P. C. Thomas
Vs. Adv. P. M. Ismail & Ors. [2009] INSC 1538 (4 September 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5033 OF
2006 P.C. THOMAS -- APPELLANT (S) VERSUS WITH CIVIL APPEAL NO.5777 OF 2006
D.K.
JAIN, J.:
1.
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), a constituent 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 3 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 4 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 polling station Nos. 57 to 71 in Poonjar Thekkekara 5 Panchayat in
Poonjar Assembly Constituency of No. 2 Muvattupuzha Parliamentary Constituency
for the election held on 10.5.2004.
3.
Whether the election of the 1st respondent from No.
12
H.P.Muvattupuzha Parliamentary Constituency can be declared as void by the
conduct of corrupt practices enumerated in issue Nos.1 and 2 and is it liable
to be set aside.
4.
Whether the petitioner has to be declared as duly elected from No.12 H.P.
Muvattupuzha Parliamentary Constituency after setting aside the election of the
1st respondent.
5.
Whether the election petitioner is entitled to get the cost of his election
petition.
6.
On behalf of the election petitioner, twenty five witnesses,
including himself were examined. Alleged public notice dated 21st April, 2004
and photo-calendar, filed as Annexures I and II respectively with the election
petition, were exhibited through election petitioner as Ext.P1 and P2
respectively. On the side of the appellant, eleven witnesses, including himself
were examined and Ext. R1(a) to R1(g) were marked.
7.
Analysing the evidence adduced by the parties on the issues,
except for issue No.5, the High Court answered all the issues in favour of the
election petitioner. Thus, costs of the election petition, were not awarded. It
has been observed by the High Court that in the instant case, even though
consent of the appellant herein for printing Ext.P1 and P2 is not proved by
direct evidence but from proven facts, namely, the election agent of the
appellant, Advocate James Anakallungal, (hereinafter referred to as `James'), arranging
for printing of Ext. P1 & P2; the appellant paying the printing charges and
the party workers distributing these documents in the houses of electors, who
are Catholics, the only inference possible is that the circulation of printed
copies of Exts.P1 & P2 was with the knowledge of the appellant. Inter alia,
observing that while Ext.P1 independently constitutes an appeal to the Catholic
voters to vote for the appellant on the ground of his religion attracting the
mischief of Section 123(3) of the Act, Ext.P2 supports and strengthens Ext.P1,
the learned Judge held that the appellant has committed corrupt practice under
Section 123(3) of the Act by 7 appealing to the electors to vote on the ground
of his community and religion through the printing and circulation of Exts.P1
and P2 among the electors.
Consequently,
his election was liable to be declared void under Section 100(1)(b) of the Act.
On the second issue also, the High Court has observed that though no direct
evidence is produced to prove the consent given by the appellant or his
election agent to his party workers to arrange the vehicles and even the
witnesses have not specifically stated that the vehicles were provided to them
free of charge, yet in view of the evidence of the witnesses that party workers
of the appellant had offered vehicles to them, the only possible inference
could be that the witnesses were provided vehicles free of charge resulting in
violation of Section 123(5) of the Act. Having found issues No.1 to 3 against
the appellant, the High Court came to the conclusion that but for the corrupt
practices, proved to have been practiced by the appellant, the election
petitioner would have got at least 265 more of the votes polled in favour of
the appellant, in which case, he would have won the election. Accordingly,
exercising power conferred on it 8 under Section 100(1)(b) of the Act, the High
Court declared the election of the appellant, the returned candidate, to the
said Parliamentary Constituency, to be void and the election petitioner was
declared elected under Section 101(b) of the Act in his place from the said
Constituency. The High Court further ordered that the findings of commission of
corrupt practices by the appellant under Sections 123(3) and 123(5) of the Act
will hold good for the purpose of Section 99 of the Act as well. Aggrieved by
the said decision, the appellant has come up in appeal before us.
8.
Assailing the findings of the High Court, Mr. F.S. Nariman,
learned senior counsel appearing on behalf of the appellant, strenuously urged
that the conclusion of the High Court to the effect that the appellant had
committed corrupt practices as envisaged under sub- sections (3) and (5) of
Section 123 of the Act are palpably erroneous, inasmuch as: (i) it was neither
the case of the election petitioner, nor any specific plea was raised in the
election petition, that the appellant had appealed to the electors to vote for
him on the ground of his community or religion by distribution of printed 9
offending materials viz. a notice/statement dated 21st April, 2004 (Ext.P1) and
a photo calendar for the year 2004 (Ext.P2); (ii) both the offending documents
(Ext.P1 and Ext.P2) were not proved as per the prescribed procedure and,
therefore, the very basis in forming the opinion that the appellant had
committed corrupt practice was missing; (iii) having held that independently
Ext.P2 did not constitute an appeal to vote on the ground of religion of the
appellant and that the said exhibit had to be read collectively with Ext.P1,
alleged to be a notice purportedly authored and printed by one John
Kachiramattom (hereinafter referred to as `John K.'), which had been circulated
along with Ext.P2, and the circulation of both amongst the electors together
constituted an appeal to vote for the appellant on the ground of his religion,
the learned Judge has failed to appreciate that none of the witnesses examined
by the election petitioner had stated that John K. had acknowledged or stated
to them that he had, in fact, prepared and signed the said notice/statement for
circulation; (iv) though John K. was cited as one of the witnesses by the
election petitioner in the list submitted 10 by him, he was not called by the
election petitioner for recording of his evidence; (v) the inferences drawn by
the learned Judge were based on unproven documents, even source whereof had not
been proved; and (vi) the finding of the High Court to the effect that
appellant had committed corrupt practice under Section 123(5) of the Act was
based only on inferences drawn from the statements made by interested witnesses
when none of the witnesses had stated that the vehicles were provided free of
charge. To buttress his argument that an adverse inference should have been
drawn against the election petitioner for not examining John K., learned
counsel placed reliance on the decisions of this Court in Hem Mannalal &
Ors.5. Reliance was also placed on the 1 (1975) 4 SCC 671 2 (1993) Supp. 3 SCC
645 3 (1972) 1 SCC 826 4 (1999) 9 SCC 386 5 (1976) 3 SCC 646 6 (1986) 2 SCC 121
11 Anr.9, and a number of other decisions in which the dictum in Ch. Razik Ram
(supra) was followed in support of the proposition that the standard of proof
in an election petition is the same as in a criminal trial, which the election
petitioner failed to discharge.
9.
Mr. P.S. Narasimha, learned senior counsel appearing for the
election petitioner, on the other hand, supporting the decision of the High
Court, submitted that upon production of originals of pamphlet and the calendar
by PW1, they were marked as Exts.P1 and P2 respectively and duly endorsed by
the Court trying the election petition, therefore, the documents stood proved.
In support of the plea that once a document has been admitted in evidence and
marked as an exhibit, the objection that it should not have been admitted in
evidence or that the mode adopted for proving the document was irregular,
cannot be allowed to be raised at any stage subsequent to the marking of the
document 7 (1975) 4 SCC 769 8 (1985) 1 SCC 91 9 (2004) 2 SCC 217 12 as exhibit,
reliance was placed on the decisions of this Viswesaraswami & V.P. Temple
& Anr.10, Dayamathi countered by the learned counsel.
10.
Before we proceed to examine the facts of the case to consider the
question as to whether charges of corrupt practices were established against
the appellant, we deem it necessary to reiterate that 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. If this test
is not applied, a very serious prejudice is likely to be caused to the
successful candidate whose election would not only be set aside, he may also
incur disqualification to contest an election for a certain period entailing
even extinction of his political career. Undoubtedly, 10 (2003) 8 SCC 752 11
(2004) 7 SCC 107 12 (1972) 1 SCC 9 13 the onus lies heavily on the election
petitioner to make out a strong case for setting aside an election.
11.
In Ch. Razik Ram (supra), speaking for the Bench, Sarkaria, J.
observed thus:
"..It
is well settled that a charge of corrupt practice is substantially akin to a
criminal charge. The commission of a corrupt practice entails serious penal
consequences. It not only vitiates the election of the candidate concerned but
also disqualifies him from taking part in elections for a considerably long
time. Thus, the trial of an election petition being in the nature of an
accusation, bearing the indelible stamp of quasi-criminal action, the standard
of proof is the same as in a criminal trial. Just as in a criminal case, so in
an election petition, the respondent against whom the charge of corrupt
practice is levelled, is presumed to be innocent unless proved guilty. A grave
and heavy onus therefore, rests on the accuser to establish each and every
ingredient of the charge by clear, unequivocal and unimpeachable evidence
beyond reasonable doubt. It is true that there is no difference between the
general rules of evidence in civil and criminal cases, and the definition of
"proved" in Section 3 of the Evidence Act does not draw a distinction
between civil and criminal cases. Nor does this definition insist on perfect
proof because absolute certainty amounting to demonstration is rarely to be had
in the affairs of life.
Nevertheless,
the standard of measuring proof prescribed by the definition, is that of a
person of prudence and practical good sense. `Proof' means the effect of the
evidence adduced in the case. Judged by the standard of prudent man, in the
light of the nature of onus cast by law, the probative effect of evidence in
civil and criminal proceedings is markedly different. The same evidence which
may be sufficient to regard a fact as proved in a civil suit, may be considered
insufficient for a conviction in a criminal action. While in the former, a mere
preponderance of probability may constitute an adequate basis of decision, in
the latter a far higher degree of assurance and 14 judicial certitude is
requisite for a conviction. The same is largely true about proof of a charge of
corrupt practice, which cannot be established by a mere balance of
probabilities and, if, after giving due consideration and effect to the
totality of the evidence and circumstances of the case, the mind of the Court
is left rocking with reasonable doubt - not being the doubt of a timid, fickle
or vacillating mind - as to the veracity of the charge, it must hold the same
as not proved".
12.
A three-Judge Bench of this Court in Jeet Mohinder Singh (supra),
referring to a large number of earlier decisions, culled out the following
legal principles, relevant for our purpose, in the field of election
jurisprudence:
"(i)
The success of a candidate who has won at an election should not be lightly
interfered with. Any petition seeking such interference must strictly conform
to the requirements of the law. Though the purity of the election process has
to be safeguarded and the Court shall be vigilant to see that people do not get
elected by flagrant breaches of law or by committing corrupt practices, the
setting aside of an election involves serious consequences not only for the
returned candidate and the constituency, but also for the public at large
inasmuch as re-election involves an enormous load on the public funds and
Raghobaji Meghe14].
(ii)
Charge of corrupt practice is quasi-criminal in character. If substantiated, it
leads not only to the setting aside of the election of the successful
candidate, but also of his being disqualified to contest 13 AIR 1954 SC 210 14
(1995) 5 SCC 347 15 an election for a certain period. It may entail extinction
of a person's public life and political career.
A trial
of an election petition though within the realm of civil law is akin to trial
on a criminal charge. Two consequences follow. Firstly, the allegations
relating to commission of a corrupt practice should be sufficiently clear and
stated precisely so as to afford the person charged a full opportunity of
meeting the same. Secondly, the charges when put to issue should be proved by
clear, cogent and credible evidence. To prove charge of corrupt practice a mere
preponderance of probabilities would not be enough.
There
would be a presumption of innocence available to the person charged. The charge
shall have to be proved to the hilt, the standard of proof being the same as in
a criminal trial. [See: Quamarul Islam Singh18].
(iii) The
Appellate Court attaches great value to the opinion formed by the trial Judge
more so when the trial Judge recording findings of fact is the same who had
recorded the evidence. The Appellate Court shall remember that the jurisdiction
to try an election petition has been vested in a Judge of the High Court.
Secondly, the trial Judge may have had the benefit of watching the demeanour of
witnesses and forming first-hand opinion of them in the process of evaluation
of evidence. The Supreme Court may re- assess the evidence and come to its own
conclusions on feeling satisfied that in recording findings of fact the High
Court has disregarded settled principles governing the approach to evidence or
committed grave or palpable errors.[See:Gajanan Krishnaji Bapat (supra); Kripa
15 1994 Supp (3) SCC 5 16 (1991) 3 SCC 375 17 (1991) 2 SCC 342 18 1985 Supp SCC
611 19 (1995) 5 SCC 1 16
13.
Similar opinion has been expressed in subsequent decisions,
including Surinder Singh (supra) and Mercykutty Amma (supra) on which reliance
had been placed by learned counsel for the appellant.
14.
With this background, it has to be examined if the findings
recorded in the judgment in appeal, holding corrupt practices under Section 123(3)
and (5) of the Act having been committed by the appellant, are justified or hit
by the contentions to the contrary raised by the appellant. It would be
appropriate to reproduce the aforesaid provisions of the Act, which are
extracted below:
"Section
123 - Corrupt practices. --The following shall be deemed to be corrupt
practices for the purposes of this Act:-- (1) xxx xxx xxx (2) xxx xxx xxx (3)
The appeal by a candidate or his agent or by any other person with the consent
of a candidates or his election agent to vote or refrain from voting for any
person on the ground of his religion, race, caste, community or language or the
use of, or appeal to religious symbols or the use of, or appeal to, national
symbols, such as the national flag or the national emblem, for the furtherance
of the prospects of the election of that candidate or for prejudicially
affecting the election of any candidate:
17
Provided that no symbol allotted under this Act to a candidate shall be deemed
to be a religious symbol or a national symbol for the purposes of this clause.
(3A) xxx
xxx xxx (3B) xxx xxx xxx (4) xxx xxx xxx (5) The hiring or procuring, whether
on payment or otherwise, of any vehicle or vessel by a candidate or his agent
or by any other person with the consent of a candidate or his election agent or
the use of such vehicle or vessel for the free conveyance of any elector (other
than the candidate himself the members of his family or his agent) to or from
any polling station provided under section 25 or place fixed under sub-section
(1) of section 29 for the poll:
Provided
that the hiring of a vehicle or vessel by an elector or by several electors at
their joint costs for the purpose of conveying him or them to and from any such
polling station or place fixed for the poll shall not be deemed to be a corrupt
practice under this clause if the vehicle or vessel so hired is a vehicle or
vessel not propelled by mechanical power:
Provided
further that the use of any public transport vehicle or vessel or any tramcar
or railway carriage by any elector at his own cost for the purpose of going to
or coming from any such polling station or place fixed for the poll shall not
be deemed to be a corrupt practice under this clause.
Explanation.-In
this clause, the expression "vehicle"
means any
vehicle used or capable of being used for the purpose of road transport,
whether propelled by mechanical power or otherwise and whether used for drawing
other vehicles or otherwise."
15.
Issue No.1 is based on the alleged violation of sub- section (3)
of Section 123, the vital ingredients of which, relevant for our purpose, are:-
(i) appeal by a candidate or his agent or by any person with the consent of the
candidate or his election agent, (ii) to vote or refrain from voting for any person,
(iii) on the ground of religion, race, caste, community or language.
16.
Therefore, in order to decide whether in the present case, corrupt
practice is committed, it has to be examined: (a) whether notice (Ext.P1) and
photo- calendar (Ext.P2) independently or jointly constitute appeal to the
voters to vote on the ground of religion or caste or community of the appellant
as alleged in the election petition and (b) if so, whether the appellant herein
or his agent or any other person with the consent of the appellant or his agent
has printed and distributed or at least distributed the same among the voters
to bring them within the mischief of the sub-section.
Calendar
(Ext.P2) is described as printed at "Akshara" with the telephone
number of the Press. It contains the photograph of the appellant with the Holy
Pope, taken on the occasion of the beatification ceremony of Mother 19 Teresa.
Notice (Ext.P1) purportedly authored and published in the name of John K., does
not contain the name of the printing press or a direct appeal to the voters to
vote for the appellant. To appreciate its contours and the purpose, it would be
expedient to visualize its contents, which are extracted below:
"Dear
People, 21.4.2004 I need not introduce Adv. P.C. Thomas, Former President of
the Kothamangalam Diocese, former State Secretary of the Catholic Congress, the
son of P.T. Chacko, who was Kerala's powerful Home Minister and the prominent
leader our community has been. It is humbly brought to your notice that our
land and society will be blessed if P.C.
Thomas
who has for the last 15 years been carrying out illustrious service as the
people's representative of Muvattupuzha Lok Sabha Constituency and safeguarded
the honour of the community and above all of Keralites at the national level,
is once again made victorious.
The Holy
Father has exhorted us that the Christian Community, which is about 2% of
population of India, should not keep away from the national main stream. Many
priests, nuns and spiritualists from Kerala are carrying out gospel work,
educational activities and nursing of the sick all over North India. Most of
these places are now under BJP Rule. Various just released opinion surveys
clearly predict that the BJP Government will again come to power at the centre.
It is indisputable that if elected from Muvattupuzha, P.C. Thomas will receive
central cabinet membership and also thereby a chance to do more good for our
homeland and society.
When our
missionaries were abused in Jambuva of Madhya Pradesh, it was P.C. Thomas who
reached rushed first and took a strong stand. And was not 20 this matter
acknowledged and established through public declaration by revered father mar
Mathew Vaniyakizhakkal. Many representatives of the Christian community serving
in North India have, via phone and letters informed me that the help and
service they received at the political level should not be caused to be lost,
and requested that P.C. Thomas must be elected and sent with more strength for
functioning for them at Delhi. I too desire for their hope to be fulfilled, for
P.C. Thomas is the greatest friend and well-wisher of Malayalees in Delhi and
other outside places. We are also witnesses to the fight he fought in
parliament for the benefit of the Agricultural Sector, which represents a great
majority of the members of our community. Financial security is indispensable
for spiritual strength, to some extent, as we know.
P.C.
Thomas, who participated as the official representative of the Central
Government at the function beatifying and conferring sainthood to Mother Teresa
who had flown away to God's court like the piece of white cloud of purity and
declared before the whole world, by kissing the hand of the holy father, the
love and affection of 100 crore Indians, stands as social worker whom our
community can always be proud of it was the selfishness and personal interest
of certain people, which sent him to the BJP front. But there too he stands as
a witness of Christ like the old Joseph who was elevated as king by the aliens.
I request
you to give P.C. Thomas, who is the representative of the Christians followings
the footsteps of lord Jesus who stepped in to this world to preach the gospel
to the poor, to console the sad at heart to free the shackled, to give sight to
the blind and to liberate the oppressed and who follows the commandment of the
Holy Church, your ever strong prayer support to enable that son to continue as
Jesus witness in Delhi.
With love
and regard John Kachiramattom Sd/- John Kachiramattom"
17.
Obviously, as the High Court has also deduced, notice (Ext.P1)
clearly contains an appeal in that, the Holy Father, the Pope, head of the
Roman Catholics does exhort them not to keep away from the mainstream. It
applauds the services of the appellant in standing for the community when it is
under attack and had fought in Parliament for the benefit of the community,
whose interest demanded the Catholics/Christians to vote for him. The notice
does contain a message or an appeal on religious grounds to the Christians/Catholics
to vote for him for the benefit of the larger interests of the Christians,
particularly the Roman Catholics.
18.
Indeed, the community members all over understood it as such. This
is borne out from the testimony of Benny George (PW-2), K.J. Reji (PW-6), Chako
(PW-7), Benny Avoly (PW-8), Jose (PW-9), etc. etc., who all deposed about the
party workers of IFDP, to which party the appellant belonged to, giving notice
(Ext.P1) and calendar (Ext.P2) to each one of them as a statement by John K., a
known leader of Catholics. The consent of the appellant for distribution of the
said exhibits among the Catholic voters, though not directly proved was rightly
22 inferred from the fact that his agent James, who got these printed, paid
charges and circulated these. The circulation of the said exhibits amounted to
violation of Section 123(3) of the Act. The aforesaid witnesses also stated
having gone through the notice (Ext.P1), discussed about it with their family
members or friends and to have come to the conclusion that the appellant being
a leader of Catholics and a candidate in the Parliamentary Elections 2004,
having always stood with the community, deserved to be supported and voted for.
Nothing
significant was brought out in their cross examination to discredit them.
Considering it all, the High Court was satisfied that notice (Ext.P1) and
calendar (Ext.P2) were distributed by workers of the appellant. Applying the
test of common man's understanding and the effect of the said documents on the
mind and feelings of an ordinary average voter, we agree with the High Court
that the said notice/statement (Ext.P1) did constitute an appeal to the members
of the Christian community, particularly, the Catholics to seek their votes for
the appellant, being a Catholic, on the ground of religion, caste and
community. Calendar 23 (Ext.P2), as indicated above, does not per se fall
within the mischief of Section 123(3) of the Act but taken along with Exhibit
P1 does serve as a statement to strengthen the appeal in notice (Ext.P1).
19.
To bring the aforesaid appeal within the ambit of Section 123(3)
of the Act, it required proof that as per specific pleas in paras 11 and 14 of
the Election Petition, documents Ext.P1 and Ext.P2 were got printed and
published at Akshara Press by the appellant through his election agent, James
and distributed by the agents or workers/campaigners as alleged. We have
examined the evidence produced in the case. The election petitioner- Respondent
No.1 claimed to have no personal knowledge about it and stated that the
information about it was supplied to him by the jeep driver, Ajimon (PW-4) and
K.K. Parmeswaran (PW-19) who deposed having supplied the said information to
the election petitioner around the middle of May, 2004, whereafter the election
petition was filed on 26th June, 2004.
20.
Three witnesses were produced by the election petitioner in
support of his pleas (regarding printing and 24 distribution of Exts.P1 &
P2) in paras 8, 9, 11 and 14 of the petition. Ajimon (PW-4) driver of the jeep
KEF 7953 made a detailed statement about his reporting with jeep to appellant's
election agent James on 24th April, 2004;
the
latter taking the jeep to Akshara Press; the appellant's arriving there and
making cash payment through his agent James to the Press owner; taking delivery
of bundles of printed materials, each bundle with a copy of the printed
material Exts.P1 or P2 on it; 50 bundles of Exts.P1 and P2 being loaded in the
jeep and James taking the jeep driven by PW-4 to the election office at eight
named places and the stated number of bundles being unloaded at appellant's
election offices at each place. He also stated his reporting to James again on
25th April, 2004, loading from the Press the remaining 50 bundles of the
printed material in the jeep and going to three named places with and under
instruction of James and unloading the same at each place. When cross-examined,
he stated that the said jeep was sold away by its owner (RW-9) - Thomas, some
two months after the election. Further cross-examined, he denied that he was an
IFDP worker or that the day before, he 25 was in the CPI(M) office, and was
pressurized by them to make a statement as above.
21.
PW-5, K.K. Balachandran (claiming to have been temporarily
employed for a month at the Akshara Press to meet the election rush of work)
deposed about the appellant/his agent James visiting the Press on 8th April,
2004 and placing a printing order for notice (Ext.P1) and calendar (Ext.P2);
these being printed there and packed in bundles; his being associated in
packing of the printed material at the Press and of James (RW-11) with the jeep
driven by Ajimon (PW-4), taking delivery; appellant reaching there; making
payment to the Press owner through his agent James; his (witnesses) assisting
in loading of 50 bundles in the jeep and James leaving the Press in the said
jeep. Cross-examined, he gave details of the premises, the machinery installed
therein, and the other occupiers of the building. He denied the suggestion that
he had no connection with the Press or that he came to the court to make a
false statement.
22.
PW-6 (K.J.Reji) deposed about his attending an election meeting at
5.30 p.m. on 24th April, 2004 at Vazhakulam;
26
participation of the appellant and John K in the meeting; the latter making a
speech; the jeep coming to the election office of the appellant, unloading of
some bundles and on request of Anil Johny (his friend) to have taken bundles to
the election office of the first respondent. He also stated of being given a
calendar (Ext.P2) and notice (Ext.P1) from these bundles; his going back home
with these; reading notice (Ext.P1) and seeing the calendar (Ext.P2).
Cross-examined, he denied that he was an active worker of the IFDP. He was not
questioned on his statement about the election meeting on 24th April, 2004
attended by the appellant and being addressed by John K.
23.
To counter the evidence of PW-4, PW-5 and PW-6, the appellant
produced Thomas (RW-9), the owner of jeep, Jose Kutty (RW-6), owner of Akshara
Press and James (RW-11), who respectively sought to counter the versions of the
respondent No.1's witnesses, PWs-4, 5, and 6 aforesaid. RW-9, Thomas, owner of
the jeep stated that he never gave the jeep to PW-4 or instructed him to report
to James on 24th April, 2009. He admitted that Ajimon was employed by him but
to drive his bus.
27
According to him, the jeep was purchased just for sale and was not run by him.
According to him, the jeep was sold away by him within eight days of its
purchase. If really so, there was no occasion for him to get it transferred in
his name, which he did. RW-6 (Jose Kutty), owner of the Press denied having
ever employed PW-5 or the printing of notice (Ext.P1) and calendar (Ext.P2) at
his Press. In cross- examination, he admitted that the appellant and his
election agents were known to him for a long time; that he did undertake
election printing work for them and also that printing any material without
inscribing the name of the Press thereon (as on notice, Ex.P1) is violative of
the provisions of Section 137A of the Act, inviting prosecution/action against
him. The High Court in its judgment under appeal for reasons stated discredited
the testimony of the owner of the jeep (RW-9) and owner of the printing Press
(RW-6) and believed the testimony of PW-4, PW-5 and PW-6. While dealing with
the statement of RW-9, the High Court has recorded that his answers to the
questions were generally evasive and his evidence untrustworthy. Nothing was
pointed out 28 against these observations. His testimony carries little
conviction as against that of PW-4 (Ajimon).
24.
RW-11, James, the chief election agent of the appellant, in his
proof affidavit, denied the allegation made by PW- 4, PW-5 and PW-6 and the
part allegedly attributed to him by PW-5 about the placing of a printing order
of Exts.P1 and P2 with Akshara Press on 8th April, 2004 and taking delivery of
the printed material on 24th April, 2004 (vouched by PW-4 and PW-5) at 5.00
p.m. or so, or about the election meeting on 24th April, 2004 at 5.30 p.m. at Vazhakullam;
stated by PW-6 as having been attended by him and the appellant or being
addressed by John K, purported author of Ext.P1. According to him, there was no
such meeting at 5.30 p.m. or 6.00 p.m., as on that date and time; he was in the
District Collector's office where scrutiny of nomination papers of the
appellant was held. In cross-examination, he stated that his attendance in
proceedings for scrutiny of papers is a matter reflected in court records. No
evidence about it was produced in support. Being an advocate of standing,
associated with law office of the appellant for 26 years, he well understood
its importance, for if really 29 so, production of such record could have
rendered the entire case of the election petitioner about RW-11 getting Exts.P1
and P2 printed; taking delivery of the same from Akshara Press; its
distribution that day as highly doubtful, nay, a nullity and not doing so
provided sanctity to the election petitioner's case and credibility to the
testimony of PW-4 to PW-6. We accordingly see no ground to differ with the
findings recorded by the High Court on issue No.1.
25.
The aforesaid findings on issue No.1 were sought to be assailed by
learned senior counsel appearing for the appellant on points No.(i) to (v)
digested in para 8 (supra). These are not tenable. Pithily stated, these were:
(i) it was neither the case of the election petitioner nor any specific plea
that the appellant had appealed to the electors to vote for him on the ground
of community or religion by distribution of Exts.P1 and P2; (ii) the aforesaid
documents were not proved by prescribed procedure and the basis for forming
opinion thereon was missing; (iii) notice (Ext.P1) purports to be authored by
John K, who was not examined by the election petitioner despite having cited
him as a witness and as such an 30 inference drawn by the learned Judge was
based on unproved documents; (iv) no witness produced had stated that he had
acknowledged to him that John K had prepared or signed the said exhibits and
(v) the inference drawn is based on unproved documents.
26.
As already noted above (Para 19 supra), the election petitioner's
case in paras 8, 9, 11 and 14 of the petition laid in specific terms, concisely
put, does show that documents Exts.P1 and P2, purportedly authored by John K,
were got printed by the appellant through his admitted election agent - James
at Akshara Press; the appellant paid charges therefor through his said agent to
the owner of the Press and delivery of the printed material was taken from the
Press and the same were circulated amongst Catholic/Christian voters by
appellant's agents and campaigners to his knowledge.
As noted
in para 17 (supra), these did contain an appeal to Catholics/ Christians to
vote for the appellant on religious grounds. These documents, produced by the
election petitioner, were also proved by him as PW-1 and exhibited P1 and P2
with the consent of the parties.
PW-5 also
stated that the notice (Ext.P1) and calendar 31 (Ext.P2) were given by James
(RW-11), agent of the appellant for printing at Akshara printers where he was
then working. No objection on pleas of "inadmissibility"
or
"mode of proof" was raised at the time of their exhibition or any
time later during trial, when most of the witnesses, produced by the parties were
confronted with these, as duly exhibited, bearing stamp marking with
particulars, prescribed under Order XIII Rule 4 of the Code of Civil Procedure,
1908 and duly signed as such.
In our
opinion, it is too late in the day now to object to their exhibition on the
ground of "prescribed procedure" i.e. mode of proof. Moreover, we
also find that it was nobody's case that the said documents were got printed by
John K or distributed amongst voters by him.
Absence
of proof of acknowledgment by him because of non production of John K as a
witness, in the circumstances, in our view, is inconsequential.
Admittedly,
John K was a well known leader of high stature, recognized as such by
Christian/Catholic voters including those mentioned in Para 17 (supra) and, therefore,
there is no question of drawing an adverse inference against the election
petitioner for not 32 examining him, as strenuously urged on behalf of the
appellant, particularly when the printing and circulation of offending material
(Exts.P1 and P2) has been proved by the election petitioner beyond reasonable
doubt. In that view of the matter, the dictum of this Court in Hem Raj (supra)
and other cases referred to in para 8 (supra) is not applicable. In these
cases, the election petitions were dismissed because of inadequacy of the
evidence produced by the election petitioners in order to discharge the onus to
prove the corrupt practice alleged and not because of non-examination of a
named witness.
Moreover,
the printing and circulation of Exts.P1 and P2 having been proved, the question
as to who authored Ext.P1 is immaterial. The contentions raised by the learned
counsel on the point are thus, unsustainable.
27.
As regards the decision of this Court in Ch. Razik Ram (supra) and
other decisions on the issue, relied upon on behalf of the appellant, there is
no quarrel with the legal position that the charge of corrupt practice is to be
equated with criminal charge and the proof required in support thereof would be
as in a criminal charge and not preponderance of probabilities, as in a civil
action but 33 proof "beyond reasonable doubt". It is well settled
that if after balancing the evidence adduced there still remains little doubt
in proving the charge, its benefit must go to the returned candidate. However,
it is equally well settled that while insisting upon the standard of proof
beyond a reasonable doubt, the Courts are not required to extend or stretch the
doctrine to such an extreme extent as to make it well nigh impossible to prove
any allegation of corrupt practice. Such an approach would defeat and frustrate
the very laudable and sacrosanct object of the Act in maintaining purity of the
electoral Singh & Ors.20). As noted above, in the present case, the High
Court has recorded a clear finding that the election petitioner has produced
adequate evidence which goes to prove the charges against the appellant under
Section 123(3) of the Act beyond reasonable doubt. Thus, the ratio of the
decision relied upon by the appellant is of no avail to him.
28.
This Court in Gajanan Krishnaji Bapat (supra) has observed that
although being the Court of First appeal, 20 (1985) 1 SCC 370 34 this Court has
no inhibition in reversing such a finding, of fact or law, which has been
recorded on a misreading or wrong appreciation of the evidence or the law but
ordinarily the appellate court attaches great value to the opinion formed by
the Trial Judge, more so when the Trial Judge happens to be a High Court Judge;
had recorded the evidence and had the benefit of watching the demeanour of
witnesses in forming first hand opinion of them in the process of evaluation of
evidence. This Court should not interfere with the findings of fact recorded by
the Trial Court unless there are compelling reasons to do so.
29.
Having examined the material on record in the light of the
afore-noted settled principles, we are convinced that the High Court has not
committed any grave error in the appreciation and assessment of the evidence on
the point. On consideration of the evidence in its totality, adduced by the
election petitioner and the appellant, we agree with the High Court that the
election petitioner has adduced cogent, satisfactory and reliable evidence to
establish the charge against the appellant under Section 123(3) of the Act.
30.
For the view we have taken above, we deem it unnecessary to
examine the second issue, viz. the corrupt practice in hiring or procuring
vehicles free of charges to the electors to go to and from the polling booths
falling under Section 123(5) of the Act, on which ground also the election of
the appellant has been invalidated by the High Court.
31.
For all the foregoing reasons, we see no merit in this appeal. The
same is dismissed accordingly but in the circumstances of the case, we make no
order as to costs in this appeal.
CIVIL
APPEAL NO.5777 OF 2006
32.
This appeal under Section 116A of the Act has been preferred by
the 2nd respondent in C.A. No.5033 of 2006, who had unsuccessfully contested
the election as a candidate of the Kerala Congress (M). As noted above, the
appellant in the said appeal, who was declared elected had got 2,56,411 votes;
the election petitioner got 2,55,882 votes and the appellant in this appeal had
secured 2,09,880 votes. The short grievance of the appellant is that election
of P.C. Thomas having been 36 set aside, instead of declaring the election
petitioner as elected; the High Court should have declared the appellant as
elected from 12 H.P. Muvattupuzha Parliamentary Constituency.
33.
In our opinion, fresh election to the said parliamentary
constituency having already taken place in this year, this appeal is rendered
infructuous and has to be dismissed on that ground. It is ordered accordingly.
........................................J. (D.K. JAIN)
.........................................J. (R.M. LODHA)
NEW DELHI;
SEPTEMBER 4, 2009.
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