GURUn SHRIHAR BALIRAM nv ATODE v. VITHALRAO & ORS. November 19, 1968 [G. K. MITTER AND K. S. HEGDE, JJ.] . · Representation of the People Act, (43 of 1951) s. 123(4)–0b/ect of section-Corrupt practice aso defined in sec~ion, ingredients of. The appellant was the returned candidate from the Rajilra constituency <If Maharashtra State Legislative Assembly in the general election held ill February 1967. The first respondent who was one of the defeated can- didates challenged the appellant's election in an election petition. The
High Court held that the appellant had made false statements about the personal character and conduct of the first respondent and was guilty of corrupt practice within the meaning of s. 123 ( 4) of the Representation of the People Act, 1951. On this view the High Court allowed the elec- tion petition and set aside the election of the appellant who appealed to thi• Court.
HELD: (i) The election law in this country as in England guarantees !freedom of criticism of political nature at the time of election. The free- dom of criticism may sometimes be misused,· but the advantage gained from free criticism-though sometimes it may turn out to be irresponsible -in the long run outweighs the disadvantages. It is in the interests of democracy that such criticism should be allowed.
However democracy will be a farce if interested persons are allowed to freely indulge in character assassination during election. A political party may not be affected by passing winds but a campaign of slander against an individual is likely to create prejudiee in the mind of the people against him. Section 123(4) is designed to achieve the dual purpose df protecting freedom of speech and prevention of malicious attack on the personal character and conduct of rivals. [769 CJ
(b) The ingredients of the corrupt practice mentioned in s. 123 ( 4) are ( 1) the publication by a candidate or his election agent or by "llY other person with the consent of that candidate or his election agent of "llY statement of fact; (2) which statement is false and which was believ- .ed by the candidate to be false or at any rate was not believed by him to .be true; (3) the said statement relates to the personal character or con- duct of a candidate or is in relation to bis candidature or withdrawal; and ( 4) the same being a statement reasonably calculated to prejudice the prospects of that candidate's election. The burden of proving every one of the ingredients of the corrupt practice alleged is on him who alleges it. [7 68 G; 771 B-:-CJ
· (c) Every false allegation does not come within the mischief of s. 123(4). The language of the section is 'any statement of fact which is f;)!se' and that language must be used in contrast to a false statement of Opiriioi:t. · The statement in question must be in relation to the personal character of candidate. It is when the false allegation pierces the politi- cian and tquches the person o'f the candidate tl)at s. 123(4) is contraven- ed.
Further one of the ingredients of the corrupt practice under the section is that the statement complained df must be one reasonably calcu- lated to prejudice the prospects of the election of the person against whom it is made. 'Calculated' means designed : it denotes more than "mere ,. –
~ . . c ·C G. s. BALIRAM v. VITHALRAO (Hegde, /.) likelihood and imports a design to affect voters. The emphasis in the last limb of the section is not so much on the intention of the publisher but on the proooble effect on the election of the candidate against whom those statements are directed. [769 F-G; 770 El
(ii) In the present case the statements alle~ed t~ have been m~de by the appellant did not amount to corrupt practice w1thlll the meanmg of s. 123 ( 4) as they amounted either to fair political criticism or were mere expressions of opinion. The complaint that the appellant had stated that the respondent had a share in the profits earned by a contractor is neither alleged in the election petition nor satisfactorily proved. [777 D, F] Sheopat Singh v. Ram Pratap, [1965] I S.C.R. 175, T. K. Gangi Reddy v. M. C. Anjaneya Reddy & Ors., XXII E.L.R. p. 266 and Dattatraya Narayan Patil v. Dattatraya Krishnaji Khenvikar & Ors.
A.LR. Born. 244, relied on. Cumberland (Cockermouth Division) Case, (1901) 5 O'M&H. p. 155, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1778 of 1967. Appeal under s. 116-A of the Representation of the People
Act, 1951 from the judgment and order dated October 3, 1967 of the Bombay High Court, Nagpur Bench in Election Petition No. 14 of 1967. C. B. Agarwala and A. G. Ratnaparkhi, for the appellant.
R. M. Hazarnavis, B. A. Masodkar, S. B. Wad, V. D. Chetande and M. S. Gupta, for respondent No. 1. The Judgment of the Court was delivered by Hegde, J. The appellant is the returned candidate from the Rajura constituency of the Maharashtra State Legislative Assem- bly in the general election held in February 1967. In that election he secured 21,435 votes as against 17,521 votes secured by his nearest rival, the first respondent herein, the nominee of the Indian National Congress.
The first respondent was representing that constituency prior to the said general election. The first respondent challenged the validity of the appellant's election in Election Petition No. 14 of 1967 in the High Court of Judicature at Bombay (Nagpur Bench) on two grounds namely (1) that the appellant was disqualified to be a candidate in that election and (2) that he_ was guilty of corrupt practices under s. 123(4) of the Representat10n of the People Act, 1951 (to be hereinafter referred to as the Act). The High Court allowed the petition and set aside the ~le~tion of the appellant on ~he ground that he was guilty of pubhshmg statements of facts which are false and which he either believed to be false or did not believe them to be true in relation to the personal character and conduct of t]:ie first res~ndent. It did not uphold the contention of the first respondent that the appel. lant was disquaJified to be a candidate.
768.. Though at one stage. Mr .. Hazarnavis, learned Counsel for the first respondent attempted to support the judgment of the trial court on the ground that the appellant was disqualified to be a candidate, he finally gave up that contention: Therefore it is_, 11of necessary to .exam\ne the __ same.
The, High Court has. found. that the appe!lant was Iesponsible for the publication of Exhs. 55 and 56 which according to it contained statemi;nts -of facts relating to the personal character and. conduct
of the first respondent and those statements were either false to his knowledge or at any rate he did not believe them to be true. It further came to the conclusion. that in some of the election meetings the appellant had falsely stated that the • first respondent had a share in the contract secured by him for one c
Abid Huss:iin. The bulk of the evidence adduced in this case relates to the controversy whether the appellant was responsible for the printing and publication of Exhs. 55 and 56. ·The High Court has accepted the case of the first respondent that the appellant was responsible· for printing and publishing those pamphlets. We have beeri taken through that evidence and we agree with the High Court on that aspect of the case.
It is not necessary to deal with that evidence as we are of opinion that the statements contained in those pamph- lets do not amount to corrupt practice under s. 123 ( 4) of. the Act. Section 123 ( 4) reads :
_"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 which he either-believes to be false or does
not· believe to be true in relation tp the personal charac- ter or conduct .of any candidate, or in relation to . the candidature . or withdrawal of any candidate, being a . st!ltement. reason.ably calculated to prejudice the pros- . pects of_ that ca!J.didate's electjon." . .
. ,. . ,,, The ingredients of.the corrupt practice-mentioned in. this section are (1) the publication' by a. candidate or his election agent or: by any other. person with the consent of that candidate or ,his election agent ·of. any·statement of fact; (2) which statement.is false.,and1which was believed .. by the candidate to be false.or. at a.ny rate was. not believed.bv him to be :true; (.3) the said state•. ment,relate t0< the,.personal character or condue<t-of..a candidate.'.Qr. in. relation m .. his .candidature or withdrawal and ( 4) the same bein~ l1 ~!~tf(IDEP.~ i:~a~R!1ably, 1;3;\(ful~t~4,to p~ej)ldice.tl/.~ prospycts o! that ~'l!1d~?a~~-~%£~Jy~t12'1· ~ . .rti ~.u {} ,~ – 1.1 ….. , • 0 .,, oat.
_.f ;,•.t Jt~~ Lt'~ As explained by this Court in Sheopat Singh v. Ram Pratap( 1 ) s. 123 ( 4) is designed to achieve the dual purpose of protecting (I) [!9651 1 S.C.R. 175. l \ -,.
c G. s. BALIRAM v. VITHALRAO (Hegde, J.) freedom of speech and prevention of 'malicfous attack on the per'- sonal character and conduct of rivals. A statement which reflects on the mental or moral character of a person is one relating to his personal character or conduct whereas any criticism of a person's political or public activities and policies is outside it. Section
123 ( 4) further requires that the candidate who made a false state- ment should have believed it to be false or did not believe it to be true and lastly it should be a statement reasonably calculated. to prejudice the prospects of the election of the candidate agamst whom it was made.
The word 'calculated' means designed : it ·denotes more than mere likelihood and imports a design to affect voters. The election law in this country as in England guarantees freedom of criticism of political nature at the time of election. It is true that the freedom of criticism given might be sometime misused.
The political history of even countries like England shows that sensational false election propaganda against a political party, particularly on the eve of election might upset the party's electoral fortune.
But the advantage gained from free criticism -though sometimes it may tum out to be irresponsible-in the long run outweighs the disadvantages. It is in the interest of_ democracy that such criticism should be allowed. This is the view of political thinkers. A political party's reputation is not built on shifting sands. It has, at any rate, it should have, firmer founda- tion and should not be affected by passing winds. But in the case of individuals a different approach is necessary. A campaign of slander is likely to create prejudice in the mind of the people against him. It cannot be put down as cynicism when it is some- times said that the bigger the lie the greater is the chance of its ~ing accepted as true. There is unfortunately a tendency in the mmds of the unwary public to believe the worst about individuals. Democracy will be a farce if interested persons are allowed to freely indulge in character assassination during election. Section 123 ( 4) as we understand it embodies the two principles discussed above. Every false allegation does not come within the mischief -o.f s. 123 ( 4 ). When any false allegation of fact pierce the politi- cian and touches the. person of the candidate then s. 123 ( 4) is contravened.
. Dealing ';Yith the !11eaning of the expression 'personal character and c~nduct found . m s. 123 ( 4) Subba Rao J. speaking for the Court m T. K. Gangi Reddy v. M. C. Anjaneya Reddy and Ors.(') observed at p. 266 of the report :
"the words 'personal character or conduct' are so clear. !hat they do not require further elucidation or definition. The character of a ·person may ordinarily (I) XXII, E.L.R. p. 266,
SUPREME COURT llEPORT& (1969] 2 S.C.R. be equated with his mental or moral nature. Conduct connotes a person's actions or behaviour." Dealing with a provision similar to s. 123 ( 4)
Darling J., Cumberland (Cockermouth Division) case(') observed : . "What the Act forbids is this. You shall not make or publish any false statement of fact in relation to the personal character or conduct of such candidate; if you
do, it is an illegal practice. It is not •an offence to say something which may be severe about another person nor which may be unjustifiable nor which may be derogatory unless it amounts to a false statement of fact in rela-
tion to the personal character or conduct of such candi- date; and I think the Act says that there is a great distinction to be drawn between a false statement of fact which affects · the personal character or conduct of a
candidate and a false statement of fact which deals with the political position or reputation or action of the candidate. If that were not kept in mind, this statute would simply have prohibited at election times al! sorts
of criticism which was not strictly true relating to the political behaviour and opinions of the candidate. That is why it carefully provides that the false statement, in order to be an illegal practice, must relate to the per-
sonal character and personal conduct." in The language of s. 123 ( 4) is 'any statement of fact which is false' and that language must be used in contrast to a: false statement of opinion.
The language used is not merely a 'false statement' but a 'statement of fact which is false'. The statement in question must be in relation to the personal character or conduct of a can- didate, which means a false statement of fact bearing on the per- sonal character or conduct of a candidate. Further one of the ingredients of the corrupt practice under s. 123 ( 4) is that the · statement complained of must be one reasonably calculated to pre- judice the prospects of the election of the person against whom it is made. It may be noted that the section does not merely say 'being a statement calculated to prejudice the prospects of the candidate's election' but on the other hand it says 'being a state- ment reasonably calculated to prejudice the prospects of that can- didate's election'.
The meaning of that expression is as held by a Division Bench of the Bombay High Court in Dattatraya Narayan Patil v. Dattatraya Krishnaji Khenvikar and Ors.(2 ) that the pub- lication of false statement of fact relating to the personal character or conduct must be such as would, in the estimation of. the Court, having regard to the nature of the publication, the evidence ten- (!) (1901) 5, O'M & H. p. 155.
(2) A.l.R.1964 Born. 224. .~ " c ·–. • G. s. BALIRAM v. VITHALRAO (Hegde, /.) dcred in Court and the surrounding circumstances have its natural and probable consequence of prejudicing the prospects of the candidate relating to whose personal character or conduct the pu~ lication has been made.
So far as the last limb of s. 123 ( 4) IS concerned, the emphasis is not so much on the intention of the publislrer but on the probable effect on the election of the candi- date against whom those statements are directed .
c r It is trite to say that the burden of proving everyone of the ingredients of the corrupt practice alleged is on hinI who alleges it. 1f he fails to establish any one of them to the satisfaction of the Court he must fail.
We shall now proceed to consider whether the statements of facts contained in Exhs. 55 and 56 fall within the mischief of s. 123 ( 4). Before doing so it is necessary to give the background under which the statements complained of were made. As men- tioned earlier the first respondent was representing the constituency in question prior to the general election in 1967.
Sometime before the election the cultivators in the Rajura constituency as in other places were required to deliver to the Government a portion of the juwar crop raised by them in pursuance of the levy orders made. This circumstance must have undoubtedly caused dis-
satisfaction to the ryots. Rajura Taluka was previously a part of the N~am's State and thereafter the State of Hyderabad till the formation of the Maharashtra State. We understand that in that Taluka, the boundary stones had not been fixed.
The State of Maharashtra appears to have directed the landowners to fix the ne~sary boundary stones for their property within a certain penod. As some of them did not comply with that direction the Government took upon
itself the responsibility of fixing those boundary stones at the cost of those ryots. That work was given on cQiltract to ol!-e Abid Hussain. It was suggested that charges !lxed wer_e excessive.
I~ may be mentioned at this stage that dur- mg th~ time when the 1uwar levy was imposed and the contract ~r fixmg :!1e bounda;y stones :nas given (as also at present) the ~ogress arty was m power m the State of Maharashtra 'The
~ respondent wa_s a Con~ress M.L.A. In the past toll~ were leVIed on every vehicle entermg the municipal limits of R . b ~me years befor~ the. election that levy had been abo1i:e~ b~~ th e~am~ :s a.\iam r~1!11posed sometimes before the election At
C e e re1IDpos1t1on of that levy Shr:i Shankarrao Deshniukh a ongressman was the Chairman of the R . Having me~tioned tthese facts we shall now pro~1:rato e~~~l~al:. statements m Exhts. 55 and 56.
e e . Exh. 55 is a Mara~i poem composed by the appellant's elec- tion ~gent Dr .. Sur~h V1shvanathrao Upaganlawer (R.W 3) Its English rendermg IS as follows : :-:·'.-:./-/.,,>:::· -~ \\ .
. · ',, .._,;. – . ' ', ' '.I_,: .•. ' \.•' ' . ': • .. -Stil'REME COUR'f iul:l'ORT!i'.- ,; [1969] 2 S.C.R. -\';-; ·- · · • — "'Request to Voters. : . ·Rise Rise Oh Voters Awake .at least now
. Understand and begin to work. :You have suffered for five years, auspicious day has ·:dawned now, truthful to your conscience, wake to vote, Oh brothers.wake to vote. Today kick off (this) slavery in the freedom
(and) you should expose; yol! should expose the · . sins of. Vithalrao. – He held out to be the leader of the·people . (but) he put burden of stones (on the people) . By those very stones (you) build his grave, brothers
– build his grave. • For recovery of levy (from us) unlimited force used a'gainst us. ·· They take white juwar and give red millow (to us) and now confront him (witli this). – – Today our luck has dawned, (in that)
we got a – .- · great leader. · For protecting the interests or' poor people· see this Guruji has taken an Avatar. . (His) name is Jivtode Shrihari, has responded to … our. immediate call
By giving your invaluable vote, · To .Jivtode and Kaushik Pleader; Elect them this – time. _ Take vow like -Bhishma and· begin working today brothers. . .. begin working today, Seeing Lion Symbol, by affiXing rubber stamp on it
c –.. We will show to the world,'Brother we wiUshow ""– _ ~ur candidates that success garlands (him.)" . -….;– -Eirn. -5 6 is a pamphlet published in Marathi. It purports to be an appeal by one Ganpat Patil Dhote. The English translation :_ of it}s fou_ndat p. 563-565 of the paper-book. -It reads thus·: – – · – · ·· · ~ – -·<VOTERS BE CAREFUL
: :: · :··ill the forthco;ru~g General Elections the sitting M.L.A. Shri Vithalrao Dhote is standing for Maharash- ~-.' tra,I;egislative ASSembly on behalf of Congress. The" .:i. · JlO<>r.:people- have;had experience· : of Shri -Vithalrao. ··:;: Dhote as M.L.A.
·· ·:.·:·::: .. '.:· .;,· <<;:::·;.;·_::-::::—_::-..,.::::; – c G. s. BALIRAM v. VITHALRAO (Hegde, J.) Havip.g been•elected· in.the 1st General Elections Shri Vithalrao Dhote would work for the benefit of the
people and deyelop the backward Rajura Taluka was our expectation. But the. People of Rajura Taluka have been utterly disappointed by Shri Vithalrao Dhote. , ln this Taluka the High School which was there in the
times of Nizam the High School is. there in .whole of Rajura Taluka till to-day. Shri Vithalrao Dhote could not construct a Single Pucca Road. Could not supply electricity to any village anywhere.
Could not make arrangements for watering agriculture. In this Talµka though there is thousands of acres of fallow land, for distributing it to landless no effort was made by Shri Vithalrao Dhote. In the last five years no work for the
benefit of the people has been done by VithaJrao Dhote. On the contrary, through his selfish and fraudulent companion Shri Shankarrao Deshmukh, the Municipal President of Rajura (he got) imposed the stopped toll
tax on the bullock cart (Rengi and Bandi) of poor peo- ple coming to Rajura. Its effect has been surely felt by every poor man in the Taluka.. Similarly by fixing boundary stones on the Dhuras of the cultivators in
Rajura Taluka and by recovering price of stones Shri VithaJrao Dhote has worked for t)le benefit of Abid Husain Thekedar alone. In this taluka the cultivators could not get Taccavi loans without giving bribe at the
time of distributing taccavi.. Shri Vithalrao Dhote could not check bribery. Shri Vithalrao Dhote has neglected the poor people by looking to the interests of Thekedar (contractor) ·alone. , By this, poor people have lost all
faith in Shri Vithalrao Dhote in ·Rajura Taluka. By this the poor people are very much harassed. When I myself moved in the villages in this Taluka, I found that public opinion is inclined against Shri Vithalrao Dhote.
People are organised as Shri Vithalrao Dhote has harassed the poorer for furthering interests of his selfish and deceitful companion. Because .of this and with great reluctance and keeping interests .of public in 'view lam publishing this. pamphlet against Amdar Vithakao
Dhote to keep the true facts before the public. The man who is proving .dangerous to the majority in the l:iociety and poorer section of the public has to · · be pulled down from his office (and) except this, there is
no other way is my belie( Hence I humbly request the voters in Rajura Co11sti- tuency that they should not vote for the Congress candi· .. ' '174 [1969] 2 S.CJI.. date Shri Vithalrao Dhote. Contesting candidate from
Rajura Constituency Shri Jivatode Guruji has worked for spread of Education by opening Janata High Schools. Shri Jiotode Guruji has benefited the poor people by opening all kinds of colleges of Chanda. "Shri Jiotode
Guruji" will bring about the development of backward Rajura Taluka positively. Hence by putting a cross on the Lion Symbol of Vidarbha Joint Front's Shri Jiotode Guruji, Shri Jiotode
Guruji be elected by a large majority is my humble and earnest request to the voters. Yours humbly Ganpat Patil Dhote Symbol of Lion Put Cross only on Lion. In small type Publish:
Ganpat Patil (Shivshakti of Chote r/o Nimani T. Rajura Chandrapur). The various statements contained in these two pamphlets are c summarised by the learned Trial Judge thus : "(a) (The Petitioner) has imposed the toll tax on
poor citizens on their bullock carts through his selfish and bog11$ companion Shri Shankarrao Deshmukh, President of Rajura Municipality, which has caused undue suffering to every poor
citizen residing in this part. (b) Vithalrao Dhote has. only secured advantage for Abid Husain, Contractor, by imposing the bur- den of paying for the border stones which were compulsorily ordered to be fixed.
( c) In this taluq no cultivator has been able to get taccavi without payment of bribe ·and Vithalrao is unable to prevent it. ( d) Vithalrao Dhote has solely protected the interest
of the contractor and neglected the poor citizens and on that account VithaJrao Dhote has for- feited confidence of poor. persons in Rajura taluq. ( e) The poor population is simply harassed and I
have found that the inclination of the people is against Vithalrao Dhote when I we11t around in the village. (f) Poor persons are simply harassed on account of exploitation and ruin caused by Vithalrao Dhote
solely for the benefit of his selfish and bogus companions. (I, S, BALlllAM V. VITHALRAO (Hegde, /.) (g) Persons (meaning the petitioner) who is a menace to the majority of the community and
poor persons must be sacked from the office in my firm conviction." None of the afore-mentioned allegations Can be held to relate to the personal character or conduct of the first respondent. They are undoubtedly criticism, true, false or exaggerated, of the first respondent's roll as a politician. Those statements do not make any reflection on the moral or mental qualities of the first respon- dent.
As mentioned earlier a Congressman was the President of the Rajura Municipality at the time the tolls were reimposed. It c may be that the first respondent had no hand in the matter of re· imposition of the tolls and that the accusation that he got it re- imposed is not true but that in no manner. can be said to reflect on the personal character or conduct of the first respondent. Similarly the accusation that the first respondent secured advantage for Abid Hussain by imposing a burden on the land owners by making them pay for the boundary stones cannot be said to
reflect on the private character of the first respondent whether the statement in question is true or false. The appellant had a right to hold the first respondent responsible for the actions of the Government as he was a member of the party in power.
The allegation that in the Rajura Taluka no cultivator had been able to get Taccavi loans without payment of bribe and that the first respondent was unable to prevent it, is undoubtedly a legitimate , ..
criticism. The allegation that he solely protected the interests of the contractor and ignored that of the poor citizens and on that account he has forfeited the confidence of the poor persons in his constituency is an expression of an opinion, whether the same is true or not. The allegation that the poor population is simply harassed and that the signatory to the pamphlet found that the inclination of the people is against the first respondent when he went around in the village, is merely an opinion and not a state!llent of fact. Similarly the allegation that the poor persons are bemg harassed on account of the exploitation and ruin caused by the fi.rst respondent solely for the benefit of his selfish and bogus c~~~am~ns is ~
~xpression of an opinion and it is a permissible cnt1c1sm 1n a poht1cal debate. The assertion that the first respon- dent is a menace to the majority as also to the poor and therefore ~e must be sacked from the office is as stated in the pamphlet itself is purported to be the conviction of the person who issued !]le statement. He is entitled to hold that ooinion and propagate • ..
it. It must be remembered that during election time passions are roused; election propoganda should not be tested bv the standards to be adopted in a debate carried on bv intellectuals. It mav be that many of the charges levelled attainst a candidate as recrards his political past or about his capacity to be a useful representative are not true1 'It fa,.fgr the:eie.etorate:to· judge :those, accusations. so. long as those accusations do not affect the personal character or conduqt of the candidate;. the election law wilJ,not take note of it. T)lat is: why it is said· that a politician must be thick skinned and more so at election. time .. As mentioned earlier it is not a corrupt practice to say something. which. may, be severe about an- other person, nor whicr may be unjustifiable nor which may be derogatory unless it:amounts . .to a· false statement of fact in rela- ·tion to. his ,personal· character ·or conduct.
• ·It ·is unfortunate that the High Court exclusively focussed· its atfontiori on. the 'question" whether or nbt the appellant caused to get Exhs. 55 and 56 printed and published and . completely ignored the true effect of the statements contained therein. · It proceeded on the erroneous impression that every false or unjusti- fied criticism of a candidate amounts to a contravention of s. 123( 4). Dealing with Exhs. 55 and. 56 this is what the learned Trial Judge observed :.
"To say against anybody that he is responsible for imposition· of ·a tax without justification through that person's selfish and pretentious friend like the· President of the-Municipal Council is, to say the least; to suggest
that such person ·. is the direct cause of harassment on account of such taxation on poor people. It is said in the third paragraph of the pamphlet and then there is. a direct allegation against the petitioner th.at it is the peti- tioner;. who ·caused the cultivators in the Rajura taJuq
to be burdened with the expense of fix_ing the border stones and that. in doing so the petitioner Vithalrao Dhote · has solely secured an advance for Abid Hussain Theke- dar: · In the fourth paragraph, it is categorically.alleged · that the petitioner Vjthalrao Dhote has exploited· and
harassed poor people in order to benefit his i.e.' Vithalrao selfish and pretentious · friends and such ·harassment · bas caused· untold miseries. That these allegations are scurrilous does not admit of any doubt. They are defa-
matory per se.: Every citizen.'is entitled to be·presumed to he innocent until contrary is proved. If therefore an al!egation of a personal character is made against any- one, it js the maker of',.the allegation who has to estab- lish that- there is. truth in: the allegation. ry
It ·is clear that the }Iigh Court faileci:to eX:aniine the effe~t of the statements contained in Exhs. '55 and 56 by the tests prescnbed in s. 12'.I ( 4). Further there -is no proof in this case that the state- ments contained.in Exhs __ 55. :and 56.are reasonably ealculated to prejudice. the election .of. the respondent. .. The Trial Court did not give any finding effect. . · .. · …. · ·
•. · • · · •. · ,,. ·_ • ffl' ''. ''· …. . :'.:.l -~ • fj c (l · . .; ~-· '" … . . . -0. s. BALIRA.M v .. VITHALRAO (Hegde, 1.) . 771 This leaves us with the question whether the appellant had announc ed in his election meetings that the first re.'ipondent had a share in the profits earned by Abid Hussain ijl1 the matter ·of fixing boundary stones. The High Court has held that the appellant made :1
that accusation while addressing election meetings at two places. If that finding is correct then undoubtedly there is a contravention of s. 123 ( 4) but after carefully examining the material on i;ecoi:d. we have cbme to the conclusion that that finding is unsustainable. '. .
The election petition was filed on April 11, 1967. That peti- tion merely sets out what according to the petitioner are the con- tents of Exts. 55 and 56. It is not stated therein that apart from the statements contained in those pamphlets
any other false statement of fact relating to the personal character or conduct of the first respondent had been made either by the appellant or his supporters. The allegation that the appellant in his election meet-
ings had stated that the first respondent had a share in the profits earned by Abid Hussain in the matter of fixing the boundary stone is not mentioned there. An application to amend the election
petition was made on June 24, 1967. In that application also there is no reference to the allegation in question. The election petition was again amended on 3-7-1967. It was only then the following allegation was made :
"He (the appellant) was falsely alleging that the petitioner was or had actively helped Abid Hussain for his selfish ends to make illegal gains and thus allege false corrupt motives to him."
Even this allegation is vague. That apart it is a highly belated allega~ tion. It appears to be an afterthought. It is not necessary for us to decide in this case whether such an amendment could have been permitted after the liniitation for filing the election petition had expired: But the very circumstance that the allegation in question was made several months after the election petition was filed by itself casts serious doubt on the veracity of that allegation. This circumstance was completely overlooked by the High Court.
The witnesses who spoke in support of the said allegation are the first respondent (P.W. 2), P.W. 9, Arjan Kashinath Masirkar and P.W. 12, Nazir Hussain Akbar Ali. So far as P.W. 2 is
concerned he is undoubtedJy an interested witness. In the circum- s!ances mentioned above, his evidence can have very little persua- sive value. So far as P.W. 9 is concerned on his own showing he was highly interested in the first respondent and the Congress Party. As elicited during his cross examination he was a Cong- ress candidate for election as SarpMJ.Ch and as a member of the Panchayat Samiti.
The appellant's cousin was his rival in that election. Admittedly during the last election he canvassed for the SUPREMll COURT REPORTS (1969} 2 S.C.R. first respondent. Under these circumstances much reliance can· not be placed on the testimony of this witness.
Then we come to the evidence of P. W. 12. · During his cross-examination this is what he stated : "I have not received a summons. Vithalrao had asked me to produce the register where the hire of cycles
is noted and that is how the chits which I have filed came with the register …… " His evidence is to the effect that the appellant while presiding over the meeting at Rajura on Feb11Uary 13, 1967 stated that the first respondent had a share in the contract for fixing of border stones which was produced for him by Vithalrao. When he was cross- examined about that meeting this is what he stated :
"I don't remember who was the President of the meeting. I will not be able to name at this distance of time the names of persons from the town or the villagers who were listening at the meeting. I will not be able
to name a single person from amongst these." Obviously he is a procured witness. No reliance can be placed on his evidence. For the reason~ mentioned above we hold that the election
petitioner (first respondent herein) has failed to make out that the appellant had contravened s. 123(4). Hence this appeal succeeds and the election petition stands dismissed. We are of opinion that we should not award any costs to the appellant.
He had come forward with a false case and had protracted the trial of the case by adducing voluminous false evidence. Hence we direct the parties to bear their own costs both in this Court as we]J as in the High Court.
G.C. Appeal allowed. c