Kumara Nand vs Brijmohan Lal Sharma

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1966 Supreme(SC) 319

SUPREME COURT OF INDIA
K.N. WANCHOO, R.S. BACHAWAT AND J.M. SHELAT, JJ.
Kumara Nand, Appellant
Versus
Brijmohan Lal Sharma, Respondent.
Civil Appeal No. 2135 of 1966 D/-29 -11-1966.
Advocates appeared
M/s. R. K. Garg, D. P. Singh and S. C. Agarwala, Advocates of M/s. Ramamurthi and Co., for Appellant; M/s. B. D. Sharma and L. D. Sharma, Advocates, for Respondents.

Advocates:
B.D.SHARMA, D.P.Singh, L.D.SHARMA, R.K.GARG, RAMAMURTHI, S.C.AGRAWAL

Headnote:conditions to be proved and satisfied - Statement of fact — meaning - Question whether statement is statement of fact or mere expression of opinion - Recitation of poem in public meeting containing false statement of facts

       – if the conditions required by Section 100(1)(d) read with Section 123(4) are satisfied, a corrupt practice avoiding the election will be established. The first condition is that the candidate’s belief in the falsity of the statements must be established, as laid down in Kumara Nand v. Brijmohan Lal Sharma, AIR 1967 SC 808 = 1967(2) SCR 127. The second condition is that the result of the election in so far as the respondent is concerned must be shown to be materially affected. Thus it is to be seen (a) that the statement was made by an agent (b) that it was false etc., (c) that it relates to personal character and conduct of Mr. Patil, (d) that it reasonably calculated to harm his chances but also (e) that in fact it materially affected the result of the election in so far as the respondent is concerned as held in Samant N. Balakrishna v. George Fernandez, AIR 1969 SC 1201.

       – would depend on the facts of each case and will have to be judged in the circumstances in which the statement was made and in the context of the writing in which it appears, in case it is part of a writing. But it is not as opined by the Supreme Court in Kumara Nand v. Brijmohan Lal Sharma, AIR 1967 SC 808, correct to say that a statement with respect to a candidate can never be a statement of fact, unless it is accompanied by particulars as to time, place and date which one finds (for example) in a charge sheet in a criminal case. Whether in a particular setting a bald statement without particulars would be a mere expression of opinion or would amount to a statement of fact would depend upon the circumstances of each case and the Court will have to consider the setting in which the statement was made and the entire writing in the context of which it appears and the nature of the statement itself before it comes to the conclusion that it is a statement of fact or an expression of opinion. Where particulars are given it may not be difficult to come to the conclusion may be a statement of fact and not a mere expression of opinions. Mere absence of particulars would not necessarily mean that a statement without particulars is always an expression of opinion. In the case of Inder Lal v. Lal Singh, AIR 1962 SC 1156, it was held that an allegation to the effect that a candidate was purchaser of the opponents of the Congress by means of money, without any particular as to who was purchased and when, would be taken as a statement of fact relating to the personal conduct or character of the candidate. This shows that particular are not necessary before a bald statement with respect to personal character or conduct of the candidate can be said to be a statement of fact. See to personal decision in Ram Dial v. Sant Lal, AIR 1959 SC 855.
       – as held in the case of Kumara Nand v. Brijmohan Lal Sharma, AIR 1967 SC 808 the responsibility for such publication in the circumstances of the case is of the candidate and it is the candidate’s belief that matters and not the belief of the person who actually read it with the consent of the candidate.

Judgment

WANCHOO, J. : This is an appeal on a, certificate granted by the Rajasthan High Court and arises in the following circumstances. There was an election to the Rajasthan Legislative Assembly from the Beawar constituency at the general election in 1962. A number of persons stood for election, two of whom were the appellant and the respondent. The appellant secured the highest number of votes while the respondent came second. The appellant was declared successful at the election and this led to an election petition by the respondent.

2. A number of grounds were taken in the election petition for invalidating the election of the appellant, but in the present appeal we are concerned with one ground and shall refer to that only. That ground was that the appellant had committed a corrupt practice as defined in Section 123 (4) of the Representation of the People Act, No. 43 of 1951, (hereinafter referred to as the Act). The case of the respondent was that the appellant had published a statement of fact in relation to the respondent s personal character or conduct and that statement of fact was false, and the appellant either believed it to be false or did not believe it to be true. The statement was reasonably calculated to prejudice the prospects of the respondent s election. In consequence, the respondent prayed that the election of the appellant be set aside.

3. It is unnecessary to refer to the reply of the appellant to the above contention, for learned counsel for the appellant does not dispute the findings of fact arrived at by the High Court. It will therefore, be enough to refer to these findings with respect to the corrupt practice alleged by the respondent. The High Court found that the appellant was responsible for the publication of a poem entitled Mang raha hoon de bhai vote: (I am an applicant and request your vote). This poem was composed by one Avinash Chander of Beawar. It was not disputed before the High Court that the poem in question was aimed at the respondent and he was the target of the attack made therein. The High Court also found that the poem in question was read at an election meeting of February 21, 1962 at which the appellant himself was presiding. Avinash Chander had recited this poem at that meeting. It was also found that the booklet containing the poem was printed at the instance of one Chand Mohammad, who was polling and counting agent of the appellant and who had also paid the author (Avinash Chander) something for it. The appellant had seen the booklet containing this poem sometime before the meeting of February 21, l962 and had read it. Further the High Court held that the booklet containing the poem was printed with the knowledge and approval of the election agent of the appellant. Finally, the High Court held that the poem was recited at the meeting of February 21, 1962 by Avinash Chander and the appellant was presiding at that meeting and Kalyan Singh, his election agent, was also present In it, and thus there was sufficient publication within the meaning of S. 128 (4) of the Act, for which the appellant was responsible.

4. The Tribunal had held that the appellant was responsible for the publication of the booklet containing this poem and it contained statements of fact which the appellant either believed to be false or did not believe to be true. These statements of fact were held to be in relation to the personal character or conduct of the respondent and were reasonably calculated to prejudice the prospects of the respondent s election. In consequence the Tribunal had held the appellant guilty of the corrupt practice within the meaning of S. 123 (4) and allowed the election petition.

5. The appellant then went in appeal to the High Court and three main points were urged on his behalf there. In the first place, it was contended that there was no statement of fact at all in the poem in question. Secondly, it was contended that even if there was any statement of fact in the poem it should

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1966 Supreme(SC) 319

Cases Referred (3)