Full Judgment Text
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PETITIONER:
P. C. PURUSHOTHAMA REDDIAR
Vs.
RESPONDENT:
S. PERUMAL
DATE OF JUDGMENT02/12/1971
BENCH:
GROVER, A.N.
BENCH:
GROVER, A.N.
HEGDE, K.S.
RAY, A.N.
CITATION:
1972 AIR 608 1972 SCR (2) 646
1972 SCC (1) 9
CITATOR INFO :
D 1974 SC 66 (62)
R 1975 SC 308 (28,50)
RF 1978 SC1162 (13)
RF 1981 SC1068 (9)
F 1983 SC 684 (38)
ACT:
Representation of the People Act 1951--S. 123(6)--When
corrupt practice--Evidence Act--S. 35--When police report
admissible in evidence where the officer concerned not
examined personally.
HEADNOTE:
The appellant challenged the validity of the election of the
respondent to the Pondicherry Legislature Assembly on
various grounds including corrupt practices. The High Court
dismissed the election petition. In the appeal to this
Court, the appellant contended
(i) that the appellant’s amendment application of the
election petition giving more particulars of meetings held
by the respondent was wrongfully rejected by the Trial
Court on the sole ground that it sought to include
additional grounds of corrupt practice and
(ii) that the respondent had actually incurred expenses in
connection with 4 more meetings thereby exceeding the
prescribed limit.
The respondent, on the other band, contended that the
various police reports about the meetings relied on by the
appellant were not admissible in evidence as the head
constable who covered the meetings had not been examined in
the case- that even if the reports were admissible, the
Court could not look into the contents of those documents
and that the evidence afforded by the Police reports was not
relevant.
Allowing the appeal,
HELD : (i) The incurring or authorising of an expenditure in
contravention of s., 77 of the Act is one single corrupt
practice. The incurring or authorising of an expenditure in
connection with the election is Dot by itself a corrupt
practice. The corrupt practice is the incurring or
authorising the expenditure of more than the prescribed
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limit. Hence, the Trial Court erred in thinking that each
item of expenditure is a corrupt practice by itself. The
particulars of corrupt practice failing under sections
123(6) of the Act may, in an appropriate case, be introduced
by amendment. By doing so, no additional ground of corrupt
practice can he said to have been introduced. [650 H]
D. P. Misra and Anr-. v. Kamal Narain Sharma and Anr.
[1971] I .S.C.R. 8, referred to.
(ii) As regards the number of meetings held by the
respondent, although he denied having held any meeting at
all however admitted in his evidence that he bad arranged
seven meetings between, February 27, 1969 to March 6, 1969.
The appellant, however, had been able to prove that the
respondent had held four more meetings between February 23,
1968 to March 6, 1969. In support of his claim, the
appellant examined a number of witnesses and their evidence
was corroborated by a number of applications (which the
respondent made to the Inspector of Police asking permission
to hold the meetings) and by the police reports (which the
Head constables made to their superior after attending the
meetings). Therefore, on an average, if the respondent
spent Rs. 32/- per meeting (which he admitted), the total
for the 4 extra meetings must have cost the Respondent Rs.
128/-. If this expense was added to the sum of Rs. 18,86.09
which the respondent had spent for his entire election, the
647
total expenditure, would exceed the prescribed limit of Rs.
2,000/-. Hence, the respondent was clearly guilty of
corrupt practices mentioned in 123(6). [652 H]
(iii) The police reports were marked without any
objection. Hence, it was not open to the respondent to
object to their admissibility at a later stage.
Bhagat Ram v. Kheta Ram and Anr., A.I.R. 1929 P.C. 110,
referred
(iv) Further as regards the contents of the document, once a
document is properly admitted the contents of that document
are also admitted in evidence although the contents may not
be conclusive evidence. [654 F]
(v) The first part of S. 35 of the Evidence Act says that
an entry in any public record stating a fact in issue or
relevant fact made by a public servant in discharge of his
official duties is relevant evidence. Quite clearly the
reports in question were made by public servants in
discharge of their official duty.
The issue before the Court was whether the respondent had
arranged certain election meetings on certain dates. The
police reports in question were extremely relevant to
establish that fact. Hence, it came within the ambit of the
first part of S. 35 of the Evidence Act. [655 B]
Naveneetha Krishna Thelavar- v. Ramesway Pandia Thelavar,
I.L.R. 40, Madras 871, approved.
In the present case, the police reports in question were by
government officials who were not shown to be inimically
disposed towards the respondent or his party. They were
made when there was no dispute and the dispute in question
would not have been anticipated. Therefore, such reports
carry greatest possible weight and could not be dismissed
lightly. [656 D]
Arjuno Naiko and Ors. v. Madonomohano Naiko & Ors., A. I. R.
1940, P.C. 153, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: C.A. No. 1239 of 1970.
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Appeal under Section 116-A of the Representation of the
People Act, 1951 from the judgment and order dated February
13, 1970 of the Madras High Court in Election Petition No. 1
of 1969.
K. K. Venugopal, R. Gopalakrishnan and T. L. Garg, for the
Appellant.
M. K. Ramamurthi, Vineet Kumar, S. S. Khanduja and N.
Natrajan, for the Respondent.
The Judgment of the Court was delivered by
Hegde, J. This is an election appeal arising from a judgment
of the Madras High Court. It relates to the Election to the
Ariyankuppam Assembly constituency of the Pondicherry Legis-
lative Assembly. The said election was held on March 9,
1969. In that election, the appellant as well as the
respondent contested. The appellant was the Congress
nominee and the respondent was. the nominee of the D.M.K.
After the counting of votes, the res-
648
pondent was declared elected as having obtained 3774 votes
as against 3758 obtained by the appellant. The appellant
challenged the validity of the election of the respondent on
various grounds. In his election petition he alleged that
the respondent war, guilty of canvassing votes on the basis
of his caste, that he had, bribed the voters, that the
election was not conducted property, that there was improper
reception of void votes and lastly that he had incurred
expenditure more than the prescribed limit. The charge of
bribery was not pressed at the time of the trial. The other
grounds pleaded on behalf of the appellant were rejected by
the High Court and the election petition was dismissed.
After hearing the Counsel for the parties regarding the
allegation relating to the contravention of S. 123(6) of the
Representation of the People Act, 1951 (,to be hereinafter
referred to as the Act), we have come to the conclusion that
the respondent was guilty of an offence falling within that
section as he is proved to have incurred expenditure more
than the prescribed limit. We therefore thought that it was
not necessary to go into the other charges levelled against
the respondent. The limit of expenditure prescribed for the
constituency was Rs. 2,000/-. In his election return, the
respondent had stated that he had incurred an expenditure of
Rs. 1865/59 P. The trial court came to the conclusion, which
conclusion was not challenged before us, that he had
incurred a further expenditure of Rs. 20/50 P. Hence if the
appellant is able to establish that the respondent had
incurred at least a further expenditure of Rs. 113/92 P.,
then the election of the respondent will have to be set
aside under s. 100 ( 1 ) (b) of the Act on the ground that
the respondent was guilty of the corrupt practice falling
under S. 123(6).
The appellant had alleged in his election petition that the
respondent had suppressed in the return submitted by him
expenditure incurred under various heads such as,
expenditures incurred in connection with, the holding of
election meetings, hire paid for the cars used in connection
with the elections as well as the price of petrol used for
the cars used in that connection.
We shall first take up the question of expenditure said to
have been incurred in connection with the holding of
meetings. The allegation as regards the same is found in
paragraph 8(v) of the ,election petition. The material
portion of that allegation reads
"The total expenditure incurred or authorised
by the respondent herein in connection with
the election exceeded the limit prescribed
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under the Act and the Rules made thereunder.
The accounts submitted by the respondent to
the Special Officer (Election), Pondicherry
showing a sum of Rs. 1,865/59 are false
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and unrelated to the actual expenditure
incurred or authorised by the respondent for
his purposes. In his election account the
respondent has failed to show the following
items of expenditure
(v) The respondent held a large number of
election meetings and all these election
meetings were conducted in a pandal where a
dias was constructed for the speakers. All
these meetings were installed with loud-
speakers, tube-lights and other electrical
fittings were also provided. The construction
of the pandal and dais and the installation of
loudspeakers and other electrical equipment
such as lights etc. would have at least cost
Rs. 100/- for each meeting except for the
meeting at Ariyankuppam on 5-3-69 at 7.30 p.m.
when Shri V. R. Nedunchezian presided in which
meeting several loudspeakers and extra light
fittings were provided costing over Rs. 200.
The dates, the time and the place of the
meetings are as follows :
(i) On 5-3-1969 at about 8.30 p.m. at
Poornamukuppam.
(ii) On 6-3-1969 at about 10.00 p.m. at
Nonamkuppam.
(iii) On 28-2-69 at about 8.00 p.m. at
Manaveli.
(iv) On 5-3-69 at about 9.00 p.m. at
Manaveli.
(v) On 27-2-1969 at about 7.30 p.m. at
Ariyankuppam.
Three other election meetings at Ariyankuppam
and one meeting at Periaveerampatinam were
also held at the instance of the respondent.
(vi) On 23-2-1969 at about 8.00 p.m. at
Ariyankuppam.
(vii) On 24-2-1969 at about 8.00 p.m. it
Ariyankuppam.-
(viii) On 26-2-1969 at about 8.00 p.m. at
Veerampattinam."
The respondent’s plea relating to those
allegations are found paragraph 17 of his
written statement. Therein he averred
"The allegations made in paragraph 8 of the
petition are totally false and they are hereby
denied. Every one of the allegations made
therein are factually incorrect and false.
None of the expenditure alleged therein was
incurred, by the Respondent or under his
authority."
650
This is a general denial. The respondent did not deal
with .the various facts stated in the election petition.
From those averments, it is clear that the respondent denied
having arranged .any of the meeting mentioned in the
election petition.
After the respondent filed his written statement, the
appellant applied for and obtained permission of the court
to amend certain clerical mistakes that had crept into the
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election petition. After those amendments were carried out,
the respondent filed an additional written statement. In
paragraph 3 of that statement the .averred thus :
"I state that no public meeting took place
either on 27-2-1969 or on 28-2-1969 in the
manner as alleged by the petitioner in
paragraph 4(iii) and 4(iv) of the Election
Petition. Consequently, the allegations as
amended in paragraph 8 (v) (iii) and 8 (v) (v)
are also ,not correct. I further state that
no meeting took place on 5-3-69 at
Ariyankuppam in the manner as alleged by the
petitioner in the amendment application No.
2204 of 1969".
On October 13, 1969, the appellant applied for amendment of
the election petition by giving some more particulars of the
meetings held by the respondent. By that application he
sough, to give particulars of about six other meeting; in
addition to what he had already stated in his election
petition, said to have beer arranged by the respondent. The
court rejected that application on the ground that by that
application, additional grounds on, corrupt practice were
sought to be included in the election petition and the same
cannot be permitted to be done after the period, prescribed
for filing the election petition was over. It may be noted
that the trial of the case started on January 9, 1970. In
the order rejecting the amendment application though the
court, referred to the delay in filing the application, it
did not reject is on the ground of laches, nor did it reject
the application on the ground that it was not a bona fide
one. The sole ground or which it was rejected was that it
was not ’maintainable as is sought to include additional
grounds of corrupt practice.
In our opinion, the High Court was wholly wrong in coming to
the conclusion that the amendment application moved on
-behalf of the appellant sought to add any new corrupt
practice The incurring or authorising of an expenditure in
contravention of s. 77 of the Act is one single corrupt
practice. The incurring or authorising of an expenditure in
connection with the election is not by itself a corrupt
practice. The corrupt practice is the incurring or
authorising the expenditure of more than the prescribed
limit. Hence the trial court erred in thinking that each
651
item of expenditure is a corrupt practice by itself. This
position is obvious from the language of the section itself.
This Court had occasion to go into that question in D. P.
Mishra and anr. v Kamal Narayan Sharma and anr.(1). In that
case this Court came to the conclusion that the particulars
of a corrupt practice falling under s. 123 (6) may in an
appropriate case be introduced by amendment. By doing so,
no additional ground of corrupt practice can be said to have
been introduced. If it had been necessary for the case, we
would have allowed that amendment application and sent back
the case for further trial. But for the reasons to be
presently stated, we have thought it unnecessary to do so.
In dealing with the expenditure incurred in connection with
the election meetings, the first and the important question
that has to be decided is as to when the election campaign
of the respondent commenced. According to the appellant, it
commenced on February 23, 1969. But according to the
respondent it commenced on February 27, 1969. Decision on
this question has great bearing on the other points arising
for decision. Hence we shall first address ourselves to
that question. The learned trial judge did not give any
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positive finding on this question. In the course of his
judgment he doubted the evidence of the respondent on this
point but by taking a facile view of the evidence on record,
he just rejected the evidence of the appellant as un-
acceptable and wholly accepted the evidence of the
respondent as regards the number of meetings held though he
felt that the respondent has not come forward with a
truthful version.
It is true that in election cases oral evidence has to be
examined with great deal of care because, of the partisan
atmosphere continuing even after the election. But it will
be wrong on the part of courts to just brush aside the oral
evidence even when the evidence is highly probable and the
same is corroborated by unimpeachable documentary evidence.
As mentioned earlier, according to the appellant, the
respondent started his election campaign with a well
attended meeting on February 23, 1969 at Ariyankuppam. In
support of that version he examined P.Ws. 3, 4, 7, 13, 16
and 19. Their evidence was corroborated by Exhts. P. 15
and P. 3. But the learned trial judge rejected this evidence
without examining them. He came to the conclusion that the
witnesses examined are partisan witnesses. Therefore much
reliance cannot be placed on their testimony. But he failed
to attach sufficient importance to the tell-tale evidence
(1) [1971] I S.C.R. 8.
652
afforded by Exhts. P. 17 and P. 35. Ex. P. 15 is an
application made by the respondent to the Inspector of
Police, ’C’ Circle, Pondicherry. Therein the respondent
stated :
"Please grant me permission to hold a public meeting at
Ariyankuppam Cuddalore Road in front of market, on the
occasion of inauguration of my electoral office on 23-2-1969
from 9 to 12 a.m. and to make use of loud-speakers."
The permission sought for was granted by the Inspector. The
Inspector, P.W. 24 deposed that he deputed a Head-constable
to cover that meeting and report about the same. It is
gathered from the evidence of P.W. 24, that in Pondicherry,
before holding a meeting, permission of the police will have
to be obtained and it is the usual practice there to depute
a police officer to cover the meetings and report about the
speeches made by the speakers, P.W. 24, further says that he
deputed a Head-constable to cover the meeting to be held in
connection with the inauguration of the election campaign of
the respondent and in that connection the Head-constable in
question submitted to him the report Exh. P-35. The report
in question was proved through the Inspector without any
objection. The report says that the election campaign of
the respondent was inaugurated by holdings a public meeting
on February 23, 1969 and that meeting was addressed by as
many as eight persons in addition to the respondent. This
report was received by the Inspector on the 25th of
February. Despite this clinching evidence afforded by
Exhts. P. 15 and P. 35, the respondent made bold to deny
the factum of having held a meeting on the 23rd. In view of
this documentary evidence, the learned trial judge was
unable accept the evidence of the respondent. All the same
he opined that it was immaterial whether the election
campaign was inaugurated on the 23rd or on the 27th, since
he was inclined to accept the evidence of the respondent
that he had held only seven meetings and not more. This in
our opinion, is an erroneous approach. As seen earlier, the
respondent has denied having held any meeting on February
23. But this denial cannot be accepted as true. For the
reasons already mentioned we feel satisfied that the
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respondent’s election campaign commenced on the 23rd
February 1969 and in that connection a meeting was held in
Ariyankuppam on that date.
Before proceeding further, we may at this stage mention that
though in his written statement, respondent denied having
held any meeting at all a statement which on the face of it
cannot be true-in his evidence he admitted having arranged
seven meetings. This he had to admit in view of the
receipts that be had produced along with his return. In his
evidence he admitted
653
that he held meetings on February 27, 1969, March 5, 1969
and March 6, 1969 at Ariyankuppam. He also admitted that he
held a meeting on March 5, 1969 at Poornamukuppam and on
March 6. 1969 at Manaveli and again on the same day at
Veerampatnam. Hence admittedly he held seven meetings. Let
us now proceed to see whether the appellant has
satisfactorily proved that the respondent had held any more
meetings. We have earlier come to the conclusion that he
had held a meeting at Ariyankuppam on February 23, 1969.
The appellant alleged that the respondent had held one more
meeting at Ariyankuppam on February 24, 1969. To prove this
fact he had examined P.Ws. 3 and 4. Their evidence is corro-
borated by Exh. P-16,an application admittedly given by the
respondent to the police for permission for holding a
meeting on that day and Ex. P.36, the police report sent in
that connection, The learned trial judge did not accept the
contention of the respondent that he had not hold a meeting
on Ariyankuppam on February 24, 1969. Then we come to the
meeting alleged to have been held on February 26, 1969 at
Veerampatinam. On this question the trial court has come to
the conclusion that the respondent bad held a meeting at
Veerampattinam on February 26, 1969. On this point the oral
evidence adduced by the appellant is corroborated by Ex. P.
17, the application made by the respondent to the police for
permission to hold that meeting and P. 38, the report made
by the police. Then we come to the meeting said to have
been held at Manaveli on February 28, 1969. The respondent
himself admitted in his evidence that he did arrange a
meeting at Manaveli on that date.
In his evidence the respondent admitted as having arranged a
meeting at Ariyankuppam on March 6, 1969. According to him
he arranged that meeting but curiously the learned trial
judge came to the conclusion, despite that admission of the
respondent that P.W. 6 arranged that meeting as that witness
in his evidence claimed that he arranged that meeting and
spent for the same. The learned trial judge over looked the
fact that no such plea was taken by the respondent in his
written statement nor was it his case in his evidence that
meeting was arranged for P.W. 6.
For the reasons mentioned above,we are satisfied that in
addition to the seven election meetings which the
respondent admitted having arranged, the appellant has been
able to satisfactorily prove that the respondent had
arranged at least four more meetings.
Now coming to the question as to the expenditure incurred in
collection with those meetings, it is no doubt for the
appellant
-L643SupCI/72
654
to prove the same. According to the respondent he had not
maintained any accounts in connection with his election.
The expenditure incurred for his election is specially
within the knowledge of the respondent. He has not adduced
any evidence in that connection. He has totally denied
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having held those meetings. That denial for the reasons
already mentioned cannot be accepted. Therefore we have now
to find out what would have been the reasonable expenditure
incurred in connection with those meetings. Even according
to the respondent for the seven meetings held by him, he
incurred an expenditure of more than Rs. 225/-. That means
on an average he had incurred an expense of about Rs. 32/-
per meeting. This is clearly an underestimate. But even if
we accept that to be correct, for the four meetings referred
to earlier, he would have incurred an expenditure of Rs.
128/-. If this expense is added to the sum of Rs. 1886/9
p., referred to. earlier, the total expenditure incurred
exceeds the prescribed limit of Rs. 2,000/,’-. Hence the
respondent is clearly guilty of the corrupt practice
mentioned in s. 123(6).
Before leaving this case it is necessary to refer to one of
the contentions taken by Mr. Ramamurthi, learned Counsel for
the respondent. He contended that the police reports
referred to earlier are inadmissible in evidence as the
Head-constables who covered those meetings have not been
examined in the case. Those reports were marked without any
objection. Hence it is not open to the respondent now to
object to their admissibility-see Bhagat Ram v. Khetu Ram
and anr. (1).
It was next urged that even if the reports in question are
admissible, we cannot look into the contents of those
documents. This contention is again unacceptable. Once a
document is properly admitted, the contents of that document
are also admitted in evidence though those
contents may not be conclusive evidence.
It was lastly contended that the, evidence afforded by the
police reports is not relevant. This again is untenable
contention. Reports in question were made by government
officials in the discharge of their official duties. Those
officers had been deputed by their superiors to cover the
meetings in question. Obviously they were deputed in
connection with the maintenance of law and order which is
the special responsibility of the police. Hence, the
question whether those reports were made in compliance with
any particular provision of law is irrelevant.
The first part of s. 35 of the Evidence Act says that an
entry in any public record stating a fact in issue or
relevant fact and
(1) A.I.R.1929P.C.110.
655
made by a public servant in the discharge of his official
duty is relevant evidence. Quite clearly the reports in
question were made by public servants in discharge of their
official duty.
The issue before the court is whether the respondent had
arranged certain election meetings on certain dates. The
police reports in question are extremely relevant to
establish that fact. Hence they come within the ambit of
the 1st part of s. 35, of the Evidence Act. In this
connection we would like to refer to the decision of the
Madras High Court in Navaneetha Krishna Thevar v. Ramaswami
Pandia Thalavar(1). Therein the learned judges observed
thus:
"As however the case may not stop here, we
think it right to allow the petitioners in
Civil Miscellaneous Petitions Nos. 845 and
1655 of 1915 for the admission of certain
documents rejected by the Subordinate Judge,
namely (1) the decree of the Zilah Court of
Tinnevelly, dated 31st May 1859 in Original
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Suit No. 4 of 1859, (2) the Takid of the
Collector to the Muzumdar on the death of the
raja in 1850, (3) the reply of the Muzumdar
and (4) the Collector’s Takid in 1853 on the
complaint of the zamindar’s widow as to the
conduct of Maruthappa Thevar who according to
the plaintiff’s case was the father of
Gnanapurani’s mother. They will accordingly
be marked as Exhibits XXXIV, XXXV, XXXVI and
XXXVII respectively and incorporated in the
record. The learned Advocate-General did not
support the exclusion of the last three on the
ground that the copies of correspondence kept
in the Collector’s and taluk offices were not
signed but contended that they were not
admissible under section 35 of the Indian
Evidence Act. We think however that copies of
actual letters I made, in registers of
official correspondence kept for reference and
record are admissible under section 35 as
reports and records of acts done by public
officers in the course of their official duty
and of statements made to them, and that in
the words of their Lordships in Rajah Muttu
Ramalinga Setupati v. Periyanayagam Pillai (2
) they are entitled to great consideration in
so far as they supply information of material
facts and also in so far as they are relevant
to the conduct and acts of the parties in
relation to the proceedings of Government
founded upon them."
We are in agreement with the view taken by the Madras High
Court in that case.
(1) I.L. R. 40 Mad, 871 at 678 & 870.
(2) [1974] L. R. I.A. 209.p. 238.
656
Now coming to the value to be attached to the evidence
afforded by those reports, we may usefully refer to the
decision of the Judicial Committee in Arjuno Naiko and ors.
v. Modonomohano Naiko and ors.(1) In fact case a person
brought a suit for establishing that lie was the adopted
son of a dismissed Sirdar and as such entitled to succeed to
the Sirdarship. In evidence documents coming from official
sources recording statements as to adoption made to the
officials in the locality not merely by the plaintiff
himself in the presence of others but also by other member
and by the dismissed Sirdar himself were produced. These
statements were made at a time when no disputes had arisen
and were made in connexion with a matter of local interest
viz. the appointment of a new Sirdar. The Judicial
Committee held that the documents carried greatest possible
weight and could not be dismissed as mere self-assertions.
Similarly in this case, the police reports in question were
made by the government officials who are not shown to be
inimically disposed towards the respondent or his party.
They were made when there was no dispute and the dispute in
question could not have been anticipated.-
In view of the above conclusion, it is not necessary to go
to
the other contentions advanced on behalf of the appellant.
In the result we allow this appeal, set aside the order of
the High Court, accept the election petition of the
appellant and set aside the election of the respondent. The
respondent shall pay the costs of the appellant both in this
Court as well as in the High Court.
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S.C. Appeal allowed.
(1) A.I.R. 1940 P. C. 153,
657