Mohan Singh vs Bhanwarlal and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 530 of 1963

Decision Date: 03/10/1963

Coram: J.C. Shah, P.B. Gajendragadkar, K.N. Wanchoo, Raghubar Dayal

The Supreme Court of India, constituting a bench of Justice J.C. Shah, Justice P.B. Gajendragadkar, Justice K.N. Wanchoo and Justice Raghubar Dayal, delivered judgment on 3 October 1963 in the matter of Mohan Singh versus Bhanwarlal and others. The case is reported in 1964 AIR 1366 and 1964 SCR (5) 12, with subsequent citations in various subsequent reports. The petition was filed under the Representation of the People Act, 1951 (43 of 1951), specifically invoking sections 82, 123(1)(B) and 123(4), which deal with the procedural requirements for election petitions and the definition of corrupt practice, including the concept of “gratification”. The appellant, Mohan Singh, had been declared elected to the Madhya Pradesh Legislative Assembly. Prior to polling, another candidate, Himmat Singh, withdrew his candidature. One of the defeated candidates—identified as Respondent 1—challenged the election by filing a petition alleging that the appellant had disqualified himself by engaging in corrupt practices. The allegation asserted that, shortly before the vote, the appellant had published two Hindi leaflets containing statements of fact about the personal character and conduct of Respondent 1. These statements were claimed to be false, that the appellant either knew them to be false or did not believe them to be true, and that they were intended to prejudice Respondent 1’s electoral prospects. The appellant denied these allegations and moved before the Election Tribunal to dismiss the petition in limine on the ground that Himmat Singh, against whom allegations of corrupt practice concerning the withdrawal of candidature were made, had not been joined as a respondent. The Tribunal rejected this application, finding that the evidence established that the appellant had indeed committed a corrupt practice by publishing the two leaflets. On appeal, the High Court affirmed the Tribunal’s decision. The appellant contended that the election petition should be dismissed in limine because it failed to satisfy the requirements of section 82 of the Act, that he had not published the leaflets, and that, even if he had, the publication did not amount to a corrupt practice under section 123(4). The Court held that the election petition was not defective. It noted that there was no specific allegation of corrupt practice against Himmat Singh; rather, the allegation was that the appellant had offered to assist Himmat Singh in obtaining employment with “Dalauda Sugar Factory or elsewhere”. The Court explained that for an acceptance of such an offer to constitute a motive or reward for withdrawing from candidature, it must amount to acceptance of gratification. The Court further clarified that gratification does not encompass mere promises; it requires an offer and acceptance that relate to a thing of some value, even if that value is not readily measurable in monetary terms. Consequently, the mere offer to help obtain employment did not satisfy the statutory definition of gratification under section 123(1)(B), and it was unnecessary to implead Himmat Singh as a respondent to the petition.

The Court explained that under section 123(1)(B) gratification means a thing of some value, although it need not be measured in monetary terms. A simple promise to assist a person in obtaining a job does not qualify as an offer of gratification within that provision, and therefore does not constitute a corrupt practice. Consequently, the petition did not require the inclusion of Himmat Singh as a respondent because the alleged act did not meet the definition of gratification. The Court held that the burden of proving a corrupt practice rests on the party who alleges it, and that this burden cannot be satisfied by a mere balance of probabilities as in civil proceedings; instead, the allegation must be established beyond reasonable doubt by evidence that is clear and unequivocal and leaves no room for doubt about the existence of the corrupt act. Regarding publications, the Court observed that when deciding whether a printed statement amounts to a corrupt practice under section 123(4), the Tribunal may consider matters that are commonly known to the electorate. The Tribunal may also interpret the material in that background because one essential element of the offence is that the statement must be reasonably calculated to prejudice the electoral prospects of the candidate. The test, therefore, is whether the imputation, besides being false, was published with the intention of lowering the candidate in the eyes of voters and was calculated to impair his chances of election. In assessing whether the candidate’s reputation is lowered, the imputation must be examined against knowledge generally possessed by the electorate.

The judgment arose in a civil appellate jurisdiction identified as Civil Appeal No. 530 of 1963, which challenged a decree dated 14 February 1963 issued by the Madhya Pradesh High Court in First Appeal No. 34 of 1962. Counsel for the appellant included representatives of the appellant, while counsel for respondent number one were appointed to present the opposing position and to argue that the allegations against the appellant lacked sufficient proof. The judgment was delivered on 3 October 1963 by Justice Shah after hearing arguments from both sides and reviewing the record of the election tribunal. Eight candidates, including the appellant Mohan Singh and the first respondent Bhanwarlal, filed nomination papers for the Madhya Pradesh Legislative Assembly seat from the Sitamau constituency. The Returning Officer rejected the nomination of Hussain Khan at the initial scrutiny, and another candidate, Himmat Singh, withdrew his candidature before polling day, which was held on 24 February 1962. After the votes were counted, Mohan Singh secured the highest number of votes and was declared elected, thereby becoming the winner of the contest. Bhanwarlal invoked sections 80, 100 and 101 of the Representation of the People Act, 1951, before the Election Commission, seeking a declaration that Mohan Singh’s election was void on the ground of corrupt practices alleged in the petition, and requesting that Bhanwarlal be declared elected. Among the many alleged corrupt practices, only the two grounds described in clauses (c) and (d) of paragraph 11 of the petition were retained for further consideration.

In the appeal, it was alleged that the successful candidate, Mohan Singh, had shortly before the voting day produced two Hindi leaflets that contained statements about the personal character or conduct of the petitioner, Bhanwarlal, which were false and which Mohan Singh either knew to be false or did not believe to be true, and that those statements were intended to damage Bhanwarlal’s electoral prospects. The two leaflets were attached to the petition as annexures “D” and “E”. The petition was forwarded by the Election Commission to the Election Tribunal at Ratlam for trial under section 86 of the Representation of the People Act. Mohan Singh, in his written statement, denied authoring the leaflets and argued that the material, which appeared to have been published by the electorate, offered a factual and fair criticism of Bhanwarlal’s public activities and was not meant to prejudice his chances of election. He also moved before the Tribunal for a preliminary dismissal of the petition on the ground of non‑compliance with section 82 of the Act, contending that Himmat Singh, another candidate whose withdrawal was the subject of alleged corrupt practice, had not been joined as a respondent. The Tribunal rejected the application for dismissal and concluded, based on the evidence, that Mohan Singh and his agents had committed the corrupt practice defined in section 123(4) by publishing the leaflets annexures “D” and “E”. The Tribunal held that Mohan Singh knew the statements to be false, believed them to be false, and acted with the understanding that the leaflets would reasonably prejudice Bhanwarlal’s election chances. In reaching this finding, the Tribunal relied principally on the testimony of Rameshchandra, a compositor at the Maheshwari Printing Press in Mandsaur, together with other corroborative circumstances. On appeal, the High Court of Madhya Pradesh, after reviewing the evidence, concurred that Mohan Singh was instrumental in causing the printing of the leaflets and that the leaflets were distributed in certain villages of the constituency by Mohan Singh and his agents Satyanarayan and Kailash. In the present appeal, which was granted special leave, the respondents contended that the election petition filed by Bhanwarlal should be dismissed at the threshold because it failed to satisfy the requirements of section 82 of the Representation of the People Act. On the merits, they maintained that Mohan Singh had not published the leaflets annexures “D” and “E”, and that even if he had, the publication did not amount to a corrupt practice within the meaning of section 123(4). The Court observed that the first issue to be decided was whether the petition was maintainable under section 82; only if the petition were found to be maintainable would the merits concerning the alleged corrupt practice be examined.

The Court observed that when a petition fails to meet the mandatory statutory requirements, it must be dismissed outright, without any further inquiry, even if a corrupt practice by Mohan Singh were proven. The petition, in paragraph 11(b), asserted that on 20 January 1962 Mohan Singh, at Nahargarh, offered Shri Himmat Singh—who was then an independent candidate—to assist him in obtaining employment with the Dalauda Sugar Factory or any other employer, on the condition that Himmat Singh withdraw his candidature from the Sitamau Assembly constituency. Although the language of the allegation was somewhat ungrammatical, its meaning was clear: Mohan Singh sought to induce Himmat Singh to step down by promising him a job, an offer that amounted to illegal gratification, and as a result Himmat Singh withdrew his candidacy.

Section 123(1) of the Representation of the People Act defines the corrupt practice of bribery, and clause (B) within it specifies that the receipt of, or agreement to receive, any gratification—whether as a motive or as a reward—by a person for standing, not standing, or withdrawing as a candidate, constitutes bribery. The provision further states that any person who receives such gratification for himself or for another, whether to influence voting, to induce an elector to vote or abstain, or to induce a candidate to withdraw, is also guilty of the corrupt practice of bribery, even if the person is not the candidate himself.

The petitioners argued that paragraph 11(b) demonstrated that Himmat Singh, having filed his nomination paper, had agreed to accept gratification as a motive for withdrawing his candidature. Accordingly, they contended that Section 82 required Himmat Singh to be joined as a party to the election petition; if he were not joined, the petition should be dismissed.

To assess this argument, the Court referred to the relevant statutory scheme. Section 80 provides that an election may be challenged only by a petition presented in accordance with Part VI of the Act. Section 81 prescribes the grounds, the persons authorized to present, the time limits, and the procedural steps for filing such a petition. Section 82 mandates that every contesting candidate be joined as a respondent when the petitioner, in addition to seeking a declaration that the election of any or all returned candidates is void, also claims that he himself or another candidate has been duly elected. Where no further declaration is sought, all returned candidates must still be joined. Moreover, if allegations of corrupt practice are made against another candidate, that candidate must also be joined as a respondent.

Section 79 defines “candidate” as a person who has been or claims to have been duly nominated for any election and deems such a person to be a candidate from the moment he begins to hold himself out as a prospective candidate. The Court noted that if the provisions of Sections 81 or 82 are not complied with, the Election Commissioner is required by Section 85 to dismiss the petition, and if the Commissioner fails to do so, Section 90(3) obliges the Tribunal to dismiss the petition for non‑compliance.

Applying these provisions, the Court found that Himmat Singh had indeed filed a nomination paper, which, under the definition in Section 79, made him a candidate for the purposes of Parts VI, VII, and VIII. The Court further held that a candidate does not cease to be a candidate merely because he withdraws his candidature. Consequently, the failure to join Himmat Singh as a party to the petition violated Section 82, and the petition therefore required dismissal on procedural grounds.

In the interpretation section that applies to Parts VI, VII and VIII of the Act, and which also contains section 82 within Part VI, the term “candidate” is defined to mean a person who has been duly nominated or who claims to have been duly nominated as a candidate at any election. The provision further states that any such person shall be regarded as a candidate from the moment, when an election is anticipated, he begins to present himself publicly as a prospective candidate. The statute provides that if the requirements of sections 81 or 82, among others, are not fulfilled, the Election Commissioner is required to dismiss the election petition under section 85. Should the Commissioner fail to issue such an order, section 90(3) obliges the Tribunal to dismiss any petition that does not comply with the provisions of sections 81 or 82. In the present matter, Himmat Singh filed a nomination paper, and consequently, by the definition contained in section 79, he qualified as a candidate for the purposes of Parts VI, VII and VIII. His status as a candidate did not cease merely because he later withdrew his candidature. Therefore, if the petition alleged any corrupt practice against Himmat Singh, the petition could not be considered properly constituted unless Himmat Singh was joined as a respondent, because the definition of “candidate” in section 79(b) requires that the phrase “any other candidate” in section 82(b) include even a candidate who has withdrawn. However, the judgment in paragraph 11(b) makes clear that there is no allegation of corrupt practice directed at Himmat Singh. What the petition alleges is that Mohan Singh offered to assist Himmat Singh in obtaining a job at Dalauda Sugar Factory or elsewhere, and that, as a result of this offer, Himmat Singh withdrew his candidature. The petition does not expressly state that Himmat Singh accepted the job offer, and it would be excessive to require that, even if the offer to help secure a job amounted to a gratification, an allegation that Himmat Singh withdrew because of the offer would constitute a claim of acceptance unless such acceptance is expressly pleaded. In the Court’s view, a mere offer of assistance to obtain employment, without additional consideration, does not constitute a gratification within the meaning of section 123(1)(b) of the Act. The term “gratification” is not defined in the Act, but the Explanation to subsection (1) of section 123 provides guidance on what Parliament regards as gratification. The Explanation states: “For the purposes of this clause the term ‘gratification’ is not restricted to pecuniary graft‑fications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona‑fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78.”

In this case, the Court explained that the Explanation to section 123(1) expands the term “gratification” to cover all forms of entertainment and all forms of employment given for reward, but it expressly excludes the payment of bona‑fide expenses incurred at or for the purpose of an election when such expenses are duly entered in the election‑expenses account. The Court noted that, in its ordinary sense, gratification means satisfaction, but when read in the statutory context and limited by the Explanation, it must be understood to refer to something of value that is intended to satisfy a person’s aim, object or desire, whether or not that thing can be measured in monetary terms. Accordingly, a mere offer to help a person obtain employment, whether the employer is named or unnamed, does not amount to such a valuable thing and therefore does not constitute gratification. The Court observed that the petition did not allege that Mohan Singh had offered a specific job with the Dalauda Sugar Factory or any other employer to Himmat Singh; the allegation was only that Mohan Singh had offered to assist or help Himmat Singh in obtaining employment with the “Dalauda Sugar Factory or else where”. The Court held that the acceptance of an offer that serves as a motive or reward for withdrawing from a candidature must be the acceptance of a gratification, and because the statutory concept of gratification does not include every promise but requires an offer and acceptance that relate to something of value, a simple offer of help in obtaining a job cannot be said to be a gratification within the meaning of section 123(1)(B) and therefore cannot be treated as a corrupt practice. Consequently, the Court found that, on the facts set out in paragraph 11(b) of the petition, it was unnecessary to implead Himmat Singh as a respondent, and it agreed with the High Court, though for different reasons, that the petition filed by Bhanwarlal was not defective. Counsel for Mohan Singh challenged the High Court’s finding that Mohan Singh was instrumental in publishing the leaflets annexures ‘D’ & ‘E’. He urged that, in an election petition, the approach to evidence must be the same as in a criminal trial, and no fact may be proved unless it is established beyond reasonable doubt. The Court reiterated that the burden of establishing a corrupt practice lies with the party who raises the allegation and that this burden cannot be discharged by a mere preponderance of probability as in a civil suit; the corrupt practice must be proved beyond reasonable doubt by clear and unambiguous evidence. Nevertheless, the Court accepted the testimony of Rameshchandra, supported by the detailed circumstances recorded in the judgments of the Tribunal and the High Court, while disbelieving the testimony of witnesses for Mohan Singh who claimed that other persons, without his consent or connivance, had arranged the printing of the leaflets. The Court also accepted the evidence that the appellant and his agents had distributed the leaflets and that the distribution had taken place simultaneously. In recording its conclusions, the Tribunal…

In this case the Court observed that the High Court had not based its decision merely on probability. The findings recorded by both the Tribunal and the High Court were therefore concurrent findings of fact that were derived from an appraisal of oral evidence, and no justification existed for departing from the established principle that such concurrent findings of fact should not be disturbed. The Court then turned to the next issue, namely whether the publication of certain leaflets constituted a corrupt practice under section 123(4) of the Representation of the People Act, 1951. Section 123 enumerates the various corrupt practices recognized by the Act, and clause (4) defines a corrupt practice as the publication of false statements that are calculated to prejudice the electoral prospects of a candidate. For a statement to fall within the scope of clause (4), the publication must be made by the candidate, by the candidate’s agent, or by another person with the consent of the candidate or his election agent; the publication must contain a factual statement that is false, and the candidate or his agent must either know the statement to be false or fail to believe it to be true; the false statement must relate to the personal character or conduct of the candidate; and it must be reasonably calculated to damage the candidate’s chances of election. The Court explained that the term “statement of fact” in section 123(4) embraces not only an explicit imputation but also an innuendo that can be reasonably inferred from the language used and the manner of publication. Annexure D, which was in Hindi, bore the caption “The surety (security) of Shri Nahata has to be forfeited because he has defrauded the public and has shown his face after five years to take votes.” Counsel for Mohan Singh argued that the Hindi expression “dhoka diya” was more accurately rendered as “misled” rather than “defrauded.” The leaflet also displayed a photograph of Mohan Singh together with his election symbol, noted that his ballot paper was pink in colour, and identified his symbol as a lamp. It further contained the statement, “Sitamau constituency has awakened. Nahata (Bhanwarlal) has run away. Shinde, Kishen Gupta, Patil, Patel, you may safeguard the interests of your Bhanwarlal Nahata as much as you like but his surety (security) is sure to be forfeited.” The leaflet comprised nine paragraphs, of which the third paragraph was material. That paragraph read: “We have heard that your friend has collected twenty‑eight thousand rupees from several villages in the name of opium. The agriculturists did not obtain the licences and those who did had to spend a great deal of money and time, and the licences for opium were obtained on execution of bonds for eight seers.” The leaflet concluded with a note stating: “Every voter will get two ballot papers, one is of pink colour for Legislative Assembly.”

The pamphlet addressed to Thakur Mohan Singh instructed that the seal of a lamp be placed on the symbols of both pink and white ballots. The pamphlet further directed readers to circulate it from house to house by giving copies to friends. The document bore the submission line stating it was issued by the Nahira Virodhi Morcha of the Sitamau constituency. Annexure E was titled “The Bureaucrats of yesterday—Congressmen of today” and was divided into two separate parts. The first part contained allegations against Dr Raghubir Singh, who appeared to have been a parliamentary candidate from the constituency. The second part concerned Bhanwarlal Nahata and presented a series of questions addressed to him. The portion relating to Bhanwarlal quoted a question asking whether he had defrauded agriculturists concerning opium licences, while noting that six other questions were omitted as irrelevant. The passage then asserted that the public had already decided not to fall prey to his alleged fraud and greed. It added that the public had resolved to place the lamp seal on the ballot and to ensure a victorious outcome. The text warned that congressmen should not be misled while conducting propaganda and was signed by Goswami Mahant Ratnagir. The final paragraph of the annexure was reported to be an inaccurate English translation, merely conveying that the public already knew the truth and would not be deceived by false promises or inducements. No official translation of either leaflet was provided, but the Court indicated it would determine the meaning of the relevant portions as printed, incorporating suggested modifications from counsel for Mohan Singh.

Paragraph 3 of Annexure D, as translated, was described as unclear in its meaning to readers unfamiliar with local conditions. The expression “in the name of opium” could be meaningless to someone without knowledge of the area’s practices. When assessing whether a publication constitutes a corrupt practice under section 123(4), the Tribunal may consider matters commonly known to the electorate and interpret the publication in that context. One essential element of the alleged corrupt practice is the tendency of a statement to be reasonably calculated to prejudice the electoral prospects of the candidate targeted. The test for section 123(4) therefore asks whether a false imputation was published with the intention of lowering the candidate’s standing in the eyes of voters and whether it was likely to harm his chances of election. To decide if the candidate’s reputation has been lowered, the imputation must be examined against information that the electorate generally knows. It is well established that within the Sitamau constituency, the authorities issue licences for the cultivation of opium to qualified agriculturists. The statement in paragraph 3 apparently alleges that Bhanwarlal collected twenty‑eight thousand rupees from local agriculturists for the purpose of obtaining opium cultivation licences. According to the allegation, the agriculturists either did not receive the licences or, if they did, they incurred substantial additional expenditure. The implication is that Bhanwarlal solicited money under the pretense of securing licences but failed to deliver the promised benefit, thereby defrauding the farmers.

According to the material before the Court, the agriculturists in the constituency did not obtain the licences for opium cultivation, and even those who did obtain licences were required to expend a considerable amount of money. The implication conveyed by the statement was that a large sum of money had been collected from the agriculturists by Bhanwarlal on the representation that he would secure licences for opium cultivation, but that he failed to act in that regard and had misappropriated the money collected. This implication was further reinforced by paragraph 1 of annexure E, which related to Bhanwarlal. The allegation was presented in an interrogative form; annexure E contained questions addressed to Bhanwarlal, one of which asked whether he had not defrauded the agriculturists with respect to the opium licences. The Court observed that the use of a question is often intended not merely to elicit information but to assert a point and that the interrogative format does not diminish the character of the statement as an imputation if it can be fairly read as such. The evidence showed that leaflets identified as annexures D and E were published at the same time. Annexure D alleged that Bhanwarlal Nahata had collected Rs 28,000 “in the name of opium,” while annexure E made an explicit imputation that he had defrauded the agriculturists concerning the opium‑cultivation licences. On a reasonable reading of the two leaflets, there was no doubt that the publisher intended to convey that Bhanwarlal had deceived the agriculturists into parting with Rs 28,000 on the promise of obtaining licences, and that he had subsequently misappropriated those funds.

Bhanwarlal denied that he had used any of the money collected from the agriculturists for his own purposes. He stated that the sums were collected by the District Congress Committee from the opium cultivators and that receipts were issued by that Committee for the collections made on its behalf. He refuted any allegation that he had misled the agriculturists or misappropriated any amount collected from them, insisting that the money was intended for and actually transferred to the District Congress Committee. The imputation therefore related directly to Bhanwarlal’s personal conduct, and if his testimony were accepted, the imputation would have to be held false. No evidence was adduced at trial to prove the truth of the imputation. Moreover, Mohan Singh’s written statement did not assert that the imputation was true or that he believed it to be true. Considering the timing and manner of publication of annexures D and E, the Court concluded that the leaflets were disseminated as part of a political campaign designed to damage Bhanwarlal’s electoral prospects. Consequently, the statement was deemed to be an imputation made with the knowledge that it was false or without belief in its truth, and it was reasonably calculated to prejudice the candidate’s chances at the election.

In the present case, the Court observed that the leaflets alleged that Bhanwarlal had taken money from the agriculturists and had kept the sum of Rs 28,000 for himself, yet no enquiry was undertaken to determine how the money had been collected or where it had ultimately been deposited. Because the accusation was made without any investigation into the source or the destination of the amount, the Court reasoned that a reasonable inference could be drawn that the statement was either knowingly false or, at the very least, not believed by the person who prepared it to be true. The Court further noted that, on its face, the allegation was plainly intended to harm the electoral chances of the candidate Bhanwarlal, as it suggested dishonest conduct on his part and was therefore calculated to prejudice his prospects in the election. On the basis of this assessment, the Court agreed with the view of the High Court that the appellant Mohan Singh had engaged in a corrupt practice under section 123 (4) of the Representation of the People Act, because the false imputation was made for the purpose of influencing the election. Accordingly, the Court held that the charge of corrupt practice was properly established. As a result, the Court dismissed the appeal, ordered that the appellant pay the costs of the proceedings, and entered a final order that the appeal was dismissed.