whether the appellant can be said to have any indirect share or monetary interest in the contract of her husband with the Village Panchayat of Raia and if the answer is in the affirmative whether she has incurred disqualification as a Panch member from Raia Village Panchayat of 1 =We also hold the view that the prohibition in Section 10(f) should not receive unduly narrow or restricted construction. In what we have considered above, the answer to the first question must be in the affirmative and it must consequently be held that the appellant has incurred disqualification under Section 10(f) of the 1994 Act. We hold accordingly.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1544 OF 2012 (Arising out of SLP (Civil) No. 26568 of 2009) Zelia M. Xavier Fernandes E. Gonsalves .... Appellant Versus Joana Rodrigues & Ors. .... Respondents JUDGMENT R.M. Lodha, J. Leave granted. 2. The question which we have to consider is whether the appellant can be said to have any indirect share or monetary interest in the contract of her husband with the Village Panchayat of Raia and if the answer is in the affirmative whether she has incurred disqualification as a Panch member from Raia Village Panchayat of 1 Salcete Taluka in South Goa District, State of Goa under Section 10(f) of the Goa Panchayat Raj Act, 1994 (for short, `1994 Act'). 3. The appellant was declared as a returned candidate from Ward No. 9 of Raia Village Panchayat of Salcete Taluka, State of Goa at the election held in May 2007 for a period 2007-2012. 4. On or about March 18, 2008, the respondent no. 2-- Village Panchayat of Raia -- invited bids for the collection of market fee within its jurisdiction for 2008-09. Mrs. Joana Rodrigues (respondent no. 1), Xavier Fernandes (appellant's husband) and one Bernard Mario Fernandes submitted their bids. On March 28, 2008, the tender forms were opened in the office of the respondent no. 2 and the bid of the appellant's husband was accepted as his bid was the highest. Her husband, on acceptance of his bid, paid the first installment of 1/4th part of the bidding amount collection. 5. On March 31, 2008, the respondent no. 1 made a representation to the Deputy Director of Panchayat, Madgaon, Goa bringing to his notice that the appellant was liable for disqualification under Section 10(f) of the 1994 Act. It appears that the respondent no. 1 also made an application to the State Election Commission (for short, `Commission), State of Goa, on which the Commission 2 directed the respondent no. 1 to file a formal election petition seeking disqualification of the appellant. Accordingly, the respondent no. 1 filed an election petition under Section 11 before the Commission for disqualification of the appellant on the ground that she has directly or indirectly a share or monetary interest in the above contract given by the respondent no. 2 to her husband. 6. The Commission, on hearing the parties, vide its order dated July 3, 2009 held that the present appellant had indirectly a share or monetary interest in the contract executed by the Village Panchayat of Raia with her husband and ordered that the appellant was disqualified as a Panch Member of Village Panchayat of Raia in Salcete Taluka in terms of clause (f) of Section 10. 7. The appellant, aggrieved by the above order of the Commission, filed a writ petition before the High Court of Bombay at Goa. The Single Judge of that Court on July 22, 2009 dismissed the writ petition. It is from this order of the High Court that this appeal, by special leave, has arisen. 8. We have heard Mr. R. Sundaravardhan, learned senior counsel for the appellant and Mr. Arun Francis, learned counsel for the respondent no. 1. The contention of Mr. Sundaravardhan, 3 learned senior counsel for the appellant is that mere relationship of husband and wife will not create that type of interest which is contemplated by Section 10(f). He heavily relied upon the decision of this Court in the case of Gulam Yasin Khan vs. Sahebrao Yeshwantrao Walaskar and another1. Mr. Arun Francis stoutly supported the view of the High Court. 9. Gram Sabha -- Constitution of Panchayats - is dealt with in Chapter II of the 1994 Act. Section 7, inter alia, provides that all the members of panchayat shall be elected. Section 9 provides for qualification for membership while Section 10 makes a provision for disqualification for membership. We are concerned with Section 10(f) and the said provision reads as follows: "S. 10. Disqualification for membership.-- A person shall be disqualified for being chosen as, and for being, a member of the Panchayat if,-- xxx xxx xxx (f) he has directly or indirectly any share or monetary interest in any work done by or to the Panchayat or any contract or employment with, under or by or on behalf of, the Panchayat; xxx xxx xxx" 1 AIR 1966 SC 1339 4 10. Section 11 provides that if any question arises as to whether a member of a Panchayat has become subject to any disqualification referred to in Section 10, it shall be referred to the State Election Commission for decision and its decision thereon shall be final. 11. The purpose and object of providing for disqualification for membership of the Panchayat in clause (f) of Section 10 is to ensure that there is no conflict between the private interest of the member and his duty as a member of the Panchayat. It is based on general principle of conflict between duty and interest. 12. Insofar as the present matter is concerned, we have to consider the applicability of clause (f) of Section 10 to the extent, "he has.....indirectly any share or monetary interest in .....any contract .... by or on behalf of the Panchayat" in the fact situation noticed above. A similar provision came up for consideration before a 5-Judge Bench of this Court in the case of Gulam Yasin Khan1. That was a case where the appellant and the respondent No. 1 therein, namely, Gulam Yasin Khan and Sahebrao Yeshwantrao Walaskar respectively were candidates for election as members to the Municipal Committee, Malkapur. They had filed their nomination 5 papers. At the stage of scrutiny, Sahebrao Yeshwantrao Walaskar objected to the validity of the candidature of Gulam Yasin Khan on the ground that Gulam Yasin Khan's son Khalildad Khan was a Moharir on Octroi Naka employed by the Committee and on account of the employment of Gulam Yasin Khan's son by the Municipal Committee, Gulam Yasin Khan had an interest in the Municipal Committee and so he was disqualified from standing for election under clause (l) of Section 15 of the Central Provinces and Berar Municipalities Act, 1922 (for short, `CP Municipalities Act'). Gulam Yasin Khan disputed the validity of the objection and he stated that his son was not staying with him and had no connection whatsoever. The Supervising Officer overruled the objection raised by Sahebrao Yeshwantrao Walaskar. The order of Supervising Officer was challenged by Sahebrao Yeshwantrao Walaskar in the writ petition before the High Court. The High Court allowed his writ petition and set aside the order of the Supervising Officer and declared Sahebrao Yeshwantrao Walaskar elected to the Municipal Committee. It is from this controversy that the matter reached this Court. This Court in the backdrop of the above facts considered the question whether by virtue of his relationship with Khalildad Khan, Gulam Yasin Khan 6 could be said to have any indirect share or interest in the employment of Khalildad Khan with the Municipal Committee. The provision under consideration read, "no person shall be eligible for election, selection or nomination as a member of a committee, if such person has directly or indirectly any share or interest in any contract with, by or on behalf of the committee, while owning such share or interest". 13. In light of the above factual and legal position, this Court in Gulam Yasin Khan1 (Pgs. 1341-1342) held as under : "7. .........We are assuming for the purpose of dealing with this point that the contract to which clause (l) refers, includes employment, though unlike other similar statutes, the word "employment" is not specifically mentioned in the said clause. In order to incur disqualification, what the clause requires is "interest or share in any contract"; it may either be a share or an interest; and if it is an interest, the interest may be direct or indirect. But it is plain that the interest to which the clause refers, cannot mean mere sentimental or friendly interest; it must mean interest which is pecuniary, or material, or of a similar nature. If the interest is of this latter category, it would suffice to incur disqualification even if it is indirect. But it is noticeable that the clause also requires that the person who incurs disqualification by such interest must "own such share or interest". It is not easy to determine the scope of the limitation introduced by this last sub-clause. Mr. Gauba for respondent No. 1 urged that the clause "owning such share or interest" is tautologous when it refers to direct interest or share, and is meaningless when it refers to indirect share or interest. Prima facie, there is some force in this contention; but whatever may be the exact denotation of this clause, it does serve the purpose of limiting the character of the share or interest which incurs disqualification prescribed by the clause and it would not 7 be easy to ignore the existence of the last portion of the clause altogether. 8. It is quite true that the purpose and the object of prescribing the several disqualifications enumerated in clauses (a) to (l) of s. 15 of the Act is to ensure the purity of the administration of Municipal Committees, and in that sense, it may be permissible to hold that the different clauses enumerated in S.15 should not receive an unduly narrow or restricted construction. But even if we were to adopt a liberal construction of S. 15(l), we cannot escape the conclusion that the interest or share has to be in the contract itself. When we are enquiring as to whether the appellant is interested directly or indirectly in the employment of his son, we cannot overlook the fact that the enquiry is not as to whether the appellant is interested in the son, but the enquiry is whether the appellant is interested in the employment of the son. The distinction between the two enquiries may appear to be subtle, but, nevertheless, for the purpose of construing the clause, it is very relevant. Considered from this point of view, on the facts proved in this case, we find it difficult to hold that by mere relationship with his son, the appellant can be said to be either directly or indirectly interested in his employment. xxx xxx xxx xxx 12. It would, we think, be unreasonable to hold that mere relationship of a person with an employee of the Municipal Committee justifies the inference that such a person has interest, direct or indirect, in the employment under the Municipal Committee. In the circumstances of this case, what is proved is the mere relationship between the appellant and his son who is the employee of the Municipal Committee; and on that relationship the High Court has based its conclusion that the appellant is disqualified under S. 15(l) of the Act. We are satisfied that this conclusion is erroneous in law." 8 14. In Gulam Yasin Khan1 while construing Section 15 (l) of the CP Municipalities Act, this Court held that the interest or share has to be in the contract itself; mere relationship of a person with an employee of the Municipal Committee shall not justify the inference that such a person has interest, direct or indirect. Ordinarily, there would not have been any difficulty in applying Section 10(f) in the same manner but we think Gulam Yasin Khan1 is clearly distinguishable and cannot be applied to the present fact situation which concerns money affairs of husband and wife governed by the provisions contained in Articles 1098 and 1108 of Portuguese Civil Code, 1860 (`1860 Code') and Section 5A of the Indian Income Tax Act, 1961 (`Income Tax Act'). 15. Articles 1098 and 1108 of the 1860 Code which is applicable in the State of Goa read as under : 1098. - In the absence of any contract, it is deemed that the marriage is done as per the custom of the country, except when it is solemnized in contravention of the provisions of Article 1058 clause 1 and 2; because in such a case it is deemed that the spouses are married under the simple communion of acquired properties. x x x x x x x x x 9 1108. - The marriage as per the custom of the country consists in the communion between the spouses of all their properties, present and future, not excluded by law. 16. Section 5A of the Income Tax Act is as follows : 5A. Apportionment of income between spouses governed by Portuguese Civil Code. - (1) Where the husband and wife are governed by the system of community of property (known under the Portugese Civil Code of 1860 as "COMMUNIAO DOS BENS") in force in the State of Goa and in the Union territories of Dadra and Nagar Haveli and Daman and Diu, the income of the husband and of the wife under any head of income shall not be assessed as that of such community of property (whether treated as an association of persons or a body of individuals), but such income of the husband and of the wife under each head of income (other than under the head "Salaries") shall be apportioned equally between the husband and the wife and the income so apportioned shall be included separately in the total income of the husband and of the wife respectively, and the remaining provisions of this Act shall apply accordingly. (2) Where the husband or, as the case may be, the wife governed by the aforesaid system of community of property has any income under the head "Salaries", such income shall be included in the total income of the spouse who has actually earned it. 17. There is no dispute that the respondent no. 4 and the appellant are husband and wife and are governed by the provisions of the 1860 Code. By virtue of Article 1098 and Article 1108 thereof, in the absence of any contract, the marriage between the appellant 10 and the respondent no. 4 is governed by the system `Communiao Dos Bens' i.e. community of property. Accordingly, on marriage, the property of the spouses gets merged. Each spouse, by operation of law, unless contracted otherwise, becomes 50% shareholder in all their properties, present and future and each spouse is entitled to a one-half income of the other spouse. 18. Section 5A(1) of the Income Tax Act provides that where the husband and wife are governed by the system of "Communiao Dos Bens" in force in the State of Goa the income of the husband and the wife under any head of income shall not be assessed as that of such community of property but such income of the husband and the wife from all sources, except from salary, shall be apportioned equally between the husband and the wife and the income so apportioned shall be included separately in the total income of the husband and of the wife respectively and the remaining provisions of the Income Tax Act shall apply accordingly. Sub-section (2) of Section 5A provides that where the husband or the wife governed by system of community of property has any income under the head `salaries', such income shall be included in the total income of the spouse who has actually earned it. 11 19. In P. Ramanatha Aiyar's The Law Lexicon, 2nd Edition (reprint 1999) the term `interest' is explained thus: "Interest. Legal concern, right, pecuniary stake the legal concern of a person in the thing or property or in the right to some of the benefits or use from which the property is inseparable ; such a right in or to a thing capable of being possessed or enjoyed as property which can be enforced by judicial proceedings. The word is capable of different meanings, according to the context in which it is used or the subject-matter to which it is applied. It may have even the same meaning as the phrase "right title and interest" but it has been said also to mean any right in the nature of property, but less than title. The word is sometimes employed synonymous with estate, or property. Interest means concern, advantage, good ; share, portion, part, or participation. A person interested is one having an interest ; i.e. a right of property or in the nature of property, less than title. The word `interest' is the broadest term applicable to claims in or upon real estate in its ordinary signification among men of all classes. It is broad enough to include any right, title, or estate in or lien upon real estate. One who holds a mortgage upon a piece of land for half its value is commonly and truly said to be interested in it. xxx xxx xxx". 20. The word `interest' has a basic meaning of participation in advantage, profit and responsibility. `Interest' is a right, title or share in a thing. 12 21. Section 10(f) speaks of monetary interest. The general rule that the wife's interest is not necessarily the husband's interest has no application where the husband and the wife are governed by the system `community of property' because under that system, on marriage, each spouse is entitled to a one-half income of the other spouse unless contracted otherwise. During the subsistence of marriage, the husband and the wife each have a share in the corpus as well as the income of communion property. 22. There is no doubt that Section 10(f) contemplates that share or monetary interest (direct or indirect) has to be in the contract itself. The expression `in any contract' means in regard to any contract. Could it be said that the appellant had no indirect share or monetary interest in regard to her husband's contract with the Village Panchayat Raia when, by operation of law, she is entitled to the profits of that contract? The answer has to be in the negative. Money acquired by the appellant's husband from the contract with the Village Panchayat Raia is `community property' and, therefore, the conclusion is inescapable that the appellant has indirect share, or, in any case, monetary interest in the contract awarded to her husband by the Village Panchayat Raia as the profits from the 13 contract shall be apportioned equally between her and her husband. There is no evidence of exclusion of the appellant from her husband's assets and income. The provisions contained in Articles 1098 and 1108 of the 1860 Code and Section 5A of the Income Tax Act give the appellant a participation in the profits of the contract and advantages like the apportionment of income from that contract. The appellant, by operation of law, becomes entitled to share in the profits of the contract awarded to her husband by the Village Panchayat. From whatever way it is seen, the appellant's participation in the profits of the contract does constitute an "indirect monetary interest" in the contract for collection of market fee awarded to her husband within Section 10(f) prohibiting the member of the Village Panchayat from having such an interest. 23. While considering Section 15(l) of the CP Municipalities Act which provided for the disqualifications to the elections of the Municipal Committees, this Court in Gulam Yasin Khan1 held that the purpose and the object of prescribing several disqualifications in that provision is to ensure the purity of the administration of the Municipal Committees and in that sense the different clauses of disqualifications should not receive unduly narrow or restricted 14 construction. We also hold the view that the prohibition in Section 10(f) should not receive unduly narrow or restricted construction. In what we have considered above, the answer to the first question must be in the affirmative and it must consequently be held that the appellant has incurred disqualification under Section 10(f) of the 1994 Act. We hold accordingly. 24. Civil Appeal is dismissed with no order as to costs. ............................. J. (R.M. Lodha) ............................. J. (H. L. Gokhale) NEW DELHI FEBRUARY 3, 2012. 15

whereby the High Court has allowed the Interlocutory application filed by the first respondent herein, and directed the District Returning Officer, Distt. Papum Pare, Arunachal Pradesh to produce the record of Register of voters' counterfoils (in Form 17A) of 38 polling stations of 13-Itanagar (ST) Assembly Constituency in that State.=an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas.=The impugned judgment has relied upon the judgment of this Court in Fulena Singh (supra). In that matter also there was an allegation of double voting, and the inspection of register of voters in Form 17-A was sought. In para 13 of the judgment the Court noted the submission on behalf of the respondent that the registers of voters in Form 17-A do not enjoy the same immunity as that of the other papers mentioned in clauses (a) to (d) and (e) of Rule 93 (1). This Court did not accept that submission, and held that inspection of election papers mentioned in detail in the entire Rule 93 (1) is not a matter of course unless a clear case is made out. The Court, therefore, disallowed the inspection of register of voters in Form 17-A. Thus, the reliance on Fulena Singh (supra) in the impugned judgment was also wholly erroneous 25. This being the position, in our view the order passed by the learned Single Judge is illegal and unsustainable. We are, therefore, required to set-aside the same. 26. Accordingly, we pass the following order:-

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No. 1539 OF 2012 @ SLP No. 30410 OF 2010 Markio Tado ... Appellant Versus Takam Sorang & Ors. ... Respondents J U D G E M E N T H.L. Gokhale J. Leave granted. 2. This appeal is directed against the Judgment and Order dated 14.9.2010 passed by a Learned Single Judge of Gauhati High Court in Misc. Case (E.P.) No. 05(AP)/2010 in Election Petition No. 01(AP)/2009 whereby the High Court has allowed the Interlocutory application filed by the first respondent herein, and directed the District Returning Officer, Distt. Papum Pare, Arunachal Pradesh to produce the record of Register of voters' counterfoils (in Form 17A) of 38 polling stations of 13-Itanagar (ST) Assembly Constituency in that State. 2 Brief facts leading to this appeal are as follows:- 3. The appellant and the respondent No. 1 herein contested the election to the Arunachal Pradesh Legislative Assembly from 20-Tali (ST) Assembly Constituency held in October 2009, wherein the appellant was declared elected, defeating his nearest rival respondent No. 1, by 2713 votes. Respondent No. 1 filed Election Petition No. 01/2009 to challenge the election of the appellant on the ground of corrupt practice of booth capturing. This 20-Tali (ST) Assembly Constituency consists of two circles viz. (i) Tali, and (ii) Pipsorang. Each of the circles was having 10 polling stations. The voting had taken place on 13.10.2009. It was alleged that on two polling stations viz. (i) 7-Roing and (ii) 2-Ruhi from circle Tali, boxes (containing EVMs) were illegally removed by the party workers of the appellant, and votes in favour of the appellant were cast by a single hand. The common voters were not allowed to exercise their voting rights as they were threatened for their lives by the miscreants of the appellant. It was claimed that polling agents of the first respondent at these two polling stations jointly reported about the happenings in these polling stations on 15.10.2009 to the Assistant Returning Officer. It was alleged that such incidents also took place on 6 more polling stations. In para 9 of the petition, it was stated that, it was necessary to bring the EVMs and counter foils of Form 17A (register of voters) of these 8-polling stations (mentioned in para-7 of the petition) for forensic test and other examination etc. before the Hon'ble Court for proper adjudication of the case. It was stated that the votes received by the appellant in these 8 polling stations were 3763, and if they were deleted from the votes of appellant, the first respondent would be declared as 3 elected. It was prayed that the records of (i) register of voters counterfoils (Form 17-A) of these 8 polling stations described in paragraph 7 of the petition, (ii) EVMs of these 8 polling stations, and (iii) records relating to 20 Tali (ST) Assembly Constituency be called, and appellant be directed to show cause as to why those votes cast by booth capturing in 8 polling stations in favour of the appellant should not be declared as illegal, and the election order dated 22.10.2009 be not declared as void, and why the respondent No. 1 should not be declared as elected candidate. 4. The appellant contested this petition by filing a Written Statement. He submitted that no unfair means were employed by him, or by his agents, and stated that the allegation of illegal practice adopted in 8 polling stations is completely false. He submitted that the election was conducted peacefully with free and fair means. The polling stations were guarded by police personnel who carried arms and ammunitions. There was no booth capturing or criminal intimidation at all. EVMs and voters' counterfoils were duly verified at the Receiving Centre, and there was no need to call for any of these documents, nor was there any question to declare the election void. 5. The learned Judge framed the necessary issues on 8th March, 2010 including as to whether the EVMs were illegally removed, whether any election offence of booth capturing and criminal intimidation was committed, whether the election was liable to be declared void under Section 100 of the Representation of the People Act, 1951 ("Act of 1951" or the said Act for short) and whether the first respondent was entitled to be declared as duly elected? 4 6. Before the evidence could start, the first respondent filed Interlocutory Application No. 6/2010 in the said Election Petition on 29th March, 2010. In para 1 thereof he submitted as follows:- "1. That your applicants beg to state and submit that some thousand of voters of those 8 polling stations viz. (i) Giba, (ii) Tungmar, (iii) 15-Richik, (iv) 7-Roing, (v) 10-Yarda, (vi) 5- Guchi, (vii) 8-Dotte, (viii) 2-Ruhi of 20 Tali (ST) Assembly Constituency have double entry in different 38 polling stations of 13-(ST) Itanagar Assembly Constituency. So far your applicant knowledge is concerned about 80% of the voters of 20-(ST) Tali Assembly Constituency from those 8 polling stations viz. (i) 6- Giba, (ii) 4-Tugnmar, (iii) 15-Richik, (iv) 7-Roing, (v) 10-Yarda, (vi) 5-Guchi, (vii) 8-Dotte, (viii) 2-Ruhi have cast their votes at 13-(ST) Itanagar Assembly Constituency and not at 20-(ST) Tali Constituency." Thereafter, he gave the list of 38 polling stations of Itanagar constituency. He claimed that the total number of such voters who had their names in those 38 polling stations was 1304. He, therefore, prayed that the record of register of voters counterfoils (Form 17-A) of the above 38 polling stations of 13- (ST) Itanagar Assembly Constituency from the District Returning Officer, Distt. Papum Pare be called. 7. The appellant opposed this application. The learned Single Judge noted the submissions on behalf of the respondent No. 1. He also noted the submissions on behalf of the appellant that there was no allegation of double enrollment, and no issue had been framed in this respect in the election petition, and therefore the application was liable to be dismissed. Having noted the submissions, the learned Single Judge rejected the said application by his order 5 dated 31.03.2010 observing "I am of the considered view that calling of records as sought for by the applicant is not justified at this stage." 8. Thereafter, the evidence was recorded. The first respondent went into the witness box on 4th April, 2010 and in his examination in chief, he stated that he had sent a fax message to the Returning Officer of 20-Tali (ST) Assembly Constituency on 15.10.2009 alleging the booth capturing of 2-Ruhi and 7-Roing polling stations. He stated that he had complained about the booth capturing in 6 more polling stations and produced copies of complaints. He stated that there was single handed voting in favour of the appellant, and respondent's voters were threatened and not allowed to cast their votes. He further stated that a large number of voters had double entries in the electoral roll of 20 Tali (ST) as well as Itanagar (ST) Assembly Constituency. They had actually cast their votes at 38 different polling stations of 13-(ST) Itanagar Assembly Constituency, and in their place votes were cast in Tali Constituency by the miscreants of the appellant. The electoral rolls of the two constituencies were to be exhibited. He further pointed out that a vote was cast against a dead person by name Markio Tama from 2-Ruhi polling station and the death certificate of the person concerned was produced. 9. In his cross examination on 9th June, 2010, the first respondent accepted that he had not made any averments in the election petition regarding double enrollment of the voters in the two Assembly Constituencies. He accepted that he was aware that the final electoral rolls were published by the authorities concerned before the election was held, prior to which the draft roll was published for information of the voters concerned, and that he did not lodge any complaint 6 before the authorities concerned about the double enrollment in the two constituencies. He explained it by stating that he did not know that such double enrollment had taken place. He could not say who actually cast the vote for Markio Tama, who had already expired. He accepted that he had appointed his polling agents for all the polling stations. He knew about the duties of the polling agents which included raising objection in case of detection of any impersonation during the polling time, before the Presiding Officer concerned by filling up a prescribed form alongwith a fee of Rs. 2/-. He stated that his polling agents were not allowed to enter into the polling booths and the candidates appointed by the appellant acted as fake polling agents for the first respondent. He however, accepted that he has not stated in election petition that the candidates appointed by the opposite party had acted as fake polling agents for him. He further accepted that his complaint to the Returning Officer did not mention all the 8 polling stations. It mentioned only about 2 polling stations. He also accepted that he did not mention the names of persons involved in booth capturing. The first respondent had alleged that in two polling stations viz. Ruhi and Roing, booth capturing had taken place which was on the basis that in Ruhi the first respondent got only 3 votes as against appellant getting 697 votes and in Roing he got only one vote as against the appellant getting 1196 votes. On this aspect it was put to him that there were two circles in this constituency viz. Tali and Pipsorang. The above two polling stations were in Tali Circle. The first respondent accepted that the returned candidate secured no vote in 11-Vovia polling station. He also accepted that the returned candidate secured only 7 7 votes in 13-Zara polling station, both falling in Pipsorang circle. Thereafter, he accepted that "It may be correct that securing less vote by a candidate may be due to his less attachment to the people of a particular area and it may also be the one of the reasons for losing the election." The first respondent also accepted that Micro Observers were appointed in all the polling stations and they were provided with digital camera for their use as and when required during election for all the purposes. 10. It was at that stage that the first respondent moved another application viz. Mis Case No. 05(AP) of 2010 on 29th June, 2010. In that application he repeated that some of the voters of the 8 polling stations mentioned earlier, had double entries in different 38 polling stations of 13 Itanagar (ST) Assembly Constituency. In para 2 he stated that 30% of voters of Tali Constituency from those 8 polling stations had cast their votes in Itanagar and not in Tali, and in their place the double voting was effected on behalf of the appellant, and therefore it was necessary to get the record of the voters' counterfoils (in Form 17A) from the 38 polling stations under 13-(ST) Itanagar Assembly Constituency. The appellant opposed this application. The counsel for the appellant submitted that this was a fishing inquiry to improve the case. The learned Single Judge however observed: "This allegation sounds to be new one, but when it is closely examined, it also comes under the purview of booth capturing because votes by impersonation is one of the modus operandi adopted towards accomplishment of securing votes by use of illegal method or illegal resource". 8 11. The learned Judge referred to a judgment of this Court in Hari Ram Vs. Hira Singh reported in AIR 1984 SC 396, that electoral rolls and counter foils should be called sparingly and only when sufficient material is placed before the Court. He also referred to a judgment of this Court in Fulena Singh Vs. Vijoy Kr. Sinha reported in 2009(5) SCC 290 wherein it was held that inspection of register of voters in Form 17-A would be permissible where a clear case is made out. The learned Single Judge held that the official record would be the most reliable evidence where there was impersonation, and thereafter passed the impugned order calling for the record of registers of voters counterfoils in form 17A of 38 polling stations of 13-(ST) Itanagar Assembly Constituency which order is challenged in the present appeal. Submissions on behalf of the rival parties 12. Mr. Giri, learned senior counsel appearing for the appellant submitted that the learned Judge of the High Court clearly erred in allowing the second application filed by the first respondent for the simple reason that he was making a roving and fishing inquiry. Mr. Giri submitted firstly that if the respondent No.1 was concerned with the alleged double entries of the voters in the two constituencies, he ought to have challenged the double enrollment when the draft rolls were published. Secondly, this ground of impersonation and double voting was not raised in the election petition at all. Then there were no particulars provided as to whether anybody had seen the real voters not voting, and somebody else voting in their place. Thirdly, he submitted that the application made by respondent No.1 earlier having been rejected, there could not be a second application for that very purpose. 9 Besides, impersonation or double voting would come in the category of `improper reception of votes' which is a separate category of corrupt practice falling under Section 100 (1) (d) (iii) of the Act of 1951. For invoking this ground one has to plead that the election was materially affected by such improper reception of votes which the first respondent had not done. `Improper reception' is different from `booth capturing' which is a separate corrupt practice under Section 123 (8) read with Section 135 A of the Act of 1951. The first respondent had filed the election petition only on the ground of booth capturing and not on the basis of improper reception of votes and he cannot be permitted to improve upon it from stage to stage. The sanctity and secrecy of the electoral process was important and the same could not be permitted to be violated. 13. Mr. Rakesh Dwivedi, learned senior counsel appearing for the first respondent on the other hand submitted that the first respondent had filed the election petition on the ground of booth capturing, and double voting or impersonation could be considered as facets of booth capturing. The learned Judge could not be faulted for his order since impersonation is a link between the booth capturing and improper reception. If purity of the election process is to be maintained, and if the true result of the election is to be found out, the order which is impugned in the petition was a necessary order. Consideration of the rival submission 14. The order impugned in the present appeal has been passed on the second application in this behalf which was Misc. Case No. 05(AP)/2010 filed on 29th 10 June, 2010 after the recording of the evidence of the first respondent. It is material to note that in his evidence the first respondent did not dispute that he had not made any averment in the election petition regarding double enrollment of some voters of the two constituencies. He also accepted that one has to object to such double entries when that draft electoral roll is published, but he explained his inaction in this behalf by stating that he did not know that such double enrollment had taken place. With respect to impersonation, he cited the instance of only one person, namely Markio Tama who had expired, but he could not state as to who voted in his place. He accepted that the polling agents have to object when such impersonation takes place, but explained inaction of his polling agents by saying that his polling agents were not allowed to enter into the polling booths and the candidates appointed by the opposite party acted as fake polling agents for him. He however, accepted that such plea was not taken in the election petition. He also accepted that his complaint about double voting was only about 2 polling stations, and that he did not mention all the 8 polling stations in his complaint. He had to accept that he did not mention the names of persons involved in the booth capturing. The first respondent had emphasized the fact that in Ruhi he got only 3 votes as against appellant getting 697 votes. In Roing he got only one vote as against appellant getting 1196 votes. He further had to accept that there were two circles in Tali constituency, namely, Tali and Pipsorang. Ruhi and Roing were falling in Tali circle where appellant did get most of the votes. As against that in Pipsorang circle the respondent No.1 got most of the votes. Thus in Vovia polling station, the appellant got no vote at all and if we see the pleadings we find that the first 11 respondent got 365 votes. In Zara polling station, the appellant got only 7 votes as against 335 votes of the first respondent. There are two more noteworthy polling stations. Thus, in Keba polling station the first respondent got 346 votes as against the appellant's one vote, and in Tedung polling station the first respondent got 361 votes as against only 5 votes of appellant. The first respondent had to accept that the securing of less votes may be due to the less attachment of the candidate to the people of a particular area, and may be one of the reasons to loose the election. He has also accepted that there were micro observers in all the polling stations with digital cameras. 15. In this Misc. Case No.05(AP)/2010 the first respondent once again prayed for calling for the voters counterfoils in Form 17-A from 38 polling stations of Itanagar Assembly Constituency. In para 2 of this application he now stated that 30% of the voters' of Tali Constituency from 8 polling stations had cast their votes in Itanagar, and in their place double voting was effected. Thus, in this second application, the first respondent's grievance of such double voting came down from 80% to 30%. The question is as to whether the learned Judge was right in allowing this second application for getting this additional record on the background of the material that had then come on the record. 16. To begin with, one must note that in an election petition, one has to plead the material facts at the outset, and the failure to plead the same is fatal to the election petition. For reference one may see the judgment of a bench of three judges of this Court in Hari Shanker Jain Vs. Sonia Gandhi reported in [2001 (8) SCC 233]. Besides, no evidence can be led on a plea which is not raised in the 12 pleadings and no amount of evidence can cure the defect in the pleadings as held in para 7 of Ravinder Singh Vs. Janmeja Singh reported in [2000 (8) SCC 191]. 17. (i) In the present case the election petition filed by the first respondent made the grievance of booth capturing which is a corrupt practice covered under Section 123 (8) of the Act of 1951. Committing a corrupt practice is a ground to declare an election void under Section 100 (1) (d) of the Act. Booth capturing is also made an offence under Section 135 A of the Act, and the term `booth capturing' is spelt out in the explanation to that section. (ii) Section 135 A alongwith the Explanation reads as follows: 135A. Offence of booth capturing - [(1)] Whoever commits an offence of booth capturing shall be punishable with imprisonment for a term which [shall not be less than one year but which may extend to three years and with fine, and where such offence is committed by a person in the service of the Government, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine. Explanation - For the purpose of [this sub-section and section 20B], "booth capturing" includes, among other things, all or any of the following activities, namely:- (a) seizure of a polling station or a place fixed for the poll by any person or persons making polling authorities surrender the ballot papers or voting machines and doing of any other act which affects the orderly conduct of elections; (b) taking possession of a polling station or a place fixed for the poll by any person or persons and allowing only his or their own supporters to exercise their right to vote and [prevent others from free exercise of their right to vote]; (c) [coercing or intimidating or threatening directly or indirectly] any elector and preventing him 13 from going to the polling station or a place fixed for the poll to cast his vote; (d) seizure of a place for counting of votes by any person of persons, making the counting authorities surrender the ballot papers or voting machines and the doing of anything which affects the orderly counting of votes; (e) doing by any person in the service of Government, of all or any of the aforesaid activities or aiding or conniving at, any such activity in the furtherance of the prospects of the election of a candidate. (2) An offence punishable under sub-section (1) shall be cognizable. 18. As far as impersonation or double voting is concerned, such actions would amount to improper reception of votes which is a separate ground for declaring an election to be void under Section 100 (1) (d) (iii) of the said Act. This ground was not pleaded in the petition, nor was any issue framed thereon for the trial. As can be seen from the explanation to Section 135 A, the main element of booth capturing is use of force or intimidation. As against that impersonation or double voting involves cheating or deception. Thus, these two grounds deal with two different aspects of corrupt practices. That being the position, the question is as to whether the respondent No.1 could have been permitted to lead any evidence in this behalf without raising the ground in this election petition. This is particularly on the background that the earlier application I.A. No.6/2010 calling for the register of voters' counterfoils (Form 17-A) from the 38 polling stations of Itanagar had not been entertained at that stage under the order dated 31.03.2010 which was prior to recording of evidence. 14 19. The evidence which had come on record clearly showed that the first respondent received overwhelming votes in some polling stations, whereas the appellant received similarly overwhelming votes in other polling stations. The statement of the first respondent that the appellant had appointed fake polling agents for the first respondent was a clear after thought, since if it was so, he would pleaded the same in the election petition itself. He has not mentioned the names of the persons allegedly involved in booth capturing. Even with respect to impersonation, the only instance pointed out was that of one Markio Tama, but it was not stated in the petition or in evidence as to who voted in his place. It is thus obvious that having failed to place any material with respect to either booth capturing or impersonation, the first respondent was trying to make fishing and roving inquiry to improve his case by calling for the record of the voters register from Itanagar Constituency, in support of his grievance of double voting. In the absence of any evidence with respect to the persons who at the instance of the appellant allegedly captured the booths or made double voting or impersonation in Tali Constituency, no such inference could have been drawn against the appellant. The learned Single Judge, therefore, was clearly in error in allowing the second application made by the first respondent. 20. Besides, the ground of improper reception requires a candidate to show as to how the election in so far as it concerns the returned candidate was materially affected, in view of the requirement of Section 100 (1) (d) of the Act of 1951. First respondent has stated that there were some 1304 double entries of voters. The allegation of respondent No.1 on evidence was only with respect to 15 Roing and Ruhi polling station. The votes received by the appellant in both these polling stations put together come to 1873. The appellant has won with a margin of 2713 votes. That being so the second application could not have been entertained even on that ground in the absence of prima facie case that the result of the election had been materially affected. 21. The learned Judge has referred to and relied upon the judgments of this Court in Hari Ram Vs. Heera Singh (supra) and Fulena Singh Vs. Vijoy Kr. Sinha (also supra) to hold that in a rare case an order of production of such record concerning the voters register could be passed. Learned Judge however made no attempt to apply the principles laid down in those cases to the facts of the present one, as can be seen from the narration above. In Hari Ram, (which is a decision of three judges) the situation was almost similar. The High Court had passed an interlocutory order directing the Returning Officer to produce the marked electoral rolls for inspection, which was on the background that the first respondent had won that election by a very small margin of 238 votes. In para 3 of the judgment, this Court accepted the contention on behalf of the appellant as well founded that the High Court erred in allowing the prayers at an interlocutory stage without examining whether proper foundation was laid for inspection which would otherwise result in adversely affecting the secrecy and sacrosanct nature of electoral process. In para 6 of Hari Ram, this Court observed as follows:- "6. To begin with, the High Court seems to have been under the impression that the Court had ample powers to direct production of any document Under Section 165 of the Indian Evidence Act. In doing so with due deference, the High Court overlooked that the Representation of People Act was a special Act 16 and provisions of the Evidence Act or the CPC would only apply where they are not excluded. Thus, at the very outset, with due respect, the approach of the High Court was legally incorrect......." In Hari Ram also there was a grievance that there were a number of dead persons for whom votes were cast. No details and particulars were given that votes were actually cast for dead persons. This Court held that it was nothing but a fishing inquiry and it clearly violated the sanctity and secrecy of the electoral process. 22. (i) Rule 93 of the Conduct of Election Rules, 1961 governs the production and inspection of election papers. Sub-rule 1 thereof is relevant for our purpose and it reads as follows:- "93. Production and inspection of election papers - (1) While in the custody of the district election officer or, as the case may be, the returning officer - (a) the packets of unused ballot papers with counterfoils attached thereto; (b) the packets of used ballot papers whether valid, tendered or rejected; (c) the packets of the counterfoils of used ballot papers; (d) the packets of the marked copy of the electoral roll or, as the case may be, the list maintained under sub- section (1) or sub-section (2) of section 152; and [(dd) the packets containing registers of voters in form 17- A;] (e) the packets of the declaration by electors and the attestation of their signatures; shall not be opened and their contents shall not be inspected by, or produced before, any person or authority except under the order of a competent court." 17 (ii) Sub-rule (dd) above has been added in this rule by notification dated 24.3.1992. Form 17-A mentioned therein is related to Rule 49 (L) which is concerning the procedure about the voting by voting machines. Sub-rule 1 (a) of Rule 49 (L) requires the polling officer to record the electoral roll number of the elector as entered in the marked copy of the electoral roll in a register of voters which is maintained in Form 17-A. 23. This rule (as it then stood) came to be construed by a Constitution Bench of this Court in Ram Sewak Vs. H.K. Kidwai reported in AIR 1964 SC 1249. This Court held in para 7 as follows:- "7. An order for inspection may not be granted as a matter of course : having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled : (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between parties inspection of the ballot papers is necessary. But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a more allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection." The judgment in Ram Sewak has been followed all through out, and the proposition with respect to inspection have been repeated in a catena of 18 decisions of this Court, namely that inspection of ballot papers and counterfoils should be allowed very sparingly, and only when it is absolutely essential to determine the issue. As held by this Court in Bhabhi Vs. Sheo Govind reported in AIR 1975 SC 2117, discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void. 24. The impugned judgment has relied upon the judgment of this Court in Fulena Singh (supra). In that matter also there was an allegation of double voting, and the inspection of register of voters in Form 17-A was sought. In para 13 of the judgment the Court noted the submission on behalf of the respondent that the registers of voters in Form 17-A do not enjoy the same immunity as that of the other papers mentioned in clauses (a) to (d) and (e) of Rule 93 (1). This Court did not accept that submission, and held that inspection of election papers mentioned in detail in the entire Rule 93 (1) is not a matter of course unless a clear case is made out. The Court, therefore, disallowed the inspection of register of voters in Form 17-A. Thus, the reliance on Fulena Singh (supra) in the impugned judgment was also wholly erroneous 25. This being the position, in our view the order passed by the learned Single Judge is illegal and unsustainable. We are, therefore, required to set-aside the same. 26. Accordingly, we pass the following order:- 19 (i) The appeal is allowed. The judgment and order dated 14.09.2010 passed by the learned Single Judge of Gauhati High Court in Misc. Case (E.P.) No.05(AP)/2010 in Election Petition No.01(AP)/2009 is hereby quashed and set- aside. (ii) The Misc. Case (E.P.) No.05(AP)/2010 is hereby dismissed. (iii) Parties will bear their own costs. ........................................J. ( Deepak Verma ) .........................................J. ( H.L. Gokhale ) New Delhi Dated: February 2, 2012

The first respondent, filed an Election Petition under Section 31 read with Section 34 of the Gram Panchayat Act, 1964 (for the sake of convenience it is called "the Act"), on the ground that the appellant herein was not eligible to contest the election in view of Section 11(b) of the Act which declares that no member of `Gram Sasan' (a defined expression under Section 2(h) of the ActI) shall be eligible to contest for the post of Sarpanch if he has not attained the age of 21 years.=It was held in Robins Vs. National Trust & Co. Ltd., 1927 A.C. 515 - "To assert that a man who is alive was born requires no proof. The onus is not on the person making an assertion, because it is self-evident that he had been born. But to assert that he had been born on a certain date, if the date is material, requires proof; the onus is on the person making the assertion." Since the first respondent failed to discharge the burden cast upon him, the election petition must fail.=It can be seen from the above-extracted portion of the evidence of the appellant that the appellant stated that she was 13 year old when she took admission in the High School (obviously Basudev High School) and the admission, as we have already noticed from the evidence of PW.2, was on 11.7.1998. Deducting 13 years from that date would place the year of birth of the appellant in 1985. It is not clear as to the material on the basis of which the Division Bench recorded that the admission of the appellant in the Panchayat Upper Primary School was on 10.1.1996. We assume for the sake of argument that there is some basis on record for the finding that the appellant took admission in the Upper Primary School on 10.1.1996. On her own admission she was 10 years old on that date. Then there is an 9

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1191 OF 2012 [Arising out of SLP(C) No. 15174 of 2011] Joshna Gouda .......Appellant Versus Brundaban Gouda & Anr. ......Respondents J U D G M E N T Chelameswar, J. Leave granted. 2. This appeal arises out of a judgment dated 18.2.2011 of the High Court of Orissa in Writ Appeal No.114 of 2011. 3. The factual background of the litigation is as follows:- (A) Election to the post of Sarpanch of Kulagada Gram Panchayat in the District of Ganjam, Orissa were held in the year 2007. The appellant, the 1 first respondent and two others filed their nominations. The scrutiny of the nominations took place on 16th January, 2007. The returning officer held all the four nominations valid. (B) Subsequently, except the appellant and the first respondent, the other two candidates withdrew from contest. Election took place on 17th February, 2007, wherein the appellant herein was declared elected. (C) The first respondent, filed an Election Petition under Section 31 read with Section 34 of the Gram Panchayat Act, 1964 (for the sake of convenience it is called "the Act"), on the ground that the appellant herein was not eligible to contest the election in view of Section 11(b) of the Act which declares that no member of `Gram Sasan' (a defined expression under Section 2(h) of the ActI) shall be eligible to contest for the post of Sarpanch if he has not attained the age of 21 years. It is the specific case of the first respondent that the appellant herein was born on 20.06.1986 and had not attained the age of 21 years by the relevant date. The 1st respondent, therefore, sought two reliefs in the election petition that the election of the appellant herein be set aside and also that the 1st respondent be declared to have been duly elected. The appellant contested the election petition. By the judgment dated 29.11.2008 the election petition was allowed. Aggrieved by the decision of the trial Court, the appellant herein carried the I "Gram Sasan" means a Grama Sasan established under Section 4'. 2 matter in an appeal under Section 38(4) of the Act to the District Court, Ganjam. The appeal was dismissed by a judgment dated 14th September, 2009. (D) Aggrieved by the same, the appellant herein carried the matter by way of a Writ Petition (Civil) No. 14356 of 2009 to the High Court of Orissa which was also dismissed by a Judgment dated 18.2.2011, and the same was challenged in an Intra Court appeal in appeal No. 114 of 2011 without any success. By the Judgment under appeal, the writ appeal was dismissed. 4. It is argued by learned counsel for the appellant that the judgment under appeal cannot be sustained as there is no legally admissible evidence on record to enable the Courts below to reach the conclusion that the appellant was born on 20th June, 1986. 5. It is recorded in the judgment rendered in the writ petition:- "The trial court held that the date of birth of the petitioner was 20.6.1986 mainly on the basis of School Admission Register, Ext.5, the relevant entry of which is Ext.5/A, the Admission Form Ext.6 and the Transfer Certificate of the petitioner Ext.7, P.W.2, one Asst. Teacher of Basudev High School, Dhaugaon produced the School Admission Register and proved, it which was marked as Ext.5." 6. The question of admissibility of the exhibits 5, 5A and 7 was raised in the writ petition but rejected on the ground that the said documents were admitted in evidence without any objection before the Trial Court. However, 3 the learned judge opined that mere proof of the above-mentioned exhibits does not mean that the content of the said exhibits was also proved. "Of course, only because those documents were admitted without objection, it cannot be said that the contents thereof were also admitted. It was the duty of the opp.party to prove the contents of those documents particularly, the date of birth of the petitioner entered in Ext.5 and the transfer certificate Ext.7." 7. However at para 7, it was held:: "In the present case the entry as per Ex.5/A was made on the basis of transfer certificate Ext.7 and the application made by Maheswar Gouda, cousin brother of petitioner's father. The trial court held that Maheswar Gouda, being the cousin brother of petitioner's father had special means of knowledge of the date of birth of the petitioner. Admittedly, said Maheswar Gouda has not been examined". 8. Unfortunately, the learned judge did not record any conclusive finding regarding the probative value of the contents of exhibits 5, 5A or exhibit 7, but went on to examine the evidence adduced by the appellant herein and found that the said material does not lend support to the case of the appellant herein and therefore the entry E.5/A made in Ext. 5 is true. A strange procedure indeed! Only matched by the strange decision of the appellant to adduce evidence. "But father of the petitioner has been examined as O.P.W. No.3. As per the affidavit evidence the date of birth of the petitioner was incorrectly recorded in the school register and school certificate by the teachers, which appears improbable. Furthermore, it transpires from the evidence of the petitioner herself, that when she took admission in Panchayat U.P. School she was 10 years old. She took admission in the said school on 10.1.96. If 10 years is deducted from that date it would come to 9.7.1986. So, the evidence of the petitioner almost allies with the case of opp. party No.1 that the date of birth of the petitioner was 20.6.1986." 4 9. Thereafter the learned judge elaborately discussed the evidence of the appellant herein and concluded that:- " It would not improve the case of the petitioner as discussed earlier". 10. The Division Bench noted the objection to the admissibility in evidence of the exhibits 5, 5A and 7 in the following words:- "The ground of attack of the impugned order is that the learned Single Judge having held that the documents relied upon by respondent No.1, namely Exts.5,5/A and 7, which are the only documents from the side of respondent no.1 to establish the date of birth of the appellant are not admissible in evidence under section 35 of the Evidence Act, the learned Single Judge erred in further probing into the matter and dismissing the writ petition. The aforesaid documents on the basis of which the respondent no.1 sought to establish that the appellant was not qualified to file nomination having been found inadmissible, the only alternative was to allow the writ petition." 11. The Division Bench did not record any clear finding either on the admissibility or the probative value of the content of the above-mentioned exhibits but suddenly switched over to the examination of the evidence of the appellant. 12. Exts. A to H are documents produced by the appellant herein in support of her claim that her actual date of birth is 7.7.1985 but not 20.6.1986, as contended by the first respondent. Exts. A and H are voters lists of the year 2007 and 2008 respectively. The Division Bench observed that both the documents were prepared later in point of time to the filing of the nomination papers in the election in question and also they do not reflect 5 the date of birth of the appellant herein. Similarly, Ext. D is a horoscope alleged to be that of the appellant herein. The Division Bench opined that the said document was rightly not relied upon. Ext. E is a certificate of date of birth issued under the provisions of the Registration of Births and Deaths Act showing the date of birth of the appellant as 7.7.1985 but such an entry came to be made pursuant to an application made by the appellant herein subsequent to the nominations in the election in question. The High Court refused to place any reliance on the said document on the ground that it was issued by an executive magistrate, who according to the High Court did not have the jurisdiction to issue the same. 13. We do not propose to examine the correctness of the reasoning adopted by the High Court for refusing to place any reliance on the above- mentioned documents produced by the appellant herein in her bid to prove her actual date of birth as 7.7.1985. For the purpose of the present appeal, we will proceed on the basis that the High Court rightly refused to believe those documents and, therefore, the appellant herein failed to prove her date of birth to be 7.7.1985. But that does not automatically lead to the conclusion that the assertion of the respondent No.1 that the actual date of birth of the appellant herein is 20.6.1986 is proved. Even according to the High Court, the content of the Exs. 5, 5/A and 7 has no probative value. Ex. 5 was proved by PW.2, an assistant teacher of the Basudev High School. Ex. 6 and 7 were proved by PW.2, the headmaster of Basudev High School. It 6 appears from the record that PW.2 stated that Exhibit 5/A entry showing the date of birth of the appellant herein as 20.6.1986 was made on the basis of Ex. 7 which is a transfer certificate issued by the headmaster of Panchayat Upper Primary School where the appellant herein studied before joining Basudev High School. Ext.6 is an application dated 11.7.1998 for admission of the appellant in Basudev High School made by one Maheswar Gouda, who is said to be a cousin of the appellant's father. The said Maheswar Gouda was admittedly not examined. By the judgment under appeal, the Division Bench rightly held - "........it was the duty of the opposite party (the first respondent herein) to prove the contents of those documents, particularly the date of birth of the petitioner (the appellant herein) entered in Ext.5 and the transfer certificate Ext.7" [emphasis supplied] Having held so, the Division Bench reached the conclusion - "the evidence of the petitioner (the appellant herein) almost allies with the case of the opposite party No.1 (the first respondent) that the date of birth of the petitioner was 20.6.1986." 14. We have already examined the evidence of the appellant herein. There is nothing in the said evidence to indicate that the date of birth of the appellant was 20th June, 1986. At the worst, the said evidence failed to establish that the appellant's date of birth was 7.7.1985. 15. The election of the appellant was challenged on the ground that the appellant was not eligible to contest the election on the ground that the 7 appellant was not 21 years of age on the relevant date because according to the election petition, the appellant was born on 20.6.1986. The burden to proof the fact that the appellant was born on 20.6.1986 rests squarely on the first respondent. Section 101 of the Indian Evidence Act makes it abundantly clear. "S.101. Burden of proof - Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person." 16. It was held in Robins Vs. National Trust & Co. Ltd., 1927 A.C. 515 - "To assert that a man who is alive was born requires no proof. The onus is not on the person making an assertion, because it is self-evident that he had been born. But to assert that he had been born on a certain date, if the date is material, requires proof; the onus is on the person making the assertion." Since the first respondent failed to discharge the burden cast upon him, the election petition must fail. 17. However, the learned counsel for the first respondent, Shri Debasis Misra, very vehemently submitted that facts admitted need not be proved and the appellant had admitted the fact that the appellant, on her own admission, was 10 years old when she took admission in the Panchayat Upper Primary School on 10.1.1996. Learned counsel relied upon para 7 of the judgment under appeal (which is already extracted in para 8 of this judgment but for the sake of convenience, we reproduce the same): 8 ".........it transpires from the evidence of the petitioner herself, that when she took admission in Panchayat U.P. School she was 10 years old. She took admission in the said school on 10.1.96. If 10 years is deducted from that date it would come to 9.7.1986." 18. Learned counsel for the appellant, on the other hand, submitted that such a conclusion came to be recorded on incorrect reading of the evidence of the appellant. A copy of the deposition made by the appellant is placed before us. In the cross examination, the appellant stated as follows: "When I was five years of old, I joined in the school for the Ist time when I took admission in Dhougan U.P. school, I was ten yeas of old. I left that school in the year 1998. My father Apurba Gouda is an educated man. I can not recollect who had taken me to Dhougan School for admission. One outsider brought my T.C. from the Dhougan U.P. School and get me admitted in Dhougan High School. I cannot say his name. I was thirteen years of old, when I took admission in Dhougan High School in Class VIII." It can be seen from the above-extracted portion of the evidence of the appellant that the appellant stated that she was 13 year old when she took admission in the High School (obviously Basudev High School) and the admission, as we have already noticed from the evidence of PW.2, was on 11.7.1998. Deducting 13 years from that date would place the year of birth of the appellant in 1985. It is not clear as to the material on the basis of which the Division Bench recorded that the admission of the appellant in the Panchayat Upper Primary School was on 10.1.1996. We assume for the sake of argument that there is some basis on record for the finding that the appellant took admission in the Upper Primary School on 10.1.1996. On her own admission she was 10 years old on that date. Then there is an 9 inconsistency in her evidence regarding her age with reference to her admission into the Upper Primary School and Basudev High School. In such a case, her statement that she was 10 year old on 10.1.1996, in our opinion, cannot be treated as an admission that her date of birth is 20th June, 1986. An admission must be clear and unambiguous in order that such an admission should relieve the opponent of the burden of proof of the fact said to have been admitted. 19. For all the above mentioned reasons, we are of the opinion that the judgment under appeal cannot be sustained and the same is set aside. In view of our conclusion, the second question regarding the declaration in favour of the first respondent does not survive. 20. Appeal is allowed. ........................................J. ( ALTAMAS KABIR ) ........................................J. ( J. CHELAMESWAR ) New Delhi; January 31, 2012. 1

REPRESENTATION OF THE PEOPLE ACT, 1951: s.123 - Election petition alleging corrupt practices - Nature of - Standard of proof - Held: An election trial where corrupt practice is alleged, is to be conducted as a criminal trial - Standard of proof made applicable to criminal cases is proof beyond reasonable doubt - High Court misdirected itself on the point when it held that standard of proof higher than the one applicable to civil cases but lesser than that applicable to criminal cases should be adopted in the case - Evidence. s.123(4) - Election petition alleging corrupt practice of distributing the offending pamphlets by returned candidate and his election agent as also the party workers - Allowed by High Court on the basis of oral evidence - Election of returned candidate set aside - Held: The election petitioner led two sets of evidence each contradicting the other regarding distribution of pamphlets and, therefore, the benefit of doubt would go to the elected candidate - Besides, it would be unsafe to accept oral evidence on its face value without seeking for assurance from other circumstances or unimpeachable documentary evidence - The witnesses produced by election petitioner were not independent witnesses as they had affiliation with his party - No evidence of any witness has been discussed in detail in the impugned judgment - The assertion made by the elected candidate denying the allegation is supported by the evidence, and deserves to be accepted - High Court misdirected itself in placing reliance on hearsay evidence - There is nothing on record to show that the elected candidate, his election agent or his party workers with his consent and/or the consent of his election agent, had indulged in the act of distribution of pamphlets and committed the corrupt practice - The judgment of the High Court set aside - Evidence. s.123 r/w ss.98 and 99 - Corrupt practice of election agent or a third person attributable to the elected candidate - Notice to such third person - Held: To prove that the corrupt practice of a third person is attributable to the candidate, it must be shown that the candidate consented to the commission of such an act - The High Court's view that the elected candidate would be liable for penalty u/s 99 for the acts of his election agent without the conviction of such agent is completely erroneous in law - The High Court, on appreciation of the evidence adduced, has recorded a clear finding that no reliable evidence was led by election petitioner to establish that the election agent himself had distributed the offending pamphlets or that the party workers had distributed the pamphlets with his consent - Further, if a candidate is held to be guilty of corrupt practice vicariously, for an act done by any person other than his agent with his consent, then the ultimate finding to this effect has to be recorded and that too only after notice u/s 99 to that other person - The High Court, choosing to ignore the requirement of s.99 of the Act, has not recorded any concluded finding on this question against the UDF workers, who had allegedly distributed Ext. X-4. If the workers had no contumacious mind, the elected candidate hardly could have been fastened with any vicarious liability for the so called alleged corrupt practice - Notice - Vicarious liability. s.123(4) - Corrupt practice of false publication - "Publication" - Ingredients of - Explained - HELD: The information contained in the pamphlet alleged to have been published by appellant had already been published in a magazine and circulated in the Constituency - The provisions have to be construed strictly and, therefore, reproduction and distribution of reproduced information within the space of few months cannot be regarded as "publication" in terms of s.123(4) - Further, onus of proving that the maker of the statement believed it to be false rests with the election petitioner and, in the instant case, it has not been discharged - Interpretation of statutes - Strict interpretation - Evidence - Burden of proof. EVIDENCE: Oral evidence in election matters - Evidentiary value of - Discussed - Hearsay evidence. Election petition before High Court - Evidence - appreciation of - HELD: In an election trial, it is not permissible to the High Court to discard substantive oral evidence on account of defect in pleadings - High Court erred in discarding the testimony of returned candidate that distribution had taken place in March 2001 and not in May 2001, only because it was not so stated in his written statement - Evidence - Practice and Procedure - Pleadings. Words and Phrases: "Publication" in the context of election law - Connotation of. Respondent no. 1 lost to the appellant the election for the Member of the Legislative Assembly which was held on 10.5.2001. He filed an election petition alleging that the election of the appellant was vitiated by corrupt practice in terms of s.123(4) of the Representation of the People Act, 1951, as copies of Ext. X4, which contained false statements in relation to the personal character and conduct of respondent no. 1 having tendency to prejudice his election prospects, were distributed on 8th and 9th May, 2001 by the appellant, and his election agent and, with their consent, by the workers of the political party to which the appellant belonged. The returned candidate denied the allegations. However, the High Court allowed the election petition and declared the election of the returned candidate as void. Aggrieved, the returned candidate filed the appeal. =Allowing the appeal, the Court HELD: 1. The High Court misdirected itself on the point of standard of proof required u/s 123 of the Representation of the People Act, 1951, when it held that the standard of proof higher than the one applicable to the civil cases but certainly lesser than that applicable to the criminal cases should be adopted while determining the question whether an elected candidate is guilty of corrupt practice/s within the meaning of the Act. This is contrary to settled law, i.e., an election trial where corrupt practice is alleged is to be conducted as a criminal trial. Normally, the standard of proof made applicable to civil cases is `preponderance of probabilities' and the one made applicable to criminal cases is `proof beyond reasonable doubt'. [para 8] [446-B-D] Jagdev Singh Sidhanti vs. Pratap Singh Daulta (1964) 6 SCR 750 - followed. 2.1 In the impugned judgment, no evidence of any witness is discussed in detail at all. The High Court erred in holding that distribution of Ext. X4 in the Constituency concerned on 8th and 9th May, 2001 was by the appellant and by UDF workers with his consent. It is relevant to notice that the appellant had stated in his written statement that he was not aware of any such distribution and, in the alternative, it was mentioned that even if the distribution had taken place, neither he nor his election agent nor any of the workers of UDF was/were involved therein. In an election trial, it is not permissible to the High Court to discard substantive oral evidence on account of defect in the pleadings. Testimony of the appellant that printing and distribution had taken place in March, 2001 and not in May, 2001, as alleged by respondent No. 1, was discarded by the High Court only because it was not so stated in his written statement. It is significant to note that PW-88, the owner of the press, deposed before the High Court that DW-10 had entrusted him the printing of Ext. X4 pamphlet on 8.3.2001. He produced Ext. X17, the Bill Book maintained by him in the ordinary course of business. The testimony of PW-88 was never challenged by respondent No. 1 in the sense that PW-88 was never declared hostile to respondent No. 1 nor did he seek permission of the Court to cross-examine PW-88. Thus, the evidence tendered by PW-88 was accepted to be true by respondent No. 1. The testimony of DW-10, whose credibility could not be impeached during his lengthy cross-examination on behalf of respondent No. 1, had asserted that he had got printed Ext. X4 from the press of PW-88 and that he had distributed the same in March, 2001. The High Court, without assigning any cogent and convincing reasons, chose to disbelieve the evidence of PW-88 and DW-10. Thus, the conclusion drawn by the High Court that the evidence of PW-88 and DW-10 was unreliable, will have to be regarded as perverse. Having regard to the facts of the case, an adverse inference has to be drawn against respondent No. 1 on the score that he had neither asserted nor controverted the fact that Ext. X4 was got printed by DW-10 at the press of PW-88. Viewed in this light, the assertion made by the appellant, who had examined himself as DW-53 that he came to know about the distribution of Ext. X4 in the month of March, 2001 from DW-10 later on, deserves to be accepted and cannot be brushed aside as improvement in the version, as has been done by the High Court. [paras 10 and 11] [447-H; 448- A-H; 449-A-H] Dr. Jagjit Singh vs. Giani Kartar Singh and others AIR 1966 SC 773 - relied on. 2.2 PW-12, PW-13, PW-14, PW-15, PW-17 and PW-21, on whose testimony the High Court relied on, were not independent witnesses, as they had affiliation with the party to which respondent No. 1 belonged and their evidence cannot held to be reliable at all. Once the testimony of PW-88 read with that of DW-10 is believed that pamphlets Ext. X4 were printed in the press of PW-88 at the instance of DW-10 and that DW-10 had distributed the same in the month of March, 2001, the assertion made by the witnesses examined as PW-12 to PW-21 that the pamphlets were distributed by the appellant and also by UDF workers with the consent of the appellant on 8th and 9th May, 2001 becomes highly doubtful and their say cannot be accepted. Once the testimony of PW-88 read with that of DW-10 is acted upon, it becomes evident that respondent No. 1 had led two sets of evidence each contradicting the other regarding distribution of pamphlets and obviously in such circumstances the reasonable benefit of doubt would go to the elected candidate, namely, the appellant. [para 14] [451-G-H; 452-A-E] 2.3 So far as election law is concerned, by now it is well settled that it would be unsafe to accept oral evidence on its face value without seeking for assurance from other circumstances or unimpeachable documentary evidence. Oral evidence has to be analyzed by applying common sense test. It must be remembered that in assessing the evidence, which is blissfully vague in regard to the particulars in support of averments of undue influence, cannot be acted upon because the court is dealing with a quasi- criminal charge with serious consequences and, therefore, reliable, cogent and trustworthy evidence has to be led with particulars. If this is absent and the entire case is resting on shaky ipse dixits, the version tendered by witnesses examined by the election petitioner cannot be accepted. [para 12] [450-B-F] Abdul Hussain Mir vs. Shamsul Huda and another 1975 (3) SCR 106= (1975) 4 SCC 533 - relied on. 2.4 In the instant case, the High Court has not adverted to the evidence of any witness nor has it taken into consideration the positive evidence of DW-10 that he himself had distributed Ext. X4 in the month of March, 2001. This Court does not find from the impugned judgment as to why the High Court was inclined to prefer testimony of a particular witness as against the reliable evidence tendered by the appellant himself and the evidence tendered by DW-10. [para 12] [450-E-H] 2.5 The finding of the High Court that contemporaneous newspaper publications produced as Exts. P-5 and P-6 corroborate the testimony of respondent No. 1, is also not supported by the evidence on record. The reporters of Exts. P-5 and P-6 were examined. They have categorically, and in no uncertain terms, stated that they had no personal knowledge of the events published in Exts. P-5 and P-6. Therefore, what was reported in the newspapers could not have been regarded anything except hearsay. The High Court has misdirected itself in placing reliance on the hearsay evidence, namely Exts. P-5 and P-6. In view of clear proposition of law laid down in Quamarul Ismam's case*, hearsay evidence could not have been used by the High Court for coming to the conclusion that contemporaneous newspaper publications Exts. P-5 and P-6 corroborate the testimony of respondent No. 1. [para 12] [450-G-H; 451-A-D] *Quamarul Ismam vs. S.K. Kanta and others 1994 (1) SCR210=1994 Supp. (3) SCC 5 and Laxmi Raj Shetty and another vs. State of Tamil Nadu 1988 (3) SCR 706= (1988) 3 SCC 319 - relied on. 2.6 Similarly, the finding that seven UDF workers, who were allegedly arrested on 8.5.2001 by the police for distribution of the pamphlets, were released at the behest of the appellant who went to the Police Station and, therefore, there was consent of the appellant is quite contrary to the testimonies of the witnesses. It may be mentioned that this finding is arrived at on the basis of (i) the averments in the election petition which have no basis to justify the finding, (ii) the testimonies of PW-12 to PW-21, but scrutiny of their evidence reveals that none of the said witnesses had witnessed the appellant going to the police station and securing release of the seven workers and (iii) entries in the General Diary Ext. X5 which contains no details and only records what the Sub- Inspector heard from other people over telephone about distribution of some printed notices. Nothing is mentioned in the said entry about involvement of any of UDF workers or the appellant. Respondent No.1 examined PW-7, Additional S.I., and produced Ext. X5, the GD entry, to substantiate the allegation. PW-7 specifically stated that the seven UDF workers were not arrested, and so the appellant had no occasion to get them released. The GD entry also states that the ASI had gone to the spot and removed the UDF workers from the scene to avoid breach of law and order and later on they were let off on the advice of the superior officers. Once respondent No.1 has failed to prove the arrest of seven UDF workers, and their release at the instance of the appellant, the further case of respondent No. 1, that after coming out of the police station, the appellant himself distributed the offending pamphlets and directed others to distribute the pamphlets, becomes highly doubtful and improbable. [para 15 and 21] [459-A-H; 456-A-F] 2.7 There is absolutely nothing on the record to show that the appellant had indulged in the act of distribution of pamphlets and thus committed a corrupt practice. The High Court has placed reliance on unreliable and scanty evidence to find the appellant guilty of corrupt practice and, therefore, the finding that the appellant is disqualified u/s 99 of the Act is completely unsustainable. Further, the High Court could not even identify a single UDF worker, who, according to it, had distributed the pamphlets; it has simply held that there is evidence to show that UDF workers had distributed the pamphlets. It is evident that respondent No. 1 has failed to prove that UDF workers had distributed the offending pamphlets on 8th and 9th May 2001. The finding of the High Court on this score being against the weight of evidence is not only perverse but is also contrary to the facts proved and, as such, set aside. [para 15, 18,19 and 22] [455-G; 456-E-F; 460-C; 458-H; 459-A] D. Venkata Reddy vs. R. Sultan and others 1976 (3) SCR445= (1976) 2 SCC 455 - relied on 2.8 The High Court erred in concluding that the pamphlets were distributed by the UDF workers on 8th and 9th May, 2001, observing that the benefit of the distribution would have enured to none other than the appellant and, therefore, inference could be drawn that UDF workers had distributed the pamphlets with the consent of the appellant. Such a conclusion, based on unwarranted inferences and surmises, is recorded only because the High Court had misdirected itself on the question of standard of proof required to be adopted to resolve a dispute raised u/s 123 of the Act. The theory that the benefit of distribution could have enured only to the appellant is misplaced. It is well-settled that to prove that the corrupt practice of a third person is attributable to a candidate u/s 123 of the Act, it must be shown that the candidate consented to the commission of such an act. The finding that the appellant knew about such distribution because benefit of such distribution could only enure to him, but he kept silent despite knowledge of such distribution, is nothing else but an unwarranted inference and surmise on the part of the court. [para 18 and 21] [457-F-H; 458-A; 459-C-D] 3.1 The High Court's view that the appellant would be liable for penalty u/s 99 of the Act for the acts of his election agent without the conviction of such agent is completely erroneous in law. It is relevant to notice that `JV' was validly appointed as an election agent of the appellant. The High Court, on appreciation of the evidence adduced, has recorded a clear finding that no reliable evidence was led by respondent No. 1 to establish that `JV' himself had distributed the offending pamphlets or that UDF workers had distributed the pamphlets with the consent of `JV'. The conclusion of the High Court that the distributer of objectionable pamphlets Ext. X4 need not be named nor a finding with the name of the distributor be recorded u/s 99(1)(a)(ii) of the Act, to say the least, is contrary to the ratio laid down in Chandrakanta Goyal's case* wherein the principle has been laid down that when a candidate is held to be guilty of corrupt practice vicariously, for an act done by any person other than his agent with his consent, then the ultimate finding to this effect has to be recorded and that too only after notice u/s 99 to that other person and an inquiry must be held as contemplated therein naming the other person simultaneously for commission of such corrupt practice. [para 22] [460-B-F] *Chandrakanta Goyal vs. Sohan Singh Jodh Singh Kohli 1995 ( 6 ) Suppl. SCR 522= (1996) 1 SCC 378 - relied on. 3.2 The High Court has not only acted contrary to law and ignored the mandate of s.99 of the Act but has also taken the view that there was an option available to the Court to ignore the requirement of s. 99 to give notice to the distributors of the pamphlets and to name them as persons guilty of the corrupt practice, even though the distribution of pamphlets by the UDF workers is made the foundation of the corrupt practice, allegedly committed by the appellant. The judgment is obviously vitiated since the High Court, choosing to ignore the requirement of s.99 of the Act, has not recorded any concluded finding on this question against the UDF workers, who had allegedly distributed Ext. X4. If the workers had no contumacious mind, the appellant hardly could have been fastened with any vicarious liability for the so called alleged corrupt practice. [para 22] [460-A-E] 4.1 The High Court also committed an error in holding that the distribution of the pamphlets amounted to publication for the purposes of s. 123 of the Act. It is an admitted fact that the objectionable pamphlets contained statements, which were previously published in three editions of the "Crime" magazine which has circulation in the Constituency concerned. The word "publication" occurring in s. 123(4) of the Act, has not been defined under the Act. Therefore, it would be relevant to refer to the meaning of the word "publication" as given in standard dictionary. The first and foremost ingredient of publishing is making information known to the public in general. Publication is an act by which some information is exhibited, displayed, disclosed or revealed before the public. By publication, the necessary information is made accessible for public scrutiny. It is an act of making known of something to the public in general for a purpose. In the instant case, this Court finds that the information as contained in the pamphlet about respondent No. 1 having misappropriated the funds of the school was already exhibited, displayed, disclosed, made known, revealed and brought to the notice of general public residing within the constituency when "Crime" magazine was previously published and circulated in the constituency. [para 25] [462-A; E-G; 463-B-E] State of M.P. and another etc. etc. vs. Ram Raghubir Prasad Agarwal and others 1979 ( 3 ) SCR 41= (1979) 4 SCC 686 - relied on. 4.2 A trial for an offence punishable u/s.123 of the Act is a criminal trial, and conviction thereunder may lead to disqualification of the candidate concerned for a period of six years u/s.99 of the Act, which is a serious matter. Therefore, the provisions will have to be construed strictly and, as such, reproduction and distribution of the reproduced information within the space of few months cannot be regarded as publication of the statements of fact relating to the personal character and/or conduct of respondent No. 1 within the meaning of s.123 of the Act. The High Court, erred in holding that as in law of defamation, the republication of statements of fact also amounts to publication for the purpose of s.123(4) of the Act. [para 25] [463-F-H; 464-A] 4.3 The High Court has further erred in holding that the appellant believed the published material to be false at the time of its distribution. One of the important ingredients in proving the offence of corrupt practice u/s 123(4) of the Act is that it has to be established that the returned candidate believed the statement that was published, to be an untrue statement. It is significant that unlike the law of defamation, where truth is a defence, s.123(4) of the Act not only recognizes truth as a defence by using the words "publication of any statement of fact ... which is false.." but additionally protects the maker of the statement by stipulating that the maker must believe the statement to be false. The onus of proving that the maker believed the statement to be false rests with the election petitioner and, in the instant case, respondent no. 1 has not discharged the initial onus that rested on him. On the contrary, the defence of the appellant that he believed the statements made in Ext. X4 to be true because of their prior publication in "Crime" magazine and failure of respondent No. 1 to initiate any legal action against the said magazine, if tested on preponderance of probability stands proved. [para 27] [464-E-H; 465-A-B] Dr. Jagjit Singh vs. Giani Kartar Singh and others AIR 1966 SC 773 - relied on. 5. In view of the fundamental mistake committed by the High Court in the matter of standard of proof while resolving the dispute of corrupt practice and faulty appreciation of evidence by applying wrong standard of proof as also the fact that the election of the appellant is set aside on the basis of broad probabilities and presumptions, without even referring to any of the evidence adduced by the parties, the impugned judgment is set aside. [para 27] [467-D-E] Case Law Reference: (1964) 6 SCR 750 followed Para 8 AIR 1966 SC 773 relied on Para 10 and 27 1975 (3) SCR 106 relied on para 12 1994 (1) SCR210 relied on para 13 1988 (3) SCR706 relied on para 13 1976 (3) SCR445 relied on para 18 1995 (6) Suppl. SCR 522 relied on para 22 1979 (3) SCR 41 relied on para 25 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5310 of 2005. From the Judgment & Order dated 08.08.2005 of the High Court of Kerala at Ernakulam in E.P. No. 6 of 2001. L. Nagaswara Rao, Roy Abraham, Hari Kumar, Seema Himinder Lal for the Appellant. Jasawini Mishra, Romy Chacko for the Respondents.

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5310 OF 2005 Joseph M. Puthussery ... Appellant Versus T.S. John & Ors. ... Respondents JUDGMENT J.M. Panchal, J. This appeal, filed under Section 116A of the Representation of People Act, 1951 (`the Act' for short), is directed against judgment dated August 8, 2005, rendered by the learned Single Judge of the High Court of Kerala at Ernakulam in Election Petition No. 6 of 2001 by 2 which the election of the appellant as Member of Kerala Legislative Assembly from No. 106, Kallooppara Constituency is declared void on the ground that he was guilty of the corrupt practice within the meaning of Section 123(4) of the Act as he extensively distributed directly and through UDF workers, who did so with his consent, the copies of Ext. X4, which contained statements of fact, which were false and which he believed to be false or did not believe to be true in relation to the personal character and conduct of the respondent No. 1. 2. The facts, emerging from the record of the case, are as under: The election to the Kerala Legislative Assembly was held on May 10, 2001. From the Constituency, i.e., No. 106 Kallooppara Constituency, the appellant, i.e., Joseph M. Puthussery, the respondent No. 1, i.e., Advocate T.S. John, Prof. P.K. Rajasekharan Nair, i.e., the respondent No. 2 and Mathew Pinakkulath Padinjaremannil, i.e., the 3 respondent No.3, contested the election. The result of the election was declared on May 13, 2001 and the appellant was declared elected with 42,238 votes cast in his favour. As far as the respondent No. 1 is concerned, he was able to poll 31,013 votes. Thus, the appellant defeated the respondent No. 1 by a margin of 11,225 votes. The respondent Nos. 2 and 3 received 4,432 and 361 votes respectively. On June 27, 2001, the respondent No. 1 filed Election Petition No. 6 of 2001 in the High Court of Kerala at Ernakulam, under Section 100(1)(b) of the Act assailing the election of the appellant. According to the respondent No. 1, the election of the appellant was vitiated by corrupt practice defined under Section 123(4) of the Act for the reason that copies of Ext. X4, which allegedly contained false statements of fact in relation to the personal character and conduct of the respondent No. 1 having tendency to prejudice the prospects of the election of the respondent No. 1, were distributed by the appellant, his election agent and workers of the United 4 Democratic Front, i.e., the party to which the appellant owe allegiance, with his consent as well as with the consent of his election agent on May 8, 2001 and May 9, 2001 ignoring the stipulation that electoral campaign must come to an end. The precise statements in Ext. X4, which, according to the respondent No. 1, allegedly amounted to the corrupt practice within the meaning of Section 123(4) of the Act, are extracted below: - "Adv. T.S. John Is He A Servant of the People or Hero of Corruption? When tens of thousands of Homeless wander on streets, this MLA, the people's servant acquires mansion after in his name. Let us start journey from Anathapuri to take an account of the number of flats owned by this esteemed personality. Even in the District of Trivandrum a flat was allotted during 1980, when Gopi was the Chairman of the Housing Board while he was MLA. During 1984, when P.J. Joseph of flats near the Chairman's Quarters were acquired by this MLA in the name of daughter of his elder brother. At that time, the Chairman of the Housing Board was Oommen Mathew. By leasing out all the acquired flats on rent, he was fetching, Rs.1000 to 2000 per month. Nearly Rs.30,000/- was being received as profit from this alone. 5 T.S. John, who was allotted a plot earlier, got the flat in exchange by paying the price in monthly installments. This flat cost Rs.12 lakhs. Even the third flat of the Housing Board came of T.S. John. In order to hoodwink the people of Kallooppara, he still continues to live in a small house. His car shed is even better. It would have been nice for T.S. John to live in the car shed with concrete roof. Thengana Kadanthod Thankchan, who is running "Mariya Store" on the Changanacherry-Karukachal road near the Thengana Waiting Shed, had prized the lottery ticket. Now the only question that arises, is how much profit Thankchan got in this transaction. Though a lot of such incidents had happened in the State, in the history of Kerala this is the first time that an MLA had indulged in this type of deceit. Poor Simpleton of a Little Hut Or Many..... Many..... Corruption Stories. These repulsive stories of corruption are a disgrace to the country. It should not be forgotten that by this ridiculed are the people of this place. Corruption Hero T.S. John M.L.A. T.S. John M.L.A. the people's representative who lives in his small house as a puritan poor folk, has built up flats and properties under benami worth crores of rupees through out the Kerala State. Even the Ambassador Car No. KL 3/E7 this M.L.A. owns is, it is the name of Manjeri Bhaskaran Nair. 6 Role of P.J. Joseph, Minister and T.S. John M.L.A. Embezzlement of crores of rupees behind Palemaad Vivekanada School There is a school in the name of Palemaad Vivekanada village near Manjeri in Malappuram District, which is populous with settlors, but is an undeveloped area under the shield of this school, which started functioning during 1963, a family is leading princely life at the expense of the Government, embezzling crores of rupees. Those who liaise for them and receive lakhs of rupees as their share are two important persons. Education Minister P.J. Joseph and the formal Minister and the Assembly Speaker T.S. John. It is now years since P.J. Joseph and T.S. John begun this business in the education with Bhaskara Pillai. Bhaskara Pillai, who was removed from N.S.S. for indulge in financial irregularities, has seen the green pasture in his life through the education business with P.J. Joseph - T.S. John." The appellant filed written statement resisting the election petition. In the written statement, distribution of Ext. X4 in the Constituency on May 8, 2001 and May 9, 2001 was not specifically denied meaning thereby ignorance was pleaded so far as distribution of the 7 pamphlets was concerned. However, the appellant took a specific stand that neither he nor his election agent or any one with his and/or their consent had distributed Ext. X4. What was stated by the appellant in the written statement was that the distribution was done by the Youth Wing of the party to which the respondent No. 1 belongs and that the distribution of Ext. X4 does not amount to any publication. It was also averred that, at any rate, the statement was not calculated to prejudice the prospects of the respondent No. 1 in the election held on May 10, 2001 and, therefore, the Election Petition was liable to be dismissed. 3. Having regard to the pleadings of the parties, the learned Single Judge framed as many as eight issues for determination. On behalf of the respondent No. 1, who was the original petitioner, as many as 90 witnesses were examined and documents Ext. P-1 to P-22 were produced in support of his case that the election of the appellant 8 was liable to be voided. So far as the appellant is concerned, he had examined 53 witnesses and produced documents at Ext. R-1 to R-20 in support of his case that his election was not liable to be set aside on the ground of alleged corrupt practice. Further, Ext. C-1 to C-3(b) were marked as Court Exhibits whereas X-1 to X-24 documents were marked as proved by witnesses and Ext. N-1(a) and N-1(b) were marked by the persons to whom the court had issued notice under Section 99 of the Act. 4. After considering the evidence adduced and hearing the learned counsel for the parties, the court proceeded to consider the question as to which standard of proof is required to be applied while resolving election disputes raised in the Election Petition and held that the standard of proof which is higher than one made applicable to decide civil cases but which is lesser than the one applied in criminal cases should be adopted. The High Court 9 has further held that relevant contemporaneous newspaper publications like Ext. P-5 and P-6 and entries in official documents like Ext. X5 and X6 corroborate the ocular version tendered by the witnesses examined by the respondent No. 1 about the distribution of Ext. X4 pamphlet in the constituency on May 8 and May 9, 2001 by UDF workers. The learned Single Judge further observed that the act of the appellant in not stopping his workers from continuing with distribution of objectionable pamphlet Ext. X4 is sufficient to assume consent on his part. The learned Judge held that it was not established by the respondent No. 1 that DW-52 Jaya Varma, who was election agent of the appellant, had himself distributed the pamphlets in question nor it was established that UDF workers had distributed the pamphlets with consent of Jaya Varma. The learned Judge further held that the evidence tendered about the involvement of DW-52 Jaya Varma in actual 10 distribution did not inspire confidence of the court. 5. The learned Judge further held that in releasing Ext. X4 for consumption of the electorate by extensive distribution in the Constituency, there was publication as contemplated by Section 123(4) of the Act. The learned Judge found that Ext. X4 was not merely republication of the relevant portions of Exts. R-6, R-7 and R-8, but in addition to what was available in Exts. R6, R-7 and R-8, defamatory imputations by way of title, observations/comments in the sub-title, etc., were available in Ext. X4. The learned Judge held that out of the three allegations made in objectionable pamphlet Ext. X4, the third allegation, which relates to misappropriation and fraud to the tune of crores, falls under category of objectionable statement of fact under Section 123(4) of the Act and evidence of PW-6 shows that the statement was false. The Court noted that publication of Ext. X4 on the eve of 11 election was calculated to prejudice the prospects of the respondent No. 1 of winning the election. The Court concluded that the appellant was guilty of corrupt practices under Section 123(4) of the Act. However, the Court did not name any of the 77 workers of UDF under Section 99 of the Act and held that there was no specific evidence against any of them. 6. In view of the above mentioned conclusions, learned Single Judge has allowed the Election Petition filed by the respondent No. 1 and set aside the election of the appellant, giving rise to the instant appeal. 7. This Court has heard the learned counsel for the parties at length and in great detail. This Court has also considered the voluminous oral as well as documentary evidence produced by the parties and read out before the Court. 8. So far as standard of proof is concerned, there is no manner of doubt that the High Court misdirected 12 itself on the point of standard of proof required under Section 123 of the Representation of People Act, 1951. The learned Judge without explaining invented a new standard of proof to be made applicable to election disputes and has held that standard of proof higher than the one applicable to the civil cases but certainly lesser than one applicable to the criminal cases, should be adopted while determining the question whether an elected candidate is guilty of corrupt practice/s within the meaning of the Act. Normally, standard of proof made applicable to civil cases is preponderance of probabilities and the one made applicable to criminal cases is proof beyond reasonable doubt. Even with the ablest assistance of the learned counsel for the parties, this Court could not comprehend as to which is that standard of proof which is higher than the one applicable to civil cases and lesser than the one applicable to criminal cases. The standard of proof, spoken of by the 13 learned Judge, neither gets recognition/stamp of authority either from the provisions of the Indian Evidence Act or from any other statute or from judicial precedents. There is no manner of doubt that the standard of proof, which should be adopted according to the High Court while determining an election dispute, is contrary to settled principles of law. The settled law is that an election trial where corrupt practice is alleged is to be conducted as a criminal trial. Unfortunately, the High Court has not referred to any decision of this Court on the point though the learned counsel for the appellant claimed that several decisions were cited by the learned counsel for the parties to guide the High Court as to which standard of proof should be adopted while deciding an election dispute. In Jagdev Singh Sidhanti vs. Pratap Singh Daulta (1964) 6 SCR 750, the Five Judge Constitution Bench of this Court has laid down, in paragraph 11 of the reported decision as under: - 14 "11. It may be remembered that in the trial of an election petition, the burden of proving that the election of a successful candidate is liable to be set aside on the plea that he was responsible directly or through his agents for corrupt practices at the election, lies heavily upon the applicant to establish his case, and unless it is established in both its branches i.e. the commission of acts which the law regards as corrupt, and the responsibility of the successful candidate directly or through his agents or with his consent for its practice not by mere preponderance of probability, but by cogent and reliable evidence beyond any reasonable doubt, the petition must fail." It may be observed that the principle that in an election petition based on corrupt practice the Court has to adopt standard of proof beyond reasonable doubt, is enunciated in at least not less than six other reported decisions of this Court. However, this Court does not wish to burden the judgment unnecessarily by referring to those reported decisions in detail because the learned counsel for the respondent has fairly conceded before this Court that a wrong standard of proof was adopted by the High Court while trying the election petition filed by the respondent No. 1 challenging the election of the appellant. 15 9. The consequence of the conclusion, that the learned single Judge adopted a wrong standard of proof while determining the election dispute raised by the respondent No. 1, would be that the other findings recorded by the learned Judge will have to be viewed in the light of this fundamental error committed by him. 10. It may be mentioned that the impugned judgment roughly runs into 87 pages. However, this Court finds that no evidence of any witness is discussed in detail at all. The conclusion of the High Court that distribution of Ext. X4 in the Constituency concerned on 8th and 9th May, 2001 was by the appellant and by UDF workers with the consent of the appellant is to be found on pages 28 to 33 of the impugned judgment. It is relevant to notice that the appellant had stated in his written statement that he was not aware of any such distribution and in the alternative it was mentioned that even if the 16 distribution had taken place, neither he nor his agent nor any of the workers of UDF was/were involved in the distribution of the Pamphlet Ext. X4. The learned Judge has observed that the appellant has not expressly denied distribution of Ext. X4 on the above said dates in his written statement. However, this Court finds that in an election trial it is not permissible to the High Court to discard substantive oral evidence on account of defect in the pleadings. This is so in view of the decision of this Court in Dr. Jagjit Singh vs. Giani Kartar Singh and others AIR 1966 SC 773. 11. What is important to notice is that the testimony of the appellant that printing and distribution had taken place in March, 2001 and not in May, 2001, as alleged by the respondent No. 1, was discarded by the learned Judge only because it was not so stated in his written statement. At this stage it would be advantageous to refer to the testimony of 17 PW-88. PW-88 is the owner of the press. He had deposed before the Court on February 13, 2002 that Shaji P. Jacob, i.e., DW-10, had entrusted him the printing of Ext. X4 Pamphlet on March 8, 2001. The said witness had produced Ext. X17 Bill Book maintained by him in the ordinary course of business to substantiate that Mr. Jacob, i.e., DW- 10, had entrusted him the printing of Ext. X4. Again, DW-10 had also deposed before the Court on March 6, 2002 that he had got printed Ext. X4 from the press of PW-88 and that he himself had distributed the same in the month of March, 2001. It may be stated that PW-88 was one of the witnesses produced by the respondent No. 1 himself in support of his case that the election of the appellant was liable to be set aside and the respondent No. 1 wanted the Court to rely upon the testimony of PW-88. As observed earlier, PW-88 had in categorical terms stated before the Court that Mr. Jacob, i.e., DW-10, had entrusted him the 18 printing of Ext. X4 Pamphlet on March 8, 2001. The testimony of PW-88 was never challenged by the respondent No. 1 in the sense that PW-88 was never declared hostile to the respondent No. 1 nor the respondent No. 1 had sought permission of the Court to cross-examine PW-88. Thus, evidence tendered by PW-88 was accepted to be true by the respondent No. 1. The testimony of DW-10, whose credibility could not be impeached during his lengthy cross-examination by the learned counsel for the respondent No. 1, had asserted that he had got printed Ext. X4 from the press of PW-88 and that he had distributed the same in March, 2001. From the impugned judgment it becomes evident that without assigning cogent and convincing reasons the learned Judge had chosen to disbelieve the evidence of PW-88 and that of DW-10. No convincing reason recorded by the learned Judge as to why the testimony of PW-88 or for that matter the testimony of DW-10 should be disregarded. The 19 only and feeble reason, which has no legs to stand, given by the learned Judge to disbelieve the testimony of PW-88 and DW-10, is that those who distributed the pamphlets must have got the same printed in the press of PW-88. Thus, this Court finds that the conclusion drawn by the learned Judge, that the evidence of PW-88 and DW-10 was unreliable, will have to be regarded as perverse. The finding recorded by the learned Judge that no adverse inference can be drawn against the respondent No. 1 on the score that he had neither asserted nor controverted that Ext. X4 was got printed by DW-10 in the press of PW-88, has no factual basis and this Court, having regard to the facts of the case, is inclined to draw an adverse inference against the respondent NO. 1 on the score that he had neither asserted nor controverted the fact that Ext. X4 was got printed by DW-10 at the press of PW-88. Viewed in the light of what is held above, the assertion made by the appellant, who 20 had examined himself as DW-53 that he had come to know about the distribution of Ext. X4 in the month of March from DW-10 later on, deserves to be accepted and cannot be brushed aside as improvement in the version as is done by the learned Judge. 12. The finding that there is overwhelming and satisfactory oral evidence on the point that the distribution had taken place on May 8, 2001 and May 9, 2001, to say the least is contrary to the evidence on record. What is the value of oral evidence while deciding issue of corrupt practice within the meaning of Section 123(4) of the Act will have to be considered? So far as election law is concerned by now it is well settled that it would be unsafe to accept the oral evidence on its face value without seeking for assurance from other circumstances or unimpeachable document. It is very difficult to prove a charge of corrupt practice 21 merely on the basis of oral evidence because in election cases, it is very easy to get the help of interested witnesses. In Abdul Hussain Mir vs. Shamsul Huda and another (1975) 4 SCC 533, the Three Judge Bench of this Court held that oral evidence, ordinarily is inadequate especially if it is of indifferent quality or easily procurable. According to this Court, the oral evidence has to be analyzed by applying common sense test. It must be remembered that in assessing the evidence, which is blissfully vague in regard to the particulars in support of averments of undue influence, cannot be acted upon because the court is dealing with a quasi-criminal charge with serious consequences and, therefore, reliable, cogent and trustworthy evidence has to be led with particulars. If this is absent and the entire case is resting on shaky ipse dixits, the version tendered by witnesses examined by election petitioner cannot be accepted. Before recording the above finding, the learned Judge has 22 not adverted to the evidence of any witness nor taken into consideration the positive evidence of DW-10 that he himself had distributed Ext. X4 in the month of March, 2001. This Court does not find from the impugned judgment as to why the High Court was inclined to prefer testimony of a particular witness as against the reliable evidence tendered by the appellant himself and the evidence tendered by DW-10. The finding that contemporaneous newspaper publications produced at Exts. P-5 and P-6 corroborate the testimony of the respondent No. 1, is also not supported by the evidence on record. If one examines newspaper publications produced at Exts. P-5 and P-6, it becomes at once clear that the reports were entirely hearsay. The reporters of Exts. P-5 and P-6 were examined in this case. They have categorically, and in no uncertain terms, stated that they had no personal knowledge of the events published in Exts. P-5 and P-6. Therefore, what was reported in the 23 newspapers could not have been regarded anything except hearsay. There is no manner of doubt that the High Court has misdirected itself in placing reliance on the hearsay evidence, which was produced before the Court in the form of Exts. P-5 and P-6. In view of clear proposition of law laid down by this Court in Quamarul Ismam vs. S.K. Kanta and others 1994 Supp. (3) SCC 5 and Laxmi Raj Shetty and another vs. State of Tamil Nadu (1988) 3 SCC 319, the hearsay evidence could not have been used by the learned Judge for coming to the conclusion that contemporaneous newspapers publications Exts. P-5 and P-6 corroborate the testimony of the respondent No. 1. 13. The first question, which deserves to be addressed by this Court, is whether it is satisfactorily established that the appellant himself had distributed the pamphlets in question on May 8 and May 9, 2001. 24 14. As noticed earlier, the High Court has recorded a finding that Ext. X4 pamphlets were distributed on May 8, 2001 and May 9, 2001 by the appellant and also by UDF workers with his consent and for this purpose the High Court has relied on the testimony of PW-12 to PW21. The learned counsel for the respondent No. 1 would contend that the fact that the appellant had distributed the pamphlets in question stands satisfactorily proved by the evidence of PW-12 to PW-21, out of whom PW-16, PW-18, PW-19 and PW-20 are independent witnesses and, therefore, the finding recorded by the High Court that the appellant had distributed pamphlets on May 8. 2001 and May 9, 2001 based on appreciation of evidence, should be upheld by this Court. The above mentioned submission makes it abundantly clear that PW-12, PW-13, PW- 14, PW-15, PW-17 and PW-21 were not independent witnesses and had affiliation with the party to which the respondent No. 1 belongs. What is important to 25 note is that once the testimony of PW-88 read with that of DW-10 is believed that pamphlets Ext. X4 were printed in the press of PW-88 at the instance of DW-10 and that DW-10 had distributed the same in the month of March, 2001, the assertion made by witnesses examined as PW-12 to PW-21 that the pamphlets were distributed by the appellant and also by UDF workers with the consent of the appellant on May 8, 2001 and May 9, 2001 becomes highly doubtful and their say cannot be accepted. It is relevant to notice that G. Govindan Nampoothiri, who is examined as PW-88, is witness for the respondent No. 1. The respondent No. 1 desires this Court to act upon the testimony of the said witness, who is examined by him. The respondent No. 1 has not disowned the testimony of PW-88 in the sense that the said witness was not declared hostile nor cross-examined on behalf of the respondent No. 1. Once the testimony of PW-88 read with that of DW-10 is acted upon, it becomes 26 evident that the respondent No. 1 had led two sets of evidence each contradicting the other regarding distribution of pamphlets and obviously in such circumstances the reasonable benefit of doubt would go to the elected candidate, namely, to the appellant. Further, the claim made by the learned counsel for the respondent No. 1 that PW-16, PW- 18, PW-19 and PW-20 were independent witnesses, who had deposed before the Court that the appellant had distributed Ext. X4 pamphlets on May 8, 2001 and May 9, 2001, on scrutiny, is found to be hollow. The scrutiny of evidence of PW-16 Kuttappai K.K. indicates that in cross-examination it was put to him that Ext. X4 was brought out by the President of Youth Front (J) against another member of the same party and in answer to the said question he replied that he was not knowing that it was brought out by the President of Youth Front (J), but admitted that it was so written/mentioned in Ext. X4 itself. Though he admitted that he had not 27 bothered to peruse the full text of Ext. X4, he had audacity to state before the Court that Ext. X4 contained defamatory matter and that allegation of corrupt practice at the personal level were made against the respondent No. 1. When it was put to him that Ext. X4 did not contain any reference about the personal conduct of the respondent No. 1 other than as a servant of the people, the claim of this witness was that he had not read the full text. A witness, who claims before the Court on oath that Ext. X4 pamphlets contained defamatory matter without reading the contents of the same, would hardly inspire confidence of the Court. A perusal of testimony of PW-18 K. Anil Kumar would indicate that in an answer to the question i.e. whether there was anything in Ext. X4 causing defamation of the candidate as such or about election, the witness replied that those words were not used in Ext. X4 and he agreed that Ext. X4 did not contain the words `election' or `candidate'. Initially, this witness 28 maintained that he was an independent witness and had nothing to do with Marxist Party to which the respondent No. 1 belongs, but in cross-examination he admitted that he had worked in the SFI, which was the Student Front of the Marxist Party, in the year 1984-85. He further admitted that at the time when he had worked in the SFI, which was the Student Front of the Marxist Party, he was in the college and had occasion to mingle with the party leaders. In the opinion of this Court the admission made by the witness makes it more than clear that he was not an independent witness as claimed by the learned counsel for the respondent No. 1 and had come to the Court to oblige the respondent No. 1. Again, a critical scrutiny of evidence of PW-19 M.M. Simon would indicate that he had informed one Mr. Pradeep, who was an LDF worker, about the distribution of the pamphlets by the appellant. This witness also admitted that he had not read the contents of Ext. X4 and had only read the 29 headlines. This witness admitted in the cross- examination that he had deposed before the Court on the basis of information that he had got from others during the election propaganda. This statement made by the witness makes it doubtful whether in fact this witness had seen the appellant distributing the offending pamphlets. Thus on the re-appreciation of evidence of this witness this Court does not find it prudent to place implicit faith on the testimony of this witness. The evidence of PW-20 Verghese Mathew shows that his vegetable shop and the LDF Committee Office are situated in one and the same building and both are separated by a wall. A question was put to witness that whether both sides had raised allegations of corruption against each other. In answer to the said question the witness stated that according to his knowledge such allegations were raised only by the UDF and not by the LDF. Earlier this witness on his own had mentioned that the respondent No. 30 1 had issued notices soliciting votes and had not published any pamphlet of the nature of Ext. X4 raising allegations against the UDF. It is important to note that it was nobody's case and certainly it was not the case of the appellant that the respondent No. 1 had published any pamphlet of the nature of Ext. X4 raising allegations against the UDF. Therefore, making of such a statement shows to what extent this so called independent witness was interested in the respondent No. 1. His claim that his wife told him that the copy of Ext. X4 was distributed along with the identity slip by the UDF party workers can hardly be believed. Such an evidence would never be made available and/or left by the distributors of the pamphlet concerned. Though this witness denied that he was member of the party to which the respondent No. 1 belonged, after reading his testimony a general impression is created that he was in active politics and had supported an independent candidate, who was 31 contesting Panchayat Elections. His evidence further shows that in connection with the disputes relating to the said election a criminal case was registered against him and he was prosecuted. Therefore, his attempt to project himself as a totally independent witness does not inspire confidence of this Court at all, more particularly, when on presumption the witness had audacity to claim on oath that since the respondent No. 1, who belongs to LDF, was maligned. He had presumed that the publication was brought out by UDF and after seeing bottom portion of Ext. X4 he had to admit that it was brought out in the name of Shaji P. Jacob Kallunkal, who was a former member of the Youth Ftont of Joseph Group of Thiruvalla Constituency. Thus the so called independent witnesses examined by the respondent No. 1 to establish that the appellant had distributed the offending pamphlets on May 8, 2001 and May 9, 2001 are in fact not independent witnesses and are 32 not reliable at all. The finding recorded by the learned Judge of the High Court that there is overwhelming and satisfactory oral evidence on the point that distribution of pamphlet Ext. X4 on May 8, 2001 and May 9, 2001 was made by the appellant, is not borne out from the record of the case. In fact there is no discussion as to which witness has testified to this fact and why the High Court has preferred that testimony as against the evidence tendered by the appellant. 15. This Court further finds that the High Court has recorded a finding that the pamphlets were distributed by the appellant by observing that "the allegation in para 13.1(iii) is also to be found to be established satisfactorily by the evidence tendered". This Court notices that before recording above mentioned finding, the High Court has not taken trouble of referring to any evidence on the record. The High Court while recording the said finding 33 should have referred to the evidence which had tendency to establish the said fact. Thus, most of the findings recorded by the High Court are based on surmises and inferences and have no factual basis at all. While discussing whether the distribution of the pamphlets was with the consent of the appellant, the High Court mentions the testimony of PW-12 to PW-21. All these witnesses were produced by the respondent No. 1 during the course of the election trial. Many of them admitted that they were affiliated to the respondent No. 1 and/or his party, whereas rest of them have been found to be interested witnesses. There is absolutely nothing on the record to show that the appellant had indulged in the act of distribution of pamphlets and thus committed a corrupt practice. The case of the respondent No. 1 in the election petition was that on May 8, 2001 seven UDF workers were arrested by the police in connection with the distribution of pamphlets and the appellant 34 had personally got them released from the Police Station and after coming out from the police station, the appellant himself had distributed the pamphlets and directed others to distribute the same. As noticed earlier, the respondent No. 1 had examined PW-7, Additional S.I., and produced Ext. X5, which is GD entry to substantiate this case. Apart from the evidence of PW-12 to PW-21, who are his own party workers and/or interested witnesses, the official evidence has completely disproved the case of the respondent No. 1, because PW-7 specifically stated that the seven UDF workers were not arrested and so the appellant had no occasion to get them released. The GD entry also states that the ASI had gone to the spot and removed the UDF workers from the scene to avoid breach of law and order and later on they were let off on the advice of the superior officers. Once it is held that the respondent No. 1 has failed to prove that seven UDF workers, who were distributing the pamphlets, were 35 arrested and lodged in the police station and that the appellant had gone to the police station and got the seven workers released from the police station, the further case of the respondent No. 1, that after coming out of the police station, the appellant himself had distributed the offending pamphlets and directed others to distribute the pamphlets, becomes highly doubtful and improbable. This Court finds that the High Court has placed reliance on unreliable and scanty evidence to find the appellant guilty of corrupt practice and, therefore, the finding that the appellant is disqualified under Section 99 of the Act is completely unsustainable. 16. The second question, which needs to be considered, is whether it is satisfactorily proved by the respondent No. 1 that whether the pamphlets in question were distributed by the workers of UDF. 17. This Court further finds that the High Court has recorded a finding in paragraph 39 of the impugned 36 judgment that the official documents, which have come from proper custody, corroborate the ocular version of the witnesses about distribution of Ext. X4 on May 8, 2001 and May 9, 2001. On scrutiny of the whole evidence on record this Court finds that the High Court has not pointed out as to which were the official documents referred to in paragraph 39 of the impugned judgment. The learned counsel for the respondent No. 1 also could not point out to this Court any document which can be termed as official document, which, in turn, corroborated the ocular version of the witnesses regarding distribution of Ext. X4 on May 8, 2001 and May 9, 2001. This Court finds that the learned Judge has referred to Ext. X5, which is General Diary maintained in the Police Station read with the testimony of Additional S.I. of Police at Thiruvalla, Mr. V.R. Rajendran Nair to conclude that official document corroborated the version of the witnesses that distribution of pamphlets, copy of which was 37 produced as Ext. X4, had taken place on May 8 and May 9, 2001. Ext. X5, which is referred to by the learned Judge, is to be found on page 130 of Volume V of the appeal. It is General Diary entry of the Police Station. The Additional S.I. PW-7, who made the GD entry, has in terms disproved the arrest of seven UDF workers, who were allegedly distributing the pamphlets, and the involvement of the appellant in getting them released from the Police Station as alleged by the respondent No. 1. Therefore, this Court fails to understand as to how General Diary entry of the Police Station and the testimony of Additional S.I. PW-7 proved that seven UDF workers were distributing the offending pamphlets and that the appellant was involved in getting them released from the Police Station. 18. Further, while concluding that the pamphlets were distributed by the UDF workers on May 8, 2001 and May 9, 2001, what is observed by the learned Judge 38 is that the benefit of the distribution would have enured to none other than the appellant and, therefore, inference can be drawn that UDF workers had distributed the pamphlets with the consent of the appellant. This Court finds that such a conclusion, based on unwarranted inferences and surmises, is recorded only because High Court had misdirected itself on the question of standard of proof required to be adopted to resolve a dispute raised under Section 123 of the Act. The theory that the benefit of distribution could have enured only to the appellant is misplaced in the light of principles laid down in D. Venkata Reddy vs. R. Sultan and others (1976) 2 SCC 455. It is relevant to notice that in his written statement the appellant had denied that 77 persons named in the election petition, who had allegedly distributed the pamphlets, were UDF workers. However, the High Court found that the appellant had in his testimony admitted that some of them were in fact UDF 39 workers. Therefore, the High Court proceeded further to record a finding that "this must go a long way when the court considers the question as to who had distributed copies of Ext. X4". Although from the record it is evident that out of 77 persons named in the election petition, the appellant had admitted that a few were UDF workers but from this it would be unwise to jump on to the conclusion and that too on inferences that the UDF workers had distributed the pamphlets. The High Court in the impugned judgment could not even identify a single UDF worker, who, according to it, had distributed the pamphlets and has simply held that there is evidence to show that UDF workers had distributed the pamphlets. The testimonies of 77 persons named in the election petition could not have been accepted because their testimonies are self-serving and interested one. The finding that DW-14 Mustafa Kutty admitted during his cross- examination that UDF workers had distributed the 40 pamphlets is nothing else but the result of complete misreading of the testimony of the said witness. The said witness does not make any such admission as is referred to by the High Court in the impugned judgment. On the contrary the said witness had stated that he had distributed only the pamphlets issued from the Election Committee Office and nowhere had he stated that the Election Committee Office of the appellant had issued the pamphlet's, copy of which was produced at Ext. X4, and that he had distributed those pamphlets. 19. The discussion made above makes it evident that the respondent No. 1 has failed to prove that UDF workers had distributed the offending pamphlets on May 8 and May 9, 2001. The finding of the High Court on this score being against the weight of evidence is hereby set aside. 20. In the alternative, it was argued on behalf of the appellant that even if the distribution of pamphlets 41 by UDF workers was held to be proved, no satisfactory evidence was adduced by the respondent No. 1 to establish that distribution of the pamphlets by the UDF workers was with the consent of the appellant and, therefore, the judgment impugned is liable to be set aside. 21. It is well-settled that to prove that the corrupt practice of a third person is attributable to a candidate under Section 123 of the Act, it must be shown that the candidate consented to the commission of such act. The finding that the appellant knew about such distribution because benefit of such distribution could only enure to him, but he kept silent despite knowledge of such distribution, is nothing else but an unwarranted inference and surmise on the part of the court. Similarly, the finding that seven UDF workers, who were allegedly arrested on May 8, 2001 by the police for distribution of the pamphlets, were released at 42 the behest of the appellant who went to the Police Station and, therefore, there was consent of the appellant is quite contrary to the testimonies of the witnesses. It may be mentioned that this finding is arrived at on the basis of (i) the averments in the election petition which have no basis to justify the finding, (ii) the testimonies of PW-12 to PW-21, but scrutiny of their evidence reveals that none of the said witnesses had witnessed the appellant going to the police station and securing release of the seven workers and (iii) entries in the General Diary Ext. X5 which contains no details and only records what the Sub-Inspector heard from other people over the telephone about distribution of some printed notices. Nothing is mentioned in the said entry about involvement of any of UDF workers or the appellant and, therefore, the finding that UDF workers had distributed the pamphlets with the consent of the appellant being against evidence on record is liable to be set aside and is hereby set 43 aside. 22. The High Court's understanding of law that the appellant would be liable for penalty under Section 99 of the Act for the acts of his agents without the conviction of such agents is completely erroneous in law. It is relevant to notice that Mr. Jaya Varma was validly appointed as election agent of the appellant. The High Court, on appreciation of the evidence adduced, has recorded a clear finding that no reliable evidence was led by the respondent No. 1 to establish that Mr. Jaya Varma himself had distributed the offending pamphlets or that UDF workers had distributed the pamphlets with the consent of Mr. Jaya Varma. The conclusion of the High Court that distributer of objectionable pamphlets Ext. X4 need not be named nor a finding with name of the distribution be recorded under Section 99(1)(a)(ii) of the Act, to say the least, is contrary to the ratio laid down by this Court in 44 Chandrakanta Goyal vs. Sohan Singh Jodh Singh Kohli (1996) 1 SCC 378, wherein the principle is laid down that when a candidate is held to be guilty of corrupt practice vicariously, for an act done by any person other than his agent with his consent, then the ultimate finding to this effect has to be recorded and that too only after notice under Section 99 to that other person and an inquiry must be held as contemplated therein naming the other person simultaneously for commission of such corrupt practice. There is no manner of doubt that making of an order under Section 98 against the appellant, who is returned candidate, without complying with the requirements of Section 99 when the corrupt practice against the appellant is held to be proved vicariously for the act of another person, by itself vitiates the impugned judgment. Further, in view of the principles laid down in the above mentioned reported decision, it is also clear that the court has no option in this matter and it is 45 incumbent to name such a person in the final verdict given in the election petition under Section 98 of the Act after making due compliance of Section 99 of the Act. The High Court has not only acted contrary to law and ignored the mandate of Section 99 of the Act but taken the view that there was an option available to the Court to ignore the requirement of Section 99 to give notice to the distributors of the pamphlets and to name them as persons guilty of the corrupt practice even though the distribution of pamphlets by the UDF workers is made the foundation of the corrupt practice, allegedly committed by the appellant. The judgment is obviously vitiated since no concluded finding on this question is recorded against the UDF workers, who had allegedly distributed Ext. X4, choosing to ignore the requirement of Section 99 of the Act. The approach of the learned Judge of the High Court in finding the appellant guilty for distribution of pamphlets vicariously in the sense that UDF 46 workers had distributed the pamphlets with the consent of the appellant, after holding that there is no sufficient data to conclude that those UDF workers who had distributed Ext. X4 pamphlets had the requisite contumacious mind, is contrary to law and difficult to uphold. If the workers had no contumacious mind, the appellant hardly could have been fastened with any vicarious liability for the so called alleged corrupt practice. 23. The net result of the above discussion is that the finding, recorded by the High Court that the pamphlets were distributed on May 8 and May 9, 2001, is not only perverse but contrary to the facts proved and, therefore, the same is liable to be set aside. 24. Another alternative plea, which was raised on behalf of the appellant, was that even if the court were to hold that it was proved by the respondent No. 1 that the appellant and/or the UDF workers with the 47 consent of the appellant had distributed the pamphlets in question, there was no publication of the same within the meaning of Section 123(4) of the Act as the contents of Ext. X4 were already previously published in "Crime" Magazine having circulation in the constituency concerned. 25. The High Court further committed error in holding that the distribution of the pamphlets amounted to publication for the purposes of Section 123 of the Act. Section 123(4) of the Act provides as follows: - "Corrupt Practices. - The following shall be deemed to be corrupt practices for the purposes of this Act: - (4) The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election." 48 It is an admitted fact that the objectionable pamphlets contained statements, which were previously published in the three editions of the "Crime" magazine which has circulation in the Constituency concerned. Though the High Court holds that the pamphlet additionally contains a heading and a caption, ultimately, the appellant is found guilty for republishing material from Crime magazine relating to misappropriation of the funds from one Vivekananda College. The question is whether republishing material from the "Crime" Magazine, which was already distributed earlier, can be regarded as an act of publication of statements of fact relating to the personal character and/or conduct of the respondent No. 1, within the meaning of Section 123(4) of the Act. The word "publication" occurring in Section 123(4) of the Act, has not been defined under the Act. Therefore, it would be relevant to refer to the meaning of the word "publication" as given in standard dictionary. The word "publication" has been defined in Black's Dictionary of Law (6th Edition) as follows: - 49 "to make public; to make known to people in general; to bring before public; to exhibit; display, disclose or reveal.........the act of publishing anything; offering it to public notice, or rendering it accessible to public scrutiny. An advising of the public; a making known of something to them for a purpose. It implies the means of conveying knowledge or notice." A similar meaning has been ascribed to the word "publication" in State of M.P. and another etc. etc. vs. Ram Raghubir Prasad Agarwal and others (1979) 4 SCC 686. The first and foremost ingredient of publishing is making information known to the public in general. Publication is an act by which some information is exhibited, displayed, disclosed or revealed before the public. By publication, the necessary information is made accessible for public scrutiny. It is an act of making known of something to the public in general for a purpose. In the present case, this Court finds that the information as contained in the pamphlet about the respondent No. 1 having misappropriated the funds of the school was already exhibited, displayed, disclosed, 50 made known, revealed and brought to the notice of general public residing within the constituency when "Crime" magazine was previously published and circulated in the constituency. The reproduction and distribution of the same information within the space of a few months cannot amount to publication for the purposes of Section 123 of the Act. It must be remembered that a trial under Section 123 of the Act is a criminal trial. Conviction under the provisions of Section 123, may lead to disqualification of the candidate concerned for a period of six years under Section 99 of the Act, which is a serious matter. Therefore, the provisions will have to be construed strictly. So construed, there is no manner of doubt that reproduction and distribution of the reproduced information within the space of few months cannot be regarded as publication of the statements of fact relating to the personal character and/or conduct of the respondent No. 1 within the meaning of Section 123 of the Act. Instead, the impugned judgment holds that as in law of defamation, 51 the republication of statements of fact also amounts to publication for the purpose of Section 123(4) of the Act. This Court is of the firm opinion that there is no warrant for such a conclusion and it is wrong to say that republication as in defamation law amounts to publication so far as Section 123(4) of the Act is concerned. 26. Another alternative plea raised on behalf of the appellant for consideration of this Court was even if it was assumed that the respondent No. 1 had proved that the appellant and/or UDF workers with the consent of the appellant had distributed the pamphlets and distribution of the pamphlets amounted to publication notwithstanding the fact that the contents of the pamphlets were previously published in "Crime" Magazine, it was contended that evidence adduced establishes that the appellant had believed the imputations made against the respondent No. 1 in Ext. X4 to be true, whereas it was not established by the 52 respondent No. 1 that the imputations made in Ext. X4 were believed to be untrue by the appellant and, therefore, no corrupt practice as alleged was committed by the appellant. 27. The High Court has further erred in holding that the appellant believed the published material to be false at the time of its distribution. One of the important ingredients in proving the offence of corrupt practice under Section 123(4) of the Act is that it has to be established that the returned candidate believed the statement that was published, to be an untrue statement. It is significant that unlike the law of defamation, where truth is a defence, Section 123(4) of the Act not only recognizes truth as a defence by using the words "publication of any statement of fact ..... which is false....." but additionally protects the maker of the statement by stipulating that the maker must believe the statement to be false. This Court has held that the onus of proving that the maker believed the statement to be 53 false rests with the election petitioner (see Dr. Jagjit Singh vs. Giani Kartar Singh and others AIR 1966 SC 773 - paragraph 21). The High Court does not explain how and by way of what evidence led by the respondent No. 1 it stands proved that the appellant believed that the contents of the pamphlets were false. On the contrary, the defence of the appellant that he believed the statements made in Ext. X4 to be true because of their prior publication in "Crime" magazine and failure of the respondent No. 1 to initiate any legal action against the Crime magazine, if tested on preponderance of probability stands proved. However, this defence of the appellant is discarded by the High Court by making the following observations: - "71. There are many in this country who may believe that the printed word is truth. But that certainly is not the yardstick or touch stone on which the contumacious state of mind of the maker of a statement of fact will be assessed. Merely because the Crime Magazine is one having circulation, popularity and notoriety, D.W. 53 (the appellant) cannot assert that he believed the printed words in Exts. R6, R7 and R8 to be the gospel truth. If 54 such an approach were permitted, section 123(4) of the Act can be violated with impunity if some yellow journalist publishes unfounded allegations and the offender-facing proceedings for defamation or for corrupt practice under Section 123(4) of the Act, repeats the allegation with impunity and claims immunity from consequences of his conduct. That cannot certainly be the law. That cannot be approach that this court will adopt. The 1st respondent who has had a fairly long political career cannot contend that he simply swallowed the publications made earlier in Exts. R6, R7 and R8 and hence did not believe the statement of facts made in Ext. X4 to be false or he did not believe them to be not true." "78. .....the publication of the same statement of fact earlier in the Crime Magazine cannot justify the 1st respondent. Even the fact that some other gullible members of the public who read the relevant Crime Magazines and came to know of these allegations believed or did not doubt the truth of such statement of fact cannot help the 1st respondent at all. At worst, that can only prove the pregnant possibilities of such false assertion of fact. Except the earlier publication of the same statement of fact in the Crime Magazine i.e. Exts. R6, R7 and R8, there is not a semblance of scintilla or data which can persuade this Court to assume that the maker of the said objectionable statement or any other had reasons to believe the said statement of fact to be true or did not believe it to be false." 55 It is not clear from the extracts quoted above as to how the High Court has concluded that the appellant could not have relied upon the publications of the offending information in "Crime" magazine. The reference to "Crime" magazine as a yellow journal is also not proper. The term "yellow journal" has its origins in American slang. It was initially used by some people to describe a newspaper called the "New York World" in the early 1900s because the paper used to print sensational stories and had a cartoon strip called the "yellow kid" which was printed with yellow ink. Black's Law Dictionary (6th Edition) defines "yellow journalism" as follows: - "type of journalism which distorts and exploits the news by sensationalism in order to sell copies of the newspapers or magazines." The High Court has summarily described "Crime" Magazine to be a yellow journal. Whether "Crime" magazine is a yellow journal is a matter of opinion and 56 not of fact. It is impossible to conclude that an opinion of this sort is a judicially noticeable fact for the purposes of Section 56 or Section 57 of the Evidence Act, 1872. There is nothing in the impugned judgment which indicates that any evidence was led, much less considered as to whether "Crime" magazine is a yellow journal and hence magazine could not have been relied upon by the appellant in forming a belief that the contents of the magazine were not untrue. Further, between the time of publication of offending material in Crime magazine and the alleged distribution of the pamphlet, the respondent No. 1 did not pursue any action in law by way of criminal complaint or suit against the publishers of the Crime Magazine for defamation. It is only after the institution of the election petition that such a complaint was filed, presumably as an after thought. Even in the said complaint for defamation, filed by respondent No. 1 against the printer and publisher of crime, the third imputation which is found as offending by the High Court was not included. This would show 57 that the respondent No. 1 himself considered the said imputation as not defamatory or at least not capable of being proved to be false. The appellant, in these circumstances, not only had an explanation but a satisfactory explanation as to why he believed the objectionable statements in the pamphlet Ext. X4 to be true. There is no manner of doubt that the High Court, therefore, erred in holding otherwise, despite the fact that the respondent No. 1 had not discharged initial onus resting on him. In view of the fundamental mistake committed by the High Court in the matter of standard of proof while resolving dispute of corrupt practice and faulty appreciation of evidence by applying wrong standard of proof as also the fact that the election of the appellant is set aside on the basis of broad probabilities and presumptions, without even referring to any of the evidence adduced by the parties, the impugned judgment is liable to be set aside. 58 28. For the foregoing reasons the appeal succeeds. The judgment dated August 8, 2005, rendered by the learned single Judge of the High Court of Kerala at Ernakulam in Election Petition No. 6 of 2001 by which the election of the appellant as a member of Kerala Legislative Assembly No. 106 Kallooppara Constituency is declared to be void on the ground that he is guilty of corrupt practice under Section 123(4) of the Representation of People Act, 1951, is hereby set aside. There shall be no order as to costs. .............................. .......J. [J.M. Panchal] .....................................J. [Gyan Sudha Misra] New Delhi; December 01, 2010.