1999 Supreme(SC) 1123

1999(8) Supreme 372
Supreme Court of India
(From Kerala High Court)
Dr. A.S. Anand, CJI., S. Rajendra Babu & R.C. Lahoti, JJ.
R.P. Moidutty -Appellant
versus
P.T. Kunju Mohammad & Anr. -Respondents
Civil Appeal No. 6618 of 1997
Decided on 28-9-1999
Counsel for the Parties :
For the Appellant : V.K. Beeran, Sr. Advocate, P.I. Jose, V.J. Fran­cis, Advocates.
For the Respondents : P.P. Rao, Sr. Advocate, P. Somachudan Nair, Ambar Qamaruddin, Jamshed Bey, T.T. Kunhikannan, Advocates.

Headnote:(i) Representation of People Act, 1951-Section 123(3) and (3A)-Corrupt practice - Appeal on ground of religion, caste or community-Allegation that returned candidate scripted, directed and produced video film depicting demolition of Babri Mosque and riot which broke out there­after-Allegation that dialogues in video airmed at P.V. Narasimha Rao, the then Prime Minister and President of Indian National Con­gress(I) which was leading UDF which sponsored election petitioner-Allegation that video film exhibited to Muslim Community to develop hatred against election petitioner-Witnesses produced by elec­tion petitioner including actors did not prove that returned candidate either wrote scripted or directed or produced video film-No evidence to prove who were the person at whose instance film exhibited to viewers-Further pleading of petition itself not in accordance with requirement of Section 83(1)-Video cassette did not contain an appeal to garner votes on ground of religious symbol for furtherance of prospects of election of returned candidate or to prejudicially affect election of any candidate-On facts certain finding of High Court in favour of election petitioner unsustainable-Ultimate finding of High Court that election petition requir­ed to be dismissed warrants no inter­ference-Dismissal of election petition upheld.

       (ii) Representation of People Act, 1951-Sections 81(3) and 123 -Corrupt practice-Pleadings and proof of-Principles.

       Held : It is basic to the law of elections and election petitions that in a democracy, the mandate of the people as expressed at the hustings 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 process in a democracy such as ours is too sacrosanct to be permitted to be polluted by corrupt practices. If the court arrives at a finding of commission of corrupt practice by a returned candidate or his election agent or by any other person with the consent of a re­turned candidate or his election agent then the election of the re­turned candidate shall be declared to be void. The underlying princi­ple is that corrupt practice having been committed, the result of the election does not echo the true voice of the people. As the conse­quences flowing from the proof of corrupt practice at the election are serious, the onus of establishing commission of corrupt practice lies heavily on the person who alleges the same. The onus of proof is not discharged merely on preponderance of probabilities; the standard of proof required is akin to that of proving a criminal or a quasi-criminal charge. Clear cut evidence, wholly credible and reliable, is needed to prove beyond doubt the charge of corrupt practice. (Para 12)

       The legislature has taken extra care to make special provision for pleadings in an election petition alleging corrupt practice. Under Section 83 of the Act ordinarily it would suffice if the election petition contains a concise statement of the material facts relied on by the petitioner, but in the case of corrupt practice the election petition must set forth full particulars thereof including as full a statement as possible of (i) the names of the parties alleged to have committed such corrupt practice, (ii) the date, and (iii) place of the commission of each such practice. An election petition is required to be signed and verified in the same manner as is laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. However, if the petition alleges any corrupt practice then the petition has additionally to be accompanied by an affidavit in Form No. 25 pre­scribed by rule 94A of the Conduct of Elections Rules, 1961 in support of the allegations of such corrupt practice and the particulars 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. (Para 12)

       (iii) Representation of People Act, 1951-Sections 81(3) and 123 r/w Rule 94A-Verification of election petition-Object of-Petitioner not speci­fying which of allegations of corrupt practice were true to his per­sonal knowledge and which allegations were based on information be­lieved by him to be true-Despite objection by returned candidate as to maintainability of election petition defect in verification not rectified-Election petition liable to rejected at threshold for non-compliance with mandatory provisions of law as to pleadings.

       Held : The affidavit filed by the petitioner in support of the election petition as required by Rule 94A also does not satisfy the requirement of proviso to sub-section (1) of Section 83 of the Act and Form No. 25 appended to the Rules. The several averments relating to commission of corrupt practice by the first respondent as contained in paragraphs 4 to 12 and 16 of the petition have been verified as true to the best of “my knowledge and information” - both, without specifying which of the allegations were true to the personal knowledge of the petitioner and which of the allegations were based on the information of the petitioner believed by him to be true. Neither the verification in the petition nor the affidavit gives any indication of the source of information of the petitioner as to such facts as were not in his own knowledge. The verification of the petition does not even satisfy the re­quirement of Order 6 Rule 15 of the CPC. All the averments made in paras 1 to 17 of the petition have been stated to be true to the personal knowledge of the petitioner and in the next breath the very same averments have been stated to be based on the information of the petitioner and believed by him to be true. The source of information is not disclosed. (Paras 31, 32 & 33)

       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. (Para 33)

       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 lack of particulars, the allegations of corrupt practice could not have been enquired into and tried at all. In fact, the present one is a fit case where the petition should have been rejected at the threshold for non-compliance with the mandatory provisions of law as to pleadings. (Para 33)

       (iv) Election Law-Evidence-Admission of a party-Is a substantive piece of evidence-It has to be pleaded in election petition and must be proved with precision.

       Held : 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 corrupt practice, it ought to have been pleaded in the election petition so as to give the first respondent an opportunity of meeting and explaining the same but this has not been done. Secondly, an interview telecast on television would have been viewed by hundreds of persons yet the petitioner could find only one person to depose to the contents of the interview. An admis­sion put in the mouth of the first respondent and denied by him cannot be believed unless cogent and convincing evidence was adduced in proof thereof. Lastly, an alleged admission sought to be relied on as an incriminating piece of evidence must be proved with precision. Unless the phraseology in which the so called admission was couched is brought before the court, the court may not be in a position to act upon it as an incriminating link in the chain of evidence. A sugges­tion denied constitutes no evidence. (Para 23)