Supreme Court of India
Lalit Kishore Chaturvedi vs Jagdish Prasad Thada And Others on 16 February, 1990
Equivalent citations: AIR 1990 SC 1731, JT 1990 (1) SC 215, 1990 (1) SCALE 199
Author: R Sahai
Bench: M Kania, R Sahai
ORDER
R.M. Sahai, J.
1. Election of appellant to the Rajasthan State Assembly from
constituency Kota was invalidated by the High Court for being guilty of
corrupt practice within the meaning of Sub-section (2) and (4) of
Section 123 of Representation of People Act of 1951 (hereinafter
referred to as the 'Act').
2. Basis for it was, only, a leaflet got printed by the appellant, the
English translation of which is extracted below:
"Kachi Bastis shall be erased to the ground by bulldozers".
Threat by Shanti Dhariwal" Congress in its true colours. Posing as
so-called benefactor of weak and downtrodden poor people, the
Congress has come in its true colours.
Shanti Dhariwal threatened the Kachi Basti people in Anantpura on
1.3.1985. That "Kachi Bastiwalo you have to cast your vote to
Congress in the Assembly elections also as in the Lok Sabha
elections. In case Jagdish Thade looses then I shall get the Kachi
Bastis buldozed. I shall see your houses shall be razed to the
ground."
You recognise their true faces. They are wolf in the skin of
Jackals. They have started showing their blood soaked hands and
blood thirsty jaws. The grip of Congress is tightening around your
neck.
You have to ponder as to whether those give threats to raze your
houses by bulldozers are entitled to get your vote.
Reply these Jackal threats by casting your vote on fifth March.
BJP with you in every struggle.
Vote for BJP".
3. Did it relate to personal character or conduct of the Congress
candidate, the primary ingredient of Section 123(4) of the Act? If it
was then, was it false? And false to the knowledge of appellant? Did it
amount to undue influence resulting in interference with free exercise
of electoral right under Section 123(2)? According to the High Court it
did as words their "inke" and they "inhone" used in the leaflet
referred to the personal conduct of the candidate, and not to the
party. The High Court further found that looking to the margin by which
the appellant succeeded, i.e. 579 votes, the statement made was
reasonably calculated to prejudice prospect of the Congress candidate.
Even first part of the leaflet, that is, the extract of the speech,
purported to have been delivered by the Congress M.P. was held to be
false as it could not be established that any meeting took place.
Election was found invalid, also because of undue influence exercised
by making false representation that if Congress candidate was elected
the house shall be erased. Whether the High Court was justified in
concluding that, the statement in leaflet was false even though Shri
Dhariwal from whose speech the purported extract was got printed, and
Smt. Premlata the other Speaker were not examined and the statement of
the appellant and his witnesses, DW-7 and DW-8 were disbelieved on an
erroneous application of ratio in Surinder Singh v. Har Dayal Singh
as evidence led by the appellant was not for proving
corrupt practice, need not be gone into if the claim of the appellant
that on the pleadings in the Election petition filed under Section 83
read with Section 100 of the Act no triable issue arose is well
founded, then the petition was liable to be dismissed under Order 7
Rule 11, CPC. It is liable to be dismissed, even now in appeal as is
clear from ratio in
Hardwari Lal v. Karam Singh if it
is found that pleadings were insufficient or they were lacking
immaterial particulars.
4. The submission that an election petition could be dismissed, apart
from merit, only for one of the reasons mentioned in Section 86(1) is
devoid of any substance. Dismissals visualised under Section 86(1) are
for lack of verification or presentation of petition beyond time or for
defect in joinder of patties or for non-deposit of security for costs.
These are defects in frame or presentation of petition. On the other
hand dismissal for failure to disclose cause of action under Order 7
Rule 11 of Civil Procedure Code is in course of trial.
In Azhar Hussain
v. Rajiv Gandhi 1986 (Supp) SCC 315, it was observed, 'that the fact
that Section 83 does not find place in Section 86 of the Act does not
mean that powers under C.P.C. cannot be exercised.'
5. Elections the mechanical guarantee of democracy and means to the end
of the Government by public opinion responsive and responsible to the
electorate is basically fought out on fair criticism. Resorting to
corrupt practice in it is subversive of democratic process. Impact of
it is deep and wide spread, therefore, statutory compulsion visualised
by 83(i)(b) of the Art to set forth full particulars of such practice
including names of persons, time and place, has been construed strictly
and in absence of precise and specific pleading it has been held to
render an Election petition infirm.
6. An election petition filed under Section 81 is required by Section
83(1) to contain concise statement of the material facts on which
petitioner relies. And Clause (b) further mandates a petition to set
forth particulars of any corrupt practice that the petitioner alleges
including as full a statement as possible of the names of parties
alleged to have committed such corrupt practice and the date of
commission of each such practice. Importance of material facts and the
distinction between material facts and particulars were brought cut in
Manubhai Mondial Amersey v. Popat Lal Manilal Joshi and Ors.
Consequence of lack of such allegations of material
facts were considered in Sumani N. Balkrishna etc. v. George Fernandese
and Ors. In Hardwari Lan's it was
held that 'an election petition has the effect of declaring an election
void. It is serious remedy. It is, therefore, vital that the corrupt
charge against the respondent should be a full and complete statement
of material facts to defend the charges.' All these decisions were
analysed in detail in
Azhar Hussain v. Rajiv Gandhi 1986 (Supp) SCC 315
and it was held that the settled principle of law, as it emerged from
numerous decisions of this Court in regard to the question as to what
exactly was the content of expression 'material facts and particulars'
which the election petitioner should incorporate in petition by virtue
of Section 83(1):
Material facts are facts which if established would give the
petitioner the relief asked for. The test required to be answered is
whether the Court could have given a direct verdict in favour of the
election petitioner in case the returned candidate had not appeared
to oppose the election petition on the basis of the facts pleaded in
the petition.
7. Law being thus the pleadings in election petition may be set out to
ascertain if they satisfied requirements of Section 123(4) as analysed
in Sheopat singh v. Ram Pratap namely, if the leaflet
was publication of any statement of fact that the fact mentioned in
leaflet was false, that the appellant believed it to be false or did
not believe it to be true, that the statement was in relation to
personal character or conduct of the Congress candidate and the
statement in leaflet was one reasonably calculated to prejudice the
prospects of the Congress candidate. Relevant paragraphs of 3(i) and
(j) of the petition are extracted below:
(i) "That the election of the Respondent No. 1 is also liable to be
set aside on account of the following corrupt practice namely; the
respondent No. 1 published the pamphlets (submitted herewith and
marked as Annexures 4 & 5 and circulated the same in the Vidhan
Sabha Nirwachan Kshetra, Kota (107) in which with a view to unduly
influence the electors from exercising their electoral right in a
free and fearless manner by making out false propaganda threatening
them of dire consequence knowing fully well that such statements
were absolutely false. By the second pamphlet, inducement to vote
for the Respondent No. 1 was given offering certain facilities in
case the Respondent No. 1 was voted and declared elected. Whereas,
in the case petitioner is declared elected, would on the contrary
impose undue harsh taxation and thereby inducing through mis-
representation and false propaganda the electors not to cast their
votes in favour of the petitioner and to cast their votes in favour
of the Respondent No. 1. By these acts, the Respondent No. 1 along
with his agents and party workers Shri Damodar Prasad published and
circulated the aforesaid material threatening the electors with
injury to the extent of demolition of their houses in case the
respondent No. 1 was not declared elected. By these acts, the
respondent No. 1 is guilty of corrupt practices as laid down under
the Act rendering himself disqualified from being declared elected
and rendering his election void on account of the same.
That, the respondent ho. 1 on 3.3.1985 at about 5 p.m. at Khudlu,
Ward No. 7, Civil Lines, Kota, addressed general public in a meeting
stating that "If Congress comes in power, if Thada is elected house
tax would be imposed, as Thada is in favour of imposition of house
tax. There is no difference between Thada and Dhariwal, if Thada is
voted, these two personalities of Kota would incur their wrath upon
the poor persons and their hutments shall be razed to ground by
bulldozers.' The respondent No. 1 through his speech influenced the
voters not to cast their votes in favour of the petitioner. Before
the said speech leaflets (Ann.4 & 5) were distributed by the
election agent Shri Krishna Gopal Gupta and other agents of the
respondent No. 1 to the knowledge of the respondent No. 1 himself.
Almost the same type of speech was made by Shri Krishna Gopal Gupta,
the election agent of the respondent No. 1. Similar such meetings
were held by the respondent No. 1 and the election agent and other
supporters on 3.3.1985 at 7 P.M. at Sanjay Nagar Bhimganjmandi, at 7
P.M. at Ganwade and at 8 P.M. at Distpura (Ward Civil Lines) on
4.3.85 at about 5 P.M. at Adarsh Nagar Kachi Basti, the respondent
No. 1 again repeated that Shri Thada is a dangerous person, if he is
elected, he would get all the Kachi Bastis demolished.
8. What is striking is that there is no allegation that the leaflet
purported to refer to personal character the respondent. Distinction
between personal character and political character of a candidate has
been (sic) out in Ram Chandra v. Har Dayal 1986 (2) SCR 121. It was
held that adverse and undignified criticism does not (sic) within the
meaning of corrupt practice under Section 123(4). Averments in
paragraph (i) and (j) (sic) above, omitting legal expression, such as
false and undue influence, were that the appellant (sic) the pamphlets
published and circulated and in case the respondent was elected the
house-tax should (sic) imposed and electors houses shall be erased to
the ground. None of these could be said to reflect on (sic) character
of the respondent. In G.S. Balliram v. Vithalrao and Ors.
, the two pamphlets which referred to the candidate by
name who was responsible for imposition of toll tax and during whose
tenure (sic) taccavi could be paid to the cultivator without giving
bribe, who protected interests of contractors (sic) neglected poor
citizens were held not to relate to personal character or conduct of
the candidate.
9. Similarly even though it was pleaded that the leaflets were false
but there is no whisper if the appellant (sic) it to be false or did
not believe it to be true. The petition is silent on the vital aspects
if any (sic) took place on 1st March, 1985 and whether Congress M.P.
participated in it. Merely pleading (sic) more statement of law than
fact, without necessary factual foundation could not be said to give
(sic) to any triable issue. Attempt was made to argue that even if the
first part of speech was taken to be (sic) the second part using the
words "inke" and "inhone" clearly referred to personal character of the
candidate and that being false a triable issue arose. Assistance was
sought from observations, shorn of (sic) context, in Aviar Singh Brar
v. Tej Singh and Ors. 198 (2) SCR 415 and
Manubhai Nandlal Amersey v.
Popat Lal (sic) Joshi in support of the submission
that even without mention of name of candidate it may be (sic) that it
related to him. True, but that is at later stage, stage when evidence
is led in support (sic) the petition. What is germane in this petition
is if the averments made in this petition prima facie (sic) any cause
of action. Extract in first part of the leaflet is either correct or
false. For either necessary (sic) are missing. If the first part is
omitted then second does not make any sense. And to make it (sic) if
the lop of the leaflet is read with last part then it refers to
congress party and not to candidate. If the first part, namely, the
speech was correct then the second part becomes an opinion and (sic) a
statement of fact as was held in
Kumaranand v. Brij Mohan Lal Sharma
. In either case the (sic) were wholly vague and
insufficient to raise any adjudicatory issue. Averments in paragraph
(sic) relating to distribution and circulation did not remove the
defect in pleadings under Section 123(4). (sic) the absence of denial
of meeting on 1st March, 1985 and necessary averments about the
knowledge (sic) appellant that the leaflet was false, which he believed
to be false, or did not believe it to be true, the respondent could not
have succeeded even if the appellant would not have put in appearance,
therefore, (sic) is squarely covered by the principle Said down in
Azhar Hussain's case 1986 (Supp) SCC 315. Mere allegations that the
appellant got a leaflet published which was false or it was false to
the knowledge of the appellant did (sic) meet the requirements of
Section 83(1)(b). It was neither precise statement of fact nor
furnishing of (sic) facts or particulars as far as possible. Even this
much was not said that no meeting took place (sic) 1st March, 1985. No
facts or circumstances were mentioned to give even the haziest picture
for the (sic) of averment that the leaflet was false to the knowledge
of the appellant or that he did not believe (sic) to be true.
10. Effort was made to distinguish Hardwari Lal's case 1972 (2) SCR 742
and Azhar Hussain's case 1986 (Supp) SCC 315 by urging Chat the leaflet
or pamphlets wee not produced in these cases whereas it was made
annexure to the petition therefore it became a part of pleading under
Section 83(2). May be, but it did not do away with mandatory
requirements of Section 83(1)(b). Even assuming it to be so could the
leaflet on its own without necessary averment in the petition raise any
triable issue? As observed earlier it did not. If there was no pleading
that the speech delivered by Shri Dhariwal was not made on 1st March
then no evidence could be led on it And if that is omitted, then the
second part irrespective of evidence could not be said to refer to
personal character of the Congress candidate. In Azhar Hussain's case
1986 (Supp) SCC 315 a poster publisher painting rival candidate as
supporter of Khalistan and in conspiracy with terrorists was found to
be vague not because poster was not produced but because the petitioner
failed to disclose names of relevant persons who were associated with
its distribution etc.
11. Although much was argued on 123(2) but no specific pleading could
be pointed out in this regard. No details of undue influence or direct
or indirect interference by the appellant, or his agent, with his
consent with free exercise of electoral right was raised. In fact guilt
under Section 123(2) was attempted to be made on same pleading, namely,
paragraph 3(i)(j). The ingredients of the two being different they were
to be pleaded specifically and the details were to be furnished
separately to give a clear picture of cause of action. Undue influence
is an inference which arises on facts pleaded and proved. Mere averment
that appellant exercised undue influence in absence of precise facts,
namely, the nature of such influence, the persons on whom it was
exercised and time and place of it the pleadings in paragraphs (i) and
(j) fell short of the requirement in law. Allegations fishing and
roving, as were pleaded in this case could not be said to be sufficient
compliance of Section 83(1)(b).
12. Even assuming that triable issue arose, was the High Court
justified in finding that the appellant was a guilt of corrupt
practice? Claim of respondent that appellant addressed a meeting on 1st
March, 1985 or influenced the voters or distributed leaflets as set out
in paragraph (j) of the petition was disbelieved. It was further found
that it did not relate to personal character or conduct of appellant,
therefore, it could not furnish foundation for corrupt practice under
Section 123(4). But annexure 5, the leaflet extracted earlier, was
found to refer to conduct of the respondent And as respondent was not
cross- examined when he stated that the pamphlets were false it was
obvious that the statement was false which appellant believed to be
false. Without entering into if the contents of the pamphlet could be
construed by oral evidence, and the words 'inke' or 'inhone' could be
taken to refer to the respondent or not the pamphlet may be examined as
it is. As stated, it is in two parts; extract from speech of Shri
Dhariwal and inference founded on it. Truth or otherwise of the meeting
held on 1st March, 1985, from which the extract was got printed was not
denied in the petition. Shri Dhariwal was not examined, nor Smt Prem
Lata, other Speaker, was produced. The respondent or his witnesses did
not dispose when they appeared in the witness-box that no meeting of a
Congress party took place on 1st March, 1985. Evidence 3f appellant
that the extract was from the speech of Shri Dhariwal was disbelieved
because the appellant stated that he made the speech while he was
returning alongwith 5 or 6 workers at about 8.00 p.m. whereas his
witness DW-7 stated that when the meeting was held the appellant was
taking tea at his place. Although there is no contradiction in the two
statements since DW-7 stated about taking of tea and presence of
appellant at his house not when he left his house for attending the
meeting but at 8.00 p.m. when meeting was held. Yet even if it is held
that there was contradiction and appellant was not there it was
insufficient to demolish the appellants version that meeting took place
on 1st March, 1985. DW-7 is a resident of Anantpur where the meeting is
stated to have taken place. He has been Municipal Councillor. He stated
that he was present in meeting held on 1st March, 1985, at Anantpur at
8.00 p.m. He was not cross-examined on any of these aspects. No
suggestion was put to him that in fact no meeting took place or he was
not present. The finding of the High Court, therefore, that no meeting
took place on 1st March cannot be upheld.
13. Even the High Court found it difficult to disbelieve the meeting
but yet it found that the second part of the leaflet referred to
personal character of the respondent and that being false a charge
under Section 123(4) was made out. A reading of the leaflet leaves no
room for doubt that the second part cannot survive in isolation. If the
first part is omitted then the second, as stated earlier, does not make
any sense and if the first part is correct and a speech, as extracted,
was made by Shri Dhariwal then the later was an inference or opinion
about the political character of the respondent and not his personal
conduct or character. In Ram Chandra Bhatia 1986 (2) SCR 121 election
was set aside by the High Court on a pamphlet which painted the rival
candidate (sic) indulging in falsity. It was not approved by this Court
and it was held 'law postulates that if a false statement (sic) made in
regard to public or political character of the candidate it would not
constitute a corrupt practice even if it is likely to prejudice to
prospect of that candidates election. The public and political
character of a candidate is open to public opinion or public criticism.
If a false statement is made about the political views or his public
conduct or character the elector could be able to judge the elections
on the merits and could not be misled by any false allegations in that
behalf. 'Therefore, if it is accepted that reference to 'true faces' in
the leaflet or 'wolf in the skin of jackals' or 'showing their blood
soaked hands', and 'blood thirsty jaws' was to Congress candidate then
in the background of the speech delivered by Shri Dhariwal it could
utmost be construed as an expression of opinion and not a statement of
fact.
14. Therefore, from either aspect the petition was liable to be
dismissed. It did not fulfil the requirements of Section 83(i)(b) ans
was liable to be dismissed under Order 7 Rule 11. Even otherwise the
charge of corrupt practice could not said to be established against
appellant. Consequently the appeal succeeds and (sic) allowed. The
appellant shall be entitled to its cost.
