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.

Chartered Accountants Act, 1949: ss. 2(d), 24, 24A, 25, 26 and 28 - Person qualifying the exam of Chartered Accountant but not a member of the Institute of Chartered Accountant of India - Person impersonating as Chartered Accountant, preparing audit reports and forged seals - Criminal complaint before police alleging commission of offences punishable u/ss. 419, 420, 468 and 473 - Prosecution under the provisions of Penal Code r/w ss. 24 and 26 of the Act - Trial court and High Court holding that even though prima facie case made out against the accused u/s. 24, 24A and 26, cognizance could not have been taken on the basis of the complaint because no complaint was filed u/s. 28 ;and that he could not be prosecuted under the Penal Code - On appeal, held: If the particular act of a member or a non-member or a company results in contravention of the provisions contained in s. 24 or sub- section (1) of s.24A, 25 or 26 of the Act and such act also amounts to an offence of criminal misconduct under IPC, then a complaint can be filed by or under the order of the Council u/s. 28, which may result in punishment prescribed u/s. 24 or sub-section (2) of ss. 24A, 25 or 26 - Such member or non-member or company can also be prosecuted for any identified offence under IPC - There is no bar against prosecution of such person if he is charged with the allegations constituting offences under Penal Code or under other laws - Matter remitted to trial court to consider whether allegations contained in the complaint constitute any offence under Penal Code - In the absence of a complaint u/s. 28, no charges could be framed against chartered accountant for the alleged contravention of ss. 24, 24A or 26 - Penal Code, 1860 - ss. 419, 420, 468 and 473. ss. 24A(2), 26 and 25(2) - Expression `without prejudice to any other proceedings which may be taken against him' in ss. 24A(2), 26 and s. 25(2) - Meaning of - In the context of the Chartered Accountants Act, 1949. Criminal Law: Double jeopardy - Simultaneous prosecution of offender for contravention of ss. 24, 24A and 26 of the 1949 Act and for the offences under the Penal Code - Permissibility of - Held: Simultaneous prosecution is permissible but in view of the bar contained in Article 20(2) r/w s.26 of the 1897 Act and s.300 Cr.P.C., punishment twice for the same offence is barred - Chartered Accountants Act, 1949 - ss. 24, 24A, 26 - Penal Code, 1860 - Constitution of India, 1950 - Article 20(2) - General Clauses Act, 1897 - s. 26. Interpretation of statutes: Construction of statutory provisions - Held: When there are two possible constructions of a statute, then the one which leads to anomaly or absurdity and makes the statute vulnerable to the attack of unconstitutionality should be avoided in preference to the other which makes it rational and immune from the charge of unconstitutionality. The respondent qualified the exam of Chartered Accountant but is not a member of the appellant-Institute. The appellant- Institute filed a complaint before the police against the respondent alleging cheating by impersonation, forgery and counterfeiting of seal of the Institute, punishable under Sections 419, 468, 471 and 472 IPC. The police filed the challan before the Magistrate. The trial court held that there was no basis for framing any charge against the respondent under IPC; and cognizance of offences under Sections 24 and 26 of the Act could not be taken because no complaint was filed by or under the order of the Council of the appellant- Institute, before the Magistrate. Aggrieved, the appellant filed revisions. The Single Judge of High Court dismissed the same. Therefore, the appellant-institute filed the instant appeals. =Allowing the appeals and remitting the matter to the trial court, the Court HELD: 1.1. Section 24 of the Chartered Accountants Act, 1949 provides for punishment of a person who is not a member of the Institute represents himself as a member of the Institute or uses the designation of chartered accountant. Similar punishment can be imposed on a member of the Institute who does not have a certificate of practice but represents that he is in practice or practises as a chartered accountant. Sub-section (2) of Sections 24A, 25 and 26 provide for imposition of different kinds of punishment for violation of the provisions contained in sub-section (1) of those sections. Section 26 provides for imposition of punishment if a person other than a member of the Institute signs any document on behalf of a chartered accountant in practice or a firm of such chartered accountants in his or its professional capacity. [Para 12] 1.2. Section 28 which is couched in negative form declares that no person would be prosecuted under the Act except on a complaint made by or under the order of the Council or of the Central Government. The prohibition contained in Section 28 is attracted only when such person is sought to be prosecuted for contravention of the provisions contained in Section 24 or sub-section (1) of Sections 24A, 25 or 26 and not for any act or omission which constitutes an offence under the IPC. The use of expression `without prejudice to any other proceedings which may be taken against him' in sub- section (2) of Sections 24A and 26 and somewhat similar expression in sub- section (2) of Section 25 shows that contravention of the provisions contained in sub-section (1) of those sections can lead to filing of complaint under Section 28 of the Act and if the particular act also amounts an offence under the IPC or any other law, then a complaint can also be filed under Section 200 Cr.P.C. or a first information report lodged with the police under Section 156 Cr.P.C. The said expression cannot be given a restricted meaning in the context of professional and other misconducts which may be committed by a member of the Institute and for which he may be punished under Section 21B(3) because the violation of Sections 24 to 26 can be committed by a person who may or may not be a chartered accountant as defined in Section 2(b). Thus, if the particular act of a member of the Institute or a non-member or a company results in contravention of the provisions contained in Section 24 or sub-section (1) of Sections 24A, 25 or 26 and such act also amounts criminal misconduct which is defined as an offence under the IPC, then a complaint can be filed by or under the order of the Council or of the Central Government under Section 28, which may ultimately result in imposition of the punishment prescribed under Section 24 or sub-section (2) of Sections 24A, 25 or 26 and such member or non-member or company can also be prosecuted for any identified offence under the IPC. The object underlying the prohibition contained in Section 28 is to protect the persons engaged in profession of chartered accountants against false and untenable complaints from dissatisfied litigants and others. However, there is nothing in the language of the provisions contained in Chapter VII from which it can be inferred that Parliament wanted to confer immunity upon the members and non-members from prosecution and punishment if the action of such member or non-member amounts to an offence under the IPC or any other law. [Para 13] 1.3. Unlike ss. 416, 463, 464, 468 and 471 of the Penal Code, the provisions contained in Chapter VII of the Act neither define cheating by personation or forgery or counterfeiting of seal, etc. nor provide for punishment for such offences. If it is held that a person acting in violation of Section 24 or contravening sub-section (1) of Sections 24A and 26 of the Act can be punished only under the Act even though his act also amounts to one or more offence(s) defined under the IPC and that too on a complaint made in accordance with Section 28, then the provisions of Chapter VII would become discriminatory and might have to be struck down on the ground of violation of Article 14. Such an unintended consequence can be, and deserves to be avoided, in interpreting Sections 24A, 25 and 26 keeping in view the settled law that if there are two possible constructions of a statute, then the one which leads to anomaly or absurdity and makes the statute vulnerable to the attack of unconstitutionality should be avoided in preference to the other which makes it rational and immune from the charge of unconstitutionality. That apart, the court cannot interpret the provisions of the Act in a manner which would deprive the victim of his right to prosecute the wrong doer for the offences defined in Sections 416, 463, 464, 468 and 471 by filing a first information report or a complaint under the relevant provisions of Cr.P.C. [Para 14] 1.4. The respondent could have been simultaneously prosecuted for contravention of Sections 24, 24A and 26 of the Act and for the offences defined under the IPC but in view of the bar contained in Article 20(2) of the Constitution read with Section 26 of the General Clauses Act, 1897 and Section 300 Cr.P.C., he could not have been punished twice for the same offence. [Para 15] Maqbool Hussain v. The State of Bombay (1953) 4 SCR 730; T.S. Baliah v. T.S. Rangarchari (1969) 3 SCR 65; State of Bombay v. S.L. Apte (1961) 3 SCR 107; V.K. Agarwal v. Vasantraj B. Bhatia (1988) 3 SCC 467; State of Bihar v. Murad Ali Khan (1988) 4 SCC 655; State of Rajasthan v. Hat Singh (2003) 2 SCC 152, referred to. 1.5. The submission that the Chartered Accountants Act, 1949 is a special legislation vis-

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS._________OF 2010 (Arising out of S.L.P. (Crl.) Nos.3411-3412 of 2009) The Institute of Chartered Accountants of India .......Appellant Versus Vimal Kumar Surana and another .......Respondents J U D G M E N T G.S. Singhvi, J. 1. Leave granted. 2. The question which arises for consideration in these appeals is whether the provisions contained in Sections 24, 24A and 26 of the Chartered Accountants Act, 1949 (for short, `the Act') operate as a bar against the prosecution of a person who is charged with the allegations which constitute an offence or offences under other laws including the Indian Penal Code (IPC). 3. Respondent, Vimal Kumar Surana, who is a graduate in Commerce and has passed the examination of Chartered Accountant but is not a 2 member of the appellant-Institute is alleged to have represented himself before the Income Tax Department and the authorities constituted under the Madhya Pradesh Trade Tax Act on the basis of power of attorney or as legal representative and submitted documents such as audit reports and certificates required to be issued by the Chartered Accountants by preparing forged seals. He is also said to have impersonated himself as Chartered Accountant and prepared audit reports for monetary consideration. 4. Shri Brij Kishor Saxena, who was authorised by the appellant-Institute to do so, submitted complaint dated 18.3.2001 to the Station House Officer, Police Station, Betul with following allegations: "1) That the said Shri Vimal Kumar Surana is not registered with the Institute of Chartered Accountants of India as Chartered Accountants, but he being not a Chartered Accountant impersonated in the public as such, and performed such functions which are being performed by a Chartered Accountant. Whereas without being registered as Chartered Accountant, he is not legally authorized to perform the said functions before the Income Tax Department, under the provisions of Income Tax Act, 1961, he represented himself as legal representative. Similarly under Section 31 of the M.P. Trade Tax Act, 1995 he worked on the basis of Power of Attorney or as legal representative. In this manner he has worked contrary to the provision of Section 24 of the Chartered Accountants Act, 1949, which is punishable offence under section 24 of the Act. 2) That in the manner above mentioned, the said Shri Vimal Kumar Surana not being a Chartered Accountant, personated to the public as Chartered Accountant and in the same manner unauthorisedly worked, which is an offence under Section 419 of the Indian Penal Code. 3 3) That the said Shri Vimal Kumar Surana impersonated himself as the Chartered Accountant, prepared the audit reports; which are required to be issued under different provisions of law and obtained monitory consideration which is an offence under Section 420 of the Indian Penal Code. 4) That the said Shri Vimal Kumar Surana with the intention of cheating with a view to extract money by playing fraud upon the general public, prepared valuable documents such as audit reports, certificates required to be issued by Chartered Accountants for being used, which is punishable offence under Section 468 of the Indian Penal Code. 5) The said Shri Vimal Kumar Surana with a view to perform aforesaid acts prepared forged seals and used the same, which is an offence punishable under Section 472 of the Indian Penal Code. He is in possession of the seal which he uses as Chartered Accountant. Therefore, this act is punishable offence under Section 473 of the Indian Penal code." 5. After conducting investigation, the police filed challan in the Court of Chief Judicial Magistrate, Betul (hereinafter referred to as `the trial Court'), who passed order dated 10.3.2003 for framing charges against the respondent under Sections 419, 468, 471 and 472 IPC. The respondent challenged that order by filing revision under Section 397 of the Code of Criminal Procedure (Cr.P.C.). 1st Additional Sessions Judge, Betul allowed the revision, set aside order dated 10.3.2003 and remitted the case to the trial Court with the direction to decide whether there are sufficient grounds for framing charges under Sections 419, 420, 465, 467 and 473 IPC read with Sections 24 and 26 of the Act. After remand, the trial Court passed order dated 8.12.2003 and held that there was no basis for framing any charge 4 against respondent under the IPC. It further held that cognizance of offences under Sections 24 and 26 of the Act cannot be taken because no complaint had been filed by or under the order of the Council before the Magistrate. 6. The appellant questioned the correctness of orders dated 29.10.2003 and 8.12.2003 passed by 1st Additional Sessions Judge, Betul and the trial Court respectively by filing two separate revisions. The learned Single Judge of the High Court dismissed both the revisions. He held that even though prima facie case was made out against the respondent under Sections 24, 24A and 26 of the Act, the Magistrate could not have taken cognizance because no complaint was filed under Section 28 and the report submitted by the police could not be made basis for punishing him on the allegation of contravention of any of those provisions. The learned Single Judge also referred to Sections 2(d), 4, 5 and Section 195(1)(b)(ii) Cr.P.C. and held that in the absence of a complaint filed by the concerned Court, the Magistrate was not competent to frame charges against the respondent. The learned Single Judge also held that in view of the special mechanism contained in the Act for prosecution of a person violating Sections 24, 24A and 26 of the Act, he cannot be prosecuted under the IPC. 7. Shri U.U. Lalit, learned senior counsel appearing for the appellant argued that even though the provisions contained in Chapter VII of the Act 5 specify penalties for certain acts committed by a member of the Institute or a non member or a company, there is no bar against prosecution of such member, non member or company if he/it commits an offence under the IPC. Learned senior counsel invited our attention to the expression `without prejudice to any other proceedings, which may be taken against him' used in sub-section (2) of Sections 24A, 25 and 26 of the Act and argued that any person who contravenes these provisions can be punished by levy of fine and/or imprisonment and also prosecuted for offence(s) under the IPC. Learned senior counsel emphasized that while enacting Chapter VII of the Act, the legislature has designedly not excluded the applicability of the provisions contained in the IPC and argued that the learned Single Judge committed serious error by approving the orders of the trial Court and 1 st Additional Sessions Judge, Betul. 8. Shri R.P. Gupta, learned senior counsel appearing for the respondent argued that the Act is a special legislation and as specific penalties have been provided for contravention of Section 24 and sub-section (1) of Sections 24A, 25 and 26, the provisions contained in the IPC and Cr.P.C. cannot be invoked for prosecuting and punishing such person. Learned senior counsel further argued that the respondent could not have been prosecuted for the alleged contravention of sub-section (1) of Sections 24A and 26 of the Act because no complaint was filed against him under Section 6 28 of the Act. In support of this argument, the learned senior counsel relied upon the judgments of this Court in Jeewan Kumar Raut v. CBI (2009) 7 SCC 526 and Jamiruddin Ansari v. CBI (2009) 6 SCC 316. Learned counsel then submitted that this Court may not interfere with the impugned order because the allegations levelled against the respondent do not constitute any offence under the IPC. 9. Ms. Vibha Datta Makhija, learned counsel for the State of Madhya Pradesh relied upon the judgment of this Court in Maqbool Hussain v. The State of Bombay (1953) 4 SCR 730 and T.S. Baliah v. T.S. Rangachari (1969) 3 SCR 65 and argued that the offences specified in Sections 24 to 26 are distinct from the offences defined under Sections 419, 420, 465, 467, 468, 472 and 473 IPC and even if the complaint submitted by Brij Kishor Saxena cannot be treated as a complaint filed under Section 28 of the Act, his prosecution for offences defined under the IPC cannot be treated as barred. 10. The Chartered Accountants Act was enacted by Parliament to make provision for regulation of the profession of Chartered Accountants. Chapter I of the Act contains definitions of various terms. Chapter II contains provisions relating to incorporation of the Institute, entry of names in the Register, categorisation of the members of the Institute and certificate 7 of practice. Section 7 which also finds place in this Chapter declares that every member of the Institute in practice shall, and any other member may, use the designation of a chartered accountant and no member using such designation shall use any other description, whether in addition thereto or in substitution therefor. Section 8 enumerates the disabilities which disentitles a person to have his name entered in the Register. Section 9(1) which finds place in Chapter III postulates that there shall be a Council of the Institute for the management of the affairs of the Institute and for discharging the functions assigned to it. The other provisions contained in Chapter III regulate constitution of the Council of the Institute, establishment of Tribunal and their functions, etc. The provisions contained in Chapter IV mandates the Council to maintain a Register of the members of the Institute, inclusion of the particulars of the members and removal of the name of any member of the Institute from the Register. Chapter V consists of thirteen sections i.e. Sections 21 to 22G. Section 21(1) postulates establishment of a Disciplinary Directorate by the Council headed by an officer of the Institute designated as Director (Discipline). The main function of the Director (Discipline) is to scrutinize any information or complaint received against any member and place the same before the Disciplinary Committee. Sections 21A, 21B and 22A provide for constitution of a Board of Discipline, a Disciplinary Committee and an Appellate Authority. The main function of these bodies is to ensure that 8 expeditious action is taken against the members against whom allegations of misconduct are levelled and he gets fair opportunity to contest those allegations. An order passed by the Disciplinary Committee can be appealed against under Section 22G. Section 23 which finds place in Chapter VI provides for constitution and functions of Regional Councils. Chapter VII specifies the penalties, which can be imposed on a member, a non member and a company. Chapter VIIA contains provisions for establishment of Quality Review Board, functions of the Board, etc. and Chapter VIII contains miscellaneous provisions. Schedules I and II appended to the Act specify various acts of misconduct of a chartered accountant in practice. These Schedules obviously do not enumerate the wrong doings of a person who is not a member of the Institute. 11. Sections 2(1) (b), 24, 24A, 25, 26 and 28 of the Act, which have bearing on this case, read as under: "2. Interpretation (1) In this Act, unless there is anything repugnant in the subject or context,- (b) "chartered accountant" means a person who is a member of the Institute. 24. Penalty for falsely claiming to be a member, etc. Any person who - (i) not being a member of the Institute - 9 (a) represents that he is a member of the Institute; or (b) uses the designation Chartered Accountant; or (ii) being a member of the Institute, but not having a certificate of practice, represents that he is in practice or practises as a chartered accountant, shall be punishable on first conviction with fine which may extend to one thousand rupees, and on any subsequent conviction with imprisonment which may extend to six months or with fine which may extend to five thousand rupees, or with both. 24A. Penalty for using name of the Council, awarding degree of chartered accountancy, etc. (1) Save as otherwise provided in this Act, no person shall- (i) use a name or the common seal which is identical with the name or the common seal of the Institute or so nearly resembles it as to deceive or as is likely to deceive the public; (ii) award any degree, diploma or certificate or bestow any designation which indicates or purports to indicate the position or attainment of any qualification or competence similar to that of a member of the Institute; or (iii) seek to regulate in any manner whatsoever the profession of chartered accountants. (2) Any person contravening the provisions of subsection (1) shall, without prejudice to any other proceedings which may be taken against him, be punishable with fine which may extend on first conviction to one thousand rupees, and on any subsequent conviction with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both. 25. Companies not to engage in accountancy 10 (1) No company, whether incorporated in India or elsewhere, shall practise as chartered accountants. (2) If any company contravenes the provisions of sub-section (i), then, without prejudice to any other proceedings which may be taken against the company, every director, manager, secretary and any other officer thereof who is knowingly a party to such contravention shall be punishable with fine which may extend on first conviction to one thousand rupees, and on any subsequent conviction to five thousand rupees. 26. Unqualified persons not to sign documents (1) No person other than a member of the Institute shall sign any document on behalf of a chartered accountant in practice or a firm of such chartered accountants in his or its professional capacity. (2) Any person who contravenes the provisions of sub- section (1) shall, without prejudice to any other proceedings, which may be taken against him, be punishable on first conviction with a fine not less than five thousand rupees but which may extend to one lakh rupees, and in the event of a second or subsequent conviction with imprisonment for a term which may extend to one year or with fine not less ten thousand rupees but which may extend to two lakh rupees or with both. 28. Sanction to prosecute No person shall be prosecuted under this Act except on a complaint made by or under the order of the Council or of the Central Government." Sections 2(d), 4, 5 and 195 Cr.P.C. on which reliance has been placed by learned senior counsel for the respondent read as under: "2(d). "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. 11 Explanation. - A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant; 4. Trial of offences under the Indian Penal Code and other laws. - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into tried, and otherwise dealt with according to the provision hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 5. Saving. - Nothing contained in this Code shall in the absence of a specific provision to the contrary, affect any special or local law any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.- (1) No Court shall take cognizance- (a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or (ii) of any abetment of, attempt to commit, such offence, or (iii) of any criminal conspiracy to commit, such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b) (i) of any offence punishable under any of the following section of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to 12 have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub-clause (ii), except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of subsection (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from appealable decrees or sentences of such former Court, or in the case of a civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that- 13 (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed." 12. An analysis of Section 24 shows that if a person who is not a member of the Institute represents himself as a member of the Institute or uses the designation of chartered accountant then he is liable to be punished on first conviction with fine which may extend to Rs.1,000/-. On any subsequent conviction, he can be punished with imprisonment up to 6 months or fine which may extend to Rs.5,000/- or with both. Similar punishment can be imposed on a member of the Institute who does not have a certificate of practice but represents that he is in practice or practises as a chartered accountant. Sub-section (2) of Sections 24A, 25 and 26 provide for imposition of different kinds of punishment for violation of the provisions contained in sub-section (1) of those sections. The punishment prescribed under Section 24A can be imposed if a person uses a name or the common seal which is identical with the name or the common seal of the Institute or is almost similar to such seal and the use of such seal has the effect of deceiving or is likely to deceive the public. A person can also be punished if he awards any degree, diploma or certificate or bestow any designation 14 which indicates or purports to indicate position or attainment of any qualification or competence at par with a member of the Institute or if he seeks to regulate the profession of chartered accountants. Section 26 provides for imposition of punishment if a person other than a member of the Institute signs any document on behalf of a chartered accountant in practice or a firm of such chartered accountants in his or its professional capacity. Section 28 which is couched in negative form declares that no person shall be prosecuted under the Act except on a complaint made by or under the order of the Council or of the Central Government. 13. What is most significant to note is that prohibition contained in Section 28 against prosecution of a person except on a complaint made by or under the order of the Council or of the Central Government is attracted only when such person is sought to be prosecuted for contravention of the provisions contained in Section 24 or sub-section (1) of Sections 24A, 25 or 26 and not for any act or omission which constitutes an offence under the IPC. The use of expression `without prejudice to any other proceedings which may be taken against him' in sub-section (2) of Sections 24A and 26 and somewhat similar expression in sub-section (2) of Section 25 show that contravention of the provisions contained in sub-section (1) of those sections can lead to filing of complaint under Section 28 of the Act and if the particular act also amounts an offence under the IPC or any other law, then a 15 complaint can also be filed under Section 200 Cr.P.C. or a first information report lodged with the police under Section 156 Cr.P.C. The said expression cannot be given a restricted meaning in the context of professional and other misconducts which may be committed by a member of the Institute and for which he may be punished under Section 21B(3) because the violation of Sections 24 to 26 can be committed by a person who may or may not be a chartered accountant as defined in Section 2(b). In other words, if the particular act of a member of the Institute or a non member or a company results in contravention of the provisions contained in Section 24 or sub- section (1) of Sections 24A, 25 or 26 and such act also amounts criminal misconduct which is defined as an offence under the IPC, then a complaint can be filed by or under the order of the Council or of the Central Government under Section 28, which may ultimately result in imposition of the punishment prescribed under Section 24 or sub-section (2) of Sections 24A, 25 or 26 and such member or non member or company can also be prosecuted for any identified offence under the IPC. The object underlying the prohibition contained in Section 28 is to protect the persons engaged in profession of chartered accountants against false and untenable complaints from dissatisfied litigants and others. However, there is nothing in the language of the provisions contained in Chapter VII from which it can be inferred that Parliament wanted to confer immunity upon the members and non members from prosecution and punishment if the action of such 16 member or non member amounts to an offence under the IPC or any other law. 14. The issue deserves to be considered from another angle. If a person cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is (Section 416 IPC), then he can be charged with the allegation of cheating by personation and punished under Section 419 for a term which may extend to 3 years or with fine or both. If a person makes any false document with the intent to cause damage or injury to the public or to any person, or to support any claim or title, then he can be prosecuted for an offence of forgery (Section 463) and can be punished under Section 465 with imprisonment which may extend to 2 years or with fine or with both. If a person commits forgery for the purpose of intending that the document forged by him shall be used for the purpose of cheating then he can be punished with imprisonment for a term which may extend to 7 years and fine (Section 468). If a person makes or counterfeits any seal, plate or other instrument for making an impression, intending that the same shall be used for committing any forgery which would be punishable under Section 467 or with such intent, in his possession any such seal, plate or other instrument, knowing the same to be counterfeit then he is liable to be punished with imprisonment for life or with 17 imprisonment which may extend to 7 years. He shall also be liable to fine. The provisions contained in Chapter VII of the Act neither define cheating by personation or forgery or counterfeiting of seal, etc. nor provide for punishment for such offences. If it is held that a person acting in violation of Section 24 or contravening sub-section (1) of Sections 24A and 26 of the Act can be punished only under the Act even though his act also amounts to one or more offence(s) defined under the IPC and that too on a complaint made in accordance with Section 28, then the provisions of Chapter VII will become discriminatory and may have to be struck down on the ground of violation of Article 14. Such an unintended consequence can be and deserves to be avoided in interpreting Sections 24A, 25 and 26 keeping in view the settled law that if there are two possible constructions of a statute, then the one which leads to anomaly or absurdity and makes the statute vulnerable to the attack of unconstitutionality should be avoided in preference to the other which makes it rational and immune from the charge of unconstitutionality. That apart, the Court cannot interpret the provisions of the Act in a manner which will deprive the victim of the offences defined in Sections 416, 463, 464, 468 and 471 of his right to prosecute the wrong doer by filing the first information report or complaint under the relevant provisions of Cr.P.C. 18 15. We may add that the respondent could have been simultaneously prosecuted for contravention of Sections 24, 24A and 26 of the Act and for the offences defined under the IPC but in view of the bar contained in Article 20(2) of the Constitution read with Section 26 of the General Clauses Act, 1897 and Section 300 Cr.P.C., he could not have been punished twice for the same offence. In Maqbool Hussain v. The State of Bombay (supra), the Court considered the question whether the appellant who had brought gold from Jeddah in contravention of notification dated 25.8.1948 could have been prosecuted under Section 8 of the Foreign Exchange Regulation Act, 1947 after the gold had been confiscated by the authorities of the Customs Department under Section 167(8) of the Sea Customs Act, 1878. The appellant challenged his prosecution by contending that this amounted to infringement of his fundamental right under Article 20(2) of the Constitution. The Bombay High Court negatived his challenge. This Court upheld the order of the High Court and observed: "There is no doubt that the act which constitutes an offence under the Sea Customs Act as also an offence under the Foreign Exchange Regulation Act was one and the same viz. importing the gold in contravention of the notification of the Government of India dated 25th August, 1948. The appellant could be proceeded against under Section 167(8) of the Sea Customs Act as also under Section 23 of the Foreign Exchange Regulation Act in respect of the said act. The fundamental right which is guaranteed in Article 20(2) enunciates the principle of "autrefois convict" or "double jeopardy". The roots of that principle are to be found in the well established rule of the common law of England "that where a 19 person has been convicted of an offence by a court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence". (Per Charles, J. in Reg v. Miles). To the same effect is the ancient maxim "Nemo bis debet puniri pro uno delicto", that is to say that no one ought to be twice punished for one offence or as it is sometimes written "pro eadem causa", that is, for the same cause. This is the principle on which the party pursued has available to him the plea of "autrefois convict" or "autrefois acquit". "The plea of `autrefois convict' or `autrefois acquit' avers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned.... The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of `autrefois acquit' is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter." (Vide Halsbury's Laws of England, Hailsham Edition, Vol. 9, pp. 152 and 153, para 212). This principle found recognition in Section 26 of the General Clauses Act, 1897,-- `Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence,' and also in Section 403(1) of the Criminal Procedure Code, 1898, -- `A person who has been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been 20 made under Section 236, or for which he might have been convicted under Section 237'." The Court then referred to the provisions of the Sea Customs Act, 1878 and held: "We are of the opinion that the Sea Customs authorities are not a judicial tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy. It therefore follows that when the Customs authorities confiscated the gold in question neither the proceedings taken before the Sea Customs authorities constituted a prosecution of the appellant nor did the order of confiscation constitute a punishment inflicted by a court or judicial tribunal on the appellant. The appellant could not be said by reason of these proceedings before the Sea Customs authorities to have been "prosecuted and punished" for the same offence with which he was charged before the Chief Presidency Magistrate, Bombay, in the complaint which was filed against him under Section 23 of the Foreign Exchange Regulation Act." 16. In T.S. Baliah's case, the Court considered the question whether the appellant could be simultaneously prosecuted under Section 177 IPC and for violation of Section 52 of the Income Tax Act, 1922. After noticing Section 26 of the General Clauses Act, the Court held: "A plain reading of the section shows that there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be 21 punished twice for the same offence. We accordingly reject the argument of the appellant on this aspect of the case." 17. In State of Bombay v. S.L. Apte (1961) 3 SCR 107, the question that fell for consideration was whether in view of an earlier conviction and sentence under Section 409 IPC, a subsequent prosecution for an offence under Section 105 of Insurance Act, 1935, was barred by Section 26 of the General Clauses Act and Article 20(2) of the Constitution. This Court answered the question in following words: "To operate as a bar the second prosecution and the consequential punishment thereunder, must be for `the same offence'. The crucial requirement therefore for attracting the article is that the offences are the same, i.e., they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. . . . ... Though Section 26 in its opening words refers to `the act or omission constituting an offence under two or more enactments', the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to `shall not be liable to be punished twice for the same offence'. If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked." 18. In V.K. Agarwal v. Vasantraj B. Bhatia (1988) 3 SCC 467, this Court considered the question whether the acquittal of an accused 22 charged with having committed an offence punishable under Section 111 read with Section 135 of the Customs Act, 1962 create a legal bar to the subsequent prosecution of the said accused under Section 85 of the Gold (Control) Act, 1968. The Gujarat High Court answered the question in affirmative. This Court reversed the order of the High Court and observed: "It is therefore evident that the ingredients required to be established in respect of the offence under the Customs Act are altogether different from the ones required to be established for an offence under the Gold (Control) Act. In respect of the former, the prosecution has to establish that there was a prohibition against the import into Indian sea waters of goods which were found to be in the possession of the offender. On the other hand in respect of the offence under the Gold (Control) Act, it is required to be established that the offender was in possession of primary gold meaning thereby gold of a purity of not less than 9 carats in any unfinished or semi-finished form. In regard to the latter offence it is not necessary to establish that there is any prohibition against the import of gold into Indian sea waters. Mere possession of gold of purity not less than 9 carats in any unfinished or semi-finished form would be an offence under the Gold Control Act. It is therefore stating the obvious to say that the ingredients of the two offences are altogether different. Such being the case the question arises whether the acquittal for the offences under the Customs Act which requires the prosecution to establish altogether different ingredients operates as a bar to the prosecution of the same person in connection with the charge of having committed the offence under the Gold (Control) Act. .........In the present case the concerned Respondents could be found guilty of both the offences in the context of the possession of gold. If it was established that there was a prohibition against the import of gold and that he was found in possession of gold which he knew or had reason to 23 believe was liable to confiscation he would be guilty of that offence. He would also be guilty of an offence under the Gold (Control) Act provided the gold is of a purity of at least 9 carats. He would have violated the provisions of "both" the Customs Act and the Gold (Control) Act if the aforesaid ingredients were established. It is not as if in case he was found guilty of an offence under the Customs Act, he could not have been found guilty under the Gold (Control) Act or vice versa. Upon being found guilty of both the offences the court may perhaps impose a concurrent sentence in respect of both the offences but the court has also the power to direct that the sentence shall run consecutively. There is therefore no question of framing of an alternative charge one, under the Customs Act, and the other, under the Gold (Control) Act. If the ingredients of both the offences are satisfied the same act of possession of the gold would constitute an offence both under the Customs Act as also under the Gold (Control) Act. Such being the position it cannot be said that they could have been tried on the same facts for an alternative charge in the context of Section 236 Cr.P.C. at the time of the former proceedings. The submission urged in the context of Section 403(1) cannot therefore succeed for it cannot be said that the persons who are sought to be tried in the subsequent proceedings could have been tried on the same facts at the former trial under Section 236." 19. In State of Bihar v. Murad Ali Khan (1988) 4 SCC 655, the question considered by the Court was whether the complaint lodged by the competent officer alleging commission of offence under Section 9(1) read with Section 51 for killing elephants and removing its husk was maintainable notwithstanding the pendency of police investigation for an offence under Sections 447, 429 and 479 read with Sections 54 and 39 of the Act. After adverting to the relevant provisions, this Court held: 24 "What emerges from a perusal of these provisions is that cognizance of an offence under the "Act" can be taken by a court only on the complaint of the officer mentioned in Section 55. The person who lodged complaint dated June 23, 1986 claimed to be such an officer. In these circumstances even if the jurisdictional police purported to register a case for an alleged offence against the Act, Section 210(1) would not be attracted having regard to the position that cognizance of such an offence can only be taken on the complaint of the officer mentioned in that section. Even where a Magistrate takes cognizance of an offence instituted otherwise than on a police report and an investigation by the police is in progress in relation to same offence, the two cases do not lose their separate identity. The section seeks to obviate the anomalies that might arise from taking cognizance of the same offence more than once. But, where, as here, cognizance can be taken only in one way and that on the complaint of a particular statutory functionary, there is no scope or occasion for taking cognizance more than once and, accordingly, Section 210 has no role to play. The view taken by the High Court on the footing of Section 210 is unsupportable. We are unable to accept the contention of Shri R.F. Nariman that the specific allegation in the present case concerns the specific act of killing of an elephant, and that such an offence, at all events, falls within the overlapping areas between of Section 429 IPC on the one hand and Section 9(1) read with Section 50(1) of the Act on the other and therefore constitutes the same offence. Apart from the fact that this argument does not serve to support the order of the High Court in the present case, this argument is, even on its theoretical possibilities, more attractive than sound. The expression "any act or omission which constitutes any offence under this Act" in Section 56 of the Act, merely imports the idea that the same act or omission might constitute an offence under another law and could be tried under such other law or laws also. The proviso to Section 56 has also a familiar ring and is a facet of the fundamental and salutary principles that permeate penology and reflected in analogous provisions of Section 26 of General Clauses Act, 1897; Section 71 IPC; Section 300 CrPC 1973, and constitutionally guaranteed 25 under Article 20(2) of the Constitution. Section 26 of the General Clauses Act, 1897 provides: "26. Provision as to offences punishable under two or more enactments.--Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." Broadly speaking, a protection against a second or multiple punishment for the same offence, technical complexities aside, includes a protection against re- prosecution after acquittal, a protection against re- prosecution after conviction and a protection against double or multiple punishment for the same offence. These protections have since received constitutional guarantee under Article 20(2). But difficulties arise in the application of the principle in the context of what is meant by "same offence". The principle in American law is stated thus: "The proliferation of technically different offences encompassed in a single instance of crime behaviour has increased the importance of defining the scope of the offence that controls for purposes of the double jeopardy guarantee. Distinct statutory provisions will be treated as involving separate offences for double jeopardy purposes only if `each provision requires proof of an additional fact which the other does not' (Blockburger v. United States). Where the same evidence suffices to prove both crimes, they are the same for double jeopardy purposes, and the clause forbids successive trials and cumulative punishments for the two crimes. The offences must be joined in one indictment and tried together unless the defendant requests that they be tried separately. (Jeffers v. United States)" The expression "the same offence", "substantially the same offence" "in effect the same offence" or "practically the same", have not done much to lessen the difficulty in 26 applying the tests to identify the legal common denominators of "same offence". Friedland in Double Jeopardy (Oxford 1969) says at p. 108: "The trouble with this approach is that it is vague and hazy and conceals the thought processes of the court. Such an inexact test must depend upon the individual impressions of the judges and can give little guidance for future decisions. A more serious consequence is the fact that a decision in one case that two offences are `substantially the same' may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible...." In order that the prohibition is attracted the same act must constitute an offence under more than one Act. If there are two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred. In Leo Roy Frey v. Superintendent, District Jail, the question arose whether a crime and the offence of conspiracy to commit it are different offences. This Court said: (SCR p. 827) "The offence of conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences." 20. In State of Rajasthan v. Hat Singh (2003) 2 SCC 152, the Court considered the question whether the High Court was right in taking the view that the respondent could have been prosecuted either under Section 5 or Section 6(3) of the Rajasthan Sati (Prevention) Act, 1987 and not under both the sections. The High Court had ruled in favour of the 27 respondent. This Court reversed the judgment of the High Court, referred to Article 20(2) of the Constitution, the judgments in Maqbool Hussain v. The State of Bombay (supra), State of Bombay v. S.L. Apte (supra) and observed: "The rule against double jeopardy is stated in the maxim nemo debet bis vexari pro una et eadem causa. It is a significant basic rule of criminal law that no man shall be put in jeopardy twice for one and the same offence. The rule provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained in Section 26 of the General Clauses Act, 1897, Section 300 of the Code of Criminal Procedure, 1973 and Section 71 of the Indian Penal Code. Section 26 of the General Clauses Act provides: "26. Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." Section 300 CrPC provides, inter alia,-- "300. (1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub- section (2) thereof." Both the provisions employ the expression "same offence"." 28 The Court then proceeded to analyze the relevant sections of the Act and held that the offences under Sections 5 and 6(3) of the Act were distinct and there was no bar against prosecution of the respondent under Section 5 even though his prosecution under Section 6(3) had failed. 21. In view of the above discussion, the argument of the learned senior counsel appearing for the respondent that the Act is a special legislation vis- `-vis IPC and a person who is said to have contravened the provisions of sub-section (1) of Sections 24, 24A, 25 and 26 cannot be prosecuted for an offence defined under the IPC, which found favour with the High Court does not commend acceptance. 22. The judgments on which the learned senior counsel appearing for the respondent has placed reliance are clearly distinguishable. In Jamiruddin Ansari v. C.B.I. (supra), this Court was called upon to consider whether an order for investigation could be passed under Section 156(3) Cr.P.C. in a case involving violation of the provisions contained in the Maharashtra Control of Organised Crime Act, 1999. This Court referred to the provisions of Sections 9 and 23 of the Maharashtra Act and held that the Special Judge cannot take cognizance of any offence under that Act unless sanction has been given by a police officer not below the rank of Additional Director General of Police. The Court further held that the provisions contained in 29 the Maharashtra Act have overriding effect and Section 156(3) cannot be invoked for ordering special inquiry on a private complaint. Paragraphs 65 (part), 67 and 68 of the judgment, which contain this conclusion, reads as under: "The wording of sub-section (2) of Section 23 leaves no room for doubt that the learned Special Judge cannot take cognizance of any offence under MCOCA unless sanction has been previously given by the police officer mentioned hereinabove. In such a situation, even as far as a private complaint is concerned, sanction has to be obtained from the police officer not below the rank of Additional Director General of Police, before the Special Judge can take cognizance of such complaint. We are also inclined to hold that in view of the provisions of Section 25 of MCOCA, the provisions of the said Act would have an overriding effect over the provisions of the Criminal Procedure Code and the learned Special Judge would not, therefore, be entitled to invoke the provisions of Section 156(3) CrPC for ordering a special inquiry on a private complaint and taking cognizance thereupon, without traversing the route indicated in Section 23 of MCOCA. In other words, even on a private complaint about the commission of an offence of organised crime under MCOCA cognizance cannot be taken by the Special Judge without due compliance with sub-section (1) of Section 23, which starts with a non obstante clause. As indicated hereinabove, the provisions of Section 23 are the safeguards provided against the invocation of the provisions of the Act which are extremely stringent and far removed from the provisions of the general criminal law. If, as submitted on behalf of some of the respondents, it is accepted that a private complaint under Section 9(1) is not subject to the rigours of Section 23, then the very purpose of introducing such safeguards lose their very raison d'jtre. At the same time, since the filing of a private complaint is also contemplated under Section 9(1) of MCOCA, for it to be entertained it has also to be subject to the rigours of Section 23. Accordingly, in view of 30 the bar imposed under sub-section (2) of Section 23 of the Act, the learned Special Judge is precluded from taking cognizance on a private complaint upon a separate inquiry under Section 156(3) CrPC. The bar of Section 23(2) continues to remain in respect of complaints, either of a private nature or on a police report." The question which fell for consideration in Jeewan Kumar Raut v. C.B.I. (supra) was whether the Transplantation of Human Organs Act, 1994 (for short, `the 1994 Act') is a special law and has overriding effect qua the provisions of the IPC. This Court referred to Sections 18, 19 and 22 of the 1994 Act and observed: "TOHO being a special statute, Section 4 of the Code, which ordinarily would be applicable for investigation into a cognizable offence or the other provisions, may not be applicable. Section 4 provides for investigation, inquiry, trial, etc. according to the provisions of the Code. Sub-section (2) of Section 4, however, specifically provides that offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, tried or otherwise dealing with such offences. TOHO being a special Act and the matter relating to dealing with offences thereunder having been regulated by reason of the provisions thereof, there cannot be any manner of doubt whatsoever that the same shall prevail over the provisions of the Code. The investigation in terms of Section 13(3)(iv) of TOHO, thus, must be conducted by an authorised officer. Nobody else could do it. For the aforementioned reasons, the officer in charge of Gurgaon Police Station had no other option but to hand over the investigation to the appropriate authority. Section 22 of TOHO prohibits taking of cognizance except on a complaint made by an appropriate authority or the person who had made a complaint earlier to it as laid down therein. The 31 respondent, although, has all the powers of an investigating agency, it expressly has been statutorily prohibited from filing a police report. It could file a complaint petition only as an appropriate authority so as to comply with the requirements contained in Section 22 of TOHO. If by reason of the provisions of TOHO, filing of a police report by necessary implication is necessarily forbidden, the question of its submitting a report in terms of sub-section (2) of Section 173 of the Code did not and could not arise. In other words, if no police report could be filed, sub-section (2) of Section 167 of the Code was not attracted. It is a well-settled principle of law that if a special statute lays down procedures, the ones laid down under the general statutes shall not be followed. In a situation of this nature, the respondent could carry out investigations in exercise of its authorisation under Section 13(3)(iv) of TOHO. While doing so, it could exercise such powers which are otherwise vested in it. But, as it could not file a police report but a complaint petition only; sub-section (2) of Section 167 of the Code may not be applicable." 23. The language of the provisions, which were interpreted in the above noted two judgments was not similar to sub-section (2) of Sections 24A, 25 and 26 of the Act which, as mentioned above, contain the expression `without prejudice to any other proceedings, which may be taken'. Therefore, the ratio of those judgments cannot be relied upon for sustaining the impugned order. 24. It is also apposite to mention that except the provision contained in Section 28 against the prosecution of a person, who is alleged to have acted in contravention of sub-section (1) of Sections 24, 24A, 25 or 26 otherwise 32 then on a complaint made by or under the order of the Council or the Central Government, the Act does not specify the procedure to be followed for punishing such person. In the absence of any such provision, the procedure prescribed in Cr.P.C. has to be followed for inquiry, investigation and trial of the complaint which may be filed for contravention of any of the provisions contained in Chapter VII of the Act - Section 4 Cr.P.C. 25. The submission of Shri Gupta that the respondent cannot be prosecuted for offences defined under the IPC because no complaint had been filed against him by the concerned Court or authority as per the requirement of Section 195(1)(b)(ii) Cr.P.C. sounds attractive but lacks merit. The prohibition contained in Section 195 Cr.P.C. against taking of cognizance by the Court except on a complaint in writing made by the concerned Court before which the document is produced or given in a proceeding is not attracted in the case like the present one because the officers of the Income Tax Department and the authorities constituted under the Madhya Pradesh Trade Tax Act, 1995 before whom the respondent is alleged to have acted on the basis of power of attorney or as legal representative or produced audit report do not fall within the ambit of the term `Court' as defined in Section 195(3) Cr.P.C. Such officer/authorities were neither discharging the functions of a Civil, Revenue or Criminal Court nor they could be treated as tribunal constituted by or under the Central or 33 State Act, which is declared to be a Court for the purpose of Section 195. This provision was analysed and interpreted by the Constitution Bench in Iqbal Singh Marwah v. Meenakshi Marwah (2005) 4 SCC 370. The Constitution Bench referred to other provisions of Cr.P.C. and considered earlier judgments and observed: "The scheme of the statutory provision may now be examined. Broadly, Section 195 CrPC deals with three distinct categories of offences which have been described in clauses (a), (b)(i) and (b)(ii) and they relate to (1) contempt of lawful authority of public servants, (2) offences against public justice, and (3) offences relating to documents given in evidence. Clause (a) deals with offences punishable under Sections 172 to 188 IPC which occur in Chapter X IPC and the heading of the Chapter is -- "Of Contempts of the Lawful Authority of Public Servants". These are offences which directly affect the functioning of or discharge of lawful duties of a public servant. Clause (b)(i) refers to offences in Chapter XI IPC which is headed as -- "Of False Evidence and Offences Against Public Justice". The offences mentioned in this clause clearly relate to giving or fabricating false evidence or making a false declaration in any judicial proceeding or before a court of justice or before a public servant who is bound or authorised by law to receive such declaration, and also to some other offences which have a direct correlation with the proceedings in a court of justice (Sections 205 and 211 IPC). This being the scheme of two provisions or clauses of Section 195 viz. that the offence should be such which has direct bearing or affects the functioning or discharge of lawful duties of a public servant or has a direct correlation with the proceedings in a court of justice, the expression "when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court" occurring in clause (b)(ii) should normally mean commission of such an offence after the document has actually been produced or given in evidence in the court. The situation or contingency where an offence as enumerated in this clause has already been committed earlier 34 and later on the document is produced or is given in evidence in court, does not appear to be in tune with clauses (a)(i) and (b)(i) and consequently with the scheme of Section 195 CrPC. This indicates that clause (b)(ii) contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any court. Section 195(1) mandates a complaint in writing to the court for taking cognizance of the offences enumerated in clauses (b)(i) and (b)(ii) thereof. Sections 340 and 341 CrPC which occur in Chapter XXVI give the procedure for filing of the complaint and other matters connected therewith. The heading of this Chapter is -- "Provisions as to Offences Affecting the Administration of Justice". Though, as a general rule, the language employed in a heading cannot be used to give a different effect to clear words of the section where there cannot be any doubt as to their ordinary meaning, but they are not to be treated as if they were marginal notes or were introduced into the Act merely for the purpose of classifying the enactments. They constitute an important part of the Act itself, and may be read not only as explaining the sections which immediately follow them, as a preamble to a statute may be looked to explain its enactments, but as affording a better key to the constructions of the sections which follow them than might be afforded by a mere preamble. (See Craies on Statute Law, 7th Edn., pp.207, 209.) The fact that the procedure for filing a complaint by court has been provided in Chapter XXVI dealing with offences affecting administration of justice, is a clear pointer to the legislative intent that the offence committed should be of such type which directly affects the administration of justice viz. which is committed after the document is produced or given in evidence in court. Any offence committed with respect to a document at a time prior to its production or giving in evidence in court cannot, strictly speaking, be said to be an offence affecting the administration of justice." 35 The Court then referred to Section 195 of the Code of Criminal Procedure, 1898, the Full Bench judgment of the Allahabad High Court in Emperor v. Kushal Pal Singh AIR 1931 Allahabad 443 and observed: "The Court clearly rejected any construction being placed on the provision by which a document forged before the commencement of the proceeding in which it may happen to be used in evidence later on, to come within the purview of Section 195, as that would unreasonably restrict the right to initiate prosecution possessed by a person and recognised by Section 190 CrPC. The aforesaid decision was considered in Raghunath v. State of U.P. Here, the accused had obtained sale deed of the property of a widow by setting up of an impostor and thereafter filed a mutation application before the Tahsildar. The widow contested the mutation application on the ground that she had never executed the sale deed and thereafter filed a criminal complaint under Sections 465, 468 and 471 IPC in which the accused were convicted. In appeal, it was contended that the private complaint was barred by virtue of Section 195(1)(c) CrPC and the Revenue Court alone could have filed the complaint. The Court repelled the aforesaid contention after relying upon the ratio of Patel Laljibhai v. State of Gujarat and the private complaint was held to be maintainable. In Mohan Lal v. State of Rajasthan the abovenoted two decisions were relied upon for holding that provisions of Section 195(1)(c) (old Code) would not be applicable where mutation proceedings were commenced after a Will had been forged. In Legal Remembrancer, Govt. of W.B. v. Haridas Mundra, Bhagwati, J. (as His Lordship then was), speaking for a three-Judge Bench observed that earlier there was divergence of opinion in various High Courts, but the same was set at rest by this Court in Patel Laljibhai Somabhai and approved the view taken therein that the words of Section 195(1)(c) clearly meant the offence alleged to have been committed by a party to the proceeding in his character as such party i.e. after having become a party to the proceeding, and Sections 195(1)(c), 476 and 476-A (of the old Code) read together indicated beyond doubt that the legislature could not have intended to extend the prohibition contained in Section 195(1)(c) to the offences mentioned in the said section when 36 committed by a party to a proceeding prior to his becoming such party. Similar view has been taken in Mahadev Bapuji Mahajan v. State of Maharashtra where the contention that the absence of a complaint by the Revenue Court was a bar to taking cognizance by the criminal court in respect of offences under Sections 446, 468, 471 read with Section 120-B IPC which were committed even before the start of the proceedings before the Revenue Court, was not accepted. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in court, is capable of great misuse. As pointed out in Sachida Nand Singh after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large." The attention of the High Court does not appear to have been invited to the aforesaid judgment of the Constitution Bench and this is the reason that the High Court declared that the complaint filed by Brij Kishor Saxena was not maintainable because the same was not filed in accordance with Section 195(1)(b)(ii) Cr.P.C. 26. Although, Shri Gupta argued that the allegations levelled against the respondent do not constitute any offence under Sections 419, 420, 465, 467, 468, 472 and 473 IPC, we do not consider it necessary to deal with this point 37 because the High Court did not sustain the orders challenged before it on that ground. 27. In the result, the appeals are allowed. The impugned order is set aside and the matter is remitted to the trial Court for considering whether the allegations contained in the complaint lodged by Brij Kishor Saxena constitute any offence under the IPC. If the trial Court comes to the conclusion that the allegations do constitute one or more offence(s), then it shall proceed against the respondent in accordance with law. However, it is made clear that in the absence of a complaint having been filed under Section 28, no charges be framed against the respondent for the alleged contravention of Sections 24, 24A or 26 of the Act. .................................J. [G.S. Singhvi] ............................. .....J. [Asok Kumar Ganguly] New Delhi December 01, 2010.

Evidence Act, 1872: s.118 - Testimony of child witness - Conviction by trial court based on evidence of child witness - Acquittal by High Court discarding such evidence - On appeal, Held: Trial court recorded that the child was capable of understanding the questions put to him and was capable of giving rational answers to those questions and was competent to testify before Court - High Court did not indicate why reasoning of trial court was deficient - Matter remanded to High Court for consideration afresh - Appeal against acquittal. The High Court discarded the evidence of child witness and reversed the order of conviction passed by trial court. Hence the appeal against acquittal. =Allowing the appeal and remitting the matter to High Court, the Court HELD: 1. The High Court failed to notice that the Additional Sessions Judge referred to all relevant aspects in detail. It was recorded that when the Court had put preliminary questions to the child who appeared to be of tender age, it was revealed that the witness was capable of understanding the questions put to him and was capable of giving rational answers to those questions. He knew the difference between the truth and the falsehood and knew that only truth has to be deposed before the Court. He also knew the consequences of deposing falsely. Therefore, the Court was of the opinion that the witness was competent to testify before the Court. [Para 4] [734-D-G] Nivrutti Pandurang Kokate and Ors. v. State of Maharashtra 2008 (12) SCC 565 and Golla Yelugu Govindu v. State of Andhra Pradesh 2008(4) SCALE 569, relied on. 2. The Evidence Act, 1872 does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease - whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. Therefore without even indicating as to how conclusions of the trial court were in any manner deficient or insufficient, the High Court ought not to have, on abrupt conclusions, directed acquittal. [Paras 6 and 9] [735-A-C; 736-E-F] Suryanarayana v. State of Karnataka 2001 (9) SCC 129; Dattu Ramrao Sakhare v. State of Maharashtra (1997) 5 SCC 341 and Ratansingh Dalsukhbhai Nayak v. State of Gujarat 2004 (1) SCC 64, relied on. Wheeler v. Unites States (159 US 523), referred to. Case Law Reference: 2008 (12) SCC 565 relied on Para 5 2008(4) SCALE 569 relied on Para 5 2001 (9) SCC 129 relied on Para 6 (1997) 5 SCC 341 relied on Para 7 2004 (1) SCC 64 relied on Para 8 159 US 523 referred to Para 6 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 203 of 2005. From the Judgment & Order dated 13.08.2003 of the High Court of Karnataka at Bangalore in Criminal Appeal No. 85 of 2000. Anil Kr. Mishra, Rohen Singh, Nishant Mishra and Aditya Jain (for Sanjay R. Hadge) for the Appellant. Vibha Datta Makhija (A.C.) and Ramesh Chandra Pandey for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.203 OF 2005 State of Karnataka ...Appellant Versus Shantappa Madivalappa Galapuji and Ors. ...Respondents JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is by the State of Karnataka to the judgment of a Division Bench of the Karnataka High Court allowing the appeal filed by the respondents. Four respondents faced trial for alleged commission of offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code, 1860 (in short the `IPC') and were sentenced by learned II Additional Sessions Judge, Belgaum. The High Court by the impugned judgment has set aside the conviction. 2. The prosecution version as unfolded during trial is as follows: The complainant is the native of Biraladinni village in Basavanabagewadi Taluk in Bijapur District and he is residing at Bijapur. He owned landed and house properties. His father and younger brother are looking after the agriculture. The complainant though is residing in Bijapur, visits Biraladinni village once every week. He has got two younger sisters and one brother. Annapurna is one of the sisters. The marriage of Annapurna took place with Shantappa (A.1). The said Annapurna after the marriage went to the house of A.1 to lead marital life. She gave birth to three children. The brother of A.l who is A.2 is residing in Ainapur Village since 10 years and he is residing in Gubbimaddi land after erecting a hut. Along with him A.3 and A.4 are also residing. A.1 is addicted to bad vices 2 like drinking liquor and he always used to pick up quarrel with the complainant's sister i.e., Annapurna. About one year prior to the death of Annapurna, A.1 had brought the deceased Annapurna and her children to Beeraladinni and left them in her parents' place. About three months prior to the incident, A.1 had come to Beeraladdinni village and requested the complainant and his family members that he will take his wife and children and he will look after them properly. He also told them that he will take them to Ainapur Village. Then he took the deceased Annapurna and his son Suresh to Ainapur. On 31.12.1994 i.e., on Saturday as it was a holiday, the complainant had come to Beeraladinni Village. At about 8 p.m, on that day, one Siddappa of their village came to the complainant and told him that he had gone to Dhavalagi Village on that day and there A.2 had met him and told him that on 29.12.1994 at about 11 p.m., Annapurna had died. He has also told him that A1 was to be informed. After hearing this, the com- plainant, on the next morning, along with Siddappa went to Ainapur Village and went to the hut where the accused were residing and asked the accused as to how his sister had died and as the accused did not give any satisfactory answer, he asked his sister's son i.e., Suresh about the incident. He was about 9 years old then. Suresh told him that on that day i.e., on 29.12.1994 after taking food, his mother was making preparations to sleep. At about 11 3 p.m., his father P.1 picked up a quarrel stating that she is having illicit relations with somebody and also said that she should leave such habits. At that time, his mother Annapurna said that she has not acted like that. A.1 went inside the house and brought other accused and also brought a rope and after that all the accused made the deceased Annapurna lie on the ground and meanwhile A.3 and A.4 caught hold of her hands. A.2 held both the legs of the deceased and then A.1 tying the rope to the neck of the deceased pulled it and then the deceased died on the spot, Then A.1 took Suresh inside the house and threatened him not to tell the fact to anybody and thereafter, the dead body of the deceased was taken away and it was burnt. After hearing this from Suresh, the complainant went to Biraladdinni Village and informed the said fact to the parents and others and on the next day morning he went to the police station and filed his written complaint against the accused and the A.S.I, who was incharge of the police station, received the complaint and registered a case in Cr.No.2/95 under Sections 302, 201 read with Section 34 I.P.C. and then sent F.I.R. to the court and thereafter, took up further investigation and visited the scene of offence, drew panchanama of the scene of offence as shown by Suresh and thereafter three accused were arrested. After completion of investigation charge sheet was filed. 4 Since the accused persons pleaded innocence trial was held. The trial Court placed reliance on the evidence of the PWs and directed conviction. By the impugned judgment the High Court held that the prosecution version is not established and the evidence of the witnesses cannot be termed as credible. 3. In support of the appeal, learned counsel for the appellant-State submitted that the High Court has by a cryptic and non-reasoned order set aside the judgment of conviction. Since the judgment of acquittal was challenged, and none appeared for the respondents, Ms. Vibha Datta Makhija was appointed as Amicus Curiae. It is to be noted that there were 16 witnesses examined. PW-1 who was younger brother of the deceased spoke as to what PW-2 had narrated to him. PW-2 is a child witness who was the son of the deceased. He categorically stated the facts of incident and had identified the rope used during the incident. PW-3, the neighbour of the accused stated that he had attempted to bury the dead body as per the custom while the same was to be burnt. PW-4 stated that the accused told him that the deceased had died of heart attack. PW-7 is the person who informed PW-1 about the death of the deceased. He also spoke about PW-2 narrating the incident to him. PWs 10 and 11 spoke about frequent quarrels 5 between the deceased and A-1. The only reason which apparently weighed with the High Court to discard the evidence of PW-2 is that PW-1 was an Advocate and PW-2 was staying with him and therefore his evidence appeared to be tutored. It also noted about the delay in filing F.I.R. 4. The so called delay in lodging the FIR was also explained by PW-1. It is to be noted that out of 19 typed pages of the order, forming special leave petition 18 pages have been devoted to recital of the evidence of witnesses and thereafter there is an abrupt conclusion to discard the evidence of PW-2 on the presumption that he was tutored as his uncle PW-1 was an advocate. It is also observed that it is not known what the learned Additional Sessions Judge asked the child witness to test his knowledge. Unfortunately, the High Court failed to notice that the learned Additional Sessions Judge has referred to all relevant aspects in detail. It has been recorded that when the Court put preliminary questions to the child who appeared to be of tender age, it was revealed that the witness was capable of understanding the questions put to him and was capable of giving rational answers to those questions. He knew the difference between the truth and the falsehood and knew that only truth has to be deposed before the Court. He also knew the 6 consequences of deposing falsely. Therefore, the Court was of the opinion that the witness was competent to testify before the Court. 5. The position in law relating to the evidence of child witness has been dealt with by this Court in Nivrutti Pandurang Kokate and Ors. v. State of Maharashtra (2008 (12) SCC 565), and Golla Yelugu Govindu v. State of Andhra Pradesh (2008 (4) SCALE 569). 6. The Indian Evidence Act, 1872 (in short "the Evidence Act") does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease -- whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J. in Wheeler v. United States (159 US 523). The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such 7 evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. [See Suryanarayana v. State of Karnataka (2001 (9) SCC 129)] 7. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341] it was held as follows: (SCC p. 343, para 5): "A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored." The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary 8 because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. 8. The above position was highlighted in Ratansingh Dalsukhbhai Nayak v. State of Gujarat (2004(1) SCC 64). Looked at from any angle the judgments of the trial court and the High Court do not suffer from any infirmity to warrant interference. 9. In view of the foregoing conclusions without even indicating as to how conclusions of the trial Court were in any manner deficient or insufficient, the High Court ought not to have, on abrupt conclusions, directed acquittal. 10. In the circumstances we deem it proper to set aside the impugned judgment and remand the matter to the High Court to consider the matter afresh and dispose of the appeal indicating reasons. 9 11. The appeal is allowed. ........................................J. (Dr. ARIJIT PASAYAT) ........................................J. (ASOK KUMAR GANGULY) New Delhi, April 20, 2009 10