IMPORTANT POINT
A charge of corrupt practice envisaged by the Act is to be equated with a criminal charge and the standard of proof thereof would not be preponderance of probabilities as in a civil action but proof beyond reasonable doubt as in a criminal trial.

JUDGMENT

D.K. Jain, J.:

This appeal under Section 116A of the Representation of People Act, 1951 (for short ‘the Act’) is directed against the judgment and order dated 31st October, 2006 rendered by the High Court of Kerala at Ernakulam in Election Petition No.1 of 2004, setting aside the election of the appellant to the House of People (Lok Sabha) from 12 H.P. Muvattupuzha Parliamentary Constituency.

2. Election to the said Parliamentary Constituency was held on 10th May, 2004 and the result was declared on 13th May, 2004. The appellant, who was the first respondent in the Election Petition, was the candidate from the Indian Federal Democratic Party (‘IFDP’ for short), aconstituent of the National Democratic Alliance. He was declared elected by a margin of 529 votes over the first respondent (hereinafter referred to as the ‘election petitioner’), who got the second highest number of votes.

The election petitioner was the candidate from the Communist Party of India (Marxist), a constituent of the Left Democratic Front (for short ‘LDF’). While the appellant secured 2,56,411 votes, the election petitioner got 2,55,882 votes. The second respondent in the election petition, who had contested the election as a candidate of the Kerala Congress (M), a constituent of the United Democratic Front (‘UDF’ for short), secured 2,09,880 votes. The other 13 contestants got an insignificant number of votes.

3. The election of the appellant was challenged by the election petitioner on the ground that the appellant had committed corrupt practices as enumerated under Sections 123(3) and 123(5) of the Act and, therefore, his election was liable to be declared void under Section 100(1)(b) of the Act. The consequent relief prayed for in the Election Petition was for declaring the election petitioner as elected in terms of Section 101(b) of the Act.

4. The allegations in the Election Petition were denied by the appellant. In the first instance, as a preliminary objection, the appellant questioned the maintainability of the Election Petition. Rejecting the objection, the High Court, vide its order dated 28th February, 2005 sustained the maintainability of the Election Petition only on two grounds of corrupt practice, viz. one falling under Section 123(3) of the Act and the other under Section 123(5) of the Act. While the election petitioner himself gave up the grounds pertaining to allegation of excess election expenditure incurred by the appellant over the maximum limit provided under Section 77 of the Act and the allegation of undue influence under Section 123(2) of the Act arising out of a speech made by the then President of the Bharatiya Janta Party, the High Court rejected the ground pertaining to the allegation of bribery in the form of gratification offered by the appellant to one of the contestants in order to get his candidature withdrawn from this election.

5. Upon consideration of the pleadings and taking note of abandonment of the afore-noted allegations by the election petitioner, the learned Judge framed the following issues:

1. Whether the 1st respondent has committed corrupt practice as contemplated under Section 123(3) of the Representation of the People Act, 1951 by printing and publishing Annexure I notice and Annexure II photo calendar and distributing and circulating Annexure I along with Annexure II by himself, his election agent and other agents, his election workers and campaigners with the consent and connivance of the 1st respondent in various places of No.12 H.P. Muvattupuzha Parliamentary Constituency for the election held on 10.5.2004.

2. Whether the 1st respondent, his election agent and other agents with the consent of the 1st respondent, had committed corrupt practice contemplated under Section 123(5) of the Representation of the People Act, 1951 by hiring and procuring vehicles, viz., autorickshaw Nos. KL- 5/4400, KL-5/C 3431 and Jeep Nos. KRO 6606 and KL- 5/1845 for free conveyance of the electors to and from the pol