The prayer in this petition is to set aside the election of the first respondent (Joseph M.Puthussery) from No.106 Kallooppara Assembly Constituency in the election held on 10.5.2001. The petitioner – T.S. John belongs to the Kerala Congress which was one of the constituents of the Left Democratic Front (LDF), whereas the 1st respondent who belongs to the Kerala Congress (Mani Group) represented United Democratic Front (UDF). The 1st respondent was declared elected with a margin of 11225 votes over the petitioner.

2. The election is sought to be set aside on the ground of ‘corrupt practice’ under Sec.123(4) of the Representation of the People Act, 1951 (for short ‘the RoP Act’) and the declaration regarding invalidation is sought under Sec.100(1)(d) of the RoP Act. The substance of the allegation is that on the eve of the election i.e., on 8.5.01 and 9.5.01 the 1st respondent in accordance with the pre-hatched plan, widely distributed copies of highly defamatory pamphlets, a specimen of which is produced as Ext.X4 through out the Constituency. It is alleged that besides distribution of the same through the workers of the 1st respondent, there was also direct distribution at certain places by the petitioner himself and by his election agent K.Jayavarma at some other places. Following issues were raised in the case:

“1. Whether on the two days immediately preceding the poll, copies of Annexure I pamphlet were distributed by the 1st respondent and his election agent by name K.Jayavarma as alleged?

2. Whether there was distribution of Annexure I pamphlet on 8.5.2001 by the workers of the 1st respondent as alleged in para 13 of the E.P.?

3. Whether the distribution of pamphlets by the workers of the 1st respondent was with the consent of the 1st respondent or his election agent?

4. Whether distribution of pamphlets made by the petitioner, his election agent and by his workers was reasonably calculated to prejudice the prospects of the petitioner’s election?

5. Whether the 1st respondent has committed corrupt practice as defined in Sec.123(4) of the R.P. Act, 1951 by distribution of Annexure I pamphlet directly and through his election agent and workers?

6.Whether the election of the 1st respondent is liable to be declared void under Sec.100(1)(b) of the R.P.Act?

7. Whether the allegation in Annexure I relate to the political conduct of the petitioner?

8. Whether the E.P. as filed is maintainable?

9. Reliefs and Costs?”

3. The collection of evidence in the case is complete by now. Elaborate evidence was adduced by both sides. The evidence available for consideration consists of the depositions of P.Ws.1 to 90, D.Ws.1 to 53 and Exts.P1 to P17, X1 to X25 series and R1 to R20. There is difficulty for the disposal of the case on a consideration of the aforesaid evidence in view of the mandate in Secs.98 and 99 of the RoP Act. Even thought Sec.98 of the RoP Act provides that at the conclusion of the trial the Court could declare the election of the returned candidate to be void or declare that the petitioner or any other candidate has been duly elected, Sec.99 operates as a proviso thereto. It is useful to quote Sec.99 here:

“99. Other orders to be made by the High Court.—(1) At the time of making an order under Section 98 the High Court shall also make an order—

(a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording—

(i) finding whether any corrupt practice has or has not been proved to have been committed at election, and the nature of that corrupt practice; and

(ii) the names of all persons, if any, who have been proved at the trail to have been guilty of any corrupt practice and the nature of that practice; and

(b) fixing the total amount of cost payable and specifying the persons by and to whom costs shall be paid:

Provided that a person who is not a party to the petition shall not be named in the order under sub-clause (ii) of clause (a) unless—

(a) he has been given notice