Narasimham, C.J.
1. This is an appeal from the judgment of the Member, Election Tribunal, Sambalpur, dismissing with costs, the election petition filed by the appellant against the election of the respondent from Rairakhol Constituency in the district of Sambalpur in the midterm elections to the Orissa Legislative Assembly which were held on the 2nd June, 1961. The appellant stood as the Congress candidate in the said election while the respondent stood as a candidate on behalf of the Ganatantra Parishad which consisted mainly of the former Rulers of the feudatory States of Orissa. The respondent is the erstwhile Ruler of Bamra, one of the former Feudatory States of Orissa. It appears that the ruling families of both Rairakhol and Bamra are related to each other and the Jubaraj Sahib of Rairakhol was said to have actively canvassed for the respondent in the said elections. The constituency includes portions of the former State of Bamra and Rairakhol.
2. The main challenge to the election was on the ground that the respondent was guilty of commission of corrupt practice as described in Sub-section (4) of Section 123 of the Representation of the People Act, 1951. It was alleged that the respondent got printed and widely circulated a leaflet in Oriya with the heading 'Voter Mananka Prati Chetabani' (A caution to Voters) in which false statements relating to the personal character and conduct of the appellant were made which the respondent either knew to be false or did not believe to be true and that in consequence of the wide dissemination of the said printed leaflet in the constituency the appellant's prospects ofsuccess in the election were materially affected.
3. The main defence of the respondent was that neither he nor any of his election agents had anything to do with the printing or dissemination of the said leaflet. It was further suggested that having lost the election the appellant surreptitiously got the leaflet printed later on with a view to support the false allegations of commission of corrupt practice by the respondent in this election petition. There was also a recrimination petition filed by the respondent against the appellant but that was dismissed by the Election Tribunal; and though a cross-objection was filed against that order of dismissal, Mr. A. Das for the respondent stated before this Court that he would not press the cross-objection.
4. The printed leaflet (Ext. 1) is in the form of Oriya poem but the main objection was taken to the allegations contained in verses 10 to 15. There can be no doubt that the aforesaid verses in the leaflet contain grossly defamatory state ments against the appellant. He has been described as a 'thief' (taskara), 'Shameless, he-cat', 'a licker of the feet of Biju Patnaik,' the then President of the Utkal Provincial Congress Committee and at present the Chief Minister of Orissa. It was further alleged, that the disparity between him and the respondent was like that between Ramiya the Barbar and Shri Ramchandra of Ramayana on the other. Hence the finding of the lower Court to the effect that the leaflet contained statements relating to the personal character and conduct of the petitioner was justified, and was, quite properly, not challenged in this appeal.
5. The main question for consideration is whether the appellant has proved beyond reasonable doubt (i) that the leaflet was printed and published at the instance or with the consent of the respondent or his election agents and (ii) that the respondent knew that the statements contained therein were false or else he did not believe them to be true.
6. The standard of proof required to establish corrupt practices in the election has been laid down in several decisions which have been summarised in a recent Division Bench decision of this Court reported in Raj Raj Deb v. Gangadhar Mohapatra, ILR 1962 Cut 699 (at p. 710 para 10) : (AIR 1964 Orissa 1 at p. 3 (para 10), in which some of the English decisions and also the decisions of some other High Courts and of the Supreme Court have been noticed. A proceeding of this type is of a quasi criminal character and as proof of corrupt practice may entail disqualification of the candidate for six years. It has been rightly pointed out that such allegations must be established beyond reasonable doubt and that there is a presumption of innocence in favour of the respondent which must be displayed by direct proof.
7. Sub-section (2) of Section 90 of the Representation of the People Act says that the Evidence Act, subject to the provisions of the former Act, shall apply at the hearing of an election petition. As there is no provision in the Representation of the People Act shifting the burden of proof of any of these matters on the respondent, it is obvious that following the well known principles laid down in the Evidence Act, the case should be approached as if it was of a criminal nature, though on certain matters the burden of proof may shift under Section 106 of the Evidence Act,--as pointed out by their Lordships of the Supreme Court in T. K. Gangi Reddi v. M. C. Anjaneya Reddy, 22 Election LR 261 (SC).
8. The appellant has relied mainly on the oral evidence of either his election agents or active canvassers to show that the aforesaid leaflet (Ext. 1) was widely distributed at various places in the Constituency. He has not led any evidence to show that the leaflet was printed at the instance: of the respondent. But he asked this Court to make such an inference from the evidence of a Printer of Sambalpur Town named Jogendranath Kumar who was examined as C. W. 1 and also from the fact that the leaflet praises the. respondent, that its contents show that it was printed at the instance of the Ganatantra Parishad (to which the respondent belongs) as there is a reference, in the leaflet to Bow and Arrow the symbol of that party.
9. I may discuss the evidence of the Court witness at first. He is the proprietor of a Press, known as Quality Printers Ltd., Sambalpur. Though in examination in chief he stated--after seeing the leaflet (Ext. 1) -- that it was printed in his Press as there is an endorsement showing the name of the Press at the bottom of the leaflet nevertheless in cross examination he has completely resiled from his previous statement. He admitted that a leaflet of this type could have been printed in any other Press and the name of his Press might have been printed at the end. He cannot read Oriya, he could not say who was the person who ordered the printing of the leaflet and who actually received the copies. He has no papers to show that the order for the printing of the leaf-lets was placed on behalf of the Ganatantra Parishad. He proved two cash-memos from the office (Exhibits II and III) to show that on 28-5-61, 1000 printed copies of a leaflet entitled Chetabani were delivered on payment of cash (Ext. II) and on 31-5-61. 500 printed leaflets entitled 'Voter Mananku Prati Chetabani' (Ext. III) were delivered on payment of the cost of printing. But in neither of these cash memos is the name of the person who paid cash noted. The heading of the leaflet (Ext. I) does not tally with the headings of the leaflets in respect of which the; cash memo (Exhibit II) was issued.
Moreover this witness admitted in cross-examination that as a general rule he would not print any leaflet containing defamatory matters and that though he himself could not read Oriya some-of the members of the staff employed in the Press could read Oriya and that if any leaflet or other matter containing defamatory passages was delivered to the Press for printing, his workers would? certainly have reported that fact to him.
The answer would show that it was unlikely that the leaflet (Exhibit I) would have been printed in his Press. The grossly defamatory nature of some of the allegations (quoted above) is so apparent that if the ordinary practice prevailing in the Press, as spoken to by him, was followed, his workers would have immediately drawn his attention to the contents of the objectionable stanzas, and he would have refused to undertake the printing of the same. It must therefore be held that the appellant has failed to prove satisfactorily his allegation that the leaflet (Ext. I) was identical with the leaflets that were printed in the press of this witness, in respect of which the cash memos-(Exhibits II and III) were issued.
10. Next comes the question of publication in the constituency. According to the appellant's witnesses the leaflet (Exhibit I) was widely distributed in the constituency from 27-5-61 -- just one week before the election, when canvassing was at its highest pitch. It was alleged that innumerablemeetings were held at various places in the constituency some of which were addressed by the res-pondent himself and some by the Rani Saheba of Bamra and the election agents of the respondent. In all these meetings printed leaflets like Ext. 'I were widely distributed and one of his workers Tanu Charan Pradhan used to sing aloud the con-tents of exhibit I at these meetings. Before discussing in detail the evidence of the witnesses who have spoken about these facts I must refer to certain broad improbabilities in the case as put forward by the appellant.
11. The appellant has a long record of Government service to his credit. Before the merger of the States on 1-1-1948 he had served in various Orissa States first as Tahasildar and then as Dewan and as Sessions Judge. After the merger also he served under the Government ofOrissa in various capacities including the post of Additional District Magistrate of Keonjhar for sometime. Eventually he retired from Government service. With such long experience of Government service to his credit it must be presumed that he was fully aware of the importanceof reporting the commission of a corrupt practice of this type, to the authorities concerned promptly. In this instance the allegations made in the leaflet are grossly defamatory and would clearly amount to an offence under Section 500 I. P. C. Theywould also amount to an offence under section 171G of the I. P. C. The appellant stated that he first came to know about the circulation of this leaflet on 28-5-61. There was a Sub-divisional Magistrate at Rourkela and another at Bamra. A retired Government servant of his status would ordinarily be expected, immediately on hearing about the circulation of the leaflet, and obtaining a copy of the same, to file a complaint before the proper authorities, enclosing a copy of the same. At that time he would not beworried about what would be the result of such a complaint but his natural reaction would be to seek the help of the authorities concerned. Had he done so the fact that Ext. I was circulated widely in the constituency prior to the date of poll-ing would have been established beyond doubt. But unfortunately this was not done and information regarding the circulation of the leaflet wasgiven, for the first time, only on 12-7-61 when he filed his election petition before the Election Commission --more than a month after the declaration of the results of the poll.
In this connection I would refer to the observations in the Division Bench decision of this Court reported in I. L. R. 1962 Cut 699 : (AIR 1964 Orissa 1) to the effect that having regard to the antecedents and status of the petitioner his failure to report promptly about the allegation of commission of corrupt practices is a circumstance which might throw doubt on his belated evidence In Court.
These observations were based on 1 Doabia's Election cases, 279, Thakur Udaya Singh v. Mr. Arjuna. Though the appellant was cross examined in respect of this matter and he admitted that he did not report to the authorities about the circulation of the leaflet in his constituency as soon as he learnt about it, he would not give any ex-planation as to why he kept quiet for such a long time. It must accordingly be held, in the circumstances, that his omission to report the matter to the authorities at the earliest opportunity must throw considerable doubt on the truth of his statement and that of his witnesses thatsuch a leaflet was in fact circulated in the Consti-tuency.
12. In the election petition filed by the appellant before the Election Commission it was alleged for the first time that Ext. 1 was circulated in the constituency and that it prejudiced the appellant's success. The appellant's own evidence (as P. W. 24) was that when he was touring in the constituency on the 28th May 61 and on subsequent dates he came to know about the leaflet, that he kept a note of the various villages' which he visited and the dates of the distribution of the said leaflet in those places, and that he showed this note to his lawyer when the election petition was being drafted. Clause (b) of Sub-section (1) of Section 83 of the Representation of the People Act expressly says that an election petition shall include as full a statement as possible of the names of the parties alleged to have committed such corrupt practices, and the dates and places of the commission of such corrupt practice.
Any lawyer who drafts an election petition must be presumed to be aware of this provision of law. If as stated by the appellant he had kept a contemporaneous record in his note-book of the dates and places where the leaflet was circulated and he had shown that note book to his lawyer it is inexplicable as to why the election petition did not contain these particulars. That petition is delightfully vague and does not mention the names of the villages where the leaflet was circulated, the dates on which it was circulated or the persons who circulated the same. The petitioner however added that the lawyer told him that these details would be supplied later on, and that it was not necessary to mention them in the petition.
The lawyer has not been examined as a witness and it is difficult to make any comment on this aspect of the matter except to say that a lawyer who knows the provisions of Clause (b) of Sub-section (1) of Section 83 of the Act and who is made aware of the particulars required by that clause would not have omitted to mention them in the election petition at the time of drafting it. The question here however is not whether non-compliance with the provisions of Section 83(1)(b) would be fatal to the petition or not; the question is one of probability. The suggestion of the respondent that the printed leaflet was brought into existence at about the time when the election petition was drafted, that the appellant had not then made up his mind about the dates on which or the places at which and the persons by whom the leaflet should be alleged to have been circulated, and that he deliberately left these essential particulars vague so as to enable him to supply them later on, gains considerable strength.
13. They conduct of the appellant during the early stages of the proceeding before the Tribunal is very relevant in this connection. The respondent objected to the maintainability of the election petition on the ground that the particulars required in Section 83(1)(b) of the Representation of the People Act were not mentioned. But this contention was rejected by the Tribunal on 20-11-62. On 8-12-61 the respondent's lawyer filed a petition for review of that order. The appellant's lawyer was also present on that date, but at his own request the case was adjourned to the next date, namely 9-12-61, for further hearing of this review matter. On that day the lawyer for the respondent again raised the question about non-compliance with Section 83(1)(b) of the Act alleging that the particulars of corrupt practice supplied by the appellant were very vague andthat it was difficult for him to file a proper written statement. It was specifically contended on behalf of the respondent that particulars as regards the names of the parties, the dates and places where the leaflets were circulated ought to have been given in the election petition. In reply, the statement of the appellant's lawyer as recorded in the order sheet of 9-12-1961 as follows :
'The petitioner (i. e. appellant) urges on his behalf that it is not possible in the circumstances to give the names of the agents, other persons and the dates and places of the publication and circulation.'
The above note, recorded in the order sheet of the Tribunal dated 9-12-61 was shown to the lawyer for both sides and it will be noticed that in the margin both the lawyers have made the necessary endorsement 'seen' and signed the same in' token of their having read it. Hence the admissions made by the appellant's own lawyer before the Tribunal on 9-12-61 to the effect that 'It is not possible in the circumstances to give thenames of the agents, other persons and the date and places of publication and circulation' would amount to a clear admission that even as late as 9-12-61 the appellant was not in a position either to give the names of the persons who were alleged to have circulated the leaflet or the dates and places where it was so circulated. This statement of the appellant's lawyer if true would completely destroy the entire case built up by the appellant in this election petition.
14. Mr. M. S. Mohanty for the appellant therefore contended with considerable ingenuity that the aforesaid statement of the appellant's lawyer made before the Tribunal on 9-12-61 was only by way of an argument on a point of law and would not bind his client. I am afraid this argument would not be available. A perusal of the order-sheet dated 9-12-61 shows that the main question in controversy between the counsel for both sides before him was whether it was possible for the appellant to give all the particulars required by Section 83(1)(b) of the Representation of the People Act. If while arguing that controversial question the appellant's own lawyer stated before the Tribunal on 9-12-61 that it was not Possible for him in the circumstances to supply the aforesaid particulars, the only inference possible is that he could not give the particulars as he was not aware of the same. He had taken one day's adjournment for the purpose, (Viz. from 8-12-61 to 9-12-61) and when on the next date he made such a statement before the Court, it being a statement of fact, would necessarily bind his client (appellant).
In Prithwi Chand v. Sukhraj Rai, AIR 1940 FC 25 and in State of Orissa v. Chakobhai Ghela-bhai and Co. AIR 1961 SC 284 their Lordships have emphasised that an admission of fact by a counsel for a party would bind the party. Moreover the fact as recorded in the order-sheet, on 9-1-61 was not challenged on any subsequent occasion, nor even in the memorandum of appeal though that had been specifically referred to in the judgment of the Election Tribunal.
15. I would therefore hold that the statement of the appellant's counsel as recorded by theElection Tribunal in his order-sheet dated 8-12-61is a statement of fact and it was only subsequentlywhen the Tribunal directed him to furnish theparticular by 20-12-61 that the appellant came forward with definite particulars on these essentialmatters.
16. There is another interesting circumstance which throws considerable doubt on the appellant's case. The cash-memo Exhibit II issued by the Quality Printers, Sambalpur, shows that 1000 copies of the printed leaflet were issued on 28-5-61 at Sambalpur. According to the appellant's witnesses, however, the leaflet in question was distributed for the first time on 27-5-61 (one day previous to the actual printing of the copies). Even if it be assumed that Ext. II related to the leaflet in question, it is obvious that final printed copies of it had been issued from the office of Quality Printers only on 28-6-61 and it would not possibly have been distributed in the constituency one day earlier. This would therefore throw doubt not only as regards the identity between the leaflet to which Ext. II relates and the leaflet in question (Exhibit I) but would also throw doubt on the entire case put forward by the appellant about the distribution of the leaflet on 27:5-61 Mr. Mohanti thereupon drew our attention to the admission made by the Printer that sometimes advance copies of printed leaflets used to be supplied to a party even prior to the receipt of payment and the issue of cash memo. It is true that this admission was made as regards the general practice, but he further added that his total output is about 26000 sheets of paper per day, that when other arrangements for printing are made ready it would not take more than half an hour to print the entire 1000 copies of the leaflet, and that ordinarily when an order is placed for 500 copies it could be complied with at once and advance copies may not be required. Ext. II shows that 1000 copies were printed. If the printing of these 1000 copies would have taken only half an hour, according to the Printer's admission, it is difficult to believe that the person who placed orders for the same would want to take advance copies prior to 25-5-61.
It is true that if several thousands of copies are required, the printing may be extended to some days and the customer may insist on taking some advance copies, but considering the small number of copies that were actually issued on 28-5-61 as shown in Ext. II, it is not likely that advance copies would have been supplied. Hence if Ext. I had been printed in the press of C. W. 1 on 28-5-61 it is highly unlikely that it would have been circulated in the Constituency on 27-5-61.
17. These improbabilities are themselves sufficient to show that the appellant had failed to discharge the primary burden of proving the alleged corrupt practice beyond reasonable doubt.
18-24. The evidence of his witnesses also does not improve the matter further. (His Lordship discussed their evidence and considered the evidence on issues Nos. 8, 9, 11, 13, 14, 16 and 18 and proceeded).
25. Thus from the aforesaid summary of the evidence of witnesses examined to prove the issues relating to the holding of a meeting at various places in the constituency at which the leaflet (Ext. I) was widely distributed and published, it would appear that almost all the witnesses examined by the appellant are either his workers or Congress sympathisers, or near relation of such persons.
26. It was, however, urged by. Mr. Mohanty that the evidence of these witnesses should not have been rejected merely because they are either workers or members of the appellant's party, inasmuch as the Representation of People Act itself authorises a candidate to engage workers orpolling agents to actively canvass on his behalf. There might have been some force in this argument if, from the nature of allegation, it is clear that ho other witness except the appellant's agents or workers, or Congress workers, are likely to be available as witnesses. But it is the appellant's own case that public meetings were held at the places where most of the villagers were invited to attend and that the distribution of the offending leaflet took place there. It is difficult to believe that in every one of these villages no disinterested witnesses were available to support the appellant's allegations. The appellant has not given this reason for his inability to examine disinterested witnesses. On the other hand while discussing the aforesaid issues I have pointed out that in some instances the respondent was able to produce some disinterested witnesses. The question is essentially one of belief or disbelief of the witnesses examined by the party who is required to establish a serious charge like the commission of corrupt practice beyond reasonable doubt. When the evidence of disinterested witnesses is available but not produced, a court of fact is entitled to say that the quality of evidence adduced by the appellant is not of such high standard as would be required to hold the respondent guilty of commission of corrupt practice of this type.
27. Apart from the interested nature of the witnesses, I have already referred to the broad improbabilities in the case arising out of the omission of the appellant to seek the help of the authorities as soon as he came to know of the circulation of the leaflet on 27-5-61 (ii) his omission to furnish the full particulars required by Section 83(1)(b) of the Representation of the People Act, in his election petition when he filed it on 12-7-61 though he was in possession of such particulars and (iii) the frank admission made by his own Advocate before the Election Tribunal (as evident from the endorsement dated 9-12-61) to the effect that as late as 9-12-61 it was not possible for him to give those particulars. I have also pointed out the serious discrepancies between the date as shown in exhibit II the cash memo issued by the Quality Printers and the date of first circulation of the leaflet as deposed to by P. W. 3. Both parties are highly influential persons and it will not be difficult for either of them to produce any number of witnesses from the Constituency to prove their respective cases and a Court of fact is entitled to expect evidence of very high quality from the appellant especially as such evidence was available and as the burden was heavily on him. Judged by this standard it must be held that the appellant has failed to prove his case.
28. For these reasons the order of the lower Court is upheld and this appeal is dismissed with costs. Costs of this appeal are assessed at Rs. 500/-.
Barman, J.
29. I agree.