PETITIONER:
K. M. MANI ETC.
Vs.
RESPONDENT:
P. J. ANTONY AND OTHERS
DATE OF JUDGMENT12/09/1978
BENCH:
SHINGAL, P.N.
BENCH:
SHINGAL, P.N.
FAZALALI, SYED MURTAZA
CITATION:
1979 AIR 234 1979 SCR (1) 701
1979 SCC (2) 221
CITATOR INFO :
R 1981 SC 8 (10)
RF 1986 SC1253 (17)
R 1991 SC1557 (16,28)
ACT:
Representation of the People Act 1951-Sec. 123(7)-
Allegation that Police officer addressed an election meeting
for furtherance of candidates election-Whether corrupt
practice.
Practice & Procedure-Election cuses-Pleadings & Proof-
An allegation of corrupt practice to be established beyond
reasonable doubt-Addressing meeting-Allegation of corrupt
practice-No documentary evidence produced-Transcript. speech
or contemporaneous record of speech-If should be produced.
HEADNOTE:
Section 123(7) of the Representation of the People Act,
1951 provides, among others, that the obtaining or procuring
by a candidate of any assistance (other than giving of vote)
for the furtherance of the prospects of that candidate's
election from any person in the service of the Government is
a corrupt practice.
The appellant in Civil Appeal No. 99 of 1978 who was
declared elected to the State Assembly in the General
Elections of 1977 was a Minister of the State Government at
the time of election. The appellant in Civil Appeal No. 79
of 1978 was a Police officer belonging to the Indian Police
Service posted as Commissioner of Police at that time. The
first respondent in both cases was an elector in the
constituency. All the three were Roman Catholics.
In his election petition respondent No. 1 alleged that,
at the instance of the first appellant or with his knowledge
and consent, the Police officer assisted the convening of a
meeting of the priests of the various parishes of the Roman
Catholic Church at the Bishop's house which was presided
over by the Bishop for the furtherance of the appellant's
victory in the election. The Police (Officer was alleged to
have exhorted them to work for the appellant's victory as it
was in the interest of the Church and community. The first
appellant was also F alleged to be at the meeting. The
respondent alleged that this constituted a corrupt practice
within the meaning of s. 123(7) of the Act.
The High Court declared the election void. In addition
it declared that he Police officer was guilty of corrupt
practice.
on appeal the appellant contended (i) that the High
Court was in error in holding that the appellant had
committed a corrupt practice within the meaning of the
section and (ii) that the election petition was not
maintainable for vagueness of the pleadings in paragraph 5
of the election petition.
Allowing the appeal:
^
HELD: 1. There is no direct evidence to prove that the
Police officer went tn attend the meeting at the Bishop's
house at the instance of the appellant and spoke there at
his instance and as the circumstantial evidence produced was
inadequate to reach that conclusion the High Court was wrong
in holding that
702
the appellant obtained and procured the services of the
Police officer in furtherance of the prospects of his
election and thereby committed a corrupt practice under s.
123 (7) of the Act.
[721B-C]
2 An allegation regarding the commission of a corrupt
practice at an election is a very serious matter not only
for the candidate but for the public at large as it relates
to the purity of the electoral process.
[712H]
3 (a) An allegation regarding the commission of a
corrupt practice is in the nature of a quasi-criminal
proceeding which has to be established beyond reasonable
doubt and not merely by preponderance of probabilities.
[719C]
3 (b) The election petitioner must exclude every
hypothesis except that of nature on the part of the returned
candidate or his election agent. The trial court erred in
basing its finding on a mere probability.
[720F]
R. M. Seshadri v. G. Vasantha Pai [1969] 2 SCR 1019;
Bhagwan Datta Shastri v. Ram Ratanji Gupta & Others AIR 1960
SC 200; Balwant Singh v Prakash Chand & Ors [1976] 3 SCR 335
referred to.
4. The High Court was right in holding that there was
no sufficient evidence to substantiate the allegation that
the Police officer went to the place of meeting at the
appellant's instance to assist him in convening the meeting
in furtherance of his prospects in the election. It
therefore rightly considered the other question whether he
addressed that meeting.
[710F-G]
5. The High Court was not justified in reaching the
conclusion that the Police officer intentionally tool; the
great risk of committing an offence under s. 129(2) and of
losing his job out of fear or favour of the appellant. Even
if r;' all the premises set up by the High Court were
accepted as correct, it would not follow that they would
establish a nexus between the two, for it may well be that
the police officer did all that at the instance of some one
else, or out of his own desire to curry favour with the
appellant in the hope of some future advantage. The High
Court erred in basing its finding on a mere probability.
Mohan Singh v. Bhanwarlal & Ors. AIR 1964 SC 1366;
Samanand N. Balakrishna etc. v. George Fernandez & Others.
[1969] 3 SCR 603 referred to.
6. It was established that the Police officer was
present after the meeting had commenced and said something
there. But there was no satisfactory evidence to prove that
the Police officer spoke anything at the meeting for
furtherance of the appellant's electoral prospects or that
he went there and (" spoke at his instance.
[712H; 719H]
7. Where an allegation relates to a charge that a
candidate obtained the assistance of a Police officer for
the purpose of addressing a meeting and exhorting those
present to work for his victory, it is reasonable to expect
that a transcript of his speech should be made available to
the Court in support of the allegation. This would also give
the candidate an opportunity of meeting a precise
allegation. Where it is not possible to give a transcript it
would be reasonable to expect that the petitioner would
produce a contemporaneous record of the points made in the
speech, or at least its substance.
[713A-C]
703
In the instant case, no such record was made available.
Even a gist was not furnished. The allegation may well have
been the impression or the opinion of the petitioner on
hearing what others told him about the speech because he was
not present at the meeting.
[713D]
8. A Police officer is a citizen, and an elector and is
entitled to have his own belief that a particular candidate
would win and to express that belief with- out lending the
impression that it was meant to assist him in the election
in only manner. It would have been open to objection only if
the Police officer had stated at the meeting that it was
necessary for the benefit of the Christian community that a
person like the appellant should win and become a Minister.
to save them from the rigour of the Land Reforms Act. [714A-
B]
9. Assuming that the Police officer's statement in his
evidence that he had gone to the place of meeting to consult
one of the priests on a personal matter was not quite
satisfactory, his presence at the meeting or expression of
his personal views there could not possibly amount to the
commission of a corrupt practice under s. 123(7). [716H]
10. The Bishop stated in his evidence that there was a
news items in a newspaper that the Catholic Church was
silent about the election, that he (the Bishop) was against
the appellant. and that some priests thought that such a
wrong impression should be dispelled. He said that the
meeting was convened by him for the purpose of clarifying
his position. That evidence had been corroborated. Clearly,
therefore, the meeting was held at the Bishop's own
initiative.[712E-F]
11(a) There was nothing in the Bishop's statement to
show that the Police Officer exhorted the audience to work
for the appellant's victory. [713H]
11(b) The Bishop stated in his evidence that the Police
officer said that he would give up his uniform and job if
that was necessary. This statement can not be used for the
purpose of proving the alleged corrupt practice. That was a
statement regarding, his future course of action. lt showed
that he realised that without giving up his job it was not
possible for him to assist the appellant in the election.
When he was conscious of that limitation, it could not be
believed that he would throw discretion to the winds, and
then and there launch an exhortation for the appellant's
success at the polls. The fact that no such impression was
created will be clear from the Bishop's answer that he did
not know what for the witness mentioned his willingness to
give up his job when necessary. [714C-E]
12. Taking an overall view of the evidence on record it
must be held that the High Court erred in preferring the
statements of the petitioner`s witnesses to the testimony of
the Bishop. [716D]
13. Assuming that the appellant was in or around the
place of meeting and was attending one or the other of his
election meetings, it would not necessarily follow that he
visited the Bishop's house while the meeting was going on.
The election petitioner did not venture to plead that the
appellant attended the Bishop's meeting even though such a
plea would have helped him in establishing a direct
connection between the appellant and the meeting on the one
hand and between the appellant and what was said by the
Police officer on the other. [718D-E]
11-549 SCI/78
704
14. The argument that the appellant was driven by the
prospect of defeat to seek assistance of the Police officer
openly on pain of losing his success at the hands of an
elector has no force. What a candidate would do or how he
would react in such circumstances essentially depends on his
mental make up and his reaction in such a matter is really
one of the imponderables of an electoral contest and cannot
from the basis of definite finding one way or the other. At
any rate the appellant was not new to the contest. He had
won the elections on three earlier occasions.[720G-721A]
15(a) The appellant's contention that the allegation in
paragraph 5 of the election petition which constituted the
subject matter of the appeal was vague was clearly an after
thought and should be rejected. He had not shown that it has
prejudiced his defence. [708C-D]
15(b) The law in regard to the verification of election
petition is contained in the proviso to s. 83(1) of the Act
which requires that the affidavit should be in the
"prescribed form". A reference to r. 94A and Form 25 of the
Conduct of Election Rules 1961 shows that it Would be enough
for the election petitioner to say that the statements made
in the petitioner paragraph were true to his "information .
The election petitioner in the instant case had done this.
[708E-F]
Virendra Kumar Saklecha v. Jagjiwan and Ors. [1972] 3
SCR 955 inapplicable.
15(c) The appellant cannot be heard to say for the
first time in this appeal that he was not answerable for
what the Police Officer was alleged to have stated at the
meeting and that his case should be judged on the limited
allegation that the Police officer lent his assistance to
convene the meeting. The proper way to examine the
controversy was to consider the substance of the allegation
and not its form. The allegation should be read as a whole
and not in a disjointed way or to tear a line here or a line
there, from the context. the paragraph taken as a whole
relates to the allegation regarding the commission or
corrupt practice under s. 123(7). The allegation was rightly
taken in the trial court to mean that the assistance of the
Police officer was obtained or procured both for convening
and addressing the meeting for the furtherance of the
appellant's prospects in the election. [709C. H. D. F" G;
JUDGMENT:
CIVIL APPELLATE JURISDICTION Civil Appeal No. 99 and 79
of 1978.
From the Judgment and order dated 21-12-1977 of the
Kerala High Court in Election Petition No. 17 of 1977.
A. K. Sen, Y. S. Chitale, P. Surendaran, P. B.
Dadachanji J. K. John, C. K. Srivashanker Panicker, T. R.
Raman Pillai and Manjul Kumar, for the Appellant (In C.A.
99/78).
Y. S. Chitale, Miss P. Nambiar and A. S. Nambiar for
the Appellant in C.A. No. 79/78.
P. Govindan Nair. N. Sudhakaran, Mathew Zachariah and
Mrs. Krishan for Respondent No. 1. (In both the Appeals)
705
The Judgment of the Court was delivered by
SHINGHAL, J.-These two appeals are directed against two
orders of the Kerala High Court dated December 21, 1977, in
the election petition of respondent P. J. Antony, an elector
of the Palai constituency (No. 94) of Legislative Assembly.
P. J. Antony challenged the election of K. M. Mani in the
general election of 1977 and prayed for a declaration that
the other candidate N. C. Joseph, respondent No. 2, had been
duly elected in that election. The High Court held that
K. M. Mani “obtained and procured the services of Joseph
Thomas, a police officer,” in furtherance of the prospects
of his election and a corrupt practice was committed under
sub-section (7 of section 123 of the Representation of the
People Act, 1951, hereinafter referred to as the Act. It
therefore declared K. M. Mani’s election from the
constituency to be void, with costs, but rejected the prayer
for directing N. C. Joseph to have been elected. It made a
separate order the same day naming K. M. Mani and Joseph
Thomas as the persons who were guilty of the corrupt
practice. While K. M. Mani has filed appeal No. 99 of- 1978
and will hereafter be referred to as the appellant, Joseph
Thomas has filed appeal No. 79 of 1978.
Polling at the election was held on March 19, 1977, and
the result was declared on March 20. The appellant obtained
39,664 votes. N.C. Joseph, who was the nearest rival at the
election, obtained 24,807 votes and the other defeated
candidate Joseph Cheriyan obtained 521 votes.
The appellant was a Roman Catholic and was working as
the Finance Minister of the Kerala Government at the time of
the election. He was the candidate of the Kerala Congress.
which had entered into some sort of an election alliance
with some other parties. N. C. Joseph, who was also a Roman
Catholic, was an independent candidate. The contest was thus
between Roman Catholics.
The election of the appellant was challenged with the
allegations that he had committed corrupt practices under
sub-sections (1), (2), (3), (4) and (7) of section 123 of
the Act. But the election petitioner did not even allege the
ground for the commission of any corrupt practice under sub-
section (4) and did not press his case in regard to the
commission of the corrupt practice under sub-section (3) of
section 123. It is also not in controversy that he did not
find it possible to prove his allegations under sub-sections
(1) and (2). The trial court however found that the
appellant had committed a corrupt practice under sub-
section (7) of section 123 and, as has been stated, it named
him and Joseph Thomas as the persons who had been proved
706
at the trial to be guilty of that corrupt practice. We shall
therefore confine ourselves to the question whether that
corrupt practice was committed by the appellant and Joseph
Thomas. In doing so we shall refer only to the pleadings and
the evidence relating to it.
It was alleged in the election petition that a meeting
of the priests of the various parishes of the Roman Catholic
Church within the area of the Palai constituency and certain
other leaders of the Catholic Community” was convened at the
Bishop’s house Palai, on March 12, 1977, at 8 p.m. which was
presided over by the Bishop and was attended and addressed
by Joseph Thomas who was an officer of the Indian Police
Service and was posted as City Police Commissioner,
Trivandrum. As the entire allegation in that respect has
been stated in para graph 5 of the election petition, it
will be convenient to extract it here,-
“5. The same meeting was attended and addressed by
Shri Joseph Thomas, I.P.S., City Police Commissioner,
Trivandrum. Addressing the meeting he exhorted the
Parish Priests an(i leaders of Community assembled in
that meeting to work for the success of Shri K. M. Mani
Ist respondent- “as it was in the interest of the
Church and Community”. Shri Joseph Thomas went to Palai
at the instance of 1st respondent Minister or with his
consent and knowledge to k; assist the convening of the
meeting of the Bishop and Priests for the furtherance
of the prospect of the victory of the Ist respondent in
the election. Shri Joseph Thomas actually addressed
this meeting exhorting to work for the victory of the
1st respondent. The said Joseph Thomas is a member of
the Police Force and a Gazetted Officer. The said
Police officer is known for his antipathy towards the
opposition Parties. Obtaining or procuring his services
for the furtherance of the prospects of the 1st
respondent’s election is a corrupt practice falling
within the mischief of Sec. 123(7) of the
Representation of People Act, 1951.”
The appellant filed a written statement in which he
traversed the averments in the election petition and, in
regard to the allegation in paragraph S, he set up the
following defence,-
“This respondent denies the averments in para 5 of
the petition. This respondent does not know whether
Shri Joseph Thomas attended or addressed the meeting as
alleged in para S of the election petition. This
respondent is not aware of any exhortation having been
made by Shri Joseph Thomas as alleged in paragraph S of
the petition. This respondent
707
denies that Shri Joseph Thomas went to Palai at the
instance A of this respondent. He has not gone to Palai with
this respondent’s consent and knowledge to assist the
convening of any meeting of Bishop and Priests for
furtherance of the prospect of the victory of this
respondent in the election. This respondent is not aware as
to whether Shri Joseph Thomas actually addressed the said
meeting exhorting to work for the victory of this
respondent. This respondent is not aware of Shri Joseph
Thomas having any antipathy towards the opposition parties.
This respondent has not obtained or procured his services
for furtherance of the prospects of this respondent’s
election. This respondent is not guilty of any corrupt
practice falling within the mischief of s. 123(7) of the
Representation of Peoples Act.”
A reply was filed by Joseph Cheriyan substantially
supporting the election petition, but it has no bearing on
the case.
The High Court framed three rather general issues
raising the question: (1) whether the election petition was
maintainable, (2) whether the election of the appellant was
vitiated by all or any of the corrupt practices alleged in
the petition, an(l (3) what costs and reliefs were
admissible to the parties.
The High Court found that the election petition was
maintainable and that Finding has not been challenged before
us except in regard to the vagueness of the pleading in
paragraph 5.
The allegations about the commission of the corrupt
practices were set out in paragraphs 4, 5 and 6 of the
election petition. Although the appellant specifically took
the plea in his written statement that the averments in
paragraphs 4 and 6 were vague, he did not take any such plea
in regard to paragraph 5. This shows that the allegation in
paragraph 5, which constitutes the subject matter of the
present appeal, was not found to be vague and the appellant
had no difficulty in setting out his defence thereto in
paragraph 8 of his written statement. Realising that the
appellant had not found it possible to raise any objection
about the vagueness of the allegation in paragraph 5, his
learned counsel invited our attention to paragraph 11 of the
written statement where it was stated that the “allegations
in the petition as well as the affidavit are too vague to be
accepted and acted upon,” and that “the averments in the
petition and affidavit are purposely left vague with intent
to fish out materials to fill up the lacuna.”
708
A reading of the whole of paragraph 11 shows, however,
that it was essentially meant for the purpose of showing
that the affidavit which had been filed along with the
election petition did not conform to the requirements of the
law and could not be acted upon, and it was in that context
that the aforesaid averment was made about the vagueness of
the allegations in the election petition as well as the
affidavit. But even if we were to correlate that averment of
paragraph 11 to the allegations in the election petition, we
have no doubt that it could be said to relate only to the
allegations in paragraphs 4 and 6 of the election petition
regarding the commission of corrupt practices under sub-
sections (2), (3) and (1) of section 123 of the Act which,
as has been stated, have not been raised for consideration
in these appeals. There is therefore justification for the
argument of learned counsel for the respondent that the
argument regarding the vagueness of the allegation in
paragraph of the election petition is an afterthought and
should be rejected as it has, at any rate, nat been shown
that it has prejudiced the defence.
It has also been argued that the election petition has
not been properly verified as it has not been stated which
of the averments in paragraphs 3 to 6 were true “according
to the information received by the petitioner” and which
were “believed” by him to be true. Our attention has in this
connection been invited to a judgement of this Court in
Virendra Kumar Saklecha v.Jagjiwan and others(‘). We find
that the only objection which was taken in the written
statement (paragraph 11) was that the “affidavit filed along
with the Petition (was) not in conformity with the
requirements of law”. The law in that respect is contained
in the proviso to section 83(1) which requires that the
affidavit shall be in the “prescribed form”. A cross
reference to rule 94A and Form 25 of the Conduct of
Elections Rules 1961, shows that it was enough for the
election petitioner to say that the statements made in the
relevant paragraphs (3 to 6) were true to his “information”
and that is what he has done. The decision in Saklecha
turned on the Rules of the High Court, but no breach of any
rule of the Kerala High Court has been brought to our
notice.
It has then been argued that the allegation regarding
the commission of the corrupt practice under sub-section (7)
of section 123 was merely to the effect that Joseph Thomas
went to Palai at the instance if the appellant to assist the
“convening” of the meeting of the Bishop and priests for the
furtherance of the appellant’s prospects in the election,
and that the further averment in paragraph 5 that Joseph
Thomas “actually addressed” the meeting exhorting those
present to work for
(1) [1972] 3 S.C.R. 955.
709
the victory of the appellant, was not at the instance of the
appellant and he was therefore not responsible for it even
on the basis of the averment made in election petition. We
are unable to uphold this argument for two reasons. Firstly,
it was not the appellant’s case in the written statement, or
during the course of the trial, that the allegation against
him was limited to Joseph Thomas’s assistance to the
“convening” the meeting at the Bishop’s house and did not
extend to his exhortation to those present to work for the
appellant’s victory in the election, and the argument that
has now been addressed has been made up subsequently. The
appellant cannot therefore be heard to say for the first
time in this appeal that he is not answerable for what
Joseph Thomas is alleged to have said at the meeting and
that the case against him should stand or fall on the basis
of the limited allegation that he lent his assistance to the
convening of the meeting at the Bishop’s house. Secondly, it
is necessary, for the purpose of appreciating an argument of
this nature bearing on the contents, nature and extent of an
allegation recording the commission of a corrupt practice to
read the allegation as a whole, and not to disjoint it, or
to tear a line here or a line there, from the context. If
this test is applied to the averment in paragraph 5 of the
election petition, it will be quite clear that the paragraph
taken as a whole relates to the allegation regarding the
commission of the corrupt practice under sub-section (7) of
section l 23 of the Act in obtaining or procuring the
assistance of Joseph Thomas not only for convening the
meeting of the Bishop and the priests for the furtherance of
the prospects of the appellants in the election but also his
addressing that meeting and exhorting those present to work
for that purpose. The mere fact that the allegation
regarding addressing the meeting and exhorting the audience
is contained in a separate sentence will not justify the
argument that the allegation in paragraph 5 was confined to
“convening” the meeting and not to addressing it. This is
borne out by the sentences that precede and follow the
allegation about convening the meeting where it has clearly
been stated that the police officer’s services were also
obtained or procured for exhorting the priests to work for
the furtherance of the prospects of the appellant’s
election. The allegation was therefore rightly taken in the
trial court to mean that the assistance of Joseph Thomas was
obtained or procured both for convening and addressing the
meeting for the furtherance of the appellant’s prospects at
the election. The proper way to examine a controversy like
this is to consider the substance of the allegation and not
its mere form. It may be that a part of the allegation may
be made in a separate sentence or sentences, and it may
also be that it may appear to be disjointed from the earlier
allegation because of inartistic drafting, but it is the
substance of the alle-
710
gation which is material and not its mere form. It is
equally necessary the allegation should be read as a whole
and construed properly so as to understand its true nature
and content. On such an examination, we have no doubt that
there is no force in the argument that the allegation
regarding the corrupt practice under sub-section (7) of
section 123 oft relate to the addressing of meeting by
Joseph Thomas.
There is however justification for the argument of the
learned counsel for the appellant that the allegation in
paragraph 5 of the election petition is confined to the
commission of the corrupt practice by the candidate, namely
K. M. Mani, and not by his agent or by any other person with
the consent of K. M. Mani or his election agent. The use of
the words “or with his consent and knowledge” are therefore
of no consequence and it is in fact not disputed before ns
that the allegation is confined to the obtaining or
procuring of Joseph Thomas’s assistance in convening and
addressing the meeting at the Bishop’s house by the
appellant himself.
Before examining the controversy on the merits, it will
be convenient to make a mention of those facts which are not
in controversy before us. lt is thus not disputed now that a
meeting was called by Dr. Sebastian Vayalil (P.W. 2), Bishop
of Palai Diocese, on March 12, 1977, at 8 p.m. at his
residence. It was addressed by the Bishop and Joseph Thomas
was present there. He was an officer belonging to the Indian
Police Service and was posted as City Commissioner of
Police, Trivandrum, in those days, so that he was a member
of police forces within the meaning of clause (d) of sub-
section (7) of section 123 of the Act.
It would be recalled that it was alleged, inter alia,
in paragraph S of the election petition that Joseph Thomas
went to Palai at the instance of the appellant to assist the
conventing of the meeting for furtherance of the appellant’s
prospects in the election. The trial court however found
that sufficient evidence was not available to substantiate
the allegation, and it therefore proceeded to consider the
question whether he addressed that meeting as alleged in the
election petition. That finding of fact of the High Court is
quite correct and has rightly not been challenged before us.
We shall therefore examine the evidence in regard to
the other two allegations that Joseph Thomas addressed the
meeting at the instance of the appellant and exhorted those
present to work for his victory in the election. In order to
arrive at a decision, it will be convenient to examine why
Joseph Thomas went to Palai, why he visited the Bishop’s
house and what exactly he said in the meeting there.
711
lt has been stated by Joseph Thomas, and has not been
disputed before us, that he was posted in those days as
City Commissioner of Police, Trivandrum, and no part of the
Palai constituency fell within his jurisdiction. It is also
not in controversy that his father was laid up with
prolonged illness as all indoor patient in the hospital at y
at a distance of there miles from Palai where they belonged.
Joseph Thomas’s statement that he was sent on duty, by a
written order, to Cannanore, that he took a half day’s
casual leave on March 12, 1977 on return to Ernakulam from
Cannanore and went to Y hospital to meet his ailing father
via Palai without stopping there and reached the hospital at
2.30 p.m.. has not been disproved by any evidence on the
record. On the other hand, we find that Dr. Sebastian
Vayalil (P.W.2), the Bishop of Palai, has also stated about
the illness of the father of Joseph Thomas for the preceding
two or three years. The Bishop was in a position to know
about it because he has stated that Joseph Vathavayalil,
father of Joseph Thomas, was the legal adviser of the
Bishop’s house. He has further stated that he actually asked
Joseph Thomas how his father was. Nothing thing has been
brought on the record to disprove the testimony of Joseph
Thomas (P.W. 6) and Dr. Sebastian Vayalil (P.W. 2) in this
respect. In fact as Joseph Thomas’s father was suffering
from a prolonged illness in the Bharananganam hospital, it
was nothing unusual for his son Joseph Thomas to visit him
off and on, and he cannot be blamed if he took the
opportunity of his presence near Bharananganam to take leave
of absence for a few hours and go and meet him. Nothing
could therefore possibly turn on the mere fact that Joseph
Thomas was in Palai on March 12, 1977.
The question which however arises for consideration is
why Joseph Thomas as went to the Bishop’s house at a time
when a meeting was being held there at about X p.m. An easy
way of proving the allegation which had been made in this
connection in the election petition was to establish that
the meeting was convened at the instance of Joseph Thomas
but, as has been stated, the election petitioner failed to
establish at this was so. The Bishop (P.W. 2) has in fact
left us in no doubt that he himself decided to hold the
meeting, and that the way from Bharananganam to Palai was by
the road which lay in front of his house. Dr. Joseph
Pallikkaparambil (P.W. 7), who was the Auxilliary Bishop of
Palai Diocese, has also stated that the decision to convene
the meeting was taken by the Bishop. It was therefore
imperative for the election petitioner to establish the
remaining allegation. that Joseph Thomas went to the
Bishop’s house for the purpose of exhorting those present at
the meeting to work for the appellant’s victory in the
election and that he actually did so.
712
Joseph Thomas (P.W. 6) has stated that he left
Bharananganam hospital at about 3.30 p.m. and went to the
Bishop’s house to see the Father Chancellor Madathilparambil
in connection with his suggestion regarding the marriage of
the sister of a priest with his (Joseph Thomas’s) brother.
He has stated further that he met the Bishop and the Father
Chancellor together at about 3.45 p.m.. because the F
Chancellor lived in the same premises. He left there after
4.15 p.m. for his house at Palai and returned to the
Bishop’s house at about 8 p.m. to inform Father Chancellor
about his reaction regarding the proposal for his brother’s
marriage and there he learnt that he was in the dining room.
He went there and found a number of persons. He met the
Father Chancellor and returned soon after. We shall revert
to Joseph Thomas’s talk in the Bishop’s house on that
occasion but we find it difficult to reach the conclusion
that he went there for the purpose of exhorting the audience
to work for the appellant’s success at the polls. It may be
that Joseph Thomas’s statement about the purpose of his
visit to the Bishop’s house is not very convincing, but it
will not be possible for us to hold the appellant
responsible for it in the absence of any evidence to that
effect on the record.
Bishop Sebastian Vayalil (P.W 2) at whose instance and
at whose house the meeting was held. has stated the reason
for holding it Briefly stated, his version is that news
items Ex. 1 appeared in the Indian Express on March 12,
1977, stating that the Catholic Church was silent, and he
received some anonymous letters saying that he was against
Mani. As some priests also thought that such a wrong
impression had been created, he thought it necessary to call
the aforesaid meeting to clarify that he was not against the
appellant. This statement of the Bishop has been
corroborated by Father Joseph Chovvathukunnel (P.W. 7) who
was the Auxilliary Bishop of the Diocese. We have therefore
no hesitation in holding that the meeting was held at the
Bishop’s own initiative and for the purpose of making the
clarification referred to by him. The Bishop has stated that
he clarified that he was “not against Mani or any other
candidate”, that the exercise of franchise was important and
that all should use it prudently. His statement to that
effect has not been shaken in cross-examination and has not
been disproved.
It has been established by the evidence on record that
Joseph Thomas was present after the meeting had commenced
and said some thing there. The question is what exactly did
he say ?
An allegation regarding the commission of a corrupt
practice at an election is ‘I very serious matter not only
for the candidate but for the public at large as it relates
to the purity of the electoral process.
713
Where therefore the allegation relates to the charge that a
candidate obtained the assistance of a police officer for
the purpose of addressing a meeting on the eve of the poll
and exhorting these present to work for his victory. it is
reasonable to expect that wherever possible, a transcript of
his speech shall be made available to the Court in support
of the allegation. Besides furnishing the precise material
relating to the allegation to the election Court, it has the
advantage of giving the respondent an opportunity of meeting
a precise allegation. But it may be that this may not be
possible in a given situation. In that case it will be
reasonable and fair to expect that the election petitioner
will produce a contemporaneous record of the points that
were made in the speech, or at least its substance. But no
such record has been made available in this case. Even a
gist of what Joseph Thomas said at the meeting, has not been
stated in the election petition and the election petitioner
has contended himself by making the cryptic statement that
Joseph Thomas “addressed this meeting exhorting to work for
the victory of the 1st respondent”. That may well have been
the impression or the opinion of the election petitioner on
hearing what others told him about the speech because he was
admittedly not present at the meeting. All the same, some
other witnesses have been examined about the purport of the
speech, and we shall examine what they have stated.
Dr. Sebastian Vayalil (P.W. 2), the Bishop who called
the meeting in his house, has stated that Joseph Thomas
spoke at the meeting after his own speech was over and
several priests and expressed their opinion. He said that
Bishop had spoken about document Ex. 1 and the anonymous
letters and that “there is nothing much to fear.” The
witness has further stated that Joseph Thomas said that his
belief was that K. M. Mani will win. When he was asked
whether Joseph Thomas said that for the benefit of migrated
Christians who had lost their lands on account of the Land
Reforms Act, 1964, persons like Mani who loved the Christian
community should win and become a minister, the witness
categorically stated that he “didn’t say anything like
that.” When he was asked further whether Joseph Thomas said
that he was prepared to give up his uniform for the sake of
Mani’s success, the witness stated that what Joseph Thomas
said was that “If it is necessary I will give up my uniform
and job.” When the witness was clearly asked whether that
was said for the success of the appellant, he replied that
he did not know what for. There is thus nothing in the
statement of the Bishop, who was the prime mover of the
meeting, to show that Joseph Thomas exhorted the audience to
work for the victory of the appellant or rendered him any
assistance for the furtherance of his prospects in that
direction. Even a police officer whose assistance has
714
been prohibited under sub-section (7) of section 123 of the
Act, is nonetheless a citizen and an elector, and is
entitled to have his own belief that a particular candidate
would win, and to express that belief without lending an
impression that it was meant to assist him in the election
in any manner. It would have been open to objection if
Joseph Thomas had stated at the meeting that it was
necessary for the benefit of the Christian community that
persons like Mani should win and become a Minister to save
them from the rigour of the Land Reforms Act, but the Bishop
has returned a categorical answer that Joseph Thomas did not
say any such thing.
The remaining part of the statement of the witness
relates to Joseph Thomas’s statement that if it was
necessary he would give up his uniform and job. That
question was asked of the witness in the context of the
appellant’s success in the election but, even so, so reply,
as stated by the Bishop, cannot be said to be open to
objection. Accord that limitation, it cannot be believed
that he would throw discretion job if that was necessary.
That was a statement regarding his future course of action,
and it shows that Joseph Thomas realised that without giving
up his job it was not possible for him to assist the
appellant in the election. When therefore Joseph Thomas was
conscious of that limitation, it cannot be believed that he
would throw discretion to the winds and then and there
launch an exhortation for the appellant’s success at the
polls. The fact that no such impression was created from
what Joseph Thomas said at the meeting, will be clear from
the Bishop’s answer that he did not know what for the
witness mentioned his willingness to give up his job when
necessary. We have no reason to disbelieve the statement of
the Bishop, and we are unable to take the view that it can
be used for the purpose of proving the alleged corrupt
practice of obtaining or procuring the assistance of the
police officer for furtherance of the appellant’s prospects
in the election.
Cherian J. Kappan (P.W.3) is another witness in this
connection. He has no doubt stated that the person who was
mentioned as City Commissioner of Police spoke thrice and
said that Mani’s success was a necessity and that if only he
won then it will be possible to exclude the estates planted
with rubber after 1964 from the operation of the Land
Ceiling Act. The witness has further stated that Joseph
Thomas said that it was therefore their need that the
appellant should win and “therefore it does not matter if I
lose my job and I came for this.” We find however that in
all these respects the statement of the witness has been
contradicted by the statement of Dr. Sebastian Vayalil (P.W.
2). Thus the Bishop has not stated that Joseph Thomas spoke,
thrice, and
715
he has categorically stated that he did not say that Mani
should win or that he should win for the benefit of the
migrated Christians with reference to the Land Reforms Act,
1964. As regards Joseph Thomas’s offer to give up his job,
the version of Dr. Sebastian Vayallil (P.W. 2) is
substantially different from that of Cherian J. Kappan (P.W.
3), for while Cherian J. Kappan (P. W. 3) has stated as if
Joseph Thomas was prepared to lose his job then and there
and had come to address the meeting because of the need for
the appellant’s success, Dr. Sebastian Vayalil (P.W. 2) has
merely said that he expressed a desire to give up his
uniform and job if that became necessary in future. The
overall statement of Cherian J. Kappan (P.W. 3) has been
disproved by Dr. Sebastian Vayalil (P. W. 2) who has stated
that he did not know whether Joseph Thomas at all spoke for
the appellant’s success in the election.
We have gone through the statement of Cherian J. Kappan
(P.W. 3) and it appears to us that, to say the least, he was
not friendly with the appellant and had his own reasons for
running him down. The attention of the witness was drawn to
document Ex. P.2 dated March 15, 1977 which showed some
rivalry between him and the appellant, but he was unable to
explain it away. At any rate we do not find it possible to
accept the version of Cherian J. Kappan (P.W. 3) in
preference to that of Dr. Sebastian Vayalil (P. W. 2).
Father Joseph Chovvathukunnel (P.W. 4) is the next
witness in this connection. He was a Vicar of the Ramapuram
Forane Church and he has clearly stated that the Bishop
(P.W. 2) asked those present he has meeting to act according
to their conscience in the matter of casting votes. When the
witness was asked whose success was the object of the
meeting, he categorically stated that the Bishop did not say
who among candidates should succeed in the election. It is
significant that although the witness stated that the City
Commissioner of Police. Trivandrum, participated in the
meeting, and all said about election matters, he was not
asked whether Joseph Thomas said anything in the meeting
which could be said to assist the appellant in the election.
Father Joseph Pallikkaparambil (P.W. 7) was the
Auxiliary Bishop of the Palai Diocese. He attended the
meeting for a while, but he was also not asked whether
Joseph Thomas made any speech at the meeting and, if so, to
what effect. This omission is also not without significance.
Father George Nellikkattu (P.W. 8) was the Vicar of St.
Joseph’s Church, Paika. He has stated that City Commissioner
of Police Joseph Thomas was present at the meeting and that
he spoke as if
716
participating in it. He has said further that he remembered
Joseph Thomas speaking about the matter of Agrarian Bill and
that he said that the presence of persons like Mani was
essential in the Legislative Assembly to see that the Bill
did not affect them adversely. The witness has stated
further that Joseph Thomas stood and spoke three or four
times. We have already pointed out that the statement of Dr.
Sebastian Vayalil (P.W. 2) shows that there was no mention
of the Agrarian Act or Bill in Joseph Thomas’s talk, and
that he did not say anything regarding the Land Reforms
legislation or the desirability of the election of persons
like Mani in that connection. Moreover the witness has not
supported the version of Cherian J. Kappan (P.W. 3) that
Joseph Thomas said that it did not matter if he lost his job
and that he had come for the appellant’s success.
Taking an overall view of the evidence on the record,
which consists mainly of the statements of the petitioner’s
witnesses we have no hesitation in saying that the High
Court erred in preferring the statement of Cherian J. Kappan
(P.W. 3) and George Nellikkattu (P.W. 8) to the testimony of
Dr. Sebastian Vayalil (P. W.2) and Father Joseph
Chovvathukunnel (P.W. 4).
In arriving at this conclusion we have not so far taken
into account the statement of Joseph Thomas (P.W. 6) who
also has been examined on behalf of the election petitioner.
He has said while he and the Chancellor Priest were talking,
someone from the laymen asked for his own view about Mani’s
election and he said that he had heard that he would
succeed. He has further stated that when another person
asked him to say something as he was in the Police
department, he said that if anything had to be said about
it, he will have to give up his cap and uniform. This
versian Joseph Thomas (P.W. 6) is substantially in accord
with the statement of Dr. Sebastian Vayalil (P.W. 2). We
have no reason to discard it merely because it emanates from
a person who has been named for the commission of the
corrupt practice in the order under section 99 of the Act.
Joseph Thomas was subjected to a very long cross-
examination, but nothing has been elicited to shake his
testimony. It may be that his explanation that he happened
to be present at the meeting because he had gone there to
have a talk with the Chancellor Priest about the proposal
for his brother’s marriage may not be quite satisfactory,
but his mere presence at that meeting, or expression of his
personal views there, to which reference has been made
above, could not possibly amount to the commission of a
corrupt practice under sub-section (7) of section 123 of the
Act by the appellant.
717
This takes us to the question whether Joseph Thomas
went to attend the meeting and spoke there at the instance
of the appellant. The High Court has also addressed itself
to it and has gone to the extent of saying that it was
perhaps the only real question for consideration.
There is no direct evidence to prove that Joseph Thomas
went to attend the meeting and spoke there at the instance
of the appellant, and this fact has been noticed by the
trial court. It has however arrived at a decision against
the appellant on the basis of the circumstantial evidence on
the record. The court was led to that conclusion because of
its finding, with which we have disagreed, that in the
meeting which had been held at the Bishop’s house Joseph
Thomas “actively and vehemently canvassed all assistance on
behalf of the 1st respondent,” and has “also found that the
explanation given by P.W. 6 in that respect cannot be
accepted.” The court has also found that Joseph Thomas was
not a reliable witness and could not be believed when he
said that he had gone to Palai to meet his ailing father. In
reaching that conclusion the court has gone to the extent of
pointing out that Joseph Thomas was not very careful in
stating the facts even in the court, and has made a
reference to his incorrect assertion in paragraph 21 of his
objection petition dated December 8, 1977 in answer to the
notice under section 99, that he had received the notice on
December 3, 1977 when he had received it earlier on December
1, 1977. That, in our opinion could not be a sufficient
ground for disbelieving the witness. The counsel for Joseph
Thomas had in fact filed an affidavit on December 16, 1977
in the court in which he had made it quite clear that the
notice was really served on December 1, 1977, and that it
was inadvertently stated in the reply to the show cause
notice that it was received on December 3, 1977. At any rate
such a mistake could not possibly have justified the
rejection of the testimony of Joseph Thomas altogether.
The trial court has in this connection referred to a
“complaint” of the election petitioner that the priest of
Lalam Church could not be examined even though he was named
as a witness and could give useful information about what
had happened in the meeting. It has gone to the extent of
saying that the conduct of the priest of the Lalam Church
was somewhat abnormal, and he has been dubbed as the
“absconding” priest. Here again, it is difficult to accept
the reasoning of the trial court because there is nothing on
the record to show that the priest had been kept away by the
appellant or Joseph Thomas or that he had absconded. As it
happened, his whereabouts were ascertained after some time,
but the election petitioner did not move the court for
giving him a chance to examine him as a witness. His evi-
718
dence had no doubt been closed by then, but that would not
have prevented the court from allowing his examination. The
fact that priest of Lalam Church could not be traced at an
early date, could not therefore lend credence to the case
that Joseph Thomas went to the meeting at the instance of
the appellant.
The trial court has examined the activities of the
appellant on March 12, 1977, in reaching the conclusion that
he was himself present at the meeting at the Bishop’s house
on that day, and has placed reliance on the statement of M.
K. Raju (P.W. 5). Mr. Govindan Nair, learned counsel for the
election petitioner, has pointed out that the appellant had
fixed four meetings in or around Palai on March 12, 1977 and
that it was most unlikely that he would have left them
unattended and gone to Kottayam for the disposal of official
work there, so that his explanation for his absence from
Palai is quite unsatisfactory and deserved to be rejected.
But even if it is assumed that the appellant was in or
around Palai and was attending one or the other of his
election meetings, it would not necessarily follow that he
visited the Bishop’s house while the meeting was going on
there. It is significant in this connection that the
election petitioner did not venture to plead that the
appellant attended the Bishop’s meeting, even though such a
plea would have helped him substantially in establishing a
direct causal connection between the appellant and the
meeting and between him and what was said there by Joseph
Thomas.
The trial court has based its finding about the
appellant’s presence in the meeting on the statement of M.
K. Raju (P.W. 5). He was the car driver of Cholikara Mathai
Chettan in those days and he claims to have driven his
employer there. He has stated that he did not go inside the
Bishop’s house and went away to take coffee after leaving
his employer there. He returned at about 12 in the night. He
saw the appellant in the Bishop’s courtyard, but did not see
him returning. We have gone through the statement of Raju
but we do not find it possible to accept it in the face of
the statement of Dr. Sebastian Vayalil (P.W. 2) that the
appellant did not come to that meeting. On further cross-
examination the Bishop clarified that if Mani had come at
all, he would have come to know of that fact. Moreover if
the appellant had really been present at the meeting, the
election petitioner would have examined Cholikara Mathai
Chettan himself, who was driven there by M. K. Raju (P.W.
5), and would not have relied merely on the statement of the
driver who did not even go inside the house.
The election petitioner has examined a number of other
witnesses about what transpired at the meeting, but none of
them has stated that the appellant was present there. Even
Cherian J. Kappan (P.W. 3)
719
has not stated that the appellant was present at the
meeting, and we have no doubt that the High Court erred in
taking a contrary view merely on the basis of the evidence
of M. K. Raju (P.W. 5) and the appellant’s programme of
addressing some meetings in the vicinity of Palai.
A reading of the impugned judgment shows that the trial
court could go on further than saying that the version of M.
K. Raju (P.W. 5) that he saw the appellant going to the
Bishop’s house was “quite probable”. In taking that view the
trial court lost sight of the requirement that the
allegation regarding the commission of a corrupt practice is
in the nature of a quasi criminal proceeding which has to be
established beyond reasonable doubt and not merely by
preponderance of probabilities. In making the appellant’s
presence at the meeting a basis of the finding against him,
the trial court therefore committed an obvious error of law
which by itself is sufficient to vitiate it.
The trial court has also taken Joseph Thomas’s
activities into consideration, along with the facts that he
was a police officer working at Trivandrum, he went to the
Bishop’s house on March 12, 1977 and addressed a meeting
there, and “openly” canvassed for the appellant who was a
Minister of the State Government at that time. The High
Court has noticed the further fact that Joseph Thomas was
the seniormost Superintendent of Police and he would not
have been unaware that his conduct amounted to an offence
under section 129(2). On these premises the High Court has
built up its finding that as Joseph Thomas took a very great
risk, and declared that he was prepared to lose his job, the
normal conclusion would be that “in all probability P.W. 6
faced the risk out of fear or favour, and either of which
could have emanated only from the 1st respondent because it
was the 1st respondent alone who was benefited by the
impugned activities of P.W. 6.” To these circumstances Mr.
Govindan Nair has added the further argument that as the
Bishop wanted to remove the incorrect impression that he was
against the appellant, it must follow that as the meeting
was convened to remove that impression it was held for
furtherance of the prospects of the election and any speech
delivered by Joseph Thomas must be presumed to have that
object.
But as has been shown earlier, there is no satisfactory
evidence to prove that Joseph Thomas spoke anything at the
meeting for furtherance of the appellant’s electoral
prospects or that he went there and spoke at his instance.
It will be recalled that the Bishop has categorically stated
that he never said to whom votes should be cast and he did
not even intend that votes should be cast for the appellant.
12-549 SCI/78
720
Dr. Joseph Chovethukunnel (P.W. 4) has also stated that the
Bishop did not even say who among the candidates (who were
all Roman Catholics) should succeed. The trial court was not
therefore justified in reaching the conclusion that Joseph
Thomas intentionally took the great risk of committing an
offence under section 129(2) and of losing his job out of
fear or favour of the appellant. But even if all the
premises set up by the trial court in this connection were
accepted as correct, it would not follow, as an inevitable
conclusion, that they would establish a nexus between the
two, for it may well be that Joseph Thomas did all that at
the instance of someone else, or out of his own desire to
curry favour with the appellant in the hope of some future
advantage some time. At any rate that possibility could not
be excluded, and the trial court erred in basing its finding
on a mere probability. It will be enough to make a reference
to Mohan Singh v. Bhanwarlal and others and Samant N.
Balakrishna etc. v. George Fernandes and others etc. in this
connection. In Mohan Singh’s case it has been held that the
onus of proving the commission of a corrupt practice is not
discharged on proof of mere preponderance of probability as
in a civil suit, and it must be established beyond
reasonable doubt by evidence which is clear and unambiguous.
In Balakrishna it has been held that while consent may be
inferred from circumstantial evidence, the circumstances
must point unerringly to the conclusion and must admit of no
other explanation, for a corrupt practice must be proved in
the same way as a criminal charge. Out of the other
decisions of this Court to the same effect reference may be
made to R. M. Seshadri v. G. Vasantha Pai Bhagwan Datta
Shastri v. Ram Ratanji Gupta and others and Balwant Singh v.
Prakash Chand and other. The election petitioner must
therefore exclude every hypothesis except that of guilt on
the part of the returned candidate or his election agent,
and the trial court erred in basing its finding on a mere
probability.
We have, in this connection, taken into consideration
the other argument of Mr. Govindan Nair that the appellant
was in dire need of the help of Joseph Thomas because of the
stiff contest with N.C. Joseph and the facts and
circumstances mentioned in Ex. 1. What a candidate will do
or how he will react in such circumstances essentially
depends on his mental make up, and his reaction in such a
matter is really one of the imponderables of an electoral
contest and cannot form the basis of a definite finding one
way or the other. At any rate
721
the appellant was not new to that contest and had won
the elections on three earlier occasions. It is therefore
difficult for us to uphold the argument that he was so
driven by the prospect of defeat as to seek the assistance
of a police officer openly, on pain of losing his success at
the hands of any ‘elector’ who may charge him of the
commission of that corrupt practice.
So as there is no direct evidence to prove that Joseph
Thomas went to attend the meeting at the Bishop’s house at
the instance of the appellant and spoke there at his
instance, and as the circumstantial evidence referred to
above was inadequate to reach that conclusion, we are
constrained to set aside the finding of the trial court that
it was the appellant who “obtained and procured the services
of P.W. 6, a police officer, in furtherance of the prospects
of the election of the 1st respondent, and the corrupt
practice set out in sub-section (7) of section 123 of the
Act has been established beyond any doubt.” We have given
our reasons for differing with the trial court about what
was said by Joseph Thomas in the meeting at the Bishop’s
house.
The appeals are allowed with costs, the impugned orders
of the High Court dated December 21, 1977, under sections 98
and 99 of the Act are set aside and the election petition is
dismissed. N.V.K. Appeals allowed.
N.V.K. Appeals allowed.
722