JOSEPH M. PUTHUSSERY versus T.S. JOHN & ORS.

Citation: [2010] 14 S.C.R. 427 · Decided: 01-12-2010 · Supreme Court of India · Bench: J.M. PANCHAL · Disposal: Appeal(s) allowed

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Judgment (excerpt)

[2010] 14 (ADDL.) S.C.R. 427 
JOSEPH M. PUTHUSSERY 
v. 
T.S. JOHN & ORS. 
(Civil Appeal No. 5310 of 2005) 
December 1, 2010 
[J.M. PANCHAL AND GYAN SUDHA MISRA, JJ.] 
REPRESENTATION OF THE PEOPLE ACT, 1951: 
A 
B 
s. 123 - Election petition alleging corrupt practices -
c 
Nature of - Standa.rd 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 0 
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 
E 
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 
F 
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 
G 
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 a/legation is supported by the evidence, and 
427 
H 
428 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R. 
A 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 
B pamphlets and committed the corrupt practice -
The 
judgment of the High Court set aside - Evidence. 
s. 123 rlw ss. 98 and 99 - Corrupt practice of election 
agent or a third persorr attributable to the elected candidate 
- Notice to such third person - Held: To prove that the corrupt 
C practice of a third person is attributable to the candidate, it 
must be shown that the candidate consented to tf1e 
commission of such an act - The High Court's view that the 
elected candidate would be liable for penalty uls 99 for the 
acts of his election agent without the conviction of such agent 
D 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 
E 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, 
F 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 
G 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 
H published by appellant had already been published in a 
-
JOSEPH M. PUTHUSSERY v. T.S. JOHN & ORS. 
429 
magazine and circulated in the Constituency - The provisions 
A 
have to be construed strictly and, therefore, reproduction and 
distribution ofreproduced 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 
B 
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 - Ev

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