Holding

The High Court correctly dismissed the election petition as the allegations of corrupt practice under Section 123(4) were not proved beyond reasonable doubt, and the request for a recount was untenable.

Summary

In the 1982 Kerala Legislative Assembly election for Eravipuram, appellant A. Younus Kunju lost to R.S. Unni by 789 votes and filed a petition alleging corrupt practices under Section 123(4) of the Representation of People Act, 1951, claiming that Unni's election agent Azeez published a hand‑bill falsely accusing Kunju of murdering a party worker. The petition also sought a recount, alleging irregularities in ballot counting. The High Court dismissed the petition, finding that the allegations of corrupt practice were not proved beyond reasonable doubt and that the evidence on the hand‑bill and the witnesses (who were Kunju's own workers) was unreliable; it also rejected the request for a recount. On appeal, the Supreme Court affirmed the High Court’s decision, emphasizing the criminal standard of proof for corrupt practice, the inadmissibility of a hearsay police report, and the adverse inference drawn from the failure to produce the original hand‑bill. Consequently, the appeal was dismissed and costs awarded against the appellant.

Issues considered

Whether the alleged publication of a hand‑bill containing false statements about the appellant constitutes a corrupt practice under Section 123(4) of the Representation of People Act, 1951.
Whether the charge of corrupt practice was proved beyond reasonable doubt, the required standard of proof.
Whether the police officer's report, based on gossip, is admissible as evidence.
Whether the non‑production of the original hand‑bill permits an adverse inference against the appellant.
Whether the appellant was entitled to a recount of ballot papers on the basis of alleged counting irregularities.

Legislation cited

Representation of People Act, 1951s. 116A, s. 123(2), s. 123(4), s. 123(7)

Subjects

election petitioncorrupt practiceRepresentation of People Actstandard of proofhearsaynon‑production of evidencerecountpolitical party

Judgment

,.
162
A
A. YOUNUS KUNJU

v.

R.S. UNNI & OTHERS ·
B
March 8, 1984

[S. MURTAZA FAZAL ALI AND RANGANATH MISRA, JJ.]

Election Law-Representation of People Act, 1951 Section 123(4)-Al!egation
·c of Corrupt Practice and irregularities in the matter of·counting of ballot papecs-
Standard ofproof of the charge of corrupt practiCe is the' sarlle in efectioh case,
as_in a criminal case.

In tbe election held on 19.5.1982 for the election of a member of the Kerala
Legi$lative Assembly "from constit.uency No .. 125 lEravipuram in the Quilon
District of that State, there were eight candidates in all but the main contest was
.D between the appellant and the respondent. No. 1. The appellant polled 37,073
while the respondent polled 37,862. There was therefore an e~cess of 789 votes.
As per the ·result. declared .on 20.5.1982, the respondent wa• declared elected.
The appellanftherefore, filed an election petition in the Kerala. High Court
alleging commission of corrupt practices wi_thin the meaning of J;Ub-sectiOns 2,
4, and- 7 of Section 123 of th~ Act and Several irregularities in .the course of
counting leading to wrong conclusion regarding the result. In paragraphs 4 to 8
E · of the election petition it had been alleged that e1ecti0n agent Azeez published a
statement dated 13.5.1982 in thdorm of a hand-bill ~kiag faI1e but serious
allegations ~gainst the appellant touching his personal character and conduct.
It was alleged that the· appellant h3.d caused the murder of one Omana, a _18.dy
worker supporting Respondent -No. 1 because she refused to work for the
appellant. The oral evidence to this Cffect byPWs 7, 8, 11 and 12 who-wefe
the workers of tbe appellants aiid the plea for nonsummoning the.printer with
F
the· documents printed by him were not believe~ by the Election Judge. The·.
election petitiotvhaving been dismissed,..the petitioner has come in appeal.

Dismissin& the appeal_. the Court

HELD : 1 : 1. The High Court rightly negatived the challenge to the·
G election of respondent No. 1 o~ gro~nds of corrupt pra~tice. [168E]

1 : 2. There is a -total consensus of judicial opinion that a chl:trge of
•
currupt practice under the RepresentatiOJJ of People Act, 195f has to be proved
beYond reason8.b1e doubt and the standard of prOof is the same as in a criminal
case .. When the High Court applied the right standard in the. matter Of . . .,#Jr,
"f, .....
appreci~tion of the material pla:ced before it and has come to hold that the
• H . allegatiorls of corrupt practice within the meaning of ~ection 123(4) of the Act
bas not been proved, tbe Supreme Court would not re-appreciate the evidence.
'. (167F·H, 168AJ
•.

A. Y. KUNJU v. R.s. UNNi (Ranganath Misra, J. ) 163
Mahant Shreenath v. Chaudhry Ranbir Singh [1970] 3 S.C.C. 647; Bqddepal/i A
Rajtl{{opa/a Raa t. N.G. Ranga, A.I.R. 1971 SC 267; applied .
• •
I : 3. Want of proper steps at the right time and negligence or. wilful
default at 1he trial to Cause the summons and prodllctiOn of· a document must
only lead the Court todraw an acfvcrse inferance· regarding non production of
the relevaot material. [165G-H]

1 : 4. Any report of a police officer which indicates that the information
•J was gathered from the gossips in the locality jg not admissible and it is hearsay
of a type to which no. credence could attach. [166A-B] ·

l : 5. When an election was fought on party basis and there was sharp
division of the electorate on the basis of political parties, workers at the election C
with party alignment would Ilece~sarily be political supporter of the tespective
canOidates and when called as witnesses th~y would support· their stand.
Instances are not uncommon where such witnesses support_ their respective can-.
didates and their cas~ even though the same may be far from truth. In such
circun1stances·on the oral. testimony of PWs 7, 8, 11 ·and 12 who are admittedly
workers of the appellant the change of publication of objectionable materials
can not be said to have been established. [t61iB-D] D

CNIL · APPELLATE JURISDICTION: Civil Appeal No. 5992 of
1983

·Appeal from the J11dgment and order dated the 7th December,
1982 of the Kerala High Cowt in Election Petition No. 8 of 1982 E·

M.M. Abdul Khader and E.M.S. Anam for the Appellant.

f. Govinden Nair and N. Sudhakaran for the Respondents.

The Judgment of the Court was delivered by F

RANGANATH MISRA, J. This appeal under Section ll6A of the
Representation of People Act, 1951 (hereinafter referred to as 'the
Act') is directed against the decision of the Kerala High Court
dismissing the election petition of the appellant whereby he chal-
G

..
lenged the election of respondent No . 1 as a member of the Kerala
Legislative Assembly from Constituel)cy No. 125 Eravipuram in the
Quilon district of that State. Election was held· on 19.5.l\2 and the

,, result was declared on the following day. There were eight candi-
dates in all but the main contest was between the appellant and the
respondent No. 1. The appellant polled 37, 073 while respondent
No. 1polled37, 862. There~was, therefore, an excess of 789 votes.
All the remaining candidates together polled abo11t 2,000 votes.
H
• 164 $UPREME COURT REPORTS [1984] 3 s.c.R:
A Challenge to the election was laid on two g!'.ounds:- namely,
commission of corrupt pr~ctices within .the ~eaning of sub-sections
· 2, 4 and 7 of Section 123 of the Act and several irregularities in th~
•
course of counting leading to wrong conclusion regarding the result.
The returned candidate .joined issue and denied these allegations.
The learned Election Judge in the High Court came to hold that the
B appellant had failed to bring home the charges of corrupt practices ..
He also did .not accept the plea of irregularities in counting ofbal!ot-
papers. A request made to him for recount was rejected and on these
conclusions he held that the election petition was liable to be
dismissed.

Appellant's counsel conceded tha't the allegations of corrupt
practices covered by sub-section 2 of Section l 23 of the Act would
not be pressed. He also fairly accepted the position that the evidence
·relating. to obtaining or procuring of assistance for ·the furtherance
· of the prospects of respondent No. ' l's election from. government
~ervants was inadequate as found by the High Court. Two grounds
were, therefore, pressed in support. of the appeal, na'mely, the
allegations of corrupt practice within the Section 123(4) of the Act
and the allegations of irregularities in the matter of counting of_
ballot-papers.

Section 123(4) provides:

"123. The following shall}be deemed to·: be corrupt
o practices for the purposes of this Act:-

(4) The publication by a candidate. or his agent or by
F. any 0th.er pers.on (with the consent of a candidate or his
.
election. agen.t), 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 witbdrawal, of
any candidate, being a statement reasonably calculated to
G
prejudice the prospects of that candidates e.lection."
•
Admittedly Azeez was the election agent of respondent No: I.
In paragraphs 4 to 8 of the election petition, it bad been all~ged
that election agent Azeez published a statement dated 13.5.82 in tlie
'H form of a hand-bill making false but serious allegations against the
appellant touching his personal character and· conduct. It was
alleged that the appellant had ca11se<J t4e murder of one OII\ana1 a
)... "· KUNJlJ·v. iu. UNNI (Ranganath Misra, J.) 165

lady worker supporting the respondent No.I because she refused to A
sllpport his campaign. A meeting was held on 14.5.82 at a place
known Tatamala Junction to condemn and ·Condole the said death.
If'was respresented that the death was "Caused on the ground that
the said helpless lady was not prepared to work for him. Azeez
along'wit)l other election workers carried wide scale propaganda B
with loud-speakers. At the said meeting there were many speakers
including Azeez and the respondent No. I who spoke in the same
·strain as the contetl'ts of the hand-bill. This was done ··with a view
to affecting the prospects of tile appellant's election. Similar
propaganda was said to have been made by them urnil canvassing
stopped. The respondent No.I denied these allegations in the written c
· statement. According to the appellant the corrupt ptactices within
the meaning of Section 123(4) of the Act related to distribution of
the hand-.bill in question, na~ely, at two places being Mayyanana
and Thrikkovil Battom areas and the speeches were made at the
public meeting held at Tatamala Junctiqn.
D
Exhibit P-1 is a copy of the hand-bill. No steps were taken to
summon the original documynts"from the press where the hand-bill
is said to have been got printed by Azeez, though the name of the
press was borne on the hand-bill. Soon after the hand-bill came to
be circulated a denial was published by the press to the effect that no E
such bill was printed and/or publish~d by the press. Admittedly the
relevant materials if called from. the press would have been the best
evidence to provide the link. between the publicafion of tl;ie objectio'
nable material and the 'election agent of the respondent No.I.-
When. we made a qu~ry from !counsel for the appellant as to why
such steps were not t~ken and the primary evidence was kept away F
from the Court, learned counsel.indicated to us that. the press bad
• come out with a denial'closely following the circulation and it was
not likely that the press would have caused production of the doca·
ment. Since the name of the press was given in the document and
appellant proceeded on the footing that the document was printed in
the said press, if the press did not comply with the summons, G
. production could have been~enforced by law. Want of proper steps
at the right time and negligence or wilful default at the trial cannot
·be answered in the manner appellant's counsel has contended before
us .and w.e must draw adverse inference against the appellant for
non-production of the re.levant material. Reliance was also placed
on a report by P.W.4, a police officer where there was mention of
such prop~ganda being carried on with reference t0 the death of the

•
166 SUPJlEMB,co\JRt REPORTS [l 984) 3 s.c.iv

A ~ lady. The ·report did not indicate the source but only statel:l th~t
; the police officer collected the information from the gossips in. the
! locality. Such a report as righly held by the High Court was not
ll admissible ,and it was hearsay of a type to which no credence could

B.
I attach. Though counsel was very vehement to press this document
, into service he was not in a position to cite any legal basis for doing
/ so. Apart from these two documents' which we hold had b~en
•' rightly ruled out, the other evidence is oral in character and P.Ws. ,
'. 1, 8, II and J2 are the witnesses who have. been spoken about it.·
Admittedly all these witnesses were the workers of the appellant.
There is over-whelming m.aterial ~n the record, and even counsel
• C. fairly admitte.d, that .the election was fought on party basis and there
was sharp division of the electorate on the basis of political parties.
That being the position, 'workers at the election with party alignment
would necessarily be political supporters of the respective candidates
and when •called as Witnesses they would '.support their stand.
Instances are not uncommon where· such witnesses suppo·rt their
D respective candid.ates ·and their cases even though the same be far
from truth. In such· circumstances we do not think on the oral.
testimony of. these fo'ur witnesses the, charge of publication of '
· objectionable
~ . materials
. can be said to have .been established.

Admittedly the meeting at Tatamala Junction was held on the
E 14.5 .. 82 towards the evening. It is the case of the appellant that at
this meeting the respondent No. 1, his election agent Azeez and
several other ·supporters spoke. Each one of them referred tothe.
appellant as the person respohsible for the murder of tpe lady.
There is no dispute before us that the picture drawn up as the appel-
lant as the murder• of the lady' would very .much tarnish hjs image,
F personality and c~cter and woul.d have ad'1ersely affected the.
prospects of his winning the election is, widely circulated in the cons-
tituency before pollin.s. Three witnessas have been examined being
P.Ws.2, 6 and 9 in respect of the Tatamala meeting. P.W. 2 was the
Circle Inspector of Police of the area and stated that he had attended
the meeting. Though the 'meeting started at 7 p.m. he went to the
G. meeting place at about 9 p.m. and remained there for about ·an hour.
Thus at about 10 p.m. he left the place but the. meeting was· still
continuing. 'He referred to the speech by Azeez but did nol indicate
as to what exactly he spoke. In cross-examination he admitted that
•
. though he ma~ifllined a diary, the details Of the meeting were not
.

available and he did not report about the meeting to his superior
H
officers, This evidence does not lend any support to the case sought to
be made out by the appellant. P.W. 6 was a·printer and publisher of

•
A. Y.• kUNJlJ v. R.s. UNNI (Ranganath Misra, /.) 167 \

the newspaper by name Pauramitram. His evidence is that he was A
also working as reporter of the paper and.had gone to the meeting
in such capacity. pn the basis of his jottings he gave a news item
which was published in the paper marked Exhibit P-3. He claims
to have left the meeting place at.9.30 p.m. but th~ meeting was still
continuing. The news item as. rep.orted.does indicate what Azeez
B
spoke. ·The -,vitness also deposed on oath ·about the speech of
J Azeez. The ·High ·court refused to .place any reliance on this
witness mainly on account of the fact that this paper was not an •
established newspaper of the area and did no·t have regular pubJi;•
. cation. On the basis of the evidence of R. W. 1 the information
officer at the state headquarter.s, ·the High Court came to doubt the .. c
bona-fide of f.W.6 as also his paper. We have also perused tI:ie
evidence of P.W.6 and R.W.l and the· observations of the High
Court in regard to this aspect. We are inclined to agree with the
High Court that the evidence of the witness is not impressive and we
hold the same was rightly rejecte<l by the High Court which had
occasion to see him. The only other witness who has been examin- D
ed in regard to the meeting.is P.W.9. a person who claims to be
independent and\unc.onnected with the lis. P.W.9 on his.own show-
ing had gone to .see his father suffering from a heart,attack. 'He
came from a place' about 20 kilometres away. According to him he
left father's place by around 10.30 p.m. If that be so and he
was covering a distance of about 20 kilometres, he would not have E
.reached the meeting place before 11.p.m. when the meeting is said
to have concluded. His evidence that he stayed at the meeting place
to listen to the speeches for quite sometime has therefore, to'be rul-
ed out as inconsistent with the .other evidence. His evidence too has
been rightly rejected by t~e High Court.
F
There is total consensus of judicial opinion that ·. a charge of
corrupt practice under the Act has to be proved beyond reasonable
doubt and standard of proof is the same as in a criminal case. ·See
Mahant Sliree Nath v. Chaudhry 'Ranbir Singh. 1 This proposition
has even not been disputed by counsel for the .appellant. We, th.ere- c
fore, do not propose to refer to the catena of de.cisions affirming the
aforesaid view. The High Court applied the right standard in the
matter of appreciation of the material placed before it and has come
to hold that the allegations of corrupt practice · within the meaning
of Section 123(4) of the Act has not been proved. In su~h a situa-
H
(l) [1970] 3 s.c.c. 647
16S SUI'll.EMll COuilT 11.EPollTS [!~84] 3 s.c.k
'
·A fion as· pointe~] out ·by thislCourt1 in Jthe case of Boddepalli
. J?.ajagopa/a RM v. N.G. Ranga,1 this Court would not reappreciate
.the evidence. Shah, J. as he then was observed t~us:. . ·

"The finding of the learned Trial Judge is based upon
appreciation of evidence of the witnes~es in the light of'proba-
B bilities. A charge of corrupt practice under the Representa-
tion of the People Act must be established by clear _and
• cogen~evidence. When the Court of First Instance on a con-
• sideration of . the evidence of· the witnesses· has refused to
place any reliance upon their testimony the burden lying upon
c tha party setting up a plea of corrupt practice beco~es no
lighter in appeal. T)le charge cannot be held, established
merely upon suspicion, or preponderance of probabilities.
Unless the appellant establishes that the appreciatfon of evi-
dence was vitiated by gross misreading or misconception of the
evidence or because of failure to- consider important pieces of
D evidence which had a bearing on the charge or because of
serious·irregularities in procedure which amount to a denial.
of a. fair trial the appellate court. will not proceed to re-

. .
appreciate the evidence on which the findings are recorded
by the Court of First Instance on the credibility of witnesses." ·

E We are in complete.agreement with these observations. Our
conclusion, therefore,· is that the High Court ri~htly negatived the
challenge to the ·election of respon~ent No. l on grounds of corrupt
practices.
.
· /If,•
I
. .

F The only other c-0ntention canvassed at the h<aring is about
· the irreguJarities in the counting. The total rejected. ballot-papers
were within the range of SQO while the difference between the
appellant and the . respondent No. l was .about 800. The details
necessary for obtaining a recouI>t Weijj, not pleaded in the election
petition nor was any cogent material placed before the Court which
·G could bring the matter within the rule indicated by this Court t.o
justify :a
direction for recount .. That !plea, in our opinion, has
rightly been negatived by the High Court. The appeal fails and is
dismissed. Parties shall beat their own costs in this Court.
·~
Appeal dismissed.
H
(I) AIR [1971) S.C. 267