LexM.J. ZAKHARIA SAIT versus T.M. MOHAMMED AND ORS.
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M.J. ZAKHARIA SAIT A ) v. T.M. MOHAMMED AND ORS. APRIL 25, 1990 [LAUT MOHAN SHARMA AND P.B". SAWANT, JJ.] B - Representation of People Act, 1951: Sections 40, 83, 100, 123( 4) and 127-A. Election-Corrupt practice-Pleadings and proof of-Require- ments-Oral testimony-Corroboration by contemporaneous docu- ments-Need for. Statement maligning personal character and conduct of candi- ~ date-Innuendo meaning to be proved by special or extrinsic facts- Statements must be proved to have been reasonably calculatea to pre-· c judice the prospects of the candidate. D Electoral offence-Complaint under s. 127-A of the Act and s. 171-C !PC-Evidence of corrupt practice. Libel action and corrupt practice-Difference between. Status of election agent-Almost similar to that of candidate. 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 wall poster, maligning the 719 E F G H 720 SCPREME COURT REPORTS I 1990] 2 S.C.R. A 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. B 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 respondent in his election petition had relied upon an innuendo, and the innuendo was C 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 D 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 E 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 F 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 personal character I G conduct. 11 was an impression at best about his political character/ conduct. In particular there was no impression that he was tlie \ murderer or one of the murderers. Although the first respondent has / ...._.A....;,.- also added at the end that many persons who gathered such an impres- sion, viz., that he was meant by the publication, had contacted him over phone, he admitted that he did not examine anyone from among the H said persons. This is a telling circum3tance against him because he had .. M.J. ZAK.BARIA v. T.M. MOHAMMED 721 followed as a witness after all his witnesses were examined, and he knew that none of his witnesses had stated that they h
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