M.J. Zakharia Sait Vs. T.M. Mohammed & Ors [1990] INSC 161 (25 April 1990)
Sawant, P.B. Sawant, P.B. Sharma, L.M. (J)
CITATION: 1990 SCR (2) 719 1990 SCC (3) 396 JT 1990 (2) 404 1990 SCALE (1)816
ACT:
Representation of People Act, 1951: Sections 40, 83, 100, 123(4) and 127-A.
Election--Corrupt practice--Pleadings and proof of--Requirements-Oral testimony--Corroboration by contempo- raneous documents-Need for.
Statement maligning personal character and conduct of candidate-Innuendo meaning to be proved by special or ex- trinsic facts-Statements must be proved to have been reason- ably calculated to prejudice the prospects of the candidate.
Electoral offence--Complaint under s. 127-A of the Act and s. 171/PC--Evidence of corrupt practice.
Libel action and corrupt practice--Difference between.
Status of election agent--Almost similar to that of candi- date.
HEAD NOTE:
In the 1987 election to Kerala Legislative Assembly the appellant contested against the first respondent.
The appellant and respondents belonged to two different fronts, each consisting of several political parties. The appellant was declared elected, by a margin of 1873 votes over his nearest rival, the first respondent.
The first respondent filed an election petition in the High Court claiming that the appellant's election was void and that he should be declared elected in place of the appellant. In support of his contention, he alleged various corrupt practices on the part of the appellant. The High Court negatived all except two of the allegations, viz., (i) printing and publication on March 22, 1987, a day prior to the election, pamphlets containing a news item in daily "Malayala Manorama" dated May 22, 1983, and (ii) publication of a wail poster, maligning the 720 personal character and conduct of the first respondent.
The High Court held that both the said acts amounted to corrupt practices within the meaning of Section 123(4) of the Representation of People Act, 1951 and were sufficient to void the election.
This appeal under s. 116A of the Representation of People Act, is against the High Court's judgment.
Allowing the appeal, this court,
HELD:
1.1. As regards the pamphlets, the first respond- ent in his election petition had relied upon an innuendo, and the innuendo was based upon the fact that, firstly, he was a Marxist leader and, secondly, he was arrested for harbouring the murderers. However, in the election petition, no averment was made that it was because he was a Marxist leader and was also arrested for harbouring the murderers that the electorate was likely to construe the said two statements as accusing him as the murderer. No facts were pleaded in the Election Petition whereby the electorate would gather an impression that the first respondent was the murderer of the said four victims. [733B-C; 746 E-F]
1.2. Barring his own testimony, all other evidence led by the first respondent is also totally silent on this aspect of the matter. None of his witnesses has stated anywhere that the contents of the pamphlet had made out the first respondent as the murderer of the four victims or even that they were capable of doing so. On the other hand, all his witnesses without exception are unanimous that after reading the pamphlet the impression it created on them was that it referred to an incident which had taken place on the previous day or to an earlier incident and nothing more.
None of the witnesses has stated that the said pamphlet even remotely connected the first respondent with the murders.
The impression conveyed by the document that the Marxists or Communists were murderers and therefore the electorate should not vote for them and hence it was unfavourable to the first respondent, was not an impression about his per- sonal character/ conduct. It was an impression at best about his political character/ conduct. In particular there was no impression that he was the murderer or one of the murderers.
Although the first respondent has also added at the end that many persons who gathered such an impression, viz., that he was meant by the publication, had contacted him over phone, he admitted that he did not examine anyone from among the said persons. This is a telling circumstance against him because he had 721 followed as a witness after all his witnesses were examined, and he knew that none of his witnesses had stated that they had connected the imputations in the publication with him.
On the other hand, as stated earlier, not only all his witnesses had stated that they had gathered the impression that the incident had taken place the previous day but he himself was of the view that the publication was meant to create such impression and that it did so. Hence, there was no reason for the electorate to connect him with the said incident even remotely. On his own testimony as well as on the testimony of his witnesses, therefore, it is clear that the publication was intended to create an impression and did create an impression that the incident of murders had taken place a day previous to the election. If that is so, then the publication and the two allegedly offending statements in the same did not connect him with the murders much less had they called him a murderer. Even his arrest for harbour- ing the accused in the old incident of murders was not capable of identifying him as the murderer in the eyes of the people. None knew who were the accused and who were arrested in connection with the murders which were committed the previous day. The people, however, certainly knew that the first respondent was not arrested in connection with the said murders. Hence the extrinsic facts which the first respondent stated in his testimony for the first time even if they were given in the pleadings would not have spelt out the corrupt practice. For those facts in the face of the assertion of the first respondent himself were incapable of identifying him as the murderer in the eyes of the elector- ate. For these reasons, the extrinsic facts given for the first time by the first respondent in his testimony were incapable of identifying him as the hand behind the murders or as the murderer in the eyes of the people. [746F-H; 751A-B; 755D-H; 756A-B]
1.3. In the absence of the extrinsic facts supporting the innuendo meaning of the publication, the petition lacked the statement of material facts for spelling out the corrupt practice complained of. Either, therefore, the allegation of the corrupt practice should have been struck off or the petitioner ought not to have been allowed to lead evidence in support of it. [756C]
2.1. Where the defamatory words complained of are not defamatory in the natural or ordinary meaning, or in other words, they are not defamatory per se but are defamatory because of certain special or extrinsic facts which are in the knowledge of particular persons to whom they are ad- dressed, such innuendo meaning has to be pleaded and proved specifically by giving the particulars of the said extrinsic facts. It is immaterial in such cases as to whether the action is for 722 defamation or for corrupt practice in an election matter, for in both cases it is the words complained of together with the extrinsic facts which constitute the cause of action. It is true that Section 123(4) of the Act states that the statement of fact in question must be "reasonably calculated to prejudice the prospects" of the complaining candidate's election. However, unless it is established that the words complained of were capable of being construed as referring to the personal character or conduct of the candi- date because of some specific extrinsic facts or circum- stances which are pleaded and proved, it is not possible to hold that they were reasonably calculated to prejudice his prospects in the elections. For, in the absence of the knowledge of the special facts on the part of the elector- ate, the words complained of cannot be held to be reasonably calculated to prejudice such prospects. Once, however, it is proved by laying the foundation of facts that the words in question were, by virtue of the knowledge of the special facts, likely to be construed by the electorate as referring to the personal character or conduct of the complaining candidate, it may not further be necessary to prove that in fact the electorate had understood them to be so. That is because all that Section 123(4) requires is that the person publishing the complaining words must have intended and reasonably calculated to affect the prospects of the com- plaining candidate in the election. [745E-H; 746A-B]
2.2. Whenever an innuendo is alleged, a statement of material facts as required by Section 83(i)(a) of the Act is not complete without stating the extrinsic facts spelling out the innuendo meaning. It is the publication together with the extrinsic facts which in such circumstances consti- tute the corrupt practice. The absence of the statement of such facts is not an absence of the particulars of corrupt practice but an absence of the averment of material facts themselves.
Sheopat Singh v. Ram Pratap, [1965] 1 SCR 175; Kumara Nand v. Brijmohan Lal Sharma, [1967] 2 SCR 127; Habib Bhai v. Pyarelal & Ors., AIR 1964 MP 62; Manmohan Kalia v. Yash & Ors., [1984] 3 SCR 383; W. Hay & Ors. v. Aswini Kumar Saman- ta, AIR 1958 Cal. 269; Hough v. London Express Newspaper Ltd., [1940] 3 All ER 31; Fullam v. Newscastle Chronicle and Journal Ltd. & Anr., [1977] 3 All ER 32; Cassidy v. Daily Mirror Newspapers, [1929] 2 KB 331; Nevill v. Fine Art and General Insurance Co. Ltd., L.R. 1887 AC 68 and Capital and Counties Bank Ltd. v. George Henty & Sons, LR 1882 7 AC 741, referred to.
Halsbury's Laws of England, Vol. 28, 4th Edn. paras 174-178; Gatley on Libel and Slander, 8th Edn. paragraph 95;
Street on Torts, 723 6th Edn., p. 294 and Duncan & Neil on Defamation, [1978] Edn., p. 17, referred to.
3. Both, for libel action as well as for an allegation of corrupt practice in an election petition, it is necessary to plead as well as to prove the extrinsic facts to spell out the innuendo meaning of the words complained of. Howev- er, whereas in a libel action it may further be necessary to prove that those with special knowledge of the extrinsic facts were likely to interpret or understand the words complained of in a defamatory sense, in an election action, it may not be necessary to do so and all that is necessary is to prove that the words complained of were reasonably calculated to prejudice the prospects of the defamed candi- date's election. However, this latter distinction does not obliterate the similarity between the two actions viz., that in each case in the first instance the defamation is to be spelt out by pleading the necessary extrinsic facts. In a libel action, the extrinsic facts constitute a cause of action whereas in the election action they constitute the corrupt practice. In other words, without them, there is no cause of action in the libel suit and no allegation of corrupt practice in an election petition. [756F-H; 757A]
4.1. As regards the wail-posters in which the first respondent was described as a murderer and it is stated that hence he should be defeated, the first respondent in his petition has stated generally that it was the appellant, his agents and his workers who had pasted the wallposters. He has not specified any wail or wails on which the poster was pasted. He has not mentioned either the agent or the elec- tion agent nor did he state that the pasting was done with the knowledge and consent of the election agent. It is important to note that he mentioned the pasting of the poster only on one wail, though there was a vague reference to "walls". [761F-H; 765B]
4.2. Time and again, the courts have uttered a warning against the acceptance of a non-corroborted oral testimony in an election matter because it is not only difficult to get a non-partisan witness but is also easy to procure partisan witnesses in such disputes. The courts have, there- fore, insisted upon some contemporaneous documentary evi- dence to corroborate the oral testimony when in particular such evidence could have been maintained. Such a danger is illustrated by the testimony of PW. 25 in the instant case.
It is not only contradictory, and fails to impress this court but also leads to the belief that there is much force in the contention of the appellant that the poster in ques- tion was concocted at a later day. It is difficult to ex- plain as to why the witness a 724 professional photographer who in the ordinary course should maintain his accounts and other documents should keep them off from the court on pretexts which are not only far from convincing but positively doubtful. Although he stated that he was paid Rs.8,00 for the photographs and Rs.1,000 for copies thereof, he did not enter the amounts in his ac- counts. He stated that he had a Bank account but he did not remit the amount to the Bank. He then stated that in his studio there would be no record to show that the photographs were taken. He also stated that he had not given any receipt for receiving the payment. [764G-H; 767A-D]
4.3. "Election agent" as defined in Section 40 of the Act is accorded a special status of almost an alter ego of the candidate so much so that whatever is done by the elec- tion agent or with his consent is deemed to have been done by the candidate himself whether it is with the candidate's consent or not. He is empowered to discharge almost all the functions that a Candidate can himself perform. 1729E-FI
4.4. It was alleged that the wall-poster was written at the specific instructions of the Chief Agent and the Conven- or. It was not specified who the Chief Agent and the Conven- or of the Election Committee were. The argument that the expression "Chief Agent" should be construed to mean elec- tion agent, cannot be accepted since the pleadings with regard to corrupt practice have to be specific since every- one who is guilty of the corrupt practice is liable to be prosecuted for the offence. And except in one place, there is no reference to any such person as Chief Agent. Wherever the first respondent wanted to refer to the election agent, he has done so. It cannot, therefore, be said that he did not know the difference between the election agent and the Chief Agent. [762B-E]
4.5. The first respondent has come to the court with a version that the wail-poster and such other posters were pasted on wails in the different parts of the constituency at least a week prior to the election. Admittedly, such false propaganda is an electoral offence punishable both under Section 127A of the Act and Section 171-C of the Indian Penal Code. The first respondent or his agents and workers could have made complaints both to the Election Officer as well as to the police in that connection immedi- ately, and a regular panchnama of the same could ,also have been made at the time. That would have been the best evi- dence of the said allegation. The first respondent and his workers would not have failed to do so had the posters been pasted at the time alleged by them. [767E-F] 725
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3951 (NCE) of:1987.
From the Judgment and Order dated 19.11.1987 of the Kerala High Court in E.P. No. 3 of 1987.
K.K. Venugopal, E.M.S. Anam, E. Ahmad and V.K. Beeram for the Appellant.
Dr. Y.S. Chitale, M.K. Damodaran, V.J. Mathew, Aseem Mehrotra and K.M.K. Nair for the Respondents.
The Judgment of the Court was delivered by SAWANT, J. This is an appeal under Section 116A of the Representation of the People Act, 1951 (hereinafter referred to as the 'Act') against the judgment of the High COurt of Kerala in Election Petition No. 3 of 1987, by which the election of the appellant to the Kerala Legislative Assembly from Mattancherry Constituency No. 73 was declared void on the ground that the appellant had committed two corrupt practices within the meaning of Section 123(4) of the Act.
2. The admitted facts are that election to the Kerala Legislative Assembly from all the constituencies was held on March 23, 1987. The main contest in almost all the constitu- encies was between the United Democratic Front (UDF) con- sisting of Congress-I, Kerala Congress, Indian Union Muslim League (IUML) and others on the one hand, and the Left Democratic Front (LDF) consisting of the Communist Party of India--Marxist (CPI-M), Revolutionary Socialist Party and others on the other. The appellant was the candidate of the LDF and the first respondent was the candidate of the UDF.
In the said election, the appellant was declared elected by a margin of 1873 votes over his nearest rival, the first respondent.
3. On May 8, 1987, the first respondent filed an elec- tion petition claiming a declaration that the appellant's election was void and that he was entitled to be declared duly elected from the said constituency. In support of the petition, the first respondent alleged various corrupt practices on the part of the appellant. However, the High Court negatived all the said corrupt practices except two, viz., (i) printing and publication on March 22, 1987, a day prior to the election, pamphlets containing a news item in daily "Malayala Manorama" dated May 22, 1983, and (ii) publication of a wall poster, both maligning the personal character and conduct of the first respondent. The High Court held that both these acts amounted to corrupt prac- tices within the meaning of Section 123(4) of the Act and were sufficient to 726 void the election. The pamphlet containing the reprint of the daily "Malayala Manorama" was marked as Ex. P-1 and two photographs of the wall-poster were marked as Exs. P-14 and P-15 before the High Court and would be referred to herein- after as such. Ex. P-14 is the close-up and Ex. P-15 is the distant photograph of the same wall-poster.
4. Before we refer to the rival contentions and the material on record, it would be convenient if we reproduce here the contents of Ex. P-1 and Exs. P-14 and P-15 to understand the allegations made in the said documents.
Ex. P-1 is a reprint of a page of the issue of 22nd May, 1983 of a daily newspaper "Malayala Manorama". It contains the names and the photographs of four men, who were admit- tedly murdered in May 1983. It also carries two other photo- graphs, one showing two killed bodies lying and the other showing the front part of the court building where allegedly all the four were killed. It also carries a photograph of the appellant with his election symbol which was 'ladder' and a photograph of the then Prime Minister, Rajiv Gandhi.
Apart from the contents of the said newspaper as they ap- peared in the said old issue, it carries additions on the left hand, the English translation of which is as follows:
"ELECT ZAKHARIA THE UNITED FRONT CANDIDATE MATTANCHERRY.
On March 23rd a decisive election is taking place in our State. We wish to have a Government who will protect life and property of the people. In the light of past expe- rience the only front acquired legitimate claim to give protection is the United Democratic Front under the leader- ship of Congress (I). Marxist Party has only created insecu- rity in the country.
X X X X X The Marxist Comrades who create lawlessness and commit murders while in power and out of power, is a chal- lenge to peace loving inhabitants of Mattancherry. Mattan- cherry is a constituency which has witnessed terrible cruel- ties of the Marxists. The Mattancherry Town, once the centre of commerce, today became equal to a grave 727 yard only due to violent activities of the Marxist people.
The wounds created by their cruelties are always unhealed.
They need not be detailed by one.
X X X X X You may remember only the cruel murder that shocked Mattancherry in 1983. Four youngsters were cut to death in the road in broad day light. The relevant portion of the Malayala Manorama which published that news is given herewith as, such; everybody knows the hands behind that murder. The Marxist leader arrested is also known.
X X X X X Dear sisters, brothers, you may think a while.
Should we have the rule of the Marxist terrorists.
We believe that the people of Mattancherry who wish peaceful life in the country will defeat Marxists.
X X X X X Believers in democracy should be specially careful not to split their votes. It is possible to defeat Marxists only through unity of the believers in democracy. That is why the Indian National Congress lead by Shri Rajiv Gandhi'- the stalvert of democratic Bharath is giving leadership to the democratic front. It is the necessity of peace lovers that United Democratic Front should win for law and order and stable administration. Therefore, it is humbly requested that M.J. Zakharia may be elected with big majority casting votes to his Ladder Symbol.
--------------------------------------------------------- Photo of Vote Democratic Front Photo of candidate- to avoid Marxist Rule Rajiv Gandhi M.J. Zakharia of Terror --------------------------------------------------------- Constituency Election Committee Give Strength United Democratic Front, to Rajiv Gandhi's Mattancherry hands 728 VOTE FOR UNITED DEMOCRATIC FRONT CANDIDATE M.J. ZAKHARIA IN LADDER SYMBOL Printed at Veekshanam." The High Court has found that the following statement in paragraph 3 above, viz., "everybody knows the hands behind that murder. The Marxist leader arrested is also known" was in relation to the personal character/conduct of the first respondent. Exs. P-14 and P-15 are the photographs, as stated earlier, of the poster pasted on a wall, with the pamphlet (Ex. P-1) pasted on its left side. The contents of the wall-poster are as follows:
"Defeat murderer T.M. Mohammed who murdered four Christian brothers at Fort Cochin.
Our Symbol." The symbol is the ladder. This poster directly accused the first respondent as being murderer of the said four killed persons and requested the voters to vote for the appellant.
5. As regards Ex. P-1, there is no mention of the first respondent directly by his name anywhere in the poster.
However, the first respondent has alleged that there is an innuendo by which he is projected there as the murderer of the four victims. The High Court has accepted that the first respondent is referred to in the said pamphlet by innuendo.
The High Court has also found that the pamphlets were got printed by one Latif who was appellant's agent, on behalf of his Election Committee and at the instance of and with the consent and connivance of the appellant and his election agent and was distributed by them among the electors knowing the imputation to be false and calculated to affect the prospectus of his election. As regards Exs. P- 14 and P-15, the High Court has recorded a finding that the said wall- poster was pasted on a wall at the instance and with the consent of the appellant's election agent. Thus, the High Court has recorded a finding that the first respondent had proved that the appellant was guilty of the corrupt prac- tices within the meaning of Section 123(4) of the Act.
6. Before we proceed to discuss the relevant evidence on record, it is necessary to understand the correct posi- tion of law on the subject. The corrupt practices and elec- toral offences are mentioned in Part-7 of the Act. Chapter I of the said Part deals with corrupt practices and contains Section 123 whereas Chapter III thereof enumerates electoral offences. and penalties therefore, and contains Sections 125 to 136.
729 Section 123(4) with which alone we are concerned in the present appeal reads as follows:
"123(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 with- drawal, of any candidate, being a statement reasonably calculated to prejudice the prospectus of that candidate's election." It is obvious from the aforesaid provisions of Section 123(4) that for a publication to constitute the corrupt practice (a) it must be a statement of fact: by (i) a candi- date; or (ii) his agent; or (iii) any other person with the consent of the candidate or his election agent; (b) the statement must be false or the candidate must believe it to be false or should not believe it to be true; (c) the state- ment should refer to the personal character and conduct of another candidate and (d) that it must be reasonably calcu- lated to prejudice the prospects of that other candidate's election. Explanation 1 to Section 123 states that in that Section the expression "agent" includes election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate. The expression "election agent" is defined in Section 40 and is accorded a special status of almost an alter ego of the candidate so much so that whatever is done by the election agent or with his consent is deemed to have been done by the candidate himself whether it is with the candidate's consent or not. It is further sufficient to note that the election agent is empowered to discharge almost all the functions that a candidate can himself perform.
7. The further provisions of the Act which are necessary to be noted are those of sub-sections (1)(b), (1)(d) and (2) of Section 100. They read as under:
"100. Grounds for declaring election to be void-- (1) Subject to the provisions of sub-section (2) if the High Court is of opinion-- (a)...............
730 (b) that any corrupt practice has been committed by a re- turned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c)................
(d) that the result of the election, in so far as it con- cerns a returned candidate, has been materially affected-- (i)................
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) ................................................
the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candi- date has been guilty by an agent, other than his election agent of any corrupt practice but the High Court is satis- fied-- (a) ................................................
(c).................................................
(d)..................................................
then the High Court may decide that the election of the returned candidate is not void".
The aforesaid provisions of Section 100 show that where the corrupt practice is committed not by the candidate or his election agent or any other person with the consent of the candidate or his election agent but by an agent other than the election agent and in his interest, and the corrupt practice by such agent has materially affected the result of his election, the High Court is enjoined to declare the election of the candidate to be void. Sub-section (2) of Section 100 enacts a rider to sub-section (1) thereof, and states that even if the 731 agent has committed the corrupt practice in the interest of the returned candidate, if the High Court is satisfied that the said corrupt practice was not committed by the candidate or his election agent and every such corrupt practice was committed contrary to the orders and without the consent of the candidate or his election agent and that the candidate and his election agent took all reasonable means for pre- venting the commission of the corrupt practice at the elec- tion, and that in all other respects the election was free from any corrupt practice the part of the candidate or any of his agents, the High Court may decide that the election of the returned candidate is not void.
8. With this statement of law in mind, we may now refer to the two corrupt practices alleged to have been committed by the appellant. We will first deal with Ex. P-1 the print- ing, publication and distribution of which is held to have been one of the two corrupt practices committed by the appellant's agent at his instance and with his consent and connivance as well as of his election agent. As far as the petition is concerned, the relevant averments with regard to Ex. P-1 are as follows:
"13. Another important aspect which will amount to corrupt practice is the publication of pamphlets by the candidate, his agents and his workers with his consent and knowledge.
14. Malayala Manorama dated 23.5.1983 was reported by the candidate at the expenses of the first respondent. This re- printing is intended to propagate false statements which the candidate, his agents and as workers ..........
X X X X X
19. It is clear from these that the reprinting of Malayala Manorama by the candidate was with a view to create a false impression among the electorate that the petitioner is a murderer and hence the electorate shall not vote in favour of him. This was done with a mala fide intention to propa- gate false news among the electorate.
X X X X X
46. Malayala Manorama daily dated 22nd May, 1983 was re- printed with certain additions and also with photographs 732 of Prime Minister and the candidate with the candidate's symbol. This was reprinted from the Veekshanam Press at Ernakulam and got printed by the Election Committee of the first respondent ....
47. Annexure I reprinted Malayala Manorama was widely dis- tributed in the constituency. It was distributed on 22nd March, 1987. March 22, 1987 was a Sunday and May 1983 was also a Sunday. The petitioner is reliably informed that about 25,000 copies of Annexure I were printed and those copies of reprinted Malayala Manorama were distributed throughout the constituency." In paragraphs 48 to 53 of the petition, the first re- spondent has proceeded to give the names of the persons who distributed the said pamphlet in different divisions of the constituency and of the persons whom he was going to examine as witnesses to prove the same. In paragraph 54, he has made further averments in connection with the said pamphlet as follows:
"Annexure was really the reproduction of Malayala Manorama daily dated 22.5.1983. Since a news item regarding the murder of 4 persons was reported in the daily mentioned above, to mislead the electorate, the Malayala Manorama printed and published on 22.5.1983 was reprinted ...... "
9. It will be apparent from these averments in the petition that although the first respondent has stated in his petition that the pamphlet was printed and distributed with a view to create a false impression among the elector- ate that he was a murderer, he has not stated as to why it will create such an impression among the electorate. It was necessary for him to state so in the petition because admit- tedly the pamphlet nowhere names him as a murderer of the said four victims. What was, however, argued by Dr. Chitale on behalf of the first respondent was that the statements in the pamphlet, viz., "everybody knows the hands behind that murder. The Marxist leader arrested also is known" were a clear and a direct reference to the first respondent, be- cause it was an admitted fact that the first respondent was arrested for an offence of harbouring the accused in that murder case. There was also a protest meeting held in that connection, and the appellant who was his agent at that time had also addressed the said meeting condemning his arrest.
According to Dr. Chitale, therefore, 733 the arrest of the first respondent though for the offence of harbouring the murderers, was in connection with the murder and the statement in the pamphlet that "The Marxist leader arrested is also known" read with the earlier statement that "Everybody knows the hands behind that murder" was clearly calculated to create an impression in the mind of the elec- torate that it was the first respondent who was the murder- er. Admittedly, therefore, even according to Dr. Chitale, these were the only two statements which could be said to have had a reference to the first respondent as the murderer and there was no direct reference to or implication of the first respondent as the murderer of the said four victims.
In other words, the first respondent even in his petition had relied upon an innuendo, and the innuendo was based upon the fact that, firstly, the first respondent was a Marxist leader and, secondly, he was arrested for harbouring the murderers. However, in the petition, no averment is made anywhere that it was because he was a Marxist leader and was also arrested for harbouring the murderers that the elector- ate was likely to construe the said two statements as accus- ing him as the murderer.
10. The facts and/or particulars which spell out the innuendo where one is alleged or relied upon to constitute a corrupt practice are themselves material facts and it is necessary to state them in the petition in view of the mandatory provisions of Section 83(1) of the Act. The provi- sions of Section 83(1) are as follows:
"83. Contents of petition--(1) An election petition-- (a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure , 1908 (5 of 1908) for the verification of pleadings:
Provided that where the petitioner alleges any corrupt practice, the petitioner shall also be accompanied by an affidavit in the prescribed form in support of the allega- 734 tion of such corrupt practice and the particulars thereof." It is clear from the provisions of both clauses (a) and (b) of the Section that election petition has to contain (i) a concise statement of the material facts on which the petitioner relies and also (ii) give full particulars of any corrupt practice that the petitioner alleges. In a case therefore, where what constitutes a corrupt practice is not a bare statement/statements published but those which are not published, and yet are implied, a statement of material facts will not be complete without the statement of such implicit facts. In other words, without the statement of the said facts, the statement will not be a statement of materi- al facts within the meaning of the said Section. This provi- sion of law is indisputable.
11. Much of the debate that took place before us cen- tered round this aspect which has assumed all importance in the context of the first charge of the corrupt practice.
Various authorities were cited on both sides in support of the respective contentions on the subject. We may briefly refer to them to the extent they are relevant for our pur- pose.
In Hough v. London Express Newspaper Ltd., [1940] 3 All ER 31 it was a case of an action for an alleged libel pub- lished in the newspaper. The plaintiff, Florence Sarah Hough, married Frank Hough in 1933 and lived with him in Battersea as his wife and had one child from him. In Febru- ary, 1936, he deserted her, and in June 1936 he was ordered to pay maintenance for the child. He was known at Battersea, where he lived at the time of the order, and after the desertion also he continued to live there. He acquired some notoriety as a boxer, and the plaintiff became known in the district as his wife. On December 22, 1937, an article appeared in Daily Express, a newspaper owned by the defend- ants, containing the words:
"Frank Hough's curly-headed wife sees every fight.
"I should be in more suspense at home." she says, "I always get nervous when he gets in the ring although I know he won't get hurt. Nothing puts him off his food. He always eats a cooked meal last thing at night, however late it is when he gets in"." From the description given of the wife, it was obvious to those who knew the wife that another person was referred to.
Hence, the plaintiff brought an action for libel alleging that the words by innuendo meant that she was falsely repre- senting herself to be the wife and that she was 735 an unmarried woman who had cohabited with and had children by the boxer. On these facts, the Court of Appeal held: (i) the words were defamatory as reasonable persons knowing the circumstances would understand the words in defamatory sense (ii) it was not necessary for the plaintiff to prove that one or more persons understood the words in a defamatory sense. 1t is sufficient that reasonable persons might so understand them. The decision, therefore, shows that it is not necessary that a person publishing a defamatory state- ment should intend that the statement should refer to the defamed person. It is sufficient that reasonable persons should understand it to refer to him or her. The words need not be defamatory in the primary sense. They are actionable if the existence of certain circumstances makes it reasona- ble that persons to whom those circumstances are known, might understand them in a defamatory sense. It is not necessary to prove that in fact persons with such knowledge did so understand them. What is necessary, however, is that the special circumstances which are known to others and by which they are likely to understand the reference as being one to that defamed persons must be pleaded and proved.
In Fullam v.Newscastle Chronicle and Journal Ltd. & Anr., [1977] 3 All ER 32 the facts were that prior to 1962, the plaintiff was a Roman Catholic priest and a curate in the dioceses of Salford near Manchester. In 1962, he gave up the priesthood and became a schoolteacher. In 1964, he married and in 1965 he and his wife had their first child.
The plaintiff took a teaching post at Wakefield. South Yorkshire, where he lived. In July 1973, he applied for the deputy headmastership at a school in Redcar on Teesside, which was about 80 miles north of Wakefield, and he was appointed to that post. There had been a controversy about the previous deputy headmaster. On 21st July, a local news- paper which circulated in the districts of Teesside and Newscastle-Upon-Tyne but not in the Wakefield area, pub- lished an article about the plaintiff's appointment which stated inter alia that he was a former Catholic priest, that he had left his parish in the Salford diocese and later had married and that it was claimed by the general secretary of the National Association of School masters that he "went off very suddenly from the parish where he was curate 'about seven years ago'." The plaintiff pleaded in his statement of claim that the words in the article meant and would be understood to mean that he (a) had lathered a child whilst still a priest serving in a parish, (b) had lathered an,,illegitimate child, (c) had wrongly continued to serve as a priest after his marriage, (d) had wrongly withheld the fact of his marriage from his eclesiastical 736 superiors and parishioners and accordingly was unfit to be deputy headmaster of the school at Redcar. Pursuant to RSC Order 82, rule 3(1), the plaintiff gave as the particulars of the facts on which he relied in support of innuendoes (i) that he had married on 15th February, 1964 and (ii) that his eldest child had been born in May 1965. He did not give particulars of the persons who knew one or the other of those extrinsic facts and who, therefore, having regard to the statement in the article that he had left the parish suddenly "seven years ago", might have derived from the article the imputations alleged in (a) to (d) of para 5 of the statement of claim. The defendants applied to strike out para 5 of the claim on the ground that it disclosed no reasonable cause of action. The Court of Appeal held as follows:
"(i) Although it was not the usual practice in libel actions to plead particular acts of publication if the words com- plained of had been published in a newspaper, in cases where the action was based on a legal, or 'true', innuendo and the ordinary readers of the paper would not have derived from the words complained of the innuendo alleged, the plaintiff was required, under RSC Order 18, rule 7(I) and Order 82, rule 3(I) to particularise not only the special circum- stances which were alleged to give rise to the innuendo but also the identity of the readers of the paper who were alleged to know of those special circumstances, since the identity of those readers was a material fact on which the plaintiff relied in support of his cause of action.
(ii) Since the only readers of the article who could have concluded that the plaintiff had lathered a child or married while he was still a priest were readers who new either the date of birth of his 'eldest child or the date of his mar- riage but did not know both those facts and such readers would be rare and exceptional, having regard in particular to the area where the paper circulated, the plaintiff should be ordered to give particulars identifying those readers.
Accordingly, unless such particulars were given, para 5 of the statement of claim should be struck out." While discussing the law on the subject, Lord Denning MR observed as follows:
"The essence of libel is the publication of written words to 737 a person or persons by whom they would be reasonably under- stood to be defamatory of the plaintiff. But those words may give rise to two separate and distinct causes of action ..... First, the cause of action based on a popular innuendo. If the plaintiff relies on the natural and ordi- nary meaning of the words, he must in his statement of claim satisfy the person or persons to whom they were published, save in the case of newspaper or periodical which is pub- lished to the world at large, when the persons are so numer- ous as to go without saying.
Secondly, the cause of action based on a legal innuendo. If the plaintiff relies on some special circumstances which convey some particular person or persons knowing the circum- stances, a special defamatory meaning other than the natural and ordinary meaning of the words when he must in his state- ment of claim specify the particular person or persons to whom they were published and the special circumstances known to that person or persons for the simple reason that these are the material facts on which he relies and must rely for this cause of action. It comes straight within the general rule of pleading contained in RSC Order 82, rule 3. In the second cause of action, there is no exception in the case of a newspaper because the words would not be so understood by the world at large but only by the particular person or persons who know the special circumstances." (emphasis supplied) Lord Denning further observed that this rule of pleading was not observed in Cassidy v. Daily Mirror Newspapers, [1929] 2 KB 331 or in Hough v. London Express Newspaper Ltd., (supra) because the defendant did not ask for particu- lars. After referring to paragraph 5 of the plaint, he then observed that paragraph 5 was utterly inadequate as it stood and that no ordinary reader could ever derive those imputa- tions about "fathering a child" etc. from the article. It would have to be some particular person with knowledge of some special circumstances. He further observed that the pleading in that case told the circumstances, viz., the marriage in 1964 and the birth of a son in 1965 but it did not tell as to who were the persons who knew of the circum- stances and derived the imputations from the article.
In the same case, Scarman LJ stated that it was obvious that a 738 material fact in such a cause of action was that the persons to whom the words were published knew the extrinsic facts.
In principle, therefore, their knowledge being a material fact should be pleaded. He further observed that there may be a case where the facts may be very well ' known in the area of the newspaper distribution in which even it would suffice to plead merely that the plaintiff would rely on inference that some of the newspaper readers must have been aware of the facts which are said to give rise to the innu- endo. But that was not the case in that action and, there- fore, justice required that the plaintiff should fully particularise the publication relied on so that the defend- ants may understand the nature of the case they have to make.
These two decisions, however, are in libel action and not in election matters.
12. In Sheopat Singh v. Ram Pratap, [1965] 1 SCR 175, one of the questions that directly arose for consideration was of the burden of proving the ingredients of the corrupt practice under Section 123(4). The facts were that an alle- gation was made against the personal character and conduct of one of the candidates in the election, viz., that a cinema theatre of Rs.7 lakhs in Ganganagar was the barkat of the cement of the Rajasthan Canal. The candidate concerned was at the crucial time the Minister-in-charge of the Rajas- than Canal Project. During the election, a cinema theatre known as Adarsh Theatre was being put up at Ganganagar.
There was no dispute that the theatre referred to in the poster was the said Adarsh Theatre and it belonged to the concerned candidate and his sons. In that context, there- fore, it was manifest that the poster meant to convey the idea that the candidate had misappropriated the cement of the Rajasthan Canal of which he was in-charge and built a big theatre in the name of his sons. Hence, it was a clear reflection on the candidate's personal character and con- duct. The argument advanced on behalf of the returned candi- date was that there was no evidence in the case that the said statement was one reasonably calculated to prejudice the prospects of the election of the candidate against whom the said statement was meant, viz., Ramchander Chowdhary. In that connection, it was argued that if the voters did not know that the cinema theatre which was being built in Ganga- nagar belonged to Ramchander Chowdhary or his sons, the statement concerned would not deflect the voters from voting in favour of Chowdhary. It was also argued that there was no evidence in the case that all or any of the voters knew the fact that the cinema theatre belonged to Chowdhary or his sons. This Court stated in that case that they were not dealing with a libel action and, therefore, the 739 cases cited at the Bar on libel action such as Nevill v.
Fine Art and General Insurance Co. Ltd., LR 1887 AC 68 and the Capital and Counties Bank Ltd. v. George Henty & Sons, LR 1882 7 AC 741 had no relevance for determining the ques- tion under Section 123(4) of the Act. The only question is whether the statement in question was reasonably calculated to prejudice the prospects of Chowdhary's election. The Court then pointed out that on behalf of the returned candi- date it was not contended either before the Election Tribu- nal or before the High Court that the voters had no knowl- edge of the fact that the cinema theatre at Ganganagar belonged to Chowdhary or his sons. The Court further ob- served that apart from that the object with which the state- ment was made was the crucial test. Since it was proved that Ganganagar cinema theatre belonged to Chowdhary's sons and that Chowdhary was the Minister-in-charge of the Rajasthan Canal and he was also the only effective candidate against the returned candidate who was the appellant in that case, the appellant's intention in making that statement was obvious and that was to attack the personal character of Chowdhary in order to prejudice his prospects in election.
The appellant must have reasonably calculated that the voters, or at any rate the voters in and about the locality where the cinema theatre was being put up, had knowledge or the tact that It was being constructed by the Minister of his sons. It cannot also be said that when a big cinema theatre at a cost of Rs.7 lakhs was being put up in Gangana- gar the voters in and about that place would not have known about the ownership of that building. Hence, the fact that the building was brought in for attacking the personal character of Chowdhary merely indicated that the appellant knew that the voters had knowledge of its ownership and expected that it would create the impression which it mani- festly indicated to convey. Hence, this Court held that the High Court's finding that the statement was reasonably calculated to prejudice Chowdhary's prospects in election could not be said to be unsupported by evidence or by the.
admitted facts placed before the High Court. It was a rea- sonable inference from the facts found by the High' Court.
It must be said that in this case the question whether it was necessary for the election petitioner to state in the petition the extrinsic facts which would connect the person concerned with the libelous statement was not raised and, therefore, was not answered. The only question which was agitated was whether the voters without knowing that the theatre belonged to the defamed candidate would be deflected from voting and this Court upholding the finding of the High Court, observed that it was not contended either before the Election 740 Tribunal or before the High Court that the voters had no knowledge of the fact that the cinema theatre belonged to Chowdhary or his sons. Secondly, it was held that whether the voters had such knowledge was immaterial since what was crucial for the corrupt practice under Section 123(4) of the Act is the object with which it was made. Since the election petitioner had proved that the theatre belonged to Chowd- hary's sons and that Chowdhary was the Minister-in-charge of the Rajasthan Canal, it must be held that the returned candidate had reasonably calculated that the voters or at any rate the voters in and about the locality where the theatre was being put up, had knowledge of the fact that it was being constructed by the Minister or his sons, and that such extrinsic facts could not have been unknown to the voters. This decision may be construed as laying down that even if the petition does not state the extrinsic facts but the electorate is well aware of them, the petitioner can lead evidence and prove them. Whether the petition in that case did or did not state the extrinsic facts is not clear from the decision. It is also not clear from the judgment whether any evidence was led that in fact the voters had understood the said statement to refer to Chowdhary. On the other hand, one of the observations made in the judgment shows that the proof of such an impression of the voters is dispensable for the purpose of establishing a corrupt prac- tice under Section 123(4) of the Act. That observation is as follows:
"To be within the mischief of sub-section (4) of Section 123 of the Act such a statement shall satisfy another test, namely, it shall be a statement reasonably calculated to prejudice the prospects of the election of the candidate against whom it is made. The word "calculated" means de- signed: it denotes more than mere likelihood and imports a design to affect voters. It connotes a subjective element, though the actual effect of. the statement on the electoral mind reflected in the result may afford a basis to ascertain whether the said statement was reasonably calculated to achieve that effect. The emphasis is on the calculated effect, not on the actual result, though the latter proves the former. But what is important to notice is that it is not necessary to establish by positive evidence that the voters, with the knowledge of the contents of the statement were deflected from voting for the candidate against whom the statement was made." In Kumara Nand v. Brijmohan Lal Sharma. [1967] 2 SCR 127 the 741 facts were that the complaining candidate was called "the greatest of the thieves" in a poem recited at a public meeting in the presence of the returned candidate. It was held that it was not a mere expression of opinion but was a statement of fact. It was further held that in such circum- stances, particulars are not necessary before a bald state- ment with respect to personal character or conduct of the candidate can be said to be a statement of fact. It was also observed that whether particulars are necessary will depend on the facts and circumstances of each case. We may state here that the discussion in that case mainly centered around the question whether the particular statement was a state- ment of fact or an expression of opinion.
In Habib Bhai v. Pyarelal & Ors., AIR 1964 MP 62 dealing with the question of innuendo the High Court referred to certain English cases on the point and held that "in view of these decisions, it is obvious that an innuendo is simply an averment that such a one, means such a particular person; or that such a thing, means such a particular thing: and, when coupled with the introductory matter, it is an averment of the whole connected proposition by which the charge may be brought home to the person concerned. The whole attempt of the learned counsel for the appellant before us was to suggest that the words, though not per se defamatory of the third respondent, were definitely so in their secondary meaning read in the context of circumstances. But, as no attempt was made in the pleadings to plead the extrinsic facts to show by those facts as to how the allegations contained in annexure I were related to the third respond- ents, we are of opinion that it must he held that by refer- ring to any possible meaning of the words used, no imputa- tion could be read in the words as against him." It can, therefore, be said that in this case the Court had insisted that it was necessary to plead the extrinsic facts to show all those facts as to how allegations were related to the defamed or complaining candidate.
In Manmohan Kalia v. Yash & Ors., [1984] 3 SCR 383 which is more or less on par with the present case, it was alleged by the election petitioner that the returned candidate through speeches either made by him or his friends had carried on a vilifying campaign to show that the complaining candidate was directly connected with the murder of one Asa Ram, a Harijan and one of the supporters of Congress (I) Party so as to wean away the votes of the harijans of the locality and members of the Congress (I) Party. The High Court had disbelieved oral evidence and found no nexus with the news items etc. and had 742 dismissed the petition. This Court held that where the doctrine of innuendo is applied, it must be clearly proved that the defamatory allegation was made in respect of a person though not named, yet so fully described that the allegation would refer to that person and that person alone.
Innuendo cannot be proved merely by inferential evidence which may be capable of two possibilities. On the facts, the Court held that after having gone through the evidence, statement of witnesses and the documents placed before the Court, it was difficult to find any close connection or direct link between the imputations made against the appel- lant in 1978 and those made in 1980. In none of the docu- ments produced by the complaining candidate which referred to the activities of the returned candidate, there was the slightest possibility that the appellant had anything to do with the murder of Asa Ram.
The Court further observed as follows:
"It is now well-settled by several authorities of the Su- preme Court that an allegation of corrupt practice must be proved as strictly as a criminal charge and the principle of preponderance of probabilities would not apply to corrupt practices envisaged by the Act because if this test is not applied a very serious prejudice would be caused to the elected candidate who may be disqualified for a period of six years from fighting any election, which will adversely affect the electoral process".
In W. Hay & Ors. v. Aswini Kumar Samanta, AIR 1958 Cal. 269 a Division Bench of the Calcutta High Court held that it is well-settled that in a "libel action" the ordinary defam- atory words must be set out in the plaint. Where the words are per se or prima facie defamatory only the words need be set out. Wherever the defamatory sense is not apparent on the face of the words, the defamatory meaning or as it is technically known in law, the innuendo must also be set out and stated in clear and specific terms. Where again the offending words would be defamatory only in the particular context in which they were used, uttered or published, it is necessary also to set out except where as in England, the law is or has been made expressly otherwise, the offending context (colloquium) in the plaint, and to state or ever further that this context or the circumstances constituting the same, were known to the persons to whom the words were published, or, at least, that they understood the words in the defamatory sense. In the absence of these necessary averments, the plaint would be liable to be rejected on the ground that it does not disclose any cause of action.
743
13. What exactly should be pleaded in an action for defamation has been stated also in Halsbury's Laws of Eng- land Vol. 28 4th ed. In paragraphs 174, 175, 176, 177 and 178 of the said Volume, we have discussion with regard to natural and ordinary meaning of the words complained of, and about the innuendo and the facts and matters supporting innuendo which should be pleaded and proved. It is stated there that in drafting a statement of claim in libel or slander, it is necessary to distinguish between cases in which the words complained of are alleged to be defamatory in their natural and ordinary meaning, whether the literal or the inferential meaning, and those in which the defamato- ry meaning is a secondary meaning derived from extrinsic or special facts or matters, so that a legal or true innuendo must be pleaded. If it is claimed that the words are defama- tory in their natural and ordinary meaning and the words bear only one literal meaning, which is clear and explicit, it is not necessary to plead the meaning in the statement of claim. However, if the words are reasonably capable of bearing more than one literal meaning or if the defamatory meaning relied on is inferential (a "false or popular" innuendo), it is desirable and may even be necessary to plead the defamatory meaning or meanings. Where the plain- tiff wishes to claim that the words complained of were understood to be defamatory in a secondary or extended meaning by those persons having knowledge of some special facts or matters, such a meaning constitutes a separate cause of action and the same should be pleaded expressly in a separate paragraph in the statement of claim (emphasis supplied). Particulars must be given of the facts and mat- ters on which the plaintiff relies in support of any second- ary or extended defamatory meaning which it is decided to plead. These special facts or matters may be extrinsic to the words used or there may be some special meaning of the words themselves. The plaintiff should plead that particular words bore the innuendo meaning.
14. In Gatley on Libel and Slander (8th ed.) in para- graph 95, while dealing with "True and False Innuendoes", it is observed that in distinguishing between the ordinary and natural meaning and the innuendo meaning or words, the substantive law cannot be separated from the requirements of pleadings and the rules of evidence. When the plaintiff wishes to rely on any special facts as giving the words a defamatory or any particular defamatory meaning, he must plead and prove such facts including, where necessary, any special knowledge possessed by those to whom the words are published which gives the words that meaning, and must set out the meaning in his pleading. Where words are not defama- tory in their natural and ordinary mean- 744 ing but are so only by reason of extrinsic circumstances, the plaintiff must plead also those circumstances and the precise defamatory meaning conveyed by them to those persons to whom the words were published. Otherwise, the statement of claim will disclose no cause of action. Such an innuendo is required to be pleaded whenever the plaintiff relies on any extrinsic facts as giving to the words the meaning he alleges. The plaintiff must plead the words, the extrinsic facts and knowledge of those facts on the part of one or more of those persons to whom the words were published. He can also give evidence of any facts and circumstances which he has pleaded and which would lead reasonable persons to infer that the words were understood in that meaning provid- ed such facts or circumstances were known to those persons to whom the words were published. The evidence required is the evidence of special facts causing the words to have a meaning revealed to those who knew the special facts.
Street in his treatise on Torts (6th ed.) at page 294, has stated that where nothing is alleged to give an extended meaning, words must be construed by the judge in their ordinary and natural meaning. The whole of the statement must be looked at, not merely that part on which the plain- tiff relies as being defamatory, although, of course, it may be relevant to take account of the greater importance of some part of a statement, e.g., the headlines of an article in a newspaper. There may be circumstances where the plain- tiff alleges that the statement is defamatory because spe- cific facts known to the reader give to the statement a meaning other than or additional to its ordinary meaning;
this is known as a true or legal innuendo. In that case, the plaintiff must plead and prove such facts, for the defendant is entitled to know that meaning of the statement on which the plaintiff relies so that he is able to argue either that the statement in that meaning is not defamatory or that it is then true of the plaintiff. There is a third possibility.
The words may have a meaning beyond their literal meaning which is inherent in them and arises by inference or impli- cation: this is sometimes known as the "false" innuendo. The plaintiff has to plead separately any such "false" innuendo.
A "false" innuendo differs from a "true" innuendo in that the pleader of a "false&quo
