1969 Supreme(SC) 71

SUPREME COURT OF INDIA
M. HIDAYATULLAH, C.J.I. AND G.K. MITTER, J.
Samant N. Balakrishna, etc., Appellants
Versus
George Fernandez and others etc., Respondents.
Civil Appeals Nos. 895 and 896 of 1968,
D/- 12-2-1969.
Advocates Appeared
In C. A. No. 895 of 1968
M/s. R. Jethamalani, N. H. Hingorani and Mrs. K. Hingorani, Advocates, for Appellant:
In C. A. No. 896 of 1968
M/s. C. K. Daphtary and A. K. Sen, Senior Advocates (Mr. K. S. Cooper and Mrs. K. Hingorani Advocates, with them), for Appellant; Mr. A. S. R. Chari, Senior Advocate (M/s. Porus A. Mehta, S. B. Naik, Kumar Mehta, R. Nagaratnam and K. Rajendra Chaudhuri, Advocates, with him), for Respondent No. 1 (In both the appeals).

Headnote:ALLEGATIONS MUST BE SUFFICIENT CLEAR AND PRECISE AND CONCISE - charges is established would lead to the avoidance of the election of a returned candidate - proof of corrupt practice — “any other person”— meaning - election agent is the alter ego of the candidate - charge against an agent who is an editor of a newspaper — proof of consent - consent — presumption of - News item

       – Sections 100 and 101 enumerate the kind of charges which, if established, lead to the avoidance of the election of a returned candidate and the return of some other candidate. The first sub-section of Section 100 lays down the grounds for declaring an election to be void. These include corrupt practices committed by the candidate, his election agent and any person with the consent of the returned candidate or his election agent. The second sub-section lays down an additional condition which must be satisfied before the election can be declared to be void even though the corrupt practice is committed by an agent other than the election agent. Section 101 set forth the grounds on which a candidate other than the returned candidate may be declared to have been elected. Section 101 actually does not add to the grounds in Section 100 and its mention in Section 81 seemed to be somewhat inappropriate as held in S.N. Balakrishna v. George Fernandez, AIR 1969 SC 1201. Sections 100 and 101 deal with the substantive law on the subject of elections. These two sections circumscribe the conditions which must be established before an election can be declared void or another candidate declared elected.

       

       – the petitioner may prove a corrupt practice by the candidate himself or his election agent or someone with the consent of the candidate or his election agent, in which case he need not establish what the result of the election would have been without the corrupt practice. The expression “any other person will include an agent other than an election agent. The law then is this: if the petitioner does not prove a corrupt practice by the candidate or his election agent or any other person with the consent of the returned candidate or his election agent but relies on a corrupt practice committed by an agent other than an election agent, he must additionally prove how the practice affected the result of the poll. Unless he proves the consent to the commission of the corrupt practice on the part of the candidate or his election agent he must face this additional burden. The definition of agent in this context is to be taken from Section 123 (Explanation) where it is provided that an agent “includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate. “In this explanation the mention of “an election agent” would appear to be unnecessary, as held in Samant N. Balakrishna v. George Fernandez, AIR 1969 SC 201, because an election agent is the after ego of the candidate in the scheme of the Act and his acts are the acts of the candidate, consent or no consent on the part of the candidate.

       

       – consent need not be directly proved and a consistent course of conduct in the canvass of a candidate may raise a presumption of consent. As observed in Samant N. Balakrishna v. George Fernandez, AIR 1969 SC 1201, it would be a very wide jump to say that the respondent had consented to each publication as it came or even generally consented to the publication of items defaming the character and conduct of Mr. Patil. The consent must be specific. Otherwise there must be some reasonable evidence from when an inference can be made of the meeting of the minds as to these publications or atleast a facit approval of the general conduct of the agent. If this distinction is not kept in mind there would be no difference between Sections 100(1)(b) and 100(1)(d) is so far as an agent is concerned. A corrupt act per se is not enough under Section 100(1)(b) while under Section 100(1)(d) the act must directly affect the result of the election in so far as the returned candidate is concerned. Section 100(1)(b) makes no mention of an agent while Section 100(1)(d) specifically does. There must be some reason why this is so. The reason is this that an agent cannot make the candidate responsible unless the candidate has consented or the act of the agent has materially affected the election of the returned candidate. In the case of any person (and he may be an agent) if he does the act with the consent of the returned candidate there is no need to prove the effect on the election.

       

       – a news item without any further proof of what had actually happened through witnesses is of no value. It is at least a second hand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or barbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the evidence is forcible, as held in Samant N. Balakrishna v. George Fernandez, AIR 1969 SC 1201 and followed in Manmohan Kalia v. Shri Yash, AIR 1984 SC 1161.