A. Younus Kunju v. R.S. Unni & Others

Judgment

The Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal under Section ll6A of the Representation of People Act, 1951 (hereinafter referred to as 'the Act') is directed against the decision of the Kerala High Court dismissing the election petition of the appellant whereby he challenged the election of respondent No .. 1 as a member of the Kerala Legislative Assembly from Constituel)cy No. 125 Eravipuram in the Quilon district of that State. Election was held· on 19.5.l\2 and the result was declared on the following day. There were eight candidates in all but the main contest was between the appellant and the respondent No. 1. The appellant polled 37, 073 while respondent No. 1polled37, 862. There~was, therefore, an excess of 789 votes. All the remaining candidates together polled abo11t 2,000 votes. $UPREME COURT REPORTS [1984] 3 s.c.R:

Challenge to the election was laid on two g!'.ounds:- namely, commission of corrupt pr~ctices within .the ~eaning of sub-sections · 2, 4 and 7 of Section 123 of the Act and several irregularities in th~ course of counting leading to wrong conclusion regarding the result. The returned candidate .joined issue and denied these allegations. The learned Election Judge in the High Court came to hold that the appellant had failed to bring home the charges of corrupt practices .. He also did .not accept the plea of irregularities in counting ofbal!otpapers. A request made to him for recount was rejected and on these conclusions he held that the election petition was liable to be dismissed. Appellant's counsel conceded tha't the allegations of corrupt practices covered by sub-section 2 of Section l 23 of the Act would not be pressed.

He also fairly accepted the position that the evidence ·relating. to obtaining or procuring of assistance for ·the furtherance · of the prospects of respondent No. l's election from government ~ervants was inadequate as found by the High Court. Two grounds were, therefore, pressed in support. of the appeal, na'mely, the allegations of corrupt practice within the Section 123(4) of the Act and the allegations of irregularities in the matter of counting of_ ballot-papers. Section 123(4) provides: "123. The following shall}be deemed to·: be corrupt o practices for the purposes of this Act:- (4)

The publication by a candidate. or his agent or by any 0th.er pers.on (with the consent of a candidate or his election. agen.t), of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate; or in relation to the candidature, or witbdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidates e.lection." Admittedly Azeez was the election agent of respondent No: I. In paragraphs 4 to 8 of the election petition, it bad been all~ged that election agent Azeez published a statement dated 13.5.82 in tlie form of a hand-bill making false but serious allegations against the appellant touching his personal character and· conduct. It was alleged that the appellant had ca11se<J t4e murder of one OII\ana1 a ). .. "· KUNJlJ·v. iu.

UNNI (Ranganath Misra, J.) lady worker supporting the respondent No.I because she refused to sllpport his campaign. A meeting was held on 14.5.82 at a place known Tatamala Junction to condemn and ·Condole the said death. If'was respresented that the death was "Caused on the ground that the said helpless lady was not prepared to work for him. Azeez along'wit)l other election workers carried wide scale propaganda with loud-speakers. At the said meeting there were many speakers including Azeez and the respondent No. I who spoke in the same ·strain as the contetl'ts of the hand-bill. This was done ··with a view to affecting the prospects of tile appellant's election. Similar propaganda was said to have been made by them urnil canvassing stopped. The respondent No.I denied these allegations in the written · statement.

According to the appellant the corrupt ptactices within the meaning of Section 123(4) of the Act related to distribution of the hand-.bill in question, na~ely, at two places being Mayyanana and Thrikkovil Battom areas and the speeches were made at the public meeting held at Tatamala Junctiqn. Exhibit P-1 is a copy of the hand-bill. No steps were taken to summon the original documynts"from the press where the hand-bill is said to have been got printed by Azeez, though the name of the press was borne on the hand-bill. Soon after the hand-bill came to be circulated a denial was published by the press to the effect that no such bill was printed and/or publish~d by the press.

Admittedly the relevant materials if called from. the press would have been the best evidence to provide the link. between the publicafion of tl;ie objectio' nable material and the 'election agent of the respondent No.I.- When. we made a qu~ry from !counsel for the appellant as to why such steps were not t~ken and the primary evidence was kept away from the Court, learned counsel.indicated to us that. the press bad come out with a denial'closely following the circulation and it was not likely that the press would have caused production of the doca· ment. Since the name of the press was given in the document and appellant proceeded on the footing that the document was printed in the said press, if the press did not comply with the summons, . production could have been ~enforced by law.

Want of proper steps at the right time and negligence or wilful default at the trial cannot ·be answered in the manner appellant's counsel has contended before us .and w.e must draw adverse inference against the appellant for non-production of the re.levant material. Reliance was also placed on a report by P.W.4, a police officer where there was mention of such prop~ganda being carried on with reference t0 the death of the • C. SUPJlEMB,co\JRt REPORTS [l 984) 3 s.c.iv ~ lady. The ·report did not indicate the source but only statel:l th~t ; the police officer collected the information from the gossips in. the ! locality. Such a report as righly held by the High Court was not I ll admissible ,and it was hearsay of a type to which no credence could attach. Though counsel was very vehement to press this document , into service he was not in a position to cite any legal basis for doing / so.

Apart from these two documents' which we hold had b~en •' rightly ruled out, the other evidence is oral in character and P.Ws. '. 1, 8, II and J2 are the witnesses who have. been spoken about it.· Admittedly all these witnesses were the workers of the appellant. There is over-whelming m.aterial ~n the record, and even counsel fairly admitte.d, that .the election was fought on party basis and there was sharp division of the electorate on the basis of political parties. That being the position, 'workers at the election with party alignment would necessarily be political supporters of the respective candidates and when •called as Witnesses they would '.support their stand. Instances are not uncommon where· such witnesses suppo·rt their respective candid.ates ·and their cases even though the same be far from truth.

In such· circumstances we do not think on the oral. testimony of. these fo'ur witnesses the, charge of publication of ' · objectionable materials can be said to have been established. Admittedly the meeting at Tatamala Junction was held on the 14.5 .. 82 towards the evening. It is the case of the appellant that at this meeting the respondent No. 1, his election agent Azeez and several other ·supporters spoke. Each one of them referred tothe. appellant as the person respohsible for the murder of tpe lady. There is no dispute before us that the picture drawn up as the appellant as the murder• of the lady' would very .much tarnish hjs image, personality and c~cter and woul.d have ad'1ersely affected the. prospects of his winning the election is, widely circulated in the constituency before pollin.s. Three witnessas have been examined being P.Ws.2, 6 and 9 in respect of the Tatamala meeting. P.W. 2 was the Circle Inspector of Police of the area and stated that he had attended the meeting.

Though the 'meeting started at 7 p.m. he went to the meeting place at about 9 p.m. and remained there for about ·an hour. Thus at about 10 p.m. he left the place but the. meeting was· still continuing. 'He referred to the speech by Azeez but did nol indicate as to what exactly he spoke. In cross-examination he admitted that though he ma~ifllined a diary, the details Of the meeting were not available and he did not report about the meeting to his superior officers, This evidence does not lend any support to the case sought to be made out by the appellant. P.W. 6 was a·printer and publisher of J A. Y .• kUNJlJ v. R.s. UNNI (Ranganath Misra, /.) the newspaper by name Pauramitram. His evidence is that he was also working as reporter of the paper and.had gone to the meeting in such capacity. pn the basis of his jottings he gave a news item which was published in the paper marked Exhibit P-3. He claims to have left the meeting place at.9.30 p.m. but th~ meeting was still continuing.

The news item as. rep.orted.does indicate what Azeez spoke. ·The -,vitness also deposed on oath ·about the speech of Azeez. The ·High ·court refused to .place any reliance on this witness mainly on account of the fact that this paper was not an established newspaper of the area and did no·t have regular pubJi; • . cation. On the basis of the evidence of R. W. 1 the information officer at the state headquarter.s, ·the High Court came to doubt the .. bona-fide of f.W.6 as also his paper. We have also perused tI:ie evidence of P.W.6 and R.W.l and the· observations of the High Court in regard to this aspect. We are inclined to agree with the High Court that the evidence of the witness is not impressive and we hold the same was rightly rejecte<l by the High Court which had occasion to see him. The only other witness who has been examined in regard to the meeting.is P.W.9. a person who claims to be independent and\unc.onnected with the lis.

P.W.9 on his.own showing had gone to . see his father suffering from a heart,attack. 'He came from a place' about 20 kilometres away. According to him he left father's place by around 10.30 p.m. If that be so and he was covering a distance of about 20 kilometres, he would not have .reached the meeting place before 11.p.m. when the meeting is said to have concluded. His evidence that he stayed at the meeting place to listen to the speeches for quite sometime has therefore, to'be ruled out as inconsistent with the .other evidence. His evidence too has been rightly rejected by t~e High Court. There is total consensus of judicial opinion that ·. a charge of corrupt practice under the Act has to be proved beyond reasonable doubt and standard of proof is the same as in a criminal case. ·See Mahant Sliree Nath v. Chaudhry 'Ranbir Singh.1 This proposition has even not been disputed by counsel for the .appellant.

We, th.erefore, do not propose to refer to the catena of de.cisions affirming the aforesaid view. The High Court applied the right standard in the matter of appreciation of the material placed before it and has come to hold that the allegations of corrupt practice · within the meaning of Section 123(4) of the Act has not been proved. In su~h a situa- (l) [1970] 3 s.c.c. 647 16S SUI'll.EMll COuilT 11.EPollTS [!~84] 3 s.c.k fion as· pointe~] out ·by thislCourt1 in Jthe case of Boddepalli . J?.ajagopa/a RM v. N.G. Ranga,1 this Court would not reappreciate . the evidence. Shah, J. as he then was observed t~us:. "The finding of the learned Trial Judge is based upon appreciation of evidence of the witnes~es in the light of'probabilities. A charge of corrupt practice under the Representation of the People Act must be established by clear _and cogen~evidence.

When the Court of First Instance on a consideration of . the evidence of· the witnesses· has refused to place any reliance upon their testimony the burden lying upon tha party setting up a plea of corrupt practice beco~es no lighter in appeal. T)le charge cannot be held, established merely upon suspicion, or preponderance of probabilities. Unless the appellant establishes that the appreciatfon of evidence was vitiated by gross misreading or misconception of the evidence or because of failure toconsider important pieces of evidence which had a bearing on the charge or because of serious·irregularities in procedure which amount to a denial. of a. fair trial the appellate court. will not proceed to reappreciate the evidence on which the findings are recorded by the Court of First Instance on the credibility of witnesses." · We are in complete.agreement with these observations.

Our conclusion, therefore,· is that the High Court ri~htly negatived the challenge to the ·election of respon~ent No. l on grounds of corrupt practices. /If,• I The only other c-0ntention canvassed at the h<aring is about · the irreguJarities in the counting. The total rejected. ballot-papers were within the range of SQO while the difference between the appellant and the . respondent No. l was .about 800. The details necessary for obtaining a recouI>t Weijj, not pleaded in the election petition nor was any cogent material placed before the Court which could bring the matter within the rule indicated by this Court t.o justify :a direction for recount .. That !plea, in our opinion, has rightly been negatived by the High Court. The appeal fails and is dismissed. Parties shall beat their own costs in this Court. Appeal dismissed. (I) AIR [1971) S.C. 267