# SHEOPAT SINGH v. RAM PRATAP

- **Citation:** [1965] 1 S.C.R. 175
- **Court:** Supreme Court of India
- **Decided:** 1964-08-28
- **Bench:** K'.. SUBBA RAo, M. HIDAYATUl, Lah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sheopat-singh-v-ram-pratap-3337
- **Pages:** 11

## Headnote

The Representation of the People Act (43 of lfl51), ss. 82(b), 85 arrd
123(4)-Who are necessary parties to election petition-Allegations on
person.al character-What are-"Calculated", meaning of.
The election of the appellant to a seat in the Legislative Assembly of
the State was challenged by the respondent, an elector, on the ground
inter a/ia, that by publishing a poster which contained a statement of fact
about the personal character and conduct of one of the rival candidates,
the appellant was guilty of a corrupt practice under s. 123(4) of the Representation of the People Act (43 of 1951). The Tribunal dismissed the
petition, but the High Court reversed the decision of the Tribunal. In th<
appeal to the Supreme Court, it was contended that : (i) the poster, published and circulated by the appellant was not bit by the provisions of s. 123(4)
of the Act and (ii) the election petition should have been dismissed under
•· 85 of the Act on the ground that another candidate against whom
allegation of corrupt practices were made was not impleaded.
HELD : ( i) Section 123 ( 4) is designed to achieve the dual purpose
of protecting freedom of speech and prevention of malicious attack on the
personal character and conduct of rivals. A statement which reflects on
the mental or moral character of a person is a reflection on his personal
character, whereas any criticism of a person's political or public activities
and policies is outside it.
The sub-section also requires that the candidate
making the statement believes it to be false or does not believe· it to be true,
and it shall be a statement reasonably calculated to prejudice the prospects
of the election of the candidate against whom it is made. The word
"calculated" means designed : it denotes more than mere likelihood and
imports a design to affect voters.
Applying these tests and on a considera~
tion of the entire evidence, the appellant by publishing the poster was guilty
of a corrupt practice within the meaning of the sub-section.
[I 78A-E;
J80C-E; 183H].
T. K. Gangi Reddy v. M. C. Anjaneya Reddy, (1960) 22 E.L.R. 261
and lnder Lal v. Lal Singh, [1963] Supp. 3 S.C.R. 114, referred to.
(ii) As regards the candidate who was not impleaded the only allegation made in the election petition was that the appellant· got the poster
published through him and others, but there was no allegation that the
candidate believed the statement to be false or did not believe it to be
tnae.
In the absence of any such averment it cannot be said that there was
any allegation of any corrupt practice within the meaning of s. 82(b) of
the Act against such candidate. Al<o, under s. 123(4) mens rea is a
necessary Ingredient of the corrupt practice and the person who publishes
a statement, v.'hether he is the author of it or not, does not commit a
corrupt practice, unless he has the requisite knowledge.
As there was no
allegation of corn,pt practice against the candidate who was not impleaded,
the penal provision of ~· 85 are not attracted and the petition was not liable
to be dismissed. [184E-H; 185A].
CML APPELLATE JURISDICTION : Civil Appeal No. 558 of
1964.
176
SUPREME COIJR'f REPORTS
[ 1965] I S.C.lt.
Appeal by special leave.from the judgment and order dated A
December 16, 1963 of the Rajasthan High Court in D. B. Election
Appc~l No. 74 of 1963.
R. K. Garg, S. C. Agarwal, D. P. Singh and M. K. Ramamurthi, for the appellant.
G. S. Pathak and Naunit Lal, for the respondent.
B

## Text

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SHEOPAT SINGH
v.
RAM PRATAP
August 28, 1964
(K'.. SUBBA RAo AND M. HIDAYATUl,,LAH JJ.)
The Representation of the People Act (43 of lfl51), ss. 82(b), 85 arrd
123(4)-Who are necessary parties to election petition-Allegations on
person.al character-What are-"Calculated", meaning of.
The election of the appellant to a seat in the Legislative Assembly of
the State was challenged by the respondent, an elector, on the ground
inter a/ia, that by publishing a poster which contained a statement of fact
about the personal character and conduct of one of the rival candidates,
the appellant was guilty of a corrupt practice under s. 123(4) of the Representation of the People Act (43 of 1951). The Tribunal dismissed the
petition, but the High Court reversed the decision of the Tribunal. In th<
appeal to the Supreme Court, it was contended that : (i) the poster, published and circulated by the appellant was not bit by the provisions of s. 123(4)
of the Act and (ii) the election petition should have been dismissed under
•· 85 of the Act on the ground that another candidate against whom
allegation of corrupt practices were made was not impleaded.
HELD : ( i) Section 123 ( 4) is designed to achieve the dual purpose
of protecting freedom of speech and prevention of malicious attack on the
personal character and conduct of rivals. A statement which reflects on
the mental or moral character of a person is a reflection on his personal
character, whereas any criticism of a person's political or public activities
and policies is outside it.
The sub-section also requires that the candidate
making the statement believes it to be false or does not believe· it to be true,
and it shall be a statement reasonably calculated to prejudice the prospects
of the election of the candidate against whom it is made. The word
"calculated" means designed : it denotes more than mere likelihood and
imports a design to affect voters.
Applying these tests and on a considera~
tion of the entire evidence, the appellant by publishing the poster was guilty
of a corrupt practice within the meaning of the sub-section.
[I 78A-E;
J80C-E; 183H].
T. K. Gangi Reddy v. M. C. Anjaneya Reddy, (1960) 22 E.L.R. 261
and lnder Lal v. Lal Singh, [1963] Supp. 3 S.C.R. 114, referred to.
(ii) As regards the candidate who was not impleaded the only allegation made in the election petition was that the appellant· got the poster
published through him and others, but there was no allegation that the
candidate believed the statement to be false or did not believe it to be
tnae.
In the absence of any such averment it cannot be said that there was
any allegation of any corrupt practice within the meaning of s. 82(b) of
the Act against such candidate. Al<o, under s. 123(4) mens rea is a
necessary Ingredient of the corrupt practice and the person who publishes
a statement, v.'hether he is the author of it or not, does not commit a
corrupt practice, unless he has the requisite knowledge.
As there was no
allegation of corn,pt practice against the candidate who was not impleaded,
the penal provision of ~· 85 are not attracted and the petition was not liable
to be dismissed. [184E-H; 185A].
CML APPELLATE JURISDICTION : Civil Appeal No. 558 of
1964.
176
SUPREME COIJR'f REPORTS
[ 1965] I S.C.lt.
Appeal by special leave.from the judgment and order dated A
December 16, 1963 of the Rajasthan High Court in D. B. Election
Appc~l No. 74 of 1963.
R. K. Garg, S. C. Agarwal, D. P. Singh and M. K. Ramamurthi, for the appellant.
G. S. Pathak and Naunit Lal, for the respondent.
B
The Judgment of the Court was delivered by
Subba Rao J.
The appellant, Sheopat Singh, and two
others, namely Ramchander Chowdhary and Sutja Ram, contested the election for a seat in the Rajasthan Legislative Assembly
from Hanumangarh constituency.
The appellant polled 31,50 I, C
Ramchander Chowdhary, 18,217 and Surja Ram, 1,285 votes.
The appellant was declared elected. The respondent, one of the
electors, filed an election petition under s. 81 of the Represent.a·
tion of the People Act, 1951, hereinafter called the Act, for set·
ting aside the election of the appellant on various grounds. The
Election Tribunal, by its order dated June 18, 1963, held that the D
respondent had failed to substantiate the allegations made against
the appellant and, on that finding, dismissed the petition. Against
the said order, the respondent preferred an appeal to the High
Court of Judicature for Rajasthan at Jodhpur. A Division Bench
of that Court heard the appeal .and came to the conclusion that
the appellant was guilty of a corrupt practice under sub-s. ( 4) of E
s. 123 of the Act in publishing a poster, Ex. 3, which contained a
statement of fact about the personal character and conduct ol
Ramchander Chowdhary, one of the candidates in the election.
On that finding, it set aside the order of the Election Tribunal
and declared the election of the appellant void.
The appellant,
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by special leave, has preferred this appeal to this Court againit
the said order of the High Court.
Learned counsel for the appellant raised before us two poinu,
namely. {i) that Ex. 3, the poster, published and circulated by
the appellant is not hit by the provisions of s. 123(4) of the Act,
and Ii:) that the election petition should have been
dismissed
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und~r s. 85 of the Act on the ground that it had not impleaded
lfarir~.m. another duly nominated candidate who withdrew
hi!
candidature hcfore the election and against whom allegations of
corrupt prncticc were made.
TI1e first argument of the learned counsel is elaborated thus.
lJ1•cicr '· 12:1 ( 4) of the Act the burden is upon the person who
11
seek' to impnte corrupt practice desCTibed thereunder to establish
all the ingredient' of corrucit practice laid down therein.
He has
SHEOPAT v. RAM PRATAP (Subba Rao !.)
177 ..
A not only to prove that the elected candidate published a statement
of fact, which is taise, in relation to the personal character or
conduct of another candidate, but also that he believed it to be false
or he did not believe it to be true.
He has to prove further that .
the said statement was calculated to prejudice the. prospects of
the other candidate's election, that is to say that the voters had
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the knowledge that the corrupt practice or practices were attributed to him and because of that knowledge did not vote for him.
hi the instant case, Ex. 3 contained only general allegations against
the misrule of the Congress Party and even if the statements can
be related to Ramchander Chowdhary, there is no evidence that
the voters knew that it was he who. was referred to in the poster.
c
The first question is whether Ex. 3 is hit by the provisions of
s. 123 ( 4) of the Act. Before we consider the terms of the document it will be convenient and useful to notice the ingredients of
the section. It reads :
Section 123 ( 4) : The publication by a candidate or his
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agent or by another person, with the consent of a
candidate or his election agent, of any statem;.J!t of
fact which is false, and which he either believes to
be false or does not believe to be frue, in relation to
the personal character or conduct of any candidate,
or in relation to the candidature, or withdrawal, of
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any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.
Tlte sub-section may be dissected into the following component
parts relevant to the present enquiry: ( 1) the publication of any
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statement of fact by a candidate; (2) that fact is false; (3) the
candidate believes it to be false or does not believe it to be true;
( 4) the statement is in relation to the personal character or conduct of the candidate; and (5) the said statement is one being
reasonably calculated to prejudice the prospects of the
other
candidate's election.
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' An election is the expression of a popular will. It shall be so
conducted that the ropular will shall be reflected on the basis of
the policy of the party which the candidate represents and on his
merits. That object cannot be achieved unless freedom of sp=h
is assured at the election and the merits and demerits of a candidate, personal as well as political, 111e prominently brought to the
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notice of the voters in the constituency. At the same time it shall'
not be allmyed to degenerate into a vilification campaign aimed
at bringing down the personal character or conduct etc. of the
.
; q
178
·--~·"i1·'.,,..-..~· -..... ·\
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SUPREME COURT REPORTS
. [1965] I S.C.R:,
candidates without any basis whatsoever.
The sub-section
is
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designed to achieve this dual purpose, namely, freedom of speech
and prevention of malicious attack on personal character or
0011duct etc. of rivals. The purity of an election is sought t.O be
maintained without affecting the freedom of expression. The snb- .
section prohibits any statement of fact in relation to person:il
character or conduct of any candidate, which is not only false but B
also the candidate making it either believes it to be false or does
not believe it to be true. It implies that a statement of fact relating to the personal character or conduct . etc. of a candidate can
be made, ·if it is true. Even if it is false, the candidate making
it is protected, unless he makes it believing it. to be false or not
believing it to be true, that is to say statements which are not true C
made bona fide are also outside the ambit of the provision. To be
within the mischief of sub-s. ( 4) of s. 123 of the Act such a statement shall satisfy another test, namely, it shall be a statement
reasonably calculated to prejudice the prospectS of the election
of the candidate against whom it is made. ·The word "calculated"
0
means designed: it denotes more than mere likelihood and ,imports a design to affect voters. -It connotes a subjective element,
though the actual effect of the statement on the electoral mind
reflected in the result may afford a basis to ascertain whether the
ioakf statement was reasonably calculated to achieve that effect.
The emphasis is. ·on the calculated effect, not on the actual result,
:i;
though the latter proves the former. But what is important to
notice is that it is not necessary to establish by positive evidence
that the voters, with the knowledge of the contents of the statement, were deflected from voting for the candidate against whoin
the statement was made. '
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· As considerable stress- is laid upon the burden of proof,
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reference may be .made to the judgment of this Court in T. "C.
Gangi Reddy v. M. C. Anjaneya Reddy(1 ). In that case, dealin~
_with the question of burden of proof, this Court observed:
"Burden of proof has two distinct meanings, viz., (i) the
burden of proof as a matter of law and pleading, . G
and (ii) the burden of proof as a matter of adducing
evidence ..•.•....•. The first remains constant and
·the second shifts."
The burden of proof as a matter of law and as a matter of adducing evidence is on the respondent, who seeks to get the election
set aside, to establish corrupt practice; but, if he adduces sufficient
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evidence,· as in this case we are satisfied he has, the burden of .
(I) (1960) 22 E.L.R. 261, 268 •
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SHEOPAT v. RAM PRATAP (Subba Rao J.L~. _ _c_.179
A adducing evidence shifts on to the appellant.
That apart when
the entire eviden~e·has been adduced in the case the question of
burden of proof becomes merely academical. In this case the ·
High Court considered the relevant evidence and came· to the '
conclusion that the respondent has proved his case. No error has
B · been committed by the High i:ourt in this regard.
One of the important ingredients of the sul>-section is mat the
statement shall be maae in relation to the personal character or
conduct etc. of another candidate. What is the meaning of the
..,
expression "personal character or conduc;t" ? This question has
been considered by this Court in two decisions. In Gangi Reddy's
C . case('), dealing with. the said expression, this Court observed at
p. 266 thus:
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"The words 'personal character or conduct' are so clear, /
that they do not require ft_Jrther elucidation or definition. The character of a person may ordinarily be
equated with his mental or moral nature. Conduct
connotes a person's actions or behaviour .•...•.•...
What is more damaging to a persiln's character
and conduct than to state that he instigated a murder
and that he was guilty of violent acts in his political
career?'•
·
·
in [nder Lal v. Lal Singh( 2), thIS Court again, adverting to thi3
aspect, observed thus:.
/
·
"In discussing the distinction between the privaie ch1;1facter
and the public character, sometimes reference is
made to the "man beneath the politician" and it is
said that if a statement of fact affects the man beneath
the politician it touches private character and if it
affects the politician, it does not touch his private
character."
After referring to obvious statements whlch affect the.
character of a person, this Court proceeded to state :
private
"But" there may ·be cases on the border-line where
the
false statement may affect both the politician and the·
man beneath the politician and it is precisely in
dealing with cases on the border-line that difficulties
are experienced in determining whether ihe impugned
· false statement constitutes a corrupt practice or not." .·
It is not necessary to refer to other decisions cited at the Bar.
(1)[1%J] 22 E.L.R 261.
(2) [1963] Supp. 3 S.CR. 114, 122.
180
SUPREME COURT REPORTS
[ l 965] I S.C.R.
· The boundary between personal character and conduct and A
public character and conduct is well drawn, though, sometimes,
it is thin·
Sometimes a statement may appear to touch both, the
candidate's personal as well as public character. But a deeper
scrutiny c,nables a court to ascertain whether there is a reflection
on his personal character or on his public character. To illustrate:
suppose -a statement is made to the effect that a minister has taken ·B
a bribe in making an appointment or in giving a contract. He has
taken the bribe in the course of discharging his duties as a minister, but his act of taking bribe does not solely reflecfon his public·
character.
By taking a bribe he does not discharge his official
duties; taking a bribe has nothing· to do with his official or public
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duty. It reflects on his moral and mental fibre. His position as
a minister. may have given him the opportunity to ~ake a bribe but
· the taking of the bribe is mainly attributable tohis deficiency in
personal character. We, therefore, hold that any statement made,
which reflects on the mental or moral character o1 a person is a
reflection on his personal character, whereas any criticism of a
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person's political or public activities and policies is outside it. The
fact such a statement is made in the course of a political or
public activity does not make it any the less a statement in rela- ·
tion to hi3 personal character or conduct. It is a question of fact
in each case under what category a particular statement falls.
Now let us have a look at the terms of Ex. 3. It is a big
poster in which some portions have been printed in bold letters.
There is a large size photo of the apppellant on the right top comer
and the symbol of the communist party at the end.
The poster
runs thus:
"Bounties of the Cement of the Rajasthan Canal.-
Cinema of seven lakhs in Ganganag:ir and magnificent
kothis in the neighbourhood of Jaipur's "Rajmahals" .
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. Open loot in liquor contracts by Gandhi's devotees and
improper transfer of lands.
Hanumangarh's gentlemanliness, honest and public welfare faced with thi:o
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corrupt; permit-loving and "police-ral' of the Congress.
Give proof of bravery, modesty and selllessness by giving
vote to Sheopatsingh Makkasar who would bravely
sacrifice himself for the glory and prestige of HanuH
man garb.
Election (Ears of com and sickle) Symbol
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SHEOPAT v. RAM PRATAP (Subba Rao J.)
-181
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Vote for ears of com and sickle, the symbol of prosperity,
progress and popular rule."
Learned counsel for the appellant contends that the poster docs
not overstep the lim\ts of reasonable -criticism of the opposite
candidate and that it says only generally that under the Congr~
B rule many corrup~ practice.S are going unheeded and that if the
appellant is elected he would rectify the defects and restore the
glory and prestige of Hanumangarh. It is not necessary in this
case to ascertain whether all the misdeeds narrated in the poster
refer to Ramchander Chowdhary, for we are satisfied that the first
p«ragraph clearly and reasonably refers to his activities. The
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vernacular word for "bounties" is "barkatain". The first_ paragraph of the poster means that the cinema theatre of Rs. 7 lakhs
in Ganganagar was the barkat of the cement of the Rajasthan
Canal.
That means by misappropriating the_ cement of the
Rajasthan Canal the cinema theatre· worth Rs:--.7 --Jakhs -
was built.
Ex facie the poster does not say who misappropriated
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the ce;nent and to whom the cinema belonged. -But the words
in the context of the well-known facts can reasonably lead only
to one inference. . At the crucial time, Ramchander Chowdhary
was the Minister-in-charge of the Rajasthan Canal Project. During the election at Ganganagar_ a cinema theatre known as Adarsh
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Tneatre was being put up. It is admitted by_ the appellant and
his agent that the theatre referred to in the paster is the- Adarsh
Theatre and it belongs to R:imchander Chowdhary and his sons.
In the context, therefore, it is manifest that the poster meant to
convey the idea that Ramchander Chowdhary misappropriated the
cement of the Rajasthan Canal, of which he was' in charge, and
built a big theatre in the name of his sons. That is to say the act
F of misappropriation was in clear terms attributed tO Ramchander
Chowdhary. To make a statement that a minister has misappropriated the cement in his charge and built a theatre from out of
the proceeds is certainly a reflection on his personal character
and -conduct.
Learned counsel's contention that it may mean
that somebody other than the Minister might have misappropriated the cement and sold it fn the black market and that the Ganganagar cinema theatre might have been built from and out or" the
cement purchased therefrom. This is rather an unnatural rendering of the clear recitals in the first paragraph of the po~ter. The
word "barkatain" shows that Rs. 7 lakhs was derived from the
cement for the canal. If the minister or his sons purchased cement_
H in the blackmarket, the building cannot be the bounty of the cement
of the Rajasthan Canal. In that event only the cement mi~appro
prhted by somebody would have been used for building the
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SUPREME COURT REPORTS
[1965) l S.C.R.
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cinema. The 'cost of building the theatre would have b.!en borne
A
by. the minister and his sons not out of the gift made from the
cement of the Rajasthan Canal. We are, therefore, clearly of the
opinion that the first 'paragraph of the poster is a direct reflection
on the personal character of Ramchander Chowdhary.
'
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.
• Even so, learned counsel for the appellant argues that it has
not been established· that the appellant made the statement believing it to be false or not believing it to be true. P.W. 4, Dharam
Pal, under whose supervision the cinema theatre was built, stated
that 4,000 bags of cement were used in its construction ·
and that 2,000 of these bags were obtained from the
cement factory of Sawai Madhopur, 1,585 ·bags from the cement
factory at Charkhidadri and the remaining 415 bags were pur- •
chased locally against permits issued by the department concerned.
·This evidence has been accepted by the High- Court;-- Ou the other.
hand, 'not only the appellant did not adduce any evidence to rebut
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the evidence adduced by the respondent but the appellant ::s well
as his witness, D.W; 7, admitted in the witness-box that RamD
chander Chowdhary was an honest man. In this state of evidence,
the respondent, on whom the burdei1of proof lay, discharged that
·burden and the High Court rightly found in his favour.
The next facet of the argument is that there is no evidence in
the case that the said statement was one reasonably calculated to
prejudice the prospects of the election of Ramchander Chowdhary.
It is asked, how could the statement deflect the voters from voting
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in favour of the said Ramchander Chowdhary, if they did not
know that the cinema theatre that was being built in Ganganagar
belonged to Ramchander Chowdhary or his sons ? It is further
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said that there is no evidence in this case that all or any of the
voters knew the fact
that 'the cinema theatre belonged
to
Ramchander
Chowdhary
or his
sons.
Reliance
U;
placed upon
the decisions
delivered in the context of
libel actions.
In Nevill v. Fine Art and General Insurance Co.
Ltd.(') Lord Ha!Sbury, L.C., accepted the principle that the
questioned document should be taken· in a defamatory sense by
those to whom it was published according to the primary meaning
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of the language used in it In The Capital and Countie3 Bank
Ltd. v. Geo~ge Henty & Som{2 ) for the purpose of ascertaining
whether a statement was defamatory the test whether the circumstances in which the writing was published, reasonable men, to
JI
whom the publication was made, would be likely to understand
(I) LR. (1897J A.C. 68.
(2) LR. (1881) 7 A.C. 741.
SHEOPAT v. RAM PRATAP (Subba Rao!.)_
133
A it in a libellous sense. In that ~ase the House of Lords came to
the conclusion that it did not. This test is relied upon in support
of the argument that the vo,ters should have known that the first
paragraph of the poster referrec!;";o Ramchander Chowdhary, for
without such knowledge, it could not have prejtidiciously affected
Ramchander Chowdhary's chances in ·the election.
We are not
B dealing with- a libel action.
We do not, therefore, propose to
refer to similar cases on libel cited at the Bar. We do not express
any opinion thereon. _We. are only concerned ·with the expre.'IS
terms of s. 123 ( 4) of the Act. The only question, therefore, is
whether the said statement was reasonably calculated to prejudice
the prospects of Ramchander Chowdhary's election. •On behalf
C of the appellant it was not contended either before the Election
Tnlmnal or before the High Court that the voters had no knowledge of the fact that the cinema theatre at Ganganagar belonged
to Ramchander Chowdhary or his sons. That apart, as we· have -
pointed out earlier, the object v.ith which the-statement wa~ made
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is_ the crucial test. · Here it is established that Ganganagar cinema
theatre belonged to Ramchander Chowdhary's sons. It is proved
that Ramchander Chowdhary was the minister-in-charge of the
Rajasthan Canal. He was the only effective candidate against
the appellant. The appellant's intention in making that statement
was therefore obvious and. that was to attack the personal chaE racter of Ramchander Chowdhary in order to prejudice his prospects in the election. He must have reasonably calculatep that
the voters, or at any rate the voters in and about the locality
where the cinema theatre was being put up, had knowledge of the
fact that it was being constructed by the minister or hiS sons. It cannot also be said that when a big cinema theatre at a cost of Rs. 7
F ltlhs was being put up in Ganganagar, the voters in and about
that place would not have known about the ownership of that
building.
The fact that the building was brought in for attacking
the personal.character of Ramch~der Chowdhary, a "rival candi- .
date, clearly indicates that the appellant knew that the voters had
knowledge of its ownership and expected that it would. create the
G impression which it manifestly intended to convey.
On these
facts, if the High Court held that. the statement was reasonably
calculated to prejudice the rival candidate's prospects in election,
we cannot say that the finding is not supported by evidence or
admitted facts placed before the High Court. It was a reasonable ·
inference from the facts found by the High Court. We, thereH
fore, hold that Ex. 3 is hit by s. 123 ( 4) of the Act and, therefore,
the High Court rightly held that the appellant was guilty of corrupt practice.
· ·
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184
SUPREME IXJURT REPORTS
[1965] 1 S.C.R.
A
To appreciate the second contention some facts may be recapitulated. ·· Hariram. the fa~r of the appellan,t, was one of the
candidates who stood for the e1ectiol). His nomination paper was
held to be valid. But, later on, he withdrew his candidature. In lhe
election petition it was stated that the appellant got printed frofil
Iqbal Printing Press, Sri Ganganagar, hunc!Feds and thousands of
posters and leaflets containing grossly libellous and highly def11I¥.-_ B
tory imputations against Ramchander Chowdbary and that the
appellant himself and through his workers -and supporter:3
got
them published by affixing them at conspicuous places in every
village of the constituency and freely distributed them among tb.e
electors.
In one of the annexures the names of the distributor of
the posters and leaflets are given as Sheopat Singh, the appellant,
and his father, Hariram, 'among others. But there is no· allegation that Hariram pubiished the statement believing it to be false
or not believing it to be true.
Under s. 82 of the Act a petitioner shall join as respondent
to his petition any other candidate. against· whom allegations of
any corrupt practice are made in the petition·. Under s. 85 of the
Act, '"if the provisions of. ..... s. 82 have not been complied
with, the Election Commission shall dismiss the petition". AssumD
E
F
G
ing that Hariram was a candidate within the meaning of s. 82 of
the Act, the question is· whether allegations of any corrupt practice were made against-him in the petition. The only allegation
made was that the appellant got published through/him and
others the said statement; but there was no allegation that Hariram believed the statement to be false •Or did not believe it to be
true. In the absence of any such avermen_t, it cannot be held that
there was any allegation of any corrupt practice within the meaning of s. 82\b) of the Act against Hariram. In that event, as there
was· no allegation of a corrupt practice against Hariram, the penal
provisions of s. 85 are not attracted.
In this context a novel argument has been advanced before
u~;.
Publication with
guilty
knowledge under s. J23 ( 4 )' of the Act, the argument proceeds, is
a composite act and it involves two elements, namely, (i)
the
statement of fact, and (ii) its publication; and, therefore, all persons who take part in one or other of the said elements will be
guilty of the corrupt practice, even though some of them have and
others do not have the guilty knowledge. If this argument be
accepted, not only the person who makes a false statement of fact
and gets it published through his servant, but his innocent servant H
who .mechanically obeys the order of hi~ master would be guilty ·
of a corrupt practice.
This contention 'is obviously uhtenable.
'
__
SHEOPAT v. RAM PRATAP (Subba Rao/.)
185
A Under s. 123 ( 4) of the Act mens rea is a necessary ingredient of
the corrupt practice and the person who publishes a statement,
whether he is the author of it or not, does not commit a corrupt
practice, unless he has the requisite knowledge. The sub-section
does not accept the. doctrine of constructive knowledge.
The
High Court has correctly held that the petition was not liable to
B be dismissed on the ground that Hariram was not included as respondent.
In the result, the appeal fails and is dismissed with costs.
Appeal dismissed.