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2003(8) Supreme 984
SUPREME COURT OF INDIA
(From Kerala High Court)
V.N. Khare, CJI., S.B. Sinha, J.
Mercykutty Amma -Appellant
versus
Kadavoor Sivadasan and Anr. -Respondents
Civil Appeal No. 4 of 2003
With
C.A. No. 8648 of 2003
(Arising out of SLP (C) No. 15350/2003)
Decided on 6-11-2003
Counsel for the Parties :
For the Appearing Parties : Dr. A.M. Singhvi, V.R. Reddy, Sr. Advocates, G. Prakash, Ms. Bina Prakash, Ms. Bina Madhavan, S. Udaya Kumar Sagar, Prasanth P., Ms. G. Indira, P. Santhalingam, K.R. Sasiprabhu, Advocates.
Held : 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. (Paras 13 and 14)
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 - (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 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-a-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. (Paras 20 and 21)
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. (Paras 35 and 36)
(ii) Representation of People Act, 1951-Section 99-Corrupt practice-High Court to record names of all persons, who have been proved at the trial to have been guilty of any corrupt practice and nature of that practice-Requirement to apply provisions of Section 99 is in respect of a person who is not a party to the proceeding-Mandatory requirement of giving such a person a noticee and giving an opportunity to the notice to cross examine witnesses examined on behalf of parties to the said petition.
Held : 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 behalf of his defence, he is placed on same position as that of a party in the petition. (Paras 30 and 31)
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. (Para 32)
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. (Para 38)
JUDGMENT
S.B. Sinha, J.-Leave granted in S.L.P. (C) No. 15350/2003.
2. 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 :
3. 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 constituency in question.
Issues :
4. 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 Vijaynandan referred to in paras 3 & 5 of the E.P. were acting as agents of the 1st 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 :
5. 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.
6. Analysing the said ingredients which are required to be proved for the purpose of Section
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