ASHOK DULICHAND versus MADAHAVLAL DUBE & ANOTHER

ASHOK DULICHAND

MADAHA VLAL DUBE & ANOTHER August 5, 1975 (H. R. KHANNA, M. H. BEG, A. C. GUPTA, JJ.]

Rcpresenta.tion of People Act, 1951-Section 123(4)--Statement relating to personal character or conduct-65(a) of Evidence Act-Secondary evidenr:e-Photostat copy.

The election for Pandhurna Constituency for the 11.P. Legislative Assembly took place in l\.1arch, 1970. There were 6 candidates who contested the electionr The main contest waS between respondents nos. 1 and 2. Respondent no. 1 was. declared elected. The appellant, voter, filed an Elect!.on Petition challenging the election on the grounds that respondent no. 1 published and circulated leaflet containing defamatory and false averments against respondent no. 1 and it was calculated to prejudice the election prospects of respondent no. 2. The leaflet it \vas alleged contained the statement of fact about the personal charac-ter or conduct of respondent no. 2. Tn the leaflet it was mentioned that respon-dent no. 2 committed rape and he was carrying on \Vith another woman. The ·activ~ties of respondent no. 2 were stated to ·have driven his wife into insanity. Reference \Vas also made to some other shady and unethical activities.

Before the High Court the appellant wanted to file photostat copy of the manuscript of the leaflet \Vhich according to the appellant was written by res-pondent no. I. The High Court did not admit the aforesaid photostat copy in evidence on the grOUJJ.d that there was no sufficient reason for allow:ng the appel-lant to lead secondary evidence. The High Court also held that though the mate-rial contained in the leaflet related to the personal character and conduct of res-pondent no. 2, the appellant failed to prove that its contents wen~ false to the knowledge of respondent no. 1, and he did not believe them to be true and that, therefore, the corrupt practice defined in section 123 ( 4) of the Representation of the People Act was not proved.

While dis1nissing the appeal this Court held :

Under secti.on 65(a) of the Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of document when the original is shown or appears to be in the possession or power of the person against whom the document is ·sought to be proved or when person refuses to produce it. There \\'as no affidavit that the ori~inal document was in possession of respon-dent no. 1. The photostat copy appeared· to the High Court to be not above sus-picion. In view of all the circumstances, the High Court rightly came to the conclusion that no foundation was 1aid by the appellant for leading secondary evidence in the shape of _photostat copy. There is no evidence on record to show that the contents of the leaflet were false. T·he respondent ne. 2 was not examined as witness. No other evidence was also led of any person who knew about the character or conduct of respondent no. 2 to show that the statements con-ta:.ned in the leaflet in question were false. Apart from the other requirements, it is of the essence of section 123(4) of the Representation of the People Act, 19-51 that the impugned statement of fact in relation to the personal character or conduct of Candidate which is alleged to have been published should be false. [249D, F-250D]

Cl\IL APPELLATE JURI'SDICTION: Civil Appeal No. 1327 of 1973.

From the judgment and order dated the 21st July, 1973 of the Madhya Pradesh High Court in Election Petition No. 36 of 1972

N. lvl. Ghatate and S. Baldkrishnan, for the appellant.

S. S. Khanduja, for respondent No. 1.

The Judgment of the Court was delivered by

KHANNA, J .-This appeal is directed against the judgment of Madhya Pradesh High Court whereby that court dismissed the el~c­tion petition filed by the pelltioner-appellant to challenge the e_lection of respondent No. 1 to Madhya Pradesh Legislative Assembly from p,, ndhurna constituency in Chhindwara district. The election for Pandhurna constituency took place on March 8, i 972. There were six capdidates who contested the election. The main contest was, however, between Madahav!al Dube respondent No. 1 and Dr. Ratanchand Mangalchand Sanghvi respondent No. 2. Respondent No. 1 was declared elected. The appellant, who was an elector in the above mentioned constituency, filed election petition to· challenge the election of respondent No. 1 on various grounds. It is not necessary to set out all the grounds because in the appeal before us only one ground which is the subject matter of issue No. 10 has been pressed on behalf of the appellant. The allegation which gave rise to issue No. JO was contained in para 13 of the electiou petition. The petition was, however, ordered to be amended because it did' not contain full particulars. The allegation with particulars was. thereafter contained in para 13 of the amended petition. · According to the appellant, respondent No. 1 or his agent or any other person with his consent had got published and widely circulated leaflet with the caption "Sawal Jania Ke" purporting to be ·on behalf of Pandhurna Matdar Sangh. The aforesaid leaflet, according to the appellant, seemed to have been drafted by respondent No. 1 and· was full of defamatory and false averments calculated to prejudice the eleclion prospects. of respondent No. 2. The, leaflet was stated to have been very widely circulated and distribu[1]ed throughout the constituency. Every sentence of the leaflet, it was added, contained statement of fact about the personal character or conduct of respon-dent No. 2 which was false to the knowledge of respondent No. J. Respondent No. l and his friends were stated to have got the leaflet published under the psudonym of Pandhurna Matdar Sangh although there was no such Sangh in existence. The name of the press and· publisher's. name was also not mentioned in the leaflet. The appellant also men!Joned the places where and the names of persons through whom the leaflets were alleged to have been distributed.

According to the leaflet which has been marked Ex. P4, respon-G dent No. 2 was not man of good character. The said respondent was alleged to have committed rape upon nurse while he was government doctor. He was also stated to be carrying on with an· other woman. The activities of respondent No. 2 were stated to have driven his wife to insanity. Reference was also made to some other 'hady and unethical activities in which respondent No. 2 was stated to be indulging.

Respondent No. 1 in his written statement denied that he. his agents or. any other Person. wi'h his consent h3d got oublished and· circulated the leaflet in question. It was also denied by respondent

No. 1 that he had drafted the aforesaid leaflet. According to res-pondent No. 1, he bad no connection with that leaflet and he was unable to make any statement about the truth or falsity of its con-tents. It was denied that the said leaflet was widely circulated and distrib'U'ted througbout the constituency. The allegation that tbe leaflet was calculated to prejudice the election prospects of respon-dent No. 2 too was denied. Likewise, respondent No. 1 denied that the different sentences of the leaflet contained stateme,nt of fact about the personal character or conduct of respondent No. 2 which was false to Lhe knowledge of respondent No. 1. According further to the respondent, he came to know of the said leaflet only some weeks after the election was over. The said leaflet, it was added, appeared to have been got printed by someone interested in respondent No. 2 to create .ground for filing an election petition. Issue No. 10 reads as under :

•:JO(a) Whether the leaflet with the caption 'Sawal Janta Ke' was published by respondent No. 1, his agents or any other person with his consent?

(b) Whether the respondent No. 1 has any connection with the aforesaid leaflet?

(c) Whether the material co,ntained in the leaflet relates to personal character of respondent No. 2? (cl) Whether the leaflet was widely circulated and dis-tributed throughout the constituency and it was calculated to prejudice the election prospects of respondent No. 2?

( e) Whether the leaflet was distributed at the places and by the persons named i,n paragraph 13 of the elec-tion petition?

(f) Whether all persons named in the paragraph 13 except Shrimati Kamla Bai Mohogaonkar of Moho-F gaon were active supporters of respondent No. 2 ? Whether any corrupt practice under section 123( 4) of the R.P. Act was committed in respect of the above'! Whether the allegations made in paragraph 13 make out ground for challenging the election of respon-G dent No, 1 under section 100(1) of the R.P. Act 1951?" .

The High Court decided issues JO(a) and (b) against the appel-lant on the ground that no evidence had bee,n led by him in this b~balf .. On issue lO(c), it was held, that though the material con-tamcd 10 leaflet P4 related to the personal character and conduct of respondent No. 2, the appellant had failed to prove that its contents we~e false to the knowledge of respondent No. 1 or that he did not believe them to be true. No corrup• practice as defined in section

123(4) of the Representation of the People Act was held to have oeen proved. Issues lO(d) and .Ce) were held to be of no conse-quence in view of the fact that 1t was not proved that respondent No. 1 was guilty of corrupt practice. In the result the elect10n petition was disJ!lissed.

ln appeal before us Mr. Ghatate on behalf of the appellant bas argued that the appellant wanted to. file photostat copy, of the manuscript of leaflet P4 which, accor?mg to the. a.l'pella_nt, hail b~n written by respondent No. 1. The High Court,_ 1t !S pomted out, did not admit the aforesaid photostat copy m evidence on the ground that there was no sufficient reason for allowing the appellant to lead secondary evidence. It is that order of the High Court which has been the main target of the criticism of Mr. Ghatate. '

After hearing the l~arned counsel for the parties, we are of the opinion that the order of the High Court in this respect catls for no interference. According to clause (a) of section 65 of the Indian Evidence Act, seco.ndary evidence may be given of the existence, condition or contents of document when the original is shown or appears to be in the possession or power of the persoru against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not. produce it. Clauses (b) to (g) of section 65 specify some other contingencies wherein secondary evidence relating to document may be given, but we are not con-cerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed photostat copy. Prayer was also made by the appellant that in case respondent No. 1 denied that the said manu-script had been written by him, the photostat copy might be got examined from handwriting expert. The appellant also filed affi-davit in support of his applications. It was, however nowhere stated in the affidavit that the original document of which th~ photostat copy h_ad been filed by the appellant was in the possession of respondent No. l. There was also no other material on the record to indicate that the original document was in the possession of respondent No. 1. The appellant further failed to explain as to what were the circnms-G ~ances un?er which th_e. photostat copy was prepared and who was m possess10n of the ongmal. doc.ument at the time its photograph was taken. R~spondent. No. 1 m h~s affidavit denied being in possession of or havmg anythmg t_o do with such document. The photostat copy appear.eel to the High Cou_rt to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no. found~tion had been laid bv the appellant for leading secondary ~v1dence m the shape of the .Photostat copy. We find no infirmity m th: above order of the High Court as might justify interference by this Court.

· The matter may also be looked at from another angle. There is .no evidence on record to show that the conten'.s cf leaflet Ex. P4 were false. Respondent No. 2 in relation to whose personal charac-.ter and conduct statements were made in leaflet P4 was not examined .as witness. No other evidence was also led of any person who .knew about the character or conduct of respondent No. 2 to show .that the statements contained in leaflet in question were false. The High Court consequently arrived at the conclusion that on the m~te­rial on record it could not be held that the contents of the said leaflet were false and that respondent No. 1 believed them to be false or did not believe them to be true. As such, no corrupt practice as defined in section 123 (4) of the Representation of the .People Act, 1951 was held to have been proved. corrupt practice, according to sec_tion 123(4), consists of the publication by candidate or his· agent or by any other person, with the consent of 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 statement reasonably calculated to prejudice the prospects of that candidate's election. Apart from the other requirements, it is of the essence of the matter. that the impugned statement of fact in relation to the personal character or conduct of candidate which is alleged to have been. published should be false. Unless the said statement of fact is shown to be false, its publicatism would. not constitute corrupt practice as defined in clause ( 4) of sedion 123 of the Act. When there is complete absence of any material on the record to show that the .impugned statement of fact is false, no occasion would plainly arise for remanding the case to the High Court to enab'e the appel-lant to produce in evidence the photostat copy in questian with view to show that the original of that had been written by the res-pondent. -· .

There is no merit 'in the appeal. missed with costs.

The .same is accordingly dis-

iP.H.P.

Appeal dismissed.

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