Full Judgment Text
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CASE NO.:
Appeal (civil) 4 of 2003
PETITIONER:
Mercykutty Amma
RESPONDENT:
Kadavoor Sivadasan & Anr.
DATE OF JUDGMENT: 06/11/2003
BENCH:
CJI & S.B.Sinha
JUDGMENT:
J U D G M E N T
With
CIVIL APPEAL NO.8648 OF 2003
(Arising out of S.L.P.(C) No. 15350/2003)
S.B. SINHA, J.
Leave granted in S.L.P. (C) No. 15350/2003.
This appeal under Section 116-A of the Representation of People
Act, 1951, arises out of a Judgment and order dated 29th October, 2002
passed by the High Court of Kerala at Ernakulam in Election Petition
No. 7 of 2001 whereby and whereunder the election petition filed by the
appellant herein was dismissed.
FACTUAL BACKGROUND :
The parties herein contested the election from 123 Kundara
Legislative Assembly Constituency. The respondent got 50,875 votes,
whereas the appellant obtained 46,408 votes. The respondent was
declared to be elected by the returning officer of the said Constituency
on 13th May, 2001. The appellant in his Election Petition inter-alia
contended that the respondent had taken recourse to "corrupt practices"
within the meaning of Section 123 of the Representation of People Act,
1951 insofar as a pamphlet was brought out with an intent to promote
feelings of enmity and hatred amongst the voters belonging to Ezhava
caste and communal feelings, which was raised thereby, became a major
factor resulting in the split of votes of the people of the said
community. The appellant contended that had such pamphlet being not
printed and published, the votes of these aforementioned community would
have gone mainly in his favour. The said publication, the appellant
urged, was made by Sh. K.C. Marydasan, an agent of the first respondent
amounting to a corrupt practice within the meaning of Section 123(3A)
of the Act, particularly having regard to the fact that the contents
thereof are false and made with the full knowledge that they were
untrue. It was further alleged that the photographs of the petitioner
was published in a bi-weekly publication by name ’Palco Crime Magazine’
wherein an article was published making allegation that the appellant
might be responsible for the murder of one Thankama ,a cashew factory
worker and the said Thankama had been upbringing a child aged 11 years
as its fostered mother, who was very likely the illegitimate child of
the appellant. It was alleged that the said publication was also made at
the instance of the first respondent herein with a view to defame the
appellant and the same was distributed by Shri Vellimon Vijayanandan,
UDF Convenor, Perinad Mandalam in Kundara Constituency, segment of the
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constituency in question.
ISSUES:
In the light of the pleadings of the parties, the High Court inter
alia framed the following issues:
"2. Whether K.C. Marydasan and Vellimon
Vijayanandan referred to in paras 3 & 5 of the
E.P. were acting as agents of the Ist respondent
when they acted as alleged in the said paras?
3. Whether the publication of Annexures II
and IV were made by K.C. Marydasan with the full
knowledge and consent of the Ist respondent?
4. Whether the publication of Annexures II &
IV amounts to corrupt practice for the purpose
of Sections 123(3A) and 123(4) read with Section
100(1)(d)(ii) of the R.P. Act?
5. Whether the publication of Annexures II
and IV were made by the agent and workers of the
first respondent with the knowledge and belief
of themselves and of the first respondent that
the contents thereof were false and untrue and
with intent to prejudice the prospects of the
petitioner’s election?"
HIGH COURT JUDGMENT:
The High Court in its judgment held that printing and publication
of the aforementioned pamphlet and article amounted to a corrupt
practice within the meaning of Section 123(3A) of the Act. It was
further held that assuming that the publication of Ex.P-2 was made at
the instance of or the consent or knowledge of the first respondent,
there was nothing to show that the contents thereof came within the
purview of the corrupt practices justifying setting aside of the
election on the basis that it promoted feelings of enmity or hatred on
the part of the voters of Ezhava community against the CPM and its
candidate.
Analysing the said ingredients which are required to be proved
for the purpose of Section 123(4) of the Act, the High Court came to
the conclusion that the appellant has not been able to prove that the
said publication was made by Shri Marydasana and Vellimon Vijayanandan
as agents of the first respondent. The appellant having not been able to
prove consent of the first respondent as regards the publication of the
said pamphlet by Marydasana and Vellimon Vijayanandan, the same did not
meet the requirements of law as no sufficient evidence has been brought
on records to show that any of them was authorised to act on behalf of
the first respondent. The High Court, however, without issuing any
notice to Marydasan held that the proved circumstances, fully justify
the conclusion beyond reasonable doubt, that Ex. P-2 was brought out by
none other than Marydasan.
At the trial an application was filed by the first respondent for
examining the said Shri K.C. Marydasan as a court witness. By an order
dated 2.8.2002 the said application was disposed of by the High Court
observing that it would be open to the first respondent to examine him
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but no step was taken to summon the said witness.
The High Court despite the same held:
"The proved circumstances also fully justify a
conclusion, beyond reasonable doubt, that it was
brought out by none other than Marydasan.
In the circumstances it is safe to conclude that
Exhibit P2 is a Convenor pamphlet printed and
published by Marydasan himself...I, therefore,
find that the petitioner had succeeded in
establishing that publication of material that
can constitute corrupt practice under section
123(4), (Subject to proof of consent) was done
by the person Marydasan in respect of Exhibit
P2. Though it is not proved that any corrupt
practice was committed by him within the meaning
of Section 123(3A) of the Act."
As regard, Issue No. 5 the High Court observed:
"Publication of Annexure 2. (Exhibit.P2) by
K.C. Marydasan, UDF Convenor stands established,
but that does not amount to corrupt practice
within the meaning of Section 100 of the Act."
SUBMISSIONS:
Mr. G. Prakash, learned counsel appearing on behalf of the
appellant would submit that the High Court committed a manifest error in
arriving at the conclusion that the appellant was not able to prove the
corrupt practice on the part of the first respondent having regard to
the fact that he had pleaded and proved that the aforementioned
Marydasan and Vellimon Vijayanandan were agents of the first respondent
herein. The learned counsel would contend that for the purpose of
arriving at a conclusion as to whether the elected candidate had taken
recourse to corrupt practices or not, it is not necessary to prove that
the publication in question was made by an election agent or polling
agent or counting agent as it is sufficient to show that the same was
made by a person who was otherwise an agent of the returned candidate.
Strong reliance, in this behalf, has been placed on S.N. Balakrishna Vs.
Fernandez (AIR 1969 SC 1201). In any event the learned counsel would
submit that as the materials brought on records clearly show that the
publications in question were sent to the Election Commissioner for the
purpose of showing that the election expenses incurred by the first
respondent that had been proved by PW-18 (G. Kumaran); the consent of
first respondent in relation to the said publication must be held to
have been proved.
Mr. Reddy, learned Senior counsel appearing on behalf of the
respondent, on the other hand, would submit that the appellant had not
been able to establish any nexus between the material published and the
Ex. P-10, which is said to be the list containing details of pamphlets,
posters and notices printed during the last general election by both the
rival candidates. The learned counsel had also drawn our attention to
the statements made by PW-17 (Prasad Nanappan) in this behalf. The
learned counsel would urge that the said witness being the manager of
Karthika Press, having denied that the pamphlet in question, was printed
in the said Press, the appellant cannot be said to have proved the
material fact that the said Exhibit was printed at the instance of the
first respondent herein.
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STATUTORY PROVISIONS:
The relevant statutory provisions of the Representation of the
People Act, 1951 read as under:
"99. Other orders to be made by the High Court.
\027 (1) At the time of making an order under
section 98 the High Court shall also make an
order\027
(a) where any charge is made in the petition of
any corrupt practice having been committed at
the election, recording--
(ii) the names of all persons, if any, who have
been proved at the trial to have been guilty of
any corrupt practice and the nature of that
practice; and
Provided that a person who is not a party to the
petition shall not be named in the order under
sub-clause (ii) of clause (a) unless\027
(a) he has been given notice to appear before
the High Court and to show cause why he should
not be so named; and
(b) if he appears in pursuance of the notice,
he has been given an opportunity of cross-
examining any witness who has already been
examined by [the High Court] and has given
evidence against him, of calling evidence in his
defence and of being heard.
(2) In this section and in section 100, the
expression "agent" has the same meaning as in
section 123.
123. Corrupt practices. \027The following shall
be deemed to be corrupt practices for the
purposes of this Act:--
(3A) The promotion of, or attempt to promote,
feelings of enmity or hatred between different
classes of the citizens of India on grounds of
religion, race, caste, community, or language,
by a candidate or his agent or any other person
with the consent of a candidate or his election
agent for the furtherance of the prospects of
the election of that candidate or for
prejudicially affecting the election of any
candidate.]
(4) The publication by a candidate or his agent
or by any other person with the consent of a
candidate or his election agent, 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, of
any candidate, being a statement reasonably
calculated to prejudice the prospects of that
candidate’s election.
(8) Booth capturing by a candidate or his agent
or other person.
Explanation. \027(1) In this section the
expression "agent" includes an election agent, a
polling agent and any person who is held to have
acted as an agent in connection with the
election with the consent of the candidate."
CORRUPT PRACTICES - WHETHER PROVED:
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Indisputably the burden of proof to prove commission of corrupt
practices by the first respondent was on the appellant.
For proving corrupt practices within the meaning of Section 123(4)
of the Act, he was required to prove the following:
(i) Ext.P2 was published by the first respondent or by his ’agent’ or
other person, but with his consent.
(ii) the statement are false and the first respondent believed them to
be true.
(iii) the allegations touch upon the personal conduct of the petitioner.
(iv) the statement are reasonably calculated to prejudice the prospects
of the petitioner’s election.
The appellant in paragraph 3 of the Election Petition alleged:
(i) K.C. Marydasan, general Convener, U.D.F.
Election Committee, Kundara, published
Annexure A2 (Ex.P2) notice containing
defamatory statements about the
petitioner, which are false on the face of
it, and believing the same to be not true.
(ii) This was done with the full knowledge and
consent of the first respondent."
In the written statement the first respondent traversed the said
allegations stating :
"It is quite incorrect to contend that but for
the publication and distribution of Annexures A2
and A4 the petitioner would have secured more
number of votes. The first respondent has not
resorted to any corrupt practice."
The first respondent, however, categorically stated that no
defamatory statement was made or published with his knowledge. He
further denied and disputed the allegation that Marydasan was his
election agent or a polling agent or agent for any purpose. He further
denied and disputed that Ex.P-2 was published with his knowledge.
It may further be noticed that no allegation was made in the
election petition that the first respondent had incurred the expenditure
as regard the printing and publishing of the said exhibit.
The submission of the learned counsel is that apart from election
agent, polling agent or counting agent, another types of agents are also
contemplated within the meaning of Section 123 of the Act. The learned
counsel may be correct, but as would appear from the discussions made
hereinafter the same would not make any material difference in law.
In terms of sub-section (4) of Section 123 the corrupt practices
may be committed by (a) the candidate; (b) his agent, that is to say \026
(i) an election agent, (ii) a polling agent, (iii) any person who is
held to have acted as an agent in connection with the election with the
consent of the candidate; (c) by any other person with the consent of
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the candidate or his election agent.
The categories of agents enumerated in (i) and (ii) of clause (b)
are to be notified by the candidate, before the statutory authorities.
Such agents, thus, are not only known to the appropriate authorities but
also to his opponents and other persons concerned. However, so far as
category (iii) is concerned, the name of such agent is not required to
be notified. He must have an express or implied authority to act on
behalf of the candidate. For the purpose of proving corrupt practices
on the part of such agent, there would not be any material difference
between the third category of "agent" or "any other person" inasmuch
as in both the cases consent of the candidate being the material
factor, would be required to be pleaded and proved. Thus, the appellant
was required to prove that alleged corrupt practices were committed by
the aforementioned Marydasan and Vellimon Vijayanandan with the consent
and knowledge of the elected candidate. The first respondent, as
noticed hereinbefore, herein in his written statement denied or disputed
that a pamphlet has been published defaming the appellant herein at his
instance or with his knowledge or consent. The appellant sought to
prove such consent on the part of the first respondent vis-‘-vis
Marydasan on the ground that not only the same was printed in Karthika
Press but the expenditure incurred by Respondent No.1 on the printing
and publishing thereof was intimated to the Election Commission in his
election expenditure account.
In terms of Section 127A of the Representation of People Act, the
printers are required to produce four copies of each printed material
that they printed and provided during the election period to the
candidates or their representatives. The authorities of the Karthika
Press responded to a notice issued by the said witness. A data was also
collected on such disclosures and further materials were collected by
the officers of the department on the basis whereof the list was
prepared. It is, however, accepted that the posters and pamphlets
produced by the printers were not exhibited in the notice board of the
Collectorate.
PW10 upon undertaking a purported comparison of Ex. P2(b) with the
entries made in Ex. X10, sought to correlate the both on the ground
that a sum of Rs. 4,350/- was paid by the first respondent herein to
the printer. However, in cross-examination he stated that it was not
easy to correlate those items of printing with entries in Ex. X10; the
reason being that payments towards printing charges may not be made in
one lump. He categorically stated:
"I now see a bill dt. 19.05.2001 issued to the
Secretary of the L.D.F., Election Committee,
Kundara from the Kollam District Co-operative
Printing Society (the bill is marked Ext.
XII(a). A verification of Ext. X10 is not a
statement prepared based on bills produced by
the candidate and their agent. Actually we
collected data from the field which is verified
by the staff after going to the election offices
of the candidates as also the various printing
presses. Later on when the candidate submitted
their bills, I cross checked the details with
those in Ext. X10.
I now see Bill dt. 30.04.2001 issued from the
Don Bosco Industries. Offset Printers to the
Secretary, the LDF Election Committee, Kundara
on 30.04.2001 for the sum of Rs. 4,250/- These
are in respect of printing two matters. First
of these was 1000 posters for which the printing
charge was Rs. 3000/-. This is shown as serial
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No. 7 of Ext. X10. The other item mentioned in
the bill dt. 30.04.2001 is shown as item 6 of
Ext. X10 (the bill is marked Ext. X1(b)."
It is, therefore, clear that the evidence of the said witness is
not conclusive on the question that offending material was printed and
published by Karthika Press or the expenditure therefor was borne by the
respondent No. 1.
The Manager of the aforementioned Karthika Press was examined by
the appellant as PW17. He categorically stated that Ex. P2(b) was not
printed in the his Press.
He furthermore denied the suggestion that the matter printed in
his Press was Ex. P2(b). A question was asked to whom as to which
pamphlet pertaining to the printing shown in Ext. X7(d) and in answer
thereto he stated:
"Sl. No. 3 of Ext. X7(d) covers printing
charges of Ext. P3(a). Item 2 shown as Convenor
Pamphlet in Ext. X7(c) was a matter printed in
four pages. I deny the suggestion that it
relates to Ext. P2(b) actually has six pages."
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 the criminal charges and proof thereof would not be not
preponderance of probabilities as in civil action but proof beyond
reasonable doubt as in a criminal trials. (See Surender Singh Vs.
Hardial Singh and Ors. (1985) 1 SCR 1059)
From the materials on record, therefore, in our opinion, it has
not been proved that the offending article was printed and published
with the consent and knowledge of the first respondent herein.
NON-COMPLIANCE OF SECTION 99:
Admittedly Shri Marydasan was not issued any notice. He was not
given any opportunity to cross-examine the witnesses examined on behalf
of the appellant or adduce evidence on his own behalf.
Section 99 of the Act empowers the High Court to record the names
of all persons, who have been proved at the trial to have been guilty of
any corrupt practice and the nature of that practice. The proviso
appended to Clause (a) of sub-section 1 of Section 99 mandates that
before a person is so named, he has to be given notice to appear before
the High Court and to show cause why he should not be so named and upon
his appearance, if any, pursuant to such notice he must be given an
opportunity to cross-examine the witnesses who have already been
examined by the High Court and gave evidence against him and further
giving him an opportunity of calling evidence in his defence and of
being heard.
The requirement to apply the provisions of Section 99 is in
respect of a person who is not a party to the proceeding. The statute
mandates that before a person is named as having indulged in corrupt
practices he must be given the same opportunity which is given to a
party to the petition. By reason of such a notice and giving an
opportunity to the noticee to cross-examine the witnesses examined on
behalf of the parties to the said petition and examining witnesses on
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behalf of his defence, he is placed on same position as that of a party
in the petition. (See Dr. Ramesh Yeshwant Prabhoo Vs. Prabhakar
Kashinath Kunte and Others (1996) 1 SCC 130).
Naming of a person as having indulged in corrupt practices has
serious consequences. A person indulged in corrupt practices whether
party to the petition in terms of Section 82 or subsequently receives a
notice in terms of Section 99 would stand on the same footing having
regard to the provisions contained in Section 8A of the Act. Such a
person may not be a necessary party within the meaning of Section 82 of
the Act but it is beyond any cavil that no finding could be recorded by
naming such a person unless the mandatory provisions of Section 99 are
complied with. (See Patangrao Kadam Vs. Prithviraj Sayajirao Yadav
Deshmukh and Others (2001) 3 SCC 594).
Even if Marydasan was agent of the first respondent within the
meaning of Section 123 of the Act, the High Court was required to comply
with the aforementioned statutory mandate. It has not been disputed
that the provisions of Section 99 are mandatory. Marydasan, thus, could
not have been named as having indulged himself in corrupt practices
without complying with the mandatory provisions of Section 99 of the
Act.
The High Court, thus, committed a manifest illegality in coming to
the conclusion that the offending article Ex. P2(b) was published at the
instance of Marydasan.
CONCLUSION:
We, therefore, are of the opinion that the appellant has not been
able to prove:
a. That the said Shri K.C. Marydasan was his agent;
b. that the offending material was published with the knowledge
and consent of the first respondent.
We have, therefore, no hesitation in coming to the conclusion that
the High Court was right in its finding to the said effect. In view of
our finding, it is not necessary to go into the cross-appeal filed by
the first respondent.
For the reasons aforementioned, we do not find any merit in this
appeal, which is accordingly dismissed.
So far as the Appeal filed by Shri K.C. Marydasan is concerned, we
are of the opinion, that having regard to the fact that he had not been
given a notice nor was allowed to cross-examine the witnesses examined
on behalf of the parties on the said issues, the High Court was not
correct in making any observation against him. The said observations
against Shri K.C. Marydasan shall stand expunged. Civil Appeal No. 4 of
2003 is dismissed and the appeal arising out of Special Leave Petition
(C) No.15350 of 2003 filed by K.C. Marydasan is allowed. No costs.