted the allegations, nor took any action against the publishers.
Mr. Hardy submits that none of the correspondents of the newspapers, nor the authors of the allegations whether made through the
Press or on the floor of the House, or through a regular complaint,
were examined by the appellant to make out even a prima facie case
for reasonable belief of the truth of the wild allegations against the
personal character and crmduct of Saklecha. It is submitted by Mr.
Hardy that the statements made on the floor of the Assembly are
privileged and they are also privileged when published in the authorised organs under the order of the Honse, but to publish these again
without the authority of the House will not be protected by privilege
under article 194(2) of the Constitution .
A
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.Section 123(4) is a punitive rule against character assassination
G
o[ candidates during the period of election.
A charge of electoral
corrupt practices being of a quasi-criminal character, the onus on an
election petitioner is heavy as if in a criminal charge.
The allegations must be established beyond reasonable doubt to the satisfaction of the court by cogent and unimpeachable evidence. That being
the position in law the petitioner will have to satisfy the court that
the returned candidate had reason to believe that the allegations in
H
the offending pamphlet were false or not true.
Even assuming this
ingredient is satisfied, since the charge may fail, if it is not established that the appellant himself distributed the offending pamphlet as
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818
SUPREME COURT REPORTS
[1976] 3 S.C.R.
alleged, we will immediately address ourselves to that aspect of the
matter.
Before adverting to the evidence we have to take note of certain
factors.
Ex concessis, the allegations of the publication of the
pamphlet (Ex.P-1) on 25th
February, 1972, by the workers and
agents with the consent of the appellant have to be held as not
established.
So far as the distribntion
of the
pamphlet on 25th
February, 1972, at Jawi and at Dhaneria, two respective panchnamas
were exhibited.
A complaint enclosing a copy of the panchnama
regarding the distribution of the pamphlet on 25th February, 1972,
was lodged before the Returning Officer and it was received by him
prior to the poll although the exact date was not proved.
So far as
the distribution of the pamphlet Ex.P-1 on 25th February, 1972,
there was, therefore, both oral and documentary evidence.
Even so,
since the appellant was not associated with the distribntion, it could
not be established that the distribution, even if it took place,
was
with his consent.
The charges relating to the 25th February, 1972,
were, therefore, rightly abandoned before us.
So far as, however, the distribution
of the pamphlet on 2nd
March, 1972, at Jawi and Thadoli, which
alone survives for consideration, the petitioner relies entirely upon oral testimony and the·
court will have to be cautious and circumspect in accepting the same.
This Court in Rahim Khan 'v. Khurshid Ahmed & Ors.('), dealing with the oral testimony in election cases pithily observed at page
656 as follows :-
"We must emphasize
the danger
of believing at its
face value oral evidence in an election case without the
backing of sure circumstances or indubitable documents.
It must be remembered that corrupt practices may perhaps
be proved by hiring half-a-dozen witnesses apparently respectable and disinterested, to speak to short simple
episodes such as that a small village meeting took place
where the candidates accused his rival of personal vices.
There is no x-ray whereby the dishonesty of the story can
be established and, if the Court were gnllible
enough to
gnlp such oral versions
and
invalidate elections, a new
menace to our electoral system would have been invented
through the judicial apparatus.
We regard it as extremely
unsafe, in the present climate of ki!kenny cat election
competitions and
partisan
witnesses
wearing
robes
of
veracity, to upturn a hard won electoral
victory
merely
because lip service to a corrupt practice has been rendered
by some sanctimonious witnesses.
The Court must
look
for serious assurance, unlying circumstances or unimpeachable documents to uphold grave charges of corrupt practices which might not merely
cancel the election result.
but extinguish many a man's public life".
Ordinarily this Court will be slow to interfere with the findings
of the High Court regarding appreciation of evidence except for good
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(!) [1975] 1 S.C.R. 643.
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KANHAIYALAL v. MANNA.LAL (Goswami, J.)
819
•
and sufficient reasons.
Have
we good and sufficient
reasons to
A
depart from the findings of the High Court ? Onr answer is in the
affirmative and we will set out the reasons :
I
•
( 1) The High Court while dealing with the distribution of the
pamphlet (Ex.P-1) at Jawi by Ghanshyam Patidar and others felt
assured from
"the subsequent conduct
on the part of Virendra-.
kumar Saklecha" in preparh1g
panchnama (Ex.P-11),
instructing
Advocate, Hiralal (PW 1) to serve registered notices (Ex.P-17) to
the distributors of the pamphlet
and
in
making a complaint
(Ex.P-18) to the Returning
Officer enclosing a panchnama.
The
High Court held that "this subsequent conduct on the part of Virendrakumar Saklecha naturally lends corroboration to his statement
and the statements of the petitioner's witnesses who have deposed
about the publication and distribution of this pamphlet on the dates
referred to by them in their statements.
Thus on a consideration of
the petitioner's
evidence I feel satisfied that 'the pamphlet Ex.P-1
was distributed by Ghanshyam Patidar, Jagdishchandra Airen, Shivlal Rawat and Parsamal in Jawi and Dhaneria as alleged in the petition".
B
c
The above approach, which is correct, particularly in an election
matter, was totally lost sight of by the High Court in dealing with
D
the allegations of .distribution of the pamphlet (Ex.P-1) by Kanhaiyalal at Jawi and Thadoli on March 2, 1972. The High Court did
not look for Or' adopt the same test with regard to the aforesaid distribution of the pamphlet (Ex.P-1).
(2) The High Court arrived at a completely erroneous finding
regarding the printing of the document Ex.P-1 at the instance of
Ghanshyam Patidar.
As shown earlier, there was no legal evidence
hefore the High Court on which it could come to the conclusion that
"the person
who got this Ex.P-1
printed in the Press of PW '.l'.\
Harishankar was none else than RW l Ghanshyam Patidar on behalf
of the Javad Block Congress Committee".
In the absence of any
direct evidence from the Press the above finding cannot be sustained
in law from the fact that Ghanshyam Patidar denied receipt of and
did not reply to the registered notice of the Advocate and that he denied
his signature in a certain tour programme Ex.P-29.
( 3) The High Court ·committed a serious error in linking up the
printing of the document Ex.P-1 by Ghanshyam Patidar at the instance
of Kanhaiyalal for which there was no evidence whatsoever with the
distribution of the same by Kanhaiyalal in the constituency for
holding :
"If the respondent Kanhaiyalal had not in any way been
associated with the printing 'and publication of this pamphfot, then he would not have been one of the persons who
would have distributed this pamphlet,
as alleged in paragraph S(B) of the petition".
E
F
G
The High Court committed an error of law in not dealing with the
H
two matters of printing of the pamphlet and of its distribution separately and independently.
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SUPREME COURT REPORTS
[1976] 3 S.C.R.
( 4) The High Court did not adopt a uniform standard in appreciating the evidence of the witnesses of the two conteuding parties.
For example, while RW 2 was disbelieved by the High Court holding
"admittedly he was the polling agent of the respondent Kanhaiyalal
and must have had sympathies for him duriug the election period",
polling ageuts of the respondent Seklecha did not come under the
same hostile comment for rejecting their testimony.
( 5) It is manifest that the High Court was largely influenced by its
finding that the pamphlet was printed by the J avad Block Congress
Committee through Ghanshyam Patidar at the instance of the appellant.
When this finding disappears, as we have shown above, the edifice ef
the judgment cracks and it is no more a matter of mere reappreciation
by us of the evidence, simpliciter, but of proper appreciation of only
oral evidence produced regarding distribution of the pamphlet by
Kanhaiyalal at Jawi and Thadoli on March 2, 1972, which we will,
next, undertake.
Saklecha took care to prepare panchnamas for the distribution of
the offending pamphlets at Jawi and Dhaneria on 25th February, 1972.
He instructed his lawyer to serve registered notices on the signatories
of the pamphlets and registered notices bear the date 27th February,
1972. Seklecha lodged a complaint dated 26th February, 1972, with
the Returning Officer about the distribution of the pamphlet enclosing
a copy of the panchnama prepared at Jawi on 25th February, 1972.
This was quick action indeed.
All this documentary evidence lends
corroboration to the existence of the pamphlet prior to the poll and
even to its circulation. On the other hand, there· is no documentary
evidence of any complaint or service of lawyer's notice or preparation
of a panchnarna regarding distribution of the pamphlet by Kanhaiyalal
Nagori on 2nd March, 1972. It is absurd to suppose that if Kanhaiyalal had actually personally distributed the pamphlet at Jawi and Thadoli
the matter would not have taken air and Saklecha would not have
moved in the matter. This is particularly so, since, in the case of distribution by workers and other persons, consent of Kanhaiyalal was necessary to establish the corrupt practice whereas if Kanhaiyalal had personally distributed, the charge would have been established without the
requirement of proof of consent.
So far as the distribntion of the pamphlet Ex. P-1 at Jawi on 2nd
March, 1972, is concerned, we have the evidence of PWs, 2, 3, 4 and
5 on behalf of the petitioner and RWs 15, 16, 17 and 21 in rebuttal on
behalf of the appellant.
Madanlal (PW 2), Nanalal (PW 3), Mohanlal (PW 4) and Ramshankar (PW 5) stated about distribution of the pamphlet (Ex. P-1)
by Kanhaiyalal and Shankarlal Bhatevara at Jawi Bazar on March 2,
1972.
There is a significant revelation in the evidence of Madanlal (PW 2)
which the High Court has absolutely failed to consider. According to
Madanlal he did not personally know about the pamphlet being distributed on 25th of February, 1972, at Jawi. He also did not see a
panchnama being prepared.
He deposed only about the distribution
•
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I
KANHAIYALAL r. MANNALAL (Goswami, J.)
821
of the pamphlet by Kanhaiyalal and Shankarlal Bhatcvara at Jawi about
five or six days before the date of poll.
This would show that he was
deposing only with regard to the distribution of the pamphlet by Kanhaiyalal on 2nd March, 1972. He stated in his evidence:
"I met Saklecha the same day when I saw Ex.P-1. I had
a talk with Saklecha regarding the pamphlet Ex. P-1 ''.
He further stated that-
"this pamphlet was given to me by Kanhaiyalal. ... 1
handed over the same pamphlet to Saklecha which was given
to me by Kanhaiyalal''.
If the above statements are true, he met Saklecha on 2nd March, 1972.
In the way Saklecha reacted to the distribution of the pamphlet on
25th February, 1972, his utter inaction with regard to the distribution
of the pamphlet by Kanhaiyalal on 2nd March, 1972, is absolutely inexplicable. The absence of any complaint to the Returning Officer
against Kanhaiyalal even after receipt of the information and the pamphlet from Madanlal would go to show that the entire allegation regarding Kanhaiyalal's distribution of the pamphlet is an after-thought
to reinforce the charge against the returned candidate.
In the way
Saklecha was following a certain procedure of his own regru·ding the
alleged illegal activities of the appellant's campaigners, there was no
reason why a panchnama would not have been prepared at Jawi on
2nd March, 1972, when Madanlal informed him about Kanhaiyalal's
distribution of the pamphlet which was even handed over to him that
very evening.
We find that Madanlal (PW 2) is contradicted by Nandlal (PW
A
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3). Although Madanlal, who is the informant about the distribution
of the pamphlet by Kanhaiyalal at Jawi on 2nd March, 1972, denied
the fact of the panchnama being prepared on 25th February, 1972, at
Jawi, Nanalal (PW 3) stated:
"While the panchnama was under preparation RamF
shankar, Madanlal Tiwari, who has been examined to-day,
and two others had also come there".
It is difficult to appreciate why Madanlal had suppressed the fact of
his knowledge of the panchnama prepared on 25th February, 1972 .
It will be relevant to note here that in the affidavit annexed to the
election petition, Madanlal has been shown as the informant regardG
ing the distribution of the pamphlet at Jawi on 25th February as well
as on 2nd March, 1972. Madanlal, however, in his evidence disowns
personal knowledge about the distribution of the pamphlet on 25th
February, 1972. According to Nanalal (PW 3) after the preparation
of the Panchnama on 25th February, 1972, Saklecha addressed a
meeting in front of his shop by the public address system. Madanlal
(PW 3) also deposed that he only saw once Saklecha addressing some
H
persons assembled in front of Nanalal's shop by the public address
system.