M.J. ZAKHARIA SAIT v. T.M. MOHAMMED AND ORS

Citation: [1990] 2 S.C.R. 719

Court: Supreme Court of India

Bench: L.M. SHARMA, P.B. SAWANT

Case summary

P-1 is a reprint of a page of the issue of 22nd May, 1983 of a daily newspaper "Malayala Manorama". The High Court held that both these acts amounted to corrupt practices within the meaning of Section 123(4) of the Act and were sufficient to

Judgment text

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 commit! _ed. 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 constituencies was between the United Democratic Front (UDF) consisting of Congress-I, Kerala Congress, J 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 . o! h~rs .

9n 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 election petition claiming a declaration that the appellant's election was void and that ,he was ~ntitled 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 practices within the meaning of Section 123(4) of the Act and were sufficient to 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 hereinafter as such. Ex. P-14 is the close-up and Ex. P-15 is the distant photograph of ihe 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 admittedly murdered in May y - 1983.

It also carries two other photographs, 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 o 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 th~y appeared 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 CANDI- DATE 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 experience the only front acquired legitimate claim to give protection is the United Democratic Front under the leadership of Congress (I). Marxist Party has only created insecurity in the country.

xxxxx The Marxist Comrades who create lawlessness and commit murders while in power and out of power, is a challenge to peace loving inhabitants of Mattancherry. Mattancherry is a constituency which has witnessed terrible cruelties of the Marxists. The Mattancherry Town, once the centre of commerce, today became equal to a grave yard only 'Clue to violent activities of the Marxist people. J The wounds created by their cruelties are always unhealed. ~--·- . ' - They need not be detailed by one. xxxxx You may remember only the cruel murder that shocked Mattancherry in 1983. Four youngsters were cut to death in the road in broad day ligh~. The relevant portion of the Malayala Manorama which published that news. is given herewith as. such; everybody knows the hands behind tha(tiiurder. Th~ Marxist leader arrested is also known. • x X. xxx 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. xxxxx Believers in democracy should be specially careful I not to split their votes. It is possible to defeat Marxists only through unity of the believers in democracy. That is why the lndian l'!. ational Congress lead by Shri Rajiv Gancliii'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 cast- J_ ing votesto 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 Raiiv Gandhi's Mattancherry hands 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. " 'r 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 diem among the electors knowing the imputation to be false and . ;. calculated to alfect the prospectus of his election. As regards Exs. P-14 and P-15, the High Court has recorded a finding that the said wall- ,l 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 practices 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 position of law on the subject. The corrupt practices and electoral 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 therefor, and contains Sections 125 to 136. M. J. ZAKHARIA v. T. M: MOHAMMED [SAWANT, J.

J 729 Section 123(4) with which alone we are concerned in the present j 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 withdrawal, 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 candidate; 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 statement should refer to the personal character and conduct of another candidate and (d) that it must be reasonably calculated 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 I 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 qote 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 (l)(b), (l)(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-