Holding

The pamphlet's statement did not relate to the personal character or conduct of the defeated candidate, so no corrupt practice under Section 123(4) was established and the election was not void.

Summary

The Kerala High Court set aside M.J. Jacob's election on the ground that a pamphlet published on his behalf contained a false statement that was held to be about the personal character of his rival, T.M. Jacob, constituting a corrupt practice under Section 123(4) of the Representation of the People Act, 1951. The Supreme Court examined the ingredients of Section 123(4) and held that the statement in the pamphlet concerned the conduct of a member of the rival's staff, not the rival himself, and therefore did not relate to the personal character or conduct of the defeated candidate. The Court emphasized that allegations of corrupt practice must be proved beyond reasonable doubt and that innuendo must be clearly pleaded. It also reiterated the principle that the mandate of the electorate should not be lightly disturbed. Consequently, the Court allowed the appeals, set aside the High Court judgment and dismissed the election petition, restoring Jacob's election.

Issues considered

The statement in the pamphlet must relate to the personal character or conduct of a defeated candidate to attract Section 123(4).
Whether the alleged false statement in the pamphlet was proved beyond reasonable doubt as required in an election petition.
Whether an innuendo can be inferred without a specific pleading and proof of extrinsic facts.
Whether the election result can be set aside on the basis of a purported corrupt practice, considering the principle of respecting the electorate's mandate.

Legislation cited

Representation of the People Act, 1951s. 100(1)(b), s. 123(4), s. 77, s. 99(1)(a)(ii)

Subjects

Representation of the People ActCorrupt practiceElection petitionFalse statementPersonal characterInnuendoStandard of proofMandate of the peoplePamphletDefamation

Judgment

[2009] 4 S.C.R. 305

~4
M. J. JACOB A
V.
A. NARAYANAN & ORS.
Civil Appeal No. 3611 of 2008
MARCH 6, 2009
B
(R.V. RAVEENDRAN AND MARKANDEY KATJU, JJ)
... REPRESENTATION OF THE PEOPLE ACT, 1951:
•
s. 123(4) - Corrupt practice - Ingredients of - Printing
and publishing of pamphlet containing false accusation stated c
to be relating to a candidate - HELD: False statement should
relate to personal character or conduct of a defeated candidate
- In the instant case, the alleged false statement did not relate
to the candidate - High Court erred in setting aside election of
,, , returned candidate - Judgment of High Court set aside.
D
ELECTION LA w·
Corrupt practice - Proof of- HELD: In an election petition,
the standard of proof of an allegation regarding corrupt practice
is like that of a criminal case - Allegations must be proved
E
beyond reasonable doubt - In case of two probable views,
benefit of doubt should go to returned candidate .
•
.. ELECTION LAW:
/
Election of returned candidate - Challenge to - HELD:
Mandate of people as expressed in election results should F
ordinarily be respected by courts and election of a successful
candidate should not be lightly set aside.
Respondent No. 1, a voter, filed an election petition
seeking to declare the election of the appellant to the G
Legislative Assembly of the State of Kerala, as void on
the allegation of corrupt practice. The High Court allowed
the petition holding that the election agent of the appellant
and two others were proved guilty of corrupt practice u/s
305 H
306 SUPREME COURT REPORTS [2009] 4 S.C.R

A 123(4) of the Representation of the People Act, 1951, of
preparing, publishing and distributing a pamphlet (Ext.
P1), containing in para 2 of the said pamphlet, a false
statement in relation to personal character or conduct of
one of the defeated candidates, namely, 'TMJ', that a
B member of his personal staff (driver 'S') attempted to
murder Thirumaradi Congress Mandalam President and
two others. Aggrieved, the returned candidate filed the
appeal. .
Allowing the appeal, the Court
c
HELD: 1.1 A basic principle in the law relating to
elections and election petitions is that the mandate of the
people as expressed in the election results, should
ordinarily be respected by courts, and the election of a
successful candidate should not be lightly set aside. [para
0
14] [317-0]
R.P Moidutty vs. P T Kunj Muhammed (2000) 1 SCC
481; Mahanth Shreo Nath vs. Choudhary Ranbir Singh 1970
(3) SCC 647; Manphul Singh vs. Surinder Singh 1973 (2) SCC
E 599; Rahim Khan vs. khurshid Ahmed and Others 1974 (2)
SCC 660; Bir Chandra Barman vs. Shri Anil Sarkar and Others
1976 (3) SCC 88; Lakshi Raman Acharya vs. Chandan Singh
and Others 1977 (1) SCC 423; Amo/akachand Chhazed Vs.
Bhagavandas Arya and Another 1977 (3) SCC 566 - relied
F on.
1.2 In an election petition for proving an allegation of
corrupt practice the standard of proof is like that in a
criminal case, and, therefore, the allegation must be
proved beyond reasonable doubt, and if two views are
G possible then the benefit of doubt should go to the elected
candidate. [para 10] [314-F-G]
Manmohan Katia vs. Yash & Ors. (1984) 3 SCC 499;
Razik Ram vs. Jaswant Singh Chauhan (1975) 4 SCC 769;
H Surinder Singh vs. Hardial Singh (1985) 1 SCC 91 and
M. J. JACOB V. A. NARAYANAN & ORS. 307

~·'"'-
Mercykutty Am ma vs. Kadavoor Sivadasan (2004) 2 SCC 217 A
- relied on.
Mohan Singh vs. Bhanwarlal 1964 (5) SCR 12; TK Gangi
Reddy vs. M. C. Anjaneya Reddy 1960 (22) ELR 261, Jagjit
Singh VS. Giani Kartar Singh AIR 1966 SC 773; lnder Lal VS.
Lal Singh 1962 Supp (3) SCR 114; Gadakh Yashwantrao B
Kankarrao vs. Balasaheb Vikhe Patil 1994 ( 1) SCC 682 -
... referred to .
-#

2.1 In order to establish an allegation regarding
corrupt practice u/s123(4) of the Representation of the c
People Act, 1951, the ingredients to be satisfied are: (i)
there should be a publication by the candidate or his
agent, or by any other person, with the consent of a
candidate or his election agent; (ii) the said publication
,.. ' should contain a statement of fact which is false; (iii) the
D
person making such publication should either believe
such statement to be false or not believe it to be true; (iv)
such false statement should be in relation to the personal
character or conduct of any candidate; and (v) such false
statement should reasonably be calculated to prejudice
the prospects of that candidate's election. What is crucial E
is that the false statement should relate to the personal
character or conduct of a defeated candidate. Where the
• "
false statement was about some one other than the
candidate, this Court has refused to consider the
publication to be a corrupt practice under Section 123(4). F
[para 23-24] [323-H; 324-A-E]
Dev Kanta Barooah v. Go/ak Chandra Baruah (1970) 1
SCC 392 and Jagdish Prasad Tiwari v. Ramdhani Mishra
~ (1975) 1 sec 108 - relied on.
G
-- Ku/tar Singh v. Mukhtiar Singh (1964) 7 SCR 790 -
referred to.
2.2 In the instant case, paragraph 2 of the pamphlet (
Ext. P-1) published on behalf of the appellant-returned
H
308 SUPREME COURT REPORTS [2009) 4 S.C.R.

A candidate contained allegations against one 'S', a member
of personal staff of the defeated candidate (TMJ) that (i)
'S' attempted to murder three persons and (ii) continued
to be an absconder. Neither of these allegations are made
against the candidate nor did it contain any allegation that
8 the candidate was in any way involved either attempt of
'S' to murder the said three persons or that he helped 'S'
to remain an absconder by harbouring him or otherwise.
It is not, therefore, possible to read into the question, an
...
implied false statement that the candidate harboured a
member of his personal staff who was a murder accused
C and absconder. [para 27] [326-G-H; 327-A-B]
3.1 As regards the contention that the conclusion that
the candidate harboured any accused can be drawn by
innuendo, it is to be noted that innuendo is to be clearly
pleaded. There should have been a clear pleading in the
0
election petition that the statement in paragraph 2 of Ext.
. P1 is an innuendo, and that it really means that the
candidate harboured 'S'. That has not been done in the
election petition. [para 28 and 30] [327-C-D-H; 328-A-B]
E M. J. Zakharia Sait vs. T M. Mohammed (1990) 3 SCC 396;
and Mohan Singh vs. Bhanwarla/ (1964) 5 SCR 12 - referred to.
3.2 Even if the statement in the interrogative form in
paragraph 2 of Ext. P-1 is regarded as an assertion, it will
.,, .
not amount to a corrupt practice u/s 123(4). [para 34] [328-
F H; 329-A]
4.1 It may be noted that the candidate (TMJ) has not
filed any election petition nor did he make any complaint
about the said pamphlet. In fact, the election petitioner
has stated in his evidence, "'TMJ' did not complain of any
G authority regarding publication of Ext. P1 ". It is also
significant that 'TMJ' chose to complain about another
candidate but not against the elected candidate. This
-
clearly indicates that the candidate himself did not
consider Ext.P1 as casting any aspersions against his
H personal character and conduct. [para 35] [329-8-C]
M. J. JACOB V. A. NARAYANAN & ORS.· 309

~"' 4.2 The question as to whether the allegation that '"S' A
is an absconder" was true or not, and whether the
appellant believed it to be true or not, need not be gone
into. In fact no effort was made to examine 'S' as a witness.
Even if the allegation was true it does not attract s.123(4).
[para 36] [329-D] B
4.3 Once it is held that paragraph 2 of Ext. P-1 did not
...,
contain any statement regarding the personal character
.... and conduct of the candidate (TMJ), it follows that the tail
piece of Ext.P1 will have to be considered as not against
the personal character and conduct of the candidate, but c
as a statement in respect of his public and political
character. This does not attract s.123(4) of the Act. [para
37] [329-G-H; 330-A]
.. Case Law Reference
D
" (1984) 3 sec 499 relied on para 10
(1975) 4 sec 769 relied on para 11
(1985) 1 sec 91 relied on para 12
(2004) 2 sec 211 relied on para 13 E

... (2000) 1 sec 481 relied on para 14
)'

1910 (3) sec 647 relied on para 15
1973 (2) sec 599 relied on para 15 F
1974 (2) sec 660 relied on para 15
1976 (3) sec 88 relied on para 15
1911 (1) sec 423 relied on para 15
.....,./ G
-- 1977 (3) sec 566 relied on. Para 15
1964 (5) SCR 12 referred to para 17
1960 (22) ELR 261 referred to para 17
AIR 1966 SC 773 referred to para 17 H
310 SUPREME COURT REPORTS [2009] 4 S.C.R

A 1962 Supp (3) SCR 114 referred to para 17

1994 (1) sec 682 referred to para 17

(1970) 1 sec 392 relied on para 24

(1975) 1 sec 108 relied on. Para 25
B
(1964) 7 SCR 790 referred to para 26

(1990) 3 sec 396 referred to para 28

CIVILAPPELLATEJURISDICTION: CivilAppeal No. 3611
c of 2008

From the Judgement and Order dated 06.05.2008 of the
Hon'ble High Court of Kerala in Election Petition No. 2 of 2006.

WITH
D Civil Appeal Nos. 5774 of 2008, 5783 of 2008

Fali S. Nariman, Vishnu B. Saharya, A.S. Sharma, H.S.
Varghese, Viresh B. Saharya, (M/S. Saharya &Co.) KV Mohan,
Malini Poduval, for the Appellants.

E K.K. Venugopal, Uday U. Lalit, K. Ram Kumar, S. Udaya
Kumar Bina Madhavan, Tarun Satija, Utra Babbar, Shyam
Mohan, (M/S Lawyer's Knit & Co.), for the Respondent.
•
The Judgement of the Court was delivered by

F MARKANDEY KATJU, J.
1. These appeals have been filed under Section 116 A of
the Representation of People Act, 1951 (in short 'the Act'), against
the final judgment and order dated 5.5.2008 passed by the High
Court of Kerala in Election Petition No. 2/2006, declaring the
G election of the appellant (M.J. Jacob) from no.79 Piravom ~-
Legislative Assembly Constituency to be a member of Kerala
Legislative Assembly, the polling for which was held on
29.4.2006, as void. The High Court has also made an order
recording the names of O.N. Vijayan (election agent of the
H returned candidate) and two others Jinson V. Paul and P.G. Manu
M. J. JACOB V. A. NARAYANAN & ORS. 311
[MARKANDEY KAT JU, J.]
~" as persons who have been proved at the trial to have been guilty A
of corrupt practice under Section 123(4) of the Act of preparing,
publishing and distributing the pamphlet (Ex.P1). C.A. No.3611
of 2008 is by the returned candidate. C.A. No.5183 of 2008 is
by his election agent and C.A. No.5774 of 2008 is filed by the
persons named under Section 99(1 )(a)(ii) of the Act. B
2. Heard Shri Fali Nariman, learned Senior Advocate
assisted by Ms. Malini Poduval and Vishnu B. Saharia for the
... "" appellants, and Shri K.K. Venugopal, learned Senior Advocate
assisted by Ms. Bina Madhavan for the respondents. The
impugned judgment was passed on an Election Petition c
challenging the election of the appellant M.J.: Jacob as an MLA
for the Kerala Legislative Assembly in the polling held on
29.4.2006. The High Court by the impugned judgment has
declared the said election to be void on the ground that the
-1
appellant was guilty of corrupt practice under Section 123 (4) of D
the Representation of People Act, 1951 (in short "the Act").
3. The Election Petition in question was filed by a voter in
the election and not a candidate.
4. The ground on which the Election Petition was allowed E
was that a corrupt practice was committed by the publication of
-. the pamphlet Ext. P1 and that such a publication has been made
by the appellant's election agent, one Shri O.N. Vijayan (RW1 ),
and by two other persons (RW2 and RW3) with the consent of
the appellant or his election agent, that the statement of facts in F
Ext. P1 was made in relation to the personal character or
conduct of PW-30 Shri T.M. Jacob, who was a candidate in the
said election, which is false and which the publisher of Ext. P1
either believes to be false or does not believe to be true, and
,.)'- that such statement was reasonably calculated to prejudice the
G
prospects of Shri T.M Jacob PW 30 in the election. Hence it
was prayed that the election be declared to be void under
Section 100 (1) (b) of the Act r/w Section 123 (4) thereof. Though
in the election petition, it was contended that several statements
in Ext.P1 amounted to false statements in relation to the personal
H
i
312 SUPREME COURT REPORTS (2009) 4 S.C.R.

A character and conduct of Shri TM. Jacob, in this appeal, we
are concerned with only one allegation, viz., question No.2 posed
to Shri TM. Jacob in Ext.P1.

5. Section 123(4) of the Representation of the People Act
.states that the following is one of the corrupt practices :
B
'The publication by a candidate or his agent or by any
other person with the consent of a candidate or his election J
agent of any statement of fact which is false, and which he
either believes to be false or does not believe to be true,
..
c 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 prospects of that
candidate's election."
~
D 6. The entire pamphlet Ext. P-1 has been quoted in the
impugned judgment, but it is not necessary to repeat the same
here except the relevant allegation in the said pamphlet which
is in paragraph 2 which states :-
CHARIOT RIDE OF DEVELOPMENT TRICKERY WITH
E THE RIDDLES OF A QUARTER CENTURY.

xxxxxxxxxxxxxxx y

"2. A member of your personal staff who had attempted
to murderThirumaradi Congress Mandalam president P.J.
F Baby, Joseph Babu and K.P. Jacob at Onakoor is still
continuing as an absconder. Can you give an answer to
the ordinary Congressmen in this regard?"

xxxxxxxxxxxxxxx
G RECOGNIZE THE SHAMELESS HYPOCRITE OF '-
DEVELOPMENT TRICKERY REACT AGAINST THE
DECEIVER OF PEOPLE.
7. It is on the basis of this statement in the said pamphlet
H Ext. P1 that the election of the appellant has been declared void
,
M. J. JACOB V. A. NARAYANAN & ORS. 313
[MARKANDEY KAT JU, J.]

~~ by the High Court on the ground that it amounts to a corrupt A
practice. The High Court has held:-
'The foregoing discussions and reasons lead to the
following conclusions:
i. Question no.2 in page 3 of Ext.P1 amounts to a B
statement of facts affecting the personal character
and conduct of Shri T.M. Jacob. The said statement
... in Ext.P1 is false .
,.
ii. The tail-piece of Ext.P1, namely, the exhortation to
'recognize the shameless hypocrite of development c
trickery .......... react against the deceiver of. the
people ...... .' amounts to a statement offacts affecting
the personal character and conduct of Shri T.M.
1 Jacob in the setting in which it is placed, referable to
~
Question no.2 in page 3 of Ext.P1. D
r
iii. The publication of Ext.P1 containing the aforesaid
statements has been made by the respondent, he
having owned up the responsibility of the said
publication by having its expenditure met by making
payment through his election agent and showing such E
expenditure as an expenditure incurred by him in the
return filed under Section 77 of the Act and by RW1,
~·
• the election agent of the respondent and RW2 and
RW3.
F
iv. Publishers of Ext.P1, namely, the respondent and
RW1, his election agent and those who were involved
·--\ in the preparation, publication and distribution of

- _;a

v.
Ext.P1, namely, RWs 2 and 3, had no reason to
believe that the aforesaid statements are true and
had every reason to believe that they are false.
The aforesaid statements made in Ext.P1, were
G

reasonably calculated to prejudice the prospects of
Shri T.M. Jacob in the election.
H
314 SUPREME COURT REPORTS [2009] 4 S C.R

A 8. We fail to see how the aforesaid statement in the said
pamphlet amounts to a corrupt practice. There are two
allegations in the said paragraph 2. Firstly, that a member of
the personal staff of Shri TM. Jacob had attempted to murder
some persons. According to the evidence, this statement was
B regarding one Shri Scaria who was on the personal staff of Shri
T.M. Jacob when he was a Minister. Admittedly, there is no
dispute that the said Shri Scaria was an accused in the
aforesaid murder case and in fact a charge sheet had been
"
filed by the Police. The second part of the said statement in ..
c paragraph (2) is that Shri Scaria is absconding. There is a
serious dispute between the parties whether this statement is
correct or not, but even if it is incorrect we fail to understand
how this would make the said allegation a corrupt practice for
the purposes of the Act.

D 9. Shri K.K Venugopal, learned counsel for the respondent
submitted that in fact this statement that Shri Scaria was an
absconder in the said criminal case of attempt to murder meant
that Shri T.M Jacob was harbouring Shri Scaria when the latter
was absconding. He referred to the evidence of several
E witnesses to support his contention. We do not agree. There is
no mention in paragraph (2) of the pamphlet that Shri T.M. Jacob
was harbouring Shri Scaria.

10. Even assuming that an inference can be drawn from
the allegation that Shri TM. Jacob was harbouring Shri Scaria,
F that is only one possible inference. There may be any number
of other inferences also. It is well settled that in an Election
Petition for proving an allegation of corrupt practice the standard
of proof is like that in a criminal case. In other words, the
allegation must be proved beyond reasonable doubt, and if two
G views are possible then the benefit of doubt should go to the
elected candidate vide Manmohan Katia vs. Yash & Ors.
(1984) 3 sec 499 vide paragraph 7 in which it is stated :-

"It is now well settled by several authorities of this Court
that an allegation of corrupt practice must be proved as
H
M. J JACOB V. A. NARAYANAN & ORS. 315
[MARKANDEY KAT JU, J]

strictly as a criminal charge and the principle of A
preponderance of probabilities would not apply to corrupt
practices envisaged by the Act because if this test is not
applied a very serious prejudice would be caused to the
elected candidate who may be disqualified for a period of
six years from fighting any election, which will adversely B
affect the electoral process."
11. In Razik Ram vs. Jaswant Singh Chauhan (1975) 4
sec 769 vide paragraphs 15 and 16 it was observed:
"Before considering as to whether the charges of corrupt c
practice were established, it is important to remember
the standard of proof required in such cases. It is well
settled that a charge of corrupt practice is substantially
akin to a criminal charge. The commission of a corrupt
practice entails serious penal consequences. It not only
0
vitiates the election of the candidate concerned but also
disqualifies him from taking part in elections for a
considerably long time. Thus, the trial of an election petition
being in the nature of an accusation, bearing the indelible
stamp of quasi-criminal action, the standard of proof is
the same as in a criminal trial. Just as in a criminal case, E
so in an election petition, the respondent against whom
the charge of corrupt practice is levelled, is presumed to
)
be innocent unless proved guilty. A grave and heavy onus
therefore, rests on the accuser to establish each and every
ingredient of the charge by clear, unequivocal and F
unimpeachable evidence beyond reasonable doubt. It is
true that there is no difference between the general rules
of evidence in civil and criminal cases, and the definition
of "proved" in Section 3 of the Evidence Act does not
draw a distinction between civil and criminal cases. Nor G
does this definition insist on perfect proof because
absolute certainty amounting to demonstration is rarely to
be had in the affairs of life. Nevertheless, the standard of
measuring proof prescribed by the definition, is that of a
person of prudence and practical good sense. "Proof' H

l
\
-
316 SUPREME COURT REPORTS [2009] 4 S.C.R.

A means the effect of the evidence adduced in the case.
Judged by the standard of a prudent man, in the light of
the nature of onus cast by law, the probative effect of
evidence in civil and criminal proceedings is markedly
different. The same evidence which may be sufficient to
B regard a fact as proved in a civil suit, may be considered
insufficient for a conviction in a criminal action. While in
the former, a mere preponderance of probability may
constitute an adequate basis of decision, in the latter a far
higher degree of assurance and judicial certitude is
requisite for a conviction. The same is largely true about
.
c proof of a charge of corrupt practice, which cannot be
established by mere balance of probabilities, and, if, after
giving due consideration and effect to the totality of the
evidence and circumstances of the case, the mind of the
Court is left rocking with reasonable doubt - not being
D
the doubt of a timid, fickle or vacillating mind - as to the
veracity of the charge, it must hold the same as not proved.

We have reiterated the above principles not as a
ceremonial refrain of what has been said by this Court
E again and again but to emphasise their importance as a
guide in the matter. A court embarking upon an appreciation
of evidence, without this rudder and compass, is apt to
find itself at sea, mistaking every flotsam for shore,
suspicion for proof and illusion for reality. Since these l

F principles were not constantly kept in mind, the approach
of the High Court in this case to the issues involved, and
the treatment of evidence, appears to have gone awry. It
is therefore, necessary to reappraise the evidence from
the standpoint indicated above."
G 12. In Surinder Singh vs. Hardial Singh (1985) 1 SCC 91
vide paragraph 23 it was observed:-
"lt is thus clear beyond any doubt that for over 20 years the
position has been uniformly equated with criminal charges
and proof tlierecf would be not preponderance of
H
M. J. JACOB V. A. NARAYANAN & ORS. 317
[MARKANDEY KAT JU, J.]

,~
probabilities as in civil action but proof beyond reasonable A
doubt as in criminal trials ... "

.. 13. The above decision has been followed in Mercykutty
Amma vs. Kadavoor Sivadasan (2004) 2 SCC 217 vide
paragraph 27 where it was observed :
B
"Allegations of corrupt practices are quasi-criminal
charges and the proof that would be required in the support
thereof would be as in a criminal charge. The charges of
,. corrupt practices are to be equated with criminal charges
and proof thereof would be not preponderance of c
probabilities as in civil action but proof beyond reasonable
doubt as in a criminal trial."
14. A basic principle in the law relating to Elections and
Election Petitions is that the mandate of the people as expressed
in the election results should ordinarily be respected by courts, 0
, • and the election of a successful candidate should not be lightly
set aside vide R.P Moidutty vs. P T Kunj Muhammed (2000)
1 sec 481 vide paragraph 14 where it was observed :
"It is basic to the law of elections and election petitions
that in a democracy, the mandate of the people as E
expressed at the hustings must prevail and be respected
by the courts and that is why the election of a successful
} • candidate is not to be set aside lightly. A heavy onus lies
on the election petitioner seeking setting aside of the
election of a successful candidate to make out a clear F
case for such relief both in the pleadings and at the trial.
The mandate of the people is one as has been truly, freely
and purely expressed. The electoral process in a
democracy such as ours is too sacrosanct to be permitted
...; to be polluted by corrupt practices. If the court arrives at G
a finding of commission of corrupt practice by a returned
'.
candidate or his election agent or by any other person
with the consent of a returned candidate or his election
agent then the election of the returned candidate shall be
declared to be void. The underlying principle is that corrupt H
318 SUPREME COURT REPORTS [2009] 4 S.C.R.

A practice having been committed, the result of the election it.
does not echo the true voice of the people. As the
consequences flowing from the proof of corrupt practice

B
at the election are serious, the onus of establishing
commission of corrupt practice lies heavily on the person
who alleges the same. The onus of proof is not discharged
merely on preponderance of probabilities; the standard of
-
proof required is akin to that of proving a criminal or a
quasi-criminal charge. Clear-cut evidence. wholly credible
and reliable, is needed to prove beyond doubt the charge
c of corrupt practice."
15. The same view has been taken by this Court in '!"
Mahanth Shreo Nath vs. Choudhary Ranbir Singh 1970 (3)
SCC 647 at Para 4, Manphu/ Singh vs. Surinder Singh 1973
(2) SCC 599 at Para 13, Rahim Khan vs. khurshid Ahmed I
D and Others 1974 (2) SCC 660 at Para 9, Bir Chandra Barman •
vs. Shri Anil Sarkar and Others 1976 (3) SCC 88 Para 5, Lakshi
Raman Acharya vs. Chandan Singh and Others 1977 (1) SCC
423 at Para 2, Amolakachand Chhazed Vs. Bhagavandas
Arya and Another 1977 (3) SCC 566 at Para 13.
E 16. It may be noted that in Exhibit P-2 there is no statement
that Shri T.M Jacob harboured any of the accused persons. The •
allegation about the attempt to murder some persons is not
against Shri T.M Jacob but against Shri Scaria. Hence, we fail •
to understand how the allegation in paragraph 2 of Ext.P1
F affects the personal character or conduct of Shri T.M. Jacob. In
our opinion, paragraph 2 does not convey to the electorate that
Shri T.M. Jacob harboured a member of his personal staff.
Paragraph 2 only speaks about absconding of a member of
the personal staff of Shri T. M. Jacob and not about the
G harbouring of a personal staff by Shri T. M. Jacob. ·\.-.

17. Shri K.K. Venugopal, learned senior counsel appearing
for the respondents, relied upon the decisions of this Court in
Mohan Singh vs. Bhanwarla/ 1964 (5) SCR 12, TK. Gangi
Reddy VS. M. C. Anjaneya Reddy 1960 (22) ELR 261, Jagjit
H
M. J. JACOB V A NARAYANAN & ORS. 319
[MARKANDEY KAT JU, J.]

•• ;I; Singh vs. Giani Kartar Singh AIR 1966 SC 773, lnder Lal vs. A
Lal Singh 1962 Supp (3) SCR 114, Gadakh Yashwantrao
Kankarrao vs. Balasaheb Vikhe Patil 1994 (1) SCC 682. These
are cases where this Court held that pamphlets/leaflets
published and circulated by the elected candidate (or his agent
or by other persons with the consent of the candidate or his B
election agent) containing false statements as to the personal
character and conduct of a defeated candidate, reasonably
1 calculated to prejudice the prospects of that candidate,
,. constituted a corrupt practice under Section 123(4) of the Act
and consequently declared the election of the elected candidate c
as void.
18. In Mohan Singh (supra), this Court observed:
"But in considering whether a publication amounts to a
corrupt practice within the meaning of Section 123(4) the
... D
;.· Tribunal would be entitled to take into account matters of
common knowledge among the electorate and read the
publication in that background, for one of the ingredients
of the particular corrupt practice is the tendency of the
statement in the publication to be reasonably calculated
to prejudice the prospects of that candidate's election." E
'The test in cases under section 123(4) is whether the
. • imputation beside being false in fact, is published with the
object of lowering the candidate in the estimation of the
electorate and calculated to prejudice his prospects at F
the election. And in ascertaining whether the candidate is
lowered in the estimation of the electorate, the imputation
made must be viewed in the light of matters generally
known to them."

A 19 In TK. Gangi Reddy (supra), referring to the provisions G
of Section 123(4), this Court held:
"Do the aforesaid allegations refer to the personal
character and conduct of Anjaneya Reddy, who was a
candidate for the election. The words "personal character
H
320 SUPREME COURT REPORTS [2009] 4 S.C.R.

A or conduct" are so clear that they do not require further
elucidation or definition. The character of a person may "·
ordinarily be equated with his mental or moral nature.
Conduct connotes a person's actions or behaviour. The
said acts attributed to the first respondent certainly relate
B to his personal character and conduct. What is more
damaging to a person's character and conduct than to
state that he instigated a murder and that he was guilty of
violent acts in his political career. We, therefore, have no
hesitation in holding that the allegations in the two leaflets, .
c Exts. P3 and P4, are in relation to the personal character
and conduct of the first respondent. ...... The leaflets were,
therefore, calculated to create an impression in the minds
of the voters not to vote for the first respondent, who was
described as a murderer and a man of bad antecedents.
The leaflets, Exts. P-3 and P-4, were, therefore, in our
D
view, calculated to prejudice the prospects of the first ~

respondent's election."
20. In Jagjit Singh (supra), this Court held:

"The question as to what allegations can be said to amount
E to allegations in regard to the personal character of a
candidate, as distinguished from the public character, is
not always easy to decide on considerations of abstract
principles. The policy underlying the present provision is •
that in the matter of elections, the public and political
F character of a candidate is open to scrutiny and can be
severely criticized by his opponents, but not so his private
or personal character. In order that the elections in a
democratic country should be freely and fearlessly
conducted, considerable latitude has to be given to the
G respective competing candidates to criticize their ),,....
opponents' political or socio-economic philosophy or their
antecedents and character as public men. That is why
even false statements as to the public character of
candidates are not brought within the mischief of Section
H 123(4), because the legislature thought that in the heat of
M. J. JACOB V. A. NARAYANAN & ORS. 321
[MARKANDEY KAT JU, J.. ]
.~
election it may be permissible for competing parties and A
candidates to make statements in relation to the public
character of their opponents, and even if some of the
statements are false, they would not amount to corrupt
practice. Having regard to this policy of the statute, it often
becomes necessary to examine carefully whether the false B
statement impinges on the personal character of the
candidate concerned. Though it is not easy to lay down
'
,,, any general considerations which would· help the
determination of this issue in every case, in actual practice
it may not be very difficult to decide whether the false c
statement impinges on the personal character of the
candidate or on his public character .... "

21. In lnder Lal (supra), this Court held:
"The public and political character of a candidate is open
D
to public view and public criticism and even if any false
statements are made about the political views of a
candidate or his public conduct or character, the electorate
would be able to judge the allegations in that behalf. It is
on this theory that false statements of fact affecting the
public or political character of a candidate are not brought E
within the mischief of Section 123(4). In order that the
._
elections shouid be free, it is necessary that the electorate
" should be educated on political issues in a fearless manner,
and so the legislature thought that full and ample scope
should be left for free and fearless criticism by candidates F
against the public and political character of their
opponents.
But the position with regard to the private or personal
#.-. character of the candidate is very different. Circulation of
G
false statements about the private or personal character
of the candidate during the period preceding elections is
likely to work against the freedom of election itself
inasmuch as the effect created by false statements cannot
be met by denials in proper time and so the Constituency
H
322 SUPREME COURT REPORTS [2009] 4 S.C.R

·A has to be protected against the circulation of such false
statements which are likely to affect the voting of the
electors. That is why it is for the protection of the
constituency against acts which would be fatal to the
freedom of election that the statute provides for the
B inclusion of the circulation of false statements concerning
the private character of a candidate amongst corrupt
practices. Dissemination of false statements about the
personal character of a candidate thus constitutes a corrupt
practice."
.
C 22. In Gadakh Yashwantrao Kankarrao (supra), this Court
held:··

"Before adverting to the particular statements alleged to
have been by Gadakh and Sharad Pawar which are
alleged to constitute the corrupt practice under Section
D
123(4), it would be appropriate to deal with one submission
made by Shri Ashok Desai and followed up by Shri Ram
Jethmalani with greater vigour relating to the manner of
appreciation of evidence in such a case. Shri Desai
submitted that even though it may not be quite proper to
E make statements reflecting on the personal character of
a candidate, yet every such statement does not amount to
a corrupt practice since it does not prejudice the election •
in the prevailing political climate. Shri Desai submitted
that the existing norms do not match the earlier norms
F and, therefore, every reflection on a candidate's character
does not necessarily prejudice his election since the
electorate is not influenced by such a statement in the
prevailing electoral scene ....... .
. . . . . . .. . .We would also like to observe that the suggestion
G
of a liberal construction of the election law relating to
corrupt practices by appreciation of evidence in the
manner suggested in the existing political climate wherein
·mud-slinging' is common place, does not commend to us
as the proper approach envisaged by the election law. If
H
M. J JACOB V. A. NARAYANAN & ORS. 323
[MARKANDEY KAT JU, J.]

purity of election is the essence of democracy and A
providing for invalidation of an election on the ground of
commission of any corrupt practice is the object of enacting
these provisions, it cannot be accepted that the election
scene having degenerated over the years, appreciation
of evidence for determining the commission of a corrupt B
practice must be made liberally because of the lower
values in the arena of elections. If the rule of law has to be
preserved as the essence of the democracy of which purity
of elections is a necessary concomitant, it is the duty of
the courts to appreciate the evidence and construe the c
law in a manner which would subserve this higher purpose
and not even imperceptibly facilitate acceptance, much
less affirmance, of the falling electoral standards. For
democracy to survive, rule of law must prevail, and it is
necessary that the best available men should be chosen
0
as people's representatives for proper governance of the
country. This can be best achieved through men of high
moral and ethical values who win the elections on a positive
vote obtained on their own merit and not by the negative
vote of process of elimination based on comparative
demerits of the candidates." E
"The primary requirement of Section 123(4) is that
the statement should be a 'statement of fact' which is 'false',
' and which the maker either "believes to be false" or "does
not believe to be true"... F
" .... The maker of the statement knows best the material
on which his belief was formed and, therefore, it is for him
to prove the same. Whether the maker of the statement
believed it to be false or did not believe it to be true, is
then ordinarily a matter of inference from the facts so G
proved."
23. It is now well settled that the five ingredients required
to establish a corrupt practice under Section 123(4) of the Act
are:
H
324 SUPREME COURT REPORTS [2009] 4 S.C.R.

y
A ( i) there should be a publication by the candidate or his '
agent, or by any other person, with the consent of a
candidate or his election agent:

(Ii) the said publication should contain a statement of
fact which is false;
8
(iii) the person making such publication should either
believe such statement to be false or not believe it to
be true; '
•
(iv) such false statement should be in relation to the
c personal character or conduct of any candidate; and

(v) such false statement should reasonably be calculated
to prejudice the prospects of that candidate's
election.
D 24. There is thus no doubt that any false accusation
relating to the personal character or conduct of any candidate
calculated to prejudice the prospect of his election would amount
to a corrupt practice. But what is crucial is that the false
statement should relate to the personal character or conduct of
E a defeated candidate. Where the false statement was about
some one other than the candidate, this Court has refused to
consider the publication to be a corrupt practice under Section
123(4). In Dev Kanta Barooah v. Golak Chandra Baruah (1970) •
1 sec 392 a statement imputed corruption and chaos when
F the defeated candidate was chairman of a Municipality and
asked the voters to note the injustices and chaos during his
tenure. This Court refused to hold the same as a corrupt practice
under Section 123(4) on the following reasoning:
"It may, however, be noted that, in this part, it is not stated
G that Respondent No.1 himself was corrupt. The imputation
only is that, during his tenure of office, there were instances
of corruption and chaos. Thereafter, the four instances are
given. It cannot, therefore, be held that the leaflet was
intended to convey to the readers that Respondent No.1
H was himself corrupt. The impression that would be
M. J. JACOB V. A. NARAYANAN & ORS. 325
[MARKANDEY KAT JU, J.]

... '"* expected to be created would be that his administration A
as Chairman of the Municipality was so unsatisfactory
that corruption and chaos prevailed in the affairs of the
Municipality. The imputation, therefore, was as to
mismanagement of the affairs of the Municipality by
Respondent No.1, indicating that he was not a good B
administrator. The leaflet was not intended to convey to
the voters any reflection on the personal character of
.,
Respondent No.1."
"' 25. In Jagdish Prasad Tiwari v Ramdhani Mishra (1975)
1 sec 108, this court held (vide para 3) : c
"Under Section 123(4) of the Representation of the People
Act the false statement must be in relation to the personal
character or conduct of the candidate. We should here set
out the offending portion in Ext. P1 :
,.. -1 D
Then Tewariji who now proclaims himself a Congressman,
and has as well been accepted, had no satiety from reviling
using abusive and debased terms, Prime Minister Indira
· Gandhi, and the Congress. His supporters were raising
slogans of very mean standard, E
Gali Gali mein Jhandi hai
~
"' Indira Gandhi Randi hai.
xxxxx
F
The Hindi words used are "Khari Khoti" which mean true
and false rather than legitimate and illegitimate. However,
as pointed out by the learned Judge the first sentence
relates to what the appellant himself did. The second
sentence relates to what his supporters did. It is the second G
sentence that is obscene and abusive of the Prime Minister.
Therefore, it cannot be said that the character or conduct
of the appellant was attacked and therefore the matter
does not fall within sub-section (4) of Section 123. We
are, therefore, of opinion that the appellant has failed to
H
326 SUPREME COURT REPORTS [2009] 4 S.C.R.

A prove the corrupt practice that he alleged against the .j--.

respondent even as the learned Judge did."

26. We may also refer to the principles relating to construing
offending pamphlets, laid down in Ku/tar Singh v. Mukhtiar
Singh (1964) 7 SCR 790:
B
"The principles which have to be applied in construing
such a document are well-settled. The document must be
read as a whole and its purport and effect determined in •
a fair, objective and reasonable manner. In reading such "
c documents, it would be unrealistic to ignore the fact that
when election meetings are held and appeals are made
by candidates of opposing political parties, the atmosphere
is usually surcharged with partisan feelings and emotions
and the use of hyperboles or exaggerated language, or
the adoption of metaphors, and the extravagance of
D >
...
expression in attacking one another, are all a part of the
game, and so, when the question about the effect of
speeches delivered or pamphlets distributed at election
meetings is argued in the cold atmosphere of a judicial
chamber, some allowance must be made and the impugned
E speeches or pamphlets must be construed in that light. In
doing so, however, it would be unreasonable to ignore the
question as to what the effect of the said speech or
pamphlet would be on the mind of the ordinary voter who •
attends such meetings and reads the pamphlets or hears
F the speeches."
27. In this case, the pamphlet published on behalf of the
appellant - Shri M. J. Jacob, addressed certain questions to
Shri T.M. Jacob - one of the rival candidates. Question (2)
extracted above required Shri T.M. Jacob to give an answer to
G
the ordinary Congressmen in regard to a member of his
personal staff (one Scaria) attempting to murder a Congress
Mandalam President - P J Baby and two others - Joseph
Babu and K.P. Jacob at Onakoor and remaining an absconder.
The allegations therein were against Scaria, a member of
H

I
M. J. JACOB V. A. NARAYANAN & ORS. 327
[MARKANDEY KAT JU, J.]

•
.... personal staff of J.M. Jacob, that is, (i) he attempted to murder A
three persons and (ii) he continued to be an absconder. Neither
of these allegations are made against the candidate Shri T M
Jacob. Nor did it contain any allegation that Shri T.M. Jacob
(
was in any way involved either in Scaria's alleged attempt to
murder the said three persons or that he helped Scaria to B
remain an absconder by harbouring him or otherwise. It is not
therefore possible to read into the question, an implied false
i
statement that Shri TM Jacob harboured a member of his
*'· personal staff who was an murder accused and absconder.
28. As already stated above, there is no mention in c
paragraph 2 of Ext. P1 that Shri T: M. Jacob has harboured any
accused. However, Shri K. K: Venugopal, learned counsel for
the respondent submitted that the conclusion that T.M. Jacob
harboured the accused can be drawn by innuendo. We regret
r '1 we cannot agree, for the reason already mentioned above. D
Moreover, it has been held in M. J. Zakharia Sait vs. T M.
Mohammed (1990) 3 SCC 396 that (vide paragraph 57) that
for an allegation of corrupt practice by innuendo in an Election
Petition, it is necessary to plead as well as to prove the extrinsic
facts to spell out the innuendo meaning of the words complained E
of. We have carefully perused the Ele.ction Petition and we f:nd
that there is no clear pleading of the extrinsic facts to spell out
-f
' the innuendo. On this ground only the Election Petition should
have been dismissed.
29. It may be noted that in paragraph 3 of the Election F
Petition it is stated:-
'The reference in annexure "A" that Shri T.M. Jacob has
harboured a member of his personal staff and that he is
~-I an absconder escaping arrest is totally false as he had
G
appeared in Court and was granted bail."
30. The above statement is totally different from alleging
that the statement in para 2 of Ext. P1 that Shri Scaria is an
absconder is an innuendo. As already mentioned above, in
paragraph 2 of Ext. P1 there is no mention that Shri T.M. Jacob H
328 SUPREME COURT REPORTS (2009] 4 S.C.R

A is harbouring Shri Scaria, and the mention is only that Shri Scaria '" ~

who was in the personal staff of Shri TM. Jacob is absconding.
Hence, there should have been a clear pleading in the Election
Petition that the statement in paragraph 2 of Ext P1 is an
innuendo, and that it really means that Shri TM. Jacob harboured
B Shri Scaria, but there is no such pleading as already stated
above. Innuendo is to be clearly pleaded but that has not been
done in the Election Petition.
•..
31. Shri Venugopal, learned counsel for the respondent,
has invited our attention to the decision of this Court in Mohan
c Singh vs. Bhanwarla/ (1964) 5 SCR 12 and has relied on the
following observation therein :
"The interrogative form is often employed not with a view
to secure information but to make and emphasize an
D
assertion." • • ~ '

In that case the statement in the leaflet in question was
"Did you not defraud the agriculturists with respect to the licences
of opium ?" It was held that the use of the interrogative form
would not make the statement any the less an imputation if it is
E fairly capable of being so read.
32. In the present case in paragraph (2) of the pamphlet in
question the last sentence stated "Can you give an answer to t

the ordinary Congressman in this regard?" Shri Venugopal
submitted that the interrogative form used here will not make it
F any less an imputation against personal character.
33. In this connection it may be pointed out that this Court
in Mohan Singh's case has itself stated that the interrogative is
'often' employed as an assertion. The use of the word 'often'
indicates that the Court did not lay down in that decision that it .... ~
G
is always or invariably so employed. Hence we have to see the
facts of each case and not go by any rule of the thumb.
34. However, even if the statement in the interrogative form
in paragraph (2) is regarded as an assertion in our opinion it
H
M. J. JACOB V. A. NARAYANAN & ORS. 329
[MARKANOEY KAT JU, J.]

will not amount to a corrupt practice under Section 123(4), for A
~~
the reasons given above.
35. It may be noted that Shri T.M. Jacob has not filed any
Election Petition nor made any complaint about the said
pamphlet. In fact, the Election Petitioner Mr. AN. Narayanan
has stated in his evidence "Shri T.M Jacob has not complained B
of any authority regarding publication of Ext. P1". It is also
significant that Shri T.M Jacob chose to complain about another
~
candidate (C.P. Saju) but not against the elected candidate.
IK This clearly indicates that Shri T.M Jacob himself did not
consider Ext.P1 as casting any aspersions against his personal c
character and conduct.

36. Arguments were advanced in great detail on behalf of
both the parties as to whether the allegation that Shri Scaria is
an absconder was true or not, and whether the appellant
0
. ;· t believed it to be true or not, but in our opinion it is not necessary
to go into these allegations and counter-allegations. In fact no
effort was made to examine Shri Scaria as a witness. In our
opinion, even if the allegation was true it does not attract Section
123(4) for the reasons already given above.
E
37. As already stated above, election results should not
be lightly set aside and the will of the electorate should ordinarily
be respected. Setting aside an election is a serious matter, and
" should not have been done lightly. We regret to say that in this
case the election of the returned candidate has been set aside F
by the High Court, though no doubt by a rather elaborate
judgment, by observing, according to us unwarrantedly, that
paragraph No. (2) in Ext.P1 amounts to a false statement
affecting the personal character and conduct of Shri T.M Jacob.
Once it is held that paragraph No.(2) did not contain any
G
..---1 statement regarding the personal character and conduct of Shri
T.M Jacob it follows that the tail piece of Ext.P1 that is the
exhortation to "recognize the shameless hypocrite of
development trickery ........ react against the deceiver of the
people" will have to be considered as not against the personal
H
330 SUPREME COURT REPORTS [2009] 4 S.C.R.

A character and conduct of Shri TM Jacob, but as a statement in
respect of his public and political character. This, in our opinion,
does not attract Section 123(4) of the Act.

38. In a democracy many .allegations and counter-
allegations are made, and sometimes these are incorrect, but
B that does not mean that an election should be set aside
straightaway on that account, as has been done in the present
case, unless all the ingredients of Section 123(4) of the Act are
clearly made out, otherwise almost every election will have to
be set aside.
.
c
39. For the reasons given above these appeals are
allowed, the Impugned judgment is set aside and the Election
Petition is dismissed. There shall be no order as to costs.

R.P. Appeal allowed.