# ) v. T.M. MOHAMMED AND ORS

- **Citation:** [1990] 2 S.C.R. 719
- **Court:** Supreme Court of India
- **Decided:** 1990-04-25
- **Bench:** Laut Mohan Sharma, P.B". Sawant
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-t-m-mohammed-and-ors-10760
- **Pages:** 50

## Headnote

B
-
Representation of People Act, 1951: Sections 40, 83, 100, 123( 4)
and 127-A.
Election-Corrupt practice-Pleadings and proof of-Requirements-Oral testimony-Corroboration by contemporaneous documents-Need for.
Statement maligning personal character and conduct of candi-
~
date-Innuendo meaning to be proved by special or extrinsic factsStatements must be proved to have been reasonably calculatea to pre-·
c
judice the prospects of the candidate.
D
Electoral offence-Complaint under s. 127-A of the Act and
s. 171-C !PC-Evidence of corrupt practice.
Libel action and corrupt practice-Difference between.
Status of election agent-Almost similar to that of candidate.
In the 1987 election to Kerala Legislative Assembly the appellant
contested against the first respondent.
The appellant and respondents belonged to two different fronts,
each consisting of several political parties. The appellant was declared
elected; by a margin of 1873 votes over his nearest rival, the first
respondent.
The first respondent filed an election petition in the High Court
claiming that the appellant's election was void and that he should be
declared elected in place of the appellant. In support of his contention,
he alleged various corrupt practices on the part of the appellant. The
High Court negatived all except two of the allegations, viz., (i) printing
and publication on March 22, 1987, a day -prior to the election,
pamphlets containing a news item in daily "Malayala Manorama"
dated May 22, 1983, and (ii) publication of a wall poster, maligning the
719
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720
SCPREME COURT REPORTS
I 1990] 2 S.C.R.
A
personal character and conduct of the first respondent.
The High Court held that both the said acts amounted to corrupt
practices within the meaning of Section 123(4) of the Representation of
People Act, 1951 and were sufficient to void the election.
B
This appeal under s. 116A of the Representation of People Act, is
against the High Court's judgment.
Allowing the appeal, this court,
HELD: 1.1. As regards the pamphlets, the first respondent in his
election petition had relied upon an innuendo, and the innuendo was
C
based upon the fact that, firstly, he was a Marxist leader and, secondly,
he was arrested for harbouring the murderers. However, in the election
petition, no averment was made that it was because he was a Marxist
leader and was also arrested for harbouring the murderers that the
electorate was likely to construe the said two statements as accusing him
D as the murderer. No facts were pleaded in the Election Petition whereby
the electorate would gather an impression that the first respondent was
the murderer of the said four victims. [733B-C; 746 E-F]
1.2. Barring his own testimony, all other evidence led by the first
respondent is also totally silent on this aspect of the matter. None of his
E witnesses has stated anywhere that the contents of the pamphlet had
made out the first respondent as the murderer of the four victims or
even that they were capable of doing so. On the other hand, all his
witnesses without exception are unanimous that after reading the
pamphlet the impression it created on them was that it referred to an
incident which had taken place on the previous day or to an earlier
F incident and nothing more. None of the witnesses has stated that the
said pamphlet even remotely connected the first respondent with the
murders. The impression conveyed by the document that the
Marxists or Communists were murderers and therefore the electorate
should not vote for them and hence it was unfavourable to the first
respondent, was not an impression about his personal character I
G conduct. 11 was an impression at best about his political character/
conduct. In particular there was no impression that he was tlie
\
murderer or one of the murderers. Although the first respondent has
/
...._.A....;,.-
also added at the end that many persons who gathered such an impression, viz., that he was meant by the publication, had contacted him over
p

## Text

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M.J. ZAKHARIA SAIT
A
)
v.
T.M. MOHAMMED AND ORS.
APRIL 25, 1990
[LAUT MOHAN SHARMA AND P.B". SAWANT, JJ.]
B
-
Representation of People Act, 1951: Sections 40, 83, 100, 123( 4)
and 127-A.
Election-Corrupt practice-Pleadings and proof of-Requirements-Oral testimony-Corroboration by contemporaneous documents-Need for.
Statement maligning personal character and conduct of candi-
~
date-Innuendo meaning to be proved by special or extrinsic factsStatements must be proved to have been reasonably calculatea to pre-·
c
judice the prospects of the candidate.
D
Electoral offence-Complaint under s. 127-A of the Act and
s. 171-C !PC-Evidence of corrupt practice.
Libel action and corrupt practice-Difference between.
Status of election agent-Almost similar to that of candidate.
In the 1987 election to Kerala Legislative Assembly the appellant
contested against the first respondent.
The appellant and respondents belonged to two different fronts,
each consisting of several political parties. The appellant was declared
elected; by a margin of 1873 votes over his nearest rival, the first
respondent.
The first respondent filed an election petition in the High Court
claiming that the appellant's election was void and that he should be
declared elected in place of the appellant. In support of his contention,
he alleged various corrupt practices on the part of the appellant. The
High Court negatived all except two of the allegations, viz., (i) printing
and publication on March 22, 1987, a day -prior to the election,
pamphlets containing a news item in daily "Malayala Manorama"
dated May 22, 1983, and (ii) publication of a wall poster, maligning the
719
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G
H
720
SCPREME COURT REPORTS
I 1990] 2 S.C.R.
A
personal character and conduct of the first respondent.
The High Court held that both the said acts amounted to corrupt
practices within the meaning of Section 123(4) of the Representation of
People Act, 1951 and were sufficient to void the election.
B
This appeal under s. 116A of the Representation of People Act, is
against the High Court's judgment.
Allowing the appeal, this court,
HELD: 1.1. As regards the pamphlets, the first respondent in his
election petition had relied upon an innuendo, and the innuendo was
C
based upon the fact that, firstly, he was a Marxist leader and, secondly,
he was arrested for harbouring the murderers. However, in the election
petition, no averment was made that it was because he was a Marxist
leader and was also arrested for harbouring the murderers that the
electorate was likely to construe the said two statements as accusing him
D as the murderer. No facts were pleaded in the Election Petition whereby
the electorate would gather an impression that the first respondent was
the murderer of the said four victims. [733B-C; 746 E-F]
1.2. Barring his own testimony, all other evidence led by the first
respondent is also totally silent on this aspect of the matter. None of his
E witnesses has stated anywhere that the contents of the pamphlet had
made out the first respondent as the murderer of the four victims or
even that they were capable of doing so. On the other hand, all his
witnesses without exception are unanimous that after reading the
pamphlet the impression it created on them was that it referred to an
incident which had taken place on the previous day or to an earlier
F incident and nothing more. None of the witnesses has stated that the
said pamphlet even remotely connected the first respondent with the
murders. The impression conveyed by the document that the
Marxists or Communists were murderers and therefore the electorate
should not vote for them and hence it was unfavourable to the first
respondent, was not an impression about his personal character I
G conduct. 11 was an impression at best about his political character/
conduct. In particular there was no impression that he was tlie
\
murderer or one of the murderers. Although the first respondent has
/
...._.A....;,.-
also added at the end that many persons who gathered such an impression, viz., that he was meant by the publication, had contacted him over
phone, he admitted that he did not examine anyone from among the
H said persons. This is a telling circum3tance against him because he had
..
M.J. ZAK.BARIA v. T.M. MOHAMMED
721
followed as a witness after all his witnesses were examined, and he knew
that none of his witnesses had stated that they had connected the impu·
tations in the publication with him. On the other hand, as stated earlier,
not only all his witnesses had stated that they had gathered the iinpres·
sion that the incident had taken place ihe previous day but he himself
was of the view that the publication was meant to create such impression and that it did so. Hence, there was no reason for the electorate to
connect him with the said incident even remotely. On his own testimony
as well as on the testimony of his witnesses, therefore, it is clear that the
publication was intended to create an impression and did create an
impression that the incident of murders had taken place a day previous
to the election. If that is so, then the publication and the two allegedly
offending statements in the same did not connect him with the murders
much less had they called him a murderer. Even his arrest for harbour·
ing the accused in the old incident of murders was not capable of
identifying him as the murderer in the eyes of the people. None knew
who were the accused and who were arrested in connection with the
murders which were committed the previous day. The people, however,
certainly knew that the f"Irst respondent was not arrested in connection
with the said murders. Hence the extrinsic facts which the first respondent stated in his testimony for the first time even if they were given in
the pleadings would not have spelt out the corrupt practice. For those
facts in the face of the assertion of the first respondent himself were
incapable of identifying him as the murderer in the eyes of the electo·
rate. For these reasons, the extrinsic facts given for the first time hy the
f"Irst respondent in his testimony were incapable of identifying him as
the hand behind the murders or as the murderer in the eyes of the
people. [746F-H; 751A-B; 755D-H; 756A-Bl
1.3. In the absence of the extrinsic facts supporting the mnnendo
A
B
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D
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meaning of the pnblication, ·the petition lacked the statement of mate·
F
rial facts for spelling out the corrupt practice complained of. Either,
therefore, the allegation of the corrupt practice should have heen struck
off or the petitioner ought not to have been allowed to lead evidence in
support of it. [756C)
2.1. Where the defamatory words complained of are not defa·
G
matory in the natural or ordinary meaning, or in other words, they are
not defamatory per se but are defamatory because of certain special or
extrinsic facts which are in the knowledge of particular persons to
whom they are addressed, such innuendo meaning has to be pleaded
and proved specifically by giving the particulars of the said extrinsic
facts. It is immaterial in such cases as to whether the action is for
H
A
722
SUPREME COURT REPORTS
[ 1990] 2 S.C.R.
defamation or for corrupt practice in an election matter, for in both
cases it is the words complained of together with the extrinsic facts
which constitute the cause of action. It is true that Section 123( 4) of the
Act states that the statement of fact in question must be "reasonably
calculated to prejudice the prospects" of the complaining candidate's
election. However, unless it is established that the words complained of
B
were capable of being construed as referring to the personal character
or conduct of the candidate because of some specific extrinsic facts or
circumstances which are pleaded and proved, it is not possible to hold
that they were reasonably calculated to prejudice his prospects in the
elections. For, in the absence of the knowledge of the special facts on the
part of the electorate, the words complained of cannot be held to be
reasonably calculated to prejudice such prospects. Once, however, it is
C proved by laying the foundation of facts that the words in question
were, by virtue of the knowledge of the special facts, likely to be construed by the electorate as referring to the personal character or conduct of the complaining candidate, it may not further be necessary to
prove that in fact the electorate had understood them to be so. That is
D because all that Section 123( 4) requires is that the person publishing the
complaining words must have intended and reasonably calculated to affect
the prospects of the complaining candidate in the election.[745E-H> 746A-B]
2.2. Whenever an innuendo is alleged, a statement of material
facts as required by Section 83(i)(a) of the Act is not complete without
E stating the extrinsic facts spelling out the innuendo meaning. It is the
publication together with the extrinsic facts which in such circums-
. lances constitute the corrupt practice. The absence of the statement of
such facts is not an absence of the particulars of corrupt practice but an
absence of the averment of material facts themselves.
F
Sfteopat Singh v. Ram Pratap, [1965] l SCR 175; Kumara Nand
v. Brijmohan Lal Sharma, [1967] 2 SCR 127; Habib Bhaiv. Pyarelal &
Ors., AIR 1964 MP 62; Manmohan Kalia v.Yash & Ors., [1984] 3 SCR
383; W. Hay & Ors. v. Aswini Kumar Samanta, AIR 1958 Cal. 269;
Hough v. London Express Newspaper Ltd., [1940] 3 All ER 31; Fullam
v. Newscastle Chronicle and Journal Ltd. & Anr., [1977] 3 All ER 32;
G
Cassidy v. Daily Mirror Newspapers, [1929] 2 KB 331; Nevill v. Fine
Art and General Insurance Co. Ltd., L.R. 1887 AC 68 and Capital and
Counties Bank Ltd. v. George Henty & Sons, LR 1882 7 AC 741,
referred to.
Halsbury's Laws of England, Vol. 28, 4th Edn. paras 174-178;
H Gatley on Libel and Slander, 8th Edn. paragraph 95; Street on Torts,
\
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M.J. ZAKHARIA. v. T.M. MOHAMMED
723
6th Edn., p. 294 and Duncan & Neil on Defamation, [1978] Edn., p.
17, referred to.
3. Both, for libel action as well as for an allegation uf corrupt
practice in an election petition, it is necessary to plead as well as to
prove the extrinsic facts to spell out the innuendo meaning of the words
complained of. However, whereas in a libel action it may further be
necessary to prove that those with special knowledge of the extrinsic
facts were likely to interpret or understand the words complained\of in
a defamatory sense, in an election action, it may not be necessary to do
so and all that is necessary is to prove that the words complained of
were reasonably calculated to prejudice the prospects of the defamed
candidate's election. However, this latter distinction does not obliterate
the similarity between the two actions viz., that in each case in the first
instance the defamation is to be spelt out by pleading the necessary
extrinsic facts. In a libel action, the extrinsic facts constitute a cause
of action whereas in 'the election action they constitute the corrupt
practice. In other words, without them, there is no cause of action in
the libel suit and no allegation of corrupt practice in an election
petition. l756F-H; 757Al.
4.1. As regards the wall-posters in which the first respondent was
described as. a murderer and it is stated that hence he should be
defeated, the first respondent in his petition has stated generally that it
was the appellant, his agents and his workers who had pasted the wallposters. He has not specified any wall or walls on which the poster was
pasted. He has not mentioned either the agent or the election agent nor
did he state that the pasting was done with the knowledge and consent of
the election agent. It is important to note that he mentioned the pasting
of the poster only on one wall, though there was a vague reference to
"walls". [761F-H; 765B}
4. 2. Time and again, the courts have uttered a warning against
the acceptance of a non-corroborted oral testimony in an election
matter because it is not only difficult to get a non-partisan witness but is
also easy to procure partisan witnesses in such disputes. The courts
A
B
c
D
E
F
have, therefore, insisted upon some contemporaneous documentary
G
evidence to corroborate the oral testimony when in particular such
evidence "°uld have been maintained. Such a danger iS illustrated h)· the
testimony of PW. 25 in the instant case. It is not only contradictory, and
fails to impress this court but also leads to the belief that there is much
force in the contention of the appellant that the poster in question was
concocted at a later day. It is difficult to expla'"m as to why the witness a
H
724
SUPREME COURT REPORTS
[1990] 2 S.C.R.
A professional photographer who in the ordinary course shonld maintain
bis accounts and other documents should keep them off from the court
on pretexts which are not only far from convincing but positively doubtful. Although he stated that he was paid Rs.8,00 for the photographs
and Rs. l ,000 for copies thereof, he did not enter the amounts in his
accounts. He stated that he had a Bank account but he did not remit the
B amount to the Bank. He then stated that in his studio there would be no
record to show that the photographs were taken. He also stated that he
\ ·-
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had not given any receipt for receiving the payment. [764G-H; 767A-D]
._.'
4.3. "Election agent" as defined in Section 40 of the Act is
accorded a special status of almost an alter ego of the candidate so much
so that whatever is done hy the election agent or with his consent is
C deemed to have been done by the candidate himself whether it is with
the candidate's censent or not. He is empowered to discharge almost all
the functions that a candidate can himselfperform. [729E-FJ
4.4. It was alleged that the wall-poster was written at the specific
D instructions of the Chief Agent and the Convenor. It was not specified
who the Chief Agent and the Convenor of the Election Committee were.
The argument that the expression "Chief Agent" should he construed
to mean election agent, cannot he accepted since the pleadings with
regard to corrupt practice have to he specific since everyone who is
guilty of the corrupt practice is liable to be prosecuted for the offence.
E
And except in one place, there is no reference to any such person
as Chief Agent. Wherever the first respondent wanted to refer to
the election agent, he has done so. It cannot, therefore, be said that
he did not know the difference between the election agent and the Chief
Agent. [762B-E]
F
4.5. The first respondent has come to the court with a version
that the wall-poster and such other posters were pasted on walls in the
different parts of the constituency at least a week prior to the election.
Admittedly, such false propaganda is an electoral offence punishable
both under Section 127 A of the Act and Section 171-C of the Indian
G
Penal Code. The first respondent or his agents and workers could have
made complaints both to the Election Officer as well as to the police in
that connection immediately, and a regular pancbnama of the same
could -also have been made at the time. That would have been the best
evidence of the said allegation. The first respondent and his workers
would not have failed to do so bad the posters been pasted at the time
H alleged by them. [ 767E-F j
)
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M.J. ZAKHARIA v. T.M. MOHAMMED (SAWANT, J.)
725
CIVIL APPELLAIB JURl!>DICTION: Civil Appeal No. 3951
(NCE) of'l987.
From the Judgment and Order date.d 19.11.1987 of the Kerala
High Court in &P. No. 3 of 1987.
J(.K. Venugopal, E.M.S. Anam, E. Ahmad and V.K. Beeram
for the Appellant.
Dr. Y.S. Chitale, M.K. Damodaran, V.J. Mathew, Aseem
Mehrotra and K.M.K. Nair for the Respondents.
The Judgment of the Court was delivered by
SAW ANT, J. This is an appeal under Section 116A of the Representation of the People Act, 1951 (hereinafter referred to as the
'Act') against the judgment of the High Court of Kerala in Election
Petition No. 3 of 1987, by which the election of the appellant to the
Kerala Legislative Assembly from Mattancherry Constituency No. 73
was declared void on the ground that the appellant had commit!_ed.two
corrupt practices within the meaning of Section 123( 4) of the Act.
2. The admitted facts are that election to the Kerala Legislative
Assembly from all the constituencies was held on March 23, 1987. The
main contest in almost all the constituencies was between the United
Democratic Front (UDF) consisting of Congress-I, Kerala Congress,
Indian Union Muslim League (IUML) and others on the one hand,
and the Left Democratic Front (LDF) consisting of the Communist
Party of India-Marxist (CPI-M), Revolutionary Socialist Party and
. o!h~rs .9n the other. The appellant was the candidate of the LDF and
the first respondent was the candidate of the UDF. In the said election, the appellant was declared elected by a margin of 1873 votes over
his nearest rival, the first respondent.
3. On May 8, 1987, the first respondent filed an election petition
claiming a declaration that the appellant's election was void and that
, he was ~ntitled to be declared duly elected from the said constituency.
In support of the petition, the first respondent alleged various corrupt
practices on the part of the appellant. However, the High Court
negatived all the said corrupt practices except two, viz., (i) printing
and publication on March 22, 1987, a day prior to the election,
pamphlets containing a news item in daily "Malayala Manorama"
dated May 22, 1983, and (ii) publication of a wall poster, both maligning the personal character and conduct of the first respondent. The
High Court held that both these acts amounted to corrupt practices
within the meaning of Section 123( 4) of the Act and were sufficient to
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726
SUPREME COURT REPORTS
[1990) 2 S.C.R.
void the election. The pamphlet containing the reprint of the daily
A · "Malayala Manorama" was marked as Ex. P-1 and two photographs of
the wall-poster were marked as Exs. P-14 and P-15 before the High
Court and would be referred to hereinafter as such. Ex. P-14 is the
close-up and Ex. P-15 is the distant photograph of ihe same wall--
poster,
B
4. Before we refer to the rival contentions and the material on
\
record, it would be convenient if we reproduce here the contents of
~
Ex. P-1 and Exs. P-14 and P-15 to understand the allegations made in
the said documents.
Ex. P-1 is a reprint of a page of the issue of 22nd May, 1983 of a
C
daily newspaper "Malayala Manorama". It contains the names and the
photographs of four men, who were admittedly murdered in May
1983. It also carries two other photographs, one showing two killed
bodies lying and the other showing the front part of the court building
where allegedly all the four were killed. It also carries a photograph of
o the appellant with his election symbol which was 'ladder' and a photograph of the then Prime Minister, Rajiv Gandhi. Apart from the contents of the said. newspaper as th~y appeared in the said old issue, it
carries additions on the left hand, the English translation of which is as
follows:
E
F
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H
"ELECT ZAKHARIA THE UNITED FRONT CANDIDATE MATTANCHERRY.
On March 23rd a decisive election is taking place in
our State. We wish to have a Government who will protect
life and property of the people. In the light of past experience the only front acquired legitimate claim to give protection is the United Democratic Front under the leadership of Congress (I). Marxist Party has only created insecurity in the country.
x
x
x
x
x
The Marxist Comrades who create lawlessness and
commit murders while in power and out of power, is a
challenge to peace loving inhabitants of Mattancherry.
Mattancherry is a constituency which has witnessed terrible
cruelties of the Marxists. The Mattancherry Town, once
the centre of commerce, today became equal to a grave
y
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M.J. ZAKHARIA 'V. T.M. MOHAMMED (SA WANT, J.]
· 727
yard only 'Clue to violent activities of the Marxist people.
The wounds created by their cruelties are always unhealed.
. '
They need not be detailed by one.
x
x
x
x
x
A
You may remember only the cruel murder that
B
shocked Mattancherry in 1983. Four youngsters were cut to
death in the road in broad day ligh~. The relevant portion
of the Malayala Manorama which published that news. is
given herewith as.such; everybody knows the hands behind
tha(tiiurder. Th~ Marxist leader arrested is also known.
x
X.
x
x
x
Dear sisters, brothers, you may think a while. Should
we have the rule of the Marxist terrorists.
c
We believe that the people of Mattancherry who wish
D
peaceful life in the country will defeat Marxists.
x
x
x
x
x
Believers in democracy should be specially careful
not to split their votes. It is possible to defeat Marxists only
E
through unity of the believers in democracy. That is why
the lndian l'!.ational Congress lead by Shri Ra jiv Gancliii'the
stalvert of democratic Bharath is giving leadership to the
democratic front. It is the necessity of peace lovers that
United Democratic Front should win for law and order and
stable administration. Therefore, it is humbly requested
F
that M.J. Zakharia may be elected with big majority casting votes to his Ladder Symbol.
Photo of
candidateM.J. Zakharia
Vote Democratic Front
Photo of
to avoid Marxist Rule
Rajiv Gandhi
of Terror
Constituency Election Committee
United Democratic Front,
Mattancherry
Give Strength
to Raiiv Gandhi's
hands
G
H
728
SUPREME COURT REPORTS
[1990) 2 S.C.R.
A
VOTE FOR UNITED DEMOCRATIC FRONT CANDIDATE
\
M.J. ZAKHARIA IN LADDER SYMBOL
Printed at Veekshanam."
The High Court has found that the following statement in
paragraph 3 above, viz., "everybody knows the hands behind that
B
murder. The Marxist leader arrested is also known" was in relation to
the personal character/conduct of the first respondent. Exs. P-14 and
P-15 are the photographs, as stated earlier, of the poster pasted on a
--<
wall, with the pamphlet (Ex. P-1) pasted on its left side. The contents
of the wall-poster are as follows:
._
c
"Defeat murderer T.M. Mohammed who murdered four
Christian brothers at Fort Cochin.
Our Symbol."
'r
The symbol is the ladder. This poster directly accused the first respondent as being murderer of the said four killed persons and requested
D
the voters to vote for the appellant.
5. As regards Ex. P-1, there is no mention of the first respondent directly by his name anywhere in the poster. However, the first
respondent has alleged that there is an innuendo by which he is projected there as the murderer of the four victims. The High Court has
~
E
accepted that the first respondent is referred to in the said pamphlet
by innuendo. The High Court has also found that the pamphlets were
got printed by one Latif who was appellant's agent, on behalf of his
Election Committee and at the instance of and with the consent and
connivance of the appellant and his election agent and was distributed
by diem among the electors knowing the imputation to be false and
.;.
F
calculated to alfect the prospectus of his election. As regards Exs. P-14
and P-15, the High Court has recorded a finding that the said wall-
,l -
poster was pasted on a wall at the instance and with the consent of the
appellant's election agent. Thus, the High Court has recorded a finding that the first respondent had proved that the appellant was guilty of
the corrupt practices within the meaning of Section 123( 4) of the Act.
G
6. Before we proceed to discuss the relevant evidence on record,
it is necessary to understand the correct position of law on the subject.
The corrupt practices and electoral offences are mentioned in Part-7 of
"'"---~
the Act. Chapter I of the said Part deals with corrupt practices and
contains Section 123 whereas Chapter III thereof enumerates electoral
H
offences, and penalties therefor, and contains Sections 125 to 136.
j
I
M.J. ZAKHARIA v. T.M: MOHAMMED [SAWANT, J.J
729
Section 123(4) with which alone we are concerned in the present
appeal reads as follows:
"123(4) The publication by a candidate or his agent or by
A
any other person with the consent of a candidate or his
election agent, of any 'statement of fact which is false, and
which he either believes to be false or does not believe to
B
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 prospectus of that candidate's
election."
It is obvious from the aforesaid provisions of Section 123(4) that
for a publication to constitute the corrupt practice (a) it must be 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 agent; (b) the
statement must be false or the candidate must believe it to be false or
should not believe it to be true; ( c) the statement should refer to the
personal character and conduct of another candidate and ( d) that it
must be reasonably calculated to prejudice the prospects of that other
candidate's election. Explanation 1 to Section 123 states that in that
Section the expression "agent" includes election agent, a polling agent
and any person who is held to have acted as an agent in connection
with the election with the consent of the candidate. The expression
"election agent" is defined in Section 40 and is accorded a special
status of almost an alter ego of the candidate so much so that whatever
is done by the election agent or with his consent is deemed to have
been done by the candidate himself whether it is with the candidate's
consent or not. It is further sufficient to qote that the election agent is
empowered to discharge almost all the functions that a candidate can
himself perform.
7. The further provisions of the Act which are necessary to be
noted are those of sub-sections (l)(b), (l)(d) and (2) of Section 100.
They read as under:
"100. Grounds for declaring election to be void-
( 1) Subject to the provisions of sub-section (2) if the High
Court is of opinion-
(a) ................. ..
c
D
E
F
G
H
730
A
B
SUPREME COURT REPORTS
f1990] 2 S.C.R.
(b) that any corrupt practice has been committed by a
returned candidate or his election agent or by any other
person with the consent of a returned candidate or his election agent; or
(c) ............. .
\
( d) that the result of the election, in so far as it concerns a
returned candidate, has been materially affected~
~.
c
D
E
F
(i) .... "! ............. .
(ii) by any corrupt practice committed in the interests of
the returned candidate by an agent other than his election
agent, or
(iii)
(iv) ............................................... .
the High Court shall declare the election of the returned
candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election
agent of any corrupt practice but the High Court is
satisfied-
(a)
(c) ................................................ .
(d) ............................................... .
then the High Court may decide that the election of the
returned candidate is not void".
The aforesaid provisions of Section 100 show that where the
G
corrupt practice is committed not by the candidate or his election
agent or any other gerson with the consent of the candidate or his
election agent but oy an agent other than the election agent and in his
interest, and the corrupt practice by such agent has materially affected
~·
the result of his election, the High Court is enjoined to declare the
election of the candidate to be void. Sub-section (2) of Section 100
H
enacts a rider to sub-section (1) thereof, and states that even if the
J
I
M.J. ZAKHARIA v. T.M. MOHAMMED [SAWANT, J.]
731
agent has committed the corrupt practice in the interest of the
returned candidate, if the High Court is satisfied that the said corrupt
practice was not committed by the candidate or his election agent and
every such corrupt practice was committed contrary to the orders and
without the consent of the candidate or his election agent and that the
candidate and his election agent took all reasonable means for preventing.the commission of the corrupt practice at the election, and that
in afi Other respects the election was free from any corrupt practice the
part of the candidate or any of his agents, the High Court may decide
that the election ofihe returned candidate is not void.
8. With this statement of law in mind, we may now refer to the
two corrupt practices alleged to have been committed by the appellant. ·we will first deal with Ex. f'-1 the printing, publication and
distribution of which is held to have been one of the two corrupt
practices committed by the appellant's agent at his instance and with
his consent and connivance as well as of his election agent. As far as
the petition is concerned, the relevant averments with regard to
Ex. P-1 are as follows:
"13. Another important aspect which will amount to corrupt practice is the publication of pamphlets by the candidate, his agents and his workers with his consent and
knowledge.
14. Malayala Manorama dated 23.5.1983 was reported by
the candidate at the expenses of the first respondent. This
re-printing is intended to propagate false statements which
the candidate, his agents and his workers ......... .
A
B
c
D
E
x
x
x
x
x
F
19. It is clear from these that the reprinting of Malayala
Manorama by the candidate was with a view to create a
false impression among the electorate that the petitioner is
a murderer and hence the electorate shall not vote in
favour of him. This was done with a mala fide intention to
G
propagate false news among the electorate.·
x
x
x
x
x
46. Malayala Manorama daily dated 22nd May, 1983 was
reprinted with certain additions and also with photographs
H
A
B
c
D
E
F
G
H
732
SUPREME COURT REPORTS
[ 1990] 2 S.C.R.
of Prime Minister and the candidate with the candidate's
symbol. This was reprinted from the Veekshanam Press at
Emakulam and got printed by the Election Committee of
the first respondenr.- . . . . .
0
47. Annexure I reprinted Malayala Manorama was widely
distributed in the constituency. It was distributed on 22nd
March, 1987. March 22, 1987 was a Sunday and May 22,
1983 was also a Sunday. The petitioner is reliably informed
that about 25,000 copies of Annexure I were printed and
those copies of reprinted Malayala Manorama were distributed throughout the constituency."
In paragraphs 48 to 53 of the petition, the first respondent has
proceeded to give the names of the persons who distributed the said
pamphlet in different divisions of the constituency and of the persons
whom he was going to examine as witnesses to prove the same. In
paragraph 54, he has made further averments in connection with the
said pamphlet as follows:
"Annexure was really the reproduction of Malayala
Manorama daily dated 22.5.1983. Since a news item
regarding the murder of 4 persons was reported in the daily
mentioned above, to mislead the electorate, the Malayala
Manorama printed and published on 22.5.1983 was
reprinted ...... "
•
9. It will be apparent from these averments in the petition that
although the first respondent has stated in his petition that the
pamphlet was printed and distributed with a view to create a fatse
impression among the electorate that he was a murderer, he has not
stated as to why it will create such an impression among the electorate.
It w~s necessary for him to state so in the petition because admittedly
the pamphlet nowhere names him as a murderer of the said four
victims. What was, however, argued by Dr. Chitale on behalf of the
first respondent was that the statements in the pamphlet, viz., "everybody knows the hands behind that murder. The Marxist leader
arrested also is known" were a clear and a direct reference to the first
respondent, because it was an admitted fact that the first respondent
was arrested for an offence of harbouring the accused in that murder
case. There was also a protest meeting held in that connection, and the
appellant who was his agent at that time had also addressed the said
meeting condemning his arrest. According to Dr. Chitale, therefore,
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I
M.J. ZAKHARIA v. T.M. MOHAMMED [SAWANT, l.J
733
the arrest of the first respondent though for the offence of harbouring
the murderers, was in connection with the murder and the statement in
the pamphlet that "The Marxist leader arrested is also known" read
with the earlier statement that "Everybody knows the hands behind
that murder" was clearly calculated to create an impression in the
mind of the electorate that it was the first respondent who wa~ the
murderer. Admittedly, therefore, even according to Dr. Chi tale, these
were the only two statements which could be said to have had a reference to the first respondent as the murderer and there was no direct
reference to or implication of the first respondent as the murderer of
the said four victims. In other words, the first respondent even in his
petition had relied upon an innuendo, and the innuendo was based
upon the fact that, firstly, the first respondent was a Marxist leader
and, secondly, he was arrested for harbouring the murderers. However, in the petition, no averment is made anywhere that it was
because he was a Marxist leader and was also arrested for harbouring
the murderers that the electorate was likely to construe the said two
statements as accusing him as the murderer.
10. The facts and/or particulars which spell out the innuendo
where one is alleged or relied upon to constitute a corrupt practice are
themselves material facts and it is necessary to state them in the petition in view of the mandatory provisions of Section 83(1) of the Act.
The provisions of Section 83(1) are as follows:
"83. Contents of petition-( 1) An election petition-
(a) shall contain a concise statement of the material facts
on which the petitioner relies;
A
B
c
D
E
(b) shall set forth full particulars of any corrupt practice
F
that the petitioner alleges, including as full a statement as
possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the
commission of each such practice; and
(c) shall be signed by· the petitioner and verified in the. G
manne.r laid down in the Code of Civil Procedure, 1908 (5
of 1908) for the verification of pleadings:
Provided that where the petitioner alleges any corrupt practice, the petitioner shall also be accompanied by
an affidavit in the prescribed form in support of the allegaH
A
B
c
734
SUPREME COURT REPORTS
[1990] 2 S.C.R.
lion of such corrupt practice and the particulars thereof."
It is clear from the provisions of both clauses (a) and (b) of the
Section that election petition has to contain (i) a concise statement of
the material facts on which the petitioner relies and also (ii) give full
particulars of any corrupt practice that the petitioner alleges. In a case
therefore, where what constitutes a corrupt practice is not a bare
statement/statements publisheil but those which are not published,
and yet are implied, a statement of material facts will not be complete
without the statement of such implicit facts. In other words, without
the statement of the said facts, the statement will not be a statement of
material facts within the meaning of the said Section. This provision of
law is indisputable.
' 11. Much of the debate that took place before us centered round
this aspect which has assumed all importance in the context of the first
charge of the corrupt practice. Various authorities were cited on both
sides in support of the respective contentions on the subject. We may
D briefly refer to them to the extent they are relevant for our purpose.
In Hough v. London Express Newspaper Ltd., [ 194-0] 3 All ER
31 it was a case of an action for an alleged libel published in the
newspaper. The plaintiff, Florence Sarah Hough, married Frank
Hough in 1933 and lived with him in Battersea as his wife and had one
E
child from him. In February, 1936, he deserted her, and in June 1936
he was ordered to pay maintenance for the child. He was known at
Battersea, where he lived at the time of the order, and after the desertion also he continued to live there. He acquired some notoriety as a
boxer, ·and the plaintiff became known in the district as his wife: On
December 22, 1937, an article appeared in Daily Express, a newspaper
-F
owned by the defendants, containing the words:
"Frank Hough's curly-headed wife sees every fight.
"I should be in more suspense at home." she says, "I
always get nervous when he gets in the ring although I
know he won't get hurt. Nothing puts him off his food. He
G
always eats a cooked meal last thing at night, however late
it is when he gets in"."
From the description given of the wife, it was obvious to those who
knew the wife that another person was referred to. Hence, the plaintiff
brought an action for libel alleging that the words by innuendo meant
H that she was falsely representing herself to be the wife and that she was
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A-
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/
I
M.J. ZAKHARIA v. T.M. MOHAMMED [SAWANT, J.]
735
an unmarried woman who had cohabited with and had children by the
boxer. On these facts, the Court of Appeal held: (i) the words were
defamatory as reasonable persons knowing the circumstances would
understand the words in defamatory sense (ii) it was not necessary for
the plaintiff to prove that one or more persons understood the words in
a defamatory sense. It is sufficient -that reasona~le persons might so
understand them. The decision, therefore, shows that it is not necessary that a person publishing a defamatory statement should intend
that the statement should refer to the defamed person. It is sufficient
that reasonable persons should understand it to refer to him or her.
.The words need not be defamatory in the primary sense. They are
actionable if the existence of certain circumstances makes it reasonable that persons to whom those circumstances are known, might
understand them in a defamatory sense. It is not necessary to prove
that in fact persons with such knowledge did so understand them.
What is necessary, however, is that the special circumstances which
are known to others and by which they are likely to understand the
reference as being one to that defamed persons must be pleaded and
proved.
In Fullam v.Newscastle Chronicle and Journal Ltd. & Anr.,
[ 1977] 3 All ER 32 the facts were that prior to 1962, the plaintiff was a
Roman Catholic priest and a curate in the dioceses of Salford near
Manchester. In 1962, he gave up the priesthood and became a schoolteacher. In 1964, he married and in 1965 he and his wife had their first
child. The plaintiff took a teaching post at Wakefield. South Yorkshire, where he lived. In July 1973, he applied for the deputy
headmastership at a school in Redcar on Teesside, which was about 80
miles north of Wakefield, and he was appointed to that post. There
·•.. had been a controversy about the previous deputy headmaster.