HEDGE, - (1.) THE Judgment of the court was delivered by
(2.) THE appellant is the returned candidate from the Rajura Constituency of the Maharashtra State Legislative Assembly in the General Electionheld in February, 1967. In that election he secured 21,435 votes as against17,521 votes secured by his nearest rival, the first respondent herein, the nomi-nee of the Indian National Congress. THE first respondent was representingthat constituency prior to the said General Election. THE first respondentchallenged the validity of the appellant's Election Petition No. 14 of 1967in the High court of Judicature at Bombay (Nagpur bench), on two groundsnamely (1) that the appellant was disqualified to be a candidate in thatelection and (2) that he was guilty of corrupt practices under Section 123(4)of the Representation of the People Act, 1951 (to be hereinafter referred toas the Act). THE High court allowed the petition and set aside theelection of the appellant on the ground that he was guitly of publishingstatements of facts which are false and which he neither believed to be falseor did not believe them to be true, in relation to the personal character andconduct of the first respondent. It did not uphold the contention of thefirst respondent that the appellant was disqualified to be a candidate. (2) Though at one stage Mr.. Hazarnavis, learned Counsel for the firstrespondent attempted to support the judgment of the trial court on theground that the appellant was disqualified to be a candidate, he finallygave up that contention. THErefore it is not necessary to examine thesame. (3) THE High court has found that the appellant was responsible for thepublication of Exs. 55 and 56 which according to it contained statementsof facts relating to the personal character and conduct of the first respondentand those statements were either false to his knowledge or at any rate hedid not believe them to be true. It further came to the conclusion thatin some of the election meetings the appellant had falsely stated that thefirst respondent had a share in the contract secured by him for oneAbid Hussain. (4) THE bulk of the evidence adduced in this case relates to the contro-versy whether the appellant was responsible for the printing and publicationof Exs. 55 and 56. THE High court has accepted the case of the first respon-dent that the appellant was responsible for printing and publishing thosepamphlets. We have been taken through that evidence and we agree with thethat High court on that aspect of the case. It is not necessary to deal with thatevidence as we are of opinion the statements contained in those pamphlets do notamount to corrupt practice under Section 123(4) of the Act. Section 123 (4)reads: "THE publication by a candidate or his agent or by any otherperson (with the consent of a candidate or his election agent) of any84 statement of fact which is false, and which he either believes to befalse or does not believe to be true in relation to the personal characteror conduct of any candidate, or in relation to the candidature orwithdrawal of any candidate, being a statement reasonably calculated toprejudice the prospects of that candidate's election." (5) THE ingredients of the corrupt practice mentioned in this section are(1) the publication by a candidate or his election agent or by any other personwith the consent of that candidate or his election agent or any statement offact ; (2) which statement is false and which was believed by the candidateto be false or at any rate was not believed by him to be true ; (3) the saidstatement relates to the personal character or conduct of a candidate or inrelation to his candidature or withdrawal and (4) the same being a statementreasonably calculated to prejudice the prospects of that candidate'selection. (6) As explained by this court in Sheopat Singh v. Ram Pratap 1, Sec-tion 123(4) is designed to achieve the dual purpose of protecting freedom ofspeech and prevention of malacious attack on the personal character and con-duct of rivals. A statement which reflects on the mental or moral characterof a person is one relating to his personal character or conduct, whereas anycriticism of a person's political or public activities and policies is outside it.Section 123 (4) further requires that the candidate who made a false state-ment should have believed it to be false or did not believe it to be true andlastly it should be a statement reasonably calculated to prejudice theprospects of the election of the candidate against whom it was made. THEword 'calculated' means designed : it denotes more than mere likelihood andimports a design to affect voters. (7) THE election law in this country as in England guarantees freedom ofcriticism of political nature at the time of election. It is true that the freedomof criticism given might be sometime misused. THE political history of evencountries like England shows that sensational false election propagandaagainst a political party, particularly on the eve of election might upset theparty's electoral fortune. But the advantage gained from free criticism-though sometimes it may turn out to be irresponsible-in the long run outweighsthe disadvantages. It is in the interest of democracy that such criticismshould be allowed. This is the view of political thinkers. A political party'sreputation is not built on shifting sands. It has, at any rate, it should have,firmer foundation and should not be affected by passing winds. But in thecase of individuals a different approach is necessary. A campaign of slanderis likely to create prejudice in the mind of the people against him. It cannotbe put down as cynicism when it is sometimes said that the bigger the liethe greater is the chance of its being accepted as true. THEre is unfortuna-tely a tendency in the minds of the unwary public to believe the worseabout individuals. Democracy will be a farce if interested persons areallowed to freely indulge in character assassination during election. Section123 (4) as we understand it embodies the two principles discussed above.Every false allegation does not come within the mischief of Section 123(4).When any false allegation of fact pierce the politician and touches the personof the candidate then Section 123(4), is contravened. (8) Dealing with the meaning of the expression 'personal character andconduct' found in Section 123(4), Subba Rao,J., speaking for the court in85T. K. Gangi Reddy v. M. C. Anjaneya Reddy and others, observed at p. 266 of the report: "the words 'personal character or conduct' are so clear that they donot require further elucidation or definition. THE character of a personmay ordinarily be equated with his mental or moral nature, conduct con-notes a person's actions or behaviour." (9) Dealing with a provision similar to Section 123(4), Darling, J., in Cumberland (Cookermouth Division) case observed : "What the Act forbids is this. You shall not make or publish anyfalse statement of fact in relation to the personal character or conductof such candidate ; if you do, it is an illegal practice. It is not anoffence to say something which may be severe about another person norwhich may be unjustifiable nor which may be derogatory unless itamounts to a false statement of fact in relation to the personalcharacter or conduct of such candidate ; and I think the Act says thatthere is a great distinction to be drawn between a false statement offact which affects the personal character or conduct of a candidate anda false statement of fact which deals with the political position or reputa-tion or action of the candidate. If that were not kept in mind, thisstatute would simply have prohibited at election times all sorts of criticismwhich was not strictly true relating to the political behaviour -andopinions of the candidate. That is why it carefully provides that thefalse statement, in order to be an illegal practice, must relate to the per-sonal character and personal conduct." (10) THE language of Section 123(4) is 'any statement of fact which isfalse' and that language must be used in contrast to a false statements ofopinion. THE language used is not merely a 'false statement' but a 'statementof fact which is false'. THE statement inquestion must be in relation to thepersonal character or conduct of candidate, which means a false statement offact bearing on the personal character or conduct of a candidate. Further oneof the ingredients of the corrupt practice under Section 123(4) is thatthe statement complained of must be one reasonably calculated to prejudicethe prospects of the election of the person against whom it is made. It maybe noted that the section does not merely say 'being a statement calculatedto prejudice the prospects of the candidate's election' but on the other handit says 'being a statement reasonably calculated to prejudice the prospectsof that candidate's election'. THE meaning of that expression is as held bya division bench of the Bombay High court in Dattatray Narayan Patil v.Dattatray Krishnaji Khanvikar and others that the publication of false statement offact relating to the personal character or conduct must be such as would, inthe estimation of the court, having regard to the nature of the publication,the evidence tendered in court and the surrounding circumstances have itsnatural and probable consequence of prejudicing the prospects of thecandidate relating to whose personal character or conduct the publicationhas been made. So far as the last limb of Section 123(4) is concerned, theemphasis is not so much on the intention of the publisher but on the probableeffect on the election of the candidate against whom those statements aredirected. (11) It is trite to say that the burden of proving every one of the ingre-dients of the corrupt practice alleged is on him who alleges it. If he fails to establish any one of them to the satisfaction of the court he must fail. 86 (12) We shall now proceed to consider whether the statements of factscontained in Exs. 55 and 56 fall within the mischief of Section 123(4). Beforedoing so it is necessary to give the background under which the statementscomplained of were made. As mentioned earlier the first respondent wasrepresenting the constituency in question prior to the General Election in 1967.Sometime before the election the cultivators in the Rajura Constituency as inother places were required to deliver to the government a portion of thejuwar crop raised by them in pursuance of the levy orders made. Thiscircumstance must have undoubtedly caused dissatisfaction to the ryots.Rajura Taluka was previously a part of the Nizam's State and thereafter theState of Hyderabad till the formation of the Maharashtra State. We under-stand that in that Taluka, the boundary stones had not been fixed. THEState of Maharashtra appears to have directed the land-owners to fix thenecessary boundary stones for their property within a certain period. Assome of them did not comply with that direction, the government took uponitself the responsibility of fixing those boundary stones at the cost of thoseryots. That work was given on contract to one Abid Hussain. It wassuggested that charges fixed were excessive. It may be mentioned at thisstage that during the time when the juwar levy was imposed and the contractfor fixing the boundary stones was given (as also at present), the CongressParty was in power in the State of Maharashtra. THE first respondent wasa Congress M. L. A. In the past tolls were levied on every vehicle enteringthe municipal limits of Rajura but some years before the election that levyhad been abolished but the same was again re-imposed, sometime before theelection. At the time of the re-imposition of that levy Shri ShankarraoDeshmukh, acongressman was the Chairman of the Rajura Municipality.Having mentioned these facts we shall now proceed to examine the state-ments in Exs. 55 and 56. (13) Ex. 55 is a Marathi poem composed by the appellant's electionagent Dr. Suresh Vishvanathrao Upaganlawar (R. W. 3). Its English render-ing is as follows: REQUEST TO VOTERSRise rise oh voters awake at least now understand and begin towork.You have suffered for five years, auspicious day has dawned now,truthful to your conscience, wake to vote, oh brothers wake to vote.Today kick off (this) slavery in the freedom (and) you shouldexpose ; you should expose the sins of Vithalrao.He held out to be the leader of the people (but) he put burden ofstones (on the people). By those very stones (you) build his grave,brothers build his grave.For recovery of levy (from us) unlimited force used against us.THEy take white juwar and give red-millow (to us) and now confronthim (with this).Today our luck has dawned (in that) we got a great leader.For protecting the interest of poor people, see this Guruji has takenan Avatar.(His, name is Jivtode Shrihari, has responded to our immediate call.)87By giving your invaluable vote to Jivtode and Kaushik Pleader.Elect them this time, begin working today.Seeing Lion Symbol, by affixing rubber stamp on it we will showto the world, Brother we will show our candidates that success garlands(him.)"(14) Ex. 56 is a pamphlet published in Marathi. It purports to be anappeal by one Ganpat Patil Dhote. THE English translation of it is found atpp. 563-565 of the paper-book. It reads thus :"VOTERS BE CAREFUL In the forthcoming General Elections the stitting M. L. A. ShriVithalrao Dhote is standing for Maharashtra Legislative Assembly on behalfof Congress. THE poor people have had experience of Shri Vithalrao Dhoteas M. L. A. Having been elected in the First General Elections, Shri Vithalrao Dhotewould work for the benefit of the people and develop the backward RajuraTaluka was our expectation. But the People of Rajura Taluka have beenutterly disappointed by Shri Vithalrao Dhote. In this Taluka the HighSchool which was there in the times of Nizam the High School is there iswhole of Rajura Taluka till today. Shri Vithalrao Dhote could not constructa single Pucca Road. Could not supply electricity to any village anywhere.Could not make arrangements for watering agriculture. In this Talukathough there is thousands of acres of fallow land, for distributing it to land-less no effort was made by Shri Vithalrao Dhote. In the last five years nowork for the benefit of the people has been done by Vithalrao Dhote. On the contrary, through his selfish and fraudulent companionShri Shankarrao Deshmukh, the Municipal President of Rajura (he got)imposed the stopped toll tax on the bullock-cart (Rengi and Bandi) of poorpeople coming to Rajura. , Its effect has been surely felt by every poor man inthe Taluka. Similarly by fixing boundary stones on the Dhuras of the cultiva-tors in Rajura Taluka and by recovering price of stones Shri Vithalrao Dhotehas worked for the benefit of Abid Hussain THEkadar alone. In this Talukathe cultivators could not get Taqavi loans without giving bribe at the time ofdistributing taqavi. Shri Vithalrao Dhote could not check bribery.Shri Vithalrao Dhote has neglected the poor people by looking to the interestsof THEkedar (contractor) alone. By this, poor people have lost all faith inShri Vithalrao Dhote in Rajura Taluka. By this the poor people are verymuch harassed. When I, myself moved in the villages in this Taluka, I,found that public opinion is inclined against Shri Vithalrao Dhote. People are organised as Shri Vithalrao Dhote has harassed the poorerfor furthering interests of his selfish and deceitful companion. Because ofthis and with great reluctance and keeping interests of public in view I ampublishing this pamphlet against Amdar Vithalrao Dhote to keep the truefacts before the public. THE man who is proving dangerous to the majorityin the society and poorer section of the public has to be pulled down fromhis office (and) except this, there is no other way is my belief. Hence I humbly request the voters in Rajura Constituency that theyshould not vote for the Congress candidate Shri Vithalrao Dhote. Contest-ing candidate from Rajura Constituency Shri Jiotode Guruji had worked forspread of education by opening Janata High schools. Shri Jiotode Gurujihas benefited the poor people by opening all kinds of colleges of Chanda. 88 'Shri Jiotode Guruji' will bring about the development of backward Rajura Taluka positively. Hence by putting a cross on the Lion Symbol of Vidarbha joint Front'sShriJiotode Guruji, ShriJiotode Guruji be elected by a large majority is myhumble and earnest request to the voters. JUDGEMENT_82_1_1969Html1.htm (15) THE various statements contained in these two pamphlets are sum-marised by the learned Trial Judge thus :"(a) (THE Petitioner) has imposed the toll tax on poor citizens ontheir bullock-carts through his selfish and bogus companionShri Shankarrao Deshmukh, President of Rajura Municipality,which has caused undue suffering to every poor citizen residingin this part.(b) Vithalrao Dhote has only secured advantage for Abid Hussain,Contractor, by imposing the burden of paying for the borderstones which were compulsorily ordered to be fixed.(c) In this Taluq no cultivator has been able to get taqavi withoutpayment of bribe and Vithalrao is unable to prevent it.(d) Vithalrao Dhote has solely protected the interest of the contractorand neglected the poor citizens and on that account VithalraoDhote has forfeited confidence of poor persons in Rajura Taluq.(e) THE poor population is simply harassed and I have foundthat the inclination of the people is against Vithalrao Dhotewhen I went around in the village.(f) Poor persons are simply harassed on account of exploitation andruin caused by Vithalrao Dhote solely for the benefit of hisselfish and bogus companions.(g) Persons (meaning the petitioner) who is a menace to the majorityof the community and poor persons must be sacked from theoffice is my final conviction." (16) None of the aforementioned allegations can be held to relate to thepersonal character or conduct of the first respondent. THEy are undoubtedlycriticism, true, false or exaggerated of the first respondent's roll as a poli-tician. Those statements do not make any reflection on the moral or mentalqualities of the first respondent. As mentioned earlier a Congressman wasthe President of the Rajura Municipality at the time the tolls were re-imposed.It may be that the first respondent had no hand in the matter of re-imposition of the tolls and that the accusation that he got it re-imposed isnot true but that in no manner can be said to reflect on the personal characteror conduct of the first respondent. Similarly the accusation that thefirst respondent secured advantage for Abid Hussain by imposing a burden onthe land owners by making them pay for the boundary stones cannot be saidto reflect on the private character of the first respondent whether the state-ment in question is true or false. THE appellant had a right to hold the firstrespondent responsible for the actions of the government as he was a member89of the party in power. THE allegation that in theRajura Taluka no culti-vator had been able to get Taqavi loans without payment of bribe and thatthe first respondent was unable to prevent it, is undoubtedly a legitimatecriticism. THE allegation that he solely protected the interests of the contrac-tor and ignored that of the poor citizens and on that account he has forfei-ted the confidence of the poor persons in his constituency is an expression ofan opinion, whether the same is true or not. THE allegation that the poorpopulation is simply harassed and that the singnatory to the pamphlet foundthat the inclination of the people is against the first respondent when he wentaround in the village, is merely an opinion and not a statement of fact.Similarly the allegation that the poor persons are being harassed on accountof the exploitation and ruin caused by the first respondent solely for thebenefit of his selfish and bogus companions is an expression of an opinionand it is a permissible criticism in a political debate. THE assertion that thefirst respondent is a menace to the majority as also to the poor and thereforehe must be sacked from the office is as stated in the pamphlet itself, is pur-ported to be the conviction of the person who issued the statement. He isentitled to hold that opinion and propagate it. It must be remembered thatduring election time passions are roused ; election propaganda should not betested by the standards to be adopted in a debate carried on by intellectuals.It may be that many of the charges levelled against acandidate as regardshis political past or about his capacity to be useful representative are nottrue. It is for the electorate to judge those accusations. So long as thoseaccusations do not affect the personal character or conduct of the candidate,the election law will not take note of it. That is why it is said that apolitician must be thick-skinned and more so at election time. As mentionedearlier it is not a corrupt practice to say something which may be severeabout another person, nor which maybe unjustifiable, nor which may bederogatory, unless it amounts to a false statement of fact in relation to his personal character or conduct. (17) It is unfortunate that the High court exclusively focussed its attentionon the question whether or not the appellant caused to get Exs. 55 and 56printed and published and completely ignored the true effect of the state-ments contained therein. It proceeded on the erroneous impression thatevery false or unjustified criticism of a candidate amounts to acontraven-tion of Section 123(4). Dealing with Exs. 55 and 56 this is what thelearned Trial Judge observed : "To say against any body that he is responsible for imposition ofa tax without justification through that person's selfish and pretentiousfriend like the President of the Municipal Councll is, to say the least,to suggest that that such person is the direct cause of harassment onaccount of such taxation on poor people. It is said in the thirdparagraph of the pamphlet and then there is a direct allegation againstthe petitioner that it is the petitioner who caused the cultivators inthe Rajura Taluqa to be burdened with the expense of fixing the borderstones and that in doing so the petitioner Vithalrao Dhote has solelysecured an advantage for Abid Hussain, THEkedar. In the fourthparagraph, it is categorically alleged that the petitioner VithalraoDhote has exploited and harassed poor people in order to benefit his,i. e. Vithalrao's selfish and pretentious friends and such harassmenthas caused untold miseries. That these allegations are scurrilous doesnot admit of any doubt. THEy are defamatory per se. Every citizenis entitled to be presumed to be innocent until contrary is proved.lf therefore an allegation of a personal character is made against anyone,90 it is the maker of the allegation who has to establish that there is truthin the allegation." (18) It is clear that the High court failed to examine the effect of thestatements contained in Exs. 55 and 56 by the tests prescribed in Section123(4). Further there is no proof in this case that the statements containedin Exs. 55 and 56 are reasonably calculated to prejudice the election ofthe respondent. THE trial court did not give any finding to that effect. 19) This leaves us with the question whether the appellant had announcedin his election meetings that the first respondent had a share in the profitsearned by Abid Hussain in the matter of fixing boundary stones. THE HighCourt has held that the appellant made that accusation while addressingelection meetings at two places. If that finding is correct then undoubtedlythere is a contravention of Section 123 (4) but after carefully examining thematerial on record we have come to the conclusion that that finding is un-sustainable. (20) THE election petition was filed on 1/04/1967. That petition merelyset out what according to the petitioner are the contents of Exs. 55 and 56.It is not stated therein that apart from the statements contained in thosepamphlets any other false statement of fact relating to the personal characteror conduct of the first respondent had been made either by the appellant orhis supporters. THE allegation that the appellant in his election meetingshad stated that the first respondent had a share in the profits earned byAbid Hussain in the matter of fixing the boundary stones is not mentionedthere. An application to amend the election petition was made on 24/06/1967. (21) In that application also there is no reference to the allegation in ques-tion. THE election petition was again amended on 3/7/1967. It was onlythen the following allegation was made : "He (the appellant) was falsely alleging that the petitioner was orhad actively helped Abid Hussain for his selfish ends to make illegalgains and thus allege falsely corrupt motives to him." (22) Even this allegation is vague. That apart, it is a highly belated allega-tion. It appears to be an after thought. It is not necessary for us to decide inthis case whether such an amendment could have been permitted after thelimitation for filing the election petition had expired. But the very circums-tances that the allegation in question was made several months after theelection petition was filed by itself casts serious doubt on the veracity ofthat allegation. This circumstance was completely overlooked by the HighCourt. (23) THE witnesses who spoke in support of the said allegation are the firstrespondent (P. W. 2). P. W. 9, Arjan Kashinath Masirkar and P. W. 12,Nazir Hussain Akbar Ali. So far as P. W. 2 is concerned he is undoubtedlyan interested witness. In the circumstances mentioned above, his evidencecan have very little persuasive value. So far as P. W. 9 is concerned onhis own showing he was highly interested in the first respondent and theCongress Party. As elicited during his cross-examination he was a Congresscandidate for election as Sarpanch and as a member of the Panchayat Samiti.THE appellant's cousin was his rival in that election. Admittedly during thelast election he canvassed for the first respondent. Under these circumstancesmuch reliance cannot be placed on the testimony of this witness. THEn wecome to the evidence of P. W. 12. During his cross-examination this is whathe stated : 91 "I have not received a summons. Vithalrao had asked me toproduce the register where the hire of cycles is noted and that is howthe chits which I have filed came with the register. ......." (24) His evidence is to the effect that the appellant while presiding overthe meeting at Rajura on 13/02/1967, stated that the first respondenthad a share in the contract for fixing of border stones which was procuredfor him by Vithalrao. When he was cross-examined about that meeting thisis what he stated : "I don't remember who was the President of the meeting. I willnot be able to name at this distance of time the names of persons fromthe town or the villagers who were listening at the meeting. I willnot be able to name a single person from amongst these." (25) Obviously he is a procured witness. No reliance can be placed onhis evidence. (26) For the reasons mentioned above we hold that the election petitioner(first respondent herein) has failed to make out that the appellant hadcontravened Section 123(4). Hence this appeal succeeds and the electionpetition stands dismissed. We are of opinion that we should not award anycosts to the appellant. He had come forward with a false case and hadprotracted the trial of the case by adducing voluminious false evidence.Hence we direct the parties to bear their own costs both in this court as well as in the High court.;