Supreme Court of India
JOSEPH M. PUTHUSSERYversusT.S. JOHN & ORS.
- Citation
- 2010 INSC 841
- Decided
- 1 December 2010
- Disposal
- Appeal(s) allowed
- Bench
- M PANCHAL
Holding
An election petition alleging corrupt practice must be tried as a criminal proceeding with proof beyond reasonable doubt, and where the prosecution fails to establish publication, consent, false belief, or comply with s.99, the election cannot be set aside.
Summary
The appellant, Joseph M. Puthussery, was elected to the Kerala Legislative Assembly in 2001. Respondent T.S. John filed an election petition alleging that the appellant committed a corrupt practice under s.123(4) of the Representation of the People Act by distributing a pamphlet (Ext. X4) containing false statements about him. The High Court set aside the election, relying on oral testimony, newspaper reports and an inference that the appellant consented to distribution by party workers. The Supreme Court held that an election trial for corrupt practice is a criminal trial and must meet the standard of proof beyond reasonable doubt. It found the evidence insufficient to prove publication, consent, or the appellant’s belief that the statements were false, and noted the High Court’s failure to comply with the procedural requirement of notice under s.99. Consequently, the Supreme Court set aside the High Court judgment and restored the appellant’s election.
Issues considered
- The appropriate standard of proof in an election petition alleging corrupt practice under s.123 of the Representation of the People Act.
- Whether the pamphlet Ext. X4 constitutes "publication" within the meaning of s.123(4) when its contents were previously published in a magazine.
- Whether the appellant or his election agent consented to the distribution of the pamphlet by third persons, attracting vicarious liability under s.123 and s.99.
- Whether the appellant believed the statements in the pamphlet to be false, a requisite element of corrupt practice under s.123(4).
- The admissibility and sufficiency of oral and hearsay evidence to prove the alleged corrupt practice beyond reasonable doubt.
- Whether the High Court complied with the statutory requirement of notice under s.99 before holding the candidate liable vicariously.
Legislation cited
- Indian Evidence Act, 1872
- Representation of the People Act, 1951s. 100(1)(b), s. 116A, s. 123, s. 98, s. 99
Subjects
election petitioncorrupt practicestandard of proofpublicationvicarious liabilityhearsay evidenceRepresentation of the People Actdisqualificationelection law
Judgment
[2010] 14 (ADDL.) S.C.R. 427
JOSEPH M. PUTHUSSERY A
v.
T.S. JOHN & ORS.
(Civil Appeal No. 5310 of 2005)
December 1, 2010
B
[J.M. PANCHAL AND GYAN SUDHA MISRA, JJ.]
REPRESENTATION OF THE PEOPLE ACT, 1951:
s. 123 - Election petition alleging corrupt practices - c
Nature of - Standa.rd of proof - Held: An election trial where
corrupt practice is alleged, is to be conducted as a criminal
trial - Standard of proof made applicable to criminal cases
is proof beyond reasonable doubt - High Court misdirected
itself on the point when it held that standard of proof higher 0
than the one applicable to civil cases but lesser than that
applicable to criminal cases should be adopted in the case
- Evidence.
s.123(4) - Election petition alleging corrupt practice of
distributing the offending pamphlets by returned candidate E
and his election agent as also the party workers - Allowed by
High Court on the basis of oral evidence - Election of returned
candidate set aside - Held: The election petitioner led two
sets of evidence each contradicting the other regarding
distribution of pamphlets and, therefore, the benefit of doubt F
would go to the elected candidate - Besides, it would be
unsafe to accept oral evidence on its face value without
seeking for assurance from other circumstances or
unimpeachable documentary evidence - The witnesses
produced by election petitioner were not independent G
witnesses as they had affiliation with his party - No evidence
of any witness has been discussed in detail in the impugned
judgment - The assertion made by the elected candidate
denying the a/legation is supported by the evidence, and
427 H
-
428 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A deserves to be accepted - High Court misdirected itself in
placing reliance on hearsay' evidence - There is nothing on
record to show that the elected candidate, his election agent
or his party workers with his consent and/or the consent of his
election agent, had indulged in the act of distribution of
B pamphlets and committed the corrupt practice - The
judgment of the High Court set aside - Evidence.
s. 123 rlw ss. 98 and 99 - Corrupt practice of election
agent or a third persorr attributable to the elected candidate
- Notice to such third person - Held: To prove that the corrupt
C practice of a third person is attributable to the candidate, it
must be shown that the candidate consented to tf1e
commission of such an act - The High Court's view that the
elected candidate would be liable for penalty uls 99 for the
acts of his election agent without the conviction of such agent
D is completely erroneous in law - The High Court, on
appreciation of the evidence adduced, has recorded a clear
finding that no reliable evidence was led by election petitioner
to establish that the election agent himself had distributed the
offending pamphlets or that the party workers had distributed
E the pamphlets with his consent - Further, if a candidate is held
to be guilty of corrupt practice vicariously, for an act done by
any person other than his agent with his consent, then the
ultimate finding to this effect has to be recorded and that too
only after notice u/s 99 to that other person - The High Court,
F choosing to ignore the requirement of s. 99 of the Act, has not
recorded any concluded finding on this question against the
UDF workers, who had allegedly distributed Ext. X-4. If the
workers had no contumacious mind, the elected candidate
hardly could have been fastened with any vicarious liability
G for the so called alleged corrupt practice - Notice - Vicarious
liability.
s.123(4) - Corrupt practice of false publication -
"Publication" - Ingredients of - Explained - HELD: The
information contained in the pamphlet alleged to have been
H published by appellant had already been published in a
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 429
magazine and circulated in the Constituency - The provisions A
have to be construed strictly and, therefore, reproduction and
distribution ofreproduced information within the space of few
months cannot be regarded as "publication" in terms of
s.123(4) - Further, onus of proving that the maker of the
statement believed it to be false rests with the election B
petitioner and, in the instant case, it has not been discharged
- Interpretation of statutes - Strict interpretation - Evidence
- Burden of proof.
EVIDENCE:
c
Oral evidence in election matters - Evidentiary value of
- Discussed - Hearsay evidence.
Election petition before High Court - Evidence -
appreciation of - HELD: In an election trial, it is not o
permissible to the High Court to discard substantive oral
evidence on account of defect in pleadings - High Court
erred in discarding the testimony of returned candidate that
distribution had taken place in March 2001 and not in May
2001, only because it was not so stated in his written E
statement - Evidence - Practice and Procedure - Pleadings.
Words and Phrases:
"Publication" in the context of election law - Connotation
of. F
Respondent no. 1 lost to the appellant the election
for the Member of the Legislative Assembly which was
held on 10.5.2001. He filed an election petition alleging
that the election of the appellant was vitiated by corrupt G
practice in terms of s.123(4) of the Representation of the
People Act, 1951, as copies of Ext. X4, which contained
false statements in relation to the personal character and
conduct of respondent no. 1 having tendency to
prejudice his election prospects, were distributed on 8th
H
-
430 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A and 9th May, 2001 by the appellant, and his election agent
and, with their consent, by the workers of the political
party to which the appellant belonged. The returned
candidate denied the allegations. However, the High
Court allowed the election petition and declared the
B election of the returned candidate as void. Aggrieved, the
returned candidate filed the appeal.
Allowing the appeal, the Court
HELD:
c
1. The High Court misdirected itself on the point of
standard of proof required u/s 123 of the Representation
of the People Act, 1951, when it held that the standard of
proof higher than the one applicable to the civil cases but
D certainly lesser than that applicable to the criminal cases
should be adopted while determining the question
whether an elected candidate is guilty of corrupt
practice/s within the meaning of the Act. This is contrary
to settled law, i.e., an election trial where corrupt practice
E is alleged is to be conducted as a criminal trial. Normally,
the standard of proof made applicable to civil cases is
'preponderance of probabilities' and the one made
applicable to criminal cases is 'proof beyond reasonable
doubt'. [para 8] [446-8-D]
F Jagdev Singh Sidhanti vs. Pratap Singh Dau/ta (1964)
6 SCR 750 - followed.
2.1 In the impugned judgment, no evidence of any
witness is discussed in detail at all. The High Court erred
G in holding that distribution of Ext. X4 in the Constituency
concerned on 8th and 9th May, 2001 was by the appellant
and by UDF workers with his consent. It is relevant to
notice that the appellant had stated in his written
statement that he was not aware of any such distribution
H
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 431
and, in the alternative, it was mentioned that even if the A
distribution had taken place, neither he nor his election
agent nor any of the workers of UDF was/were involved
therein. In an election trial, it is not permissible to the High
Court to discard substantive oral evidence on account of
defect in the pleadings. Testimony of the appellant that B
printing and distribution had taken place in March, 2001
and not in May, 2001, as alleged by respondent No. 1, was
discarded by the High Court only because it was not so
stated in his written statement. It is significant to note that
PW-88, the owner of the press, deposed before the High c
Court that DW-10 had entrusted him the printing of Ext.
X4 pamphlet on 8.3.2001. He produced Ext. X17, the Bill
Book mairitained by him in the ordinary course of
business. The testimony of PW-88 was never challenged
by respondent No. 1 in the sense that PW-88 was never
0
declared hostile to respondent No. 1 nor did he seek
permission of the Court to cross-examine PW-88. Thus,
the evidence tendered by PW-88 was accepted to be true
by respondent No. 1. The testimony of DW-10, whose
credibility could not be impeached during his lengthy E
cross-examination on behalf of respondent No. 1, had
asserted that he1lad got printed Ext. X4 from the press
of PW-88 and that he had distributed the same in March,
2001. The High Court, without assigning any cogent and
convincing reasons, chose to disbelieve the evidence of
PW-88 and DW-10. Thus, the conclusion drawn by the F
High Court that the evidence of PW-88 and DW-1 O was
unreliable, will have to be regarded as perverse. Having
regard to the facts of the case, an adverse inference has
to be drawn against respondent No. 1 on the score that
he had neither asserted nor controverted the fact that Ext. G
X4 was got printed by DW-10 at the press of PW-88.
Viewed in this light, the assertion made by the appellant,
who had examined himself as DW-53 that he came to
know about the distribution of Ext. X4 in the month of
H
432 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A March, 2001 from DW-10 later on, deserves to be
accepted and cannot be brushed aside as improvement
in the version, as has been done by the High Court.
[paras,10 and 11] [447-H; 448-A-H; 449-A-H]
B Dr. Jagjit Singh vs. Giani Kartar Singh and others AIR
1966 SC 773 - relied on.
2.2 PW-12, PW-13, PW-14, PW-15, PW-17 and PW-21,
on whose testimony the High Court relied on, were not
independent witnesses, as they had affiliation with the
C party to which respondent No. 1 belonged and their
evidence cannot held to be reliable at all. Once the
testimony of PW-88 read with that of DW-10 is believed
that pamphlets Ext. X4 were printed in the press of PW-
88 at the instance of DW-10 and that DW-10 had
D distributed the same in the month of March, 2001, the
assertion made by the witnesses examined as PW-12 to
PW-21 that the pamphlets were distributed by the
appellant and also by UDF workers with the consent of
the appellant on 8th and 9th May, 2001 becomes highly
E doubtful and their say cannot be accepted. Once the
testimony of PW-88 read with that of D.W-10 is acted upon,
it becomes evident that respondent No. 1 had led two sets
of evidence each contradicting the other regarding
distribution of pamphlets and obviously in such
F circumstances the reasonable benefit of doubt would go
to the elected candidate, namely, the appellant. [para 14]
[ 451-G-H; 452-A-E]
2.3 So far as election law is concerned, by now it is
well settled that it would be unsafe to accept oral
G evidence on its face value without seeking for assurance
from other circumstances or unimpeachable
documentary evidence. Oral evidence has to .be analyzed
by applying common sense test. It must be remembered
that in assessing the evidence, which is blissfully vague
H in regard to the particulars in support of averments of
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 433
undue influence, cannot be acted upon because the A
court is dealing with a quasi-criminal charge with serious
consequences and, therefore, reliable, cogent and
trustworthy evidence has to be led with particulars. If this
is absent and the entire case is resting on shaky ipse
dixits, the version tendered by witnesses examined by B
the election petitioner cannot be accepted. [para 12) [450-
B-F]
Abdul Hussain Mir vs. Shamsu/ Huda and another 1975
(3) SCR 106 =(1975) 4 sec 533 - relied on. c
2.4 In the instant case, the High Court has not
adverted to the evidence of any witness nor has it taken
into consideration the positive evidence of DW-10 that he
himself had distributed Ext. X4 in the month of March,
2001. This Court does not find from the impugned D
judgment as to why the High Court was inclined to prefer
testimony of a particular witness as against the reliable
evidence tendered by the appellant himself and the
evidence tendered by DW-10. [para 12) [450-E-H]
E
2.5 The finding of the High Court that
contemporaneous newspaper publications produced as
Exts. P-5 and P-6 corroborate the testimony of
respondent No. 1, is also not supported by the evidence
on record. The reporters of Exts. P-5 and P-6 were
F
examined. They have categorically, and in no uncertain
terms, stated that they had no personal knowledge of the
events published in Exts. P-5 and P-6. Therefore, what
was reported in the newspapers could not have been
regarded anything except hearsay. The High Court has_
misdirected itself in placing reliance on the hearsay G
evidence, namely Exts. P-5 and P-6. In view of clear
proposition of law laid down in Quamaru/ /smam's case*,
hearsay evidence could not have been used by the High
Court for coming to the conclusion that
contemporaneous newspaper publications Exts. P-5 and H
434 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A P-6 corroborate the testimony of respondent No. 1. [para
12) [450-G-H; 451-A-D]
*Quamaru/ lsmam vs. S.K. Kanta and others 1994 (1)
SCR 210 =1994 Supp. (3) SCC 5 and Laxmi Raj Sheffy and
another vs. State of Tamil Nadu 1988 (3) SCR 706 = (1988)
8
3 sec 319 - relied on.
2.6 Similarly, the finding that seven UDF workers,
who were allegedly arrested on 8.5.2001 by the police for
distribution of the pamphlets, were released at the behest
C of the appellant who went to the Police Station and,
therefore, there was consent of the appellant is quite
contrary to the testimonies of the witnesses. It may be
mentioned that this finding is arrived at on the basis of
(i) the averments in the election petition which have no
D basis to justify the finding, (ii) the testimonies of PW-12
to PW-21, but scrutiny of their evidence reveals that none
of the said witnesses had witnessed the appellant going
to the police station and securing release of the seven
workers and (iii) entries in the General Diary Ext. X5
E which contains no details and only records what the
Sub-Inspector heard from other people over telephone
about distribution of some printed notices. Nothing is
mentioned in the said entry about involvemenJ of any of
UDF workers or the appellant. Respondent No.1
F examined PW-7, Additional S.I., and produced Ext. X5, the
GD entry, to substantiate the allegation. PW-7 specifically
stated that the seven UDF workers were not arrested, and
so the appellant had no occasion to get them released.
The GD entry also states that the ASI had gone to the spot
G and removed the UDF workers from the scene to avoid
breach of law and order and later on they were let off on
the advice of the superior officers. Once respondent No.1
has failed to prove the arrest of seven UDF workers, and
their release at the instance of the appellant, the further
case of respondent No. 1, that after coming out of the
H
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 435
police station, the appellant himself distributed the A
offending pamphlets and directed others to distribute the
pamphlets, becomes highly doubtful and improbable.
[para 15 and 21] [459-A-H; 456-A-F] '
2.7 There is absolutely nothing on the record to show 8
that the appellant had indulged in the act of distribution
of pamphlets and thus committed a corrupt practice. The
High Court has placed reliance on unreliable and scanty ,.,.
evidence to find the appellant guilty of corrupt practice
and, therefore, the finding that the appellant is
disqualified u/s 99 of the Act is completely unsustainable. C
Further, the High Court could not even identify a single
UDF worker, who, according to it, had distributed the
pamphlets; it has simply held that there is evidence to
show that UDF workers had distributed the pamphlets.
It is evident that respondent No. 1 has''failed to prove that D
UDF workers had distributed the offending pamphlets on
8th and 9th May 2001. The finding of the High Court on
this score being against the weight of evidence is not
only perverse but is also contrary to the facts proved
and, as such, set aside. [para 15, 18,19 and 22] [455-G; E
456-E-F; 460-C; 458-H; 459-A]
0. Venkata Reddy vs. R. Sultan and others 1976 (3)
=
SCR 445 (1976) 2 sec 455 - relied on
2.8 The High Court erred in concluding that the
F
pamphlets were distributed by the UDF workers on 8th
and 9th May, 2001, observing that the benefit of the
distribution would have enured to none other than the
appellant and, therefore, inference could be drawn that
UDF workers had distributed the pamphlets with the G
consent of the appellant. Such a conclusion, based on
unwarranted inferences and surmises, is recorded only
because the High Court had misdirected itself on the
question of standard of proof required to be adopted to
resolve a dispute raised u/s 123 of the Act. The theory H
436 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A that the benefit of distribution could have enured only to
the appellant is misplaced. It is well-settled that to prove
that the corrupt practice of a third person is attributable
to a candidate u/s 123 of the Act, it must be shown that
the candidate consented to the commission of such an
B act. The finding that the appellant knew about such
distribution because benefit of such distribution could
only enure to him, but he kept silent despite knowledge ·
of such distribution, is nothing else but an unwarranted
inference and surmise on the part of the court. (para 18
c and 21] [457-F-H; 458-A; 459-C-D]
3.1 The High Court's view that the appellant would
be liable for penalty u/s 99 of the Act for the acts of his
election agent without the conviction of such agent is
completely erroneous in law. It is relevant to notice that
D 'JV' was validly appointed as an election agent of the
appellant. The High Court, on appreciation of the
evidence adduced, has recorded a clear finding that no
reliable evidence was led by respondent No. 1 to establish
that 'JV' himself had distributed the offending pamphlets
E or that UDF workers had distributed the pamphlets with
the consent of 'JV'. The conclusion of the High Court that
the distributer of objectionable pamphlets Ext. X4 need
not be named nor a finding with the name of the
distributor be recorded u/s 99(1 )(a)(ii) of the Act, to say
F the least, is contrary to the ratio laid down in Chandrakanta
Goyars case* wherein the principle has been laid down
that when a candidate is held to be guilty of corrupt
practice vicariously, for an act done by any person other
than his agent with his consent, then the ultimate finding
G to this effect has to be recorded and that too only after
notice u/s 99 to that other person and an inquiry must be
held as contemplated therein naming the other person
simultaneously for commission of such corrupt practice.
(para 22] (460-B-F]
H
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 437
*Chandrakanta Goyal vs. Sohan Singh Jodh Singh Kohli A
1995 ( 6 ) Suppl. SCR 522 = (1996) 1 sec 378 - relied
on.
3.2 The High Court has not only acted contrary to law
and ignored the mandate of s.99 of the Act but has also 8
taken the view that there was an option available to the
Court to ignore the requirement of s. 99 to give notice to
the distributors of the pamphlets and to name them as
persons guilty of the corrupt practice, even though the
distribution of pamphlets by the UDF workers is made C
the foundation of the corrupt practice, allegedly
committed by the appellant. The judgment is obviously
vitiated since the High Court, choosing to ignore the
requirement of s.99 of the Act, has not recorded any
concluded finding on this question against the UDF
workers, who had allegedly distributed Ext. X4. If the D
workers had no contumacious mind, the appellant hardly
could have been fastened with any vicarious liability for
the so called alleged corrupt practice. [para 22] [460-A-
E]
E
4.1 The High Court also committed an error in
holding that the distribution of the pamphlets amounted
to publication for the purposes of s. 123 of the Act. It is
an admitted fact that the objectionable pamphlets
contained statements, which were previously published F
in three editions of the "Crime" magazine which has
circulation in the Constituency concerned. The word
"publication" occurring in s. 123(4) of the Act, has not
been defined under the Act. Therefore, it would be
relevant to refer to the meaning of the word "publication" G
as given in standard dictionary. The fir$t and foremost
ingredient of publishing is making information known to
the public in general. Publication is an act by which some
information is exhibited, displayed, disclosed or revealed
before the public. By publication, the necessary
information is made accessible for public scrutiny. It is H
438 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A an act of making known of something to the public in
general for a purpose. In the instant case, this Court finds
· that the information as contained in the pamphlet about
respondent No. 1 having misappropriated the funds of
the school was already exhibited, displayed, disclosed,
B made known, revealed and brought to the notice of
general public residing within the constituency when
"Crime" magazine was previously published and
circulated in the constituency. [para 25) [462-A; E-G; 463-
B-E]
c State of M. P. and another etc. etc. vs. Ram Raghubir
Prasad Agarwal and others 1979 ( 3 ) SCR 41 = (1979) 4
sec 686 - relied on.
4.2 A trial for an offence punishable u/s.123 of the Act
D is a criminal trial, and conviction thereunder may lead to
disqualification of the candidate concerned for a period
of six years u/s.99 of the Act, which is a serious matter.
Therefore, the provisions will have to be construed
strictly and, as such, reproduction and distribution of the
E reproduced information within the space of few months
cannot be regarded as publication of the statements of
fact relating to the personal character and/or conduct of
respondent No. 1 within the meaning of s.123 of the Act.
The High Court, erred in holding that as in law of
F defamation, the republication of statements of fact also
amounts to publication for the purpose of s.123(4) of the
Act. [para 25) [463-F-H; 464-A]
4.3 The High Court has further erred in holding that
the appellant believed the published material to be false
G at the time of its distribution. One of the important
ingredients in proving the offence of corrupt practice
u/s 123(4) of the Act is that it has to be established that
the returned candidate believed the statement that was
published, to be an untrue statement. It is significant that
H
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 439
unlike the law of defamation, where truth is a defence, A
s.123(4) of the Act not only recognizes truth as a defence
by using the words "publication of any statement of fact
... which is false .... " but additionally protects the maker
of the statement by stipulating that the maker must
believe the statement to be false. The onus of proving that B
the maker believed the statement to be false rests with
the election petitioner and, in the instant case, respondent
no. 1 has not discharged the initial onus that rested on
him. On the contrary, the defence of the appellant that he
believed the statements made in Ext. X4 to be true c
because of their prior publication in "Crime" magazine
and failure of respondent No. 1 to initiate any legal action
against the said magazine, if tested on preponderance of
probability stands proved. [para 27] [464-E-11; 465-A-B]
Dr. Jagjit Singh vs. Giani Kartar Singh and others AIR D
1966 SC 773 - relied on.
5. In view of the fundamental mistake committed by
the High Court in the matter of standard of proof while
resolving the dispute of corrupt practice and faulty E
appreciation of evidence by applying wrong standard of
proof as also the fact that the election of the appellant is
set aside on the basis of broad probabilities and
presumptions, without even referring to any of the
evidence adduced by the parties, the impugned judgment F
is set aside. [para 27] [467-D-E]
Case Law Reference:
(1964) 6 SCR 750 followed Para 8
AIR 1966 SC 773 relied on Para 10 G
and 27
1975 (3) SCR 106 relied on para 12
1994 (1) SCR 210 relied on para 13
H
440 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A 1988 (3) SCR 706 relied on para 13
1976 (3) SCR 445 relied on para 18
1995 (6) Suppl. SCR 522 relied on para 22
1979 (3) SCR 41 relied on para 25
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5310 of 2005.
From the Judgment & Order dated 08.08.2005 of the High
c Court of Kerala at Ernakulam in E.P. No. 6 of 2001.
L. Nagaswara Rao, Roy Abraham, Hari Kumar, Seema
Himinder Lal for the Appellant.
Jasawini Mishra, Romy Chacko for the Respondents.
D
The Judgment of the Court was delivered by
J.M. PANCHAL, J. 1. This appeal, filed under Section
116A of the Representation of People Act, 1951 ('the Act' for
short), is directed against judgment dated August 8, 2005,
E rendered by the learned Single Judge of the High Court of
Kerala at Ernakulam in Election Petition No. 6 of 2001 by which
the election of the appellant as Member of Kerala Legislative
Assembly from No. 106, Kallooppara Constituency is declared
void on the ground that he was guilty of the corrupt practice
F within the meaning of Section 123(4) of the Act as he
extensively distributed directly and through UDF workers, who
did so with his consent, the copies of Ext. X4, which contained
statements of fact, which were false and which he believed to
be false or did not believe to be true in relation to the personal
G character and conduct of the respondent No. 1.
2. The facts, emerging from the record of the case, are as
under:
The election to the Kerala Legislative Assembly was held
H
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 441
[J.M. PANCHAL, J.]
on May 10, 2001. From the Constituency, i.e., No. 106 A
Kallooppara Constituency, the appellant, i.e., Joseph M.
Puthussery, the respondent No. 1, i.e., Advocate T.S. John, Prof.
P.K. Rajasekharan Nair, i.e., the respondent No. 2 and Mathew
Pinakkulath Padinjaremannil, i.e., the respondent No.3,
contested the election. The result of the election was declared B
on May 13, 2001 and the appellant was declared elected with
42,238 votes cast in his favour. As far as the respondent No.
1 is concerned, he was able to poll 31,013 votes. Thus, the
appellant defeated the respondent No. 1 by a margin of 11,225
·votes. The respondent Nos. 2 and 3 received 4,432 and 361 c
votes respectively.
On June 27, 2001, the respondent No. 1 filed Election
Petition No. 6 of 2001 in the High Court of Kerala at Ernakulam,
under Section 100(1)(b) of the Act assailing the election of the
appellant. According to the respondent No. 1, the election of D
the appellant was vitiated by corrupt practice defined under
Section 123(4) of the Act for the reason that copies of Ext. X4,
which allegedly contained false statements of fact in relation to
the personal character and conduct of the respondent No. 1
having tendency to prejudice the prospects of the election of E
the respondent No. 1, were distributed by the appellant, his
election agent and workers of the United Democratic Front, i.e.,
the party to which the appellant owe allegiance, with his consent
as well as with the consent of his election agent on May 8, 2001
and May 9, 2001 ignoring the stipulation that electoral campaign F
must come to an end. The precise statements in Ext. X4, which,
according to the respondent No. 1, allegedly amounted to the
corrupt practice within the meaning of Section 123(4) of the Act,
are extracted below: -
G
"Adv. T.S. John Is He A Servant of the People or Hero of
Corruption?
When tens of thousands of Homeless wander on streets,
this MLA, the people's servant acquires mansion after in
his name. H
442 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A Let us start journey from Anathapuri to take an account of
the number of flats owned by this esteemed personality.
Even in the District of Trivandrum a flat was allotted during
1980, when Gopi was the Chairman of the Housing Board
while he was MLA.
B
During 1984, when P.J. Joseph of flats near the
Chairman's Quarters were acquired by this MLA in the
name of daughter of his elder brother. At that time, the
Chairman of the Housing Board was Oommen Mathew. By
leasing out all the acquired flats on rent, he was fetching,
c Rs.1000 to 2000 per month. Nearly Rs.30,000/- was being
received as profit from this alone.
T.S. John, who was allotted a plot earlier, got the flat in
exchange by paying the price in monthly installments. This
D flat cost Rs.12 lakhs. Even the third flat of the Housing
Board came of T.S. John.
In order to hoodwink the people of Kallooppara, he still
continues to live in a small house. His car shed is even
better. It would have been nice for T.S. John to live in the
E
car shed with concrete roof.
Thengana Kadanthod Thankchan, who is running "Mariya
Store" on the Changanacherry-Karukachal road near the
Thengana Waiting Shed, had prized tlie lottery ticket. Now
F the only question that arises, is how much profit Thankchan
got in this transaction. Though a lot of such incidents had
happened in the State, in the history of Kerala this is the
first time that an MLA had indulged in this type of deceit.
1G Poor Simpleton of a Little Hut Or Many ..... Many .....
Corruption Stories. These repulsive stories of corruption
are a disgrace to the country. It should not be forgotten that
by this ridiculed are the people of this place.
Corruption Hero T.S. John M.L.A.
H
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 443
[J.M. PANCHAL, J.]
T.S. John M.L.A. the people's representative who lives in A
his small house as a puritan poor folk, has built up flats
and properties under benami worth crores of rupees
through out the Kerala State.
Even the Ambassador Car No. KL 3/E7 this M.L.A. owns
B
is, it is the name of Manjeri Bhaskaran Nair.
Role of P.J. Joseph, Minister and T.S. John M.L.A.
Embez.zlement of crores of rupees behind Palemaad
Vivekanada School C
There is a school in the name of Palemaad Vivekanada
village near Manjeri in Malappuram District, which is
populous with settlers, but is an undeveloped area under
the shield of this school, which started functioning during
1963, a family is leading princely life at the expense of the 0
Government, embezzling Qrores of rupees. Those who
liaise for them and receive lakhs of rupees as their share
are two important persons. Education Minister P:J. Joseph
and the formal Minister and the Assembly Speaker T.S.
John. E
It is now years since P.J. Joseph and T.S. John begun this
business in the education with Bhaskara Pillai.
Bhaskara Pillai, who was removed from N.S.S. for indulge
F
in financial irregularities, has seen the green pasture in his
life through the education business with P.J. Joseph - T.S.
John."
The appellant filed written statement resisting the election
petition. In the written statement, distribution of Ext. X4 in the G
Constituency on May 8, 2001 and May 9, 2001 was not
specifically denied meaning thereby ignorance was pleaded so
far as distribution of the pamphlets was concerned. However,
the appellant took a specific stand that neither he nor his election
agent or any one with his and/or their consent had distributed H
444 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A Ext. X4. What was stated by the appellant in the written
statement was that the distribution was done by the Youth Wing
of the party to which the respondent No. 1 belongs and that the
distribution of Ext. X4 does not amount to any publication. It was
also averred that, at any rate, the statement was not calculated
B to prejudice the prospects of the respondent No. 1 in the
election held on May 10, 2001 and, therefore, the Election
Petition was liable to be dismissed.
3. Having regard to the pleadings of the parties, the learned
Single Judge framed as many as eight issues for
C determination. On behalf of the respondent No. 1, who was the
original petitioner, as many as 90 witnesses were examined
and documents Ext. P-1 to P-22 were produced in support of
his case that the election of the appellant was liable to be
voided. So far as the appellant is concerned, he had examined
D 53 witnesses and produced documents at Ext. R-1 to R-20 in
support of his case that his election was not liable to be set
aside on the ground of alleged corrupt practice. Further, Ext.
C-1 to C-3(b) were marked as Court Exhibits whereas X-1 to
X-24 documents were marked as proved by witnesses and Ext.
E N-1 (a) and N-1 (b) were marked by the persons to whom the
court had issued notice under Section 99 of the Act.
4. After considering the evidence adduced and hearing the
learned counsel for the parties, the court proceeded to consider
F the question as to which standard of proof is required to be
applied while resolving election disputes raised in the Election
Petition and held that the standard of proof which is higher than
one made applicable to decide civil cases but which is lesser
than the one applied in criminal cases should be adopted. The
High Court has further held that relevant contemporaneous
G newspaper publications like Ext. P-5 and P-6 and entries in
official documents like Ext. X5 and X6 corroborate the ocular
version tendered by the witnesses examined by the respondent
No. 1 about the distribution of Ext. X4 pamphlet in the
constituency on May 8 and May 9, 2001 by UDF workers. The
H learned Single Judge further observed that the act of the
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 445
[J.M. PANCHAL, J.]
appellant in not stopping his workers from continuing with A
distribution of objectionable pamphlet Ext. X4 is sufficient to
assume consent on his part. The learned Judge held that it was
not established by the respondent No. 1 that DW-52 Jaya
Varma, who was election agent of the appellant, had himself
· distributed the pamphlets in question nor it was established that B
UDF workers had distributed the pamphlets with consent of
Jaya Varma. The learned Judge further held that the evidence
tendered about the involvement of DW-52 Jaya Varma in actual
distribution did not inspire confidence of the court.
5. The learned Judge further held that in releasing Ext. X4
c
for consumption of the electorate by extensive distribution in the
Constituency, there was publication as contemplated by Section
123(4) of the Act. The learned Judge found that Ext. X4 was
not merely republication of the relevant portions of Exts. R-6,
R-7 and R-8, but in addition to what was available in Exts. R6, D
R-7 and R-8, defamatory imputations by way of title,
observations/comments in the sub-title, etc., were available in
Ext. X4. The learned Judge held that out of the three allegations
made in objectionable pamphlet Ext. X4, the third allegation,
which relates to misappropriation and fraud to the tune of crores, E
falls under category of objectionable statement of fact under
Section 123(4) of the Act and evidence of PW-6 shows that
the statement was false. The Court noted that publication of Ext.
X4 on the eve of election was calculated to prejudice the
prospects of the respondent No. 1 of winning the election. The F
Court concluded that the appellant was guilty of corrupt
practices under Section 123(4) of the Act. However, the Court
did not name any of the 77 workers of UDF under Section 99
of the Act and held that there was no specific evidence against
any of them. G
6. In view of the above mentioned conclusions, learned
Single Judge has allowed the Election Petition filed by the
respondent No. 1 and set aside the election of the appellant,
giving rise to the instant appeal.
H
446 SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.
A 7. This Court has heard the learned counsel for the parties
at length and in great detail. This Court has also considered
the voluminous oral as well as documentary evidence produced
by the parties and read out before the Court.
8 8. So far as standard of proof is concerned, there is no
manner of doubt that the High Court misdirected itself on the
point of standard of proof required under Section 123 of the
Representation of People Act, 1951. The learned Judge without
explaining invented a new standard of proof to be made
C applicable to election disputes and has held that standard of
proof higher than the one applicable to the civil cases but
certainly lesser than one applicable to the criminal cases,
should be adopted while determining the question whether an
elected candidate is guilty of corrupt practice/s within the
meaning of the Act. Normally, standard of proof made
D applicable to civil cases is preponderance of probabilities and
the one made applicable to criminal cases is proof beyond
reasonable doubt. Even with the ablest assistance of the
learned counsel for the parties, this Court could not comprehend
as to which is that standard of proof which is higher than the
E one applicable to civil cases and lesser than the one applicable
to criminal cases. The standard· of proof, spoken of by the
learned Judge, neither gets recognition/stamp of authority either
froni the provisions of the Indian Evidence Act or from any other
statute or from judicial precedents. There is no manner of doubt
F that the standard of proof, which should be adopted according
to the High Court while determining an election dispute: is
contrary to settled principles of law. The settled li:iw is that an
election trial where corrupt practice is alleged is to be
conducted as a criminal trial. Unfortunately, the High Court has
G not referred to any decision of-this Court on the point though
the learned counsel for the appellant claimed that several
decisions were cited by the learned counsel for the parties to
guide the High Court as to which standard of proof should be
adopted while deciding an election dispute. In Jagdev Singh
H Sidhanti vs. Pratap Singh Dau/ta (1964) 6 SCR 750, the Five
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 447
[J.M. PANCHAL, J.]
Judge Constitution Bench of this Court has laid down, in A
paragraph 11 of the reported decision as under: -
"11. It may be remembered that in the trial of an election
petition, the burden of proving that the election of a
successful candidate is liable to be set aside on the plea B
that he was responsible directly or through his agents for
corrupt practices at the election, lies heavily upon the
applicant to establish his case, and unless it is established
in both its branches i.e. the commission of acts which the
law regards as corrupt, and the responsibility of the
successful candidate directly or through his agents or with C
his consent for its practice not by mere preponderance of
probability, but by cogent and reliable evidence beyond
any reasonable doubt, the petition must fail."
It may be observed that the principle that in an election petition o
based on corrupt practice the Court has to adopt standard of
proof beyond reasonable doubt, is enunciated in at least not
less than six other reported decisions of this Court. However,
this Court does not wish to burden the judgment unnecessarily
by referring to those reported decisions in detail because the E
learned counsel for the respondent has fairly conceded before
this Court that a wrong standard of proof was adopted by the
High Court while trying the election petition filed by the
respondent No. 1 challenging the election of the appellant.
9. The consequence of the conclusion, that the learned F
single Judge adopted a wrong standard of proof while
determining the election dispute raised by the respondent No.
1, would be that the other findings recorded by the learned
Judge will have to be viewed in the light of this fundamental error
committed by him. G
10. It may be mentioned that the impugned judgment
roughly runs into 87 pages. However, this Court finds that no
evidence of any witness is discussed in detail at all. The
conclusion of the High Court that distribution of Ext. X4 in the H
448 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A Constituency concerned on 8th and 9th May, 2001 was by the
appellant and by UDF workers with the consent of the appellant
is to be found on pages 28 to 33 of the impugned judgment. It
is relevant to notice that the appellant had stated in his written
statement that he was not aware of any such distribution and
B in the alternative it was mentioned that even if the distribution
had taken place, neither he nor. his agent nor any of the workers
of UDF was/were involved in the distribution of the Pamphlet
Ext. X4. The learned Judge has observed that the appellant has
not expressly denied distribution of Ext. X4 on .the above said
C dates in his written statement. However, this Court finds that in
an election trial it is not permissible to the High Court to discard
substantive oral evidence on account of defect in the pleadings.
This is so in view of the decision of this Court in Or. Jagjit Singh
vs. Giani Kartar Singh and others AIR 1966 SC 773.
· D 11. What is important to notice is that the testimony of the
appellant that printing and distribution had taken place in March,
2001 and not in May, 2001, as alleged by the respondent No ..
1, was discarded by the learned Judge only because it was not
so stated in his written statement. At this stage it would be
E advantageous to refer to the testimony of PW-88. PW-88 is the
owner of the press. He had deposed before the Court on
February 13, 2002 that Shaji P. Jacob, i.e., DW-10, had
entrusted him the printing of Ext. X4 Pamphlet on March 8,
2001. The said witness had produced Ext. X17 Bill Book
F maintained by him in the ordinary course of business to
substantiate that Mr. Jacob, i.e., DW-10, had entrusted him the
printing of Ext. X4. Again, DW-10 had also deposed before the
Court on March 6, 2002 that he had got printed Ext. X4 from
the press of PW-88 and that he himself had distributed the
G same in the month of March, 2001. It may be stated that PW-
88 was one of the witnesses produced by the respondent No.
1 himself in support of his case that the election of the appellant
was liable to be set aside and the respondent No. 1 wanted
the Court to rely upon the testimony of PW-88. As observed
H earlier, PW-88 had in categorical terms stated before the Court
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 449
[J.M. PANCHAL, J.]
that Mr. Jacob, i.e., DW-10, had entrusted him the printing of A
Ext. X4 Pamphlet on March 8, 2001. The testimony of PW-88
was never challenged by the respondent No. 1 in the sense that
PW-88 was never declared hostile to the respondent No. 1 nor
the respondent No. 1 had sought permission of the Court to
cross-examine PW-88. Thus, evidence tendered by PW-88 was B
accepted to be true by the respondent No. 1. The testimony of
DW-10, whose credibility could not be impeached during his
lengthy cross-examination by the learned counsel for the
respondent No. 1, had asserted that he had got printed Ext. X4
from the press of PW-88 and that he had distributed the same c
in March, 2001. From the impugned judgment it becomes
evident that without assigning cogent and convincing reasons
the learned Judge had chosen to disbelieve the evidence of
PW-88 and that of DW-10. No convincing reason recorded by
the learned Judge as to why the testimony of PW-88 or for that 0
matter the testimony of DW-10 should be disregarded. The only
and feeble reason, which has no legs to stand, given by the
learned Judge to disbelieve the testimony of PW-88 and DW-
10, is that those who distributed the pamphlets must have got
the same printed in the press of PW-88. Thus, this Court finds
E
that the conclusion drawn by the learned Judge, that the
evidence of PW-88 and DW-10 was unreliable, will have to be
regarded as perverse. The finding recorded by the learned
Judge that no adverse inference can be drawn against the
respondent No. 1 on the score that he had neither asserted nor
controverted that Ext. X4 was got printed by DW-10 in the press F
of PW-88, has no factual basis and this Court, having regard
to the facts of the case, is inclined to draw an adverse inference
against the respondent NO. 1 on the score that he had neither
asserted nor controverted the fact that Ext. X4 was got printed
by DW-10 at the press of PW-88. Viewed in the light of what G
is held above, the assertion made by the appellant, who had
examined himself as DW-53 that he had come to know about
the distribution of Ext. X4 in the month of March from DW-10
later on, deserves to be accepted and cannot be brushed aside
as improvement in the version as is done by the learned Judge. H
450 SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.
A 12. The finding that there is overwhelming and satisfactory
oral evidence on the point that the distribution had taken place
on May 8, 2001 and May 9, 2001, to say the least is contrary
to the evidence on record. What is the value of oral evidence
while deciding issue of corrupt practice within the meaning of
B Section 123(4) of the Act will have to be considered? So far
as election law is concerned by now it is well settled that it would
be unsafe to accept the oral evidence on its face value without
seeking for assurance from other circumstances or
unimpeachable document. It is very difficult to prove a charge
c of corrupt practice merely on the basis of oral evidence
because in election cases, it is very easy to get the help of
interested witnesses. In Abdul Hussain Mir vs. Shamsul Huda
and another(1975) 4 sec 533, the Three Judge Bench of this
Court held that oral evidence, ordinarily is inadequate especially
if it is of indifferent quality or easily procurable. According to
0
this Court, the oral evidence has to be analyzed by applying
common sense test. It r:nust be remembered that in assessing
the evidence, which is blissfully vague in regard to the
particulars in support of averments of undue influence, cannot
be acted upon because the court is dealing with a quasi-
E criminal charge with serious consequences and, therefore,
reliable, cogent and trustworthy evidence has to be led with
particulars. If this is absent and the entire case is resting on
shaky ipse dixits, the version tendered by witnesses examined
by election petitioner cannot be accepted. Before recording the
F above finding, the learned Judge has not adverted to the
evidence of any witness nor taken into consideration the
positive evidence of DW-10 that he himself had distributed Ext.
X4 in the month of March, 2001. This Court does not find from
the impugned judgment as to why the High Court was inclined
G to prefer testimony of a particular witness as against the reliable
evidence tendered by the appellant himself and the evidence
tendered by DW-10. The finding that contemporaneous
newspaper publications produced at Exts. P-5 and P-6
corroborate the testimony of the respondent No. 1, is also not
H supported by the evidence on record. If one examines
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 451
[J.M. PANCHAL, J.]
newspaper publications produced at Exts. P-5 and P-6, it A
becomes at once clear that the reports were entirely hearsay.
The reporters of Exts. P-5 and P-6 were examined in this case.
They have categorically, and in no uncertain terms, stated that
they had no personal knowledge of the events published in Exts.
P-5 and P-6. Therefore, what was reported in the newspapers B
could not have been regarded anything except hearsay. There
is no manner of doubt that the High Court has misdirected itself
in placing reliance on the hearsay evidence, which was
produced before the Court in the form of Exts. P-5 and P-6. In
view of clear proposition of law laid down by this Court in C
Quamarul /smam vs. S.K. Kanta and others 1994 Supp. (3)
sec 5 and Laxmi Raj Shetty and another vs. State of Tamil
Nadu (1988) 3 sec 319, the hearsay evidence could not have
been used by the learned Judge for coming to the conclus:on
that contemporaneous newspapers publications Exts. P-5 and
P-6 corroborate the testimony of the respondent No. 1. 0
13. The first question, which deserves to be addressed by
this Court, is whether it is satisfactorily established that the
appellant himself had distributed the pamphlets in question on
May 8 and May 9, 2001. E
14. As noticed earlier, the High Court has recorded a
finding that Ext. X4 pamphlets were distributed on May 8, 2001
and May 9, 2001 by the appellant and also by UDF workers
with his consent and for this purpose the High Court has relied
on the testimony of PW-12 to PW21. The learned counsel for F
the respondent No. 1 would contend that the fact that the
appellant had distributed the pamphlets in question stands
satisfactorily proved by the evidence of PW-12 to PW-21, out
of whom PW-16, PW-18, PW-19 and PW-20 are independent
witnesses and, therefore, the finding recorded by the High Court G
that the appellant had distributed pamphlets on May 8. 2001
and May 9, 2001 based on appreciation of evidence, should
be upheld by this Court. The above mentioned submission
makes it abundantly clear that PW-12, PW-13, PW-14, PW-15,
PW-17 and PW-21 were not independent witnesses and had H
452 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A affiliation with the party to which the respondent No. 1 belongs.
What is important to note is that once the testimony of PW-88
read with that of DW-10 is believed that pamphlets Ext. X4 were
printed in the press of PW-88 at the instance of DW-10 and
that DW-10 had distributed the same in the month of March,
8 2001, the assertion made by witnesses examined as PW-12
to PW-21 that the pamphlets were distributed by the appellant
and also by UDF workers with the consent of the appellant on
May 8, 2001 and May 9, 2001 becomes highly doubtful and
their say cannot be accepted. It is relevant to notice that G.
C Govindan Nampoothiri, who is examined as PW-88, is witness
for the respondent No. 1. The respondent No. 1 desires this
Court to act upon the testimony of the said witness, who is
examined by him. The respondent No. 1 has not disowned the
testimony of PW-88 in the sense that the said witness was not
declared hostile nor cross-examined on behalf of the
D respondent No. 1. Once the testimony of PW-88 read with that
of DW-10 is acted upon, it becomes evident that the
respondent No. 1 had led two sets of evidence each
contradicting the other regarding distribution of pamphlets and
obviously in such circumstances the reasonable benefit of
E doubt would go to the elected candidate, namely, to the
appellant. Further, the claim made by the learned counsel for
the respondent No. 1 that PW-16, PW-18, PW-19 and PW-20
were independent witnesses, who had deposed before the
Court that the appellant had distributed Ext. X4 pamphlets on
F May 8, 2001 and May 9, 2001, on scrutiny, is found to be hollow.
The scrutiny of evidence of PW-16 Kuttappai K. K. indicates that
in cross-examination it was put to him that Ext. X4 was brought
out by the President of Youth Front (J) against another member
of the same party and in answer to the said question he replied
G that he was not knowing that it was brought out by the President
of Youth Front (J), but admitted that it was so written/mentioned
in Ext. X4 itself. Though he admitted that he had not bothered
to peruse the full text of Ext. X4, he had audacity to state before
the Court that Ext. X4 contained defamatory matter and that
H allegation of corrupt practice at the personal level were made
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 453
[J.M. PANCHAL, J.]
against the respondent No. 1. When it was put to him that Ext. A
X4 did not contain any reference about the personal conduct
of the respondent No. 1 other than as a servant of the people,
the claim of this witness was that he had not read the full text.
A witness, who claims before the Court on oath that Ext. X4
pamphlets contained defamatory matter without reading the B
contents of the same, would hardly inspire confidence of the
Court. A perusal of testimony of PW-18 K. Anil Kumar would
indicate that in an answer to the question i.e. whether there was
anything in Ext. X4 causing defamation of the candidate as such
· or about election, the witness replied that those words were not c
used in Ext. X4 and he agreed that Ext. X4 did not contain the
words 'election' or 'candidate'. Initially, this witness maintained
that he was an independent witness and had nothing to do with
Marxist Party to which the respondent No. 1 belongs, but in
cross-examination he admitted that he had worked in the SFI, D
which was the Student Front of the Marxist Party, in the year
1984-85. He further admitted that at the time when he had
worked in the SFI, which was the Student Front of the Marxist
Party, he was in the college and had occasion to mingle with
the party leaders. In the opinion of this Court the admission E
made by the witness makes it more than clear that he was not
an independent witness as claimed by the learned counsel for
the respondent No. 1 and had come to the Court to oblige the
respondent No. 1. Again, a critical scrutiny of evidence of PW-
19 M.M. Simon would indicate that he had informed one Mr.
Pradeep, who was an LDF worker, about the distribution of the F
pamphlets by the appellant. This witness also admitted that he
had not read the contents of Ext. X4 and had only read the
headlines. This witness admitted in the cross-examination that
he had deposed before the Court on the basis of information
that he had got from others during the election propaganda. G
This statement made by the witness makes it doubtful whether
in fact this witness had seen the appellant distributing the
offending pamphlets. Thus on the re-appreciation of evidence
of this witness this Court does not find it prudent to place
implicit faith on the testimony of this witness. The evidence of H
454 SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.
A PW-20 Verghese Mathew shows that his vegetable shop and
the LDF Committee Office are situated in one and the same
building and both are separated by a wall. A question was put
to witness that whether both sides had raised allegations of
corruption against each other. In answer to the said question
B the witness stated that according to his knowledge such
allegations were raised only by the UDF and not by the LDF.
Earlier this witness on his own had mentioned that the
respondent No. 1 had issued notices soliciting votes and had
not published any pamphlet of the nature of Ext. X4 raising
c allegations against the UDF. It is important to note that it was
nobody's case and certainly it was not the case of the appellant
that the respondent No. 1 had published any pamphlet of the
nature of Ext. X4 raising allegations against the UDF.
Therefore, making of such a statement shows to what extent
this so called independent witness was interested in the
0
respondent No. 1. His claim that his wife told him that the copy
of Ext. X4 was distributed along with the identity slip by the
UDF party workers can hardly be believed. Such an evidence
would never be made available and/or left by the distributors
of the pamphlet concerned. Though this witness denied that he
E was member of the party to which the respondent No. 1
belonged, after reading his testimony a general impression is
created that he was in active politics and had supported an
independent candidate, who was contesting Panchayat
Elections. His evidence further shows that in connection with
F the disputes relating to the said election a criminal case was
registered against him and he was pros~cuted. Therefore, his
attempt to project himself as a totally independent witness does
not inspire confidence of this Court at all, more particularly, when
on presumption the witness had audacity to claim on oath that
G since the respondent No. 1, who belongs to LDF, was
maligned. He had presumed that the publication was brought
out by UDF and after seeing bottom portion of Ext: X4 he had
to admit that it was brought out in the name of Shaji P. Jacob
Kallunkal, who was a former member of the Youth Ftont of
H Joseph Group of Thiruvalla Constituency. Thus the so called
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 455
[J.M. PANCHAL, J.]
independent witnesses examined by the respondent No. 1 to A
establish that the appellant had distributed the offending
pamphlets on May 8, 2001 and May 9, 2001 are in fact not
independent witnesses and are not reliable at all. The finding
recorded by the learned Judge of the High Court that there is
overwhelming and satisfactory oral evidence on the point that B
distribution of pamphlet Ext. X4 on May 8, 2001 and May 9,
2001 was made by the appellant, is "10t borne out from the
record of the case. In fact there is no discussion as to which
witness has testified to this fact and why the High Court has
preferred that testimony as against the evidence tendered by c
the appellant.
15. This Court further finds that the High Court has
recorded a finding that the pamphlets were distributed by the
appellant by observing that "the allegation in para 13.1 (iii) is
also to be found to be established satisfactorily by the evidence D
tendered". This Court notices that before recording above
mentioned finding, the High Court has not taken trouble of
referring to any evidence on the record. The High Court while
recording the said finding should have referred to the evidence
which had tendency to establish the said fact. Thus, most of the E
findings recorded by the High Court are based on surmises and
inferences and have no factual basis at all. While discussing
whether the distribution of the pamphlets was with the consent
of the appellant, the High Court mentions the testimony of PW-
12 to PW-21. All these witnesses were produced by the F
respondent No. 1 during the course of the election trial. Many
of them admitted that they were affiliated to the respondent No.
1 and/or his party, whereas rest of them have been found to
be interested witnesses. There is absolutely nothing on the
record to show that the appellant had indulged in the act of G
distribution of pamphlets and thus committed a corrupt practice.
The case of the respondent No. 1 in the election petition was
that on May 8, 2001 seven UDF workers were arrested by the
police in connection with the distribution of pamphlets and the
appellant had personally got them released from the Police H
456 SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.
A Station and after coming out from the police station, the
appellant himself had distributed the pamphlets and directed
others -to distribute the same. As noticed earlier, the respondent
No. 1 had examined PW-7, Additional S.I., and produced Ext.
X5, which is GD entry to substantiate this case. Apart from the
B evidence of PW-12 to PW-21, who are his own party workers
and/or interested witnesses, the official evidence has
completely disproved the case of the respondent No. 1,
because PW-7 specifically stated that the seven UDF workers
were not arrested and so the appellant had no occasion to get
c them released. The GD entry also states that the ASI had gone
to the spot and removed the UDF workers from the scene to
avoid breach of law and order and later on they were let off on
the advice of the superior officers. Once it is held that the
respondent No. 1 has failed to prove that seven UDF workers,
who were distributing the pamphlets, were arrested and lodged
0
in the police station and that the appellant had gone to the police
station and got the seven workers released from the police
station, the further case of the respondent No. 1, that after
coming out of the police station, the appellant himself had
E distributed the offending pamphlets and directed others to
distribute the pamphlets, becomes highly doubtful and
improbable. This Court finds that the High Court has placed
reliance on unreliable and scanty evidence to find the appellant
guilty of corrupt practice and, therefore, the finding that the
appellant is disqualified under Section 99 of the Act is
F completely unsustainable.
16. The second question, which needs to be considered,
is whether it is satisfactorily proved by the respondent No. 1
that whether the pamphlets in question were distributed by the
G workers of UDF.
17. This Court further finds that the High Court has
recorded a finding in paragraph 39 of the impugned judgment
that the official documents, which have come from proper
custody, corroborate the ocular version of the witnesses about
H distribution of Ext. X4 on May 8, 2001 and May 9, 2001. On
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 457
[J.M. PANCHAL, J.]
scrutiny of the whole evidence on record this Court finds that A
the High Court has not pointed out as to which were the official
documents referred to in paragraph 39 of the impugned
judgment. The learned counsel for the respondent No. 1 also
could not point out to this Court any document which can be
termed as official document, which, in turn, corroborated the B
ocular version of the witnesses regarding distribution of Ext. X4
on May 8, 2001 and May 9, 2001. This Court finds that the
learned Judge has referred to Ext. X5, which is General Diary
maintained in the Police Station read with the testimony of
Additional S.I. of Police at Thiruvalla, Mr. V.R. Rajendran Nair c
to conclude that official document corroborated the version of
the witnesses that distribution of pamphlets, copy of which was
produced as Ext. X4, had taken place on May 8 and May 9,
2001. Ext. X5, which is referred to by the learned Judge, is to
be found on page 130 of Volume V of the appeal. It is General 0
Diary entry of the Police Station. The Additional S.I. PW-7, who
made the GD entry, has in terms disproved the arrest of seven
UDF workers, who were allegedly distributing the pamphlets,
and the involvement of the appellant in getting them released
from the Police Station as alleged by the respondent No. 1.
Therefore, this Court fails to understand as to how General
E
Diary entry of the Police Station and the testimony of Additional
S.I. PW-7 proved that seven UDF workers were distributing the
offending pamphlets and that the appellant was involved in
getting them released from the Police Station.
F
18. Further, while concluding that the pamphlets were
distributed by the UDF workers on May 8, 2001 and May 9,
2001, what is obseNed by the learned Judge is that the benefit
of the distribution would have enured to none other than the
appellant and, therefore, inference can be drawn that UDF G
workers had distributed the pamphlets with the consent of the
appellant. This Court finds that such a conclusion, based on
unwarranted inferences and surmises, is recorded only
because High Court had misdirected itself on the question of
standard of proof required to be adopted to resolve a dispute H
458 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A raised under Section 123 of the Act. The theory that the benefit
of distribution could have enured only to the appellant is
misplaced in the light of principles laid down in 0. Venkata
Reddy vs. R. Sultan and others (1976) 2 SCC 455. It is
relevant to notice that in his written statement the appellant had
B denied that 77 persons named in the election petition, who had
allegedly distributed the pamphlets, were UDF workers.
However, the High Court found that the appellant had in his
testimony admitted that some of them were in fact UDF workers.
Therefore, the High Court proceeded further to record a finding
c that "this must go a long way when the court considers the
question as to who had distributed copies of Ext. X4". Although
from the record it is evident that out of 77 persons named in
the election petition, the appellant had admitted that a few were
UDF workers but from this it would be unwise to jump on to the
conclusion and that too on inferepces that the UDF workers had
0
distributed the pamphlets. The High Court in the impugned
judgment could not even identify a single UDF worker, who,
according to it, had distributed the pamphlets and has simply
held that there is evidence to show that UDF workers had
distributed the pamphlets. The testimonies of 77 persons
E named in the election petition could not have been accepted
because their testimonies are self-serving and interested one.
The finding that DW-14 Mustafa Kutty admitted during his
cross-examination that UDF workers had distributed the
pamphlets is nothing else but the result of complete misreading
F of the testimony of the said witness. The said witness does not
make any such admission as is referred to by the High Court
in the impugned judgment. On the contrary the said witness had
stated that he had distributed only the pamphlets issued from
the Election Committee Office and nowhere had he stated that
G the Election Committee Office of the appellant had issued the
pamphlet's, copy of which was produced at Ext. X4, and that
he had distributed those pamphlets.
19. The discussion made above makes it evident that the
H respondent No. 1 has failed to prove that UDF workers had
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 459
[J.M. PANCHAL, J.]
distributed the offending pamphlets on May 8 and May 9, 2001. A
The finding of the High Court on this score being against the
weight of evidence is hereby set aside.
20. In the alternative, it was argued on behalf of the
appellant that even if the distribution of pamphlets by UDF 8
workers was held to be proved, no satisfactory evidence was
adduced by the respondent No. 1 to establish that distribution
of the pamphlets by the UDF workers was with the consent of
the appellant and, therefore, the judgment impugned is liable
to be set aside.
c
21. It is well-settled that to prove that the corrupt practice
of a third person is attributable to a candidate under Section
123 of the Act, it must be shown that the candidate consented
to the commission of such act. The finding that the appellant
knew about such distribution because benefit of such D
distribution could only enure to him, but he kept silent despite
knowledge of such distribution, is nothing else but an
unwarranted inference and surmise on the part of the court.
Similarly, the finding that seven UDF workers, who were
allegedly arrested on May 8, 2001 by the police for distribution E
of the pamphlets, were released at the behest of the appellant
who went to the Police Station and, therefore, there was
consent of the appellant is quite contrary to the testimonies of
the witnesses. It may be mentioned that this finding is arrived
at on the basis of (i) the averments in the election petition which F
have no basis to justify the finding, (ii) the testimonies of PW-
12 to PW-21, but scrutiny of their evidence reveals that none
of the said witnesses had witnessed the appellant going to the
police station and securing release of the seven workers and
(iii) entries in the General Diary Ext. X5 which contains no G
details and only records what the Sub-Inspector heard from
other people over the telephone about distribution of some
printed notices. Nothing is mentioned in the said entry about
involvement of any of UDF workers or the appellant and,
therefore, the finding that UDF workers had distributed the
H
460 SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.
A pamphlets with the consent of the appellant being against
evidence on record is liable to be set aside and is hereby set
aside.
22. The High Court's understanding of law that the
appellant would be liable for penalty under Section 99 of the
8
Act for the acts of his agents without the conviction of such
agents is completely erroneous in law. It is relevant to notice
that Mr. Jaya Varma was validly appointed as election agent
of the appellant. The High Court, on appreciation of the
C evidence adduced, has recorded a clear finding that no reliable
evidence was led by the respondent No. 1 to establish that Mr.
Jaya Varma himself had distributed the offending pamphlets
or that UDF workers had distributed the pamphlets with the
consent of Mr. Jaya Varma. The conclusion of the High Court
that distributer of objectionable pamphlets Ext. X4 need not be
D named nor a finding with name of the distribution be recorded
under Section 99(1 )(a)(ii) of the Act, to say the least, is contrary
to the ratio' laid down by this Court in Chandrakanta Goyal vs.
Sohan Singh Jodh Singh Kohli (1996) 1 SCC 378, wherein
the principle is laid down that when a candidate is held to be
E guilty of corrupt practice vicariously, for an act done by any
person other than his agent with his consent, then the ultimate
finding to this effect has to be recorded and that too only after
notice under Section 99 to that other person and an inquiry must
be held as contemplated therein naming the other person
F simultaneously for commission of such corrupt practice. There
is no manner of doubt that making of an order under Section
98 against the appellant, who is returned candidate, without
complying with the requirements of Section 99 when the corrupt
practice against the appellant is held to be proved vicariously
G for the act of another person, by itself vitiates the impugned
judgment. Further, in view of the principles laid down in the
above mentioned reported decision, it is also clear that the
court has no option in this matter and it is incumbent to name
such a person in the final verdict given in the election petition
H under Section 98 of tt:ie Act after making due compliance of
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 461
[J.M. PANCHAL, J.]
Section 99 of the Act. The High Court has not only acted A
contrary to law and ignored the mandate of Section 99 of the
Act but taken the view that there was an option availaple to the
Court to ignore the requirement of Section 99 to give notice to
the distributors of the pamphlets and to name them as persons
guilty of the corrupt practice even though the distribution of B
pamphlets by fhe UDF workers is made the foundation of the
corrupt practice, allegedly committed by the appellant. The '
judgment is obviously vitiated since no concluded finding on this
question is recorded against the UDF workers, who had
allegedly distributed Ext. X4, choosing to ignore the c
requirement of Section 99 of the Act. The approach of the
learned Judge of the High Court in finding the appellant guilty
for distribution of pamphlets vicariously in the sense that UDF
workers had distributed the pamphlets with the consent of the
appellant, after holding that there is no sufficient data to 0
conclude that those UDF workers who had distributed Ext. X4
pamphlets had the requisite contumacious mind, is contrary to
law and difficult to uphold. If the workers had no contumacious
mind, the appellant hardly could have been fastened with any
vicarious liability for the so called alleged corrupt practice.
E
23. The net result of the above discussion is that the
finding, recorded by the High Court that the pamphlets were
distributed on May 8 and May 9, 2001, is not only perverse but
contrary to the facts proved and, therefore, the same is liable
to be set aside. F
24. Another alternative plea, which was raised on behalf
of the appellant, was that even if the court were to hold that it
was proved by the respondent No. 1 that the appellant and/or
the UDF workers with the consent of the appellant had G
distributed the pamphlets in question, there was no publication
of the same within the meaning of Section 123(4) of the Act
as the contents of Ext. X4 were already previously published
in "Crime" Magazine having circulation in the constituency
concerned.
H
462 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A 25. The High Court further committed error in holding that
the distribution of the pamphlets amounted to publication for the
purposes of Section 123 of the Act. Section 123(4) of the Act
provides as follows:·-
"Corrupt Practices. - The following shall be deemed to
B
be corrupt practices for the purposes of this Act: -
(4) The publication by a candidate or his agent or by any
other person with the consent of a candidate or his
election agent, of any statement of fact which is false, and
c which he either believes to be false or does not believe to
be true, in relation to the personal character or conduct of
any candidate, or in relation to the candidature, or
withdrawal, of any candidate, being a statement
reasonably calculated to prejudice the prospects of that
D candidate's election."
It is an admitted fact that the objectionable pamphlets
contained statements, which were previously published in the
three editions of the "Crime" magazine which has circulation
E in the Constituency concerned. Though the High Court holds
that the pamphlet additionally contains a heading and a caption,
ultimately, the appellant is found guilty for republishing material
from Crime magazine relating to misappropriation of the funds
from one Vivekananda College. The question is whether
F republishing material from the "Crime" Magazine, which was
already distributed earlier, can be regarded as an act of
publication of statements of fact relating to the personal
character and/or conduct of the respondent No. 1, within the
meaning of Section 123(4) of the Act. The word "publication"
occurring in Section 123(4) of the Act, has not been defined
G under the Act. Therefore, it would be relevant to refer to the
meaning of the word "publication" as given in standard
dictionary. The word "publication" has been defined in Black's
Dictionary of Law (6th Edition) as follows: -
H "to make public; to make known to people in general; to
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 463
[J.M. PANCHAL, J.]
bring before public; to exhibit; display, disclose or A
reveal.. ....... the act of publishing anything; offering it to
public notice, or rendering it accessible to public scrutiny.
An advising of the public; a making known of something
to them for a purpose. It implies the means of conveying
knowledge or notice." B
A similar meaning has been ascribed to the word "publication"
in State of M. P. and another etc. etc. vs. Ram Raghubir
Prasad Agarwal and others (1979) 4 SCC 686. The first and
foremost ingredient of publishing is making information known
to the public in general. Publication is an act by which some C
information is exhibited, displayed, disclosed or revealed
before the public. By publication, the necessary information is
made accessible for public scrutiny. It is an act of making
known of something to the public in general for a purpose. In
the present case, this Court finds that the information as D
contained in the pamphlet about the respondent No. 1 having
misappropriated the funds of the school was already exhibited,
displayed, disclosed, made known, revealed and brought to the ·
notice of general public residing within the constituency when
"Crime" magazine was previously published and circulated in E
the constituency. The reproduction and distribution of the same
information within the space of a few months cannot amount to
publication for the purposes of Section 123 of the Act. It must
be remembered that a trial under Section 123 of the Act is a
criminal trial. Conviction under the provisions of Section 123, F
may lead to disqualification of the candidate concerned for a
period of six years under Section 99 of the Act, which is a
serious matter. Therefore, the provisions will have to be
construed strictly. So construed, there is no manner of doubt
that reproduction and distribution of the reproduced information G
within the space of few months cannot be regarded as
publication of the statements of fact relating to the personal
character and/or conduct of the respondent No. 1 within the
meaning of Section 123 of the Act. Instead, the impugned
'·judgment holds that as in law of defamation, the republication
H
464 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A of statements of fact also amounts to publication for the
purpose of Section 123(4) of the Act. This Court is of the firm
opinion that there is no warrant for such a conclusion and it is
wrong to say that republication as in defamation law amounts
to publication so far as Section 123(4) of the Act is concerned.
B 26. Another alternative plea raised on behalf of the
appellant for consideration of this Court was even if it was
assumed that the respondent No. 1 had proved that the
appellant and/or UDF workers with the consent of the appellant
had distributed the pamphlets and distribution of the pamphlets
C amounted to publication notwithstanding the fact that the
contents of the pamphlets were previously published in "Crime"
Magazine, it was contended that evidence adduced establishes
that the appellant had believed the imputations made against
the respondent No. 1 in Ext. X4 to be true, whereas it was not
D established by the respondent No. 1 that the imputations made
in Ext. X4 were believed to be untrue by the appellant and,
therefore, no corrupt practice as alleged was committed by the
appellant.
E 27. The High Court has further erred in holding that the
appellant believed the published material to be false at the time
of its distribution. One of the important ingredients in proving
the offence of corrupt practice under Section 123(4) of the Act
is that it has to be established that the returned candidate
believed the statement that was published, to be an untrue
F statement. It is significant that unlike the law of defamation,
where truth is a defence, Section 123(4) of the Act not only
recognizes truth as a defence by using the words "publication
of any statement of fact ..... which is false ..... " but additionally
protects the maker of the statement by stipulating that the maker
G must believe the statement to be false. This Court has held that
the onus of proving that the maker believed the statement to
be false rests with the election petitioner (see Dr. Jagjit Singh
vs. Giani Kartar Singh and others Al R 1966 SC 773 -
paragraph 21). The High Court does not explain how and by
H way of what evidence led by the respondent No. 1 it stands
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 465
[J.M. PANCHAL, J.]
proved that the· appellant believed that the contents of the A
pamphlets were false: On the contrary, the defence of the
appellant that he believed the statements made in Ext. X4 to
be true because of their prior publication in "Crime" magazine
and failure of the respondent No. 1 to initiate any legal action
against the Crime magazine, if tested on preponderance of B
probability stands proved. However, this defence of the
appellant is discarded by the High Court by making the
following observations: -
"71. There are many in this country who may believe that C
the printed word is truth. But that certainly is not the
yardstick or touch stone on which the contumacious state
of mind of the maker of a statement of fact will be
assessed. Merely because the Crime Magazine is one
having circulation, popularity and notoriety, D.W. 53 (the
appellant) cannot assert that he believed the printed words D
in Exts. R6, R7 and RB to be the gospel truth. If such an
approach were permitted, section 123(4) of the Act can
be violated with impunity if some yellow journalist publishes
unfounded allegations and the offender-facing proceedings
for defamation or for corrupt practice under Section 123(4) E
of the Act, repeats the allegation with impunity and claims
. immunity from. consequences of his conduct. That cannot
certainly be the law. That cannot be approach that this court
will adopt. The 1st respondent who has had a Jairly long
political career cannot contend that he simply swallowed F
the publications made earlier in Exts. R6, R7 and RB and
hence did not believe the statement of facts made in Ext.
X4 to be false or he did not believe them to be not true."
"7B. . .... the publication of the same statement of fact G
earlier in the Crime Magazine cannot justify the 1st
respondent. Even the fact that some other gullible
members of the public who read the relevant Crime
Magazines and came to know of these allegations believed
or did not doubt the truth of such statement of fact cannot
H
466 SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.
A help the 1st respondent at all. At worst, that can only prove
the pregnant possibilities of such false assertion of fact.
Except the earlier publication of the same statement of fact
in the Crime Magazine i.e. Exts. R6, R7 and R8, there is
not a semblance of scintilla or data which can persuade
B this Court to assume that the maker of the said
objectionable statement or any other had reasons to
believe the said statement of fact to be true or did not
believe it to be false."
C It is not clear from the extracts quoted above as to how the High
Court has concluded that the appellant could not have relied
upon the publications of the offending information in "Crime"
magazine. The reference to "Crime" magazine as a yellow
journal is also not proper. The term "yellow journal" has its
origins in American slang. It was initially used by some people
D to describe a newspaper called the "New York World" in the
early 1900s because the paper used to print sensational stories
and had a cartoon strip called the "yellow kid" which was printed
with yellow ink. Black's Law Dictionary (6th Edition) defines
"yellow journalism" as follows: -
E
"type of journalism which distorts and exploits the news by
sensationalism in order to sell copies of the newspapers
or magazines."
The High Court has summarily described "Crime" Magazine to
F be a yellow journal. Whether "Crime" magazine is a yellow
journal is a matter of opinion and not of fact It is impossible to
conclude that an opinion of this sort is a judicially noticeable
fact for the purposes of Section 56 or Section 57 of the
Evidence Act, 1872. There is nothing in the impugned judgment
G which indicates that any evidence was led, much less
considered as to whether "Crime" magazine is a yellow journal
and hence magazine could not have been relied upon by tile
appellant in forming a belief that the contents of the magazine
were not untrue. Further, between· the time of publication of
H offending material in Crime magazine and th.e alleged
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 467
[J.M. PANCHAL, J.]
distribution of the pamphlet, the respongent No. 1 did not pursue A
any action in law by way of criminal complaint or suit against
the publishers of the Crime Magazine for defamation. It is only
after the institution of the election petition that such a complaint
was filed, presumably as an after thought. Even in the said
complaint for defamation, filed by respondent No. 1 against the B
printer and publisher of crime, the third imputation which is
found as offending by the High Court was not included. This
would show that the respondent No. 1 himself considered the
said imputation as not defamatory or at least not capable of
being proved to be false. The appellant, in these circumstances, c
not only had an explanation but a satisfactory explanation as
to why he believed the objectionable statements in the pamphlet
Ext. X4 to be true. There is no manner of doubt that the High
Court, therefore, erred in holding otherwise, despite the fact that
the respondent No. 1 had not discharged initial onus resting on 0
him. In view of the fundamental mistake committed by the High
Court in the matter of standard of proof while resolving dispute
of corrupt practice and faulty appreciation of evidence by
applying wrong standard of proof as also the fact that the
election of the appellant is set aside on the basis of broad
E
probabilities and presumptions, without even referring to any
of the evidence adduced by the parties, the impugned judgment
is liable to be set aside.
28. For the foregoing reasons the appeal succeeds. The
judgment dated August 8, 2005, rendered by the learned single F
Judge of the High Court of Kerala at Ernakulam in Election
Petition No. 6 of 2001 by which the election of the appellant as
a member of Kerala Legislative Assembly No. 106 Kallooppara
Constituency is declared to be void on the ground that he is
guilty of corrupt practice under Section 123(4) of the G
Representation of People Act, 1951, is hereby set aside. There
shall be no order as to costs.
R.P. Appeal allowed.
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