Subba Rao, J.— This appeal by certificate granted by the High Court of Mysore is directed against the order of the said High Court setting aside the order of the Election Tribunal dismissing the petition filed by the first respondent to set aside the election of the appellant.
2. In March 1957 there was an election to the Mysore Legislative Assembly from the single-member constituency of Chintamani in Kolar District. The Appellant and the Respondents 1 to 3 contested the seat. Polling took place on 4-3-1957, and the results were announced on 10-3-1957. The appellant, who got the largest number of votes, was declared elected. The first respondent called in question the election of the appellant by an election petition on various grounds. One of the grounds was that Exs. P-3 and P-4, two leaflets, were published and circulated on 26-2-1957, either by or at the instance of the appellant with false allegations attacking the personal character and conduct of the first respondent and, therefore, the election was void under Section 100(1)(b) of the Representation of the People Act, 1951 (hereinafter called “the Act”). It is not necessary to particularize the other allegations as nothing turns upon them in this appeal. The appellant filed objections to the petition, but the other respondents did not take any interest in the proceedings. In the objections filed by the appellant, he denied that he either published or circulated the said leaflets and also pleaded that the allegations in the said documents did not amount to corrupt practice within the meaning of Section 123(4) of the Act. The Election Tribunal held that the said leaflets did not contain allegations affecting the personal character and conduct of the first respondent and that there was no evidence to establish that they were published and distributed directly or with the consent of the appellant. On the basis of that finding the Election Tribunal dismissed the petition. On appeal, the High Court, on a consideration of the evidence, did not accept the finding of the Election Tribunal and it came to the conclusion that Exs. P-3 and P-4 contained allegations false to the knowledge of the appellant attacking the personal character and conduct of the first respondent. The High Court further held that the said leaflets were published and distributed by the appellant or others with his consent. These findings would be enough to dispose of the appeal before the High Court, but the High Court went further and held on the evidence that RWs 39 and 41 were the agents of the appellant and that they published and distributed the leaflets, and that, therefore, even if the publication and distribution of the leaflets was not with the consent of the appellant, the publication would be a corrupt practice within the meaning of Section 100(l)(b) of the Act. In the result the order of the Election Tribunal was set aside and the election petition was allowed declaring the election of the appellant void. Hence the appeal.
3. Mr S.K Venkataranga Iyengar, learned counsel for the appellant raised before us the following points: (1) the High Court wrongly construed the provisions of Section 100(1)(b) of the Act insofar as it held that a corrupt practice committed by an agent without the consent of the returned candidate or his election agent would fall within the mischief of that clause; (2) Exs. P-3 and P-4 did not contain any allegations in relation to the personal character or conduct of the first respondent reasonably calculated to prejudice the prospects of his election within the meaning of Section 123(4) of the Act; (3) the High Court has thrown the burden of proof wrongly on the appellant to establish that when the allegations were made by him, he did not believe them to be false or believed them to be true; (4) there is no definite finding by the High Court that the said leaflets were published by the appellant or with his consent and there is no evidence to establish that fact; and (5) the High Court in reversing the findings of fact arrived at by the Election Tribunal exceeded its jurisdiction.
4. The first contention raises the question of construction of Section 100(l)(b) of the Act. We are not expressing any opinion on this question, as the appeal can be disposed of on other grounds.
5. The next question turns upon the construction of Exs. P-3 and P-4, the two leaflets published on 26-2-1957. One Narayanaswamy was done to death on 24-2-1957, in Chintamani town. The first respondent claimed that the deceased belonged to the Congress Party, while the appellant claimed that he belonged to the Communist Party. The election was scheduled to be held on 4-3-1957. Ex. D-62 purports to be a printed Tamil pamphlet published under the signature of the Secretary, Kolar District Congress Committee. It is stated therein as follows:
“Hunt of men by Communist goondas at Chintamani. Congress volunteers terribly murdered. Countless Congress people terribly wounded. Congress Office attacked and looted. Havoc of Communists.
Hunt of men by Communist Goonda people at Market Shandy— shops looted.”
It is said that to offset the insinuations made in this pamphlet, Exs. P-3 and P-4 were published on 26-2-1957. Both Exs. P-3 and P-4 were published in Kanada. The leaflets claimed the deceased Narayanaswamy as a Communist and described in detail as to how the incident ending in the death of Narayanaswamy took place. There were general allegations against Congressmen. But the publishers, not being satisfied with general allegations, also concentrated their attack on the first respondent. The relevant passage of Ex. P-3 reads thus;
“It is not a new thing that the Congress candidate Shri M.C Anja-neya Reddy has been trying to suppress his opponents by means of violent acts. The members of the public have in their memory many such acts having taken place in his political career.”
In Ex. P-4 the following passages appear:
“In Chintamani there is no limit to the wicked acts of the Congressmen. Under the leadership of Shri M.C Anjaneya Reddy who has joined the Congress last month, a conspiracy is being hatched for some days past to stop the workers on behalf of Shri Gangi Reddy, the United Front candidate and the Communist leader from carrying on propaganda and to bring the propaganda to a stand-still.”
“This wickedness reached its climax at Chintamani on Sunday the date 24-2-1957. On that day in the evening 300 people on behalf of Shri M.C Anjaneya Reddy who had joined Congress staging a demonstration beat Muslim workers of the Communist Party so that the workers lost their consciousness....”
“The disciples of Shri M.C Anjaneya Reddy, ‘beat' with ‘Agula' Shri Narayanaswamy who had come to take care of the office of the Ryots' Association. As a result Shri Narayanaswamy died an unnatural death that very moment. The late Narayanaswamy was the well-wisher of Shri T.K Gangi Reddy. An attempt is being made to foist this wicked act upon the Communists. No one who is aware of the history of Shri M.C Anjaneya Reddy will believe this. Nobody can forget the ‘galata' made by him by throwing stones so as to prevent a meeting (of people)(to be addressed by) Shri K.C Reddy in connection with the last elections. The people of Chintamani have not forgotten the organised wicked acts indulged in by them after the municipal elections. But Shri M.C Reddy had not joined Congress then.”
The aforesaid passages attribute acts of violence to Anjaneya Reddy during his political career. They also stated in clear and unambiguous terms that Anjaneya Reddy was responsible for the murder of Narayanaswamy, that he threw stones at a meeting arranged to be addressed by Shri K.C Reddy and that he also indulged in organised wicked acts during the municipal elections and that he was guilty of violent acts during his political career. The question is whether these allegations fall within the mischief of Section 123(4) of the Act. Section 123(4) of the Act reads:
“The publication by a candidate or his agent or by any other person, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, or retirement from contest, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.”
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 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 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, Exs. P-3 and P-4, are in relation to the personal character and conduct of the first respondent.
6. That the statements in Exs. P-3 and P-4 were reasonably calculated to prejudice the prospects of the first respondent's election also admits of no doubt. The poll was scheduled to be held on 4-3-1957. The results disclosed that the real contest was between the appellant and the first respondent, each of them securing more than 10,000 votes. The record further discloses that there was brisk canvassing on both sides. On 24-2-1957, Narayanaswamy was murdered. Both the appellant and the first respondent naturally tried to put the blame on the other for the obvious reason that the public support might go against that party to whom the commission of the murder was attributed. The leaflets were published on 26-2-1957 i.e two days after the murder and a few days before polling in a desperate attempt to throw the blame for the murder on the first respondent and thereby to affect prejudicially the prospects of his election. 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, Exs. P-3 and P-4, were, therefore, in our view, calculated to prejudice the prospects of the first respondent's election.
7. Even so it is contended that the findings of the High Court that the appellant made false statements in Exs. P-3 and P-4 and that in making those statements he believed them to be false and did not believe them to be true were vitiated by throwing the burden of proof wrongly on the appellant. The High Court in para 49 of its judgment states that the burden of proving the said negative facts is on the appellant. But it is argued that the High Court though in form correctly states the proposition, in fact and substance, arrives at its findings on the ground that the appellant has not proved the said facts. We do not think that there is any justification for this comment. The relevant sections of the Indian Evidence Act dealing with burden of proof are Sections 101 and 102. Under Section 101 thereof, “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of prooflies on that person”. Section 102 of the said Act, on the other hand, says, “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” Burden of proof has two distinct meanings viz. (i) the burden of proof as a matter of law and pleading, and (ii) the burden of proof as a matter of adducing evidence. Section 101 deals with the former and Section 102 with the latter. The first remains constant and the second shifts. In the present case, the burden of proof, in the first sense; certainly lies on the first respondent; but he has examined himself and has specifically stated in the evidence that he has neither committed the murder nor has he been guilty of any violent acts in his political career. He also placed before the court the circumstances, namely, the situation created by the murder of Narayanaswamy and the possible impact of that murder on the poll which was scheduled to take place in a few days thereafter, indicating thereby a clear motive on the part of the appellant to make false allegations against him. A court of first instance or an appellate court is entitled to accept his evidence. If so, the onus shifts on to the appellant to prove those circumstances, if any, to dislodge the assertions of the first respondent. The appellant has failed to put before the court any facts to establish either that the first respondent did in fact commit the murder or any other acts of violence in the past or to give any other circumstances which made him bona fide believe that he was so guilty. In the circumstances, the court is entitled to say that the burden of proving the necessary facts had been discharged by the first respondent. A perusal of the judgment of the High Court shows that the process of reasoning of the learned Judges followed the said lines. The High Court says: “The petitioner has examined himself and has denied the allegations contained in Exs. P-3 and P-4. There was opportunity for the opposite party to cross-examine him and elicit facts in support of their case. Barring some desultory cross-examination and some random suggestions indicating that the petitioner had a bad past, nothing substantial has been elicited from the evidence to show that there is any justification for the serious allegations contained in Exs. P-3 and P-4.” Then the learned Judges considered the vague and sweeping allegations made in the pleadings, the use to which they were put and the total lack of reliable evidence on behalf of the appellant in support of these allegations and came to the conclusion that the burden of proof had been discharged by the first respondent. We, therefore, cannot hold that there is any justification for the comment that the learned Judges in fact threw the burden of proving the facts on the appellant.
8. But it is contended that the High Court was wrong in stating that there was no reliable evidence on behalf of the appellant herein in support of his allegations in Exs. P-3 and P-4. The learned counsel have taken us through the evidence and we are satisfied that there is no reliable evidence on behalf of the appellant to support the allegations made against the first respondent in Exs. P-3 and P-4. The observations of the learned Judges are correct. In the result we must accept the finding of the High Court that the allegations in Exs. P-3 and P-4 were made by the appellant knowing full well that they were not true.
9. We do not find any force in the contention that Exs. P-3 and P-4 were published as a counter-blast to Ex. D-62 and, therefore, the said documents are not hit by Section 123(4) of the Act. Sub-section 4 of Section 123 defining a corrupt practice is not conditioned by any proviso to the effect that it would cease to be a corrupt practice if the statement was made to counteract the rival statement of an opponent. It is unqualified by any such proviso. If the conditions of that sub-section are satisfied, it is irrelevant to enquire whether the statement has been a counteract to another. That apart, there is no reliable evidence on record — none has been brought to our notice — to show that Exs. P-3 and P-4 were published to counteract the allegations made in Ex. D-62.
10. The next contention is that there is no definite finding by the High Court that Exs. P-3 and P-4 were either published by the appellant or with his consent. The High Court discussed the evidence in this regard in para 51 and 52 of its judgment. It is true that it has not recorded in terms a finding that the appellant either published Exs. P-3 and P-4 or they were published with his consent. But a perusal of the said two paragraphs leaves no room for doubt that the learned Judges accepted the evidence adduced on behalf of the first respondent and if there was no definite finding, it was more a slip than a conscious disinclination to record a finding. Para 51 starts with the definite case of the first respondent, namely, that Exs. P-3 and P-4 were either published by the appellant or with his consent. Then it proceeds to describe the circumstances to indicate that RWs 39 and 41, who actually got them printed, were in close collaboration with the appellant before and after their publication. Then it points out that the first respondent has examined a large number of witnesses to prove that the leaflets wore distributed widely during the election campaign by the appellant and his workers. It then states that having regard to the factious spirit of the witnesses the evidence has to be scrutinized with more than ordinary care. It then notices the evidence of PWs 3, 4, 5, 6, 13, 16 and 25 and remarks that they are disinterested witnesses and that their evidence accords with the probabilities of the case. It criticizes the Election Tribunal for discarding the entire body of evidence without giving any reasons. It then remarks that though compelling reasons are required to set at nought the apparent verdict of the people, a court will not be justified in finding excuses for rejecting election petitions however well-founded they may be. Thereafter, the judgment branches off to deal with a different topic. We think that the learned Judges would have done well to record a formal finding, but they have clearly and unambiguously accepted the evidence and the result, therefore, is that they have accepted the case of the first respondent that Exs. P-3 and P-4 were published by the appellant.
11. The learned counsel for the appellant then argues that the High Court in an appeal has no jurisdiction to set aside the finding of the Election Tribunal on question of fact arrived at on an appreciation of the evidence. The proposition so stated is obviously untenable. Under Section 116-A(1) of the Act, “an appeal shall lie from every order made by a Tribunal under Section 98 or Section 99 to the High Court of the State in which the Tribunal is situated.” Sub-section (2) thereof says “the High Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal under this Chapter as if the appeal were an appeal from an original decree passed by a civil court situated within the local limits of its civil appellate jurisdiction”. It is, therefore, manifest that the jurisdiction of the High Court in the disposal of such an appeal is similar to that it has in the disposal of appeals against original decrees. No doubt this is subject to the provisions of the Act and no provision has been brought to our notice which curtails that jurisdiction of the High Court. Therefore, when, an appeal is filed, the entire case is reoponed in the appellate court. It is true that there is a long established practice regulating the procedure in disposing of an appeal; but that practice does not touch the jurisdiction of an appellate court in disposing of an appeal, but only regulates the manner of its disposal. The Judicial Committee propounded a rule of guidance in the matter of disposal of first appeals in Bombay Cotton Manufacturing Company v. Motilal Shivlal (1915) ILR 39 Bom 386. The following clear statement of the rule at p. 397 can usefully be read:
“It is doubtless true that on appeal the whole case, including the facts, is within the jurisdiction of the appeal court. But generally speaking it is undesirable to interfere with the findings of fact of the trial Judge who sees and hears the witnesses and has an opportunity of noting their demeanour especially in cases where the issue is simple and depends on the credit which attached to one or other of conflicting witnesses. Nor should his pronouncement with respect to their credibility be put aside on a mere calculation of probabilities by the Court of Appeal. In making these observations Their Lordships have no desire to restrict the discretion of the appellate courts in India in the consideration of evidence. They only wish to point out that where the issue is simple and straightforward and the only question is which set of witnesses is to be believed the verdict of a Judge trying the case should not be lightly disregarded.”
This has been followed by the Judicial Committee as well as by the High Courts and also this Court in many other cases. This Court did not intend to circumscribe the jurisdiction of the High Court in hearing appeals under the Act, but only referred to the rule of practice that had all along been recognized in courts in India. In the present case, the High Court has given valid reasons for reversing the finding of the Election Tribunal. The main ground given by the High Court is that the Tribunal has not given any reasons to discard the large body of evidence adduced by the first respondent to prove that Exs. P-3 and P-4 were published by the appellant. A perusal of the judgment of the Election Tribunal shows that the comment of the High Court is entirely justified. The Tribunal says that there is no evidence in the case to show that the appellant himself was responsible for the publication of Exs. P-3 and P-4. But a perusal of the evidence of PWs 1 to 6, 13, 16 and 25 shows that the appellant was responsible for the distribution of Exs. P-3 and P-4. The Tribunal also comments upon the fact that an alternative case is made in the petition filed by the first respondent and it seems to suggest that in election matters pleading on an alternative basis is not permissible. We do not find any support for such a legal proposition either in the provisions of the Act or on general principles. A petitioner, just like a plaintiff in a suit, is entitled to plead on an alternative basis, though having regard to the circumstances of a particular case, a tribunal or a court might take that fact into consideration in weighing the evidence; it cannot be asserted as a proposition of law that such a course is not available in an election petition.
12. The learned counsel for the appellant further contends that the first respondent has not given any particulars as regards the publication of Exs. P-3 and P-4 by the appellant; but it does not appear that this objection was taken before the Tribunal. That apart, the first respondent did file an annexure (Annexure ‘A') before the Tribunal giving the particulars of the persons who distributed the leaflets in question. But it is said that the particulars given therein show that the appellant distributed the leaflets only at Thulavanur, whereas the evidence does not support it. This comment is based upon a misapprehension of the recitals in the annexure. The names of the villages given under the heading “place” are not villages where the leaflets were distributed but are places where the persons mentioned therein reside. That is made clear by the entries against the names of Srinivasa Murthy, Doraiswami, Sundaraiah, Narayana Gowda, Venkatarama Reddy and others. Under the heading “place” sometimes their designations are given and sometimes their addresses are given. The High Court in interfering with the finding of the Election Tribunal did not contravene any rule of practice regulating the disposal of first appeals.
13. In the result, the appeal fails and is dismissed with costs.