# SAMANT N. BALAKRISHNA ETC v. GEORGE FERNANDEZ AND ORS. ETC

- **Citation:** [1969] 3 S.C.R. 603
- **Court:** Supreme Court of India
- **Decided:** 1969-02-12
- **Case number:** Civil Appeals Nos. 895 and 896 of 1968
- **Bench:** M. HlDAYATULLAH, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/samant-n-balakrishna-etc-v-george-fernandez-and-ors-etc-4620
- **Pages:** 42

## Headnote

Rtpresentation of tile Ptople A.ct (43 of 1951), J's. 81, 86(5), 100
(1) (b)
100( 1 )(d)(ii) artd 123(4)-Difference b•tween 'material facts'
and ·p~rticulars'-Whal amtrtdmtnts art pmnisslb/e after the p<rlod of
/imitation-Candidatt's lack of btlief in stcttments made by agtnts I?, be
,stab/ished-Differenct between s. lOO(l)(b) and s. 100(1)(d)(!1)-
Necessity of proof that candidate consented to specific corrupt practice-
<: Editor of newspaper attacking one ccndidate-When. can be dee'!'ed to be
agent of a rival cartdidate-Consent of candidate, •I can be inferredKnowledge if suf!ic,.ent proof of consent-Statements in newspapers,
weight of_:_Proof thct result of election was materially affected-Burden
of proof.
Under s. 81 of the Representation of the Peo,Ple Act, 1951, an election
can be challenged by means of an election petition filed within 45 days
D of the date of election, on the grounds specified in s. 100( 1). Section 100
(l)(b) and (d)(li) deal with corrupt practices, and s. 123 sets out what
shall be deemed to be corrupt practices. To establish the corrupt practice
under s. 123(4) the election petitioner must prove: (a) the publication
of a statement of fact by (i) a candidate, or (ii) his agent, or (iii) any
other person with the consent of the candidate or his election aaent; (b)
that the statement is false o'r the candidate believes it to be false or does
not b~lieve it to be true; (c) that the statement refers to the personal
E character and conduct of another candidate; and (d) that it is reasonably
calculated to prejudice that other candidate's pro&pects of election. Under
the Explanation to the section, the word 'agent'
includes
an
election
agent, a polling agent or any pe'rson who is held to have acted as an agent
in connection with the election with the consent of the candidate. If the
corrupt practice is committed by the returned candidate or his election
agent, .under s. lOO(l)(b), the election is avoided without any further
F condition being fulfilled, but if the petitioner 'relies on a corrupt practice
committed by any other agent other than an election agent the petitioner
must prove that it was committed with the consent of the returned candidate or his election agent as required bys. lOO(l)(b), or
that the
corrupt practice which was committed in the interests of the
returned
candidate materially affected tho result of the election in so far a' It con.
ctrntd the ret11mtd rand/date. [617 A-B; 618 B-D]
Section 83 requires that tho petition must contain a concise statement
G of tho material facts on which tho petitioner relies and the fullest pouible
particulars of the corrupt practice alleaod.
'Material facts' and 'particu·
Ian' may ovtrlap but the word 'material' shows that tho around of corrupt
practice and the facts nee.nary to formulate a complete cause of action
niust be stated. The func~lon ot the pa.fticulan is to present 81 full a
picture of the cause of action as to make the opposite party understand
the case he will have to meet.
Under s. 86(5), if a corrupt practice is
H alleged in the petition the particulars of suilb corrupt practice may be
amended or am,Plifted for ensuring a fair and effective trial, that is, more
and better particulars of the char~ may be .Riven later even after the
period .o~ limitation; but if a ~rru~t prlctlce fs not previously allepc! in
the petition, an amendment which will have the effect of introducina parti·
604
SUPREME COURT REPORTS
[1969]
S.C.R.
culars of such a corrupt practice will not be permitted, after the period
of limitation, because, it would be tantamount to the making of a fresh
petition.
Merely repeating the words of the statute does not amount to
J. proper statement of material facts where the allegation of co'rn1pt practice is the making of a false statement. The false statement must appear
in the petition.
If the corrupt practice is the publication of an article in
a ne\\ ~paper no incorporation of the contents by reference can be allowed, fc1r, if

## Text

_Characters 0–39,944 of 123,770. This is a partial read: ask again with offset=39944 for what follows._

603
SAMANT N. BALAKRISHNA ETC.
v.
GEORGE FERNANDEZ AND ORS. ETC.
February 12, 1969
[M. HlDAYATULLAH, C.J. AND G. K. MITTER, J]
Rtpresentation of tile Ptople A.ct (43 of 1951), J's. 81, 86(5), 100
(1) (b)
100( 1 )(d)(ii) artd 123(4)-Difference b•tween 'material facts'
and ·p~rticulars'-Whal amtrtdmtnts art pmnisslb/e after the p<rlod of
/imitation-Candidatt's lack of btlief in stcttments made by agtnts I?, be
,stab/ished-Differenct between s. lOO(l)(b) and s. 100(1)(d)(!1)-
Necessity of proof that candidate consented to specific corrupt practice-
<: Editor of newspaper attacking one ccndidate-When. can be dee'!'ed to be
agent of a rival cartdidate-Consent of candidate, •I can be inferredKnowledge if suf!ic,.ent proof of consent-Statements in newspapers,
weight of_:_Proof thct result of election was materially affected-Burden
of proof.
Under s. 81 of the Representation of the Peo,Ple Act, 1951, an election
can be challenged by means of an election petition filed within 45 days
D of the date of election, on the grounds specified in s. 100( 1). Section 100
(l)(b) and (d)(li) deal with corrupt practices, and s. 123 sets out what
shall be deemed to be corrupt practices. To establish the corrupt practice
under s. 123(4) the election petitioner must prove: (a) the publication
of a statement of fact by (i) a candidate, or (ii) his agent, or (iii) any
other person with the consent of the candidate or his election aaent; (b)
that the statement is false o'r the candidate believes it to be false or does
not b~lieve it to be true; (c) that the statement refers to the personal
E character and conduct of another candidate; and (d) that it is reasonably
calculated to prejudice that other candidate's pro&pects of election. Under
the Explanation to the section, the word 'agent'
includes
an
election
agent, a polling agent or any pe'rson who is held to have acted as an agent
in connection with the election with the consent of the candidate. If the
corrupt practice is committed by the returned candidate or his election
agent, .under s. lOO(l)(b), the election is avoided without any further
F condition being fulfilled, but if the petitioner 'relies on a corrupt practice
committed by any other agent other than an election agent the petitioner
must prove that it was committed with the consent of the returned candidate or his election agent as required bys. lOO(l)(b), or
that the
corrupt practice which was committed in the interests of the
returned
candidate materially affected tho result of the election in so far a' It con.
ctrntd the ret11mtd rand/date. [617 A-B; 618 B-D]
Section 83 requires that tho petition must contain a concise statement
G of tho material facts on which tho petitioner relies and the fullest pouible
particulars of the corrupt practice alleaod.
'Material facts' and 'particu·
Ian' may ovtrlap but the word 'material' shows that tho around of corrupt
practice and the facts nee.nary to formulate a complete cause of action
niust be stated. The func~lon ot the pa.fticulan is to present 81 full a
picture of the cause of action as to make the opposite party understand
the case he will have to meet.
Under s. 86(5), if a corrupt practice is
H alleged in the petition the particulars of suilb corrupt practice may be
amended or am,Plifted for ensuring a fair and effective trial, that is, more
and better particulars of the char~ may be .Riven later even after the
period .o~ limitation; but if a ~rru~t prlctlce fs not previously allepc! in
the petition, an amendment which will have the effect of introducina parti·
604
SUPREME COURT REPORTS
[1969]
S.C.R.
culars of such a corrupt practice will not be permitted, after the period
of limitation, because, it would be tantamount to the making of a fresh
petition.
Merely repeating the words of the statute does not amount to
J. proper statement of material facts where the allegation of co'rn1pt practice is the making of a false statement. The false statement must appear
in the petition.
If the corrupt practice is the publication of an article in
a ne\\ ~paper no incorporation of the contents by reference can be allowed, fc1r, if a newspaper is not exhibited and only the date is mentioned,
the material fact, namely, the exact offending portion of the newspaper,
would not have been stated. If the charge is that c.n agent did something,
it cannot be amplified by giving particulars of acts on the part of the
candidate or vice versG, because, in the .scheme of eled.tion law, publication
of false statements by an agent is one cause of action and publication of
false statements by a candidate is quite a different cause of action.
They
are separate corrupt practices which cannot be said to grow out of the
material facts related to another person.
Since a single corrupt practice
committed by the candidate or by his election agent, or by any other
person \Vith the consent of the candidate of his election agent is fatal tO
the election. the case must be specifically pleaded and strictly proved; if
not. such corrupt practice cannot be alleged later on after the period of
limitation [619 C-H; 621 B-D; 622 A-D, F-G; 623 E-H;
629 A-B]
In the present case, the election of the :first respondent to Parliament
from Bombay South Pi.,liamentary constituency, was challenged by the
appellant (an elector in the constituency) on the ground that corrupt
practices were committed.
The result of the poll was declared on February 24, 1967.
The first respondent secured 1,47.841 vote·s and his
nearest rival. the second respondent. secured 1,18,407 votes.
The peti·
tion was filed on April 7, 1967.
The corrupt practice alleged was that
the first respondent made some speeches. and that the first respondent and
two others, with the consent and for the benefit of the first respondent,
made false statements, casting aspersions on the character and conduct
of the second .respondent. and that those and other false statements were
published as news items in the daily newspaper 'Maratha'. Extracts from
the newspapers. were annexed.
It was also stated that similar false statements Vt'e're published in some other issues of the
ne\Vspaper but no
attempt was made either to specify the offending portions of the newspapers or to file the extracts or the original issues. but only the dates were
given. There was also no averment that the first respondent believed the
statements to be false or did not believe them to be true. After the period
of limitation, the o'riginals of alI the issues· of the newspapers were filed
and after the examination of the election petitioner as a witness, applications
for amendment were made.
The High Court allo\\'ed
the
following
amendments: (a) Speeches attributed to the first respondent and a speech
said to ha\'e been made at a mt~eting. \vhen the first rcsoondent presided,
casting aspersions on the second respondent. to be included among the
list of corrupt practices. Reports of those speeches. appeared in the issues
of the 'Maratha' which were filed later.
(b) An article in the 'Blitz'
\Vritten by the first respondent defamatory of the second respondent also
to be included in the list of corrupt practices. ( c) An averment that the
editor of the newspape'r 'Maratha' and the first respondent believed the
statements to be false or that they did not believe them to be true. And
( d) an ave:rment that the editor of the newspaper and the t\VO others
\Vere the agents of the :first respondent.
The High Court ho\vever, dismissed the election petition. [614 E-F: 616 Bl
In appeal to this Court, on the questions : ( 1) Whether all or any of
the amendments should be allowed:
(2\ Whether the
editor of the
·~1aratha' and the two others committed corrupt practices under s. 100
A
B
c
D
Ii'
G
H
A
B
c
D
E
F
G
H
BALAKRISHNA V. FERNANDEZ
605
(I )(b) by publishing the statements about the second respondent with the
consent of the first respondent and (3) Whether the result of the election
in so far as it concerned the first respondent was materially affected by
the publication as required by s. !OO(l)(d) (ii),
HELD : (I) The amendments relating to the speeches of the first respondent and bis article in the Blitz should not be allowed; but the amendments relating to the agency of the editor of the 'Maratha' and the two
others, and that seeking to incorporate the averment about the lad of.
belief of the editor of 'Maratha' and the first respondent should be
allowed. [616 E-G)
In the petition as originally filed, the agency of the editor of 'Maratha•
and the two others was the basis of the charge and the first respondent
was left out.
Only one allegation was made personally against the first
respondent namely that be made some speeches but that was not relied
upon and no evidence regarding it was adduced. The other allegation m
the original petition was that he made some statements, and that the
'Maratha' published them; and the extracts from the 'Maratha' were filed
as exhibits.
Since publication of a false statement is the gist of the election offence the charge was against the 'Maratha' and its editor. If it was
intended that the first respondent shoWd be held responsible then the
allegation should have been what statement he made· and how it offended
the election law. There was however no reference to any statement by
the first respondent himself throughout the petition as it was originally
filed and in fact there was no charge against him.
Dmin11 the election
the second respondent did not once protest that the first respondent was
spreading false propaganda and even after election he did not attribute
anything to the lint respondent. Therefore, the amendments which had
the cffec:it of introducing new corrupt practices relating to the candidate
himself which had not been pleaded earlier should not be allowed, as that
kind of amendment, sought after the l"'riod of limitation, ia prohibited
under the law. But the allegation that m publishing the statements in the
'Maratha' its editor acted as the agent of the first respondent, that the
statements were false or were believed to be false by the first respondent
and the editor. and that they were calculated to prejudice the second
respondent's chances and did so prejudice, should be allowed. 'Ibey are
merely particulars to be added for completing the cause of action relating
to a corrupt practice already alleged. The result is that the case ia confined to that of a candidate souibt to be made responsible for the acts
of his agent other than an election agent. [620 G; 624 A-F; 632 A-B]
Jagan Nath v. Jaswant Singh, [19S4] S.C.R. 892-89S,
Bhim Sen v.
G~pali, [1960] 22 E.D.R. 288 (S.C.), Chandi Prasad Chokani v. Statt of
B1har, [1962) 2 S.C.R., 289, Sheopat.Singh v. Ram Pratap, [196S) I S.C.R.
11S and Kumara Nand v. Brij Mohan, [1967) 2 S.C.R. 127, followedc
H<·rish Chandra Bajpai v. Triloki Singh, [19S7] S.C.R. 370, explained.
. Din Dlzyal v. Btni Prasad, IS E.LR. 131, Balwant Singh v. Eltetion
Tnb.u""!, IS E.L.R. 199, Sasivarna Thevar v. Arunaglri, 17 E.L.R. 313,
Har1 Vishnu KllTrlath v. Election Tribunal, 14 E.L.R. 147, Dtvalah v.
Nagappa, A.I.R. 196S Mys. 102, Babula! Sharma v. Brijnarain Brait1h,
A.I.R. 19S8 M.P. 17S (F.B.), Beal v. Smith, L.R. 4 C.P. HS; Bruct v.
Odhams Press Ltd. [1936) I K.B. 697 and Phillips v. Phillips, (18781
4 Q.B.D. 127, referred to.
(2) Regard however being had to the activities of the editor of
'Maratha' as editor and his own pcl'sonaJ hostility to the second responLU&p./69-4
606
SUPREME COURT REPORTS
, [1969] 3 s.c.R.
.dent, every act of the editor could not be attributed to the first respon-
·denl The editor's field of agency must be limited to what he said as the
.aaent of the first respondent and would not embrace the field in which
.be was acting as editor of his newspaper unless the first respondent's consent to the corrupt practices was established. [636 E-F; 638 B.C]
Consent need not be directly proved and could be inferred from cir-
·CUmstantial evidence, such as a consistent course of conduct of the candidate.
But the circumstances must point unerringly to the conclusion
and must not admit of any other explanation. Although an election petition is tried in accordance with the Civil Procedure Code, a corrupt practice must be proved in the same way as a criminal charge is proved.
English cases dealing with ille~al practices in which the candidate is held
reaponsible for the acts of his agent, are not a proper guide, because,
English law, unlike Indian law, makes a distinction between 'illegal practices' and 'corrupt practic~s'. Further, the consent of the candidate must
be specific and must be proved for each corrupt practice. If every act of
an agent is presumed to be with the consent of the candidate there would
be no room for the application of the extra condition laid down by s.
lOO(l)(d), namely, the material effect on the result of the election, be-
.cause, whenever agency is proved either directly or ~ircumstantially, the
finding about consent under s. 100(1) (b) will have to follow. [637 A-HJ
In the present case, though the newspaper ran a special column as an
election front of the fint respondent, no article or comment in that
column was relied on for proving a corrupt practice.
It was not even
suggested that the first respondent wrote any article for the 'Maratha'.
The statements which were relied on as corrupt practices were made by
the editor of the newspaper in the normal course of running a newspaper,
u news items or in the editorial. They stated the policy of the newspaper and its comments upon the events.
Many of the news items
appeared in more than one paper. If it could not be said that the editors
·of each of those papers acted as an agent for the first respondent there
is no reason for holding that the editor of 'Marathil' alone acted as such
agent. It was not as if the matter was left entirely in the hands of the
editor who acted as a wholetime agent or solely as the agent of the first
\'espondent, nor is it a case of some persons settin!t up the first respondent
as a candidate and sponsoring his cause. The editor did not publish any
J*opaganda material such as leaftets or pamphlets.
Therefore, though
the editor was a supporter and agent of the first respondent, it could not
be said that the first respondent consented to each publication as it
appeared or even generally consented to the publication of items defaming
the charaCler and conduct of the second responden\. The first respondent
denied knowledge of the articles.
From his false suppression of some
other facts and denial of others, it could not be Hid that his denial of
kaowledge of the articles in the 'Maratha' was also false.
But even if
he had knowledge, it would not be sulllcient, becall!e, the law requires
some concrete prodf, direct or circumstantial, of consent, and not merely
of knowledge or connivance.
Further, no such inference regardins the
1ir•t respondent's consent could be drawn from the comments and speec:hes
attributed to the first respondent by the 'Maratha' and other neWBpapers
dr from any similarity of ideas or language, because, news Items when
published are garbled versions and cannot be regarded as proof of what
actually happened or was said without other acceptable evidence through
proper witnesses. 1629 B-H; 630 A-B; 632 F-H; 633 A-D; 634 A-H;
635 A--0; 636 A-D; 638 A--0; 639 A-Bl
AB regards the other two persons, even evidence rega~ding their agency
was non-existent and there was no material on which the first respondent's
consent to their statements could be presumed or inferred. [640 A•B]
e:
c
D
E
'fl
G
H
A
B
c
D
E
F
G
H
BALAKRISHNA v. FERNANDEZ
607
Tberefore, since the consent of the candidate to the corrupt pract\~e
was not proved the cjise will have to be judged under s. lOO(l)(d)(u)
and not under s. !OO(l)(b). [640 DJ
Rama Krishn~'s case, C.A. No. 1949/67 dated 23-4-68, Inder Lall
Yugal Kishore v. Lal Singh, A.1.R. 1961 Raj. 122, Gopal Swami v. A.bdul
Hamid Chowdhury, A.LR. 1959 Assam 200, A.dom.r v. Hon. E. F. uveson
Gower, 1 O'Malley & Hardcastle 218, Christie v. Grieve, I O'Malley &
Hardcastle 251, Spencer; John Blundell v. Charles Harrison, 3 O'Malley
I< Hardcastle 148, Biswanath Upadha,va v. Har<lal
Das, A.LR.
1958
Assam 97, A.bdul Majeed v. Bhargavan, A.I.R. 1963 Kerala .18, Rustom
Satin v. Dr. Sampoornancnd 20 E.L.R. 221, Sarala Devi Pathak •·
Birendra Singh, 20 E.L.R. 275, Krishna Kumar v. Krishna .Gopal, A.l.R:
1964 Raj. 21, Lal Singh v. Vallabhdas, A.LR.
1967
Gu1.
62,
Badri
Narain v. Karrtdeo Prasad,
A.LR.
1961
Pat. 41, Sarai Ch~ndra v.
Khagendranath, A.LR. 1961 S.C. 334 and Taunton'.' co<e, I O'Malley &
Hardcastle 181, 185, referred to.
Bayley v. Edmunds, Byron & Marshal/ (1894) 11 T.L.R. 537, distinguished.
( 3) To bring a case under s. 100(1 )( d )(ii) it is not sufficient to
?'rove that a person acted as an agent with the consent of tbe candidate.
Tbe petitioner will have to establish that the conditions required by s.
lOO(l)(d)(ii) ands. 123(4) are satisfied, that is: (a) that a false state·
ment was made by an agent, (b) that the first respondent did not believe
the statement to be true or believed it to be false; ( c) that it related to
tbe personal character and conduct of the second respondent; ( d) that it
was reasonably calculated to harm the chances of the second respondent;
and ( e) that it in fact materially affected the result of the election in so
far as the first rtspondent was concerned, Conditions (a), (b) and (c)
were admitted by the flsst respondent and, since the articles cast violent
aspersions on the second respondent and showed a deliberate attempt to
lower his character, condition (d} was also satisfied.
But as condition
( e) was not satisfied, the election petition should be dismissed. [640 D-H]
Even after considering the nature of attacks made on the second
respondent, the 'frequency and extent of publicity, the medium of circulation and the kinds of issues raised before the voters, it could not be said
in the circumstances of this case, that the result of the election in so f.;
.. the flsst respondent was concerned waa materially affected. The matter
could not be decided on possibilities rir on a reasonable judicial guess be·
cause, the law requires proof, and though s. 100(1) (d} casts a duiicult
btlrden on the election petitioner, that burden must be successfully discharged by him. [641 B-D; 644 B-D]
There was a large difference (about 30,000) between the votes receiv·
ed by the two rival candidates, namely the first and second reapondenta
and as m"!ly as 38,S6S votes were cast in favour of the remaining candi:
dates and It is impossible to say how much the second respondent lost or
first respondent gained by reason of the false statement&. After the election
the second respondent never for a moment attributed his defeat to the
false propangada of the first respondent or his supprirters and even said
that the election was conducted with propriety. [643 E-H; 644 D-F)
Vashist NGrain Sarma v. Dev Chandra, (1955] 1 S.C.R. 509, Surendra
Nath Khosla v. Dalip Singh, [1957] S.C.R. 179 and lnayatullah v Diwan·
chand Mahajan, IS E.L.R, 219, 235, 236, followed.
·
Hackney's case, 2 O'Mallev and Hardcastle, 77, referred to.
608
SUPREME COURT REPORTS
[1969] 3 S.C.R.
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 895 and
896 of 1968.
Appeals under s. 116-A of the Representation of the People
Act, 1951 from the judgment and order dated January 29, 1968
of the Bombay High Court in ElectJOn PetitiQJl No. 6 of 1967.
R. Jethama/ani and H. N. Hingorani and K. Hingorani, for the
appellant (in C. A. No. 895 of 1968).
C. K. Daphtary, A. K. Sen, K. S. Cooper and K. Hingorani, for
the appellant (in C. A. No. 896 of 1968).
A. S. R. Chari, Porus A. Mehta, S. B. Naik, Kumar Mehta,
R. Nagaratnam ·and K. Rajendra Chaudhuri, for respondent No.
1 (in both the appeals).
The Judgment of the Court was delivered by
Hidayatullah, C.J. In the last General Election to Parliament
from the Bombay South Parliamentary constituency eight candidates had offered themselves. The answering respondent Mr.
George Fernandez secured 1,47,841 votes as against his nearest
rival Mr. S. K. Patil who secured 1,18,407 votes. The remaining candidates secured a few thousand votes between them. The
result of the poll was declared on February 24,
1967 and Mr.
George Fernandez was returned.
An election petition was filed
by .Mr. Samant N. Balakrishna, an elector in the constituency. It
challenged the election of Mr. Fernandez and was ostensibly in
the interest of Mr. S. K. Patil. The election petition was keenly
contested and Mr. S, K. Patil gave his full support to the petition.
The election petition failed and it was dismissed with an order for
costs against the election petitioner and Mr. S. K. Patil.
Two
appeals have now been filed against the judgment of the Bombay
High Court, one by the election petitioner and the other by Mr.
S. K. Patil. They have been heard together and this judgment will
dispose of both of them.
The petition was based on numerous grounds which were set
out in paragraph 2 of the petition. These grounds were shown
separately in sub-paragraphs A to J.
Sub-paragraphs A to D
dealt with the invalidity of the election for non-compliance with
s. 62 of the Representation of the People Act and Arts. 326 and
327 of the Constitution.
These concerned the secrecy of ballot
(A), registering of some voters in two constituencies (B), omission of qualified voters from electoral rolls ( C) and impersonation
by persons for dead or absent voters (D). These four grounds
A
B
c
D
E
F
G
H
A
8
c
D
F
G
H
BALAKRISHNA v. FERNANDEZ (Hidayatullah, C.l.)
609
were given up in the High Court itself and we need not say anything about them.
Sub-paragraphs E to J contained allegations
of corrupt practices. The petition was accompanied by four
annexures Nos. A to D which were extracts from newspapers on
which the charge of corrupt practices was based. The grounds
may now be noticed in detail.
Sub-paragraph E dealt with statements made at a meeting
dated February 16, 19~ at Shivaji Park by Jagadguru Shankaracharya charging Mr. S. K. Patil with complicity in arson of November 7, 1966 at New Delhi and attack on the residence of the
Congress President with injuries caused to people. In these articles
from the 'Maratha' and the 'Blitz' extracts of which were quoted
and annexed as Annexure A, Mr. Patil was described as hypocrite,
insi,ncere and dishonest. Similar speeches by Mr. Madhu Limaye,
(another candidate of the S.S.P. by which party Mr. Fernandez
was sponsored) were relied upon. The statements were "inspired
by Mr. Fernandez" and "with his consent and for his benefit". It
was said that they amounted to a corrupt practice under s. 123(4)
of the Representation of the People Act.
In Sub-paragraph F, a statement of Jagadguru Shankaracharya on cow slaughter was made the ground of attack. It was
to the effect that Mr. S. K. Patil only pretended to support the
anti-cow-slaughter movement but had done nothing in furtherance
of it. It was contended that the cow was used as a religious symbol and the speeches offended against the Election Law as stated
in section 123(3). These statements were also said to be inspired
by Mr. Fernandez and were made with his consent and for his
benefit.
Sub-paragraph G referred to speeches of Mr. Fernandez and
his workers with his knowledge and consent. In those speeches
Mr. Fernandez is said to have described Mr. S. K. Patil as the
enemy of Muslims and Christians who only professed to
disc~urage sla?ghter of cows and he was charged with intedering
:v1th the a~tlcles of faith of the Muslims and Christians and seekmg. expulsion of Muslims to Pakistan. This was said to offend
agamst s. 123 (3A) of the Representation of the People Act.
. In Sub-paragraph H it was alleged that the 'Maratha'
ubhshed a false statement to the effect that Mr. S. K. Patil had paid
rupee~ 15 lacs. to Mr. Ja.ck Sequeira to undo the efforts of M~ha
~ashtnans, for mcoi;poratlon of Goa in Maharashtra. The extract
rom the Maratha of January 25, 1967 was annexed as Ex B
The speech of Mr. H. R. Gokhale who published a similar state:
ment, :vas also referred to.
These were made the grounds of
cAomplamt under s. 123 ( 4) of the Representation of the People
ct.
610
SUPREME COURT REPORTS
[1969] 3 S.C.R.
In Sub-paragraph I four issues of the 'Maratha' of the 5th
and 31st January, 1967 and 5th and 8th of February, 1967 were
exhibited as Ex. C.
It was stated in the first two that the Shiv
Sena supported the Maharashtra traitor Sadoba Patil and that
the Shiv Sena was really Sadoba Sena. A cartoon showing Mr.
S. K. Patil as Vishwamitra and the leader of Shiv Sena as Menka
with the caption 'Sadoba denies that he has no connection with
Shiv Sena like Vishwamitra Menka episode", was the third. The
last of these articles was headed "harassment from Gondas of
Sadoba Patil Shiv Sena in the service of Sadhshiv (S. K. Patil)".
These statements were said to be false and made by the 'Maratha'
in favour of respondents other than respondent No. 2 (Mr. S. K.
Patil) or at any rate on behalf of Mr. Fernandez. These were
said to prejudice the minority communities and thus to offend
section 123( 4) of the Representation of the People Act.
The
statements were said to be made with the knowledge and consent
of Mr. Fernandez and for his benefit.
In Sub-paragraph J three issues of 'Maratha' of the 24th,
28th and 31st December 1966 were referred to. In the first it
was stated that "Shri S. K. Patil will go to Sonapur in the ensuing
election. Fernandez says in his Articles Patil mortgaged India's
Freedom with America by entering into P. L. 480 agreement
and Mr. Patil had no devotion, love, respect for this country at
all." In the second Mr. Patil was described as Nagibkhan of
Maharashtra. The third was a cartoon in which Shankaracharya
was depicted as saying "Cow is my mother. Do not kill her"
and Patil S. K. as saying "Pig is my father".
These extracts
were annexed as Ex. D.
Then followed a paragraph in which
was said : "Similar false statements in relation to Respondent
No. 2's character and conduct were published in several issues
of Maratha Daily" from December 12, 1966 to February 21,
1967 and 33 issues were mentioned by date.
These were also
said to be Ex. D.
This was the original material on which the petition filed on
April 7, 1967 was based. Mr. Fernandez filed his written statement on June 14, 1967 and Mr. S. K. Patil on July 4, 1967.
Later five amendments were asked for. By the first amendment,
which was orally asked and allowed, reference to the 33 articles
was altered and they were said to be contained in Ex. E instead
of Ex. D. Ex. E was then introduced and gave the list of 33
articles in the 'Maratha' and one article in the Blitz, and the extracts on which reliance was placed. On July 4, 1967 an application for amendment was made seeking to add two Sub-paragraphs 2-K and 2-L. 2-K is not pressed now and need not be
mentioned. By 2-L the petitioner asked for addition to the list
of corrupt practices of a reference to an article dated November
S 1966 in the Blitz. This article was written by Mr. Fernandez.
'
A
B
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D
E
F
G
H
A
B
c
D
E
F
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G
H
BALAKRISHNA v. FERNANDEZ (Hidayatullah, C.l.)
u 1
On September 12, 1967, an application was made for seven additions to paragraph 2J.
Seven incidents were sought to be included. Of these four were ordered by tb.e Court to be included
in 2-J on September 15, 1967 as Sub-sub-paragraphs (i) to (iv)
3jI1d three were rejected. In the first of the Sub-sub-paragraphs so
included, a speech at a public meeting at Shiyaji Park. by Mr.
Fernandez on January 31, 1967 was
pleaded in which Mr.
Fernandez is· said to have made a statement that even God could
not defeat the second respondent (Mr. S. K. Patil) because unlike the second respondent God was not dishonest. It was alllo
alleged that Mr. S. K. Patil won elections by "tampering with the
ballot boxes or substituting the same''. These statements were
said to be made by Mr. Fernandez deliberately and pialiciously
and that he believed them to be false or did not believe them to
be true. The report of the speech was quoted from the 'Ma.ratha'
of February 1, 1967 and was included as part of Ex. E. In the
second Sub-sub-paragraph a Press Conference at Bristol Grill
Restaurant on February 9, 1967 addressed by Mr. Fernandez
was referred to.
At that Conference Mr. Fernandez charged
Mr. S. K. Patil with "unfair and unethical electioneering practices" and as illustrations of his methods mentioned the release of
70 dangerous characters from jail on parole and the suspension
of externment orders against some and the allowing of some
otheT externed persons to return, were alleged. It was also said
that these persons were being used by Mr. Patil in his campaign.
Extracts from the issues of the 'Maratha' of the 1 Oih and 11th
February, 1967 were made part of annexure E.
In the third
Sub-sub-paragraph a public meeting at Sahu Siddik Chaw!, of
February 10, 1967 was referred to. At that meeting, it was
alleged, Mr. Fernandez described Mr. Patil as an "American
Agent, Dada of Capitalists and Creator of Shiv Sena."
All these
statements were said to be false and to reflect upon personal
character and conduct of Mr. Patil and thus to be corrupt practices under s. 123 ( 4) of the Representation of the People Act. In
the fourth paragraph a meeting of January 8, 1967 at Chowpati,
presided over by Mr. Fernandez was referred to.
Mr. Madhu
Limaye was said to have addressed that meeting and referred to
the incident of November 7, 1966. These statements were also
said to be false and to materially affect the prospects of Mr. Patil.
In this Sub-sub-paragraph it was also alleged that Mr. P. K.
Atrey, Editor and Proprietor of the 'Maratha', Jagadguru
Shankaracharya and Mr. Madhu Limaye were
agents of Mr.
Fernandez and had made these statements in his interest and
with his consent.
The petitioner also asked for addition of three other grounds
of corrupt practices, which the Court did nbt allow to be included. Paragraph 2-L to which we have referred was an article by
Mr. Fernandez. It was captioned as a fight against "political
~12
SUPREME COURT REPORTS
[1969] 3 S.C.R.
thuggery" and included the following passage which was made
the basis of the following charge :
"These men · (including the 2nd Respondent) from
the hard core of the coterie which control the destinies
of the nation, even decides who should be the Prime
Minister and who should not be, hounds out the few
honest Congressmen from Public life,
props up the
Aminchand Pyarelal and Chamanlal and supports them
in all their misdeeds and puts a premium on dishonest
businessmen and industrialists."
This allegation was said to suggest dishonesty in Mr. Patil. The
·Other amendments which were disallowed referred to a speech at
Dr. Vigas !itreet on February 27, 1967, a speech by Dr. Lohia
at Chowpati on January l, 1967 published in 'Andolan' of
January 9, 1967 and a Press Conference by Mr. Madhu Limaye
at Bristol Grill Restaurant on December 10, 1966.
Prior to the application for amendment certain events had
happened to which it is necessary to refer.
On April 7, 1967
B
c
the office objected that the originals of Exs. A, B, C and D had
D
not been filed.
The remark of the office is as follows ;-
"Exhibits A, B, C, D are mere repetitions of what
is mentioned in the body of the petition. Is it not
necessary to annex the original copies of the said newspaper?"'
Mr. Kanuga, one of the Advocates for the petitioner replied
to the objection as follows :
"We undertake to file the original issues and official translations later as the same is (sic) with
the
Chief translator, High Court, Bombay before the service of Writ of Summons".
Till July 3, 1967 no effort seems to have been m'.!de to file
the originals. On that date the 'Rozanama' read as follows :-
"Mr. Jethmalani applies for leave to
amend the
petition by pointing out that 'D' in last sentence of paragraph 2 on page 12 of the petition be corrected and
read as 'E' and to annex reports in original P. C. leave
to amend granted."
The issues were settled on the same day and particulars were
asked for.
On July 7, 1967 the 'Rozanama' read as follows
"Mr. Gurushani tenders the original of the exhibits
A (Coll) to Exhibit E (Coll) mentioned in para 2J
E
G
of page 11 of the petition."
H
A chamber summons was taken out because the particulars were
not supplied and on August 4, 1967 the particulars were furnish-
-
',
BALAl>R!SHNA v, FERNANDEZ (Hidizyatul/ah, C.l,)
613
A
ed. It was then on September 12, 1967 that the application for
seven amendments was made, four of which were allowed and
three were rejected. This was by an order dated September 15,
1967.
B
c
D
E
F
G
H
Before dealing with this appeal it is necessary to clear the
question of the amendments and whether they were . properly
allowed.
This question consists of two parts; the first 1s one of
fact as to what was exhibited with the petition as materials on
which the petition was based. The case of the petitioner before
us is that in support of 2J copies of relevant newspapers were
filed with the petition. This is denied on behalf of the answering respondent.
Mr. Daphtary's contention is that if the originals of the
'Maratha' had not been filed an objection would have been taken
in the court and none was taken. Even witnesses were examined
and cross-examiined with reference to the statements and the originals must have been in court. This, in our opinion, is not decisive.
The first witness to be examined was the petitioner himself. Evidence commenced on August 25, 1967. The petitioner
proved the copies of the newspapers and they were marked as
exhibits. By that date the copies of the 'Maratha' had already
been filed, and the petitioner in his evidence referred to all of
them.
The cross-examination, therefore, also referred to these
documents.
Nothing much turns upon the want of objection
because (as is well-known) objection is not taken to some fatal
defect in the case of the other side since the party, which can
take the objection, wants to keep it in reserve. It is true that
if the objection had been taken earlier and had been decided the
petitioner would have had no case to prove on the new allegations
and might not have led some evidence. But we cannot hold from
this that any prejudice was caused to him.
After all it was his
r~ponsibility to. complete ,his alleg?tions in the petition by inclusmn of the copies of the Maratha and the other side cannot be
h~ld to have waived its objection since that objection was in fact
raised and has been answered in the High Court. The Rozanam.as clearly show that the copies of the 'Maratha' were not filed
wit~ the el.ec!io~ petition but much later and in fact beyond the
pef!od of hm1tat10n. Mr. Daphtary characterises the Rozanamas
as maccurate but the internal evidence in the case shows
that
the Rozanamas were correctly recorded.
The petition quoted some of the offending statements in the
newspapers and exhibited them as Exs. A to D.
Jn the petition
these 10 extracts are to be found in Sub-paragraphs 2E, H, I
and J. The change of Exs. D to E and the filing of E show that
the extracts which were with the translator were
referable to
those. extrl17ts already mentioned in the petition and not those
men!Ioned m the last paragraph of 2J. It will be noticed that
614
SUPREME COURT REPORTS
[1969] 3 S.C.R.
that paragraph refers to 33 numbers of the 'Maratha'. Extracts
from those were furnished only on July 3, 1967 when Ex. E was
separately filed and according to the Rozanama, the originals
were filed on July 7, 1967. Mr. Kanuga could not have referred
to all the 3 3 issues of the 'Maratha'. Only 10 extracts from the
'Maratha' were in Exs. A to D and of these eight are included
in the list of 33 numbers of the 'Maratha' in the last paragraph
of 2J. If they were already filed, Mr. Kanuga would have said
so and not promised to file them later. He mentions in his note
that they were with the transl~tion department and would be
filed later. If all the 33 issues of the 'Maratha' were already filed
there would be no occasion for the office objection and the reply
of Mr. Kanuga could apply to two numbers only.
They were
the issues of 25th January and 5th February, 1967. The office
noting shows that not a single original was filed with the petition.
This appears to us to be correct.
We are satisfied that
10 issues of the 'Maratha' from which extracts were included in
the petition in Exs. A to D were the only numbers which were
before the translator. Mr. Kanuga's remark applies to these 10
issues. The other issues which were mentioned in the last paragraph of 2J numbering 33 less 8 were neither in the translator's
office nor exhibited in the case. Hence the amendment. of the
second reference from D to E and the request to file original
issues.
It seems that when the petition was filed a list was hiJrriedly
made of all the issues of the 'Maratha' to which reference was
likely and that list was included in the last portion of 2J. But
no attempt was made either to specify the offending portions of
the newspapers or to file the extracts or the original issues. All
this was done after the period of limitation.
No incorporation
of the contents of the articles by reference can be allowed because if a newspaper is not exhibited and only the date is mentioned, it is necessary to point out the exact portion of the
offendin)( newspaper to which the petition refers. This was not
done.
We have to reach this conclusion first because once we
hold that the issues of the 'Maratha' or the extracts referred to·
in the petition were not filed, the plea as to what was the corrupt
practice is limited to what was said in the body of the petition
in paragraph 2J and whether it could be amended after the
period of limitation was over. The attempt today is to tag on the.
new pleas to the old pleas and in a sense to make them grow out
of the old pleas.
Whether such an
amendment is
allowable
under the Election Law is therefore necessary to decide.
Mr. Daphtary arguing for the appellant contends that he ~
entitled to the amendment since this was no more than an amplifieation of the ground of corrupt practice as defined ins. 123(4)
and that the citation of instances or giving of additional partiA
B
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D
E
F
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A
B
c
D
F
G
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BALAIOllSHNA v. FBaNANDBZ (Hidayatu//ah, C.J.)
61 !>'
culars of which sufficient notice already existed in 2J as it originally stood, is permissible. Accordmg to him, under s. 100 the
petition has to show grounds and under s. 83 there should be a
concise statement of material facts in support of the ground and
full particulars of any corrupt practice alleged. He submits that
under s. 86 ( 5) particulars can be amended and amplified, new
instances can be cited and it is an essence of the trial of an election petition that corrupt practices should be thoroughly investigated. He refers us to a large body of case law in support of his·
contention.
On the other hand, Mr. Chari for Mr. Fernandez contends
that there was no reference to the speeches by Mr. Fernandez
in the petition. The cause of action was in relation to the publication in the 'Maratha' and not in relation to any statement of
Mr. Fernandez himself and that the amendment amounts to making out a new petition after the period of limitation.
To decide between these rival contentions it is necessary to
analyse the petition first.
Paragraph 2J as it originally stood
read as follows :
"The Petitioner says that false statements in relation to character and conduct of the Respondent No. 2
were made by the 1st Respondent and at the instance
and connivance of the 1st Respondent, Maratha published the following articles, as set out hereinafter. The
petitioner says that the said allegations are false and
have been made with a view to impair and affect the
prospects of' Respondent No. 2's elections to Lok
Sabha.