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2011 (1) UAD 215
SUPREME COURT OF INDIA
Hon’ble Mr. Justice J.M. Panchal and Hon’ble Mrs. Justice Gyan Sudha Misra
Civil Appeal No. 5310 of 2005
JOSEPH M. PUTHUSSERY – Appellant
Versus
T.S. JOHN & ORS. – Respondents
Decided on : 01.12.2010
(B) Election Law — It is well settled that it would be unsafe to accept the oral evidence on its face value without seeking for assurance from other circumstances or unimpeachable document — It is very difficult to prove a charge of corrupt practice merely on the basis of oral evidence because in election cases, it is very easy to get the help of interested witnesses. (Paras 10, 12)
(C) Representation of People Act, 1951, Sec. 123 — It is well-settled that to prove that the corrupt practice of a third person is attributable to a candidate u/s 123 of the Act — It must be shown that the candidate consented to the commission of such act — Finding that the appellant knew about such distribution because benefit of such distribution could only enure to him, but he kept silent despite knowledge of such distribution — Nothing else but an unwarranted inference and surmise on the part of the court. (Para 21)
(D) Representation of People Act, 1951, Secs. 123, 99(1)(a)(ii) — When a candidate is held to be guilty of corrupt practice vicariously, for an act done by any person other than his agent with his consent, then the ultimate finding to this effect has to be recorded and that too only after notice u/s 99 to that other person — And an inquiry must be held as contemplated therein naming the other person simultaneously for commission of such corrupt practice — Also, it is incumbent to name such a person in the final verdict given in the election petition u/s 98 of the Act after making due compliance of Sec 99 of the Act. (Para 22)
(E) Representation of People Act, 1951, Sec. 123(4) — Publication of objectionable pamphlets — Earlier being published in certain editions of a magazine that had circulation in constituency concerned — It is not tantamount to publication within the meaning of Sec. 123(4) of Act, 1951. (Paras 25, 27)
(F) Representation of People Act, 1951, Sec. 123(4) — Corrupt practice under — Proof — Held that the onus of proving that the maker believed the statement to be false rests with the election petitioner. (Para 27)
¼v½ tu izfrfuf/kRo vf/kfu;e] 1951] /kkjk 123¼4½ & ;g izfrikfnr dkuwu gS fd tgk¡ pquko esa Hkz"V izsfDVl dk vkjksi yxk gks rks pquko ;kfpdk dh lquokbZ vijkf/kd lquokbZ dh rjg gh dh tkrh gS & fu.kZ; esa dgk x;k fd Hkz"Vkpkj ds vk/kkj ij nk;j pquko ;kfpdk U;k;ky; dks mfpr lansg ds ijs lk{; dks ekuus dk fl)kUr viukuk iM+rk gSA ¼izLrj 8] 21½
¼c½ pquko dkuwu & ;g izfrikfnr gS fd ekSf[kd lk{; dks Lohdkj fd;k tkuk] lgh ewY;kadu djus gsrq] fcuk ifjfLFkfr;ksa ij ;dhu fd;s vFkok fcuk nks"kkjksi.k ;ksX; nLrkost ds vHkko esa] vlqjf{kr gksxk & Hkz"Vkpkj ds vkjksi dks ekSf[kd lk{; ds vkèkkj ij fl) fd;k tkuk cgqr dfBu gS & pquko ls lEcfU/kr ekeyksa esa #fp j[kus okyksa dh enn ysuk cgqr vklku gSA ¼izLrj 10] 12½
¼l½ tu izfrfuf/kRo vf/kfu;e] 1951] /kkjk 123 & ;g izfrikfnr gS fd r`rh; O;fDr ds }kjk Hkz"Vkpkj dh izsfDVl /kkjk 123 ds vUrxZr vH;kFkhZ ds dkj.k gqbZ gS & ;g n'kkZ;k tkuk visf{kr gS fd mEehnokj }kjk ,slk dR; djus dh lgefr nh xbZ Fkh & ;g fu.kZ; fd vihykFkhZ ,sls vkoaVu ds lEcU/k esa tkurk Fkk D;ksafd ,sls vkoaVu dk ykHk mldks gh feyuk Fkk] ijUrq ,sls vkoaVu dh tkudkjh gksrs gq, Hkh og pqi jgk Fkk & U;k;ky; ds Lrj ij ,slk fu.kZ; ek= vVdy vkSj vizekf.kr gksus ds vfrfjDr vkSj dqN ugha gSA ¼izLrj 21½
¼n½ tu izfrfuf/kRo vf/kfu;e] 1951] /kkjk 123, 99¼1½(a)(ii) & tc fdlh mEehnokj dks Hkz"V izsfDVl ds okLrs iw.kZr;k mRrjnk;h ,sls dk;Z ds fy, ekuk tkrk gS tks fd vU; ,sls O;fDr }kjk fd;k x;k gks tks mldh lgefr ds fcuk mlds ,tsUV ls vfrfjDr dksbZ vkSj gS rc vfUre fu.kZ; bl lEcU/k esa fn;k tkrk gS og /kkjk 99 ds vUrxZr ml vU; O;fDr dks uksfVl fn;k tkdj gh ntZ fd;k tkuk pkfg, & vkSj lkFk gh lkFk ,d tkap ,slh Hkz"V izsfDVl djus okys ukfer r`rh; O;fDr ds fo#) dh tkuh visf{kr gS vkSj vfUre fu.kZ; nsrs le; /kkjk 98 ds rgr ml O;fDr dk uke fn;k tkuk vko';d gS tks /kkjk 99 ds vUrxZr iw.kZ ifjikyu fd;s tkus ds i'pkr gh gksuk pkfg,A
¼izLrj 22½
¼;½ tu izfrfuf/kRo vf/kfu;e] 1951] /kkjk 123¼4½ & vkifRrtud i=dksa dk Niokuk & ftls lEcfU/kr pquko {ks= esa i<+h tkus okyh if=dk ds fdlh laLdj.k esa Nkik x;k Fkk & ;g /kkjk 123¼4½ ds vfHkizk; ds fy, ifCyds'ku ds rqY; ugah gSA
¼izLrj 25] 27½
¼j½ tu izfrfuf/kRo vf/kfu;e] 1951] /kkjk 123¼4½ & ds vUrxZr Hkz"V izsfDVl dk lcwr & fu.kZ; esa dgk x;k fd ;g fl) djus dk Hkkj pquko ;kfpdk nk;j djus okys ij gksrk gS fd Hkz"V izsfDVl djus okys dks mlds >wBk gksus dk fo'okl FkkA
¼izLrj 27½
J.M. Panchal, J. — This appeal, filed under Section 116A of the Representation of People Act, 1951 (‘the Act’ for short), is directed against judgment dated August 8, 2005, rendered by the learned Single Judge of the High Court of Kerala at Ernakulam in Election Petition No. 6 of 2001 by which the election of the appellant as Member of Kerala Legislative Assembly from No. 106, Kallooppara Constituency is declared void on the ground that he was guilty of the corrupt practice within the meaning of Section 123(4) of the Act as he extensively distributed directly and through UDF workers, who did so with his consent, the copies of Ext. X4 which contained statements of fact, which were false and which he believed to be false or did not believe to be true in relation to the personal character and conduct of the respondent No. 1.
2. The facts, emerging from the record of the case, are as under :
The election to the Kerala Legislative Assembly was held on May 10, 2001. From the Constituency, i.e., No. 106 Kallooppara Constituency, the appellant, i.e., Joseph M. Puthussery, the respondent No. 1, i.e., Advocate T.S. John, Prof. P.K. Rajasekharan Nair, i.e., the respondent No. 2 and Mathew Pinakkulath Padinjaremannil, i.e., the respondent No. 3, contested the election. The result of the election was declared on May 13, 2001 and the appellant was declared elected with 42,238 votes cast in his favour. As far as the respondent No. 1 is concerned, he was able to poll 31,013 votes. Thus, the appellant defeated the respondent No. 1 by a margin of 11,225 votes. The respondent Nos. 2 and 3 received 4,432 and 361 votes respectively.
On June 27, 2001, the respondent No. 1 filed Election Petition No. 6 of 2001 in the High Court of Kerala at Ernakulam, under Section 100(1)(b) of the Act assailing the election of the appellant. According to the respondent No. 1, the election of the appellant was vitiated by corrupt practice defined under Section 123(4) of the Act for the reason that copies of Ext. X4, which allegedly contained false statements of fact in relation to the personal character and conduct of the respondent No. 1 having tendency to prejudice the prospects of the election of the respondent No. 1, were distributed by the appellant, his election agent and workers of the United Democratic Front, i.e., the party to which the appellant owe allegiance, with his consent as well as with the consent of his election agent on May 8, 2001 and May 9, 2001 ignoring the stipulation that electoral campaign must come to an end. The precise statements in Ext. X4, which, according to the respondent No. 1, allegedly amounted to the corrupt practice within the meaning of Section 123(4) of the Act, are extracted below :-
“Adv. T.S. John IS He A Servant of the People or Hero of Corruption?
When tens of thousands of Homeless wander on streets, this MLA, the people’s servant acquires mansion after in his name.
Let us start journey from Anathapuri to take an account of the number of flats owned by this esteemed personality. Even in the District of Trivandrum a flat was allotted during 1980, when Gopi was the Chairman of the Housing Board while he was MLA.
During 1984, when P.J. Joseph of flats near the Chairman’s Quarters were acquired by this MLA in the name of daughter of his elder brother. At that time, the Chairman of the Housing Board was Oommen Mathew. By leasing out all the acquired flats on rent, he was fetching, Rs. 1000 to 2000 per month. Nearly Rs. 30,000/- was being received as profit from this alone.
T.S. John, who was allotted a plot earlier, got the flat in exchange by paying the price in monthly installments. This flat cost Rs. 12 lakhs. Even the third flat of the Housing Board came to T.S. John.
In order to hoodwink the people of Kallooppara, he still continues to live in a small house. His car shed is even better. It would have been nice for T.S. John to live in the car shed with concrete roof.
Thengana Kadanthod Thankchan, who is running “
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