1. This is an appeal under Section 116A of the Representation of the People Act, 1951 by the unsuccessful election petitioner (defeated candidate) for the Lok-sabha from the Parliamentary constituency of Mahasamund in the general election of 1962. The ground alleged was primarily of corrupt practices by the successful candidate-respondent No. 1, practices coming under Section 123(4) of the Act, by the publication and circulation by that candidate himself, and with his consent, by his agents and others, of the pamphlet (annexure I) at different places in the constituency during the second and the third weeks of February on approximately the dates mentioned in the petition and in the evidence.
The Tribunal found that the contents of the petition did not amount to statements of fact in relation to the personal character or conduct of the petitioner calculated to prejudice his prospects in the election; it dismissed the petition, though it held at the same time that the publication had been done by the successful candidate himself and also by his agents and others. Hence this appeal, which has been contested by the respondent No. 1. The other respondent, that is, defeated candidates other than the petitioner-appellant have not appeared or otherwise taken any interest.
2.The points for decision are the following:
Firstly, the preliminary point of limitation involving the straight question whether an appellant under Section 116A is entitled while computing the limitation to deduct the time taken in the obtaining of copies in the manner provided in Section 12 of the Limitation Act.
Secondly, whether the pamphlet (annexure 1) 25000 copies of which were admittedly printed by one Tikamchand jain and a large number of which were admittedly distributed in different parts of the constituency was, (a) published at certain places by respondent No. 1 himself, and (b) elsewhere by his agents and others with his consent.
Thirdly, whether the statement in the last paragraph of the pamphlet -
'In the Praja Samajwadi conference held at Baitul Shri Khubchand Baghel was the President of the Reception Committee. For the sum of Rs. 16000-00 that had been collected for the said conference, Khubchand Baghel has not rendered accounts even though the committee has repeatedly asked for that. Where has the money gone?' amounts to a corrupt practice as set out in Section 123(4).
Fourthly, whether the statement in the penultimate paragraph of the same pamphlet -
'Out of selfishness this very Shri Khubchand Baghel made false and filthy allegations -- allegations about the most honourable and respected leader Shri Ravi Shankar Siiukla (father of the successful candidate) which allegations were printed from time to time in the communist paper of Bombay called Blitz. There was a suit for damages for defamation in course of which opportunity was afforded to Shri Baghel to prove their truth but he turned back with the result recently the said Blitz had on the 26th January 1962 to publish an unconditional apology lor publishing these false and fraudulent allegations by this leader. But then Shri Baghel is hardened in this habit (adat se lachar hain) and also knows that his very political existence depends on these baseless things.' is also a corrupt practice as set out in Section 123(4).
In connection with the last two issues, the parties have argued about the burden of proof in this class of cases, the manner in which it has to be discharged, the purport of the definition of corrupt practice in Section 123(4) and the fine, if it is possible to draw one, between statements relating to persona! conduct and character, and political conduct. There were quite a number of formal issues before the Tribunal which were lumped by it under headings III (a) to (c), IV (a) and (b); but the Tribunal's decision that they were of no consequence has not been here challenged by either party.
3. Even more than in the usual run of election disputes the present one has been argued at great length and with very considerable ability on the basis of a quantity of evidence. The facts in brief are the following:
The Mahasamund parliamentary constituency covered parts of the Raipur (and probably some of the contiguousdistricts) and was a block made up of eight assembly constituencies, Mahasamund being the most important town there. There were in that election for this constituency five candidates out of whom Shri Vidyacharan Shukla-Respondent No. 1 secured 56664 votes, the petitioner 53872 and three other unsuccessful candidates between themselves 48500 in round figures. Accordingly, respondent No. 1 was declared elected. The petitioner came up with this petition alleging 'inter alia' that the corrupt practices already indicated had been committed by the successful candidate and inviting the Tribunal to declare his election to be void. Evidence was adduced by both sides, mostly of an oral nature, the few documents filed being at the same time admitted by the parties without controversy. Practicaily the whole case centered round the respondent's consent and personal part in the publication at different places in the constituency of the annexure 1 on which the tribunal actually found for the petitioner. It further held that the contents, especially the two passages set out above, did not amount to the commission of corrupt practices for reasons which will ba indicated in time. In this Court, on the one hand, the appellant has tried to show that the pamphlet and in particular the two passages do amount to statements of the nature the publication of which become a corrupt practice under Section 123(4), and on the other, the respondent No. 1 has tried to support the Tribunal's order by challenging the finding of his consent and personal responsibility for the publication.
4. Point No. 1 : In addition he also urged that the appeal is time barred. The position taken is that it was wrong to have admitted the appeal on the assumption that the appellant was entitled to exclude for the purposes of limitation the 'time requisite for obtaining a copy of ..... the order appealed from'. This, because Section 12 of the Limitation Act is really inapplicable to an appeal under Section 116A of the Representation of the People Act, both in its own terms, and by the operation of Section 29 of that Act. The argument is the most unusual one; but as it has been made with considerable seriousness and ingenuity it has to be examined at some length. Section 116A was enacted by the Amendment Act of 1956, the operative provision being;
'An appeal shall lie from every 'order' made by the tribunal under Sections 98 or 99 ..... The High Courtshall ..... have the same powers, jurisdiction andauthority and follow the same procedure ..... as itthe appeal were an appeal from an original decree passed by a Civil Court.'
The first point to note is that the appeal is from the 'order' of the Tribunal. Actually, the words 'order' and 'decision' (and even 'judgment' except in one context) are used more or less synonymously to signify the final word of a Tribunal or Court usually accompanied by its reasons. In a particular class of cases, that is, suits, the word 'judgment' is used in a special sense when it is distinguished from a decree. Sections 98 and 99 speak of the Tribunal's decision as an order. For example, 98 runs -
'Decision of the tribunal -- At the conclusion of thetrial ..... the tribunal shall make an order...........'
Section 99 --
'Other orders to be made by the tribunal -- At the time of making an 'order' under Section 98, the tribunal shall also make an order .....'
There is, therefore, no doubt that this appeal is from an 'order' if we choose to use the word as a term or (of ?) art. But it shall also be treated in the same manner inwhich the High Court will treat what was called a first appeal; in other words, 'inter alia', insist upon the copy of the order being filed with the memorandum. This automatically attracts Section12(2) of the Limitation Act which speaks of 'an appeal from a decree, sentence or order', and 'the time requisite for obtaining a copy of the same'. There is a Sub-section (3) to Section 12 on which the respondent has tried to pin his argument, though it is difficult to see how it helps him to show that Section 12 is inapplicable to this class of appeals. Sub-section (2) is crear and unambiguous and Sub-section (3) would only come in which we are dealing with a judgment 'in addition to a decree'. Obviously, when disposing of a civil suit, tha Court would deliver a judgment and pass a decree. Under Section 12 the time requisite tor obtaining a copy ot the decree appealed from would be excluded while under Sub-section (3) that requisite for obtaining a copy of the judgment concerned would also be excluded. In other cases judgment would be a general term and so far as they are concerned, Sub-section (3) might become superfluous. The line taken seems to be that the appeal under Section 116A of the Representation of the People Act is not one from a decree, sentence or order and as such the section does not apply. What, however, stares on the face is that the word 'order' has been used throughout in all the sections concerned even though the heading of Section 98 is 'decision'.
5. The respondent thereupon switches over to Section 29 of the Limitation Act and urges that we are dealing with an appeal under a special statute, which is perfectly true, and that the operation of Sections 4, 8 to 18 of the Limitation Act has been expressly excluded, which is altogether wrong, there being no exclusion whatsoever either in Section 116A , or in any other Section of the Representation of the People Act of 1951. The rulings cited by the respondent indicate that he is really thinking of cases where the principles of limitation applicable are contained in the special enactments themselves, and Courts have not got to go outside them.
For example, in Fateial v. Mt. Siti, AIR 1926 Nag 126, it was held that Section 14 of the Limitation Act had no application to a proceeding under Section 77 of the Registration Act. This is perfectly true because the latter statute contains ail the principles of limitation applicable.
Similarly, in the case reported in in the matter of Gulabchand Chotey Lal, AIR 1931 All 673, they were dealing with a proceeding under Section 66 (3) of the Income-tax Act.
The next Section 67 (A) contains the rule of limitation and does not refer to the exclusion of the time requisite for obtaining copy. A similar position arose in the case reported in Janardan v. Hiralal, 1957 MPLJ 170 (Nag). In all these cases the special statute itself contains the principles of limitation that are applicable; so that when they do not refer to the exclusion of the time requisite for obtaining copy, it can be contended successfully that Section 12 should not be brought in.
In the instant case, there is no self-contained code of Limitation in the Representation of the People Act of 1951. On the contrary, the very scheme and wording of Section 116A equates the election appeal to an appeal from an original decree passed by a Civil Court. For these reasons, it is obvious that the appellant is entitled to get the exclusion of the time taken in obtaining the copy after which admitted (sic) the appeal falls in time.
6. Point No. 2: Coming to the merits of the appeal,the reseondent has tried to support the decision of the Tribunal on an additional ground. The Tribunal has found that the successful candidate had himself published (by distribution) the leaflet (Ann. 1), and has held further that he had consented to its publication by his agents and others. The respondent, however, has by the examination of the entire evidence, tried to show that there was no consent altogether and if anybody did at all publish the pamphlet at the relevant time in the constituency, they were either not the agents of the respondent No. 1, or even if they could be called agents, there was no consent; in fact, respondent No. 1 has asserted on oath that he did not know of the existence of such a pamphlet till he got a copy along with the notice of the petition.
7-10.(His Lordship discussed the evidence and proceeded:) Therefore, the Tribunal was quite correct in arriving at the decision that this leaflet had been published by the respondent himself and also by his agents with his full consent.
11. Both before the Tribunal and in this Court the parties have argued about the purport of the word 'agent' in Sections 100(1)(b) and 123(4). What the Tribunal says is correct in that regard; but it is unnecessary to elaborate on it because we have evidence that the respondent was himself handing out the leaflets. No doubt consent on many occasions has to be inferred. Especially where it is. for doing something that might lead the consentor into inconvenience, that is, where it is conspiratorial in a gene. ral sense, direct evidence would not be possible. But here the position is so simple that we need not go into any further discussion. The respondent himself has been publishing it; the handing out by others of the copies of the same leaflets out of a total stock of 25000 by his agents and others all over the place was part of a system. It cannot be argued in the face of the respondent's own doings, the others were overzealous partisans or treacherous opponents acting without his consent and even knowledge, it is one system and the respondent's hand is obvious.
12. Point No. 3 : There is broad similarity between the problems posed by the two passages; I shall consider the more outrageous one first, dealing, apropos of it, with the common questions as well. The Tribunal has been persuaded to hold that the two passages referred to in the beginning are not false, or are at least not believed to be false or .are not in relation to the personal character and conduct of the opposing candidate, in this case, Dr. Khubchand Baghel. I shall examine the findings at the proper place, but it would be convenient to set out the factual background of the allegations.
13. In this connection, the earlier political activities of Baghel have been referred to. He started years ago as a kind of political disciple of the late Ravishanker Shukla, father of Vidyacharan. He was with him when he became Chief Minister of Madhya Pradesh in 1946 or 1947 and held office as 'Parliamentary Secretary' in the Medical Department of which the Minister in charge was one Dr. Hasan of whom more later apropos of the second allegation, Owing to differences with the cabinet Dr. Hasan resigned carrying with him certain other members including Dr. Baghet. There was a no-confidence motion later on against Ravishankar Shukle which among others was supported by both Hasan and Baghel. Soon after Baghel joined what was in those days called the K.M.P. Party and worked against the official Congress party. This again merged with the Socialist Party sometime in 1963 after which a party convention or conference was held in Betul in the Madhya Pradesh. As delegates were to come from outside, there was constituted a reception committee of which even according to the respondent the president was not the petitioner as alleged in the leaflet, but one Indradutta Shukla, who has conveniently asked his brother Brijvallabh Shukla to deputise for him in the matter of giving evidence before the tribunal (E.W. 7). Possibly some money was collected either as donation or as party membership fee, and spent in housing and entertaining the delegates of whom Brijvallabh says there were about four thousands, in unverifiable but not impossible figure, considering that they were coming from all over the country.
Now the writer of the pamphlet asserts, firstly, that Dr. Khubchand Baghel was the 'addhyaksha', that is chairman of the reception committee which is of course false; nor is suggested in evidence that this was a mistake for another office. Secondly, in that capacity he was answerable to the reception committee for a sum of Rs. 16,000-00 subscription on which there is not an lota of evidence, in principle, the president or the designated office-bearers of a committee would be answerable to that body for the money it places in his hands; but then is tittle acceptable evidence evert of ordinary membership, and none absolutely of office or entrustment. The next piece of factual assertion is that the committee went on demanding accounts and Dr. Khubchand Baghel failed to do so; nobody says or suggests that there was any such demand. Then comes the final stab -- 'After all, where has the money gone?' (Akhir vah rakam gai kahan?'), which is only another, (and a poisonous) way of saying that the whole or part of it has gone into the pockets of Khubchand Baghel.
14. It should be noted to begin with that it cannot at all be argued, as it is done on behalf of the respondent, that this is only a statement 'that the party organizing the convention has failed to publish the accounts for the benefit of public'. Quite on the contrary, the statement is that the committee went on asking for the accounts and Khubchand Baghel just refused or failed to render it, thereby leading to the inference that the money -- the whole or part of it -- been misappropriated by him. For another, the Tribunal dismisses this allegation on the main ground that --
'In the context of evidence and circumstances this merely means and suggests that the statement account of Rs. 16,000-00 was not rendered by the petitioner and there was a doubt as to what happened to the money though in fact the whole sum must have been spent.'
It is really difficult to make sense out of this, because the pamphlet pointedly asserts that Baghel was the president of the committee, having taken Rs. 16,000-00 for the purpose of the conference, and having failed to render account in spite of demands by that body, has done something with the money. 'Where has the money gone' in this context means 'it has gone into Baghel's pocket'. This is exactly how the witnesses who read the pamphlet state that they understood it. The real point is, even a child can say that the statement means nothing more and nothing less than that Baghel had misappropriated part or whole of the amount.
15. The petitioner has taken oath and stated that he attended the convention but was not a member of the reception committee; in other words he was a delegate. Of course, he was not the president as the respondent himself has adduced evidence that it was somebody else --Indradutta Shukla. In keeping with the respondent's 'modus operandi' in these proceedings Indradutta Shukla has notbeen called; possibly, having been sounded or summoned he had condescended to send his brother Brijvallabh Shukla who knows next to nothing about the financial side of the convention and deposes broadly that he was looking after the fooding of delegates -- about 4000 in number, Since he says he was a member of a sub-committee we can assume that he means that he was on the reception committee as well. But his ability to recollect who the other members were is very doubtful. He has no papers and was not in active participation of the general affairs of that body. Further, with the president Indradutta himselt in the respondent's pocket, it is strange that he should not be examined but should send his brother to deputise for him. Thus, this witness's vague assertion that Dr. Khubchand Baghel was a member of the reception committee does not at all impress me. In fact, one altogether fails to understand how in the circumstances the Tribunal thought that this was 'an important witness'. Quite on the contrary, it should have drawn an inference for the failure ol the respondent to call indradutta personally.
16. The petitioner no doubt attended the conference at a delegate. Brijvallabh says he was a 'prominent' member of the party and the petitioner calls himself 'humble', which is all a matter of words without any significance. Another delegate Vinayak Sakharam Dandekar (P. W. 23) who came from Nagpur was subsequently elected to be the president of the meeting and has been called as a witness.
He speaks generally that sometime later a booklet was issued containing among other things, a statement of accounts of the conference. The point to note is that neither Dandekar -- a delegate from Nagpur 100 miles away nor Khubchand Baghel -- another delegate from about 300 or 400 miles distance, is ejected to know or take interest in the monetary affairs of the hosts, namely, the reception committee; for a delegate to pry into matters connected with the collection of subscription and arrangement for hospitality and the charges for accommodation and food and the like made by the hosts is improper; it does not usually happen. Thus, the inability of Dandekar as well as Khubchand Baghel to give full details of the membership and the activities of the host committee after about 9 years is quite natural.
It might even happen that a delegate from one corner of the State or country wrongly bolieved that another from another place is really a host that is, a member of the reception committee or whether Khubcnand Baghel was a member of the reception committee we have only the vague statement of Brijvallabh; the competent witness, his brother, admittedly the president, has of his will or at the Instance of the respondent, kept back. Dandekar who was only a delegate might easily commit a mistake as to who was or was not a member of the reception committee though a similar mistake is not possible on the part of the president or an important office-bearer of the host committee.
17. Even Brijvallabh does not say that Khubchand Baghel held any office generally speaking or one involving the handling of the money:
'I was in the food arrangement sub-committee. I was not keeping any accounts. Dr. Baghel might have kept accounts as he was a prominent person.'
Frankly, one is unable to understand what exactly is meant by saying that so and so was 'a prominent person', which is a matter of opinion, and therefore he might have kept accounts. Prominent persons do not keep accountsof each and every committee; but one entrusted with money is expected to keep it for the satisfaction of the person entrusting it. There is not a particle of evidence to that effect. No doubt, Indradutta Shukla had a responsibility and by cleverly keeping behind and sending his brother to deputise for him he creates the impression that if accounts had been withheld, it was by him or somebody with his connivance. Thus, the vague and feeble statements made by Brijvaliabh are really worse than useless as they might be a smokescreen for the doings of Indradutta Shukla himself.
18. The third point alleged is that the committee was asking Dr. Baghel to render accounts. Certainly, if the committee had entrusted money to Dr. Baghel it must have asked for accounts either as a body or more probably, through its mouth-piece, the president or the convener or some other such office-holder. Neither Brijvaliabh not anybody else has a word to say of the demand of accounts by anybody connected with the committee or anybody on the face of earth whosoever. Still it was alleged in the leaflet that Khubchand Baghel as president was responsible for accounts, and having failed to render it on repeated demands exposed himself to the criticism that he had mis-appropriated part or whole of it. Thus, a close examination of all the evidence shows that the respondent who had consented to the publication of this imputation does not have a particle of evidence on any of the ingredients.
19. Examining this matter, the tribunal starts by inferring that considerable amounts must have been collected and spent, and thinks that Rs. 16,000.00 is a likely figure because 4000 men are said to have been fed by Brijvaliabh and his associates for four days. The arithmetic is rot self-evident and at all events Brijvaliabh does not say that. Certainly, whenever the host committee arranges for a conference it must have provided some money either out of party funds, or by a special subscription or donations. Of course, a subscription on the scale of Rs, 15.00 per member as suggested by Brijvaliabh cannot account for it for the very simple reason that it would have required more than 1000 members to collect this amount.
Money certainly was brought in and spent by the hosts. But it is difficult to understand that because the hosts collected the money and spent it and because Vinayak Sakha ram Dandekar and Dr. Khubchand Baghel, delegates from distant places are unable to answer questions about what the host committee did, which was of course not their concern, one can come to this inference :
'The further statement that Dr. Khubchand Baghel did not render accounts of this sum to the reception committee in spite of demands also appears to be correct or at any rate a reasonable man would in the circumstances believe to be true and correct'.
I have no hesitation in holding that this finding is altogether without any evidentiary basis and is definitely perverse. Thus, it is clear that without the least factual basis the writer of the leaflet has charged the petitioner --rival candidate in the Parliamentary constituency -- of misappropriating the funds collected by him or put in his charge as an office-bearer of the host committee and of defying the committee itself by failing to render accounts.
20. Another argument now made is that these allegations might after all be ones about the political character or political conduct and not of a personal character. Therefore, even if there was no justification, still it is not a personal imputation by which the elector would beginto entertain a lower opinion of the moral qualities of the candidate and thereby withhold his vote and prefer the rival.
It is difficult to agree. I shall presently examine the theories propounded by the respondent; but it is clear that to charge a person with misappropriating monies entrusted to him is a plain allegation of moral turpitude. If in one sentence the man is described as a political turncoat and a defalcator of entrusted money, it does not cease to be allegation against the personal character and conduct. The first part that he is a turncoat may be in regard to the political conduct; but the separate second allegation that he has put into his own pocket monies left with him on trust for a particular purpose is a straightforward allegation against personal character and one of moral turpitude of a serious nature. The witnesses have also stated that reading this pamphlet they understood the passage to meas just what I have set out. But it is too obvious to call for further discussion. It is also perfectly clear that to charge the opposing candidate with being a defalcator of public monies is to lower him in the eyes of the electors and as such reasonably calculated to prejudice the prospects of his election.
21. In the foregoing discussion I have dealt with the relevant questions as ones of pure fact to be answered with due regard to the normal purport of the words and the foreseeable reaction of the electors. All the same, a very considerable quantity of theory has been propounded and considerable citation made of election case decisions. Apropos of this as well as the next heading in this as in other cases, it is unnecessary and, without swelling the judgment to tiresome lengths, impossible to set out every one of the passages read out at the bar; but the more important ones are indicated with special reference to general principles.
Broadly speaking, they are divisible into four themes --first, those cautioning the tribunals, original and appellate especially, from interfering lightly with the declared results of any election. Secondly, those dealing with the burden of proof for establishing that the successful candidate haft committed corrupt practices. Thirdly, with special reference to the statement of facts under Section 123(4) the extent of the deviation in good faith from absolute truth and correctness permitted by the Courts. And finally, the distinction to be drawn between imputations about personal character and conduct on the one hand and those that are political on the other. It is not to be forgotten that all these are ultimately issues of fact only; still, certain general criteria have been laid down in appreciating the effect of the factual evidence.
22. It is altogether beyond question that no tribunal or appellate court should in the absence of very strong reasons interfere with the results of any election. This is a general principle in regard to all cases, but it is particularly so when we are dealing with an election where votes of thousands of electors are recorded and they have exercised their choice, which is presumed to be free and fair. Consequently, there should be very strong reasons why a tribunal or a court which does not see or hear any of the electors and ascertain the reasons of their choice should disturb the results. On public grounds also a system of elections has come to stay in ours as in every really democratic country. Like all human systems it does not and cannot be expected to function without some joits here and there and the falling away at places from the ideals of democracy. Motives are mixed and candidates areelectors like all human beings are far from perfect. The legislature therefore has empowered interference only in a very limited combination of specified circumstances which have to be esfablished by the party that seeks the interference. This principle has been referred to in nearly every Important decision among which those set out by 'the Tribunal are a fair sample.
In Maganlal v. Hari Vishnu, 15 Ele. L. R. 205 : (AIR 1960 Madh Pra 362) it was pointed out that the success of the winning candidate should not be lightly interfered with, tut on the other hand, if it is established that he is guilty of a corrupt practice, then it becomes the duty of the tribunal and the court to look into the nature of the success and in appropriate cases declare the election void. Another way of stating the same is broadly to equate an election case to a criminal or quasi-criminal proceeding against the successful candidate with the obvious implication that clear and unequivocal proof is required before any interference cou'Id be justified.
In Jamuna Prasad Singh v. Ramniuas, 18 Ele LR 145: (AIR 1959 Madh Pra 226), it was said that such cases were of a quasi criminal nature and the successful candidate would be deemed to have been properly elected till the petitioner establishes his case by good evidence:
'An Appellate Court should be slow to interfere with a finding unless the appellant can demonstrate that the finding is erroneous. By merely pointing out that a posible contrary view of the evidence could be taken, the appellant does not discharge the burden which he bears as an appellant'.
There are similar dicta in Sarla Devi v. Birendra Singh, 20 Ele LR 275 : (AIR 1961 Madh Pra 127), as well as by all the other Courts. At times the analogy with a criminal proceeding has been carried somewhat too far, but in principle that approach is a sound one.
23. This automatically puts on the petitioner, or the appellant as the case may be, what is usually called the burden of proof, Naturally, therefore we have quite a number of decisions where this aspect of the matter has been discussed at some length. Such discussions are very instructive and the general principles, of course, unexceptionable. But quite often they get involved into some confusion which have to be carefully avoided. Again, cases dc not usually turn on the burden of proof, for the very simple reason that the parties concerned almost always lead evidence on all crucial issues, and there is very rarely if ever, a situation where the balance is so even that the decision depends upon the burden. At any rate, the instant case is not one. Another source of confusion is the fact that the phrase 'burden of proof' has been used in two senses which are apparently similar but include a definite difference. The burden mentioned in Section 101 of the Evidence Act is what I would call the genera! burden of proof or 'burden of proof properly so called', which never shifts. On the other hand, what is by analogy called the butden of proof in the following sections relates in practice to the 'manner' of proving a particular fact, and by its very nature moves from side to side like the ball in a tennis court. A good deal again would depend in this regard upon whether the fact which is sought to be proved and is 'logically' negative or positive. In a sense, the burden remains the same, but because of the difference in the method of proving the particular fact it appears that the burden has fallen on the other side. In view of loose and popular usage of words this distinction is quite often ignored. A third source of confusion is inherent in theshifting of the second type of the burden of proof, the burden improperly so called.
24. Bearing these in mind, one can reconcile the apparent conflict which has been pointed out between the rulings -- Bhimrao v. Ankush Rao, 22 Ele LR 385 (Bom) and on the other, the Supreme Court decision in T. K. Gangi Reddy v. M. C. Anjaneya Reddy, 22 Ele LR 261 (SC). Certainly, if there is a conflict, the latter prevails. But as it happens, there is really none. In the Bombay case -
'Even though Section 123(4) is so worded as to throw on the election petitioner the burden of showing that certain allegations made against him are false, this is only a general provision. Where the allegation concerns the character of a person, the ordinary presumption of law that a person must be presumed to be innocent will apply and the burden would be upon the person who has made defamatory allegations against the character of another to prove that they are true.
If any part of a statement is demonstrably false, the dissemination of that statement would fall within the definition of corrupt practice in Section 123(4). The mere fact that there was a substratum of truth or that the statement was partly true is not enough to take the case out of Section 123(4).
While the petitioner-appellant has relied upon this, the respondent has criticised it by saying that this puts tha burden on the wrong party. Actually it does nothing of that sort. When the respondent, as in this case makes a statement that the petitioner has done this or that act of moral turpitude, the burden is no doubt on the petitioner to prove that he has not committed it, and the statement is not true and has been made with knowledge that it is false. But to prove something that is logically negative, the petitioner is only to begin by taking the oath and asserting that he has not done it. Thereupon it fails to the person making these allegations to confront him and show that he has done it, or that he has surrounded himself with circumstances that put him on explanation. In the latter event it becomes now the turn of the petitioner to give his explanation or rebut. Thus the 'burden' so called as it were moves from side to side; all the time, the initial burden of establishing the case, that is, the burden under Section 101 of the Evidence Act lies on the petitioner. It may be that there is a burden properly so called of proving a statement that is logically negative; but the manner of proving it is a mere denial. A person can prove that he has not killed somebody else and has not thrown the corpse into the river by merely asserting that he has not done so. Now it is for the person alleging to confront him with the facts of a positive nature whereupon the former has to explain or rebut. All this is clear; but at times loose usage creates an apparent confusion which can however be cleared by examining the matter properly.
In Gangi Reddy's case, 22 Ele LR 261 (SC) (supra), this aspect of the matter has been neatly explained by the Supreme Court:
'Burden of proof has two distinct meanings, viz., (i) the burden of proof as a matter of law and pleading, and (ii) the burden of proof as a matter of evidence. Section 101 of the Evidence Act deals with the former and Section 102 with the latter. The first remains constant and! the second shifts.
In an election petition the burden of proving that certain statements alleged to have been published by the respondent were false and that the respondent believedthem to be false or did not believe them to be true is in the first sense, on the petitioner, but if the petitioner examines himself and states that he has not committed the alleged acts and proves circumstances indicating a motive on the part of the respondent to make false allegations against him, the Court is entitled to accept his evidence, and if it does so, the onus would shift to the respondent to prove the circumstances if any to dislodge the assertions made by the petitioner; and if the respondent has failed to put before the Court any facts to establish either tnat the petitioner did. In fact commit the alleged acts of violence in the past or to give any other circumstances which made him 'bona fide' believe that he was so guilty the Court is entitled to say that the burden of proving the necessary facts had been discharged by the petitioner.'
There is really no conflict between the Bombay ruling and that of the Supreme Court; but the approach made here is naturally in terms of the latter decision. It is unnecessary to set out the other rulings in this connection.
25. It has been urged on behalf of the responded that Section 123(4) does not require that the statement made must be accurate to the letter. A certain amount of looseness is permitted, if the alleger is acting in good faith. It is for the petitioner to show not only that the allegation is factually incorrect, but also that the person making it has the intention of prejudicing the petitioner's interest in the election, and knows it to be false and does not believe it to be true. If by this is meant that the respondent need only show that in a wide view the statement is correct or that a man of reasonable intelligence and sense of fairplay would have believed it even though it is incorrect in this or that particular, there could be no dissent. Ultimately it is a Question, on the one hand of good faith and due diligence and on the other of the extent of departure from absolute correctness. The extent of excusable variation would naturally depend upon the circumstances of the case and no cast-iron rule can be laid down.
In the instant case, for example, nobody would have required that the allegation should be hundred per cent correct. If the petitioner had. been an office-bearer of the host committee and not necessarily the addhyaksha, nobody would take the respondent to task for that descripticn. But he should be at least some office-bearer. In this case he is not and the evidence that he was a member of the committee is itself quite shadowy. Similarly, nobody would blame the respondent if the amount really involved or suggested is less than Rs. 16000-00; but there should be an amount for which the petitioner was in some capacity answerable to the committee. Here again, the factual position is not so. If, for example, the respondent alleges thai the reception committee demanded accounts 'many times', but succeeds in proving that the president or one or the other of the members asked for it just once, still he could be excused. But if on every single element the variation is complete, then the benefit of a wide and charitable interpretation of the wording of the section cannot be claimed.
26. While at this, the respondent has cited some rulings, the most remarkable of which is the one reported in P. Krishnan Sukumaran v. K. Joseph, 14 Ele LR 313 : (AIR 1959 Kerala 120). In this case there were two gentlemen, one named S. K. Pottekkat and the other called Sukumaran Pottekkat, both practising journalism, though there was a difference in the degree of popularity. Probably the activities of the one were in good faith, but the other thought that he was playing a 'treacherous trick' in the electionand wanted to expose him. Accordingly he wrote a powerful article in a magazine the contents of which were not factually correct. All the same, in the special circumstances the maker of the allegations was excused, because the coincidence was such that it could be said that a man of reasonable intelligence and sense of fairness was likely to make this mistake honestly. Such cases are of course rare, but variations are always permitted provided there is something basically true and the variations are such as would be made by a person of normal intelligence and decency.
But where the statements are 'demonstrably false' as stated in the Bombay case, 22 Ele LR 385 (Bom) (supra), even a substratum of truth cannot be an excuse. In this case there is altogether no trace ef truth in the allegation; it is a mass of brazen falsehoods, and not an excusable departure.
27. Finally, it has been urged in all seriousness that after all this allegation that Dr. Khubchand Baghel put into his pocket the money belonging to the host committee is one not relating to the personal character but bearing on the political conduct. This argument need only to be mentioned to be rejected; but here again there has been a lengthy argument with citations here and there which, however, have no application. A distinction is always made between allegations bearing on the personal character, let us say, imputing moral turpitude and those relating to the political activity. The latter again, however violently worded and however ill-mannered, are not covered by Section 123(4), whereas the former however sugar-coated with reference to the politics and parties is hit by that section because it is moral mudslinging. Nor need the line be drawn on a theoretical basis so as to cover all possible cases. Such cast iron definitions are impossible and the quest for them is a sheer waste of time.
In the vast majority of cases (and at all events in the instant one) there is no difficulty at all as the allegations lie far from the borderland, where conceivably an allegation about the personal character might shade into one about political conduct. The Tribunal has said that in view of what has been narrated elsewhere in the pamphlet the whole thing is an attack on the party, that is, the P. S. Party with the hut symbol 'jhopdi chhap' and the reference to personal character is only incidental and. subsidiary. This is an altogether wrong approach. No doubt, the first three paragraphs are of the nature of a tirade against the P. S. Party. It is criticised with reference to certain individuals with whom we are not concerned, and certain classes, seth-sahukars and zamindars and the like 'and the new category which the writer describes as the 'brotherhood of turncoats' to be more precise, of 'turncaps' (topi-badal jammat). To have called Khubchand Baghel as 'topi-badal' or turncoat may be indecent and bad-mannered; but nobody says that it is a statement of fact that becomes corrupt practice under Section 123(4). But what is stated is that besides being a turncoat he is a person who coolly pockets money entrusted to him, without rendering accounts, and who makes allegations and backs out when he gets an opportunity to prove them. (The merits of the latter will be examined but for our present discussion both allegations are on the same footing). They might have been done in course of political activities; but they are not allegations of a political character. To say that so and so is a turncoat and a libeller who will not prove his allegations when there is art opportunity is really to make a double attack, the first being a political one and the second a personal one. Similarly, to call one an opportunist and also a defalcator of conference money is a two-edged sword the first edge being political and the second personal.
28. Among the rulings cited, we have Kanhaiyalal v. Shyam Sunder, 15 Ele LR 284 (MP) where the allegations though false were considered not to amount to reflections on personal character or conduct; but then the allegations were that the party P. Section P. to which the candidate belonged, had threatened to shoot the prime minister and had come to an understanding with the Muslim League. They were no doubt false but they had nothing to do with the personal character of the candidate. One has only to read them side by side with the allegations we are concerned with to see the basic difference. The same problem has been addressed at some length in the Bombay ruling Sudhir Laxman v. S. A. Dange, 17 Ele LR 373 : (AIR 1960 Bom 249):
'Adverse criticism however severe, however undignified or ill-mannered, however regrettable it might be in the interests of purity and decency of public life, in relation to the political views, position, reputation or action of a candidate, would not bring it within the mischief of the statute ..... it is only when the person beneath thepolitician is sought to be assailed and his honour, integrity and veracity is challenged and such a statement is false that it could be said that a false statement of fact about his personal character and conduct has been made; and once it is established that such a statement was made, the question whether there was malice or not is immaterial.'
This again came up for an elaborate discussion in the Supreme Court decision reported in Inder Lal v. Lal Singh, AIR 1962 SC 1156, which for our purposes can be taken to be the last word. There the impossibility of a distinct fine between the two types of allegations is accepted; but it is pointed out that in the vast majority of cases we can easily ascertain whether the allegation is of one kind or the other. Besides, merely asserting that something was done by the candidate as a political personality does not take it out of the category of the personal allegation. The content and the effect of the allegations have to be examined. On facts also this case was of interest, further, because several headings were found in the pamphlet concerned under which the different types of allegations common in election squabbles could be brought. For example, to allege that the candidate was an enemy of democracy, however false or foolish would not be an allegation of personal conduct. On the contrary, to say that he has been buying his opponents with money would be an allegation of bribery.
It is noteworthy that most of the allegations relating to political character would involve a considerable element of opinion, whereas those in regard to personal character may be almost entirely factual. Thus, if one bears in mind the principles laid down in the Supreme Court ruling as well as in a large number of other rulings of the different High Courts, there would be no difficulty in the vast majority of cases. Examples of personal allegations are found in Gangi Reddy's case, 22 E!e LR 261 (SC) (supra):
'A statement which attributes acts of violence (e. g., instigation of murder, throwing of stones at public meetings) to a candidate even though such acts are done during his political career is a statement relating to the personal character and conduct of the candidate, and if such statements are published a few days before the polling, such statements must be held to be reasonably calculated to prejudice the prospects of that candidate's election, and the candidate publishing such statement would be guilty of acorrupt practice within the meaning of Section 123(4) of the Representation of the People Act.'
On the other hand, an allegation that gangs of dacoits are canvassing for a particular candidate may not be an allegation against personal character and conduct because it has nothing to do with the conduct of the 'candidate' but involves the motives of others. Reported cases contain several instances where the allegations were held to bet political and not personal; but as the foregoing discussion indicates the distinction clearly, it is unnecessary to enlarge on this topic. To conclude, an allegation that the petitioner had committed defalcation of the money left with him without accounting for it is certainly one against his personal character and conduct, even though elsewhere in the same leaflet allegations of political nature are made. Point No. 4:
29. This is really the paragraph earlier than the one already considered under heading No. 3 as the more serious allegation and as one in connection with which the case-law could be more fully considered. The finding already given in regard to heading No. 3 is sufficient to establish that the corrupt practice set out in Section 123(4) has been committed by the respondent No. 1. All the same, the present heading has to be examined independently. It contains the following elements. First, that Dr. Khubchand Baghel made 'filthy and false' allegations against the honourable and respected leader, the late Ravishankar Shukla, father of Vidyacharan, and Chief Minister of Madhya Pradesh from the commencement of independence till his passing away in 1956. Secondly, these allegations appeared from time to time in the communist newspaper of Bombay named 'Blitz'. It has to be noted that the writer is not speaking of allegations made by Baghe! at some time in the past or some matter of ancient history, but allegations which were printed from time to time in the 'Blitz', (jhute aur gande arop lagaye jo samay samay par Bambai ke communist akhbar me chhape gaye). Thirdly, there was a suit for damages (the only one concerned was by Vidyacharan Shukla and three of his brothers against 'Blitz', its Delhi correspondent and Dr. Ram Manohar Lohiya) in course of which an opportunity offered itself to Baghel to substantiate these allegations. Fourthly, instead of availing of it and proving his statements like an honest and self-respecting man, Baghel backed out with the result that the newspaper 'Blitz' which has printed his allegations had to make an unconditional public apology for printing such 'false and misleading or deceptive (dhokebaj) charges'. Finally, that Baghel is a hardened (adat se lachar) maker of false charges and owes his political status to such baseless things. The last element of course includes a bit of rhetoric without any independent significance, but the earlier ones make out that this person is an irresponsible scandal-monger and is besides a moral coward who would not care to utilize an opportunity that affords itself to substantiate what he says, and as such is a man of low moral quality. Anybody who reads would think lowly of him as a person apart from his political activity.
It should be remembered that the leaflet does not say merely that Baghe! made allegations against Ravishankar and those 'of the same kind' were printed in the 'Blitz'. It sneaks of 'Baghel's allegations which were printed in the 'Blitz' '. Therefore, the gloss sought to be placed on the wording by the respondent cannot at all be accepted.
30. The Tribunal discusses the matter at some length; but finds that -
'The objectionable statements in the last but one paragraph have not been found to be false. That would appear to be true or substantially true. At any rate, any reason-able man including the first respondent would believe that these statements were true and they were not false.'
As with the other charge (heading 3) this is no definite finding even; there are two or three alternatives by showing any of which the respondent can escape liability. But then the tribunal should find clearly which of the alternatives it is inclined to accept. I therefore propose to examine the matter at some length, especially because in this regard there has been quite a lot of wandering evidence and diffuse argument. The background is that sometime after his exit from the Congress Baghel criticised the conduct of Ravishankar Shukla; that he did in writing an open questionnaire obviously published sometime in October or November 1956, on the eve of the reorganization; a copy of it was shown to Baghel during his cross-examination when he admitted that he had issued a public letter to about the same effect, entitled 'Will Pandit Ravishankar Shukla reply?' (Pages 181 to 185 of the paper book). It starts with a preamble, and sets out 27 specific allegations charging Ravishankar with acts of jobbery and of using his official position and power to enrich the members of his family. The purport is that everything, from fishery rights to manganese mineral concessions, that came out of the Madhya Pradesh Government, was presented to one or other of Ravishankar Shukla's sons. The quetlonnaire has a very sad ring; but Dr. Baghel unlike the usual singer in the 'corruption' chorus in our country, makes specific allegations that could be proved, disproved or explained; he obviously challenges a criminal prosecution or a suit for damages. Further, he writes it in the life-time of Ravishankar and tails upon him personally to give an explanation. Strangely enough, the latter does not seem to have (as far as this record shows) either replied to the allegations, or complained or sued Baghel, or called upon him to withdraw the allegations under threat of legal action. He seems just to have put on a high pontifical air and done nothing, with the possible result which is only natural, that whoever read the questionnaire came to believe that the allegations were true, and if Ravishankar Shukla's family did not make crores of rupees by corruption, it must at least have made lakhs.
31. I may not be understood to approve of the widespread habit among our politicians of making allegations of corruption. Wild generalisations are no doubt indicative of a serious moral failing, and if anything, calculated to make things worse by covering everybody good and bad alike with a uniform layer of black mud. But here the allegations are specific with chapter, verse and date. Nor do I suggest that whenever somebody whispers a word of criticism, the Chief Minister or the person in power should forthwith rush to the law Courts; but where the charges are enormous as in this case, and the Chief Minister openly charged and confronted, fails to lift a finger, he has naturally to take the consequence of people coming to believe that after all there is something in them. Filthy these allegations certainly are, if by it is meant what in popular language will be called 'a reeking scandal'. But whether they are false or not, one cannot be sure, because Ravishankar in his lifetime (or as for that matter his sons and supporters after It) did not make the least attempt to disprove them. Certainly, they for their part are 'entitled to form the opinion that the allegations were false, and Ravishankar far from being corrupt money-maker he was described to be, was a saintly politician.
Be that as it may, the respondent has succeeded in his attempt to mislead the Tribunal, that the charges in thisleaflet (Annexure 1) had something to do with this open letter by Baghel. Actually it is not so. The leaflet does not speak of any allegations but the 'allegations which appeared in 'Blitz' from time to time'. There is not a single article or news item of 'Blitz' brought before the Tribunal which either expressly or by implication originated from Baghel. In fact, before us it is urged on behalf of the respondent, not that Baghel's allegations were printed in the 'Blitz', but 'allegations of the same genus or of a similar nature' were printed, and therefore the writer was referring to this open lette'r to Shukla. This is certainly. doing great violence to the language because the leaflet says 'filthy and false allegations which appeared in the 'Blitz' '. As far as Baghel is concerned, he stopped making them after Ravishankar's death, I am not concerned with the ethics of this conduct; it might even be that Baghel did so because he thought that there was no tree flogging a dead horse. But the fact of the matter is that there is no charge or allegation by Baghel that was printed in the Blitz nor as for that matter any by him, at about the time the news item appeared in the 'Blitz' and was the subject-matter of the suit referred to in the leaflet.
32. That came about in the following manner. Some time after Ravishankar's death Dr. Ram Manohar Lohiya gave a lecture somewhere in Delhi alleging 'inter alia' that Ravishankar had been a corrupt man and had by abuse of his powers amassed for his sons a quantity of property of various kinds totalling in value to one crore (or as stated in another place, 90 lakhs). The exact figure is not of much consequence, but it is estronomical. The 'Blitz' printed a news item containing a gist of Lohiya's speech, and also material said to have been provided by 'others', among whom was Dr. Hasan already referred to earlier in this judgment. But there again there is not a syllable about Baghel either by name or by description. This was in July 1957, about 7 or 8 months after Ravishankar's death and some months later still than Baghel's open letter which was during his lifetime. In 1958 Vidyacharan and three more sons of Ravishankar filed a suit for damages against Karanjia --Editor of 'Blitz', Raghavan its Delhi correspondent -- and Dr, Lohiya. This suit seems to have dragged on as suits usually, do in our Courts, till about the beginning of 1962, the 'Blitz' thought proper that it should, apologise, and accordingly published a becoming apology in its issue dated 26th January 1962. This being accepted, the Shuklas dropped the suit against defendants 1 and 2. In August 1962 the suit against Lohiya himself was dismissed on the finding that a dead person could not be defamed. We are here not concerned either with the ethical propriety of the allegations made by Lohiya, and printed in the 'Blitz', nor with the legal correctness of the Civil Court's decision, All that we are concerned with is that admittedly this is the suit described in the leaflet as 'manhani ka mukadama'.
33. it is seriously alleged that this 'manhani ka mukadama' afforded an opportunity to Baghel to substantiate the charges which he had made and which the 'Blitz' (sic) and, for another, Baghe! had nothing to do with the suit. He was not a defendant and he was not even cited as witness by either party. It has been brought out that he was sitting in the Court room on some of the dates on which the suit came up. Considering that the suit itself was finally disposed of on 4-8-1962 five or six months after the election and four months after the filing of this petition based on this leaflet, it is perfectly understandable that Baghel was curious to know what the suit was aboutwhich it was stated had afforded him an opportunity to substantiate some allegations.
Even otherwise, a suit in which enormous allegations against the Shuklas were possibly going to be investigated, was worth watching by somebody who had spoken of these things in Shukla's lifetime and had been silent after his death. Thus, his having been seen in the Court room on the dates of the suit has nothing to do with the present controversy. Certainly, some of these dates were after the publication of this leaflet. In argument it was alleged that this Baghel had signed some of the petitions and pleadings on the defendants' side. This is comic because there is one S. L. Baghel advocate who had been appearing for the defendants in that suit and has nothing at all to do with Dr. Khubchand Baghel. Thus, it is altogether false to say that Dr. Khubchand Baghel had an opportunity. If he did not have an opportunity to substantiate he cannot be blamed for not trying to avail of it. Nor can he be pictured by implication as a backboneless worm who makes charges which he does not care to prove even when it is possible for him to do so. The position in fact is far worse for the Shuklas and far better for Baghel because in Ravishankar's lifetime he issued the open letter and challenged him to demonstrate his honesty in a manner that exposed Baghel himself to punishment, if he failed.
34. Thus, it is clear that these allegations are false. It is also difficult to see how a person of normal intelligence and decency could commit any honest mistake in this regard. It is to be noted that Vidyacharan is no other than Ravishankar's son and himself implicated in some of the charges in the open letter. He was one of the plaintiffs in the suit and could certainly know that no material given by Baghel had been printed in the Blitz. In course of evidence there is some suggestion that something was gathered from Raghavan. But Raghavan is not a witness and there is nothing to be said about this.
In this Court it is suggested that since Baghel had made allegations and since 'similar' allegations appeared in the 'Blitz' and Baghel was with. Hasan in the political quarrels of 1947, and Hasan at least was one of the informants of the 'Blitz', it was a justifiable inference that Baghel had supplied the material. This is really to make a jumble of the whole thing. Hasan and Baghel were together in the cabinet many years before Baghei's own open letter. This open letter was well before the 'Blitz' article. The context had completely changed by the death of the person attacked. It cannot be called fair if Vidyacharan Shukla imputes tilings on the assumption that at whenever time and whatever piaca something is said about his father's doings it must have come from Dr. Baghel. This is not the standard of reasonableness.
35. It is also clear that this is an imputation of moral turpitude and not of political character. No doubt there had been political squabbles between the groups led by Ravishankar Shukla and those to which Dr. Baghel belonged. But to say that a fellow is without moral backbone and makes allegations which he would not have done to prove when an opportunity affords itself has nothing to do with politics. It is an imputation against the personal character. Such a fellow is naturally a mean coward without any moral sense and eannot deserve the electors' votes. In fact, the writer of the leaflet makes this imputation appear aggravated. Firstly, he insinuates that it is an act of personal ingratitude because-
'The great founder and leader of Madhya Pradesh, namely, the late Pt. Ravishankar Shukla brought and pushedup this Khubchand Baghel into the political field. But he for selfish purposes made false and filthy allegations against this very .... etc. etc.'
The second aggravation is that this gentleman has 'got so much into the habit of making false and filthy charges that he owes his very political existence to it'. As a matter of fact, the record shows that the one occasion in which he confronted Ravishankar Shukla he behaved like a man, and after the death of the latter he stopped making them. Thus, applying the very principle which I have discussed under the earlier heading, this is a statement which is false and which no reasonable and fair-minded person would believe to be true and is about the personal character and conduct of Khubchand Baghel.
36. In the result, there are two such acts of corrupt practice each coming under Section 123(4) and each by itself calculated to prejudice the success of Khubchand Baghel in the election in which he was a candidate. Each of them by itself would justify the declaration as void the election of the successful candidate, namely, Vidyacharan Shukla respondent No, 1, under Section 98(b). The Tribunal has failed to do so even though it has found on several of the facts; this is because of its failure to appreciate, on the one hand, the difference between the political character and the personal character of the allegation and on the other, failure to give a definite finding as to whether the statements are really true, or honestly, though incorrectly, believed to be true by the writer and by the successful candidate, acting as men of normal intelligence and fair-mindedness. The foregoing discussion shows that they are patently false and no man in his senses and with a spark of an idea of fairplay would believe them to be true and not false.
37. As the only possible consequence of the findings the appeal is allowed, the order of the Tribunal set aside and it is declared that the election of Vidyacharan Shukla respondent No. 1 -- the successful candidate to the Loksabha from Mahasamund constituency is void for corrupt practices coming under Section 123(4) of the Representation of the People Act; of 1951. He shall pay the appellant costs of this appeal which we assess at Rs. 300-00 (three hundred) subject to the usual certification. In addition, he shall refund the costs and counsel's fee awarded to him by the Tribunal and paid by the appellant and further pay him (appellant) Rs. 500-00 (five hundred) as costs before the Tribunal.