Important Point—Charge of corrupt practice is substantially akin to a criminal charge.

JUDGMENT

KURIAN, J.-

1. Construction by plaintiff, destruction by defendant. Construction by pleadings, proof by evidence; proof only by relevant and admissible evidence. Genuineness, veracity or reliability of the evidence is seen by the court only after the stage of relevancy and admissibility. These are some of the first principles of evidence. What is the nature and manner of admission of electronic records, is one of the principal issues arising for consideration in this appeal.

2. In the general election to the Kerala Legislative Assembly held on 13.04.2011, the first respo ndent was declared elected to 034 Eranad Legislative Assembly Constituency. He was a candidate supported by United Democratic Front. The appellant contested the election as an independent candidate, allegedly supported by the Left Democratic Front. Sixth respondent was the chief election agent of the first respondent. There were five candidates. Appellant was second in terms of votes; others secured only marginal votes. He sought to set aside the election under Section 100(1)(b) read with Section 123(2)(ii) and (4) of The Representation of the People Act, 1951 (hereinafter referred to as ‘the RP Act’) and also sought for a declaration in favour of the appellant. By order dated 16.11.2011, the High Court held that the election petition to set aside the election on the ground under Section 123(2)(a)(ii) is not maintainable and that is not pursued before us either. Issues (1) and (2) were on maintainability and those were answered as preliminary, in favour of the appellant. The contested issues read as follows:

“1) xxx xxx xxx

2) xxx xxx xxx

3) Whether Annexure A was published and distributed in the constituency on 12.4.2011 as alleged in paragraphs 4 and 5 of the election petition and if so whether Palliparamban Aboobacker was an agent of the first respondent?

4) Whether any of the statements in Annexure A publication is in relation to the personal character and conduct of the petitioner or in relation to the candidature and if so whether its alleged publication will amount to commission of corrupt practice under section 123(4) of The Representation of the People Act?

xxx xxx xxx

6) Whether the Flex Board and posters mentioned in Annexures D, E and E1 were exhibited on 13.4.2011 as part of the election campaign of the first respondent as alleged in paragraphs 6 and 7 of the election petition and if so whether the alleged exhibition of Annexures D, E and E1 will amount to commission of corrupt practice under section 123(4) of The Representation of the People Act?

7) Whether announcements mentioned in paragraph 8 of the election petition were made between 6.4.2011 and 11.4.2011, as alleged in the above paragraph, as part of the election propaganda of the first respondent and if so whether the alleged announcements mentioned in paragraph 8 will amount to commission of corrupt practice as contemplated under section 123(4) of The Representation of the People Act?

8) Whether the songs and announcements alleged in paragraph 9 of the election petition were made on 8.4.2011 as alleged, in the above paragraph, as part of the election propaganda of the first respondent and if so whether the publication of the alleged announcements and songs will amount to commission of corrupt practice under section 123(4) of The Representation of People Act?

9) Whether Mr. Mullan Sulaiman mentioned in paragraph 10 of the election petition did make a speech on 9.4.2011 as alleged in the above paragraph as part of the election propaganda of the first respondent and if so whether the alleged speech of Mr. Mullan Sulaiman amounts to commission of corrupt practice under section 123(4) of The Representation of the People Act?

10) Whether the announcements mentioned in paragraph 11 were made on 9.4.2011, as alleged in the above paragraph, as part of the election propaganda of the first respondent and if so whether the alleged announcements mentioned in paragraph 11 of the election petiti