TMI Blog1999 (9) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... us the respondent No. 1 succeeded by a margin of 2836 votes over the appellant. 3. According to the petitioner (appellant herein) the result of the election was materially affected and vitiated by the commission of corrupt practice within the meaning of Sub-sections (3) and (3 A) of Section 123 of the Act by the respondent No. 1. According to the appellant, the Marxist Party had launched Video Cassette Ex. P-2 entitled as 'VICHARANA' (i.e. Trial). The script of the video film was written by the respondent No. 1. He had also directed and produced the said video film. It was exhibited throughout the constituency during the election. The photo-contents of the video cassette as also the speeches contained therein were highly objectionable and inflammatory. 4. The petitioner alleged that he would have obtained more votes if only the returned candidate had not committed corrupt practice as defined in Sub-sections (3) and (3A) of Section 123 of the Act. It will be useful to extract and reproduce the relevant part of pleadings as to the said corrupt practice as raised in the petition. Paras 4 and 5 of the petition read as under:- As the main part of the election prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavit accompanying the petition reads as under :- That the statements made in paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12 and 16 of the accompanying Election Petition and the schedule about the commission of corrupt practices (sic.) the first respondent and the particulars of such corrupt practice mentioned in the said paragraph of 4, 5, 6, 7, 8, 9, 10, 11, 12 and 16 of the Election Petition and the Schedule are true to the best of my knowledge and information. I am advised that these acts of the 1st respondent Constitute corrupt practices under Section 123(3) and (3A) of the representation of People act, 1981. I beg to state that the particulars of such corrupt practice mentioned in the said paragraphs of the Election Petition and the schedule may be read as part of this affidavit. I state that the facts stated about the corrupt practices are true to the best of my knowledge and information and I believe them to be true. Dated this the 24th day of June, 1996. 9. All the averments abovesaid made in the petition have been specifically denied by respondent No. 1 but simply so without raising any explanatory or clarificatory plea in that regard. 10. The learned D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he election of any candidate amounts to corrupt practice. 13. We may briefly notice the findings arrived at by the High Court. According to the High Court though there was total denial by the returned candidate of the allegation that he had scripted, directed and produced the cassette 'Vicharana', he admitted during his deposition before the court that he had worked as a coordinator for the making of the film and he had a role in contacting the actors for acting in the film. The returned candidate had visited the site of shooting once or twice and had also assisted the producer in contacting the actors in the film. Though the evidence pointed out to there being no written script for the film but that appeared to be highly unnatural looking at the way the dialogues were recited in the film. The evidence pointed out to the returned candidate being a coordinator in making the film which factum was concealed by the returned candidate in his written statement. A coordinator is one who has a substantial role to play in the production of a film. The High Court felt satisfied that the conclusion flowing from the cumulative effect of the proved facts was that the returned candi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was no untoward incident. The visual and speech contents of the cassette neither promoted nor attempted to promote feelings of enmity or hatred between two classes of citizens. Certainly the contents did not further the election prospects of first respondent nor prejudicially affect the election of petitioner. The exhibition of the cassette could not be said to be corrupt practice within the meaning of Section 123(3A) of the Act. Vide para 31, the High Court has also recorded a finding that it was not proved that the exhibition of the video cassette had materially affected the result of the election in Guruvayur constituency. 14. It is basic to the law of elections and election petitions that in a democracy, the mandate of the people as expressed at the Hastings must prevail and be respected by the Courts and that is why the election of a successful candidate is not to be set aside lightly. Heavy onus lies on the election petitioner seeking setting aside of the election of a successful candidate to make out a clear case for such relief both in the pleadings and at the trial. The mandate of the people is one as has been truly, freely and purely expressed. The electoral proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lars thereof. Thus, an election petition alleging commission of corrupt practice has to satisfy some additional requirements, mandatory in nature in the matter of raising of the pleadings and verifying the averments at the stage of filing of the election petition and then in the matter of discharging the onus of proof at the stage of the trial. 15. In F.A. Sapa etc. etc. v. Singora and Ors. etc. [1991] 2 SCR 752, this Court has held: A charge of corrupt practice has a two dimensional effect; its impact on the returned candidate has to be viewed from the point of view of the candidate's future political and public life and from the point of view of the electorate to ensure the purity of the election process. There can, therefore, be no doubt that such an allegation involving corrupt practice must be viewed very seriously and the High Court should ensure compliance with the requirements of Section 83 before the parties got to trial. While defective verification of a defective affidavit may not be fatal, the High Court should ensure its compliance before the parties go to trial so that the party required to meet the charge is not taken by surprise at the actual trial. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the meetings organised during the election campaign. This court held that dates and particulars of the meetings should be given so as to eliminate the possibility that witnesses could be procured later on for adducing evidence. In the context of the charge of corrupt practices referable to distribution of certain pamphlets, this Court held that the pleadings should have stated who had distributed the pamphlets when, where and to whom they were distributed and in whose presence. This court further observed that no amount of evidence could cure the basic defect in the pleadings. 18. Application of the above noted well settled principles to the case at hand raises a gloomy picture indeed. The petition is bereft of some material facts and particulars. It does not set out names of even a few persons who viewed the film and/or in whose presence it was exhibited though it was not necessary for the petitioner to have alleged the names of each and every person who had viewed the video film. However, the names of a few persons who had viewed the film and in whose presence it was exhibited were expected to have been alleged in the election petition so as to put respondent No. 1 on noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interview. 21. We would first proceed to assess the testimony of the three main actors. Mammokkoya (PW 6), has not stated anything material to advance the case of the petitioner and in the opinion of the High Court itself the impression created by this witness was that he was trying to hide more than he was willing to reveal. Most of the answers given by this witness to the questions asked on behalf of the petitioner were evasive. In the opinion of the High Court the answers given by this witness left the distinct impression in the mind of the court that the witness was not a witness of truth. Jose Pallissery, (PW 7) stated nothing to connect the first respondent with the direction or production of the film. All that he has stated is that Shreeraman (PW 8) had asked him to act in the film and also made him understand that the request was at the instance of Mr. Bennie, the director of the film. Shreeraman (PW 8) stated that he was not aware who had made the film. The remuneration of the actors was paid by one Sukumaran Nair in his capacity as the production manager. Production was done by a group of people. The only role ascribed by Shreeraman (PW 8) to the first respondent is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not bound by the contents of the criminal petition filed by Shri A.P. Varkey. Shri A.P. Varkey was examined by the petitioner as P.W. 2. He stated to have made use of the cassette 'Vicharana' during the election campaign on behalf of CPI(M) He also stated that the directives given by the District Collector for removing the objectionable portions from the video cassette as pointed out by the District Collector were complied with by removing the same and thereafter only the cassette was displayed. During cross-examination he admitted that the contents of the criminal petition filed in the High Court were based on hearsay information. He also admitted that the election propaganda in Trichur District had nothing to do with the first respondent and the first respondent had neither requested the witness or the Ernakulam District Committee of the party for any help in election propaganda on behalf of the first respondent. In spite of such admissions made by the witness, the so-called admission contained in the criminal petition Exhibit P3 has been held to be and used as a piece of incriminating evidence against the first respondent by the learned Designated Judge. Firstly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d candidate had participated and during the course of interview admitted that he was very confident of winning at the election as he had succeeded in exposing the communal fascist forces before the electorate. The witness went on to say that the respondent No. 1 had during the interview admitted to have written the script of 'Vicharana' and also prepared the cassette. When cross-examined, the witness fumbled and could not give details of the interview said to have been viewed by him. He could not give date of the interview viewed by him, the name of the programme wherein the interview was telecast, the person who was interviewing the first respondent and so on. Such piece of evidence has been relied on by the High Court for the purpose of inferring an incriminating admission by the first respondent. The first respondent in his statement did admit having participated in the interview telecast by Asianet but did not admit having made any such admission as was sought to be put in his mouth. 25. The infirmity in the finding arrived at by the High Court is writ large. Firstly, an admission is a substantive piece of evidence and when the same was relied on for proving a corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that he was not a member of the Communist Party (Marxist). We have carefully read the statement of the first respondent and we do not find his having been discredited in cross-examination. His testimony inspires confidence. 28. Bennie Tholath, (RW2) examined on behalf of the first respondent is the witness who had directed the video film 'Vicharana'. He clearly stated that the persons involved in preparation of the script for 'Vicharana' were Sukumaran Nair, Secretary to Shri V.S. Achuthanandan, the then leader of the opposition, Babu Pallissery, the District Secretary of the DYFI, Trichur District and Joseph, a freelance journalist. The witness had directed the film at the instance of Sukumaran Nair. He specifically stated that the first respondent had no part of play in the preparation of the script. He further stated that the first respondent had done nothing particular in connection with the making of the video film 'Vicharana'. The witness further stated that normally what is done by a coordinator in the production of a film was not done by the first respondent. The witness denied any role having been played by the forest respondent either in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a fully written script was in existence and available. The written script has not been produced in the Court. Certainly, there is no evidence adduced to attribute authorship of the script, complete or incomplete, to the respondent No. 1. Even if the deficiency in the pleadings was ignored and all the findings arrived at by the High Court were accepted as correct, still, in our opinion, the facts found may give rise to a strong suspicion of the respondent No. 1 having had something to do with the production of the video film 'Vicharana' but suspicion howsoever strong cannot take the place of proof of the charges of corrupt practice. 32. The High Court has no where found nor is it the case of the petitioner that the respondent No. 1 was himself exhibiting the video film. Similarly, the High Court has not arrived at a finding as to any particular named person having exhibited the video film as an agent of or with the consent of the respondent No. 1. Earlier summarising the conclusions arrived at by the High Court, we have already noticed one of the findings arrived at that the video cassette does not contain an appeal to garner votes on the ground of religion or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he information of the petitioner and believed by him to be true. The source of information is not disclosed. As observed by the Supreme Court in F.A. Sapa etc. etc. v. Singora and Ors. [1991] 2 SCR 752, the object of requiring verification of an election petition is to clearly fix the responsibility for the averments and allegations in the petition on the person signing the verification and, at the same time, discouraging wild and irresponsible allegations unsupported by facts. However, the defect of verification is not fatal to the petition, it can be cured [see : Murarka Radhey Sham Ram Kumar v. Roop Singh Rathore and Ors. [1964] 3 SCR 573, A.S. Subbaraj v. M. Muthiah 5 ELR 21]. In the present case the defect in verification was pointed out by raising a plea in that regard in the written statement. The objection was pressed and pursued by arguing the same before the Court. However, the petitioner persisted in pursuing the petition without proper verification which the petitioner should not have been permitted to do. In our opinion, unless the defect in verification was rectified, the petition could not have been tried. For want of affidavit in required form and also for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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