Full Judgment Text
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PETITIONER:
N. VIMALA DEVI
Vs.
RESPONDENT:
K. MADHUSUDHANA REDDY
DATE OF JUDGMENT20/12/1974
BENCH:
ALAGIRISWAMI, A.
BENCH:
ALAGIRISWAMI, A.
KRISHNAIYER, V.R.
SARKARIA, RANJIT SINGH
CITATION:
1975 AIR 1135 1975 SCR (3) 128
1975 SCC (4) 385
CITATOR INFO :
R 1984 SC1161 (5)
ACT:
Representation of the People Act, 1951-S. 116A-Allegations
of corrupt practice-Duty of High Court to scrutinise with
care.
HEADNOTE:
In the election to the State Legislative Assembly, the
respondent was declared elected. The appellant who was the
defeated candidate in ’he election, in her election petition
alleged that the respondent had committed a number of
corrupt practices, the most important of which related to
the distribution of a pamphlet defamatory of her, falling
under s. 123(4) of the Representation of the People Act,
1951. The High Court dismissed her petition.
In appeal to this Court it was contended that the High Court
applied one standard in appreciating the evidence of the
appellant’s witnesses and an altogether different standard
in appreciating the evidence of the respondent’s witnesses.
Allowing the appeal,
HELD : (1) On an examination of the evidence it is
satisfactorily established that the impugned pamphlet was
printed and distributed at the instance of the respondent.
[135H]
(2) Where a corrupt practice is alleged against a returned
candidate it must be scrutinised with considerable care
because a finding to that effect has very serious
consequences. It not merely sets aside the popular verdict
but also subjects the successful candidate to the penalty of
being disqualified for election and even criminal
prosecution. [135 E]
(3) This Court does not normally reappraise the evidence
and come to a contrary conclusion from that of the trial
judge if it is generally acceptable. But it must not be
forgotten that an appeal under s. 116A of the Representation
of the People Act is a first appeal and not one under the
provisions of Art. 136 of’ the Constitution and that an
appeal is a rehearing. [135 F]
In the instant case the evidence has been reassessed because
the High Court had rejected the evidence of the appellant’s
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witnesses wholesale mainly on the ground of their being
partisan witnesses while no such standard has been applied
to evidence of witnesses on behalf of the respondent except
in two cases. Even in those cases it was done because the
documentary evidence was too strong. The rejection of the
evidence by the High Court in one important instance has led
to a wrong approach in the appreciation of the oral
evidence.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 389 of 1973.
From the judgment and order dated the 22nd December, 1972 of
the Andhra Pradesh High Court in Election Petition No. 7 of
1972.
S. V. Gupte, P. P. Rao and G. Narayana Rao, for the
appellant.
P. Ram Reddy, B. Parthasarthi and B. Balamukunda Reddy,
for the respondent.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J.-In the election to the Andhra Pradesh
Legislative Assembly from the Chennur constituency held on
5th March, 1972, the appellant was the official Congress
candidate and the respondent an independent candidate though
both belonged to the Congress Party. The respondent
obtained 25,654 votes as against 23,940
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votes obtained by the appellant and was declared elected.
Thereupon the appellant filed an election petition which was
dismissed by the Andhra Pradesh High Court.This appeal is
against that decision.
Though a number of corrupt practices were alleged in the
election petition the only one pressed before this Court was
that relating to the distribution of a pamphlet defamatory
of the appellant falling under section 123(4). That leaflet
marked Ex.A-1 purports to have been issued by the Yuvajana
Congress, Thorrur. It does not bear the name of the printer
or the publisher. But the allegation in the election
petition was that it was published by the respondent and his
agents throughout the constituency. In Schedule I to the
election petition were given the names of villages where the
distribution was made, the reasons who distributed, the date
of distribution as well as the names persons who received
the pamphlet. Certain other details were also given. It
was further alleged that the appellant received letter,-, in
this regard from some of her supporters in the constituency.
These were marked as Exs. A-2, A-3 and A-4. It was stated
that the President of the Yuvajana Congress, Thorrur was a
man named Uppal Reddy who became a paid clerk of the
respondent. The respondent denied knowledge of the pamphlet
and contended that Exs. A-2 to A-4 are self serving
statements got prepared by the appellant and the persons who
are supposed to have written those letters for the purpose
of the election petition. He claimed that he was not aware
whether Uppal Reddy was President of the Yuvajana Congress.
Thorrur but that he was a strong supporter of the appellant.
The distribution of the pamphlet either by him or his
election agent or his workers with his consent was denied.
The names of workers mentioned in the schedule to the
election petition were stated to be those of the supporters
of the appellant with a view to let in false evidence.
The learned Judge of the High Court after an elaborate
examination of the evidence found that there cannot be any
doubt that the allegations contained in leaflet Ex.A-1 go
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deeply against the personal character and conduct of the
appellant and can be taken as being reasonably calculated to
prejudice her prospects in the election. This does not seem
to have been disputed before the High Court. It was only
contended that neither the respondent nor his election agent
was aware of the existence of those leaflets nor were they
distributed during the election period and even if they were
distributed they were not responsible for it. The learned
Judge further held that it has to be taken that the
allegations made against the appellant in Ex.A-1 were false
and the respondent did not believe them to be true and he
would be guilty of the corrupt practice if the publication
was made by the respondent or his election agent or by
others with the consent of the respondent or his election
agent. He then took up the question whether the respondent
or his election agent or with the consent of either any
other person distributed leaflets like Ex.A-1 during the
election period.
The case for the respondent as suggested in the cross-
examination of the appellant was that she expected her
defeat even when the
10-379 Sup.CI/75
130
election was one week ahead and therefore she started
manufacturing all the documents filed by her for the purpose
of the election petition, which even then she decided to
file in case of her defeat. Based on the evidence of P.W.
70, the Secretary of the Zila Parishad, Warangal who was
then the Returning Officer, and P.W.76, the Sub-Collector,
Warangal, the learned Judge found that leaflets like Ex.A-1
were in circulation a few days prior to the date of the
election. He, however came to the conclusion that it was
not possible to say that even before the date of the
election the appellant and her supporters must have thought
that her defeat in the election was a certainty and thought
,of distributing leaflets like Ex.A-1 to prepare for the
election petition. instead of working vigorously for her
success in the election and, therefore, whoever might be
responsible for the distribution of the leaflets it could
not have been the appellant or her supporters but her
enemies only. He finally came to the conclusion that there
is no cogent and reliable evidence to show that the
distribution of the leaflets was made by the respondent or
his election agent or with the consent of either by some
others and it is not possible to hold the respondent
responsible for the, distribution. With regard to Uppal
Reddy he held that there was no satisfactory evidence to
show either that Uppal Reddy was a paid clerk of the
respondent or that he worked for the respondent in the
election and not for the appellant as alleged by the respon-
dent.
As we are in substantial agreement with the learned Judge
regarding ’the nature of the leaflet Ex.A-1 its possible
effect and the impossibility of the appellant or anybody on
her behalf having distributed those pamphlets we do not
think it necessary to discuss those questions or even to set
out the pamphlet itself. These were not seriously disputed
by the respondent. We will therefore confine ourselves to
the question as to who was responsible for their
distribution.
The learned Judge seems to have thought that R.Ws. 32 and
33, the brothers of the appellant’s husband, might perhaps
have done it as they were bitterly inimical towards the
appellant and her husband. R.W.32 was the respondent’s
polling agent and R.W.33 was an active worker on his behalf.
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There is no evidence as to who had the leaflet printed or
where it was printed. Neither R.W.32 nor R.W.33 accepted
either that they printed the leaflet or that they
distributed it.
Some time before the election and even before the Congress
candidate was selected for this constituency a
representation, Ex A-48, was sent to the Congress
authorities signed among others by the respondent as well as
R.W.33. The main purport of that representation was that
neither the appellant nor her husband should be set up as
the Congress candidate. It suggested certain other persons
as fit to be set up as Congress candidates, but there is no
doubt that it was intended to prevent either the appellant
or her husband being selected as the Congress candidate.
R.W. 33 claimed that it was he that prepared Ex. A-48 and
got the signatures of the persons contained therein. The
first of the signatories is respondent himself. Forty out
of its forty three signatories are his supporters. Though
he pretended not to have known its contents he as well as
R.W. 33 had to admit
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that it was prepared after some discussion. The respondent
had also to admit that he it was who wrote in his own hand
about a copy of the, representation having to go to the
Congress observer for Warangal district. We have no doubt
at all that the main mover behind Ex. A48 is the respondent
himself and R.W. 33 is merely his instrument. This is also
evident from the fact that he decided to stand for the
election himself because only if he stood he could defeat
the appellant. Thus his main motive being to defeat the
appellant is clear beyond doubt. It is not merely the
normal effort of a contesting candidate to defeat his
opponent but something special, something out of the
ordinary. This exhibit has not been discussed at all by the
learned Judge. The importance of Ex. A-48 is because it is
a forerunner of Ex. A-1 and some of the statements found in
Ex. A-1 as well as its main purpose are the same as of Ex.
A-48. We are not impressed by the argument on behalf of the
respondent that Ex. A-5,7, which shows that even in 1970 a
representation of a similar kind was made, shows that there
were many others out to besmirch the name of the appellant.
Ex. A-57 contains many instances which have nothing to do
with the election in 1972 or the setting up of a Congress
candidate in that election. That is the affinity between
Ex. A-48 and Ex. A-1. Nor are we impressed by the argument
on behalf of the respondent that NGOs towards whom the
appellant is said to have behaved rudely might have been
responsible for the printing and distribution of the
pamphlets. The NGOs as a class may not be so much
interested and no suggestion has been put and we have not
been told that any particular NGO had such a strong
grievance against the appellant that, he could go to the
extent of printing clandestinely a pamphlet like Ex. A-1,
meeting the expenditure therefore and for distributing it.
The search ultimately must be confined to R.Ws. 32 and’. 33
on the one hand and the respondent on the other.
It is here that the relevance of the reference to Uppal
Reddy and the Yuvajana Congress, Thorrur becomes important.
The Yuvajana Congress, Thorrur was inaugurated on the 26th
January, 1972. Before that Uppal Reddy had met P.W.66,
Vasantha Nageswara Rao, the President of the State Youth
Congress and a member of the Legislative Assembly from the
Nandigama constituency of Krishna district. He wrote a
letter Ex.A-25 on 6-2-1972 congratulating Uppal Reddy on his
having organised the Yuvajana Congress. Later finding that
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Uppal Reddy was working against the Congress candidate on
behalf of the respondent he was removed from the office and
P.W.68, Vasudeva Reddy was elected President of the Yuvajana
Congress, Thorrur. The removal of Uppal Reddy and the
election of P.W.68 was intimated to P.W.66 by Ex.A-26. The
second letter is Ex.A-28 written by P.W.68 to P.W.66 about
distribution of leaflets by the respondent’s associates.
That letter also refers to the pamphlet as having been
printed by the respondent and asks that he be suspended
immediately. Another letter Ex.A-32 written by P.W.66 to
P.W.68 also shows that P.W.66 was invited to tour the
Chennur constituency and he was unable to do so. Exhibits
A-3 1, A-31 (a) and A-31 (b) show that letters were written
to P.W.66 as well as to the President of the Andhra Pradesh
Congress Committee. Exhibit A-29 is a letter by P.W.68
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to P.W.66 inviting him to tour the constituency. Exhibit A-
29(a) is a resolution of the Youth Congress Committee dated
29-2-1972 about Uppal Reddy having been won over by the
respondent and the pamphlet against the appellant being
published and requesting P.W.66 and the President of the
Andhra Pradesh Congress Committee to institute proceedings
against the respondent. Exhibit A-27 is a letter addressed
by P.W.66 to Uppal Reddy apparently on the basis of Ex.A-26
about the complaints that he was working for the respondent
and asking him to show cause why disciplinary action Should
not be taken against him. It also refers to the resolution
of the Youth Congress.
We are unable to share the learned Judge’s conclusion that
all these could have been got up in order to support the
election petition. He learned Judge himself recognises that
the appellant would not have had any apprehension that she
would be defeated in the election because she was standing
from Chennur constituency which was the only one among the
many constituencies comprising the Parliamentary seat that
was won by a Congress candidate with a majority of 5000
votes in the previous election though all the other Assembly
seats as well as the Parliament seat went to the non-
Congress candidate. That is why the learned Judge took the
view that the distribution of the pamphlet could not have
been made by the appellant before the date of the election.
It is, therefore, obvious that these documents could not
have been got up before the election nor are we able to
accept the learned Judge’s facile conclusion that these
could have been got up by antedating some postal stamps.
One cannot take it that it is so easy to antedate postal
stamps. In fact no such suggestion was put to the appellant
or any of her witnesses. This theory of antedating the
postal stamps has also been relied upon by the learned Judge
in connection with Exs.A-2 to A-4, with which we shall deal
a little later. The only slight reference to anybody
connected with the appellant having anything to do with the
Post Office was in relation to one of the Post Offices
alone. It is not that if no such suggestion was made on
behalf of the respondent about the postal stamps being
antedated it is not permissible to the learned Judge to draw
such a conclusion if the facts justify it but we feel there
are no facts justifying such an inference. We are satisfied
that these various documents are genuine and not got up for
the purpose of the election petition.
The whole case of the respondent was that these documents Is
well as Exs.A-2 to A-4 had been created before the election
though the question put to the appellant’s witnesses was in
a form which would enable him to put forward two alternative
pleas (1) of their being prepared before the election, and
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(2) of their being prepared after the election but before
the election petition was filed. We are of the opinion that
tile respondent should not be allowed to draft his pleadings
in a dubious way and try to shape either hi-, evidence or
his arguments to suit either theory. We are unable to
accept the argument on behalf of the respondent that these
documents do not establish that either the respondent or his
election agent distributed the pamphlets. Thew letters and
resolutions sometimes refer to the
13 3
respondent and sometimes to his associates. One of them
refers to the respondent having printed the pamphlet. We do
not think that in assessing the evidentiary value of these
documents the statements contained in them should be
scrutinised as though they were either pleadings before the
Court or a statute to be interpreted. When pamphlets are
said to be distributed by the respondent it does not
necessarily mean that he was physically handing over
those pamphlets to various persons. It includes the
pamphlets. being distributed in his presence or in the
presence of his election agent or at his instance or on his
behalf.. Even if persons working for the respondent were
distributing, in common parlance it would be said that the
respondent was distributing the pamphlets. Interpreted in
the proper perspective the various statements merely mean
that the pamphlets were being distributed at the, instance
of the respondent.
Some criticism was made of these documents on the basis of
the constitution of the All India Youth Congress and that it
does not provide for village Youth Congresses and that
people cannot become members of the Youth Congress unless
they become primary members of the All India Youth Congress.
But it-is obvious from the documents themselves as well as
the evidence of P.W. 66, it was found necessary and
advantageous to have Youth Congress in Thorrur as it would
help the Congress candidate as it was election time. This
question cannot be decided as though we are concerned with
the legality of the establishment of the Youth Congress in
Thorrur. All that it shows is that certain youngmen of the
village decided to start a Youth Congress in the village,
that it had the sanction and the blessings of P.W.66 and
that they hoped to regularise the establishment of Youth
Congress in due course. The criticism that the receipt of
these letters is not entered in the receipt and despatch
book of the State Youth Congress office is not of much
substance. Non-official political Organisations are not run
and do not function as though they were official
administrative offices.
We do not also agree with the view of the learned Judge who
rejected the evidence. of P.W.66 on the ground that he was
merely a Congress member. He is a member of the Legislative
Assembly from another district and he is the chief of the-
State Youth Congress. The fact that he is a Congressman
could not be the sole ground for rejecting his evidence. We
are, therefore, satisfied that these documents produce
contemporaneous evidence, of the fact that the pamphlets
like Ex. A-1 were brought into existence and distributed at
the instance of the respondent. They cover the period from
6-2-1972 to the day before the poll. Their evidentiary
value is, therefore, very high.
The distribution of the pamphlets by the respondent is also
probabilised by Ex. A-16 written by the appellant to the
General Secretary of the Congress in Warangal District and
Ex. A-44 to the Returning Officer.
We shall now refer to Exs. A-2 to A-4. These are three
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letters written by three supporters of the appellant about
the distribution of the pamphlets by either the respondent
or his election agent as well as R.W. 33. ’rho learned
Judge has rejected them among other reasons
134
on the ground that postal stamps on them could have been
antedated. The criticism we have made earlier with
reference to this view of the learned Judge when we were
discussing the documents relating to the Yuvajana Congress
of Thorrur applies here also. Four Post Offices, are
involved with reference, to these three documents, the three
different Post Offices in which they were posted and the one
Post Office in which they were received. Only with
reference to one of the Post Offices it was said that the
Postmaster was a relative of the appellant. We think it
impossible that postal stamps from four different Post
Offices could have been antedated so easily. On the other
hand these three documents give us the feeling that they
have been prepared with an eye on an election petition.
People who have been working for the appellant would not
suddenly stop working merely because they saw a pamphlet
like Ex. A-1 and if they do so they would just stop working
and not bother further about waiting to her. It was also
unnatural in such letters for these persons to say that
people were being convinced and that they themselves were
convinced by the pamphlets. If that is so, these letters
must have come into existence before the date of the poll.
If the postal stamps could not have been antedated, how and
why were these letters brought into existence ? This
question has given us considerable anxiety and we think that
the most acceptable explanation is that having come to know
of the distribution of the pamphlets like Ex.A-1 the
appellant got her supporters to write these letters and they
have done it only too well. The tell-tale statements
contained in them give us no option but to reject Exs.-A-2
to A-4.
We do not think it necessary to refer at length to the oral
evidence, in this case about the distribution. A large
volume of evidence hat been let in on behalf of the
appellant regarding the distribution. As already mentioned
the villages in which the distribution was made, the dates
on which the distribution was made, the persons who made the
distribution as well as the persons to whom the distribution
was made are set out in the schedule to the election
petition. The attack made on these in the written statement
filed by ’the respondent is that the names of the supporters
of the appellant were given therein in order to enable them
to give false evidence. The learned Judge has in discussing
the evidence of these witnesses extracted their evidence at
length and rejected them mostly on the ground that they were
the appellant’s supporters. But he has not hesitated to
accept the denials by, the respondent and that of his
witnesses and their evidence even though they are as much
partisan as the appellant’s witnesses. That is why in
matters of this kind in assessing the oral evidence we have
got to have some reliable test for assessing the reliability
of one version or the other. Much of the criticism made by
the learned Judge of the evidence on behalf of the appellant
is that of very tenuous kind and they can be applied as well
to the evidence on behalf of the respondent and we can see
no justification for the facile way he accepted the denial
by the respondent and his witnesses. The documents
regarding the Youth Congress of Thorrur, which we have
discussed, furnish strong support which one has got to look
for before one can accept oral,
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135
evidence in matters of this kind. It is easy enough to
accept or reject oral evidence by mentioning one or two
minor contradictions. One should be satisfied that the
broad outline of the evidence given is true and worthy of
acceptance.
We are not impressed with the view of the learned Judge that
either R. W. 32 or R. W. 33 might have been responsible for
bringing into existence the pamphlet Ex-A-1. After all the
person that was standing for election was the respondent and
his attitude of trying to see that neither the appellant nor
her husband was set up as a Congress candidate and being
prepared to stand merely for the purpose of defeating her
shows that it was he that was interested in publishing this
pamphlet. His earlier effort, Ex. A-48 also shows this.
We find it impossible to accept the evidence of R. W. 32 and
R. W. 33 that the appellant and her husband were responsible
for sending a petition against them in regard to a contract
work that they had undertaken or that the appellant wanted a
bribe of Rs. 3000 from them. All this is falsified by the
admission that it was Nookala Ramachandra. Reddy, a former
Minister, that was responsible for the representation
against R.Ws. 3 2 and 3 3 in regard to the contract about
which the Anti-Corruption Department made an enquiry.
We are conscious that where a corrupt practice is alleged
against a returned candidate it must be scrutinised with
considerable care because a finding to that effect has very
serious consequences. It not merely sets aside the popular
verdict but also subjects the successful candidate to the
penalty of being disqualified for election and even criminal
prosecution. We are also conscious that this Court does not
normally reappraise the evidence and come to a contrary
conclusion from that of the trial Judge if it is generally
acceptable. But we must not forget that an appeal under S.
116A of the Representation of the People Act is a first
appeal and not one under the provisions of Art. 136 of the
Constitution and that an appeal is a rehearing. In this
case we have undertaken a reassessment of evidence because
the learned Judge has rejected the evidence of the
appellant’s witnesses wholesale mainly on the ground of
their being partisan witnesses while no such standard has
been applied to evidence of witnesses on behalf of the
respondent, except R. W. 3 and R. W. 21. Even there it was
because the documentary evidence was too strong. He has
also not discussed Ex. A-48 and appreciated the evidence in
the background of that document. His rejection of the
evidence regarding the Thorrur Yuvajana Congress has led to
a wrong approach in the appreciation of the oral evidence. ,
We have come to the conclusion that it is satisfactorily
established that these pamphlets were printed and
distributed at the instance of the respondent. The appeal
is allowed and the election of the respondent set aside.
The respondent will pay the appellants costs.
P.B.R. Appeal allowed.
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