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TMI Blog2009 (3) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under Section 99(1)(a)(ii) of the Act. 2. Heard Shri Fali Nariman, learned Senior Advocate assisted by Ms. Malini Poduval and Vishnu B. Saharia for the appellants, and Shri K.K. Venugopal, learned Senior Advocate assisted by Ms. Bina Madhavan for the respondents. The impugned judgment was passed on an Election Petition challenging the election of the appellant M.J. Jacob as an MLA for the Kerala Legislative Assembly in the polling held on 29.4.2006. The High Court by the impugned judgment has declared the said election to be void on the ground that the appellant was guilty of corrupt practice under Section 123 (4) of the Representation of People Act, 1951 (in short "the Act"). 3. The Election Petition in question was filed by a voter in the election and not a candidate. 4. The ground on which the Election Petition was allowed was that a corrupt practice was committed by the publication of the pamphlet Ext. P1 and that such a publication has been made by the appellant's election agent, one Shri O.N. Vijayan (RW1), and by two other persons (RW2 and RW3) with the consent of the appellant or his election agent, that the statement of facts in Ext. P1 was made in relation to the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affecting the personal character and conduct of Shri T.M. Jacob. The said statement in Ext.P1 is false. ii. The tail-piece of Ext.P1, namely, the exhortation to `recognize the shameless hypocrite of development trickery..........react against the deceiver of the people.......' amounts to a statement of facts affecting the personal character and conduct of Shri T.M. Jacob in the setting in which it is placed, referable to Question no.2 in page 3 of Ext.P1. iii. The publication of Ext.P1 containing the aforesaid statements has been made by the respondent, he having owned up the responsibility of the said publication by having its expenditure met by making payment through his election agent and showing such expenditure as an expenditure incurred by him in the return filed under Section 77 of the Act and by RW1, the election agent of the respondent and RW2 and RW3. iv. Publishers of Ext.P1, namely, the respondent and RW1, his election agent and those who were involved in the preparation, publication and distribution of Ext.P1, namely, RWs 2 and 3, had no reason to believe that the aforesaid statements are true and had every reason to believe that they are false. v. The aforesaid s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e elected candidate who may be disqualified for a period of six years from fighting any election, which will adversely affect the electoral process." 11. In Razik Ram vs. Jaswant Singh Chouhan (1975) 4 SCC 769 vide paragraphs 15 and 16 it was observed:- "Before considering as to whether the charges of corrupt practice were established, it is important to remember the standard of proof required in such cases. It is well settled that a charge of corrupt practice is substantially akin to a criminal charge. The commission of a corrupt practice entails serious penal consequences. It not only vitiates the election of the candidate concerned but also disqualifies him from taking part in elections for a considerably long time. Thus, the trial of an election petition being in the nature of an accusation, bearing the indelible stamp of quasi-criminal action, the standard of proof is the same as in a criminal trial. Just as in a criminal case, so in an election petition, the respondent against whom the charge of corrupt practice is levelled, is presumed to be innocent unless proved guilty. A grave and heavy onus therefore, rests on the accuser to establish each and every ingredient of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yond any doubt that for over 20 years the position has been uniformly equated with criminal charges and proof thereof would be not preponderance of probabilities as in civil action but proof beyond reasonable doubt as in criminal trials..." 13. The above decision has been followed in Mercykutty Amma vs. Kadavoor Sivadasan (2004) 2 SCC 217 vide paragraph 27 where it was observed:- "Allegations of corrupt practices are quasi-criminal charges and the proof that would be required in the support thereof would be as in a criminal charge. The charges of corrupt practices are to be equated with criminal charges and proof thereof would be not preponderance of probabilities as in civil action but proof beyond reasonable doubt as in a criminal trial." 14. A basic principle in the law relating to Elections and Election Petitions is that the mandate of the people as expressed in the election results should ordinarily be respected by courts, and the election of a successful candidate should not be lightly set aside vide R.P Moidutty vs. P. T. Kunj Muhammed (2000) 1 SCC 481 vide paragraph 14 where it was observed:- "It is basic to the law of elections and election petitions that in a democrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torate that Shri T.M. Jacob harboured a member of his personal staff. Paragraph 2 only speaks about absconding of a member of the personal staff of Shri T. M. Jacob and not about the harbouring of a personal staff by Shri T. M. Jacob. 17. Shri K.K. Venugopal, learned senior counsel appearing for the respondents, relied upon the decisions of this Court in Mohan Singh vs. Bhanwarlal 1964 (5) SCR 12, T.K. Gangi Reddy vs. M. C. Anjaneya Reddy 1960 (22) ELR 261, Jagjit Singh vs. Giani Kartar Singh AIR 1966 SC 773, Inder Lal vs. Lal Singh 1962 Supp (3) SCR 114, Gadakh Yashwantrao Kankarrao vs. Balasaheb Vikhe Patil 1994 (1) SCC 682. These are cases where this Court held that pamphlets/leaflets published and circulated by the elected candidate (or his agent or by other persons with the consent of the candidate or his election agent) containing false statements as to the personal character and conduct of a defeated candidate, reasonably calculated to prejudice the prospects of that candidate, constituted a corrupt practice under Section 123(4) of the Act and consequently declared the election of the elected candidate as void. 18. In Mohan Singh (supra), this Court observed : "But in con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstract principles. The policy underlying the present provision is that in the matter of elections, the public and political character of a candidate is open to scrutiny and can be severely criticized by his opponents, but not so his private or personal character. In order that the elections in a democratic country should be freely and fearlessly conducted, considerable latitude has to be given to the respective competing candidates to criticize their opponents' political or socio-economic philosophy or their antecedents and character as public men. That is why even false statements as to the public character of candidates are not brought within the mischief of Section 123(4), because the legislature thought that in the heat of election it may be permissible for competing parties and candidates to make statements in relation to the public character of their opponents, and even if some of the statements are false, they would not amount to corrupt practice. Having regard to this policy of the statute, it often becomes necessary to examine carefully whether the false statement impinges on the personal character of the candidate concerned. Though it is not easy to lay down any general ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce in such a case. Shri Desai submitted that even though it may not be quite proper to make statements reflecting on the personal character of a candidate, yet every such statement does not amount to a corrupt practice since it does not prejudice the election in the prevailing political climate. Shri Desai submitted that the existing norms do not match the earlier norms and, therefore, every reflection on a candidate's character does not necessarily prejudice his election since the electorate is not influenced by such a statement in the prevailing electoral scene........ ..........We would also like to observe that the suggestion of a liberal construction of the election law relating to corrupt practices by appreciation of evidence in the manner suggested in the existing political climate wherein mud-slinging' is common place, does not commend to us as the proper approach envisaged by the election law. If purity of election is the essence of democracy and providing for invalidation of an election on the ground of commission of any corrupt practice is the object of enacting these provisions, it cannot be accepted that the election scene having degenerated over the years, appreciat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d relate to the personal character or conduct of a defeated candidate. Where the false statement was about some one other than the candidate, this Court has refused to consider the publication to be a corrupt practice under Section 123(4). In Dev Kanta Barooah v. Golak Chandra Baruah (1970) 1 SCC 392 a statement imputed corruption and chaos when the defeated candidate was chairman of a Municipality and asked the voters to note the injustices and chaos during his tenure. This Court refused to hold the same as a corrupt practice under Section 123(4) on the following reasoning : "It may, however, be noted that, in this part, it is not stated that Respondent No.1 himself was corrupt. The imputation only is that, during his tenure of office, there were instances of corruption and chaos. Thereafter, the four instances are given. It cannot, therefore, be held that the leaflet was intended to convey to the readers that Respondent No.1 was himself corrupt. The impression that would be expected to be created would be that his administration as Chairman of the Municipality was so unsatisfactory that corruption and chaos prevailed in the affairs of the Municipality. The imputation, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s distributed at election meetings is argued in the cold atmosphere of a judicial chamber, some allowance must be made and the impugned speeches or pamphlets must be construed in that light. In doing so, however, it would be unreasonable to ignore the question as to what the effect of the said speech or pamphlet would be on the mind of the ordinary voter who attends such meetings and reads the pamphlets or hears the speeches." 27. In this case, the pamphlet published on behalf of the appellant - Shri M. J. Jacob, addressed certain questions to Shri T.M. Jacob - one of the rival candidates. Question (2) extracted above required Shri T.M. Jacob to give an answer to the ordinary Congressmen in regard to a member of his personal staff (one Scaria) attempting to murder a Congress Mandalam President -- P J Baby and two others -- Joseph Babu and K.P. Jacob at Onakoor and remaining an absconder. The allegations therein were against Scaria, a member of personal staff of J. M. Jacob, that is, (i) he attempted to murder three persons and (ii) he continued to be an absconder. Neither of these allegations are made against the candidate Shri T M Jacob. Nor did it contain any allegation that Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlal (1964) 5 SCR 12 and has relied on the following observation therein : "The interrogative form is often employed not with a view to secure information but to make and emphasize an assertion." In that case the statement in the leaflet in question was "Did you not defraud the agriculturists with respect to the licences of opium ?" It was held that the use of the interrogative form would not make the statement any the less an imputation if it is fairly capable of being so read. 32. In the present case in paragraph (2) of the pamphlet in question the last sentence stated "Can you give an answer to the ordinary Congressman in this regard?" Shri Venugopal submitted that the interrogative form used here will not make it any less an imputation against personal character. 33. In this connection it may be pointed out that this Court in Mohan Singh's case has itself stated that the interrogative is `often' employed as an assertion. The use of the word `often' indicates that the Court did not lay down in that decision that it is always or invariably so employed. Hence we have to see the facts of each case and not go by any rule of the thumb. 34. However, even if the statement in the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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