Kerala High Court
T.V.Balan vs K.M.Shaji on 20 December, 2018
Equivalent citations: AIRONLINE 2018 KER 947
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.D.RAJAN
THURSDAY,THE 20TH DAY OF DECEMBER 2018/29TH AGRAHAYANA, 1940
EL.PET.NO.12 OF 2016
PETITIONER:
T.V.BALAN, AGED 70 YEARS,
S/O.CHATHU,3/470(0/123),
THALAKKALEVEETTIL,CHIRAKKAL.P.O.,
KANNUR DISTRICT-670 011.
BY ADVS. SRI.JOHN K.GEORGE
SMT.M.B.SHYNI
SMT.NIMA JACOB
SRI.ANISH PAUL
SRI.C.V.SHAJU
SRI.E.C.BINEESH
SRI.K.S.ARUN KUMAR
SRI.K.V.SURESH KUMAR
SRI.P.K.VARGHESE
SRI.P.P.BIJU
SRI.P.T.MANOJ
SRI.T.M.SUDHEER
RESPONDENT/S:
K.M.SHAJI, S/O.BEERANKUTTY,
H.NO.5,ALAINS GREENSVILLA,
OTTATHENG, MANAL ALAVIL,
KANNUR DISTRICT.670 008.
BY ADVS. SRI.S.SREEKUMAR (SR.)
SMT.M.RAMLATH
SRI.K.I.SAGEER IBRAHIM
SRI.MURALI PURUSHOTHAMAN, S.C.,
ELECTION COMMISSION OF INDIA
THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 20.12.2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
EL.PET.NO. 12 OF 2016 2
JUDGMENT
This election petition is filed under Section 123(2)(a)(ii), 123(3) and 123(4) and 127(A) of the Representation of People Act 1951 by one of the voters of (10) Azheekode Assembly Constituency against the alleged corrupt practice committed by the respondent in the election held on 16.05.2016 to the Kerala Legislative Assembly and to declare the election of the respondent to be void under Sections 100(1)(b) and 100(1)(d) of the Representation of People Act 1951 (hereinafter referred to as 'R.P. Act 1951'). Petitioner is the member of Communist Party of India Marxist (for short CPIM), Kannur area committee. The respondent was the candidate of Indian Union Muslim League (IUML), one of the coalition parties of the United Democratic Front (for short UDF). M.V.Nikesh Kumar was the candidate of Left Democratic Front (for short LDF) who got 60,795 votes and the respondent got 63,082 votes, who is declared as the returned candidate from the 10 Azheekode Assembly Constituency.
2. The challenge in this petition is that the respondent, his election agent, and his other agents, the organisers and workers with the consent of the respondent or his election agent EL.PET.NO. 12 OF 2016 3 distributed and circulated Annexure I notice among the muslim voters of the Constituency. They appealed to the voters of the muslim community to vote for the respondent on the ground of his religion and not to vote for M.V.Nikesh Kumar who belongs to Hindu religion. An appeal by the respondent to the voters belonging to the muslim community to refrain from voting for Nikesh Kumar on the ground that he is not a member of the muslim community is a corrupt practice. Almost 30% of the voters of the Azheekode Assembly Constituency belong to muslim community and the distribution of Annexure I had materially affected the result of the election of the respondent. In Annexure I, a passage from Holy Quran is quoted which conveyed a message to the members of the muslim community that they will be rendered to an object of divine displeasure or spiritual censures, if they vote for M.V.Nikesh Kumar. The photograph of the respondent and a request to elect him with his symbol 'ladder' was published in Annexure I. The respondent, his agents and other persons with the consent of the respondent and his election agent had printed and published Annexure II pamphlet in the Constituency. The contents of Annexure II are in relation to the personal character and conduct of Sri M.V.Nikesh Kumar, which contains his photograph with Saritha, who is an accused in Solar EL.PET.NO. 12 OF 2016 4 Scam case. It is stated that Nikesh Kumar is joining with Saritha and having wayward relationship with her and on knowing this, his wife is taking steps for filing a divorce case in the Family Court. The respondent published Annexure II notice believing it to be false and not believing it to be true. At the bottom of the pamphlet, it bears, 'printing and publishing President, Indian Overseas Congress, Kannur District Committee' to make it appear that it was not printed by the respondent or his agents. On 15.05.2016, respondent's workers were engaged in house to house campaign with Annexure I and II and distributed it among the muslim voters at Thangal Vayal. Smt N.P.Manorama, the President of Valapattanam Grama Panchayat participated in the public meetings and in house to house campaign along with the respondent within the area of Valapattanam Grama Panchayat. On 11.05.2016 at 6.30 am, she conducted house to house campaign with Abdul Rasheed, V.P.Noushad and other workers of Indian National Congress and Indian Union Muslim League (for short IUML) and distributed Annexure I and II pamphlets in the presence of the respondent at Valapattanam area. They distributed Annexure I notice secretly to the members of muslim community. On 11.05.2016 and 12.05.2016 Smt N.P.Manorama, Abdul Rasheed and V.P.Noushad conducted election campaign with EL.PET.NO. 12 OF 2016 5 Annexure I and II and Abdul Rasheed and V.P.Noushad propogated the matters stated in Annexure I secretly in selected muslim houses. On 13.05.2016 C.V.Santhosh, Sujith, Pradeepan and Prem Prakash distributed the above pamphlets at Chettipeedika in their house to house campaign. On 15.05.2016, Mayyil police seized the above pamphlets from Narayanan, Rajeevan, Padmanabhan, Majeed and Noufal at Talkies Road, Kannadiparamba. The respondent suppressed material facts in his affidavit filed before the Returning Officer. Hence the respondent committed corrupt practice under Section 123(2)(a)(ii), 123(3) and 123(4) and 127(A) of the R P 1951 and his election is liable to be set aside under Sections 100(1)(b) and 100(1)(d)(iv) of the R P Act 1951.
3. In the written statement respondent contended that he and his election agent and other persons or workers never committed any corrupt practice as alleged by the petitioner. The averment that the above notices were printed, published and circulated by the respondent, his election agent, and other agents with the consent, direction and connivance of the respondent and his election agent, is false. The respondent happened to see Annexure I and II for the first time when he received the election petition and there is no violation of Section 127(A) of the R P Act 1951. The respondent, his election agent and others never EL.PET.NO. 12 OF 2016 6 appealed to the voters of the muslim community not to vote for a candidate who is not a believer in islamic faith. He never conveyed any message to the muslim community that they will be rendered to an object of divine displeasure or spiritual censures, if they vote for M.V.Nikesh Kumar. It is shown that annexure I and II pamphlets were printed and published in the name of 'President, Indian Overseas Congress, Kannur District Committee'. The muslim voters in the Azheekode Assembly Constituency is less than 20% of the total population. Respondent or his agent or others with his consent or with the consent of his election agent never printed, published or distributed Annexure II as alleged. Annexure I and II were printed and published by petitioner and M.V.Nikesh Kumar only to make out a cause of action for filing an election petition. M.V.Nikesh Kumar is the best person to speak about the contents of Annexure II since it relates to his personal life and his assets and liabilities. On 14.05.2016, a group of workers of the respondent were engaged in the house to house campaign and they distributed copies of Annexure I among the muslim voters at Thangal Vayal is false. The statement that Smt.N.P.Manorama played an active role in the election campaign is false. As a member of coalition party, she might have participated in the election campaign for the respondent. On EL.PET.NO. 12 OF 2016 7 11.05.2016 & 12.05.2016 at 6.30 am, she distributed Annexure I and II pamphlets with other workers is absolutely false. The allegation that several bundles of pamphlets kept in her house were seized by K.V.Shaju is false. On 13.05.2016, C. V.Santhosh, Sujith and Pradeepan distributed pamphlets is false. Rajeevan, Narayanan and others conducted house to house campaign and distributed Annexure I and II and other materials and they were arrested by Mayyil police with the above pamphlets are absolutely false. The petition does not disclose material facts to constitute corrupt practice under Section 123 of R P Act 1951. Hence he prays to dismiss the petition for want of cause of action with cost and compensatory cost.
4. Issues/points raised for consideration.
1. Whether this petition is maintainable ?
2. Whether the returned candidate or his agent or any person with the consent of the candidate or his election agent has made any undue influence either direct or indirect with the free exercise of any electoral right, thereby committed any corrupt practice under Sec.123(2)(a)(ii) of the Representation of People Act, 1951 ?
3. Whether the returned candidate or his agent or by any other person with the consent of the candidate or his election agent EL.PET.NO. 12 OF 2016 8 made an appeal to vote or refrain from voting on the ground of his religion, race, caste, community or language under Section 123(3) of the RP Act, 1951 ?
4. Whether the returned candidate or his agent or by any person with the consent of the candidate or his election agent has made any publication or any statement of facts which is false as stated under Sec.123(4) of the Representation of the People Act, 1951.
5. If any of the corrupt practice has been proved against the returned candidate, whether the election of the returned candidate has to be declared void ?
6. Reliefs and Cost.
5. Petitioner's evidence consist of oral testimony of PW1 to PW14 and documentary evidence of Exts.P1, P1(a), P2, P2(a), P3, P4, P5, P6, P6(a) and respondent's evidence consist of oral testimony of RW1, RW2, RW3, RW4, RW5, RW6, RW7. Third party evidence consist of documentary evidence of Ext.X1, X1(a), X1(b), X2, X2(a), X2(b), X2(c), X3, X4, X5, X6, X7, X8, X9, X10, X11.
6. Point Nos.1 to 4: Maintainable. The first ground advanced by the petitioner is that respondent, his agent and other persons used undue influence among voters with the free exercise of their electoral right. The second ground raised by the petitioner is that respondent and his agent and others with the consent of the EL.PET.NO. 12 OF 2016 9 candidate or his election agent made an appeal among muslim voters to vote for him on the basis of his religion. An appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community will prejudicially affect the election of any candidate. The third ground alleged by the petitioner is that the respondent and his agent or by any other person with the consent of the candidate or his election agent published certain statement of facts which is false and he either believes to be false or does not believe to be true in relation to the personal character or conduct of the petitioner. That statement was made reasonably calculated to prejudice the prospects of petitioner's election. Both parties examined several witnesses, many of these witnesses are partisan or interested, therefore their evidence must be viewed with circumspection. There is danger in believing the oral evidence, its face value without backing of sure circumstances or documents. Therefore court must look into each circumstance to prove the alleged corrupt practices.
Petitioner's evidence
7. To understand and appreciate the controversy, it is imperative to scrutinize the oral and documentary evidence in this EL.PET.NO. 12 OF 2016 10 case, for that I begin with petitioner's evidence. The petitioner was examined as PW1, who filed proof affidavit to prove the allegation. PW1 deposed that he is a voter of booth No.69, seriel No.654 of Chirakkal Panchayat in Azheekode Assembly constituency. He is the former Principal of K.M.M.G Womens College, Kannur and the member of CPIM, Kannur Area Committee. The respondent was the candidate of IUML, a coalition party of United Democratic Front (UDF) and his election symbol was 'ladder'. M.V.Nikesh Kumar was the candidate of CPIM who secured 60795 votes, the respondent secured 63,082 votes and he was declared as elected on 19.05.2016 with a margin of 2287 votes. PW1 stated that the respondent or his election agent or his other agents and workers printed, published and circulated Exts.P1 and P2 notices. In the bottom of the notice, it was shown, printing and publishing, President, Indian Overseas Congress, Kannur Jilla Committee to make it appear that it was not printed and published by the respondent, or his election agent or his other agents. PW1 categorically stated that this amounts to violation of Section 127(A) of R P Act, 1951. The caption in Ext.P1 was written in arabic language and the remaining portion was printed in malayalam. PW1 deposed that the respondent, his election agent and his other agents distributed and circulated Ext.P1 notice EL.PET.NO. 12 OF 2016 11 among the muslim voters of the constituency at various places and they appealed to them to vote for the respondent on the ground of his religion and not to vote for M.V.Nikesh Kumar since he is not a muslim or a believer in islamic faith. Their intention was to induce the voters and conveyed a message to the voters of the muslim community that they will be rendered an object of divine displeasure or spiritual censures if they vote for M.V.Nikesh Kumar. Approximately 30% of the voters of Azheekode assembly constituency belong to muslim community. In Ext.P1, the symbol of the respondent, 'ladder' was also printed. They also circulated Ext.P2 pamphlet among the voters and the statements in the said pamphlet are false. In Ext.P2 it is stated that "veedu nokkathavanu naadu nannakkan kazhiyumo ?" The contents of Ext.P2 are in relation to the personal character and conduct of Nikesh Kumar, in which his photograph along with Saritha S Nair, who is allegedly involved in Solar Scam case was published. Another photograph of Nikesh Kumar with his wife and children were also published in Ext.P2, which carries another caption in bold letters " vivaha mochanam". PW1 stated that Nikesh Kumar and his wife are leading a happy family life and the statement that his wife is going to file divorce petition in Family Court is false. In Ext.P2 it is stated that Nikesh Kumar is having wayward EL.PET.NO. 12 OF 2016 12 relationship with Saritha, that his wife is going to file a divorce petition and he is a cheat etc, are in relation to the personal character and conduct of Nikesh Kumar. The wife of Nikesh Kumar had no intention to get a divorce from him and she had not taken any steps to file such a petition for divorce.
8. PW1 also stated that on 14.05.2016, ten persons including Fazir K.V, Shakkeer V.P, Favaz, Nisham, Rehman and others campaigned for the respondent at Thangal Vayal. They distributed copies of Ext.P1 pamphlet among the members of muslim community at Thangal Vayal. At about 11.15 am, they distributed Exts.P1 and P2 in the house of Noushad, Abdulla, Abdul Rasheed and Mohammed Isaac at Valapattanam. They distributed Ext.P1 secretly among the members of muslim community and warned the voters not to vote for a candidate who is not a believer in islamic faith. Smt.N.P.Manorama is an active worker of Indian National Congress who is holding the office of the President, Valapattanam Grama Panchayat. On 11.05.2016 at 6.30 am, Smt.N.P.Manorama and Abdul Rasheed, members of Valapattanam Grama panchayat, V.P.Noushad, a former member of Valapattanam Grama panchayat, along with other workers of INC and IUML campaigned for the respondent with Ext.P1 and P2 pamphlets in the house of Shameer.P, Savad.P.V, Faisal P.V, K.P.Dasan, Rahul EL.PET.NO. 12 OF 2016 13 K.V, C.P.Gireeshan and Lincy K. They distributed Ext.P1 notice secretly among the muslim voters alone. On that day, the campaign started in the presence of respondent and Smt N.P.Manorama was found in the election squad. After that, respondent left the place by directing Smt.Manorama and other members of the squad to continue the election campaign. On 12.05.2016 at 6.30 am, Smt N.P.Manorama, Abdul Rasheed, Noushad and other workers of UDF visited the house of Jaleel.P.P, K.C.Saleem, V.K.Shameer. On 11.05.2016 and 12.05.2016, the above said persons distributed Exts.P1 and P2 among the voters. The Special Squad authorised to detect violation of Model Code of Conduct under the leadership of Shaju K.V, seized several pamphlets from the house of N.P.Manorama. Valapattanam police registered crime No.1074 of 2016 on 12.05.2016 against N.P.Manorama. Sub Inspector of Police, Valapattanam Police Station seized Exts.P1 and P2 notices on 12.05.2016 by preparing separate seizure mahazars.
9. C.V.Santhosh, Sujith, Pradeepan and Prem Prakash were engaged in house to house campaign and distributed Exts.P1 and P2 pamphlets at Pallikunnu, Chettipeedika. On 13.05.2016 they visited the house of Shamal and Sudeendral with Exts.P1 and P2 notices at Chettipeedika and distributed the above notices with EL.PET.NO. 12 OF 2016 14 the consent and direction of respondent and his election agent. On 15.05.2016, Rajeevan P, A.V.Narayanan, Padmanabhan, Majeed K.C and Noufal T M distributed Exts.P1 and P2 notices at Kannadiparamba with the consent of the respondent and his election agent. Mayyil police registered Crime No.620 of 2016 against Rajeevan, Narayanan and Padmanabhan on the basis of a complaint filed by K.Baiju, Local Committee Secretary of LDF, Kannadiparamba. There was suppression of material facts in the affidavit filed before Returning Officer. The respondent filed nomination paper without complying Rule 4A of Conduct of Election Rules, 1961. In the affidavit, there is suppression of facts in mentioning the Pan Card number. He also gave false information about his educational qualification. In cross examination PW1 admitted that he has no direct knowledge about the distribution of Exts.P1 and P2 pamphlets. PW1 also campaigned for Nikesh Kumar on 11.05.2016, 12.05.2016, 13.05.2016. 14.05.2016 and 15.05.2016. In almost all days, after election work the party members informed him about the progress of the election work and their experience in the campaign. He admitted that the allegation made against the respondent in the election petition and proof affidavit are on the basis of hearsay information alone. He had no direct knowledge about the allegation. EL.PET.NO. 12 OF 2016 15
10. The voter in Booth No.94 of Azheekode Assembly Constituency was examined as PW2. His evidence shows that Favaz, Fazir, Nisham, Rahman, Shakeer, Ashraf and others campaigned for UDF in the 2016 election and they visited his house on 10.05.2016, 11.05.2016, 12.05.2016, 14.05.2016 and 15.05.2016. Favaz, Fazir, Nisham, Rahman, Shakeer and five others visited his house on 14.05.2016 at 11.15 am and they handed over five or six notices to him, out of which Exts.P1 and P2 were separately given by Fazir. After reading those notices, he gave it to his sister and her children who are the voters of the constituency. They discussed about the notice after reading it. In Ext.P2 it is stated that Nikesh Kumar is having illicit relationship with another woman. In the evening he met Noushad and they discussed about the pamphlets and Noushad informed him that he also got similar notice like Exts.P1 and P2. He did not know the Press where Exts.P1 and P2 were printed. Fazir K V is the President of Muslim Youth League who is residing near his house. Nisham is a congress worker and others are workers of Muslim League. In cross examination, he stated that even now he believe that Nikesh Kumar has illicit relationship with Saritha, but he has no knowledge about the personal life of M.V.Nikesh Kumar. He himself, his sister and her children exercised their franchise by EL.PET.NO. 12 OF 2016 16 assessing the ability of the candidate. Favaz, Rahim and Shakeer are members of Muslim League and he is familiar with the above five UDF persons.
11. Another voter PW3 deposed that both LDF and UDF workers visited his house as part of the election campaign. On 11.05.2016 at 6.30 am, the respondent with Rasheed, Manorama, Noushad, Thaju and Azeez visited his house. They entered into his house, at that time his father, mother, wife, sister and other members of his family came there. His father was the former Secretary of Muslim League Manna branch. Considering this, the respondent told to his father that Nikesh Kumar is having illicit relationship with Saritha and respondent being a muslim, requested him to vote for him and not to vote for non muslims. Noushad handed over six notices to PW3 as instructed by the respondent. At that time, his brother came there and respondent requested him to vote for him. PW3 stated that at the time of giving notice, Noushad told him to read the pamphlets and vote for the respondent. Manorama is the President of Valapattanam Grama Panchayat and K.M.Shaji is the M.L.A. PW3 identified the photograph of Nikesh Kumar and Saritha and the photograph of Nikesh Kumar with his wife and children in Ext.P2. On 12.05.2016, when he was returning from Mosque after prayers, there was a EL.PET.NO. 12 OF 2016 17 discussion among the people about the seizure of notice from the house of Manorama. PW3 is a painter by profession and he used to go at 8.30 am for his work. Noushad was the former President, Valapattanam Grama Panchayat. Thaju and Azeez are workers of muslim league and he knows Azeez and Rasheed from their childhood itself. The learned counsel put a suggestive question to PW3 that Exts.P1 and P2 were printed by Nikesh Kumar which was denied by him.
12. PW4 was a voter of Booth No.92 and was working as a Security Guard at Pappinissery. On 10.05.2016 the workers of LDF visited his house and on 11.05.2016, the workers of UDF candidate visited his house. On 11.05.2016 at 7 am, Smt.Manorama, Noushad, Rasheed, Shamal, his relative Saifuddin and some others visited his house. Noushad entrusted Exts.P1, P2 and other notices to him, his father, mother, wife and two children were present at that time. Noushad told him not to vote for a non muslim and to vote for respondent. They asked PW3 to read over the notice among the family members and to take a decision. He read over Exts.P1 and P2 notices to his father and mother. On hearing the contents of notice, they felt that the allegations in the notice are true. On 15.05.2016, both LDF and UDF workers visited his house with election slips.
EL.PET.NO. 12 OF 2016 18
13. PW5 is a voter of Booth No.91 of Azheekode Assembly Constituency, who deposed that both LDF and UDF workers visited his house as part of the election campaign. On 11.05.2016 and 15.05.2016, UDF workers visited his house in connection with house to house campaign. On 11.05.2016 at 6.30 am, K.M.Shaji, Manorama, Rasheed, Noushad, Madhusoodhanan, Azeez, and Thajudheen visited the house of Shameer, who is his neighbour. After that they came out from that house, the father of Shameer also accompanied them. K.M.Shaji talked with Manorama and thereafter left the place in his vehicle. The remaining persons Manorama, Rasheed, Noushad, Madhusoodhanan, Azeez and Thajudheen visited his house, Manorama informed him that they came for canvassing vote for Shaji and she handed over two - three notices to him. His parents and younger brother joined there. Manorama picked up one notice and showed it to his mother, which contained the photograph of Nikesh Kumar and Saritha and also the family photograph of Nikesh Kumar. Manorama told to his mother that Nikesh Kumar is having illicit relationship with Saritha and his wife is seeking a divorce from him and may not vote for Nikesh Kumar. Then his father asked to Manorama whether Saritha is having illicit relationship with Nikesh Kumar. She asked whether such a person could do anything EL.PET.NO. 12 OF 2016 19 worthy to the constituency and she requested to vote for Shaji and went to the next house for campaigning. The entire family read the notice, his mother asked whether Nikesh Kumar is a person of such character and why should they vote for such a person.
14. PW6 is a voter in Booth No.92 of Azheekode Assembly Constituency who is residing at Valapattanam Grama Panchayat. His evidence shows that on 12.05.2016 at 6.30 am, Smt Manorama, Rasheed, Noushad, Ashraf, Hashim and some others visited his house for canvassing votes for Shaji. They told that Nikesh Kumar is having illicit relationship with Saritha and his wife is seeking divorce from him. Smt.Manorama asked him whether a person who is not able to manage his family could do anything for the constituency. At that time, Noushad handed over five or six notices to him and told him to read those notices thoroughly. Noushad requested PW6 to vote for respondent and told him not to vote for a non muslim, otherwise it will bring disgrace of the Allah. He identified Exts.P1 and P2 notices. On the same day at 11 am, LDF workers L.V.Mohammed, Sasi, Mohanan, A.N.Salim and others visited his house and handed over four notices and requested him to vote for Nikesh Kumar. He asked them how can he vote for a non muslim who is of such a bad character. He showed similar notices of Exts.P1 and P2 to Abdul Nazar and they EL.PET.NO. 12 OF 2016 20 took those notices with them and left the place. At 2 pm, when he went to puthiyatheru, he saw several people gathered in front of house of Manorama and a police van was also found there. On enquiry, it was found that police raid is going on in the house of N.P.Manorama. PW6 is a loading and unloading worker and in cross examination he admitted that he is not a member of any trade union. He admitted that UDF and LDF workers visited his house on 12.05.2016 and 15.05.2016. He admitted that petitioner visited his house on 22.05.2016 between 5 pm and 6 pm.
15. PW7 is a voter in Booth No.98 of Azheekode Assembly Constituency. His evidence shows that both LDF and UDF workers conducted house to house campaign by affixing posters and displaying banners in the Constituency as part of the election work. On 13.05.2016 at 7.30 am, the UDF workers C.V.Santhosh, C.V.Sumith, Prem Prakash and Pradeepan visited his house and requested to vote for the respondent. They told him that Nikesh Kumar is having relationship with Saritha. Santhosh asked him to call his parents and told them not to vote for Nikesh Kumar. They handed over notices and told him to read over it among the family members and thereafter they left. He identified Ext.P2 notice. He read over the notice among the family members. In cross examination he stated that Pradeepan is his friend and he is EL.PET.NO. 12 OF 2016 21 residing 500 metres away from the house of C.V.Santhosh. Sandeep, the brother of Santhosh died on 08.05.2016 due to Liver Cirrhosis. When he was admitted in the hospital, he went to see him there.
16. PW8 is a voter in booth No.63 of Kannadiparamba and Secretary of LDF, Kannadiparamba Local Committee. On 15.05.2016 he conducted house to house campaign with other LDF workers at Talkies Road, Kannadiparamba. When they visited the house of one Ummer at Talkies Road, he handed over a bunch of pamphlets to him and asked how one could vote for such a candidate. PW8 read the content of the notice in which it was stated that Nikesh Kumar had illicit relationship with Saritha and wife of Nikesh Kumar had filed a petition for divorce before Family Court. In another notice, there was a request to vote for the respondent since he is a muslim. The symbol and photograph of the respondent was printed in that notice. Ummer also showed similar notices to PW8 and told that Shefiff entrusted those notices. Immediately PW8 informed the matter to the chief election agent of Nikesh Kumar and as per his direction, he informed the same to the police. At about 1.30 pm, the UDF workers were taken into custody from talkies road with pamphlets. Till 4.30 pm, police had not taken any action against the arrested EL.PET.NO. 12 OF 2016 22 persons, he filed a petition to the Mayyil police against them. Subsequently Mayyil police registered Crime No.620 of 2016 against them, Ext.P3 is the copy of the complaint. In cross examination he admitted that he went to the house of Ummer and Sheriff two - three times in connection with election campaign and knew about Exts.P1 and P2 notice at the time of filing Ext.P3 complaint. But he denied the allegation that under his leadership he detained Rajeevan, A.V.Narayanan and others, which created a law and order situation at talkies road and in order to save the life of the UDF workers, police took them to the police station.
17. PW9 is a voter in booth No.63 who deposed that UDF and LDF workers visited his house as part of election campaign. The UDF workers had visited on 10.05.2016 or 11.05.2016. On the next day, LDF and BJP workers visited his house. On 15.05.2016 at 7 am, UDF workers Ashraf, Padmanabhan, Rajeev, Noufal, Unni, Dasan, Narayanan and others visited his house and handed over voter's slip and notices. Noufal entrusted Exts.P1 and P2 notices and requested to vote for the respondent. On the same day at 10.30 am, LDF workers Ibrahim, Baiju, Damodaran, Sharath, Rajeevan, Kandappan and others visited his house and handed over voter's slip and other notices. After reading Ext.P1 and P2 notice, a bad impression was created in his mind about EL.PET.NO. 12 OF 2016 23 Nikesh Kumar. As requested by Baiju, he handed over the notice to him. At about 1' 0 clock in the noon, the above UDF workers were taken into custody by police. In cross examination he admitted that he is the Secretary of a Food Ball Club, 'Rising Star' at Kannadiparamba. On 15.05.2016, he received 9 or 10 notices which were entrusted to Baiju on the same day.
18. PW10 deposed that on 12.05.2016, while working as Senior Police Officer, Valapattanam Police Station, he received a petition from Abdul Nazar K.T. On the basis of that petition, he registered Crime No.1074 of 2016 under Section 153 read with 34 IPC and under Section 127(A) of R P Act, 1951, Ext.P4 is the copy of the F.I.R. The accused in the above crime were Manorama and her husband Sukumaran. Ext.P5 is the copy of the petition given by Abdul Nazar K.T which was addressed to SHO, Valapattanam.
19. The Sub Inspector of Police, Valapattanam was examined as PW11. His evidence shows that on 12.05.2016 at 1 pm, Crime No.1074 of 2016 was registered by Valapattanam police on the basis of a petition filed by Abdul Nazar K.T. Immediately the Civil Police Officer in charge of GD informed him about the registration of the crime and he started investigation in that case. He reached at the house of Manorama, President, Valapattanam Grama Panchayat at 13.30 hours and found notices EL.PET.NO. 12 OF 2016 24 and pamphlets kept in the verandah of the house of Manorama. During inspection, Manorama came out of the house, then PW11 asked about the notices and pamphlets, at that time she answered that it was brought for the election campaign of the respondent. He seized those notices after preparing a search list in the presence of witnesses, thereafter he entrusted the pamphlets to the subordinate police officers who accompanied him. When police party reached at the house of Manorama, hundreds of people had gathered in front of that house, subsequently they divided into two separate groups which created law and order situation there. A search list was prepared by the Assistant police officers under his supervision and signed by him. While preparing search list, two or three members of Special Squad came there and enquired about the seized notices and pamphlets. After preparing search list, the seized articles were taken into custody and removed them to the police station at 14.30 hours. The members of MCC Special Squad visited the police station and asked for a copy of one set of each notice and pamphlets which were seized from the house of Manorama and on the basis of the request by the MCC officers, he handed over one set of each notice and pamphlets to them. At 16.00 hours, he arrived at the place of occurence and prepared a scene mahazar. After registering the above case, Abdul Nazar K T EL.PET.NO. 12 OF 2016 25 handed over two notices containing arabic caption and three notices containing allegation regarding relationship between Nikesh Kumar and Saritha. Those notices were taken into custody after preparing Ext.P6 seizure mahazar as part of the investigation. PW11 identified Ext.P6 seizure mahazar and also Exts.P1 and P2 pamphlets. After completing investigation, PW11 filed final report before Judicial First Class Magistrate II, Kannur. In cross examination, he deposed that after reaching the residence of Smt Manorama, he obtained additional force to disburse the mob. He conducted the search only after disbursing the mob and seized the pamphlets from the house of Manorama. He did not conduct any investigation to find out the press where the documents mentioned in Ext.P6 were printed. The documents referred in Ext.P6 were found seen in the verandah of house of Manorama.
20. PW12 was the Returning Officer, Azheekode Assembly Constituency who produced the original of Form No.26 affidavit submitted by respondent in 2011 assembly election which was marked as Ext.X1. In Ext.X1, the Pan Card number is mentioned as APQPK1630M which is marked as Ext.X1(a). In column No.6 of page No.8 of Ext.X1, the same Pan Card number is mentioned which is marked as Ext.X1(b). The original Form No.26 of EL.PET.NO. 12 OF 2016 26 respondent in 2016 assembly election is marked as Ext.X2. In page No.2 of Ext.X2, the Pan Card number is mentioned as EDWP 6273A, which is marked as Ext.X2(a). In page No.10 of Ext.X2 in column No.10, the educational qualification is stated as 'BBM Course not completed', which is marked as Ext.X2(b). In page No.12 of Ext.X2, part B, column No.10, the educational qualification is marked as 'BBA, Bangalore University not completed'. That portion is marked as Ext.X2(c). In cross examination he admitted that he has no knowledge about the truth or veracity of the contents of Exts.X1 and X2. He never verified the correctness of Exts.X1(a), X1(b), X2(a) or X2(b).
21. PW13 was the Nodal Officer, MCC during 2016 election. His evidence shows that K.V.Shaju was the Charge Officer of Azheekode Assembly Constituency. There were 13 special squad of MCC under him and each squad is under the control of a Charge Officer who is bound to report the violation of MCC. The Charge Officer of Azheekode Assembly constituency reported several instances of violation of MCC during 2016 election. He identified the report Ext.X1 marked in E.P.No.11 of 2016, which is marked as Ext.X3 in this case. Another report dated 13.05.2016 which was marked as Ext.X8 in E.P.11 of 2016, is marked as Ext.X4 in this case. Another report dated 14.05.2016 which was marked as EL.PET.NO. 12 OF 2016 27 Ext.X13 in E.P.11 of 2016, was marked as Ext.X5 in this case. A report dated 15.05.2016 was marked as Ext.X15 in E.P.11 of 2016 and its certified copy is marked as Ext.X6 in this case. In Ext.X3, it was reported that police seized 10 different kinds of notices and pamphlets from the house of Manorama, President of Valapattanam Grama panchayat which was produced by the Charge Officer. The witness identified Exts.X2 and X3 marked in E.P.11 of 2016 which is marked as Exts.P1 and P2 in this case. On 13.05.2016 the Charge Officer reported in Ext.X4 that C.V.Santhosh, Sujith, Pradeepan and Prem Prakash were distributing the same pamphlets at Pallikunnu Chettipeedika, Kakkad, Nambiarmotta area, which was seized by the special squad. On 14.05.2016 it was reported in Ext.X5 that one Fazir, Shakeer, Favaz, Nisham, Rehman and others were campaigning at Thangal Vayal with the above notices which were seized by the special squad. On 15.05.2016, it was reported in Ext.X6 that several notices and pamphlets were seized by the special squad from the scooter KL13 AE 4526 which was parked in front of a house. PW13 stated that he had taken follow up action on the basis of Exts.X3 to X6. On the basis of Ext.X3 report, on 12.05.2016 he issued a show cause notice to the respondent. PW13 identified the certified copy of Ext.X6 marked in E.P.11 of EL.PET.NO. 12 OF 2016 28 2016 which is marked as Ext.X7 in this case. The respondent accepted the notice and he put his signature in the show cause notice. He informed about the violation to the Returning Officer on 12.05.2016. The certified copy of Ext.X7 report marked in E.P.11 of 2016 is marked as Ext.X8 in this case. On 14.05.2016, he informed about the violation of MCC to the District Police Chief, Kannur, marked as Ext.X10 in E.P.11 of 2016, which is marked as Ext.X9 in this case. In Ext.X9, it was reported that defamatory notices and pamphlets were seized from C.V.Santhosh, Sujith, Pradeepan and Prem Prakash. In cross examination, respondent suggested that Ext.X8 and X9 were forged by the witness for helping Nikesh Kumar which was denied by PW13. He asserted in cross examination that he had received Exts.X3, X4, X5, and X6 notices in his office. The respondent also attributed that the Charge Officer and PW13 had conspired with Nikesh Kumar and fabricated Ext.X3, X4, X5 and X6 which was denied by PW13. He admitted that he received oral instruction from District Collector to issue Ext.X7.
22. The evidence of PW14 shows that while he was working as Special Tahsildar, he was assigned the duty as Charge Officer, MCC, Azheekode Assembly Constituency. His evidence shows that PW13 was his Nodal Officer and five other persons were working in EL.PET.NO. 12 OF 2016 29 the special squad with him. He had reported every violation of MCC to PW13, the Nodal Officer. He also stated that Ext.X3 to X6 reports were submitted to PW13 during that period. On 12.05.2016 he got information that notices and pamphlets were seized from the house of Manorama, President, Valapattanam Grama panchayat by the Valapattanam police. For that he sent Ext.X3 report to the Nodal Officer. He obtained copies of the pamphlets from Valapattanam police station and handed over to PW13 along with the above report. On 13.05.2016, he seized more than 100 different types of notices from C.V.Santhosh, Sujith, Pradeepan and Prem Prakash from Pallikunnu Chettipeedika, Kakkad Nambiarmotta area, for that he sent Ext.X4 report to the Nodal Officer. On 14.05.2016, more than 750 notices were seized by the Special squad from Fazir, Shakeer, Shavaz, Nisham, Rahiman and others and he forwarded it to PW13 with Ext.X5 report. On 15.05.2016, he seized notices from a scooter KL13 AE 4526 parked in front of a house by the Special Squad at Kannadiparamba, talkies road, for that he sent Ext.X6 report. Similar notices like Exts.P1 and P2 were seized by PW14 which were marked in E.P.11 of 2016 as Exts.X2 and X3. On 12.05.2016, original of Exts.X2 and X3 were handed over to him by the police. The documents marked as Exts.X2 and X3 marked in E.P.11 of EL.PET.NO. 12 OF 2016 30 2016 were identified by the witness and the copies were marked as Exts.X10 and X11 in this case. The evidence of PW14 shows that on 13.05.2016, 14.05.2016 and 15.05.2016 he seized pamphlets and notices similar to Exts.X10 and X11 from different parts of the constituency, which were marked as Exts.X4 to X6 in this case. In cross examination he admitted that while he was working as Revenue Inspector, he was arrested by Vigilance and Anti Corruption Bureau in the year 2012. Latheef was the Videographer attached to the Special Squad of MCC. On 12.05.2016, he visited the house of Manorama with Latheef and they did not enter inside the house of Manorama or did not conduct any search there. In Ext.X3, it was recorded that notices were seized by Valapattanam police and kept in the police station. Respondent suggested that on 13.05.2016, PW14 had not seized any documents from C.V.Santhosh, Sujith, Pradeepan and Prem Prakash and they never conducted any house to house campaign, but PW14 denied that suggestive question and admitted that he seized the notices from them and sent Ext.X4 report to PW13. On 14.05.2016, he had not seized any documents from Fazir, Shakeer, Favaz, Nisham, Rahman and others and they never conducted any house to house campaign, but PW14 denied that suggestive question and admitted that he seized the notices from them and EL.PET.NO. 12 OF 2016 31 sent Ext.X5 report to PW13.
Respondent's evidence
23. Now, let me examine the oral evidence of the respondent who was examined as RW1. His evidence shows that he contested as a candidate of Indian Union Muslim League and his symbol was ladder. He himself or his election agent never printed, published or circulated Exts.P1 and P2 notices or pamphlets as alleged by the petitioner. Moreover his other agents, workers or associates with his consent or with his agent's consent never printed, published or circulated any notice or pamphlets. There is no agency called Indian Overseas Congress Kannur Jilla Committee. He never requested the muslim voters not to vote for M.V.Nikesh Kumar on the ground of his religion. He believe in secularism, for that he is facing threat from two religious organizations viz, Jama ath islami and NDF. In the Azheekode Assembly constituency, the muslim population is less than 20%. He never appealed to anybody to pray for him or to any of the gods for his success and never made any undue influence. He do not know anything about the contents of Ext.P2 and he had no knowledge about the personal life of M.V.Nikesh Kumar. He had never heard about the relationship between Saritha S Nair and M.V.Nikesh Kumar. The allegations in Ext.P2 has been deliberately created so as to make EL.PET.NO. 12 OF 2016 32 out a cause of action for filing an election petition. He had no occasion to come across the personal life of M.V.Nikesh Kumar. Exts.P1 and P2 and other notices were printed by M.V.Nikesh Kumar and his election agent and workers after election so as to file an election petition. On 14.05.2016 Fazir, Shakeer, Favaz, Nisham and Rahman were engaged in house to house campaign and distributed Exts.P1 and P2 pamphlets among the muslim voters at Thangal Vayal is absolutely false. He never engaged in any election campaign or gave any consent to the above said persons and they are not members of muslim league or muslim youth league. Noushad M, Abdulla B, Abdul Rasheed and Mohammed Isakk are workers of CPIM and were campaigning for M.V.Nikesh Kumar.
24. RW1 further stated that Smt N.P.Manorama, President of Valapattanam Grama Panchayat never campaigned for him in the election and she never participated in the election work like public meeting and house to house campaign in Valapattanam. He never went for campaigning in Valapattanam with N.P.Manorama, Abdul Rasheed, V.P.Noushad and other workers of INC and IUML. The allegation that they distributed Exts.P1 and P2 in the house of Shameer, Savad and Faisal P.V is absolutely false. The allegation that they also distributed Ext.P2 and other notices in the house of EL.PET.NO. 12 OF 2016 33 K.P.Dasan, Rahul K V, C.P.Gireesan and Lincy K is false. On 11.05.2016 at 6.30 am, he started campaign from the house of Shameer P, with N.P.Manorama, Abdul Rasheed and V.P.Noushad is false and moreover, he had never met Shameer P at his residence with the aforesaid persons. Sri Shameer P is an active worker of CPIM and he speaks falsehood. On 12.05.2016 at 6.30 am, the above persons and other workers of UDF visited the house of Jaleel P P, K.C.Saleel and V.K.Shameer and distributed Exts.P1, P2 and other pamphlets is false. The allegation that several bundles of objectionable printed materials used for the election of the respondent were kept in the house of N.P.Manorama and seized by Shaju K V is false. Crime No.1074 of 2016 of Baliapattam police was registered at the instance of Sri M.V.Nikesh Kumar, his workers and agents. The allegation that on 13.05.2016, S.I of Police, Baliapattam police station seized Exts.P1 and P2 is false. On 13.05.2016, C.V.Santhosh, Sujith, Pradeepan and Prem Prakash visited the house of Shamal and Sudheendral and distributed Ext.P2 pamphlet is false. Shamal and Sudheendral are workers of CPIM. Sri Sandeep, the brother of C.V.Santhosh died on 08.05.2016. Before that from 06.05.2016, C.V.Santhosh was in the hospital for looking after him. Therefore the allegation of distribution of Ext.P2 by Santhosh and others is baseless and EL.PET.NO. 12 OF 2016 34 unfounded.
25. It is further stated by RW1 that A.V.Narayanan and Padmanabhan were the polling agents of V.P.Prasad, who is an independent candidate from Azheekode Assembly Constituency and the above persons were campaigning for V.P.Prasad in the election. It is understood that when they were campaigning for V.P.Prasad at talkies road, Kannadiparamba with Noufal P M and B Ummer, the workers of CPIM detained them and the police rescued them. However, a false case was registered against them by the police. There was no defect in the nomination paper or in the affidavit in support of the nomination paper. He was never known as K.Mohammed Shaji. After 2011, his Pan Card was lost and applied for a new one by cancelling the old one. Hence he was issued with a new one and has not suppressed any facts in the affidavit. He completed the BBM Course in Al Ameen College, Bangalore University but not passed the examination. The BBM course is also known as BBA and it is only a typographical error and there is no suppression of facts. Exts.P1 and P2 were printed by M.V.Nikesh Kumar and produced before this court alleging that those exhibits were printed and published by the respondent, his election agent or other agents with his consent or his election agent's consent. The election petition is filed on an experimental EL.PET.NO. 12 OF 2016 35 basis, there is no truth in the allegations levelled against him and the witnesses examined by the petitioners are tutored and they are workers of CPIM and were speaking falsehood in this case. In cross examination he stated that C.V.Santhosh is the Secretary of DCC, Kannur, his election agent Biju Ummer was another Secretary, DCC, Kannur and Kallikodan Ragesh is the President of Chirakkal, Block Congress Committee. In cross examination RW1 admitted that he lost his first Pan Card and thereafter applied for a new one.
26. The member of Ward No.13 of Narath Grama Panchayat was examined as RW2. He deposed that there are five or six muslim families residing at talkies road. Narath Grama Panchayat is having 17 members which is ruled by CPIM and the muslim population is below 25%. He knows Ummer who is a member of CPIM branch committee and the Secretary of Foot Ball Club, 'Rising Star' and residing opposite to the residence of his mother's sister. Paramban Rajeevan and Padmanabhan are residing at Mathodam and A.V.Narayanan is residing at Kannadiparamba. The above three persons have no connection with any political party. In the year 2015, they worked for rebel candidate of INC in Ward No.12 of Narath Panchayat during panchayat election. In 2016 assembly election, they campaigned for V.P.Prasad, who is an EL.PET.NO. 12 OF 2016 36 independent candidate. On 15.05.2016, he saw them in a police vehicle between 11.15 am and 11.30 am, on enquiry, it is understood that they were restrained by local people including Baiju, Convenor of LDF Committee, Kannadiparamba while demonstrating Dummy voting machine at Kannadiparamba. Police did not seize any documents from them. But Baiju, Local Secretary handed over some pamphlets to the S.I of Police, Mayyil Police Station. According to him, the Special Squad of the Election Commission had not visited at talkies road on 15.05.2016. He admitted that he was the Convenor of UDF Election Committee of Narath Panchayat. In cross examination he admitted that when he reached there, Rajeevan, Padmanabhan and Narayanan were found near the police jeep. He did not know whether any case was registered by Mayyil Police against the said persons.
27. The Secretary of Youth Congress Azheekode Block Committee was examined as RW3. His evidence shows that he himself, Akhil, Sagunan, C.V.Santhosh, Prem Prakash campaigned for K.M.Shaji till 06.05.2016, after that he could not participate in the election campaign since his brother C.V.Sandeep was admitted at MIMS Hospital, Kozhikode who died on 08.05.2016. Sri Prem Prakash is his neighbour and he has no brother named Pradeep. There was no election campaign thereafter and no incident EL.PET.NO. 12 OF 2016 37 occured in connection with the election. No pamphlets were seized from him and others by the Special Squad on 13.05.2016 or any other dates. They have distributed the pamphlets mentioning the development works of the respondent in the constituency. The majority of the voters are hindus and he never campaigned against Nikesh Kumar by raising defamatory allegation. In cross examination, he admitted that he was a member of Pallikunnu Grama Panchayat from 2010 to 2015 representing INC and Chettipeedika comes within Ward No.6 of Pallikunnu Grama Panchayat. Now it is part of 5 th Division of Kannur Corporation. His brother C.V.Santhosh was the Secretary, District Congress Committee and he was the member of Booth Election Committee, but he did not sit in the booth. Prem Prakash is the Secretary of Chirakkal Block Congress Committee from 2016 onwards.
28. The Secretary of Chirakkal Block Congress Committee, INC and the Manager of a Scrap Company was examined as RW4. His evidence shows that C.V.Santhosh and C.V.Sumith are residing 500 metres away from his house, who are workers of INC. There is no brother named Pradeepan for C.V.Santhosh and RW3. He conducted house to house campaign with Sagunan, Akhil, Sumith and some others by distributing pamphlets and notices mentioning the development work of the respondent. He stopped the election EL.PET.NO. 12 OF 2016 38 campaign on 07.05.2016 because on that date C.V.Sandeep was shifted from MIMS Hospital to Koily Hospital and subsequently he died on 08.05.2016. The special squad never seized anything on 13.05.2016 from him or from C.V.Santhosh, C.V.Sumith and others and no legal proceedings were initiated against them.
29. RW5 is conducting a workshop at Keecheri which is 6 kms away from Valapattanam. His evidence shows that he is not a member of any political party and he is doing his interior design work mostly at Kannur area. His father as well as his brothers have no interest in any political party. One Abdulla P used to approach him to collect donation on behalf of CPIM. He knows Fazir K V, residing at Thangal Vayal who has no politics. He also know one Favaz who is doing ceiling work with gypsum board. He knows Nisham who is an electrician and he has no politics, he know Rahman who is working abroad at Dubai for the last four or five years. He has not participated in any election campaign. Noushad is a worker of CPIM who approached him for collecting donation. He had never seen Fazir, Favaz, Nisham and Rahman campaigning for election and never approached him for canvassing votes for any political party.
30. RW6 campaigned within the limits of Booth No.58 along with Padmanabhan and Narayanan. He deposed that again EL.PET.NO. 12 OF 2016 39 Azheekode seat was alloted to IUML, for that there was resentment among the congress workers. Therefore he worked for V.P.Prasad who is an independent candidate. Kallikodan Ragesh was the chief election agent of V.P.Prasad and he conducted house to house campaign with the above persons. They never visited the house of B.Ummer and Mohammed Sherif. On 15.05.2016 they were demonstrating dummy voting machine in the houses of voters at talkies road, hundreds of CPIM workers gathered there, obstructed and detained them on a misunderstanding that they were the workers of the respondent. Baiju, Local Committee Secretary called the police and they entered into the police jeep, at that time Baiju handed over bundles of notices to the police. That incident happened between 11 am and 11.30 am and police took them to the police station. After filing a complaint by Baiju, police registered a case alleging that they had distributed pamphlets containing defamatory statements against Nikesh Kumar. Actually they have not distributed any pamphlets on 15.05.2016. He is the owner of a scooter KL 13 AE 4526, he went to talkies road in that scooter and nothing was seized from that scooter. There is a distance of 12 kms between Azheekode and Kannadiparamba. In cross examination, he admitted that V.P.Prasad is not a political leader. No pamphlets were used for the EL.PET.NO. 12 OF 2016 40 election campaign of V.P.Prasad.
31. RW7 was the polling agent in booth No.58 of Azheekode Assembly Constituency. The evidence of RW7 shows that V.P.Prasad was an independent candidate who contested as a rebel candidate of UDF. K.Ragesh nominated him as the polling agent of V.P.Prasad who was the chief election agent of V.P.Prasad. Ragesh was the President of Chirakkal Block Congress Committee. RW7 is a member of INC. Since Azheekode Assembly Constituency was alloted to IUML consecutively, there was a resentment among the congress workers since the congress wanted their own candidate. Rajeevan and Padmanabhan campaigned with him for V.P.Prasad and they conducted house to house campaign. He admitted that in connection with the election campaign of V.P.Prasad, police registered a case against them. On 15.05.2016, while they were carrying a dummy voting machine, for demonstration at talkies road, Kannadiparamba, CPIM workers detained them alleging that they were working for K.M.Shaji. They seized the dummy voting machine from Rajeevan, when police came there, they took them to the police station. Nearly 100 CPIM workers gathered there and Baiju handed over a carry bag containing notice to the Sub Inspector of Police. The police never seized any pamphlets or notices from his possession or from Rajeeven or Padmanabhan. In EL.PET.NO. 12 OF 2016 41 the evening at 5 pm, Baiju filed a petition before police, thereafter police registered a case and subsequently they were enlarged on bail. They never circulated or distributed any notices or pamphlets defaming Nikesh Kumar or never influenced muslim voters to vote against him. He admitted that a crime was registered by Mayyil police alleging distribution of Exts.P1 and P2 notices against them. He admitted in cross examination that he was the Mandalam Secretary INC and was suspended from the party and removed from all official posts.
32. Learned counsel appearing for the petitioner contended that the alleged corrupt practices were proved beyond reasonable doubt by direct evidence as in a criminal charge. The direct evidence of PW3 shows that Exts.P1 and P2 were distributed in his house by Noushad in the presence of the respondent. The father of PW3 was the former Secretary and due to this personal conduct respondent visited his house. The other independent witnesses also supported the distribution of Exts.P1 and P2 pamphlets among the voters. When direct evidence of distribution by the respondent is proved, proof of separate consent by the respondent or his election agent in committing the corrupt practice is not necessary. It shows that the respondent or his election agent or any other person with the consent of the candidate or his election EL.PET.NO. 12 OF 2016 42 agent had circulated Exts.P1 and P2 pamphlets among the voters. They circulated Ext.P1 pamphlet among the muslim voters secretly and appealed to muslim voters to vote for him on the ground of his religion and not to vote for Sri M.V.Nikesh Kumar since he is not a muslim. The contents of Ext.P1 shall be deemed to cause undue influence among muslim voters and thereby interfered with the free exercise of their electoral right. Ext.P2 pamphlet was published with the consent of the respondent, his election agent or by any other persons and the statement of facts mentioned therein are false in relation to the personal character and conduct of the petitioner. They either believe the statement of facts to be false or do not believe to be true in relation to the personal character or conduct of the respondent which was calculated to prejudice the prospects of the election. Hence the election of the respondent is liable to be set aside. He relied on the decision reported in Janak Sinha V. Mahant Ram Kishore Das (1972 KHC 335), Ram Sharan Yadav V. Thakur Muneshwar Nath Singh and others (AIR 1985 SC 24) S.Harcharan Singh V. S.Sajjan Singh and others(AIR 1985 SC 236), Ram Bhual v.Ambika Singh (2005 KHC 2126), Ponnala Lakshmaiah V. Kommuri Pratap Reddy and others (2012 KHC 4358).
33. The learned counsel appearing for the respondent EL.PET.NO. 12 OF 2016 43 contended that the returned candidate or his election agent or other persons with his consent or with his agent's consent had never distributed or published Exts.P1 and P2 pamphlets in the Azheekode Assembly Constituency. They never campaigned in the name of muslim religion and never appealed to the muslim voters to refrain from voting for M.V.Nikesh Kumar since he is not a muslim candidate. The contents in Ext.P1 never cause any undue influence and no interference is made with the free exercise of the electoral right on the ground of his religion. Exts.P1 and P2 were printed and published by Nikesh Kumar or his election agent or his workers, there were no pleadings in the election petition about the statement of facts and material particulars. Each and every allegation is independent cause of action and it has to be specifically pleaded in the petition who has committed the alleged corrupt practice. There was no allegation in the petition that the returned candidate or his election agent committed any corrupt practice. Moreover, there is no pleading that some other person committed corrupt practice with the consent of respondent or his election agent. There are only general allegations in the petition and that is not sufficient for prosecuting an election petition. The name of the printer and publisher were not mentioned in the petition, if so, it is a major defect in the election petition. The EL.PET.NO. 12 OF 2016 44 pleadings and evidence are contradicting each other and the material facts totally not found in this petition. Analysing the pleadings and evidence in this case, it is found that prima facie case is not made out against the respondent and the election petition is liable to be dismissed. He relied on the decisions reported in Samant N.Balkrishna and another V. George Fernandez and others (1969(3) SCC 238), Harasingh Charan Mohanty V. Surendra Mohanty (1974 KHC 620),Azhar Hussain V. Rajiv Gandhi ( 1986 (Suppl.) SCC 315), Gajanan Krishnaji Bapat and another V. Dattaji Raghobaji Meghe and others (1995(5) SCC 347), Manohar Joshi V. Nithin Bhaurao Patil and another (1996(1) SCC 169), Uma Ballav Rath V. Maheshwar Mohanty (1999(3) SCC 357), Kalyan Kumar Gogoi V. Ashutosh Agnihotri and another (2011(2) SCC 532), Kalyan Singh Chouhan V. C.P.Joshi (2011 KHC 4068) and Anvar P V V. P.K.Basheer and others (2014 KHC 4602).
34. In this context, I may extract Section 123 of the R P Act, 1951 which reads as follows:-
Section 123 : Corrupt practices:- The following shall be deemed to be corrupt practices for the purposes of this Act:-
(1)xxxxxx (2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate EL.PET.NO. 12 OF 2016 45 or his agent, or of any other person (with the consent of the candidate or his election agent), with the free exercise of any electoral right:
Provided that-
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who -
(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of a candidate or elector within the meaning of this clause;
(b)xxxxxxx (3) The appeal by a candidate or his agent or by any other person with the consent of a candidate 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 the candidate or for prejudicially affecting the election of any candidate:
(Provided that no symbol alloted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause).
Xxxxxxxxxxxxx (4) The publication by a candidate or his agent or by any other person, EL.PET.NO. 12 OF 2016 46 (with the consent of a candidate or his election agent), of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, (***) of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election". (5) xxxxxxxxxxxx (6)xxxxxxxxxxxxx (7)xxxxxxxxxxxxx (8)xxxxxxxxxxxxx
35. Both parties in this case admitted that corrupt practices are quasi criminal charges and the proof required in such cases would be like criminal trial and allegation of corrupt practice must be proved beyond reasonable doubt. This view gains strength from the decision of the apex court in Gajanan Krishnaji Bapat and another V. Dattaji Raghobaji Meghe and others (1995(5) SCC 347) wherein it was held that though the nature of allegations in cases alleging corrupt practices are quasi-criminal and the burden is heavy on him who assails an election but unlike in a criminal trial, where an accused has the liberty to keep silent, during the trial of an election petition the returned candidate has to place before the court his version and to satisfy the court that EL.PET.NO. 12 OF 2016 47 he had not committed the corrupt practice as alleged in the petition and wherever necessary by adducing evidence besides giving his sworn testimony denying the allegations. However, this stage reaches if and when the election petitioner leads cogent and reliable evidence to prove the charges levelled against the returned candidate as only then can it be said that the former has discharged his burden. That necessarily means that if the election petitioner fails to adduce such evidence which may persuade the court to draw a presumption in his favour, the returned candidate will not be required to discharge his burden by adducing evidence in rebuttal. While on this point it will be also pertinent to mention that the election petitioner has to establish the charge by proof beyond reasonable doubt and not merely by preponderance of probabilities as in civil action. In Surinder Singh V. Hardial Singh (1985 SCC (1) 91) apex Court held, it is very well settled and uniformally accepted that charges of corrupt practices are to be equated with criminal charges and proof thereof would be not preponderance of probabilities, as in civil action, but proof beyond reasonable doubt" and if after balancing the evidence adduced there still remains little doubt in proving the charge its benefit must go to the returned candidate. Various tests have been laid down by the High Courts and by this Court to determine the EL.PET.NO. 12 OF 2016 48 extent of proof required to establish a corrupt practice. The most well-accepted test however is that the charge must be established fully to the satisfaction of the Court. While insisting upon the standard of strict proof beyond reasonable doubt, the courts are not required to extend or stretch the doctrine to such an extreme extent as to make it well high impossible to prove any allegation of corrupt practice and as was said in Harcharan Singh V. Sajjan Singh, such an approach would defeat and frustrate the very laudable and sacrosanct object of the Act in maintaining purity of the electoral process. Apex Court in another decision Ram Singh V.Col. Ram Singh (AIR 1986 SC 3) held that allegation of corrupt practice must be proved beyond all reasonable doubt like criminal case. Therefore it is true that the charge of corrupt practices are quasi criminal in character, it must be clearly pleaded in the petition and particulars should be clear and precise. The same principle was expressed by the Apex Court in Mercykutty Amma V.Kadavoor Sivadasan and others (2004(2) SCC 217), wherein the relevant observation is that "allegations of corrupt practices are quasi-criminal charges and the proof that would be required in the support thereof would be as in a criminal charge. The charges of corrupt practices are to be equated with criminal charges and proof thereof would be not preponderance of probabilities as in EL.PET.NO. 12 OF 2016 49 civil action but proof beyond reasonable doubt as in a criminal trial".
36. However, before considering the veracity of the submission made by both sides, it would be appropriate to ascertain the correctness of distribution of Exts.P1 and P2 pamphlets by the respondent, his agents or any other person. The petitioner is under an obligation to prove the commission of distribution of pamphlets by the respondent and his agents or other person for which PW1 has no direct knowledge, but he examined independent witnesses and their evidence show that there was distribution of pamphlets by the respondent and his workers in different parts of Azheekode Assembly Constituency. The evidence of PW1 shows that on 11.05.2016 at 6.30 am, Smt.N.P.Manorama, Abdul Rasheed, V.P.Noushad and other workers of INC and IUML, distributed Exts.P1 and P2 pamphlets in the house of Shameer P, Favad P.V, Faisal P.V, K.P.Dasan, Rahul K V, C.P.Gireeshan and Lincy.K. On 11.05.2016 at 6.30 am, they started the election campaign from the house of Shameer P, at that time respondent, Manorama and other members were present. On 12.05.2016 at 6.30 am, the above workers of the respondent visited the house of Jaleel P P, K.C.Salim, V.K.Shameer and distributed Exts.P1 and P2 among them. On 13.05.2016, EL.PET.NO. 12 OF 2016 50 C.V.Santhosh, Sujith, Pradeepan and Prem Prakash distributed Exts.P1 and P2 pamphlets at Pallikunnu chettipeedika area. On that day they visited the house of Shamal and Sudheendral with Exts.P1 and P2 at Chettipeedika. On 14.05.2016 Fazir K.V, Shakir V.P, Favaz, Nisham, Rehman and others campaigned at Thangal vayal area and distributed Exts.P1 and P2 in the house of Noushad, Abdulla, Abdul Rasheed and Mohammed Issak at Valapattanam. They distributed Ext.P1 secretly among the members of muslim community and informed them not to vote for M.V.Nikesh Kumar who is not a believer in islamic faith.
37. On 15.05.2016, Rajeevan P, A.V.Narayanan, Padmanabhan, Majeed K.C and Noufal T M distributed Exts.P1 and P2 notice at Kannadiparamba, the Mayyil police seized pamphlets and notices from the above persons and registered Crime No.620 of 2016 against them. In cross examination PW1 admitted that he has no direct knowledge of the distribution of the above pamphlets among the voters, but he stated that he campaigned for M.V.Nikesh Kumar on 11.05.2016, 12.05.2016, 13.05.2016, 14.05.2016 and 15.05.2016 and his party members informed him about the progress of the election work on all days after their work and interacted their experience with him in the election campaign. Hearsay evidence is inadmissible to a fact which is deposed on EL.PET.NO. 12 OF 2016 51 hearsay, but it does not necessarily preclude evidence as to a statement having been made upon which certain action was taken or certain results followed. The fundamental rule of law is that hearsay evidence is not admissible. The respondent denied the allegations of the petitioner and contended that he himself or his election agent or workers with his consent or his agents consent never published or circulated any notices or pamphlets. In this circumstance the case of the petitioner has to be tested independently of the defence version and analyse its proof with direct testimony. The respondent took a total denial in his written objection and in his oral evidence. The respondent was examined as RW1 at that time he stated that Exts.P1 and P2 notices were printed by M.V.Nikesh Kumar, his election agents and workers after election so as to file an election petition.
38. It will be advantageous to scrutinise the independent evidence of the voters of the Constituency to scan the reliability of the petitioner's evidence. PW2 is a voter in Booth No.94 of the Constituency who supported the evidence of PW1, his evidence shows that Favaz, Fazir, Nisham, Rahman, Shakir, Ashraf and others are residing at Thangal Vayal and they visited his house on 10.05.2016, 12.05.2016, 13.05.2016, 14.05.2016 and 15.05.2016. Favaz, Fazir, Rahman, Shakir, Nisham and five others EL.PET.NO. 12 OF 2016 52 visited his house on 14.05.2016 at 11.15 am and they handed over five or six notices to him, out of which Exts.P1 and P2 were separately given by Fazir, who is the President of Muslim youth league and his neighbour. Nisham is a congress worker and all others are members of muslim league and he is familiar with the workers of UDF. The evidence of PW3 shows that his father was the former Secretary of muslim league, Valapattanam Manna branch and on 11.05.2016 at 6.30 am, the respondent visited his house with Rasheed, Manorama, Noushad, Thaju and Azeez as part of election campaign. They entered into his house, at that time his father, mother, wife, sister and other members of the family came near them, the respondent talked with his father about Nikesh Kumar and requested to vote for him and not to vote for non muslim. At that time Noushad handed over six notices to PW3 as instructed by the respondent and they left the place. Manorama, who is the President of Valapattanam Grama Panchayat, was present at the time of distribution. The respondent was the sitting MLA. The evidence of PW3 shows that Exts.P1 and P2 pamphlets were handed over to him by Noushad in the presence of respondent. The respondent never denied the fact that the father of PW3 was the former Secretary of muslim league of Valapattanam Manna Branch. Thaju and Azeez are muslim league EL.PET.NO. 12 OF 2016 53 workers and he knows them from their childhood. RW1 stated that N.P.Manorama never campaigned for him in the election work or in the public meeting and never went for campaigning at Valapattanam with Abdul Rasheed, V.P.Noushad and other workers. They never distributed Exts.P1 and P2 in the house of Shameer, Favad and Faisal P.V and he had not conducted any campaigning from the house of Shameer P on 11.05.2016 at 6.30 am, with N.P.Manorama, Abdul Rasheed and V.P.Noushad. A threadbare examination of the testimony of RW1 with the evidence of PW2 and PW3, it is found that the evidence of PW2 and PW3 is trustworthy and deserving to be relied upon. The corrupt practice occured inside the house of PW3 and the rest of the distribution outside at various places. The evidence of the inmates show that the respondent was present when Exts.P1 and P2 were distributed by Noushad which is supporting the evidence of PW1. The evidence of the above witnesses were consistent and nothing has been suggested to bring any kind of improbabilities in their testimonies. By no stretch of imagination, it can be stated that the above said persons were not present at the time of distribution.
39. In this context, it is better to examine the distribution of Exts.P1 and P2 pamphlets at Booth Nos.63, 91, 92 and 98 of the EL.PET.NO. 12 OF 2016 54 Azheekode Assembly Constituency. PW4 is residing at Valapattanam within the area of booth No.92 and his evidence shows that on 11.05.2016 at 7 am, Smt.Manorama, Noushad, Rasheed, Shamal, Saifuddin and others visited his house and Noushad entrusted Exts.P1 and P2 pamphlets to him. At that time, his father, mother, wife and two children were present and Noushad told him not to vote for a non muslim and to vote for the respondent. PW4 stated that he read over the notice to his father and mother, Saifuddin is his relative and the Secretary of Muslim League of that area who accompanied the UDF workers to his house. PW5 narrated the distribution of Exts.P1 and P2 within Booth No.91 of Azheekode Assembly Constituency at Manna, Valapattanam area. His evidence shows that he is residing at Manna area and on 11.05.2016 and 15.05.2016 UDF workers visited his house. On 11.05.2016 at 6.30 am, respondent K.M.Shaji, Rasheed, Noushad, Madhusoodanan, Azeez and Thajuddin visited the house of his neighbour Shameer. After that they came out from that house, respondent talked with Manorama and thereafter he left the place in his vehicle. The remaining persons visited his house and Manorama handed over two - three notices to him, at that time his parents and younger brother joined with him. But RW1 denied the visit of UDF workers on EL.PET.NO. 12 OF 2016 55 12.05.2016 at 6.30 am, at the house of Jaleel P P, K.C.Saleel and V.K.Shameer and distribution of Exts.P1 and P2 pamphlets. PW6 is a voter in booth No.92 of the Valapattanam Grama Panchayat, his evidence shows that on 12.05.2016 at 6.30 pm, Smt Manorama, Rasheed, Noushad, Ashraff, Hashim and others visited his house and Noushad handed over five or six notices which includes Exts.P1 and P2. Noushad told him to vote for the respondent and not to vote for a non muslim. At 11 am, LDF workers L.V.Mohammed, Sasi, Mohanan, A.N.Salim and others visited his house and he handed over four notices to them. They took those notices and left the place. PW6 admitted that LDF and UDF workers visited his house on 12.05.2016 and on 15.05.2016.
40. The evidence of PW7, who is a voter in Booth No.98 shows that on 13.05.2016 at 7.30 am, C.V.Santhosh, C.V.Sumith, Prem Prakash and Pradeepan visited his house and requested to vote for the respondent, they handed over notices, thereafter they told him to read it among the family members. It is pertinent to note that Pradeepan is his friend who is residing 500 metres away from the house of C.V.Santhosh. He stated that the brother of C.V.Santhosh died on 08.05.2016 due to Liver cirrhosis. The evidence of PW9 shows that he is a voter of Booth No.63. Both LDF and UDF workers visited his house as part of election EL.PET.NO. 12 OF 2016 56 campaign. On 15.05.2016 at 7 am, UDF workers Ashraff, Padmanabhan, Rajeev, Noufal, Unni, Dasan, Narayanan visited his house and handed over voter's slip and Exts.P1 and P2 notices. Noufal entrusted Exts.P1 and P2 notices and requested to vote for the respondent. At about 10.30 am, LDF workers including PW8 Baiju, Ibrahim, Damodaran, Sharath, Rajeevan, Kandappan and others visited his house and handed over their voter's slip and notices. Analysing the evidence of PW2, PW3, PW4, PW5, PW6, PW7 and PW9 who are the voters of the constituency, it is found that Exts.P1 and P2 notices were distributed on different dates at different parts of the constituency. Even though the above witnesses were cross examined by the defence counsel, nothing has been brought out to discredit the direct oral testimony about the distribution of Exts.P1 and P2. It is the quality of evidence of the witness or witnesses, whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to admit such proof. It is the quality not the quantity of evidence which is necessary for proving or disproving a fact. Apex court in Vadivelu Thevar V. State of Madras (1957 SCR 981: AIR 1957 SC 614) held that "it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the EL.PET.NO. 12 OF 2016 57 evidence necessary for proving or disproving a fact. Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable, (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. There are exceptions to this rule, for EL.PET.NO. 12 OF 2016 58 example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable".
41. How the registration of a crime by the police and the distribution of pamphlets violating Model code of conduct can be weighed in an election petition. The senior police officer, Valapattanam Police Station was examined as PW10, who stated that on 12.05.2016 he received a petition from Abdul Nazar K T, on the basis of that he registered Crime No.1074 of 2016. The above crime was registered under Section 153 r/w 34 IPC and u/s. 127A of R P Act, 1951. Ext.P4 is the FIR and Ext.P5 is the copy of the petition. In Ext.P4, Manorama and her husband were the accused. The SHO, Valapattanam was examined as PW11, who supported the evidence of PW10 and confirmed the registration of Crime No.1074 of 2016 on 12.05.2016. The investigation was started by PW11 at 1.30 pm and he conducted a search in the house of Manorama. During search he detected notices and pamphlets kept in the verandah of her house. PW11 asked about the notices and pamphlets to Manorama and she said that it was EL.PET.NO. 12 OF 2016 59 brought for the election campaign of the respondent. He prepared a search list and removed the articles seized to the police station. The members of Special Squad visited the police station and they obtained one set of each notice and pamphlets seized from the house of Manorama. Subsequently Abdul Nazar K T handed over two notices containing arabic caption and three notices containing allegation regarding relationship between Nikesh Kumar and Saritha. Those notices were taken into custody after preparing Ext.P6 seizure mahazar and he filed final report before Judicial First Class Magistrate -II, Kannur. Even though these witnesses were cross examined, nothing has been brought out to discredit their direct evidence.
42. The Secretary, LDF, Kannadiparamba Local Committee who is a voter of Booth No.63, was examined as PW9. His evidence shows that on 15.05.2016, he conducted house to house campaign at talkies road, and reached at the house of Ummer who is a voter of booth No.63, who handed over a bunch of pamphlets to him. When he visited the house of another voter Sheriff and enquired about similar notices, he also entrusted similar notices to him. At 1.30 pm, the above UDF workers were taken into custody from talkies road with pamphlets. He filed a complaint before Mayyil police and Ext.P3 is the copy of the complaint. On the basis EL.PET.NO. 12 OF 2016 60 of that, they registered Crime No.620 of 2016. By handing over pamphlets to PW11 by PW9, it can be assumed that he conveyed further information based upon the personal knowledge of PW9, then investigating officer might have drawn his own conclusion. When compared with seized article in Crime No.1074 of 2016 of Valapattanam police, the documents seized under Ext.P6 seizure mahazar may throw light more on the points in controversy. It cannot be said by any stretch of imagination that by giving those pamphlets by PW9, he conveyed his personal knowledge after conniving with PW1 but he conveyed the information and evidence received from Ummer and Sheriff. This means he is giving additional data to the Investigating agency.
43. The officers of Model Code of Conduct of Azheekode Assembly Constituency had reported several instances of violation to the Nodal Officer. Those reports were already marked in the other Election Petition, E.P.11 of 2016. The learned counsel appearing for the petitioner submitted that E.P.11 of 2016 was filed by M.V.Nikesh Kumar against the respondent. In E.P.11 of 2016 the report of violation of MCC was marked as Ext.X1 which is marked as Ext.X3 in this case. Another violation report dated 13.05.2016 marked as Ext.X8 in E.P.11 of 2016 is marked as Ext.X4 in this case. Another violation report dated 14.05.2016 EL.PET.NO. 12 OF 2016 61 marked as Ext.X13 in E.P.11 of 2016 is marked as Ext.X5 in this case. Another violation report dated 15.05.2016 marked as Ext.X15 in E.P.11 of 2016 is marked as Ext.X6 in this case. The seizure of notice from the house of N.P.Manorama, President of Valapattanam Grama Panchayat by the police was mentioned in Ext.X3 in this case. The seized notices marked in E.P.11 of 2016 as Ext.X2 and X3, is marked as Exts.P1 and P2 in this case. The name of person who distributed Exts.P1 and P2 on 13.05.2016, 14.05.2016 and 15.05.2016 were reported by PW14 in Ext.X4, X5 and X6 in this case. PW13 stated that he had taken follow up action on the basis of Exts.X3 to X6. He also stated that on the basis of Ext.X3, he issued a show cause notice on 12.05.2016 to the respondent. The certified copy of the show cause notice marked as Ext.X6 in E.P.11 of 2016, is marked as Ext.X7 in this case. PW13 stated that he had obtained acknowledgement of the receipt of the show cause notice by the respondent in Ext.X7 by putting his signature on it. On the same day, ie 12.05.2016 he informed about the violation to the Returning Officer also. Another report marked in E.P.No.11 of 2016 as Ext.X7 is marked as Ext.X8 in this case. The violation of MCC was informed to the District Police Chief, Kannur on 14.05.2016, which was marked as Ext.X10 in E.P.11 of 2016, and marked as Ext.X9 in this case. In EL.PET.NO. 12 OF 2016 62 Ext.X9, he reported that defamatory notices and pamphlets were seized from C.V.Santhosh, Sujith, Pradeepan and Prem Prakash. The specific defence of the respondent was that the above documents were fabricated by M.V.Nikesh Kumar with the connivance of election officers after election to file an election petition, but no circumstances are brought before this court to believe that story. In cross examination it is found that different types of notices were seized from different areas by the officers of MCC and the above notices were personally scandalizing the candidate. PW10 was a senior police officer of Valapattanam police station and PW11 was the Station House Officer of that police station. They registered the case and seized the pamphlets as part of their official duty. PW13 and PW14 are the officers of Model Code of Conduct of Azheekode Assembly constituency. PW12 is also the election officer. Analysing their evidence, it is found that they discharged their official duty in good faith and no reasons are highlighted by the respondent to reject their evidence.
44. The defence of the respondent has to be legitimately taken into consideration while assessing the value of the above evidence. The respondent denied the allegations of the petitioner and contended that he himself or his election agent or workers with his consent or his agents consent never published or EL.PET.NO. 12 OF 2016 63 circulated any notices or pamphlets. In this circumstance the case of the petitioner has to be tested independently of the defence version and analyse its proof with direct testimony. The respondent took a total denial in his written objection and in his oral evidence. RW1 stated that Exts.P1 and P2 notices were printed by M.V.Nikesh Kumar, his election agents and workers after election so as to file an election petition. The distribution of Ext.P1 and P2 on 14.05.2016 by Fazir, Shakir, Favaz, Nisham and Rahiman among muslim voters at Thangal Vayal was denied by RW1 but he has no direct knowledge about it, he contended that he never gave any consent and the above persons are not members of muslim Youth League or muslim league. But PW2 know all the workers of UDF. Fazir is the President of Muslim Youth League and his neighbour. RW1 admitted that N.P.Manorama is the President and the leader of INC, but she never campaigned for him in the election work or in the public meeting and never went for campaigning at Valapattanam with Abdul Rasheed, V.P.Noushad and other workers. They never distributed Exts.P1 and P2 in the house of Shameer, Favad and Faisal P.V. Even though RW1 contended that on 11.05.2016 at 6.30 am, he had not conducted any campaigning from the house of Shameer P with N.P.Manorama, Abdul Rasheed and V.P.Noushad, in view of the EL.PET.NO. 12 OF 2016 64 direct evidence of PW2 and PW3, the above contention of RW1 has no value. RW1 contended that on 12.05.2016 at 6.30 am, UDF workers visited the house of Jaleel P P, K.C.Saleel and V.K.Shameer and distributed Exts.P1 and P2 pamphlets is false and unbelievable. But in view of the evidence of PW6, the above denial is only to be discarded. Crime No.1074 of 2016 of Baliapattam police was registered at the instance of Nikesh Kumar, his workers and agents is unsustainable in law in view of the evidence of PW10 and PW11. The visit of C.V.Santhosh, Sujith, Pradeepan and Prem Prakash on 13.05.2016 at the house of Shamal and Sudheendral and distribution of Ext.P2 pamphlet was denied by RW1 but in view of the evidence of PW7, it is found that the above persons visited the house and distributed the pamphlets as alleged. A.V.Narayanan and Padmanabhan were the polling agents of V.P.Prasad who is an independent candidate. They were campaigning for V.P.Prasad at talkies road, Kannadiparamba with Noufal P M and B.Ummer is also a false story. Apex Court in Mohanlal Pangasa V. State of UP (AIR 1974 SC 1144) held that "falsity of defence plea is a circumstance against the accused". This does not mean that respondent has to prove his case with the same rigour as the petitioner is required to prove his case, on the other hand it is sufficient if the defence succeeds in throwing a EL.PET.NO. 12 OF 2016 65 reasonable doubt on the petitioner's case which is enough to enable the court to reject the petitioner's case.
45. The discrepancies in the evidence of other defence witnesses may be considered in this context. RW2, the member of Narath Grama Panchayat admitted that Manorama is the President and Rasheed is the member of Valapattanam Grama Panchayat, both of them were elected as members of Indian National Congress. C.V.Santhosh and Biju Ummer are the Secretaries of District Congress Committee, Kannur. PW9 Ummer is a member of CPIM Branch Committee, who is residing opposite to his mother's sister's house. Paramban Rajeevan and Padmanabhan and A.V.Narayanan have no political affiliation with any party. On 15.05.2016 at 11.15 am, RW2 saw them in a police vehicle and he stated that while demonstrating dummy voting machine at Kannadiparamba, local people and Baiju, who is the convenor of LDF committee restrained them, when police came there, Baiju handed over some pamphlets to the Sub Inspector of Police, Mayyil. But the person to whom the dummy voting machine was shown was not mentioned by this witness and not examined in this case. In this context the evidence of PW8, Baiju is relevant. According to him on 15.05.2016, he visited the house of Ummer who is a voter of booth No.63, who handed over a bunch of EL.PET.NO. 12 OF 2016 66 pamphlets to him. When he visited the house of another voter Sheriff, he also entrusted similar notices to him. Both of them said that the above members of the UDF Squad were distributing pamphlets and at 1.30 pm, they were taken into custody from talkies road with pamphlets by the Mayyil police. He filed a complaint before Mayyil police and Ext.P3 is the copy of the complaint. On the basis of that, Mayyil police registered Crime No.620 of 2016. RW2 stated that the Special Squad never visited talkies road on that date, but in view of the evidence of PW14 the Charge Officer, MCC it is found that RW2 is lying before court. In cross examination he stated that when he reached at Kannadiparamba, Rajeevan, Padmanabhan and Narayanan were found near the police jeep. This inconsistent version create a doubt about the presence of RW2 at the place of occurence when they were arrested by the police.
46. Analysing the evidence of RW2 with the evidence of PW8 and PW14, there is suppression of facts found in the evidence of RW2 which is an infirmity to believe his evidence. RW2, RW3, RW4, RW6 and RW7 are congress workers and leaders of Indian National Congress of which RW6 and RW7 were working for V.P.Prasad. President INC, Chirakkal Block Committee was the chief election agent of V.P.Prasad. RW1 admitted that Kallikodan EL.PET.NO. 12 OF 2016 67 Ragesh who appointed RW6, RW7 as agents of V.P.Prasad is a strong supporter of the respondent. Speaking about the conduct of these witnesses their evidence is inconsistent with each other about entrustment of pamphlets by Baiju to the S.I, Mayyil police. PW2 deposed that Baiju handed over some pamphlets to the S.I of Police, Mayyil. RW6 stated that Baiju handed over bundles of notices to the Sub Inspector. RW7 stated that Baiju handed over a carry bag containing notices to the Sub Inspector. This witness stated that while carrying voting machine, CPM workers detained them. RW6 stated that while demonstrating dummy voting machine in the house of voters at talkies road, hundreds of CPM workers gathered and obstructed them. But RW2 stated that while demonstrating voting machine at Kannadiparamba by the workers of V.P.Prasad, local people restrained them. But they have not mentioned the person who saw the demonstration and the house they have visited. There is great danger in believing this evidence in its face value without the backing of sure circumstances. In the light of the evidence of police and the officials of MCC, the evidence of the above witness is apparently unreliable.
47. The seizure of pamphlets from R3 or from Akhil, Sagunan, C.V.Santhosh and Prem Prakash by the police or special EL.PET.NO. 12 OF 2016 68 squad on 13.05.2016 or any other date was denied by RW3. To substantiate that point the Secretary, INC Chirakkal Block Congress Committee was examined as RW4, he stated that C.V.Santhosh and C.V.Sumith are workers of Indian National Congress and he conducted house to house campaign with Sagunan, Akhil and Sumith, no pamphlets were seized from him or from Santhosh, Sumith and others. Another witness RW5 campaigned with Padmanabhan and Narayanan for V.P.Prasad, who is an independent candidate. RW6 says that V.P.Prasad is a rebel candidate of INC. The evidence of RW7 shows that Kallikodan Ragesh the President of INC, Chirakkal Block Committee was the chief election agent of V.P.Prasad. RW7 admitted that he is a member of INC and Kallikodan Ragesh nominated him as the polling agent of V.P.Prasad. Rajeevan and Padmanabhan campaigned with him for V.P.Prasad and they have not distributed pamphlets, according to them while demonstrating dummy voting machine, police arrested them and took them to the police station. The above evidence of RW4 to RW7 have to be viewed separately. RW4, RW6 and RW7 are workers of INC. In the election process there are many kinds of corrupt practices, but the defence of the persons has to be viewed separately according to the facts of the case. If RW5 and RW7 had campaigned for EL.PET.NO. 12 OF 2016 69 V.P.Prasad, no pamphlets of V.P.Prasad were seized from them by the police. Moreover, the dummy voting machine was not seized by the police when they were arrested. Against that non production of dummy voting machine, Kallikodan Ragesh or V.P.Prasad have not filed any complaint before police or to the District Election Officer. For believing the defence version of RW5 to RW7, the above facts have to be fulfilled. But in the light of the reports of the police officers, the Nodal officer and Charge Officer, the above defence contention is rejected.
48. From the evidence of independent witnesses PW2, PW3, PW4, PW5, PW6, PW7 and PW9, it is clear that the workers of the respondent visited their house and distributed Exts.P1 and P2 notices on several dates, 10.05.2016, 11.05.2016, 12.05.2016, 13.05.2016, 14.05.2016 and 15.05.2016. The UDF workers of the respondent Favaz, Fazir, Nisham, Rahiman, Shakeer, Ashraf and other workers visited the house of PW2 and handed over Ext.P1 and P2 pamphlets. Fazir is the President of Muslim League of that locality who is the neighbour of PW2. Nisham is a congress worker and others are workers of muslim league. The respondent visited the house of PW3 on 11.03.2016 at 6.30 am with other workers Manorama, Noushad, Thaju and Azeez. The father of PW3 was the former Secretary of the Muslim League. Smt.Manorama is the EL.PET.NO. 12 OF 2016 70 present Panchayat President and respondent was the MLA. Noushad handed over Exts.P1 and P2 to PW3 in the presence of the respondent. There was a discussion among the muslim members on returning from Mosque after prayers about the contents in Exts.P1 and P2. PW3 categorically stated that respondent told to him and his father not to vote for a non muslim. Thaju and Azeez are muslim league workers and he know Azeez and Rasheed from their childhood. PW4 stated that Noushad, the worker of respondent told him not to vote for a non muslim and to vote for the respondent. On 11.05.2016 at 7 am, Manorama, Noushad, Rasheed, Shamal and his relative Saifudheen and others visited his house and Noushad entrusted Ext.P2 notice to him and told him not to vote for a non muslim and to vote for the respondent. On 12.05.2016 at 6.30 am, Manorama, Rasheed, Noushad, Ashraff, Hashim and other workers of UDF in that area visited the house of PW6 and Noushad told him not to vote for non muslim and entrusted Ext.P1 notice. Another voter PW8 stated that on 15.05.2016, he conducted house to house campaign, at that time Ummer entrusted him Ext.P2 notice and he informed the matter to the Chief election agent of Nikesh Kumar. According to PW9 on 15.05.2016 at 7 am, Ashraff, Padmanabhan, Rajeevan, Noufal, Unni, Dasan, Narayanan and other UDF workers EL.PET.NO. 12 OF 2016 71 visited his house and Noufal entrusted Ext.P1 and voter's slip. Subsequently he handed over those notices to Baiju.
49. The F.I.R is an important document in the criminal law procedure and its main object is to set the criminal law in motion and from this point of view, the Investigating Officers obtain more details about the alleged criminal activity so as to bring the guilty person before law. The starting point of the powers of police to investigate cognizable offences without the order of a Magistrate is recording the first information of a cognizable offence. Therefore the purpose of registering an F.I.R is to set the criminal investigation into motion alone which culminates with the filing of final report u/s.173(2) of Code of Criminal Procedure. In this context the registration of crime No.1074 of 2016 of Valapattanam Police and Crime No.620 of 2016 of Mayyil police have to be analysed. Immediately after getting information about cognizable offence, the S.I of Police, Valapattanam proceeded to the place of occurence and conducted a search in the house of N.P.Manorama, who is the President of Valapattanam Grama Panchayat. The seized articles were produced before court after preparing a search list. The Sub Inspector disclosed that there was violation of MCC and commission of corrupt practice in the election and he took all precaution during collection of the above pamphlet and EL.PET.NO. 12 OF 2016 72 packing and forwarding the incriminating materials before Judicial First Class Magistrate, Kannur. The oral and documentary evidence of the Investigating Officer was carefully analysed by this court. The Investigating Officer enquried about the seized pamphlets to Manorama, at that time she answered that those pamphlets were brought in connection with election campaign is an admissible evidence. The Investigating Officer's power of observation of the information and collection of documents is free from any infirmities and the respondents have not challenged the veracity with convincing answers in cross examination. No procedural error was detected by the respondent in the seizure made by the police officers and the recovery is corroborating the oral testimony of the other witnesses.
50. The respondent's allegation is that the Charge Officer hatched up a conspiracy with the police and M.V.Nikesh Kumar for filing an election petition after the election. Then the question is how the police and the officers of MCC seized the above documents at Valapattanam, Kannadiparamba and other places on different dates before election. In cross examination PW14 admitted that he did not know what action was taken by the police after getting the above report, when he referred the violation of Section 127 A of R P Act, 1951. In Ext.X9 there is an EL.PET.NO. 12 OF 2016 73 acknowledgement made by the District Police Chief about the receipt of the letter dated 13.05.2016. He also stated that one Videographer was attached to each Special squad to videograph their activities. It is pertinent to note that Ext.X8 contained the seal of the office of the Returning Officer and Ext.X9 contained the signature or initial of the receiver. If the evidence of PW13 is believed, the defence of RW1 that the Returning Officer, District Police Chief, Charge Officer and the Nodal Officer are lying before court is a fairy tale suggested by the respondent. PW13 stated that he never disbelieved the Charge Officer and all the reports about distribution of pamphlets are from his personal knowledge. This evidence of the Charge officer is admissible and should be received by the Court to which it is tendered unless there is a legal reason for its rejection. Admissibility also denotes the absence of any applicable rule of exclusion. Facts should not be received in evidence unless they are both relevant and admissible.
51. The learned counsel appearing for the respondent contended that it is not permissible for the court to allow a party to conduct a roving enquiry in the absence of any pleading. While adverting to the above argument, I am of the view that the party must plead the material facts and to adduce evidence to substantiate that fact before court. On such satisfaction, the EL.PET.NO. 12 OF 2016 74 court may proceed to adjudicate upon those issues. I have also verified about the prima facie case, thereafter gone through the material facts and particulars, also verified whether the irregularities, if any, are pleaded. Respondent was given opportunity to file objection about the pleadings and only when pleadings and particulars are specifically mentioned in the petition, the court proceed to decide the right of the parties through trial. It is the settled law that a relief not pleaded in the petition should not be granted. In an election petition the decision of a case cannot be based on the grounds outside the pleadings of the parties. It is the duty of the court to verify the pleadings and thereafter setforth the issues to ascertain the corrupt practice in an election petition, when parties to the petition differ in matters. Apex Court in Kalyan Singh Chouhan V. C.P.Joshi (2011 KHC 4068), held that "Pleadings and particulars are required to enable the Court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the Court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that 'as a rule relief not founded on the pleadings should not be granted'. Therefore, a decision of a case cannot be based on grounds outside the EL.PET.NO. 12 OF 2016 75 pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ". Apex Court in Samant N.Balkrishna and another V. George Fernandez and others (1969(3) SCC 238) held that " since a single corrupt practice committed by the candidate, by his election agent or by another person with the consent of the candidate or his election agent is fatal to the election, the case must be specifically pleaded and strictly proved. If it has not been pleaded as part of the material facts, particulars of such corrupt practice cannot be supplied later on".
52. Apex Court Azhar Hussain V. Rajiv Gandhi ( 1986 (Suppl.) SCC 315), held that "On a scrutiny of the averments made in the election petition it is evident that it is not pleaded as to who has distributed the pamphlets, when they were distributed, where they were distributed and to whom they were distributed, in whose presence they were distributed etc, etc. Pleading is ominously silent on these aspects. It has not even been pleaded that any particular person with the consent of the respondent or his election agent distributed the said pamphlets (in fact it has been stated by the learned counsel for the respondent that no election agent had been appointed by the EL.PET.NO. 12 OF 2016 76 respondent during the entire elections). The pleading therefore does not spell out the cause of action. So also on account of the failure to mention the material facts, the court could not have permitted the election petitioner to adduce evidence on this point. It would therefore attract the doctrine laid down in Nihal Singh Case and there would be nothing for the respondent to answer. In view of the doctrine laid down in Nihal Singh case as early as in 1970, the High Court was perfectly justified in taking the view that no cause of action was made out. For, in the absence of material particulars as to who had printed, published or circulated the pamphlet, when, where and how it was circulated and which facts went to indicate the respondent's consent to such distribution, the pleading would not disclose a cause of action. There would be nothing for the respondent to answer and the matter would fall within the doctrine laid down in Nihal Singh case". In short when there is no pleading, the court shall not look into the evidence of the parties since the pleadings would not disclose a cause of action to decide the right of the parties.
53. The first allegation is that the respondent, his election agent, workers and other persons with the consent of the candidate or his election agent, committed corrupt practice of undue influence under Section 123(2) of R P Act 1951. It is clear EL.PET.NO. 12 OF 2016 77 that if there is any direct or indirect interference or attempt to interfere on the part of respondent, or his agent, or any other person with the consent of candidate or his election agent, with the free exercise of the electoral right, it amounts to undue influence. Apex Court in Ram Sharan Yadav V. Thakur Muneshwar Nath Singh and others (AIR 1985 SC 24), it was held that : " As the charge of a corrupt practice is in the nature of a criminal charge, it is for the party who sets up the plea of 'undue influence' to prove it to the guilt beyond reasonable doubt and the manner of proof should be the same as for an offence in a criminal case. This is more so because once it is proved to the satisfaction of a court that a candidate has been guilty of 'undue influence' then he is likely to be disqualified for a period of six years or such other period as the authority concerned under S.8A of the Act may think fit. Therefore, as the charge, if proved, entails a very heavy penalty in the form of disqualification, this Court has held that a very cautious approach must be made in order to prove the charge of undue influence levelled by the defeated candidate. The decisions show that a charge of corrupt practice has to be proved by convincing evidence and not merely by preponderance of probabilities". For ascertaining the truth it is better to scrutinise the pleadings about the alleged corrupt practice of undue EL.PET.NO. 12 OF 2016 78 influence. Before that the malayalam words used in Ext.P1 pamphlet has to be verified. It reads as follows:
"കകാരുണണ്യവകാനകായ അലകാഹുവവിനന്റെ അടൂക്കൽ അമുസവിസ്ലിംകൾക സകാനമവില.. അനണ്യ നകാളളീൽ അവർ സവിറകാതവിനന്റെ പകാലസ്ലിം ഒരവിക്കലസ്ലിം കടകകയവില.. അവർ നചെകുതകാനന്റെ കൂനട അനവി ഉറങങ്ങേണ്ടവരകാണ അഞ്ചു ങനരസ്ലിം നമസ്കരവിച്ചു നമ്മൾക ങവണ്ടവി കകാവൽ ങതേടുന്ന ഒരു മുഹവിനകായ നക.മുഹനമ്മദദ് ഷകാജവി എന്ന നക.എസ്ലിം.ഷകാജവി വവിജയവിക്കകാൻ എലകാ മുഹമവിനുകളസ്ലിം അലകാഹുവവിങനകാടു പകാർതവികക..
" സതേണ്യ വവിശശകാസവികനള ഒരു അധർമ്മകകാരവി വല വകാർതയസ്ലിം നകകാൺടു നവിങളനട അടുത്തു വന്നകാൽ നവിങ്ങേളതേവിനന പറവി വണ്യക്തമകായവി അങനശഷവിചെചെറവിയണസ്ലിം അറവിയകാനതേ എനനങവിലസ്ലിം ഒരു ജനതേക്കദ് നവിങ്ങേൾ ആപതദ് വരുത്തുകയസ്ലിം എന്നവിട്ടു ആ നചെയ്തതേവിനന്റെ ങപരവിൽ നവിങ്ങേൾ ങഖേദക്കകാരകായളീ തേളീരുകയസ്ലിം നചെയയകാതേവിരവിക്കകാൻ ങവൺടവി".. It is stated in Ext.P1(a) that there is no place for non muslim near the merciful Allah and they will not cross the bridge of 'Sirath'. They are doomed to sleep with the devil and requested the muslim voters to pray to Allah to bless the first respondent, a Muslim, who prays five times a day and stands guard over us. He quoted the EL.PET.NO. 12 OF 2016 79 wordings from quran which reads thus: "Believers, when a wrong- doer brings to you any news, you need to find the truth behind it. You do this so that you do not bring any danger to any populace unknowingly and later be forced to repent for the said deed. (Hujurath 49:06)". Multi colour photograph of the respondent and his election symbol 'ladder' were published in Ext.P1. The above facts are pleaded in paragraph 3 of the petition and PW1 stated that those pleadings are sufficient to prove the undue influence made by the respondent among the muslim voters in the constituency. I have perused Ext.P1, the caption was written in arabic language and the remaining portion was printed in Malayalam language. It is true that the same words in Ext.P1(a) are not used in the pleadings but the substance of the allegations in Ext.P1 is specifically pleaded.
54. There is no set of procedure or formula to lay down as to how a charge of undue influence can be proved, but if all the circumstances taken together show that the voters were pressurised, at the instance of either the candidate or his supporters or agents with his consent or with his agents' consent that should be sufficient ground to prove undue influence. It appears from the evidence of the above independent witnesses that the corrupt practices are made by the agent, supporters and EL.PET.NO. 12 OF 2016 80 other workers as instructed by the respondent. It amounts to say that undue influence had been committed not only by the respondent but also by his agents and workers. A person is said to be induced by undue influence where the relationship existing between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. In other words, where a person who is in a position to dominate the will of another by the verbal transaction appears on the face of it, or on the evidence, taking undue advantage such contact is an undue influence and the person in the position dominates the will of the other. Petitioner urged that the above attempt is made by the respondent directly, it shall be deemed to interfere with the free exercise of electoral right of the voters. Apex court in Ziyauddin Burhanuddin Bukhari V. Brijmohan Ramdas Mehra and others (AIR 1975 SC 1788) held that "Section 123(2) of the Representation of People Act, 1951 defines the term 'undue influence'. This could be exercised by a candidate or his agent during an election. The concept under the election laws is the same as expression as used under the Contract Act, 1872. The Courts have to determine the effect of statement proved to have been made by a candidate or on his behalf and with his consent, EL.PET.NO. 12 OF 2016 81 during his election, upon the minds and feelings of the ordinary average voters of the country in every case of alleged corrupt practice of undue influence by making statements".
55. Petitioner examined independent witnesses PW2, PW3, PW4, PW5, PW6, PW7 and PW9 to prove the allegation of undue influence. Their evidence show that the workers of the respondent visited their house and distributed Exts.P1 and P2 in their house to house campaign. PW2 in his evidence stated that on 10.05.2016, 11.05.2016, 12.05.2016, 14.05.2016 and 15.05.2016, Favaz, Fazir, Nisham, Rahiman, Shakeer, Ashraf and other workers visited his house and handed over Exts.P1 and P2 pamphlets. Fazir, the President of Muslim League, who is his neighbour, handed over notices. Nisham is a congress worker and others are workers of muslim league. The evidence of PW3 shows that the respondent visited his house on 11.05.2016 at 6.30 am with Manorama, Noushad, Thaju and Azeez and influence him. The father of PW3 was the former Secretary, Muslim League. Smt.Manorama is the Panchayat President and respondent was the MLA, Noushad handed over Exts.P1 and P2 in the presence of the respondent. There was a discussion among the muslim members about Exts.P1 and P2 while returning from Mosque after prayers. PW3 asserted that respondent told to him and his father, not to vote for a non EL.PET.NO. 12 OF 2016 82 muslim is a direct evidence of undue influence. Thaju and Azeez are muslim league workers and he knows Azeez and Rasheed from their childhood. PW4 stated that Noushad handed over Ext.P1 notice and told him not to vote for a non muslim and to vote for the respondent. On 11.05.2016 at 7 am, Manorama, Noushad, Rasheed, Shamal and his relative Saifudheen and others visited his house and Noushad entrusted Ext.P1 notice to him and told him not to vote for a non muslim and to vote for the respondent. On 12.05.2016 at 6.30 am, Manorama, Rasheed, Noushad, Ashraff, Hashim and other workers of UDF in that area visited the house of PW6 and Noushad told him not to vote for non muslim and entrusted Ext.P1 notice. On 15.05.2016 at 7 am, Ashraff, Padmanabhan, Rajeevan, Noufal, Unni, Dasan, Narayanan and other UDF workers visited the house of PW9 and Noufal entrusted Ext.P1 and the voter's slip and influenced him. This direct evidence is believable to prove undue influence of the respondent.
56. On a reading of the definition of "undue influence" in Section 123(2) of the Representation of People Act, 1951 it is understood that it cover every conceivable act which directly or indirectly interferes or attempts to interfere with the free exercise of electoral right. The words used in Ext.P1 is that there is no place for non muslim near the merciful Allah and they will not EL.PET.NO. 12 OF 2016 83 cross the bridge of 'Sirath'. They are doomed to sleep with the devil and requested the muslim voters to pray to Allah to bless the respondent, a Muslim, who prays five times a day and stands guard over us. The above words in Ext.P1 along with the request of the respondent and his workers gave a vigorous propaganda to induce an elector to believe that he will be rendered to divine displeasure or spiritual censures, if he does not vote for respondent. This position has been explained by the apex court in Krishnamoorthy V. Sivakumar and others (2015(3) SCC
467)and it was held that "If there is any direct or indirect interference or attempt to interfere on the part of the candidate, it amounts to undue influence". The substance of the allegation has to be examined whether the respondent, his agent, workers and supporters made any direct or indirect attempt to make undue influence among the voters at various places of the constituency. In Aad Lal V Kanshi Ram (AIR 1980 SC 1358) apex court held that it is an essential ingredient of the corrupt practice of 'undue influence' under Section 123(2) of the Representation of People Act, 1951 that there should be 'direct or indirect interference or attempt to interfere' on the part of the candidate or his agent, or of any other person with the consent of the candidate or his agent, 'with the free exercise of any electoral right'. The evidence of the EL.PET.NO. 12 OF 2016 84 independent witnesses show that the voters were pressurised directly and indirectly by the respondent. They said that Ext.P1 pamphlet was published among the voters, by the respondent and his agents which proves the inducement. When there is an object of divine displeasure or spiritual censures in Ext.P1, a corrupt practice under Section 123(2)(a)(ii) of the R P Act 1951 is proved.
57. The next allegation is that the respondent and his agent and other persons with the consent of the candidate or his election agent, appealed to refrain from voting for M.V.Nikesh Kumar who is a non muslim. An appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of religion, race, caste or community is a corrupt practice for the purpose of Section 123(3) of the R P Act, 1951. A candidate cannot be allowed to contest in an election on the ground of religion or caste, in this context, what are the pleadings and evidence to prove such corrupt practice have to be examined by this court. Bearing in mind first, I have examined whether there was specific pleadings in the petition about the alleged corrupt practice under Section 123(3) of the R P Act, 1951. Petitioner pleaded the substance of the allegation in paragraph 3 of the EL.PET.NO. 12 OF 2016 85 petition about the corrupt practice. The pleadings show that respondent is a Muslim, he wanted the muslim voters to vote for him on the basis of his religion, for that he appealed to the Muslim community to vote for him. It is alleged that he circulated Ext.P1 pamphlets among the voters of the Constituency. In Manohar Joshi V. Nithin Bhaurao Patil and another (1996(1) SCC 169) it was held that "in order to constitute corrupt practice, it must be pleaded that appeal was made on the ground of religion and the ingredients constituting corrupt practice must be pleaded and proved". It is stated in Ext.P1(a) that there is no place for non muslim near the merciful Allah and they will not cross the bridge of 'Sirath'. They are doomed to sleep with the devil and requested the muslim voters to pray to Allah to bless the respondent, it is asserted that he is a Muslim and prays five times a day and stands guard over us. He quoted the wordings from quran which reads thus: "Believers, when a wrong-doer brings to you any news, you need to find the truth behind it. You do this so that you do not bring any danger to any populace unknowingly and later be forced to repent for the said deed. (Hujurath 49:06)". Petitioner pleaded about the persons who distributed the pamphlets at different places of the constituency. The malayalam words used in Ext.P1 are stated in the earlier paragraph.
EL.PET.NO. 12 OF 2016 86
58. The respondent contended that the words used in Ext.P1 does not disclose any cause of action for a corrupt practice on the ground of religion. The disclosure of a cause of action in the election petition is a question of fact and the answer to that question must be found from the reading of the election petition itself. The Court trying an election petition shall examine whether the petition discloses a cause of action, to assume that the averments made in the petition are factually correct. If the averments are taken as factually pleaded, the Court finds cause of action emerging from the averments that it may be justified in the petition. In this context Apex Court held in Ponnala Lakshmaiah V. Kommuri Pratap Reddy and others (2012 KHC 4358) that the Courts are, therefore, duty bound to examine the allegations whenever the same are raised within the framework of the statute without being unduly hyper-technical in its approach & without being oblivious of the ground realities. The expression 'cause of action' has acquired a judicially settled meaning. In the restricted sense 'cause of action' means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. EL.PET.NO. 12 OF 2016 87 Compendiously, as noted above the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary, to prove each fact comprises in 'cause of action'.
59. In Raj Narain V. Indira Nehru Gandhi and Another, 1972 KHC 648: 1972(3) SCC 850 : AIR 1972 SC 1302: 1972(3) SCR 841, apex Court held that if allegations regarding a corrupt practice do not disclose the constituent parts of the corrupt practice alleged, the same will not be allowed to be proved and those allegations cannot be amended after the period of limitation for filing an election petition. Rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are not mere formulae to be observed as rituals. Beneath the words of a provision of law, generally speaking there lies a juristic principle. It is the duty of the court to ascertain that principle and implement it.
60. The independent witness PW2 who is a muslim voter in Booth No.94 deposed that UDF workers Favaz, Fazir, Nisham, Rahman, Shakeer, Ashraff and others visited his house at Thangal EL.PET.NO. 12 OF 2016 88 vayal on 10.05.2016, 12.05.2016, 14.05.2016 and 15.05.2016. On 14.05.2016 Fazir handed over Ext.P1 to him. PW3 is residing at Manna, Valapattanam within booth No.91 of the Constituency is a muslim, who deposed that the respondent himself present with others in his house on 11.05.2016 at 6.30 am. Respondent was his MLA at that time. Manorama is the present President of Valapattanam Panchayat, Rasheed, Noushad, Thaju and Azeez were also with the respondent. The father of PW3 was the former Secretary of Indian Union Muslim League, Manna, Valapattanam. His father, mother, wife, sisters and other family members were present, at that time, respondent told to PW3 and to his father, not to vote for a non muslim and vote for him. Noushad at that time handed over six notices to him and Exts.P1 and P2 were separately given to him. In the ultimate analysis, it is found that Smt.Manorama is the present Panchayat President and Noushad was the former Panchayat president of Valapattanam Grama Panchayat and both of them belong to Indian National Congress.
61. Now I would like to consider the evidence of PW4 who is residing in Ward No.9 of the Constituency. His evidence shows that on 11.05.2016 at 11 am, his relative Saifudheen and other UDF workers Manorama, Noushad, Rasheed, Shamal, and other workers visited his house and Noushad entrusted him Exts.P1 and EL.PET.NO. 12 OF 2016 89 P2 notices and told him not to vote for a non muslim candidate and to vote for the respondent. PW5 is a voter in booth No.91 and he is residing at Manna, Valapattanam. His evidence shows that the workers of respondent viz, Manorama, Rasheed, Noushad, Azeez and Thajudheen visited his house on 11.05.2016 and 15.05.2016. On 11.05.2016 at 6.30 pm, the above persons along with the respondent was present in the house of his neighbour Shameer. After visiting the house of Shameer, respondent left the place and other workers visited his house and Manorama entrusted two or three pamphlets to him and explained the details in the pamphlets and requested to vote for the respondent. Another voter PW6 who is residing at Boat jetty and a voter in booth No.92 stated that on 12.05.2016 at 6.30 am, Manorama, Rasheed, Noushad, Ashraf, Hashim and other workers of UDF visited his house, at that time Noushad handed over five or six notices which includes Exts.P1 and P2 and told him to vote for Shaji and not to vote for a non muslim. Subsequently PW6 handed over those notices to Abdul Nazar. PW7 who is residing at Pallikunnu Chettipeedika and a voter in Booth No.98 stated that on 13.05.2016 at 7.30 pm, C.V.Santhosh, C.V.Sumith, Prem Prakash and Pradeepan visited his house and handed over notice and pamphlets to him. PW9 who is a voter residing at talkies road and EL.PET.NO. 12 OF 2016 90 a voter in booth No.63 stated that on 15.05.2016 at 7 am, UDF workers Ashraff, Padmanabhan, Rajeevan, Noufal, Unni, Dasan, Narayanan and others visited his house and Noufal gave Exts.P1 and P2 notices to him and told him to vote for the respondent.
62. In this context, the word 'മുഹവി ൻ ' used in Ext.P1 has to be analysed. The word 'മുഹവിൻ ' means muslim. Muslim voters pray to Allah for the victory of the respondent, a muslim and no place for non muslim near merciful Allah is an appeal on the ground of religion. Muslim voters have to bless the respondent and cast their votes for him. This is a direct request to vote on the ground of muslim religion and a request not to vote for a non muslim. The muslims not to bless a non muslim in election means not to vote for a non muslim. This method of appeal by a candidate or his agent or by any other person with the consent of the candidate or his election agent to vote for respondent and to refrain from voting for Nikesh Kumar on the ground of religion would be corrupt practice. It is alleged that he circulated Ext.P1 pamphlets among the voters of the Constituency. In Ext.P1 it is stated that there is no place for non muslim near the merciful Allah and they will not cross the bridge of 'Sirath'. They are doomed to sleep with the devil and requested the muslim voters to pray to Allah to bless the respondent, it is asserted that the respondent is a Muslim and EL.PET.NO. 12 OF 2016 91 prays five times a day and stands guard over muslims.
63. Apex Court in S.Harcharan Singh V. S.Sajjan Singh and others(AIR 1985 SC 236) held that even a single appeal by a candidate or his agent or by any other person with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste or community etc would be corrupt practice. In Janak Sinha V. Mahant Ram Kishore Das (1972 KHC 335) it was observed that the distribution of the pamphlet appealing for votes in the name of caste was made in the presence of the appellant and the letter had, apart from distributing the pamphlet, also made an oral appeal to vote for him on the basis of caste, he being a Rajput. Therefore, the making of appeal on the basis of caste by means of the pamphlet and orally by the appellant and by his agent or supporter DW5, with his consent, is clearly established. Apex Court held in Kultar Singh V. Muktiar Singh (AIR 1965 SC 141) that appeal to voters on ground of religion can be a corrupt practice even though rival candidates belong to same religion. In Jamuna Prasad V. Lachhi Ram (AIR 1954 SC 686), it was held that special appeal made on caste basis, is minor corrupt practice. In Z.B.Bhukari V. B.R.Mehra (AIR 1975 SC 1788) it was held that appeal on grounds of religion and promoting hatred on EL.PET.NO. 12 OF 2016 92 ground of religion, is corrupt practice. Apex court in Kalamata Mohan Rao V. Narayana Rao, Dharmana (AIR 1996 SC 535) held that where returned candidate was canvassing through poster posted on walls at different places in constituencies and it was evident that contents of poster amounted to an appeal by candidate for votes on the ground of his religion.
64. The evidence of independent voters shows that the distribution of Ext.P1 pamphlet created an impression among the muslim voters of Azheekode Assembly Constituency not to vote for M.V.Nikesh Kumar, who is a non muslim. The workers of the respondent demanded the muslim voters to refrain from voting for a non muslim. The appeal by a candidate and other person with the consent of a candidate or his election agent to refrain from voting for non muslim on the ground of religion is a corrupt practice for the purpose of Section 123(3) of the R P Act, 1951. It prohibits a citizen to vote or refrain from voting for any person on the ground of caste, religion, race, community or language. It means that the religion of a candidate cannot be used for political benefits by seeking votes on the ground of candidate's religion. The electoral process is vulnerable to misuse in several ways. For obtaining the clear picture of such misuse, the court has to analyse the evidence independently then it will show that it is EL.PET.NO. 12 OF 2016 93 completely different from the real facts. If courts adopt a technical approach in election disputes, the confidence of the people will be seriously undermined not only in the democratic process but also in the judicial determination. Apex Court in several pronouncements emphasised the need to maintain the purity of election for strengthening the democratic values of this country. Several experiences have shown that the electoral process in spite of the safeguards taken by the statutory authorities often vitiated by use of means that are specifically forbidden by the statute.
65. Another allegation is that the respondent, his agent and the other workers published defamatory pamphlets and notices alleging false statement of facts to prejudice the election of M.V.Nikesh Kumar. The publication of defamatory pamphlets or notices by a candidate or his election agent or any other person with the consent of the candidate or his election agent is a corrupt practice under Section 123(4) of the R P Act 1951. The responsibility of the candidate arises if he is the publisher of the pamphlets. He is equally responsible for the publication if it is published by his agent or other person with his consent or his agent's consent. The petitioner's allegation is that the respondent or his election agent or his workers or other persons with the EL.PET.NO. 12 OF 2016 94 consent of the respondent or his election agent had published Ext.P2 pamphlet at Azheekode Assembly Constituency and the statement of facts in Ext.P2 are false and the respondent either believes to be false or does not believe to be true in relation to the personal character or conduct of M.V.Nikesh Kumar. PW1 contended that the statement in Ext.P2 are made to prejudice the election prospects of M.V.Nikesh Kumar and it is corrupt practice under Section 123(4) of R P Act 1951. The above section says about the responsibility of the candidate for the publication of any pamphlet and equally says about the responsibility of the election agent if any publication is made by him. He is also responsible where notice is published by any other person with the consent of the candidate or his election agent. According to Section 123(4) of R P Act, the agent includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate. Therefore the responsibility of the candidate is that if he either believes the statement to be false or does not believe it to be true, would be sufficient to attract the above corrupt practice.
66. The burden of proof that the candidate published defamatory pamphlet is upon the complaining person. This position has been explained by the apex court in Kumara Nand EL.PET.NO. 12 OF 2016 95 V. Brijmohan Lal Sharma (AIR 1967 SC 808), it was held as follows:-
"The burden of proving that the candidate publishing the statement believed it to be false or did not believe it to be true though on the complaining candidate is very light and would be discharged by the complaining candidate swearing to that effect. Thereafter it would be for the candidate publishing the statement to prove otherwise. The question whether the statement was reasonably calculated to prejudice the prospects of the election of the candidate against whom it was made would generally be a matter of inference. So the main onus on the election petitioner under S.123(4) is to show that a statement of fact was published by a candidate or his agent or by any other person with the consent of the candidate or his election agent and also to show that that statement was false and related to his personal character or conduct. Once that is proved and the complaining candidate has sworn as above indicated, the burden shifts to the candidate making the false statement of fact to show what his belief was. The further question as to prejudice to the prospects of election is generally a matter of inference to be arrived at by the tribunal on the facts and circumstances of each case".EL.PET.NO. 12 OF 2016 96
In Harkirat Singh V. Aminder Singh, 2006 KHC 2014 :
2005(13) SCC 511 : AIR 2006 SC 713, apex Court once again stated the distinction between material facts and particulars and declared that material facts are primary and basic facts which must be pleaded by the plaintiff while particulars are details in support of those facts meant to amplify, refine and embellish the material facts by giving distinct touch to the basic contours of a picture already drawn so as to make it more clear and informative.
67. The charge of corrupt practice constituting the ingredients are the 'material facts' and in an election petition, petitioner has to plead material facts. If a party fails to plead even a single material fact, it amounts to violation of Section 83(1)(a) of R P Act, 1951. Material particulars on the other hand are the details of the material facts already pleaded in the petition. In this backdrop, it is better to examine whether material facts are specifically pleaded in this petition. All primary facts to establish the existence of a 'cause of action' or defence by the party to prove in a trial are the material facts. Apex Court in Gadakh Yashwantrao Kankarrao V. Balasaheb Vikhe Patil and others (AIR 1994 SC 678) held as follows:- "The primary requirement of Section 123(4) are that the statement should be a 'statement of fact' which is 'false', and which the maker either 'believes EL.PET.NO. 12 OF 2016 97 to be false' or 'does not believe to be true'. If these requirements are not satisfied, the further inquiry to ascertain the satisfaction of the remaining requirements of S.123(4) serves no useful purpose. No doubt, the burden of proving the satisfaction of all these requirements is on him who alleges commission of the corrupt practice. The onus of leading evidence relating to some requirements is however light in view of their nature. Once the initial onus is discharged, the onus shifts to the other side. For proving the statement of fact to be 'false', the initial onus is discharged and the burden shifts to the other side by assertion of its falsity on oath whereafter it is for the other side to rebut the same. Similarly, the nature of belief of the maker being primarily related to the state of mind of the maker, the initial burden is discharged by an assertion on oath to that effect. If there be any circumstances relevant for proving and justifying the belief of the maker, that also would be a matter of evidence. The maker of the statement knows best the material on which his belief was formed and, therefore, it is for him to prove the same. Whether the maker of the statement believed it to be false or did not believe it to be true, is then ordinarily a matter of inference from the facts so proved". T he strictness of pleadings in election petition and the pleadings necessary to raise a triable issue of the corrupt practice under Section 123(4) of the R P Act 1951 are settled in the above decision.
68. The pleadings in paragraph 4 of the election petition EL.PET.NO. 12 OF 2016 98 starts with "veedu nokkathavanu naadu nannakkan kazhiyumo ?"
This means that "can the one who do not care his family do something for the betterment of his nation". It is also pleaded in paragraph 4 of the petition that Nikesh Kumar has illicit relationship with Saritha S.Nair who is allegedly involved in the Solar Scam and also contain the photograph of Nikesh Kumar with Saritha. It also contained the photograph of Nikesh Kumar with his wife and children. Ext.P2 also carries another caption in bold letters "vivaha mochanam". It is also published in Ext.P2 that his wife has got evidence of telephone calls and SMS messages and she will be submitting those details before court. The torn photograph of Nikesh Kumar with his wife and children is published in Ext.P2. On the top of the above family photograph, a small photograph of petitioner with Saritha S Nair is also published. In Ext.P2, the malayalam words used are as follows:-
" വളീടു ങനകാക്കകാതവനു നകാടു നന്നകാക്കകാൻ കഴവിയങമകാ ? വവിവകാഹ ങമകാചെനസ്ലിം സരവിതേ നവിങകഷദ് ബനസ്ലിം ; നവിങകഷസ്ലിം ഭകാരണ്യദ് റകാണവിയസ്ലിം തേമ്മവിൽ വവിവകാഹ ങമകാചെനതവിങലക ; വവിവകാഹ ങമകാചെന ഹർജവിനക്കകാപസ്ലിം നവിങകഷസ്ലിം സരവിതേയസ്ലിം തേമ്മവിലള്ള നൂറു കണക്കവിനു ങഫകാൺ ങകകാളകളൂനട ങരഖേ റകാണവി ങകകാടതേവിയവിൽ സമർപവികനമന്നു സൂചെന;".EL.PET.NO. 12 OF 2016 99
The corrupt practice under Section 123(4) of R P Act is pleaded in paragraph 4. The material particulars are specifically pleaded in the different paragraphs of the election petition. Several incidents of distribution and the person who distributed Ext.P2 and the person who stocked Ext.P1 and P2 were specifically pleaded in this petition. Even though first respondent contended that the petition lacks proper pleadings about material facts and material particulars to attract a corrupt practice under Section 123(4) of R P Act, 1951 on a perusal of the petition, it is clear that the details are pleaded in consonance with the corrupt practice.
69. The evidence of independent witnesses shows that the workers of the respondent visited the houses of the voters and distributed defamatory pamphlets. Favaz, Fazir, Nisham, Rahiman, Shakeer, Ashraf and other workers visited the house of PW2 on 10.05.2016, 11.05.2016, 12.05.2016, 13.05.2016, 14.05.2016 and 15.05.2016, but on 14.05.2016 at 11.15 am Favaz, Fazir, Nisham, Rahman, Shakeer, Ashraf and others visited his house and Fazir handed over Ext.P2. Fazir is the President of Muslim League who is the neighbour of PW2. Nisham is a congress worker and others are workers of muslim league. PW2 is a muslim voter in booth No.94 of the Azheekode Assembly Constituency. The evidence of PW3 shows that Manorama, Noushad, Thaju and EL.PET.NO. 12 OF 2016 100 Azeez visited the house of PW3 on 11.05.2016 at 6.30 am. The father of PW3 was the former Secretary of the Muslim League. Smt Manorama is the Panchayat President and respondent was the MLA, in their presence Noushad handed over Exts.P1 and P2 to PW3. There was a discussion among the muslim members on returning from Mosque after prayers about the contents in the pamphlets. PW3 is a muslim voter, he stated that respondent instigated Noushad to distribute the defamatory pamphlets. Thaju and Azeez are muslim league workers and he knows Azeez and Rasheed from their childhood. PW4 also admitted that he received Ext.P2 notice. Noushad, the worker of respondent distributed notices to him and requested to vote for the respondent. PW4 also stated that on 11.05.2016 and 15.05.2016, UDF workers visited his house. On 11.05.2016 at 7 am, Manorama, Noushad, Rasheed, Shamal and his relative Saifudheen and others visited his house and Noushad entrusted Ext.P2 notice to him and told him to vote for the respondent. PW6 stated that on 12.05.2016 at 6.30 am, Manorama, Rasheed, Noushad, Ashraff, Hashim and other workers of UDF in that area visited his house and Noushad entrusted notices. PW8 stated that on 15.05.2016 he conducted house to house campaign, at that time Ummer entrusted him Ext.P2 notice and he informed the matter to Chief election agent EL.PET.NO. 12 OF 2016 101 of Nikesh Kumar. PW9 stated that on 15.05.2016 at 7 am, Ashraff, Padmanabhan, Rajeevan, Noufal, Unni, Dasan, Narayanan and other UDF workers visited his house and Noufal entrusted the above pamphlets and voter's slip. Subsequently he handed over those notices to Baiju. PW11 admitted that Abdul Nazar K T handed over Exts.P1 and P2 notices on 12.05.2016, after preparing Ext.P6 seizure mahazar, the notices were taken into custody. PW13 also stated that he received the report about the seizure of pamphlets from PW14 on 12.05.2016, 13.05.2016, 14.05.2016 and 15.05.2016 from different parts of the constituency which was seized by him as part of his official duty. The evidence of Charge Officer also shows that he seized the above notice on 12.05.2016, 13.05.2016, 14.05.2016 and 15.05.2016 from different parts of the constituency. It appears from the above evidence that the charge of corrupt practice by the respondent, his agent, supporters and other workers are proved in this case and the workers distributed the pamphlets as instructed by the respondent.
70. In Vadivelu Thevar's case (supra) it was held that the court is concerned with the quality of evidence and not with the quantity of the evidence necessary for proving or disproving a fact. In this case oral testimony was classified into three categories, EL.PET.NO. 12 OF 2016 102 namely (1) wholly reliable, (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable. If the evidence is wholly reliable, the court should have no difficulty in coming to its conclusion either it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. If it is unreliable, the court has no difficulty in coming to its conclusion. But if the evidence is neither wholly reliable nor wholly unreliable, the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. In certain cases there may arise situations where only a single person is available to give evidence in support of a disputed fact. In that circumstance, the court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The apex court also stated exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, EL.PET.NO. 12 OF 2016 103 suspect, being that of a participator in crime. But, where there are no such rules, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is reliable.
71. The evidence of PW1 shows that Ext.P2 and other pamphlets were circulated by the respondent and other workers of the respondent with the consent of the respondent or his agent on 11.05.2016, 12.05.2016, 13.05.2016, 14.05.2016 and on 15.05.2016. The facts published in Ext.P2 pamphlet have affected the personal character and conduct of M.V.Nikesh Kumar and his family. PW1 stated that the respondent believes that the facts published in Exts.P2 are false and untrue which affected the reputation of the candidate and his election prospects. It is stated in Ext.P2 that Nikesh Kumar has relationship with one Saritha, an accused in solar scam, for that reason his wife is going to file a divorce petition before family court. Smt Saritha is an accused in the solar scam case which was a major issue in 2016 General Assembly Election in Kerala. It is significant to note that the facts published in Exts.P2 pamphlets are false and untrue with intention to defame the reputation of the candidate and it created a misunderstanding among the voters. The independent witnesses PW2, PW3, PW4, PW5, PW6, PW7 and PW9 are voters of the constituency, they stated that on reading the contents in Ext.P2, EL.PET.NO. 12 OF 2016 104 a wrong impression was created in their mind about Nikesh Kumar. When the workers of LDF visited their house in connection with election campaign, some of the voters asked how they could cast vote for such a candidate like Nikesh Kumar and enquired whether he was of such a character. Analysing their evidence it is found that the statement of facts mentioned in Ext.P2 created bad impression among voters. RW1 was present in the house of PW3 when Ext.P2 was given in his house. The present President and former President of Valapattanam Grama Panchayat were present when Ext.P2 was served in that house. RW1 was aware of the facts in Ext.P2 and he believed it to be false or did not believe it to be true. This falsity of belief of the maker at the time of making the statement of facts is enough to attract a corrupt practice under Section 123(4) of the R P Act, 1951. PW1 in his evidence deposed that the statement was false and not about the hypothetical future possibility of the candidate. The belief of RW1 about the falsity or the lack of belief in its truth is clear from his reply which was admitted by RW1 in his written statement. RW1 admitted that all facts stated in Ext.P2 are related to the personal character of the candidate. This statement was made reasonably calculated to prejudice the election prospects of the candidate. Analysing the evidence of the voters PW2, PW3, PW4, PW5, PW6, EL.PET.NO. 12 OF 2016 105 PW7 and PW9 false statement has been published and the requirement of all ingredients attracting Section 123(4) is fulfilled in this case.
72. In Mohan Singh V. Bhanwarlal (AIR 1964 SC 1366) it was held that in considering whether a publication amounts to a corrupt practice within the meaning of Section 123(4) of the Representation of People Act, 1951, the Tribunal would be entitled to take into account matters of common knowledge among the electorate and read the publication in that background, for one of the ingredients of the particular corrupt practice is the tendency of the statement in the publication to be reasonably calculated to prejudice the prospects of that candidate's election. The test in cases under Section 123(4) is whether the imputation beside being false in fact, is it published with the object of lowering the candidate in the estimation of the electorate and calculated to prejudice his prospects at the election. And in ascertaining whether the candidate is lowered in the estimation of the electorate, the imputation made must be viewed in the light of matters generally known to them.
73. The respondent contended that the name of the press and the place where the pamphlets were printed was neither pleaded nor proved. A perusal of Exts.P1 and P2 pamphlets show EL.PET.NO. 12 OF 2016 106 that the place where it was printed was not mentioned, but it is stated that the above pamphlets were published by "President, Indian Overseas Congress, Kannur Jilla Committee". The evidence of RW1 shows that no such organization functions at Kannur and Indian National Congress has no such organization in Kannur. It is an admitted fact that Valapattanam police and Mayyil police had seized pamphlets on different dates, but they have not taken any action against the person who printed those pamphlets. When Ext.P1 and P2 pamphlets are distributed in the presence of the returned candidate, the only inference that can be drawn is that the publication was made with the consent of the respondent. Therefore the direction could have come from the respondent or his election agent. In such situation, the question of publication and distribution can be considered on the basis of evidence of independent witnesses PW2, PW3, PW4, PW5, PW6, PW7 and PW9 available in a case. Apex Court in Rahim Khan's case (supra) held in paragraphs 35 and 37 as follows:-
"35. Unfortunately when such printed material is circulated there is no agency of the law which takes prompt action after due investigation, with the result that no printer or candidate or other propagandist during elections bothers about the law and he is able successfully to spread scandal without a trace of the source, knowing that nothing will happen until long after the election, when EL.PET.NO. 12 OF 2016 107 in a burdensome litigation this question is raised. Timely enforcement is as important to the rule of law as the making of legislation. We may conclude by holding that we accept Exhibits P.18 and P.19 as genuine and concomitantly find that the handbills containing injurious statements were in existence on or before the 10th of March. The only question that remains is whether a nexus is established between these handbills and the appellant and the factum of their pre-poll circulation by him or his agents is proved".
While answering the question of not pleading the name of the person and press where Exts.P1 and P2 were printed, the finding in respect of the decision of the Apex Court in Virendra Singh V.Vimal Kumar (AIR 1976 SC 2169) is relevant. Therefore failure to plead the name of the printer is not detrimental and not a ground to discard the direct evidence of distribution.
74. In this context this court considered whether the distribution of the pamphlets by the workers of the respondent was reasonably calculated to prejudice the election prospects of M.V.Nikesh Kumar. Petitioner contended that even though he had pleaded about distribution, he could not trace out the printer, but the seizure of pamphlets from the house of N.P.Manorama, who is the leader of Indian National Congress and President of Valapattanam Grama Panchayat, the seizure from the possession of the workers of UDF by the police and officers of MCC, from the EL.PET.NO. 12 OF 2016 108 direct evidence of PW2, PW3, PW4, PW5, PW6, PW7 and PW9 it is presumed that the workers have specific plan and the returned candidate or his agent might have given direction for distribution. An important point to be considered in this context is that returned candidate was present in the house of PW3 and Noushad distributed Exts.P1 and P2 to him, it shows that the respondent had given consent for commission of corrupt practice. Then the question is, in the circumstances of the case whether the respondent had knowledge of the alleged corrupt practice on various days. PW1 stated that RW1 or his agent had given consent to the workers to distribute the pamphlets. The respondent argued that consent cannot be inferred, but must be proved with convincing evidence. Here the acts reported to have committed were numerous and on several days. On 12.05.2016, PW13 had given a show cause notice to RW1 after seizing pamphlets from the house of N.P.Manorama by Valapattanam police and RW1 signed in it. Even after receipt of the show cause notice, there was distribution of pamphlets on 13.05.2016, 14.05.2016 and 15.05.2016 by the UDF workers in the Constituency. The report submitted by the Sub Inspector of Police, Valapattanam and the Sub Inspector of Police, Mayyil are admissible. The police had seized the pamphlets from the workers EL.PET.NO. 12 OF 2016 109 of the respondent and they were taken into custody by the police. In an election petition for supporting the grounds of corrupt practice, if those documents were produced as evidence before court, such evidence is admissible. It is presumed that such seizure reports satisfied the conditions of Section 160 of the Evidence Act. Apex Court in Kanti Prasad Jayasankar Yagnik V. Purushotham Das Ranchhoddas Patel (AIR 1969 SC 851) considered a similar set of facts, in that case the notes of speeches made by certain persons during election campaign were taken down by the police and reported to their officers. Apex Court held that the said report is admissible to prove the ground of corrupt practice alleged in the petition. From the above facts, it is clear that the above acts were done with specific design and the respondent had consented to the above acts.
75. Another ground taken by the petitioner is that there is violation of Section 4A of the Conduct of Election Rules, 1961. According to the section, the candidate or his proposer shall at the time of delivering to the Returning Officer, the nomination paper under sub-section (1) of section 33 of the Act, also deliver to him an affidavit sworn by the candidate before a Magistrate of the First Class or a Notary in Form No.26. PW1 deposed that there is violation of Rule 4 of Conduct of Election Rules. There was EL.PET.NO. 12 OF 2016 110 suppression of material facts in the affidavit filed before Returning Officer. The respondent filed nomination paper without complying Rule 4A of Conduct of Election Rules, 1961. In the affidavit, there is suppression of facts in mentioning the Pan Card number. He also gave false information about his educational qualification. In cross examination PW1 admitted that he has no direct knowledge about the information. RW1 deposed that after 2011, his Pan Card was lost and he applied for a new one by cancelling the old one. Hence he was issued with a new one and has not suppressed any facts in the affidavit. He appeared for BBM Course in Al Ameen College, Bangalore University but not passed. The BBM course is also known as BBA and it is only a typographical error and there is no suppression of facts. The Returning Officer, Azheekode Assembly Constituency was examined as PW12 who produced the original of Form No.26 affidavit submitted by respondent in 2011 assembly election which was marked as Ext.X1. In Ext.X1, the Pan Card number is mentioned as APQPK1630M which is marked as Ext.X1(a). In column No.6 of page No.8 of Ext.X1, the same Pan Card number is mentioned which is marked as Ext.X1(b). The original Form No.26 of respondent in 2016 assembly election is marked as Ext.X2. In page No.2 of Ext.X2, the Pan Card number is mentioned as EDWP 6273A, which is marked as Ext.X2(a). In page EL.PET.NO. 12 OF 2016 111 No.10 of Ext.X2 in column No.10, the educational qualification is stated as 'BBM Course not completed', which is marked as Ext.X2(b). In page No.12 of Ext.X2, part B, column No.10, the educational qualification is marked as 'BBA, Bangalore University not completed'. That portion is marked as Ext.X2(c). In cross examination PW12 admitted that he has no knowledge about the truth or veracity of the contents of Exts.X1 and X2. He never verified the correctness of Exts.X1(a), X1(b), X2(a) or X2(b). The respondent stated that he obtained a new pan card on losing the first one. The Income Tax department is the competent authority to issue the pan card, they were not examined to prove the issuance of the new pan card. Therefore the testimony of RW1 is admissible and there is no legal impediment to reject his plea about his pan card and educational qualification. Moreover, PW12 has also no information about the facts. However considering the evidence of RW1 it is found that there is no violation of section 4A of the Conduct of Election Rules.
76. In the instant case, another ground advanced by the petitioner is that there is violation of S.127A of the R P Act, 1951. 127A. Restrictions on the printing of pamphlets, posters, etc.- (1) No person shall print or publish, or cause to be printed or published, any election pamphlet or poster which does not bear EL.PET.NO. 12 OF 2016 112 on its face the names and addresses of the printer and the publisher thereof.
(2) No person shall print or cause to be printed any election pamphlet or poster -
(a) unless a declaration as to the identity of the publisher thereof, signed by him and attested by two persons to whom he is personally known, is delivered by him to the printer in duplicate; and
(b) unless, within a reasonable time after the printing of the document, one copy of the declaration is sent by the printer, together with one copy of the document, -
(i) where it is printed in the capital of the State, to the Chief Electoral Officer; and
(ii) in any other case, to the district magistrate of the district in which it is printed.
(3)For the purposes of this section, -
(a) any process for multiplying copies of a document, other than copying it by hand, shall be deemed to be printing and the expression "printer" shall be construed accordingly; and
(b) "election pamphlet or poster" means any printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of EL.PET.NO. 12 OF 2016 113 candidates or any placard or poster having reference to an election, but does not include any hand-bill, placard or poster merely announcing the date, time, place and other particulars of an election meeting or routine instructions to election agents or workers.
(4) Any person who contravenes any of the provisions of sub- section (1) of sub-section (2) shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both).
77. The restriction on the printing of pamphlets, posters are specifically mentioned under Section 127A of R P Act, 1951. According to the section, no person shall print or publish or cause to be printed or published any election pamphlet or poster which does not bear the name and address of the printer and the publisher thereof. Moreover no person shall print or cause to be printed any election pamphlet or poster unless a declaration as to the identity of the publisher thereof signed by him and attested by two persons to whom he is personally known is delivered by him to the printer in duplicate. After printing of the document, a copy of the declaration with one copy of the document within a reasonable time after printing shall be forwarded to the chief electoral officer if it is printed in the Capital of the State or in any EL.PET.NO. 12 OF 2016 114 other case to the District Magistrate of the District where it is printed. Any person who contravenes any of the provisions of the above section shall be punishable under Section 127A of the R P Act, 1951. Petitioner contended that respondent printed and published Exts.P1 and P2 pamphlets and other notices and circulated among the voters. At the bottom of the pamphlet, the name of the printer is mentioned as Printing and Publishing, President Indian Overseas Congress, Kannur Jilla Committee to make it appear that it was not printed by the respondent or his agent. RW1 who denied the allegation of printing and publishing, deposed before court that he happened to see Exts.P1 and P2 for the first time when he received the election petition. Moreover, Exts.P1 and P2 were printed and published by the petitioner only to make out a cause of action for filing an election petition. Petitioner's witness did not depose about the identity of the printer. Analysing the oral evidence of PW1, without backing of an independent evidence or documents to prove the printing, I am of the view that it is dangerous to rely that part of petitioner's evidence to prove printing and publishing by the respondent. It is for the petitioner to prove the name of the printer and publisher beyond reasonable doubt, then only the court can fasten liability upon the respondent. Therefore I am of the opinion that the EL.PET.NO. 12 OF 2016 115 presence of the respondent in the house of PW3 and the distribution of Exts.P1 and P2 by Noushad itself are not sufficient to presume that the notices were printed by the respondent or his agent. In the circumstance, I am of the view that no violation under Section 127A is proved against the respondent. Points 5 and 6
78. There are many kinds of corrupt practices provided under section 123 of the R P Act 1951, but the corrupt practices are viewed separately as to who commits them. The corrupt practices may be committed by the candidate or his election agent or any other person with the consent of the candidate or his election agent. If this corruption is proved, the election of the candidate shall be set aside without waiting for any further condition being fulfilled. If the corrupt practice is committed by an agent other than an election agent, in the presence of the candidate, in such cases the additional fact of consent need not be proved. Apex Court in Uma Ballav Rath V. Maheshwar Mohanty (1999(3) SCC 357), it was held that "to avoid an election, it is necessary that cogent evidence is led in support of the charge. An election cannot be set aside on "presumptions", surmises or conjectures. Clear and cogent proof in support of the allegations is essential".
EL.PET.NO. 12 OF 2016 116
79. Analysing the evidence of the independent witnesses, it is found that the respondent or his agent and his workers, who are agents, with the consent of the candidate or his election agent distributed Exts.P1 and P2 pamphlets at different parts of the constituency on 10.05.2016, 11.05.2016, 12.05.2016, 13.05.2016, 14.05.2016 and 15.05.2016. The evidence of PW3 shows that the respondent was present in the house of PW3 on 11.05.2016 at 6.30 am with Manorama, the President of Valapattanam Panchayat and in their presence, Noushad handed over Exts.P1 and P2 pamphlets to PW3. This happened because the father of PW3 was the former Secretary of IUML, Manna ward. The distribution of Exts.P1 and P2 pamphlet on 11.05.2016 in the house of PW4 by Manorama, Noushad, Rasheed and Shamal along with Saifudheen was proved by PW4. It is pertinent to note that Saifudheen is the relative of PW4. This evidence of PW3 and PW4 is admissible unless there is reason for its rejection. The distribution of Exts.P1 and P2 on 12.05.2016 at 6.30 am by Manorama, Rasheed, Noushad, Ashraff, Hashim and other workers of the respondent was proved by the evidence of PW6. The distribution of Exts.P1 and P2 on 13.05.2016 at 7.30 am by the UDF workers C.V.Santhosh, Prem Prakash, C.V.Sumith and Pradeepan was proved through PW7. The distribution of Exts.P1 EL.PET.NO. 12 OF 2016 117 and P2 on 14.05.2016 in the house of PW2 by Fazir is proved by the evidence of PW2. According to PW2, Fazir is his neighbour and the President of IUML. Nisham is a congress worker and others are workers of IUML. The distribution of Exts.P1 and P2 by Ashraf, Padmanabhan, Rajeevan, Noufal, Unni, Narayanan on 15.05.2016 at 7 am in the house of PW9 by Noufal was proved through the evidence of PW9. The evidence of the official witnesses PW10, PW11, PW12, PW13 and PW14 corroborates the evidence of the above independent witnesses. While appreciating the evidence of PW2, PW3, PW4, PW6, PW7 and PW9 their version is believable, no enmity or personal interest were attributed against these witnesses by the respondent in his cross examination. It appears from the above evidence that the charge of distribution of Exts.P1 and P2 by the respondent, his agents, supporters and workers with the consent of the respondent or his election agent is proved beyond reasonable doubt.
80. The totality of the direct evidence about the distribution of Exts.P1 and P2 and the direct interference on the part of the respondent or his election agent or workers of the UDF with the consent of the candidate or election agent with the free exercise of the electoral right and circulation of the pamphlet in the muslim houses shows that respondent committed corrupt practice. They EL.PET.NO. 12 OF 2016 118 induced the muslim voters to believe that they will be rendered to an object of divine displeasure or spiritual censures, if they vote for M.V.Nikesh Kumar which constitutes a corrupt practice under Section 123(2)(a)(ii) of the R P Act 1951. They appealed to the muslim voters not to vote for M.V.Nikesh Kumar and to refrain from voting for a non muslim which is an appeal on the ground of religion and a corrupt practice. The above act of appeal by a candidate or his agent or any other person with the consent of the candidate or his election agent to vote for him or refrain from voting for any other person on the ground of religion is a corrupt practice under Section 123(3) of R P Act 1951. Besides this, the respondent, his agent or any other person with the consent of the candidate or his election agent had published Ext.P2 pamphlet among the voters and the statement of facts stated therein is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of M.V.Nikesh Kumar and thereby committed a corrupt practice under S.123(4) of the R P Act 1951. In Ram Sharan Yadav V. Thakur Muneshwar Nath Singh and others (AIR 1985 SC 24) it was held that the charge of a corrupt practice is in the nature of a criminal charge, and once it is proved to the satisfaction of a court that a candidate has been guilty of 'undue influence' then he is EL.PET.NO. 12 OF 2016 119 likely to be disqualified for a period of six years or such other period as the authority concerned under S.8A of the Act may think fit. Therefore the charge, if proved, entails a very heavy penalty in the form of disqualification, therefore the apex Court has held that the court must be very cautious in its approach. Assessing the evidence in its cumulative effect it is found that the petitioner proved the allegation of corrupt practice under section 123(2)(a)
(ii), 123(3) and 123(4) of the R P Act, 1951 beyond reasonable doubt and the election of the respondent is liable to be set aside thereunder.
In the result, the election of the returned candidate is declared void under the following conditions:-
1) The election of the returned candidate from (10) Azheekode Assembly Constituency is declared void and set aside under Section 100(1)(b) and under Section 100(1)(d)(ii) of the Representation of People Act, 1951 for having committed corrupt practice under Section 123(2)(a)(ii), 123(3) and 123(4) of the Representation of People Act 1951.
2) This disqualification on the ground of corrupt practice by the respondent shall be submitted to the appropriate authority for forwarding it to the EL.PET.NO. 12 OF 2016 120 President of India for appropriate action under Section 8A of the Representation of People Act, 1951.
3) The respondent has already been disqualified from contesting in any election for a period of six years vide judgment of this court dated 09.11.2018 in E.P.No.11 of 2016, hence no further directions are warranted.
4) The respondent shall pay a cost of Rs.50,000/- to the petitioner, T.V.Balan.
5) The High Court shall intimate the substance of the decision to the Election Commission of India and the Speaker of the Kerala Legislative Assembly and send a copy of the same to the Election Commission and Speaker forthwith.
sd/-
P.D.RAJAN JUDGE LGK EL.PET.NO. 12 OF 2016 121 PETITIONER(S) WITNESSES :
PW1 : T.V.BALAN, S/O CHATHU
PW2 : ABDULLA P., S/O KATHEEM
PW3 : SHAMEER P., S/O GAFOOR
PW4 : SAVAD P.V., S/O ABDULLA
PW5 : RAHUL K.V., S/O MOHANAN
PW6 : JALAL, S/O MOIDEEN
PW7 : SHAMEL, S/O BHASKARAN
PW8 : K.BAIJU, S/O RAGHAVAN
PW9 : UMMAR, S/O HAMSA
PW10 : VINESH M., S/O PAVITHRAN, SENIOR C.P.O., POLICE CONTROL ROOM, KANNUR.
PW11 : SREEJITH KODERI, S/O SREEDHARAN NAMBIAR, S.I., VALAPATTANAM POLICE STATION.
PW12 : K.H. MICHAEL, S/O JOSEPH, RETURNING OFFICER, AZHEEKODE ASSEMBLY CONSTITUENCY.
PW13 : DINESHAN H., S/O RAGHAVAN, DEPUTY COLLECTOR (LR), COLLECTORATE, KASARAGOD.
PW14 : SHAJU K.V., S/O KUNHIRAMAN, DEPUTY TAHSILDAR (ELECTION), TALUK OFFICE, KANNUR.
RESPONDENT(S) WITNESSES :
RW1 : K.M. SHAJI, S/O BEERANKUTTY.
RW2 : ASHKAR C.M., S/O ABOOBACKER.
RW3 : C.V.SUMITH, S/O PADMANABHAN.
RW4 : PREM PRAKASH, S/O SREEDHARAN.
RW5 : MOHAMMED SHAKKIR B.P., S/O MOHAMMED ISHAQUE.
RW6 : P.RAJEEVAN, S/O SREEDHARAN.
RW7 : A.V.NARAYANAN, S/O OTHENAN.
EL.PET.NO. 12 OF 2016 122
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE I PAMPHLET WITH CAPTION IN ARABIC, WHICH CAN
BE TRANSLATED IN ENGLISH AS "MAY THE
PEACE, MERCY AND BLESSINGS OF ALLAH BE
WITH YOU" AND " IN THE NAME OF ALLAH, THE
MOST BENEVOLENT AND THE MOST MERCIFUL"
PUBLISHED AND DISTRIBUTED BY THE
RESPONDENT, HIS AGENT AND OTHER PERSONS
WITH HIS CONSENT IN DIFFERENT PART OF THE
CONSTITUENCY DURING THE COURSE OF ELECTION
CAMPAIGN.
ANNEXURE I (a) TRUE AND CORRECT ENGLISH TRANSLATION OF
ANNEXURE-I
ANNEXURE II PAMPHLET WITH THE CAPTION IN MALAYALAM
"VEEDU NOKKATHAVANU NADU NANNAKKAN
KAZHIYUMO ? " PUBLISHED AND DISTRIBUTED BY
THE RESPONDENT, HIS AGENTS AND OTHER
PERSONS WITH HIS CONSENT IN DIFFERENT
PARTS OF THE CONSTITUENCY DURING THE
COURSE OF ELECTION CAMPAIGN FOR THE
RESPONDENT.
ANNEXURE II (a) TRUE AND CORRECT ENGLISH TRANSLATION
ANNEXURE-II
ANNEXURE III A TRUE COPY OF THE FORM - 26 AFFIDAVIT
SWORN BY THE RESPONDENT.
ANNEXURE IV CHELAN RECEIPT DATED 4/7/2016 EVIDENCING
THE DEPOSIT OF RS. 2000/- AS SECURITY
BEFORE THIS HON'BLE COURT.
EXHIBIT P1 PAMPHLET WITH CAPTION IN ARABIC
EXHIBIT P1(a) TRUE AND CORRECT ENGLISH TRANSLATION OF
EXT. P1
EXHIBIT P2 PAMPHLET WITH CAPTION IN MALAYALAM "VEEDU
NOKKATHAVANU NADU NANNAKKAN KAZHIYUMO"
EXHIBIT P2(a) TRUE AND CORRECT ENGLISH TRANSLATION OF
EXT. P2
EXHIBIT P3 CERTIFIED COPY OF PETITION FILED BY BAIJU
K. BEFORE MAYYIL POLICE STATION DATED
15.5.2016
EL.PET.NO. 12 OF 2016 123
EXHIBIT P4 CERTIFIED COPY OF F.I.R. IN CRIME NO.
1074/2016 DATED 12.5.2016 OF VALAPATTANAM
POLICE STATION.
EXHIBIT P5 CERTIFIED COPY OF PETITION FILED BY ABDUL
NASAR BEFORE S.H.O, VALAPATTANAM DTD.
12.5.2016
EXHIBIT P6 CERTIFIED COPY OF SEIZURE MAHAZAR DATED
13.5.2016 OF PAMPHLET (WITH ARABIC
CAPTION).
EXHIBIT P6(a) CERTIFIED COPY OF SEIZURE MAHAZAR DATED
13.5.16 PAMPHLET (WITH MALAYALAM CAPTION)
OTHER EXHIBITS:
EXHIBIT X1 AFFIDAVIT OF K.M. SHAJI IN FORM 26 DATED
26.3.2011.
EXHIBIT X1(a) PAGE 2, COLUMN 1 OF THE AFFIDAVIT, X1
EXHIBIT X1(b) PAGE 8 OF THE AFFIDAVIT, X1
EXHIBIT X2 AFFIDAVIT OF K.M. SHAJI DATED 27.4.16 FILED
ALONG WITH NOMINATION PAPER.
EXHIBIT X2(a) PAGE 2, COLUMN 1 (PAN CARD NO. ) IN
AFFIDAVIT X2.
EXHIBIT X2(b) PAGE 10,EDUCATIONAL QUALIFICATION SHOWN IN
AFFIDAVIT, X2.
EXHIBIT X2(c) PAGE 12, COLUMN 10(1) OF AFFIDAVIT X2.
EXHIBIT X3 COPY OF EXT. X1 IN E.P. NO.11/2016. (REPORT OF MCC SQUAD DTD. 12.5.2016).
EXHIBIT X4 COPY OF EXHIBIT X8 IN EP. NO.11/2016 (REPORT OF MCC SQUAD DTD 13.5.2016) EXHIBIT X5 COPY OF EXT. X13 IN EP. NO.11/2016 (REPORT OF MCC SQUAD DATED 14.5.2016) EXHIBIT X6 COPY OF EXT. X15 IN EP. NO.11/2016 (REPORT OF MCC SQUAD DATED 15.5.2016) EXHIBIT X7 COPY OF EXT. X6 IN EP. NO.11/2016 (NOTICE BY NODAL OFFICER, MCC GIVEN TO K.M. SHAJI) EXHIBIT X8 COPY OF EXT. X7 IN EP NO.11/2016 (REPORT BY EL.PET.NO. 12 OF 2016 124 NODAL OFFICER MCC TO RETURNING OFFICER DATED 12.5.2016) EXHIBIT X9 COPY OF EXT. X10 IN EP NO.11/2016 (REPORT BY NODAL OFFICER MCC TO DISTRICT POLICE CHIEF, KANNUR DATED 14.5.16) EXHIBIT X10 PHOTOCOPY OF EXT. X2 IN EP NO.11/2016 (PAMPHLET WITH ARABIC CAPTION).
EXHIBIT X11 PHOTOCOPY OF EXT. X3 IN EP NO.11/2016 (PAMPHLET WITH MALAYALAM CAPTION).
//True copy// P.S to Judge