TMI Blog2009 (9) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... National Democratic Alliance. He was declared elected by a margin of 529 votes over the first respondent (hereinafter referred to as the `election petitioner'), who got the second highest number of votes. The election petitioner was the candidate from the Communist Party of India (Marxist), a constituent of the Left Democratic Front (for short `LDF'). While the appellant secured 2,56,411 votes, the election petitioner got 2,55,882 votes. The second respondent in the election petition, who had contested the election as a candidate of the Kerala Congress (M), a constituent of the United Democratic Front (`UDF' for short), secured 2,09,880 votes. The other 13 contestants got an insignificant number of votes. 3. The election of the appellant was challenged by the election petitioner on the ground that the appellant had committed corrupt practices as enumerated under Sections 123(3) and 123(5) of the Act and, therefore, his election was liable to be declared void under Section 100(1)(b) of the Act. The consequent relief prayed for in the Election Petition was for declaring the election petitioner as elected in terms of Section 101(b) of the Act. 4. The allegations in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstituency can be declared as void by the conduct of corrupt practices enumerated in issue Nos. 1 and 2 and is it liable to be set aside. 4. Whether the petitioner has to be declared as duly elected from No. 12 H.P. Muvattupuzha Parliamentary Constituency after setting aside the election of the 1st respondent. 5. Whether the election petitioner is entitled to get the cost of his election petition. 6. On behalf of the election petitioner, twenty five witnesses, including himself were examined. Alleged public notice dated 21st April, 2004 and photo-calendar, filed as Annexures I and II respectively with the election petition, were exhibited through election petitioner as Ext.P1 and P2 respectively. On the side of the appellant, eleven witnesses, including himself were examined and Ext. R1(a) to R1(g) were marked. 7. Analysing the evidence adduced by the parties on the issues, except for issue No. 5, the High Court answered all the issues in favour of the election petitioner. Thus, costs of the election petition, were not awarded. It has been observed by the High Court that in the instant case, even though consent of the appellant herein for printing Ext.P1 and P2 is not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant under Sections 123(3) and 123(5) of the Act will hold good for the purpose of Section 99 of the Act as well. Aggrieved by the said decision, the appellant has come up in appeal before us. 8. Assailing the findings of the High Court, Mr. F.S. Nariman, learned senior counsel appearing on behalf of the appellant, strenuously urged that the conclusion of the High Court to the effect that the appellant had committed corrupt practices as envisaged under Sub-sections (3) and (5) of Section 123 of the Act are palpably erroneous, inasmuch as: (i) it was neither the case of the election petitioner, nor any specific plea was raised in the election petition, that the appellant had appealed to the electors to vote for him on the ground of his community or religion by distribution of printed offending materials viz. a notice/statement dated 21st April, 2004 (Ext.P1) and a photo calendar for the year 2004 (Ext.P2); (ii) both the offending documents (Ext.P1 and Ext.P2) were not proved as per the prescribed procedure and, therefore, the very basis in forming the opinion that the appellant had committed corrupt practice was missing; (iii) having held that independently Ext.P2 did not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel appearing for the election petitioner, on the other hand, supporting the decision of the High Court, submitted that upon production of originals of pamphlet and the calendar by PW1, they were marked as Exts.P1 and P2 respectively and duly endorsed by the Court trying the election petition, therefore, the documents stood proved. In support of the plea that once a document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document was irregular, cannot be allowed to be raised at any stage subsequent to the marking of the document as exhibit, reliance was placed on the decisions of this Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami V.P. Temple and Anr. (2003) 8 SCC 752; Dayamathi Bai (Smt) v. K.M. Shaffi (2004) 7 SCC 107 and P.C. Purushothama Reddiar v. S. Perumal (1972) 1 SCC 9. Other pleas raised were also countered by the learned Counsel. 10. Before we proceed to examine the facts of the case to consider the question as to whether charges of corrupt practices were established against the appellant, we deem it necessary to reiterate that a char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard a fact as proved in a civil suit, may be considered insufficient for a conviction in a criminal action. While in the former, a mere preponderance of probability may constitute an adequate basis of decision, in the latter a far higher degree of assurance and judicial certitude is requisite for a conviction. The same is largely true about proof of a charge of corrupt practice, which cannot be established by a mere balance of probabilities and, if, after giving due consideration and effect to the totality of the evidence and circumstances of the case, the mind of the Court is left rocking with reasonable doubt - not being the doubt of a timid, fickle or vacillating mind - as to the veracity of the charge, it must hold the same as not proved. 12. A three-Judge Bench of this Court in Jeet Mohinder Singh (supra), referring to a large number of earlier decisions, culled out the following legal principles, relevant for our purpose, in the field of election jurisprudence: (i) The success of a candidate who has won at an election should not be lightly interfered with. Any petition seeking such interference must strictly conform to the requirements of the law. Though the purity of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording findings of fact the High Court has disregarded settled principles governing the approach to evidence or committed grave or palpable errors. See:Gajanan Krishnaji Bapat (supra); Kripa Shankar Chatterji v. Gurudas Chatterjee (1995) 5 SCC 1. 13. Similar opinion has been expressed in subsequent decisions, including Surinder Singh (supra) and Mercykutty Amma (supra) on which reliance had been placed by learned Counsel for the appellant. 14. With this background, it has to be examined if the findings recorded in the judgment in appeal, holding corrupt practices under Section 123(3) and (5) of the Act having been committed by the appellant, are justified or hit by the contentions to the contrary raised by the appellant. It would be appropriate to reproduce the aforesaid provisions of the Act, which are extracted below: Section 123 - Corrupt practices. -- The following shall be deemed to be corrupt practices for the purposes of this Act: (1) xxx xxx xxx (2) xxx xxx xxx (3) The appeal by a candidate or his agent or by any other person with the consent of a candidates or his election agent to vote or refrain from voting for any person on the ground of his religion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted, it has to be examined: (a) whether notice (Ext.P1) and photo- calendar (Ext.P2) independently or jointly constitute appeal to the voters to vote on the ground of religion or caste or community of the appellant as alleged in the election petition and (b) if so, whether the appellant herein or his agent or any other person with the consent of the appellant or his agent has printed and distributed or at least distributed the same among the voters to bring them within the mischief of the Sub-section. Calendar (Ext.P2) is described as printed at Akshara with the telephone number of the Press. It contains the photograph of the appellant with the Holy Pope, taken on the occasion of the beatification ceremony of Mother Teresa. Notice (Ext.P1) purportedly authored and published in the name of John K., does not contain the name of the printing press or a direct appeal to the voters to vote for the appellant. To appreciate its contours and the purpose, it would be expedient to visualize its contents, which are extracted below: Dear People, 21.4.2004 I need not introduce Adv. P.C. Thomas, Former President of the Kothamangalam Diocese, former State Secretary of the Catholic C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the hand of the holy father, the love and affection of 100 crore Indians, stands as social worker whom our community can always be proud of it was the selfishness and personal interest of certain people, which sent him to the BJP front. But there too he stands as a witness of Christ like the old Joseph who was elevated as king by the aliens. I request you to give P.C. Thomas, who is the representative of the Christians followings the footsteps of lord Jesus who stepped in to this world to preach the gospel to the poor, to console the sad at heart to free the shackled, to give sight to the blind and to liberate the oppressed and who follows the commandment of the Holy Church, your ever strong prayer support to enable that son to continue as Jesus witness in Delhi. With love and regard John Kachiramattom Sd/- John Kachiramattom 17. Obviously, as the High Court has also deduced, notice (Ext.P1) clearly contains an appeal in that, the Holy Father, the Pope, head of the Roman Catholics does exhort them not to keep away from the mainstream. It applauds the services of the appellant in standing for the community when it is under attack and had fought in Parliament for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Petition, documents Ext.P1 and Ext.P2 were got printed and published at Akshara Press by the appellant through his election agent, James and distributed by the agents or workers/campaigners as alleged. We have examined the evidence produced in the case. The election petitioner- Respondent No. 1 claimed to have no personal knowledge about it and stated that the information about it was supplied to him by the jeep driver, Ajimon (PW-4) and K.K. Parmeswaran (PW-19) who deposed having supplied the said information to the election petitioner around the middle of May, 2004, whereafter the election petition was filed on 26th June, 2004. 20. Three witnesses were produced by the election petitioner in support of his pleas (regarding printing and distribution of Exts.P1 P2) in paras 8, 9, 11 and 14 of the petition. Ajimon (PW-4) driver of the jeep KEF 7953 made a detailed statement about his reporting with jeep to appellant's election agent James on 24th April, 2004; the latter taking the jeep to Akshara Press; the appellant's arriving there and making cash payment through his agent James to the Press owner; taking delivery of bundles of printed materials, each bundle with a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive worker of the IFDP. He was not questioned on his statement about the election meeting on 24th April, 2004 attended by the appellant and being addressed by John K. 23. To counter the evidence of PW-4, PW-5 and PW-6, the appellant produced Thomas (RW-9), the owner of jeep, Jose Kutty (RW-6), owner of Akshara Press and James (RW-11), who respectively sought to counter the versions of the respondent No. 1's witnesses, PWs-4, 5, and 6 aforesaid. RW-9, Thomas, owner of the jeep stated that he never gave the jeep to PW-4 or instructed him to report to James on 24th April, 2009. He admitted that Ajimon was employed by him but to drive his bus. According to him, the jeep was purchased just for sale and was not run by him. According to him, the jeep was sold away by him within eight days of its purchase. If really so, there was no occasion for him to get it transferred in his name, which he did. RW-6 (Jose Kutty), owner of the Press denied having ever employed PW-5 or the printing of notice (Ext.P1) and calendar (Ext.P2) at his Press. In cross- examination, he admitted that the appellant and his election agents were known to him for a long time; that he did undertake election prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el appearing for the appellant on points No. (i) to (v) digested in para 8 (supra). These are not tenable. Pithily stated, these were: (i) it was neither the case of the election petitioner nor any specific plea that the appellant had appealed to the electors to vote for him on the ground of community or religion by distribution of Exts.P1 and P2; (ii) the aforesaid documents were not proved by prescribed procedure and the basis for forming opinion thereon was missing; (iii) notice (Ext.P1) purports to be authored by John K, who was not examined by the election petitioner despite having cited him as a witness and as such an inference drawn by the learned Judge was based on unproved documents; (iv) no witness produced had stated that he had acknowledged to him that John K had prepared or signed the said exhibits and (v) the inference drawn is based on unproved documents. 26. As already noted above (Para 19 supra), the election petitioner's case in paras 8, 9, 11 and 14 of the petition laid in specific terms, concisely put, does show that documents Exts.P1 and P2, purportedly authored by John K, were got printed by the appellant through his admitted election agent - James at A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Moreover, the printing and circulation of Exts.P1 and P2 having been proved, the question as to who authored Ext.P1 is immaterial. The contentions raised by the learned Counsel on the point are thus, unsustainable. 27. As regards the decision of this Court in Ch. Razik Ram (supra) and other decisions on the issue, relied upon on behalf of the appellant, there is no quarrel with the legal position that the charge of corrupt practice is to be equated with criminal charge and the proof required in support thereof would be as in a criminal charge and not preponderance of probabilities, as in a civil action but proof beyond reasonable doubt . It is well settled that if after balancing the evidence adduced there still remains little doubt in proving the charge, its benefit must go to the returned candidate. However, it is equally well settled that while insisting upon the standard of proof beyond a reasonable doubt, the Courts are not required to extend or stretch the doctrine to such an extreme extent as to make it well nigh impossible to prove any allegation of corrupt practice. Such an approach would defeat and frustrate the very laudable and sacrosanct object of the Act in main ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
