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2009(2) Supreme 492
SUPREME COURT OF INDIA
(From Kerala High Court)
Mr. R.V. Raveendran and Mr. Markandey Katju, JJ.
M.J. Jacob — Appellant
versus
A. Narayanan & Ors. — Respondents
Civil Appeal No. 3611 of 2008
with
Civil Appeal Nos. 5774/2008, 5783/2008
Decided on : 06-03-2009
(1984) 3 SCC 499; (1975) 4 SCC 769; (1985) 1 SCC 91; (2004) 2 SCC 217 – Relied upon.
(b)Election Petition – Election of a successful candidate should not be lightly set aside. (Para 14)
(2000) 1 SCC 481; (1970)3 SCC 647; (1973)2 SCC 599; (1974)2 SCC 660; (1976)3 SCC 88; (1977)1 SCC 423; (1977)3 SCC 566 – Relied upon.
(c)Representation of People Act, 1951 – Section 123(4) – In absence of ay allegation or statement about harbouring any accused person by the appellant in the exhibit, or any direct allegation of attempting to murder somebody against the appellant; the exhibit does not amount to corrupt practice. (Para 16)
(d)Representation of People Act, 1951 – Section 123(4) – Leaflets calculated to prejudice the prospects of a candidat’s election constitute corrupt practice. (Para 17)
(1964)5 SCR 12; 1960 (22) ELR 261; AIR 1966 SC 773; 1962 Supp (3) SCR 114; (1994)1 SCC 682 – Relied upon.
(e)Representation of People Act, 1951 – Section 123(4) – Section 123(4) – Five ingredients required to establish a corrupt practice under Section 123(4) stated. (Para 23)
(f)Representation of People Act, 1951 – Section 123(4) – Section 123(4) – Any false accusation relating to the personal character or conduct of any candidate calculated to prejudice the prospect of his election would amount to a corrupt practice – Where the false statement was about some one other than the candidate, the publication cannot be considered to be a corrupt practice. (Para 24)
(1970) 1 SCC 392; (1975) 1 SCC 108 – Relied upon.
(g)Representation of People Act, 1951 – Section 123(4) – Principles for construing offending pamphlets re-stated. (Para 26)
(1964) 7 SCR 790 – Relied upon.
(h)Representation of People Act, 1951 – Section 123(4) – For an allegation of corrupt practice by innuendo in an Election Petition, it is necessary to plead as well as to prove the extrinsic facts to spell out the innuendo meaning of the words complained of – In absence of such pleading, the election petition should have been dismissed on this ground alone. (Para 28)
(1990) 3 SCC 396 – Relied upon.
(i)Representation of People Act, 1951 – Section 123(4) – Any statement in an interrogative form is not always an assertion – Even if the statement in question in this case is regarded as an assertion, it will not amount to a corrupt practice. (Paras 33 and 34)
(1964) 5 SCR 12 – Relied upon.
(j)Representation of People Act, 1951 – Section 123(4) – An election cannot be set aside only on the ground of allegations and counter-allegations, which are sometimes incorrect. (Para 38)
Facts of the case :
1.These appeals have been filed against the final judgment and order dated 5.5.2008 passed by the High Court of Kerala in Election Petition No. 2/2006, declaring the election of the appellant (M.J. Jacob) from no.79 Piravom Legislative Assembly Constituency, the polling for which was held on 29.4.2006, as void. The High Court has also made an order recording the names of O.N. Vijayan (election agent of the returned candidate) and two others Jinson V. Paul and P.G. Manu as persons who have been proved at the trial to have been guilty of corrupt practice under Section 123 (4) of the Act of preparing, publishing and distributing the pamphlet (Ex.P1).
Finding of the Court :
Allegation of corrupt practice is not made out.
Result : Appeals allowed, election petition dismissed.
JUDGMENT
Markandey Katju, J.—
1.These appeals have been filed under Section 116 A of the Representation of People Act, 1951 (in short ‘the Act’), against the final judgment and order dated 5.5.2008 passed by the High Court of Kerala in Election Petition No. 2/2006, declaring the election of the appellant (M.J. Jacob) from no.79 Piravom Legislative Assembly Constituency to be a member of Kerala Legislative Assembly, the polling for which was held on 29.4.2006, as void. The High Court has also made an order recording the names of O.N. Vijayan (election agent of the returned candidate) and two others Jinson V. Paul and P.G. Manu as persons who have been proved at the trial to have been guilty of corrupt practice under Section 123(4) of the Act of preparing, publishing and distributing the pamphlet (Ex.P1). C.A. No.3611 of 2008 is by the returned candidate. C.A. No.5183 of 2008 is by his election agent and C.A. No.5774 of 2008 is filed by the persons named under Section 99(1)(a)(ii) of the Act.
2.Heard Shri Fali Nariman, learned Senior Advocate assisted by Ms. Malini Poduval and Vishnu B. Saharia for the appellants, and Shri K.K. Venugopal, learned Senior Advocate assisted by Ms. Bina Madhavan for the respondents. The impugned judgment was passed on an Election Petition challenging the election of the appellant M.J. Jacob as an MLA for the Kerala Legislative Assembly in the polling held on 29.4.2006. The High Court by the impugned judgment has declared the said election to be void on the ground that the appellant was guilty of corrupt practice under Section 123 (4) of the Representation of People Act, 1951 (in short “the Act”).
3.The Election Petition in question was filed by a voter in the election and not a candidate.
4.The ground on which the Election Petition was allowed was that a corrupt practice was committed by the publication of the pamphlet Ext. P1 and that such a publication has been made by the appellant’s election agent, one Shri O.N. Vijayan (RW1), and by two other persons (RW2 and RW3) with the consent of the appellant or his election agent, that the statement of facts in Ext. P1 was made in relation to the personal character or conduct of PW-30 Shri T.M. Jacob, who was a candidate in the said election, which is false and which the publisher of Ext. P1 either believes to be false or does not believe to be true, and that such statement was reasonably calculated to prejudice the prospects of Shri T.M Jacob PW 30 in the election. Hence it was prayed that the election be declared to be void under Section 100 (1) (b) of the Act r/w Section 123 (4) thereof. Though in the election petition, it was contended that several statements in Ext.P1 amounted to false statements in relation to the personal character and conduct of Shri T.M. Jacob, in this appeal, we are concerned with only one allegation, viz., question No.2 posed to Shri T.M. Jacob in Ext.P1.
5.Section 123(4) of the Representation of the People Act states that the following is one of the corrupt practices :
“The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate’s election.”
6.The entire pamphlet Ext. P-1 has been quoted in the impugned judgment, but it is not necessary to repeat the same here except the relevant allegation in the said pamphlet which is in paragraph 2 which states :-
CHARIOT RIDE OF DEVELOPMENT TRICKERY WITH THE RIDDLES OF A QUARTER CENTURY.
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“2.A member of your personal staff who had attempted to murder Thirumaradi Congress Mandalam president P.J. Baby, Joseph Babu and K.P. Jacob at Onakoor is still continuing as an absconder. Can you give an ans
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