{"id":247186,"date":"1978-09-12T00:00:00","date_gmt":"1978-09-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-m-mani-etc-vs-p-j-antony-and-others-on-12-september-1978"},"modified":"2015-10-05T15:57:52","modified_gmt":"2015-10-05T10:27:52","slug":"k-m-mani-etc-vs-p-j-antony-and-others-on-12-september-1978","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-m-mani-etc-vs-p-j-antony-and-others-on-12-september-1978","title":{"rendered":"K. M. Mani Etc vs P. J. Antony And Others on 12 September, 1978"},"content":{"rendered":"
Supreme Court of India<\/div>\n
K. M. Mani Etc vs P. J. Antony And Others on 12 September, 1978<\/div>\n
Equivalent citations: 1979 AIR 234, \t\t 1979 SCR (1) 701<\/div>\n
Author: P Shingal<\/div>\n
Bench: Shingal, P.N.<\/div>\n
           PETITIONER:\nK. M. MANI ETC.\n\n\tVs.\n\nRESPONDENT:\nP. J. ANTONY AND OTHERS\n\nDATE OF JUDGMENT12\/09\/1978\n\nBENCH:\nSHINGAL, P.N.\nBENCH:\nSHINGAL, P.N.\nFAZALALI, SYED MURTAZA\n\nCITATION:\n 1979 AIR  234\t\t  1979 SCR  (1) 701\n 1979 SCC  (2) 221\n CITATOR INFO :\n R\t    1981 SC   8\t (10)\n RF\t    1986 SC1253\t (17)\n R\t    1991 SC1557\t (16,28)\n\n\nACT:\n     Representation of\tthe  People  Act  1951-Sec.  123(7)-\nAllegation that Police officer addressed an election meeting\nfor  furtherance   of  candidates  election-Whether  corrupt\npractice.\n     Practice &\t Procedure-Election cuses-Pleadings & Proof-\nAn allegation  of corrupt  practice to be established beyond\nreasonable doubt-Addressing  meeting-Allegation\t of  corrupt\npractice-No documentary evidence produced-Transcript. speech\nor contemporaneous record of speech-If should be produced.\n\n\n\nHEADNOTE:\n     Section 123(7) of the Representation of the People Act,\n1951 provides, among others, that the obtaining or procuring\nby a candidate of any assistance (other than giving of vote)\nfor the\t furtherance of\t the prospects\tof that\t candidate's\nelection from any person in the service of the Government is\na corrupt practice.\n     The appellant  in Civil  Appeal No.  99 of 1978 who was\ndeclared elected  to  the  State  Assembly  in\tthe  General\nElections of  1977 was a Minister of the State Government at\nthe time  of election.\tThe appellant in Civil Appeal No. 79\nof 1978\t was a Police officer belonging to the Indian Police\nService posted\tas Commissioner\t of Police at that time. The\nfirst respondent  in  both  cases  was\tan  elector  in\t the\nconstituency. All the three were Roman Catholics.\n     In his election petition respondent No. 1 alleged that,\nat the instance of the first appellant or with his knowledge\nand consent,  the Police officer assisted the convening of a\nmeeting of  the priests of the various parishes of the Roman\nCatholic Church\t at the\t Bishop's house\t which was  presided\nover by\t the Bishop  for the  furtherance of the appellant's\nvictory in  the election. The Police (Officer was alleged to\nhave exhorted them to work for the appellant's victory as it\nwas in\tthe interest  of the Church and community. The first\nappellant was  also F  alleged to  be at  the  meeting.\t The\nrespondent alleged  that this constituted a corrupt practice\nwithin the meaning of s. 123(7) of the Act.\n     The High  Court declared the election void. In addition\nit declared  that he  Police officer  was guilty  of corrupt\npractice.\n     on appeal\tthe appellant  contended (i)  that the\tHigh\nCourt was  in  error  in  holding  that\t the  appellant\t had\ncommitted a  corrupt practice  within  the  meaning  of\t the\nsection\t and   (ii)  that  the\telection  petition  was\t not\nmaintainable for  vagueness of\tthe pleadings in paragraph 5\nof the election petition.\n     Allowing the appeal:\n^\n     HELD: 1.  There is no direct evidence to prove that the\nPolice officer\twent tn\t attend the  meeting at the Bishop's\nhouse at  the instance\tof the\tappellant and spoke there at\nhis instance and as the circumstantial evidence produced was\ninadequate to reach that conclusion the High Court was wrong\nin holding that\n702\nthe appellant  obtained and  procured the  services  of\t the\nPolice officer\tin  furtherance\t of  the  prospects  of\t his\nelection and  thereby committed\t a corrupt practice under s.\n123 (7) of the Act.\n\t\t\t\t\t\t    [721B-C]\n     2 An  allegation regarding\t the commission of a corrupt\npractice at  an election  is a\tvery serious matter not only\nfor the\t candidate but for the public at large as it relates\nto the purity of the electoral process.\n\t\t\t\t\t\t      [712H]\n     3 (a)  An allegation  regarding  the  commission  of  a\ncorrupt practice  is  in  the  nature  of  a  quasi-criminal\nproceeding which  has to  be established  beyond  reasonable\ndoubt and not merely by preponderance of probabilities.\n\t\t\t\t\t\t      [719C]\n     3\t(b)  The  election  petitioner\tmust  exclude  every\nhypothesis except that of nature on the part of the returned\ncandidate or  his election  agent. The\ttrial court erred in\nbasing its finding on a mere probability.\n\t\t\t\t\t\t      [720F]\n     R. M.  Seshadri v.\t G. Vasantha  Pai<\/a> [1969] 2 SCR 1019;\nBhagwan Datta Shastri v. Ram Ratanji Gupta & Others AIR<\/a> 1960\nSC 200; Balwant Singh v Prakash Chand & Ors [1976] 3 SCR 335\nreferred to.\n     4. The  High Court\t was right in holding that there was\nno sufficient  evidence to  substantiate the allegation that\nthe Police  officer went  to the  place of  meeting  at\t the\nappellant's instance  to assist him in convening the meeting\nin  furtherance\t  of  his  prospects  in  the  election.  It\ntherefore rightly  considered the  other question whether he\naddressed that meeting.\n\t\t\t\t\t\t    [710F-G]\n     5. The  High Court\t was not  justified in\treaching the\nconclusion that\t the Police  officer intentionally tool; the\ngreat risk  of committing  an offence under s. 129(2) and of\nlosing his  job out of fear or favour of the appellant. Even\nif r;'\tall the\t premises set  up by  the  High\t Court\twere\naccepted as  correct, it  would not  follow that  they would\nestablish a  nexus between  the two, for it may well be that\nthe police  officer did all that at the instance of some one\nelse, or  out of  his own  desire to  curry favour  with the\nappellant in  the hope\tof some\t future advantage.  The High\nCourt erred in basing its finding on a mere probability.\n     Mohan Singh  v. Bhanwarlal\t & Ors.\t AIR<\/a> 1964  SC  1366;\nSamanand N.  Balakrishna etc.  v. George Fernandez & Others.\n[1969] 3 SCR 603 referred to.\n     6. It  was established  that  the\tPolice\tofficer\t was\npresent after  the meeting  had commenced and said something\nthere. But  there was no satisfactory evidence to prove that\nthe  Police  officer  spoke  anything  at  the\tmeeting\t for\nfurtherance of\tthe appellant's\t electoral prospects or that\nhe went there and (\" spoke at his instance.\n\t\t\t\t\t\t[712H; 719H]\n     7. Where  an allegation  relates to  a  charge  that  a\ncandidate obtained  the assistance  of a  Police officer for\nthe purpose  of addressing  a meeting  and  exhorting  those\npresent to  work for his victory, it is reasonable to expect\nthat a\ttranscript of his speech should be made available to\nthe Court in support of the allegation. This would also give\nthe  candidate\t an  opportunity   of  meeting\t a   precise\nallegation. Where it is not possible to give a transcript it\nwould be  reasonable to\t expect that  the  petitioner  would\nproduce a  contemporaneous record  of the points made in the\nspeech, or at least its substance.\n\t\t\t\t\t\t    [713A-C]\n703\n     In the instant case, no such record was made available.\nEven a\tgist was not furnished. The allegation may well have\nbeen the  impression or\t the opinion  of the  petitioner  on\nhearing what others told him about the speech because he was\nnot present at the meeting.\n\t\t\t\t\t\t      [713D]\n     8. A Police officer is a citizen, and an elector and is\nentitled to  have his own belief that a particular candidate\nwould win  and to  express that belief with- out lending the\nimpression that\t it was\t meant to assist him in the election\nin only manner. It would have been open to objection only if\nthe Police  officer had\t stated at  the meeting\t that it was\nnecessary for  the benefit of the Christian community that a\nperson like  the appellant should win and become a Minister.\nto save them from the rigour of the Land Reforms Act. [714A-\nB]\n     9. Assuming  that the Police officer's statement in his\nevidence that he had gone to the place of meeting to consult\none of\tthe priests  on a  personal  matter  was  not  quite\nsatisfactory, his  presence at\tthe meeting or expression of\nhis personal  views there  could not  possibly amount to the\ncommission of a corrupt practice under s. 123(7). [716H]\n     10. The  Bishop stated in his evidence that there was a\nnews items  in a  newspaper that  the  Catholic\t Church\t was\nsilent about  the election, that he (the Bishop) was against\nthe appellant.\tand that  some priests\tthought that  such a\nwrong impression  should be  dispelled.\t He  said  that\t the\nmeeting was  convened by  him for  the purpose of clarifying\nhis position.  That evidence had been corroborated. Clearly,\ntherefore,  the\t  meeting  was\theld  at  the  Bishop's\t own\ninitiative.[712E-F]\n     11(a) There  was nothing  in the  Bishop's statement to\nshow that  the Police  Officer exhorted the audience to work\nfor the appellant's victory. [713H]\n     11(b) The Bishop stated in his evidence that the Police\nofficer said  that he  would give  up his uniform and job if\nthat was  necessary. This  statement can not be used for the\npurpose of  proving the alleged corrupt practice. That was a\nstatement regarding,  his future course of action. lt showed\nthat he\t realised that\twithout giving up his job it was not\npossible for  him to  assist the  appellant in the election.\nWhen he\t was conscious\tof that\t limitation, it could not be\nbelieved that  he would\t throw discretion  to the winds, and\nthen and  there launch\tan exhortation\tfor the\t appellant's\nsuccess at  the polls.\tThe fact that no such impression was\ncreated will  be clear\tfrom the Bishop's answer that he did\nnot know  what for  the witness mentioned his willingness to\ngive up his job when necessary. [714C-E]\n     12. Taking an overall view of the evidence on record it\nmust be\t held that  the\t  High Court erred in preferring the\nstatements of the petitioner`s witnesses to the testimony of\nthe Bishop. [716D]\n     13. Assuming  that the  appellant was  in or around the\nplace of  meeting and  was attending one or the other of his\nelection meetings,  it would  not necessarily follow that he\nvisited the  Bishop's house  while the meeting was going on.\nThe election  petitioner did  not venture  to plead that the\nappellant attended  the Bishop's  meeting even though such a\nplea  would   have  helped  him\t in  establishing  a  direct\nconnection between  the appellant and the meeting on the one\nhand and  between the  appellant and  what was\tsaid by\t the\nPolice officer on the other. [718D-E]\n11-549 SCI\/78\n704\n     14. The  argument that  the appellant was driven by the\nprospect of  defeat to seek assistance of the Police officer\nopenly on  pain of  losing his\tsuccess at  the hands  of an\nelector has  no force.\tWhat a\tcandidate would do or how he\nwould react in such circumstances essentially depends on his\nmental make  up and  his reaction in such a matter is really\none of\tthe imponderables of an electoral contest and cannot\nfrom the basis of  definite finding one way or the other. At\nany rate  the appellant\t was not  new to the contest. He had\nwon the elections on three earlier occasions.[720G-721A]\n     15(a) The appellant's contention that the allegation in\nparagraph 5  of the  election petition which constituted the\nsubject matter\tof the appeal was vague was clearly an after\nthought and should be rejected. He had not shown that it has\nprejudiced his defence. [708C-D]\n     15(b) The law in regard to the verification of election\npetition is  contained in the proviso to s. 83(1) of the Act\nwhich  requires\t  that\tthe   affidavit\t should\t be  in\t the\n\"prescribed form\".  A reference to r. 94A and Form 25 of the\nConduct of Election Rules 1961 shows that it Would be enough\nfor the\t election petitioner to say that the statements made\nin the\tpetitioner paragraph were true to his \"information .\nThe election  petitioner in  the instant case had done this.\n[708E-F]\n     Virendra Kumar  Saklecha v.  Jagjiwan and Ors.<\/a> [1972] 3\nSCR 955 inapplicable.\n     15(c) The\tappellant cannot  be heard  to say  for\t the\nfirst time  in this  appeal that  he was  not answerable for\nwhat the  Police Officer  was alleged  to have stated at the\nmeeting and  that his  case should  be judged on the limited\nallegation that\t the Police  officer lent  his assistance to\nconvene\t the   meeting.\t The   proper  way  to\texamine\t the\ncontroversy was\t to consider the substance of the allegation\nand not\t its form.  The allegation should be read as a whole\nand not in a disjointed way or to tear a line here or a line\nthere, from  the context.  the paragraph  taken as  a  whole\nrelates\t to  the  allegation  regarding\t the  commission  or\ncorrupt practice under s. 123(7). The allegation was rightly\ntaken in  the trial court to mean that the assistance of the\nPolice officer\twas obtained  or procured both for convening\nand addressing\tthe  meeting  for  the\tfurtherance  of\t the\nappellant's prospects in the election. [709C. H. D. F\" G;\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE JURISDICTION Civil Appeal No. 99 and 79
\nof 1978.\n<\/p>\n
     From the  Judgment and  order dated  21-12-1977 of\t the
\nKerala High Court in Election Petition No. 17 of 1977.\n<\/p>\n
     A.\t K.  Sen,  Y.  S.  Chitale,  P.\t Surendaran,  P.  B.
\nDadachanji J.  K. John,\t C. K.\tSrivashanker Panicker, T. R.
\nRaman Pillai  and Manjul  Kumar, for  the Appellant (In C.A.
\n99\/78).\n<\/p>\n
     Y. S.  Chitale, Miss  P. Nambiar  and A. S. Nambiar for
\nthe Appellant in C.A. No. 79\/78.\n<\/p>\n
     P. Govindan  Nair. N.  Sudhakaran, Mathew Zachariah and
\nMrs. Krishan for Respondent No. 1. (In both the Appeals)
\n705<\/span>
\n     The Judgment of the Court was delivered by
\n     SHINGHAL, J.-These two appeals are directed against two
\norders of  the Kerala High Court dated December 21, 1977, in
\nthe election petition of respondent P. J. Antony, an elector
\nof the\tPalai constituency (No. 94) of Legislative Assembly.
\nP. J.  Antony challenged  the election\tof K. M. Mani in the
\ngeneral election  of 1977  and prayed for a declaration that
\nthe other candidate N. C. Joseph, respondent No. 2, had been
\nduly elected in that election. The High Court held that
\n K.  M. Mani  “obtained and  procured the services of Joseph
\nThomas, a  police officer,”  in furtherance of the prospects
\nof his\telection and  a corrupt practice was committed under
\nsub-section (7\tof section  123 of the Representation of the
\nPeople Act,  1951, hereinafter\treferred to  as the  Act. It
\ntherefore  declared   K.  M.   Mani’s  election\t  from\t the
\nconstituency to be void, with costs, but rejected the prayer
\nfor directing  N. C.  Joseph to have been elected. It made a
\nseparate order\tthe same  day naming  K. M.  Mani and Joseph
\nThomas as  the\tpersons\t who  were  guilty  of\tthe  corrupt
\npractice. While\t K. M. Mani has filed appeal No. 99 of- 1978
\nand will  hereafter be\treferred to as the appellant, Joseph
\nThomas has filed appeal No. 79 of 1978.\n<\/p>\n
     Polling at the election was held on March 19, 1977, and
\nthe result  was declared on March 20. The appellant obtained
\n39,664 votes.  N.C. Joseph, who was the nearest rival at the
\nelection, obtained  24,807  votes  and\tthe  other  defeated
\ncandidate Joseph Cheriyan obtained 521 votes.\n<\/p>\n
     The appellant  was a  Roman Catholic and was working as
\nthe Finance Minister of the Kerala Government at the time of
\nthe election.  He was  the candidate of the Kerala Congress.
\nwhich had  entered into\t some sort  of an  election alliance
\nwith some  other parties. N. C. Joseph, who was also a Roman
\nCatholic, was an independent candidate. The contest was thus
\nbetween Roman Catholics.\n<\/p>\n
     The election  of the  appellant was challenged with the
\nallegations that  he had  committed corrupt  practices under
\nsub-sections (1),  (2), (3),  (4) and  (7) of section 123 of
\nthe Act. But the election petitioner did not even allege the
\nground for the commission of any corrupt practice under sub-
\nsection (4)  and did  not press\t his case  in regard  to the
\ncommission of  the corrupt practice under sub-section (3) of
\nsection 123.  It is  also not in controversy that he did not
\nfind it possible to prove his allegations under sub-sections
\n(1)  and  (2).\tThe  trial  court  however  found  that\t the
\nappellant had  committed a  corrupt    practice\t under\tsub-
\nsection (7) of section 123 and, as has been stated, it named
\nhim and Joseph Thomas as the persons who had been proved
\n706<\/span>
\nat the trial to be guilty of that corrupt practice. We shall
\ntherefore confine  ourselves to\t the question  whether\tthat
\ncorrupt practice  was committed\t by the appellant and Joseph
\nThomas. In doing so we shall refer only to the pleadings and
\nthe evidence relating to it.\n<\/p>\n
     It was  alleged in the election petition that a meeting
\nof the priests of the various parishes of the Roman Catholic
\nChurch within the area of the Palai constituency and certain
\nother leaders of the Catholic Community” was convened at the
\nBishop’s house Palai, on March 12, 1977, at 8 p.m. which was
\npresided over  by the  Bishop and was attended and addressed
\nby Joseph  Thomas who  was an  officer of  the Indian Police
\nService\t and   was  posted   as\t City  Police  Commissioner,
\nTrivandrum. As\tthe entire  allegation in  that respect\t has
\nbeen stated  in para  graph 5  of the  election petition, it
\nwill be convenient to extract it here,-\n<\/p>\n
\t  “5. The same meeting was attended and addressed by
\n     Shri Joseph  Thomas, I.P.S.,  City Police Commissioner,
\n     Trivandrum. Addressing  the  meeting  he  exhorted\t the
\n     Parish Priests  an(i leaders  of Community assembled in
\n     that meeting to work for the success of Shri K. M. Mani
\n     Ist respondent-  “as it  was in  the  interest  of\t the
\n     Church and Community”. Shri Joseph Thomas went to Palai
\n     at the  instance of 1st respondent Minister or with his
\n     consent and knowledge to k; assist the convening of the
\n     meeting of\t the Bishop  and Priests for the furtherance
\n     of the prospect of the victory of the Ist respondent in
\n     the election.  Shri Joseph\t Thomas\t actually  addressed
\n     this meeting  exhorting to\t work for the victory of the
\n     1st respondent.  The said\tJoseph Thomas is a member of
\n     the Police\t Force and  a  Gazetted\t Officer.  The\tsaid
\n     Police officer  is known  for his antipathy towards the
\n     opposition Parties. Obtaining or procuring his services
\n     for  the  furtherance  of\tthe  prospects\tof  the\t 1st
\n     respondent’s election  is a  corrupt  practice  falling
\n     within   the   mischief   of   Sec.   123(7)   of\t the
\n     Representation of People Act, 1951.”<\/p><\/blockquote>\n
     The appellant  filed a  written statement\tin which  he
\ntraversed the  averments in  the election  petition and,  in
\nregard to  the allegation  in paragraph\t S, he\tset  up\t the
\nfollowing  defence,-\n<\/p>\n
\t  “This respondent denies the averments in para 5 of
\n     the petition.  This respondent  does not  know  whether
\n     Shri Joseph Thomas attended or addressed the meeting as
\n     alleged in\t para  S  of  the  election  petition.\tThis
\n     respondent is  not aware of any exhortation having been
\n     made by Shri Joseph Thomas as alleged in paragraph S of
\n     the petition. This respondent
\n707<\/span>
\n     denies that  Shri Joseph  Thomas went  to Palai  at the
\ninstance A of this respondent. He has not gone to Palai with
\nthis  respondent’s  consent  and  knowledge  to\t assist\t the
\nconvening  of\tany  meeting   of  Bishop  and\tPriests\t for
\nfurtherance  of\t  the  prospect\t  of  the  victory  of\tthis
\nrespondent in  the election. This respondent is not aware as
\nto whether  Shri Joseph\t Thomas actually  addressed the said
\nmeeting\t exhorting   to\t work\tfor  the   victory  of\tthis
\nrespondent. This  respondent is\t not aware  of\tShri  Joseph
\nThomas having  any antipathy towards the opposition parties.\n<\/p><\/blockquote>\n
This respondent\t has not  obtained or  procured his services
\nfor  furtherance  of  the  prospects  of  this\trespondent’s
\nelection. This\trespondent is  not  guilty  of\tany  corrupt
\npractice falling  within the  mischief of  s. 123(7)  of the
\nRepresentation of Peoples Act.”\n<\/p>\n
A  reply   was\tfiled\tby  Joseph   Cheriyan  substantially
\nsupporting the\telection petition,  but it has no bearing on
\nthe case.\n<\/p>\n
     The High  Court  framed  three  rather  general  issues
\nraising the  question: (1) whether the election petition was
\nmaintainable, (2)  whether the election of the appellant was
\nvitiated by  all or  any of the corrupt practices alleged in
\nthe  petition,\t an(l  (3)   what  costs  and  reliefs\twere
\nadmissible to the parties.\n<\/p>\n
     The High  Court found  that the  election petition\t was
\nmaintainable and that Finding has not been challenged before
\nus except  in regard  to the  vagueness of  the pleading  in
\nparagraph 5.\n<\/p>\n
     The allegations  about the\t commission of\tthe  corrupt
\npractices were\tset out\t in paragraphs\t4, 5  and 6  of\t the
\nelection petition.  Although the appellant specifically took
\nthe plea  in his  written statement  that the  averments  in
\nparagraphs 4 and 6 were vague, he did not take any such plea
\nin regard  to paragraph 5. This shows that the allegation in
\nparagraph 5,  which constitutes\t the subject  matter of\t the
\npresent appeal,\t was not found to be vague and the appellant
\nhad no\tdifficulty in  setting out  his defence\t thereto  in
\nparagraph 8  of his  written statement.\t Realising that\t the
\nappellant had  not found  it possible to raise any objection
\nabout the  vagueness of\t the allegation\t in paragraph 5, his
\nlearned counsel invited our attention to paragraph 11 of the
\nwritten statement  where it was stated that the “allegations
\nin the petition as well as the affidavit are too vague to be
\naccepted and  acted upon,”  and that  “the averments  in the
\npetition and  affidavit are purposely left vague with intent
\nto fish out materials to fill up the lacuna.”\n<\/p>\n
708<\/span><\/p>\n
     A reading\tof the whole of paragraph 11 shows, however,
\nthat it\t was essentially  meant for  the purpose  of showing
\nthat the  affidavit which  had been  filed  along  with\t the
\nelection petition did not conform to the requirements of the
\nlaw and\t could not be acted upon, and it was in that context
\nthat the  aforesaid averment was made about the vagueness of
\nthe allegations\t in the\t election petition  as well  as\t the
\naffidavit. But even if we were to correlate that averment of
\nparagraph 11 to the allegations in the election petition, we
\nhave no\t doubt that  it could  be said to relate only to the
\nallegations in\tparagraphs 4  and 6 of the election petition
\nregarding the  commission of  corrupt practices\t under\tsub-
\nsections (2),  (3) and\t(1) of section 123 of the Act which,
\nas has\tbeen stated,  have not been raised for consideration
\nin these  appeals. There  is therefore justification for the
\nargument of  learned counsel  for the  respondent  that\t the
\nargument  regarding  the  vagueness  of\t the  allegation  in
\nparagraph of  the election  petition is\t an afterthought and
\nshould be  rejected as\tit has,\t at any rate, nat been shown
\nthat it has prejudiced the defence.\n<\/p>\n
     It has  also been argued that the election petition has
\nnot been  properly verified  as it has not been stated which
\nof the\taverments in  paragraphs 3 to 6 were true “according
\nto the\tinformation received  by the  petitioner” and  which
\nwere “believed” by him to be true. Our attention has in this
\nconnection been\t invited to  a judgement  of this  Court  in
\nVirendra Kumar\tSaklecha v.Jagjiwan  and others(‘).  We find
\nthat the  only objection  which was  taken  in\tthe  written
\nstatement (paragraph 11) was that the “affidavit filed along
\nwith  the   Petition  (was)   not  in  conformity  with\t the
\nrequirements of\t law”. The  law in that respect is contained
\nin the\tproviso to  section 83(1)  which requires  that\t the
\naffidavit  shall  be  in  the  “prescribed  form”.  A  cross
\nreference to  rule  94A\t and  Form  25\tof  the\t Conduct  of
\nElections Rules\t 1961, shows  that it  was  enough  for\t the
\nelection petitioner  to say  that the statements made in the
\nrelevant paragraphs  (3 to 6) were true to his “information”
\nand that  is what  he has  done. The  decision\tin  Saklecha
\nturned on  the Rules of the High Court, but no breach of any
\nrule of\t the Kerala  High Court\t has  been  brought  to\t our
\nnotice.\n<\/p>\n
     It has  then been\targued that the allegation regarding
\nthe commission of the corrupt practice under sub-section (7)
\nof section  123 was  merely to the effect that Joseph Thomas
\nwent to Palai at the instance if the appellant to assist the
\n“convening” of the meeting of the Bishop and priests for the
\nfurtherance of\tthe appellant’s\t prospects in  the election,
\nand that  the further  averment in  paragraph 5\t that Joseph
\nThomas “actually  addressed”  the  meeting  exhorting  those
\npresent to work for
\n     (1) [1972] 3 S.C.R. 955.\n<\/p>\n
709<\/span><\/p>\n
the victory of the appellant, was not at the instance of the
\nappellant and  he was  therefore not responsible for it even
\non the\tbasis of  the averment made in election petition. We
\nare unable to uphold this argument for two reasons. Firstly,
\nit was not the appellant’s case in the written statement, or
\nduring the  course of the trial, that the allegation against
\nhim  was  limited  to  Joseph  Thomas’s\t assistance  to\t the
\n“convening” the\t meeting at  the Bishop’s  house and did not
\nextend to  his exhortation  to those present to work for the
\nappellant’s victory  in the  election, and the argument that
\nhas now\t been addressed\t has been  made up subsequently. The
\nappellant cannot  therefore be\theard to  say for  the first
\ntime in\t this appeal  that he  is not  answerable  for\twhat
\nJoseph Thomas  is alleged  to have  said at  the meeting and
\nthat the  case against him should stand or fall on the basis
\nof the limited allegation that he lent his assistance to the
\nconvening of the meeting at the Bishop’s house. Secondly, it
\nis necessary, for the purpose of appreciating an argument of
\nthis nature bearing on the contents, nature and extent of an
\nallegation recording the commission of a corrupt practice to
\nread the  allegation as\t a whole, and not to disjoint it, or
\nto tear\t a line\t here or  a line there, from the context. If
\nthis test  is applied  to the averment in paragraph 5 of the
\nelection petition, it will be quite clear that the paragraph
\ntaken as  a whole  relates to  the allegation  regarding the
\ncommission of  the corrupt practice under sub-section (7) of
\nsection l  23 of  the Act  in  obtaining  or  procuring\t the
\nassistance of  Joseph Thomas  not  only\t for  convening\t the
\nmeeting of the Bishop and the priests for the furtherance of
\nthe prospects of the appellants in the election but also his
\naddressing that\t meeting and exhorting those present to work
\nfor  that   purpose.  The  mere\t fact  that  the  allegation
\nregarding addressing  the meeting and exhorting the audience
\nis contained  in a  separate sentence  will not\t justify the
\nargument that  the allegation in paragraph 5 was confined to
\n“convening” the\t meeting and  not to  addressing it. This is
\nborne out  by the  sentences that  precede  and\t follow\t the
\nallegation about  convening the meeting where it has clearly
\nbeen stated  that the  police officer’s\t services were\talso
\nobtained or  procured for  exhorting the priests to work for
\nthe  furtherance   of  the   prospects\tof  the\t appellant’s
\nelection. The  allegation was therefore rightly taken in the
\ntrial court to mean that the assistance of Joseph Thomas was
\nobtained or  procured both  for convening and addressing the
\nmeeting for  the furtherance of the appellant’s prospects at
\nthe election.  The proper  way to examine a controversy like
\nthis is\t to consider the substance of the allegation and not
\nits mere  form. It  may be that a part of the allegation may
\nbe made\t in a  separate sentence  or sentences,\t and it\t may
\nalso be that it may appear to be disjointed from the earlier
\nallegation because  of inartistic  drafting, but  it is\t the
\nsubstance of the alle-\n<\/p>\n
710<\/span><\/p>\n
gation which  is material  and not  its\t mere  form.  It  is
\nequally necessary  the allegation  should be read as a whole
\nand construed  properly so  as to understand its true nature
\nand content.  On such  an examination, we have no doubt that
\nthere is  no force  in\tthe  argument  that  the  allegation
\nregarding the  corrupt practice\t under\tsub-section  (7)  of
\nsection 123  oft relate\t to the\t addressing  of\t meeting  by
\nJoseph Thomas.\n<\/p>\n
     There is  however justification for the argument of the
\nlearned counsel\t for the  appellant that  the allegation  in
\nparagraph 5  of the  election petition\tis confined  to\t the
\ncommission of  the corrupt practice by the candidate, namely
\nK. M. Mani, and not by his agent or by any other person with
\nthe consent  of K. M. Mani or his election agent. The use of
\nthe words  “or with his consent and knowledge” are therefore
\nof no  consequence and\tit is in fact not disputed before ns
\nthat  the   allegation\tis  confined  to  the  obtaining  or
\nprocuring of  Joseph Thomas’s  assistance in  convening\t and
\naddressing  the\t  meeting  at  the  Bishop’s  house  by\t the
\nappellant himself.\n<\/p>\n
     Before examining the controversy on the merits, it will
\nbe convenient to make a mention of those facts which are not
\nin controversy before us. lt is thus not disputed now that a
\nmeeting was called by Dr. Sebastian Vayalil (P.W. 2), Bishop
\nof Palai  Diocese, on  March 12,  1977, at  8  p.m.  at\t his
\nresidence. It  was addressed by the Bishop and Joseph Thomas
\nwas present there. He was an officer belonging to the Indian
\nPolice Service\tand  was  posted  as  City  Commissioner  of
\nPolice, Trivandrum,  in those  days, so that he was a member
\nof police  forces within  the meaning  of clause (d) of sub-
\nsection (7) of section 123 of the Act.\n<\/p>\n
     It would  be recalled  that it was alleged, inter alia,
\nin paragraph  S of  the election petition that Joseph Thomas
\nwent to Palai at the instance of the appellant to assist the
\nconventing of the meeting for furtherance of the appellant’s
\nprospects in  the election.  The trial\tcourt however  found
\nthat sufficient\t evidence was  not available to substantiate
\nthe allegation,\t and it\t therefore proceeded to consider the
\nquestion whether he addressed that meeting as alleged in the
\nelection petition. That finding of fact of the High Court is
\nquite correct and has rightly not been challenged before us.\n<\/p>\n
     We shall  therefore examine  the evidence\tin regard to
\nthe other  two allegations  that Joseph Thomas addressed the
\nmeeting at  the instance of the appellant and exhorted those
\npresent to work for his victory in the election. In order to
\narrive at  a decision,\tit will be convenient to examine why
\nJoseph Thomas  went to\tPalai, why  he visited\tthe Bishop’s
\nhouse and what exactly he said in the meeting there.\n<\/p>\n
711<\/span><\/p>\n
     lt has  been stated  by Joseph Thomas, and has not been
\ndisputed   before us,  that he\twas posted  in those days as
\nCity Commissioner  of Police, Trivandrum, and no part of the
\nPalai constituency  fell within his jurisdiction. It is also
\nnot  in\t controversy  that  his\t father\t was  laid  up\twith
\nprolonged illness as all indoor patient in the hospital at y
\nat a distance of there miles from Palai where they belonged.
\nJoseph Thomas’s\t statement that\t he was\t sent on  duty, by a
\nwritten order,\tto Cannanore,  that he\ttook  a\t half  day’s
\ncasual leave  on March\t12, 1977 on return to Ernakulam from
\nCannanore and  went to\tY hospital to meet his ailing father
\nvia Palai without stopping there and reached the hospital at
\n2.30 p.m..  has not  been disproved  by any  evidence on the
\nrecord. On  the other  hand,  we  find\tthat  Dr.  Sebastian
\nVayalil (P.W.2),  the Bishop of Palai, has also stated about
\nthe illness of the father of Joseph Thomas for the preceding
\ntwo or\tthree years.  The Bishop  was in  a position to know
\nabout it  because he  has stated  that Joseph  Vathavayalil,
\nfather of  Joseph Thomas,  was\tthe  legal  adviser  of\t the
\nBishop’s house. He has further stated that he actually asked
\nJoseph Thomas  how his\tfather was.  Nothing thing  has been
\nbrought on  the record\tto disprove  the testimony of Joseph
\nThomas (P.W.  6) and  Dr. Sebastian Vayalil (P.W. 2) in this
\nrespect. In  fact as  Joseph Thomas’s  father was  suffering
\nfrom a\tprolonged illness  in the Bharananganam hospital, it
\nwas nothing  unusual for  his son Joseph Thomas to visit him
\noff and\t on,  and  he  cannot  be  blamed  if  he  took\t the
\nopportunity of his presence near Bharananganam to take leave
\nof absence  for a  few hours  and go  and meet\thim. Nothing
\ncould therefore\t possibly turn\ton the mere fact that Joseph
\nThomas was in Palai on March 12, 1977.\n<\/p>\n
     The question  which however arises for consideration is
\nwhy Joseph  Thomas as  went to\tthe Bishop’s house at a time
\nwhen a\tmeeting was being held there at about X p.m. An easy
\nway of\tproving the  allegation which  had been made in this
\nconnection in  the election  petition was  to establish that
\nthe meeting  was convened  at the  instance of Joseph Thomas
\nbut, as\t has been  stated, the election petitioner failed to
\nestablish at  this was\tso. The\t Bishop (P.W. 2) has in fact
\nleft us\t in no\tdoubt that  he himself\tdecided to  hold the
\nmeeting, and that the way from Bharananganam to Palai was by
\nthe road  which lay  in\t front\tof  his\t house.\t Dr.  Joseph
\nPallikkaparambil (P.W.\t7), who was the Auxilliary Bishop of
\nPalai Diocese,\thas also stated that the decision to convene
\nthe meeting  was taken\tby  the\t Bishop.  It  was  therefore
\nimperative for\tthe election  petitioner  to  establish\t the
\nremaining  allegation.\t that  Joseph  Thomas  went  to\t the
\nBishop’s house for the purpose of exhorting those present at
\nthe meeting  to work  for the  appellant’s  victory  in\t the
\nelection and that he actually did so.\n<\/p>\n
712<\/span><\/p>\n
     Joseph  Thomas   (P.W.  6)\t has  stated  that  he\tleft
\nBharananganam hospital\tat about  3.30 p.m.  and went to the
\nBishop’s house to see the Father Chancellor Madathilparambil
\nin connection  with his suggestion regarding the marriage of
\nthe sister  of a  priest with his (Joseph Thomas’s) brother.
\nHe has\tstated further that he met the Bishop and the Father
\nChancellor together  at\t about\t3.45  p.m..  because  the  F
\nChancellor lived  in the  same premises. He left there after
\n4.15 p.m.  for his  house  at  Palai  and  returned  to\t the
\nBishop’s house\tat about  8 p.m. to inform Father Chancellor
\nabout his  reaction regarding the proposal for his brother’s
\nmarriage and there he learnt that he was in the dining room.
\nHe went\t there and  found a  number of\tpersons. He  met the
\nFather Chancellor  and returned\t soon after. We shall revert
\nto Joseph  Thomas’s talk  in  the  Bishop’s  house  on\tthat
\noccasion but  we find  it difficult  to reach the conclusion
\nthat he went there for the purpose of exhorting the audience
\nto work\t for the appellant’s success at the polls. It may be
\nthat Joseph  Thomas’s statement\t about the  purpose  of\t his
\nvisit to  the Bishop’s\thouse is not very convincing, but it
\nwill  not   be\tpossible   for\tus  to\thold  the  appellant
\nresponsible for\t it in\tthe absence  of any evidence to that
\neffect on the record.\n<\/p>\n
     Bishop Sebastian  Vayalil (P.W 2) at whose instance and
\nat whose  house the  meeting was held. has stated the reason
\nfor holding  it Briefly\t stated, his  version is  that\tnews
\nitems Ex.  1 appeared  in the  Indian Express  on March\t 12,
\n1977, stating  that the\t Catholic Church  was silent, and he
\nreceived some  anonymous letters  saying that he was against
\nMani. As  some\tpriests\t also  thought\tthat  such  a  wrong
\nimpression had been created, he thought it necessary to call
\nthe aforesaid meeting to clarify that he was not against the
\nappellant.     This  statement\t of  the   Bishop  has\tbeen
\ncorroborated by\t Father Joseph\tChovvathukunnel (P.W. 7) who
\nwas the\t Auxilliary Bishop of the Diocese. We have therefore
\nno hesitation  in holding  that the  meeting was held at the
\nBishop’s own initiative and for the purpose of making the
\nclarification referred to by him. The Bishop has stated that
\nhe clarified  that he  was “not\t against Mani  or any  other
\ncandidate”, that the exercise of franchise was important and
\nthat all  should use  it prudently.  His statement  to\tthat
\neffect has  not been shaken in cross-examination and has not
\nbeen disproved.\n<\/p>\n
     It has  been established by the evidence on record that
\nJoseph Thomas  was present  after the  meeting had commenced
\nand said  some thing there. The question is what exactly did
\nhe say ?\n<\/p>\n
     An allegation  regarding the  commission of  a  corrupt
\npractice at  an election  is ‘I very serious matter not only
\nfor the\t candidate but for the public at large as it relates
\nto the purity of the electoral process.\n<\/p>\n
713<\/span><\/p>\n
Where therefore\t the allegation relates to the charge that a
\ncandidate obtained  the assistance  of a  police officer for
\nthe purpose  of addressing  a meeting on the eve of the poll
\nand exhorting  these present  to work for his victory. it is
\nreasonable to expect that wherever possible, a transcript of
\nhis speech  shall be  made available to the Court in support
\nof the\tallegation. Besides  furnishing the precise material
\nrelating to the allegation to the election Court, it has the
\nadvantage of giving the respondent an opportunity of meeting
\na precise  allegation. But  it may  be that  this may not be
\npossible in  a given  situation. In  that case\tit  will  be
\nreasonable and\tfair to\t expect that the election petitioner
\nwill produce  a contemporaneous\t record of  the points\tthat
\nwere made  in the  speech, or at least its substance. But no
\nsuch record  has been  made available  in this\tcase. Even a
\ngist of what Joseph Thomas said at the meeting, has not been
\nstated in  the election petition and the election petitioner
\nhas contended  himself by  making the cryptic statement that
\nJoseph Thomas  “addressed this meeting exhorting to work for
\nthe victory  of the 1st respondent”. That may well have been
\nthe impression\tor the opinion of the election petitioner on
\nhearing what others told him about the speech because he was
\nadmittedly not\tpresent at  the meeting.  All the same, some
\nother witnesses\t have been examined about the purport of the
\nspeech, and we shall examine what they have stated.\n<\/p>\n
     Dr. Sebastian  Vayalil (P.W.  2), the Bishop who called
\nthe meeting  in his  house, has\t stated that  Joseph  Thomas
\nspoke at  the meeting  after his  own speech  was  over\t and
\nseveral priests\t and expressed\ttheir opinion.\tHe said that
\nBishop had  spoken about  document Ex.\t1 and  the anonymous
\nletters and  that “there  is  nothing  much  to\t fear.”\t The
\nwitness has  further stated that Joseph Thomas said that his
\nbelief was  that K.  M. Mani  will win.\t When he  was  asked
\nwhether Joseph\tThomas said that for the benefit of migrated
\nChristians who\thad lost  their lands on account of the Land
\nReforms Act, 1964, persons like Mani who loved the Christian
\ncommunity should  win and  become a  minister,\tthe  witness
\ncategorically stated  that  he\t“didn’t\t say  anything\tlike
\nthat.” When  he was asked further whether Joseph Thomas said
\nthat he\t was prepared to give up his uniform for the sake of
\nMani’s success,\t the witness  stated that what Joseph Thomas
\nsaid was  that “If it is necessary I will give up my uniform
\nand job.”  When the  witness was  clearly asked whether that
\nwas said  for the  success of the appellant, he replied that
\nhe did\tnot know  what for.  There is  thus nothing  in\t the
\nstatement of  the Bishop,  who was  the prime  mover of\t the
\nmeeting, to show that Joseph Thomas exhorted the audience to
\nwork for  the victory  of the  appellant or rendered him any
\nassistance for\tthe furtherance\t of his\t prospects  in\tthat
\ndirection. Even a police officer whose assistance has
\n714<\/span>
\nbeen prohibited\t under sub-section (7) of section 123 of the
\nAct, is\t nonetheless  a\t citizen  and  an  elector,  and  is
\nentitled to  have his own belief that a particular candidate
\nwould win,  and to  express that  belief without  lending an
\nimpression that\t it was\t meant to assist him in the election
\nin any\tmanner. It  would have\tbeen open  to  objection  if
\nJoseph\tThomas\thad  stated  at\t the  meeting  that  it\t was
\nnecessary for  the benefit  of the  Christian community that
\npersons like  Mani should  win and become a Minister to save
\nthem from the rigour of the Land Reforms Act, but the Bishop
\nhas returned a categorical answer that Joseph Thomas did not
\nsay any such thing.\n<\/p>\n
     The remaining  part of  the statement  of\tthe  witness
\nrelates\t to   Joseph  Thomas’s\tstatement  that\t if  it\t was
\nnecessary he  would  give  up  his  uniform  and  job.\tThat
\nquestion was  asked of\tthe witness  in the  context of\t the
\nappellant’s success  in the election but, even so, so reply,
\nas stated  by the  Bishop, cannot  be said  to\tbe  open  to
\nobjection. Accord  that limitation,  it cannot\tbe  believed
\nthat he\t would throw  discretion job  if that was necessary.
\nThat was  a statement regarding his future course of action,
\nand it shows that Joseph Thomas realised that without giving
\nup his\tjob it\twas not\t possible  for\thim  to\t assist\t the
\nappellant in  the election. When therefore Joseph Thomas was
\nconscious of  that limitation, it cannot be believed that he
\nwould throw  discretion to  the winds  and  then  and  there
\nlaunch an  exhortation for  the appellant’s  success at\t the
\npolls. The  fact that  no such\timpression was\tcreated from
\nwhat Joseph  Thomas said  at the meeting, will be clear from
\nthe Bishop’s  answer that  he did  not\tknow  what  for\t the
\nwitness mentioned  his willingness  to give  up his job when
\nnecessary. We  have no reason to disbelieve the statement of
\nthe Bishop,  and we  are unable to take the view that it can
\nbe used\t for the  purpose of  proving  the  alleged  corrupt
\npractice of  obtaining or  procuring the  assistance of\t the
\npolice officer\tfor furtherance of the appellant’s prospects
\nin the election.\n<\/p>\n
     Cherian J.\t Kappan (P.W.3)\t is another  witness in this
\nconnection. He\thas no\tdoubt stated that the person who was
\nmentioned as  City Commissioner\t of Police  spoke thrice and
\nsaid that Mani’s success was a necessity and that if only he
\nwon then  it will be possible to exclude the estates planted
\nwith rubber  after 1964\t from  the  operation  of  the\tLand
\nCeiling Act.  The witness  has further\tstated\tthat  Joseph
\nThomas said  that it  was  therefore  their  need  that\t the
\nappellant should  win and “therefore it does not matter if I
\nlose my\t job and  I came  for this.” We find however that in
\nall these  respects the\t statement of  the witness  has been
\ncontradicted by the statement of Dr. Sebastian Vayalil (P.W.\n<\/p>\n
2). Thus the Bishop has not stated that Joseph Thomas spoke,
\nthrice, and
\n715<\/span>
\nhe has\tcategorically stated  that he  did not say that Mani
\nshould win  or that  he should\twin for\t the benefit  of the
\nmigrated Christians  with reference to the Land Reforms Act,
\n1964. As  regards Joseph  Thomas’s offer to give up his job,
\nthe  version   of  Dr.\t Sebastian  Vayallil   (P.W.  2)  is
\nsubstantially different from that of Cherian J. Kappan (P.W.\n<\/p>\n
3), for\t while Cherian\tJ. Kappan (P. W. 3) has stated as if
\nJoseph Thomas  was prepared  to lose  his job then and there
\nand had\t come to address the meeting because of the need for
\nthe appellant’s\t success, Dr. Sebastian Vayalil (P.W. 2) has
\nmerely said  that he  expressed a  desire  to  give  up\t his
\nuniform and  job if  that became  necessary in\tfuture.\t The
\noverall statement  of Cherian  J. Kappan  (P.W. 3)  has been
\ndisproved by  Dr. Sebastian Vayalil (P. W. 2) who has stated
\nthat he\t did not know whether Joseph Thomas at all spoke for
\nthe appellant’s success in the election.\n<\/p>\n
     We have gone through the statement of Cherian J. Kappan
\n(P.W. 3) and it appears to us that, to say the least, he was
\nnot friendly  with the appellant and had his own reasons for
\nrunning him  down. The attention of the witness was drawn to
\ndocument Ex.  P.2 dated\t March 15,  1977 which\tshowed\tsome
\nrivalry between\t him and the appellant, but he was unable to
\nexplain it  away. At  any rate we do not find it possible to
\naccept\tthe  version  of  Cherian  J.  Kappan  (P.W.  3)  in
\npreference to that of Dr. Sebastian Vayalil (P. W. 2).\n<\/p>\n
     Father Joseph  Chovvathukunnel (P.W.  4)  is  the\tnext
\nwitness in  this connection. He was a Vicar of the Ramapuram
\nForane Church  and he  has clearly  stated that\t the  Bishop
\n(P.W. 2) asked those present he has meeting to act according
\nto their conscience in the matter of casting votes. When the
\nwitness was  asked whose  success  was\tthe  object  of\t the
\nmeeting, he categorically stated that the Bishop did not say
\nwho among  candidates should  succeed in the election. It is
\nsignificant that  although the\twitness stated that the City
\nCommissioner of\t Police.  Trivandrum,  participated  in\t the
\nmeeting, and  all said\tabout election\tmatters, he  was not
\nasked whether  Joseph Thomas  said anything  in the  meeting
\nwhich could be said to assist the appellant in the election.\n<\/p>\n
     Father  Joseph   Pallikkaparambil\t(P.W.\t7)  was\t the
\nAuxiliary Bishop  of the  Palai\t Diocese.  He  attended\t the
\nmeeting for  a while,  but he  was also\t not  asked  whether
\nJoseph Thomas  made any speech at the meeting and, if so, to
\nwhat effect. This omission is also not without significance.\n<\/p>\n
     Father George Nellikkattu (P.W. 8) was the Vicar of St.
\nJoseph’s Church, Paika. He has stated that City Commissioner
\nof Police  Joseph Thomas was present at the meeting and that
\nhe spoke as if
\n716<\/span>
\nparticipating in  it. He has said further that he remembered
\nJoseph Thomas speaking about the matter of Agrarian Bill and
\nthat he\t said that  the presence  of persons  like Mani\t was
\nessential in  the Legislative  Assembly to see that the Bill
\ndid not\t affect\t them  adversely.  The\twitness\t has  stated
\nfurther that  Joseph Thomas  stood and\tspoke three  or four
\ntimes. We have already pointed out that the statement of Dr.
\nSebastian Vayalil  (P.W. 2)  shows that there was no mention
\nof the\tAgrarian Act  or Bill  in Joseph  Thomas’s talk, and
\nthat he\t did not  say anything\tregarding the  Land  Reforms
\nlegislation or\tthe desirability  of the election of persons
\nlike Mani  in that  connection. Moreover the witness has not
\nsupported the  version of  Cherian J.  Kappan (P.W.  3) that
\nJoseph Thomas said that it did not matter if he lost his job
\nand that he had come for the appellant’s success.\n<\/p>\n
     Taking an\toverall view  of the evidence on the record,
\nwhich consists\tmainly of the statements of the petitioner’s
\nwitnesses we  have no  hesitation in  saying that  the\tHigh
\nCourt erred in preferring the statement of Cherian J. Kappan
\n(P.W. 3) and George Nellikkattu (P.W. 8) to the testimony of
\nDr.  Sebastian\t Vayalil  (P.\tW.2)   and   Father   Joseph
\nChovvathukunnel (P.W. 4).\n<\/p>\n
     In arriving at this conclusion we have not so far taken
\ninto account  the statement  of Joseph\tThomas (P.W.  6) who
\nalso has been examined on behalf of the election petitioner.
\nHe has said while he and the Chancellor Priest were talking,
\nsomeone from  the laymen asked for his own view about Mani’s
\nelection and  he said  that  he\t had  heard  that  he  would
\nsucceed. He  has further  stated that  when  another  person
\nasked  him  to\tsay  something\tas  he\twas  in\t the  Police
\ndepartment, he\tsaid that  if anything\thad to be said about
\nit, he\twill have  to give  up his  cap\t and  uniform.\tThis
\nversian Joseph\tThomas (P.W.  6) is  substantially in accord
\nwith the  statement of\tDr. Sebastian  Vayalil (P.W.  2). We
\nhave no reason to discard it merely because it emanates from
\na person  who has  been named  for  the\t commission  of\t the
\ncorrupt practice  in the  order under section 99 of the Act.
\nJoseph\tThomas\t was  subjected\t  to  a\t  very\tlong  cross-
\nexamination, but  nothing has  been elicited  to  shake\t his
\ntestimony. It  may be  that his explanation that he happened
\nto be  present at  the meeting\tbecause he had gone there to
\nhave a\ttalk with  the Chancellor  Priest about the proposal
\nfor his\t brother’s marriage  may not  be quite satisfactory,
\nbut his\t mere presence at that meeting, or expression of his
\npersonal views\tthere, to  which  reference  has  been\tmade
\nabove, could  not possibly  amount to  the commission  of  a
\ncorrupt practice under sub-section (7) of section 123 of the
\nAct by the appellant.\n<\/p>\n
717<\/span><\/p>\n
     This takes\t us to\tthe question  whether Joseph  Thomas
\nwent to\t attend the  meeting and spoke there at the instance
\nof the\tappellant. The\tHigh Court has also addressed itself
\nto it  and has\tgone to\t the extent  of saying\tthat it\t was
\nperhaps the only real question for consideration.\n<\/p>\n
     There is no direct evidence to prove that Joseph Thomas
\nwent to\t attend the  meeting and spoke there at the instance
\nof the\tappellant, and\tthis fact  has been  noticed by\t the
\ntrial court.  It has  however arrived  at a decision against
\nthe appellant on the basis of the circumstantial evidence on
\nthe record.  The court was led to that conclusion because of
\nits finding,  with which  we have  disagreed,  that  in\t the
\nmeeting which  had been\t held at  the Bishop’s\thouse Joseph
\nThomas “actively  and vehemently canvassed all assistance on
\nbehalf of  the 1st respondent,” and has “also found that the
\nexplanation given  by P.W.  6  in  that\t respect  cannot  be
\naccepted.” The\tcourt has  also found that Joseph Thomas was
\nnot a  reliable witness\t and could  not be  believed when he
\nsaid that he had gone to Palai to meet his ailing father. In
\nreaching that conclusion the court has gone to the extent of
\npointing out  that Joseph  Thomas was  not very\t careful  in
\nstating the  facts  even  in  the  court,  and\thas  made  a
\nreference to  his incorrect assertion in paragraph 21 of his
\nobjection petition  dated December  8, 1977 in answer to the
\nnotice under  section 99, that he had received the notice on
\nDecember 3, 1977 when he had received it earlier on December
\n1, 1977.  That, in  our opinion\t could not  be a  sufficient
\nground for  disbelieving the witness. The counsel for Joseph
\nThomas had  in fact  filed an affidavit on December 16, 1977
\nin the\tcourt in  which he  had made it quite clear that the
\nnotice was  really served  on December\t1, 1977, and that it
\nwas inadvertently  stated in  the reply\t to the\t show  cause
\nnotice that it was received on December 3, 1977. At any rate
\nsuch  a\t mistake  could\t not  possibly\thave  justified\t the
\nrejection of the testimony of Joseph Thomas altogether.\n<\/p>\n
     The trial\tcourt has  in this  connection referred to a
\n“complaint” of\tthe election  petitioner that  the priest of
\nLalam Church  could not be examined even though he was named
\nas a  witness and  could give  useful information about what
\nhad happened  in the  meeting. It  has gone to the extent of
\nsaying that  the conduct  of the  priest of the Lalam Church
\nwas somewhat  abnormal,\t and  he  has  been  dubbed  as\t the
\n“absconding” priest.  Here again,  it is difficult to accept
\nthe reasoning of the trial court because there is nothing on
\nthe record to show that the priest had been kept away by the
\nappellant or  Joseph Thomas  or that he had absconded. As it
\nhappened, his  whereabouts were ascertained after some time,
\nbut the\t election petitioner  did not  move  the  court\t for
\ngiving him a chance to examine him as a witness. His evi-\n<\/p>\n
718<\/span><\/p>\n
dence had  no doubt  been closed by then, but that would not
\nhave prevented\tthe court from allowing his examination. The
\nfact that  priest of  Lalam Church could not be traced at an
\nearly date,  could not\ttherefore lend\tcredence to the case
\nthat Joseph  Thomas went  to the  meeting at the instance of
\nthe appellant.\n<\/p>\n
     The trial\tcourt has  examined the\t activities  of\t the
\nappellant on March 12, 1977, in reaching the conclusion that
\nhe was\thimself present at the meeting at the Bishop’s house
\non that\t day, and has placed reliance on the statement of M.
\nK. Raju (P.W. 5). Mr. Govindan Nair, learned counsel for the
\nelection petitioner,  has pointed out that the appellant had
\nfixed four meetings in or around Palai on March 12, 1977 and
\nthat it\t was most  unlikely that  he would  have  left\tthem
\nunattended and gone to Kottayam for the disposal of official
\nwork there,  so that  his explanation  for his\tabsence from
\nPalai is  quite unsatisfactory\tand deserved to be rejected.
\nBut even  if it\t is assumed  that the  appellant was  in  or
\naround Palai  and was  attending one  or the  other  of\t his
\nelection meetings,  it would  not necessarily follow that he
\nvisited the  Bishop’s house  while the\tmeeting was going on
\nthere.\tIt  is\tsignificant  in\t this  connection  that\t the
\nelection petitioner  did  not  venture\tto  plead  that\t the
\nappellant attended  the Bishop’s meeting, even though such a
\nplea would  have helped\t him substantially in establishing a
\ndirect causal  connection  between  the\t appellant  and\t the
\nmeeting and  between him  and what  was said there by Joseph
\nThomas.\n<\/p>\n
     The  trial\t court\thas  based  its\t finding  about\t the
\nappellant’s presence  in the  meeting on the statement of M.
\nK. Raju\t (P.W. 5). He was the car driver of Cholikara Mathai
\nChettan in  those days\tand he\tclaims to  have\t driven\t his
\nemployer there.\t He has stated that he did not go inside the
\nBishop’s house\tand went  away to  take coffee after leaving
\nhis employer there. He returned at about 12 in the night. He
\nsaw the appellant in the Bishop’s courtyard, but did not see
\nhim returning.\tWe have\t gone through  the statement of Raju
\nbut we\tdo not\tfind it possible to accept it in the face of
\nthe statement  of Dr.  Sebastian Vayalil  (P.W. 2)  that the
\nappellant did  not come\t to that  meeting. On further cross-
\nexamination the\t Bishop clarified  that if  Mani had come at
\nall, he\t would have  come to  know of that fact. Moreover if
\nthe appellant  had really  been present\t at the meeting, the
\nelection petitioner  would have\t examined  Cholikara  Mathai
\nChettan himself,  who was  driven there\t by M. K. Raju (P.W.\n<\/p>\n
5), and would not have relied merely on the statement of the
\ndriver who did not even go inside the house.\n<\/p>\n
     The election  petitioner has examined a number of other
\nwitnesses about\t what transpired at the meeting, but none of
\nthem has  stated that  the appellant was present there. Even
\nCherian J. Kappan (P.W. 3)
\n719<\/span>
\nhas not\t stated\t that  the  appellant  was  present  at\t the
\nmeeting, and  we have  no doubt that the High Court erred in
\ntaking a  contrary view\t merely on the basis of the evidence
\nof M.  K. Raju\t(P.W. 5)  and the  appellant’s programme  of
\naddressing some meetings in the vicinity of Palai.\n<\/p>\n
     A reading of the impugned judgment shows that the trial
\ncourt could go on further than saying that the version of M.
\nK. Raju\t (P.W. 5)  that he  saw the  appellant going  to the
\nBishop’s house was “quite probable”. In taking that view the
\ntrial  court   lost  sight   of\t the  requirement  that\t the
\nallegation regarding the commission of a corrupt practice is
\nin the nature of a quasi criminal proceeding which has to be
\nestablished  beyond  reasonable\t doubt\tand  not  merely  by
\npreponderance of  probabilities. In  making the\t appellant’s
\npresence at  the meeting a basis of the finding against him,
\nthe trial  court therefore committed an obvious error of law
\nwhich by itself is sufficient to vitiate it.\n<\/p>\n
     The  trial\t  court\t has   also  taken  Joseph  Thomas’s
\nactivities into\t consideration, along with the facts that he
\nwas a  police officer  working at Trivandrum, he went to the
\nBishop’s house\ton March  12, 1977  and addressed  a meeting
\nthere, and  “openly” canvassed\tfor the\t appellant who was a
\nMinister of  the State\tGovernment at  that time.  The\tHigh
\nCourt has  noticed the\tfurther fact  that Joseph Thomas was
\nthe seniormost\tSuperintendent of  Police and  he would\t not
\nhave been  unaware that\t his conduct  amounted to an offence
\nunder section  129(2). On  these premises the High Court has
\nbuilt up its finding that as Joseph Thomas took a very great
\nrisk, and declared that he was prepared to lose his job, the
\nnormal conclusion  would be  that “in all probability P.W. 6
\nfaced the  risk out  of fear  or favour, and either of which
\ncould have  emanated only from the 1st respondent because it
\nwas the\t 1st respondent\t alone\twho  was  benefited  by\t the
\nimpugned activities  of P.W.  6.” To these circumstances Mr.
\nGovindan Nair  has added  the further  argument that  as the
\nBishop wanted to remove the incorrect impression that he was
\nagainst the  appellant, it  must follow\t that as the meeting
\nwas convened  to remove\t that impression  it  was  held\t for
\nfurtherance of\tthe prospects of the election and any speech
\ndelivered by  Joseph Thomas  must be  presumed to  have that
\nobject.\n<\/p>\n
     But as has been shown earlier, there is no satisfactory
\nevidence to  prove that\t Joseph Thomas spoke anything at the
\nmeeting\t for   furtherance  of\t the  appellant’s  electoral
\nprospects or  that he  went there and spoke at his instance.
\nIt will be recalled that the Bishop has categorically stated
\nthat he\t never said  to whom votes should be cast and he did
\nnot even intend that votes should be cast for the appellant.
\n12-549 SCI\/78
\n720<\/span>
\nDr. Joseph  Chovethukunnel (P.W. 4) has also stated that the
\nBishop did  not even  say who among the candidates (who were
\nall Roman Catholics) should succeed. The trial court was not
\ntherefore justified  in reaching  the conclusion that Joseph
\nThomas intentionally  took the\tgreat risk  of committing an
\noffence under  section 129(2)  and of  losing his job out of
\nfear or\t favour of  the\t appellant.  But  even\tif  all\t the
\npremises set  up by  the trial court in this connection were
\naccepted as  correct, it  would not follow, as an inevitable
\nconclusion, that  they would  establish a  nexus between the
\ntwo, for  it may  well be that Joseph Thomas did all that at
\nthe instance  of someone  else, or  out of his own desire to
\ncurry favour  with the\tappellant in the hope of some future
\nadvantage some\ttime. At any rate that possibility could not
\nbe excluded, and the trial court erred in basing its finding
\non a mere probability. It will be enough to make a reference
\nto Mohan  Singh v.  Bhanwarlal\tand  others  and  Samant  N.
\nBalakrishna<\/a> etc. v. George Fernandes and others etc. in this
\nconnection. In\tMohan Singh’s case it has been held that the
\nonus of\t proving the commission of a corrupt practice is not
\ndischarged on  proof of mere preponderance of probability as
\nin  a\tcivil  suit,  and  it  must  be\t established  beyond
\nreasonable doubt by evidence which is clear and unambiguous.
\nIn Balakrishna\tit has\tbeen held  that while consent may be
\ninferred from  circumstantial  evidence,  the  circumstances
\nmust point unerringly to the conclusion and must admit of no
\nother explanation,  for a corrupt practice must be proved in
\nthe same  way  as  a  criminal\tcharge.\t Out  of  the  other
\ndecisions of  this Court to the same effect reference may be
\nmade to\t R. M.\tSeshadri v.  G. Vasantha  Pai Bhagwan  Datta
\nShastri<\/a> v. Ram Ratanji Gupta and others and Balwant Singh v.
\nPrakash\t Chand\tand<\/a>  other.  The  election  petitioner\tmust
\ntherefore exclude  every hypothesis  except that of guilt on
\nthe part  of the  returned candidate  or his election agent,
\nand the\t trial court  erred in\tbasing its finding on a mere
\nprobability.\n<\/p>\n
     We have,  in this\tconnection, taken into consideration
\nthe other  argument of\tMr. Govindan Nair that the appellant
\nwas in dire need of the help of Joseph Thomas because of the
\nstiff  contest\t with  N.C.   Joseph  and   the\t facts\t and
\ncircumstances mentioned\t in Ex.\t 1. What a candidate will do
\nor how\the will\t react\tin  such  circumstances\t essentially
\ndepends on  his mental\tmake up,  and his reaction in such a
\nmatter is  really one  of the  imponderables of an electoral
\ncontest and  cannot form the basis of a definite finding one
\nway or the other. At any rate
\n721<\/span>
\n     the appellant  was not  new to that contest and had won
\nthe elections  on three\t earlier occasions.  It is therefore
\ndifficult for  us to  uphold the  argument that\t he  was  so
\ndriven by  the prospect\t of defeat as to seek the assistance
\nof a police officer openly, on pain of losing his success at
\nthe hands  of any  ‘elector’  who  may\tcharge\thim  of\t the
\ncommission of that corrupt practice.\n<\/p>\n
     So as  there is no direct evidence to prove that Joseph
\nThomas went  to attend\tthe meeting at the Bishop’s house at
\nthe instance  of  the  appellant  and  spoke  there  at\t his
\ninstance, and  as the  circumstantial evidence\treferred  to
\nabove was  inadequate  to  reach  that\tconclusion,  we\t are
\nconstrained to set aside the finding of the trial court that
\nit was the appellant who “obtained and procured the services
\nof P.W. 6, a police officer, in furtherance of the prospects
\nof the\telection of  the 1st  respondent,  and\tthe  corrupt
\npractice set  out in  sub-section (7)  of section 123 of the
\nAct has\t been established  beyond any  doubt.” We have given
\nour reasons  for differing  with the  trial court about what
\nwas said  by Joseph  Thomas in\tthe meeting  at the Bishop’s
\nhouse.\n<\/p>\n
     The appeals are allowed with costs, the impugned orders
\nof the High Court dated December 21, 1977, under sections 98
\nand 99 of the Act are set aside and the election petition is
\ndismissed. N.V.K. Appeals allowed.\n<\/p>\n
N.V.K.\t\t\t\t\t    Appeals allowed.\n722<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India K. M. Mani Etc vs P. J. Antony And Others on 12 September, 1978 Equivalent citations: 1979 AIR 234, 1979 SCR (1) 701 Author: P Shingal Bench: Shingal, P.N. 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-247186","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nK. M. Mani Etc vs P. J. 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