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SUPREME COURT OF INDIA
S. MURTAZA FAZAL ALI AND P.N. SHINGHAL, JJ.
K. M. Mani etc., Appellants
Versus
P. J. Antony and others etc., Respondents.
Civil Appeals Nos. 99 and 79 of 1978, D/- 12-9-1978.
Advocates appeared
Mr. A. K. Sen and Dr. Y. S. Chitaley Sr. Advocates (M/s. P. Surendran, J. B. Dadachanji and K. J. Johan, Advocates, for J. B. D. & Co., M/s. C. K. Srivashanker Panicker, T. R. Raman Pillai and Manjul Kumar, Advocates with them) (in C.A. No. 99 of 1978) and Dr. Y. S. Chitaley, Sr. Advocate (Miss P. Nambiar and Mr. A. S. Nambiar, Advocates with him) in C.A. No. 79 of 1978, for Appellants; Mr. P. Govindan Nair, Sr. Advocate (Mr. N. Sudhakaran, Advocate Mathew Zachariah and Mrs. Baby Krishnan, Advocates with him) (for No.1), for Respondents, in both Appeals.
– held that the transcript of speech of such police officer must be made available to the Court –
– where the allegation relates to a charge that a candidate obtained the assistance of a police officer for the purpose of addressing a meeting on the eve of the poll and exhorting those present to work for his victory, it is reasonable to expect that, wherever possible, a transcript of his speech shall be made available to the Court in support of the allegation. Besides furnishing the precise material relating to the allegations to the election Court, it has the advantage of giving the respondent an opportunity of meeting a precise allegation. But it may be that this may not be possible in a given situation. In that case it would be reasonable and fair to expect that the election petitioner will produce a contemporaneous record on the points that were made in the speech or alteast its substance, as held in K.M. Mani v. P.J Antony, AIR 1979 SC 234.
– even a police officer whose assistance has been prohibited under sub-section (7) of Section 123 of the Act, is nonetheless a citizen and an elector and is entitled to have his own belief that a particular candidate would win, and to express that belief, without lending an impression that it was meant to assist him in the election in any manner. It would have open to objection if Joseph Thomas, an IPS City Police Commissioner had stated at the meeting that it was necessary for the benefit of the Christian community that persons like the appellant, in the case of M. K. Mani v. P.J. Anthony, AIR 1979 SC 234, should win and become a Minister to save them from the rigour of the Land Reforms Act, but the Bishop has returned a categorical answer that Joseph Thomas did not say any such thing. There is no satisfactory evidence to prove that Joseph Thomas spoke anything at the meeting for furtherance of the appellants electoral prospects or that he went there and spoke at his instance.
Judgment
SHINGHAL, J.:- These two appeals are directed against two orders of the Kerala High Court dated Dec. 21, 1977, in the election petition of respondent P. J. Antony, an elector of the Palai constituency (No.94) of Kerala Legislative Assembly. P. J. Antony challenged the election of K. M. Mani in the general election of 1977 and prayed for a declaration that the other candidate N. C. Joseph, respondent No.2, had been duly elected in that election. The High Court held that K. M. Mani "obtained and procured the services" of Joseph Thomas, a police officer, "in furtherance of the prospects of his election", and a corrupt practice was committed under sub-s. (7) of S.123 of the Representation of the People Act, 1951, hereinafter referred to as the Act. It therefore declared K. M. Manis election from the constituency to be void, with costs, but rejected the prayer for directing N. C. Joseph to have been elected. It made a separate order the same day naming K. M. Mani and Joseph Thomas as the persons who were guilty of the corrupt practice. While K. M. Mani has filed appeal No. 99 of 1978 and will hereafter be referred to as the appellant, Joseph Thomas has filed appeal No. 79 of 1978.
2. Polling at the election was held on March 19, 1977, and the result was declared on March 20. The appellant obtained 39,664 votes, N. C. Joseph who was the nearest rival at the election obtained 24,807 votes and the other defeated candidate Joseph Cheriyan obtained 521 votes.
3. The appellant was a Roman Catholic and was working as the Finance Minister of the Kerala Government at the time of the election. He was the candidate of the Kerala Congress, which had entered into some sort of an election alliance with some other parties. N. C. Joseph, who was also a Roman Catholic, was an independent candidate. The contest was thus between Roman Catholics.
4. The election of the appellant was challenged with the allegations that he had committed corrupt practices under sub-ss. (1), (2), (3), (4) and (7) of S.123 of the Act. But the election petitioner did not even allege the ground for the commission of any corrupt practice under sub-s. (4) and did not press his case in regard to the commission of the corrupt practice under sub-sec. (3) of Section 123. It is also not in controversy that he did not find it possible to prove his allegations under sub-ss. (1) and (2). The trial court however found that the appellant had committed a corrupt practice under sub-sec. (7) of S.123 and, as has been stated, it named him and Joseph Thomas as the persons who had been proved at the trial to the guilty of that corrupt practice. We shall therefore confine ourselves to the question whether that corrupt practice was committed by the appellant and Joseph Thomas. In doing so we shall refer only to the pleadings and the evidence relating to it.
5. It was alleged in the election petition that a meeting of the priests of the various parishes of the Roman Catholic Church within the area of the Palai constituency and "certain other leaders of the Catholic Community" was convened at the Bishops house, Palai, on March 12, 1977, at 8 p.m. which was presided over by the Bishop and was attended and addressed by Joseph Thomas who was an officer of the Indian Police Service and was posted as City Police Commissioner, Trivandrum. As the entire allegation in that respect has been stated in para 5 of the election petition, it will be convenient to extract it here,-
"5. The same meeting was attended and addressed by Shri Joseph Thomas, I. P. S., City Police Commissioner Trivandrum. Addressing the meeting he exhorted the Parish Priests and leaders of Community assembled in that meeting to work for the success of Shri K. M. Mani 1st respondent "as it was in the interest of the Church and Community". Shri Joseph Thomas went to Palai at the instance of 1st respondent Minister or with his consent and knowledge to assist the convening of the meeting of the Bishop and Priests for the furtherance of
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