Kerala High Court
M.V.Nikesh Kumar vs K.M.Shaji on 9 November, 2018
'C R'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.D.RAJAN
FRIDAY ,THE 09TH DAY OF NOVEMBER 2018 / 18TH KARTHIKA, 1940
EL.PET..NO. 11 OF 2016
PETITIONER/S:
M.V.NIKESH KUMAR,
AGED 43 YEARS,
S/O. M.V.RAGHAVAN OF 'MELETH VEEDU',
P.O.BARNASSERY, KANNUR-670 013,
NOW RESIDING AT 9C, SFS FLATS,
EDAPPALLY, ERNAKULAM DISTRICT-682 024.
BY ADVS. SRI.K.GOPALAKRISHNA KURUP (SR.)
SRI.T.B.HOOD
SMT.DEEPTHI S.MENON
SRI.ABHISHEK KURIAN
SRI.K.SURESH
RESPONDENT/S:
1 K.M.SHAJI,
S/O. BEERANKUTTY, H.NO.5, ALAINS GREENS VILLA,
OTTATHENG, MANAL ALAVIL, KANNUR-670 008.
2 A.V.KESAVAN,
S/O. VELAYUDHAN, 'AMRITA JYOTHI', PALLIKKUNNU,
AZHIKODE, KANNUR-670 004.
3 ABDUL JABBAR K.K.
S/O. ABDUL SALAM, SALAM MANZIL, PAPPINISSERY WEST,
BOAT JETTY-670 561.
4 JOSEPH M.J.
S/O. JOHN M.J., MOOLAN HOUSE, NEAR CRPF CAMP,
K.P.NAGAR, ARAVANCHAL, KANNUR-670 353.
5 VIVEK P.C.
S/O. VENUGOPAL, THIRUVATHIRA,
EL.PET..NO. 11 OF 2016 2
NARATH P.O., KANNUR-670 601.
6 PRASAD V.P.
S/O. V.ANANTHAN, PANAYIL HOUSE,
AZHIKODE, KANNUR-670 009.
7 P.K.RAGESH
S/O. GOVINDAN P., POTHODI HOUSE,
CHALAD, KANNUR-670 014.
8 SHAJI K.M.
(SHAJI K.M.THOLAMBRA), S/O. DEVAKI, KUNNATH
MADAPURAKKAL HOUSE, KUNNATH POYIL, THOLAMBRA P.O.,
KANNUR-670 673.
9 K.M.SHAJI (K.M.SHAJI MAMBA)
S/O. RAVEENDRAN, PRANAVAM, PUTHUKUDICHAL,
KANNADY VELICHAM P.O., MAMBA, KANNUR-670 611.
BY ADVS. SRI.S.SREEKUMAR (SR.)
SRI.K.I.SAGEER IBRAHIM
SRI.MURALI PURUSHOTHAMAN
(SC FOR ELECTION COMMISSION).
THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 09.11.2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
EL.PET..NO. 11 OF 2016 3
JUDGMENT
The petitioner who is the defeated candidate from the (10) Azheekode Assembly Constituency of the Kerala Legislative Assembly in the election held on 16.05.2016, challenges the election of the respondent alleging commission of corrupt practice of undue influence under Section 123(2)(a)(ii), and other corrupt practices under Section 123(3) and 123(4) of the Representation of People Act 1951 (hereinafter referred to as 'R.P. Act 1951'). Respondents 1 to 9 were the other candidates who contested the election, however, the main contest was between the petitioner and the 1st respondent. Petitioner was the official candidate of Communist Party of India Marxist (CPIM), the main constituent of Left Democratic Front (for short LDF) and the first respondent was the official candidate of Indian Union Muslim League (IUML), one of the coalition party of the United Democratic Front (for short UDF). Petitioner was alloted the symbol "hammer, EL.PET..NO. 11 OF 2016 4 sickle and star" and the first respondent was alloted the symbol "ladder", according to Election Symbols (Reservation and Allotment) Order 1968. Petitioner got 60,795 votes and the first respondent secured 63,082 votes and first respondent was declared elected with a margin of 2287 votes from the Azheekode Assembly Constituency.
2. The petitioner's case is that the first respondent, being a Muslim candidate, his agents and other persons, with the consent of the candidate or his election agent, appealed to the voters belonging to Muslim community, to vote for him on the ground of religion. They printed, published and circulated Ext.P2 pamphlet among the voters belonging to Muslim community and appealed to voters who belonged to Muslim community to refrain from voting for the petitioner on the ground that he is not a member of Muslim community and warned them not to vote for a candidate, who is not a believer in islamic faith and quoted a passage from holy Quran, Part 26 Chapter 49 (AL Hujurath). The contents of the pamphlet conveyed an impression among the Muslim voters in the Constituency not only to cast vote in favour of first respondent, but also demanded to refrain EL.PET..NO. 11 OF 2016 5 from voting for the petitioner. The first respondent or his agents or other persons, with the consent of the first respondent or his election agent printed, published and circulated Ext.P3, P4 and P5 pamphlets among the voters of the constituency and the contents of the pamphlets are in relation to the personal character and conduct of the petitioner. Ext.P3 pamphlet is published with the caption in malayalam "veedu nokkathavanu naadu nannakkan kazhiyumo", and also contained the photograph of the petitioner with Saritha Nair, a lady involved in Solar Scam and another photograph of petitioner with his wife and children. It also contains a statement to the effect that petitioner is having wayward life with Saritha S Nair. It creates an impression that petitioner is a cheat and his wife is about to file a petition for divorce. The above statements are in relation to the personal character and conduct of the petitioner. Ext.P4 pamphlet contains a statement with a caption "nikesh kumar 20 laksham vangiyennu Rajkumar Unni". The said Rajkumar Unni is the owner of a Bar Hotel and the President of Bar Hotel Owners Association. Ext.P5 pamphlet was published with caption "Nikesh Kumar EL.PET..NO. 11 OF 2016 6 chettakkudilil ninnu maalikayil ethiya kodeeswaran". It also contains a statement quoting Mathrubhoomi Malayalam daily that the petitioner has got assets worth 4.5 Crores and he owns a house having an area of 5579 Sq.feet in Ernakulam and that there is a public demand that an enquiry should be conducted how Nikesh Kumar, who was a Journalist acquired so much assets. In the bottom of Exts.P2 to P5, it was mentioned that "printing and publishing President Indian Overseas Congress, Kannur Jilla Committee" to make it appear that it was not printed and published by first respondent or his agents. The statement of facts mentioned in the pamphlets are false, and not believing it to be true which was published with the object of lowering reputation of the petitioner among the electorate and it was circulated to prejudice his prospects in the election. The above pamphlets were seized by the police and Special Squad for detection of the violation of Model Code of Conduct (for short MCC) for election. The petitioner would have obtained more votes than the first respondent and won the election, if the first respondent had not committed the above corrupt practice. Hence the election of the first respondent is liable EL.PET..NO. 11 OF 2016 7 to be declared as void under Sections 100(1)(b)and 100(1)d(ii) of the R P Act 1951 and to declare that the petitioner has been duly elected from (10) Azheekode Assembly Constituency.
3. In the written statement, the first respondent contended that he or his election agent or other persons never committed any corrupt practice. The alleged corrupt practices are the imagination of the petitioner who concoctedly created it with his agents and supporters. The first respondent, his agent or others never appealed to the voters of the Muslim community to vote for him on the ground of religion, and never requested the Muslim community to refrain from voting for the petitioner on the ground that he is not a member of Muslim community or believer in islamic faith. This allegation is made with sinister motive to tarnish the image and reputation of first respondent among the public and especially among the voters of Azheekode Assembly Constituency. He admits that the allegations in the pamphlet are related to the personal character of the petitioner and first respondent has no knowledge about petitioner's personal life. It is believed EL.PET..NO. 11 OF 2016 8 that petitioner himself had got printed Exts.P2 to P5 to make out a cause of action for preferring an election petition and the first respondent happened to see such pamphlets for the first time when he received it along with the election petition. The polling agents of the first respondent had distributed the pamphlets is absolutely false. The contents of pamphlet relate to the petitioner's personal life, his assets and liabilities, therefore the petitioner is the best person to speak about the contents of it and nothing was done by the first respondent to prejudice the prospects of the election of the petitioner. The above pamphlets were published by President, Indian Overseas Congress, Kannur Jilla Committee, to the knowledge of the first respondent, there is no organization viz, Indian Overseas Congress and neither Indian National Congress nor any other political parties has any sister concern in that name. The pamphlets were seized by the police and Special Squad appointed for the detection of violation of MCC for elections is absolutely false and no such pamphlets were distributed or circulated by the first respondent or his agents. Smt.N.P.Manorama kept several bundles of pamphlets in her house is false and EL.PET..NO. 11 OF 2016 9 she along with workers of Indian National Congress, IUML had not distributed any pamphlets. Moreover, C.V.Santhosh, Sujith and Pradeepan had never campaigned for the first respondent in the election. On 14.5.2016, ten persons including Fazir K V, Shakir V.P, Favaz, Nisham and Rehman had not conducted house to house campaign for the first respondent at Thangal Vayal or any other places. The allegation that on 15.5.2016, Ext.P2 to Ext.P5 pamphlets were given by Narayanan, Rajeevan and Padmanabhan to Sri B Ummer and Sri Mohammed Sheriff while they were conducting house to house campaign is false. The story that on 15.5.2016, while distributing the above pamphlets among the voters, they were arrested by the police is false. Even if any person had committed any corrupt practice, that was without the consent of the first respondent, his election agent or any other person which is contrary to the instructions issued by the first respondent and his election agent. Petitioner has not pleaded material facts as to the details of printing and publication of the above pamphlets. The election petition does not disclose any material facts to constitute any corrupt practice under Section 123 of the EL.PET..NO. 11 OF 2016 10 Representation of People Act, 1951. The affidavit filed along with the petition is not in compliance with Rule 94A of the Conduct of Election Rules as provided in Form No.25 of the Conduct of Election Rules. The election petition does not disclose any cause of action and the affidavit does not conform to the legal requirement and the election petition is liable to be dismissed for want of cause of action.
4. Other respondents did not appear and file written statement.
5. 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 has made an appeal to vote or refrain from voting on the ground of his religion, race, caste, community EL.PET..NO. 11 OF 2016 11 and thereby committed any corrupt practice under Section 123(3) of the R P 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 and which he either believes to be false or does not believe it to be true in relation to the personal character, which is calculated to prejudice the prospects of the candidate's election and thereby committed any corrupt practice 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. If so, whether the petitioner has to be declared as the candidate duly elected ?
6. Reliefs and Cost.
6. Petitioner's evidence consist of oral testimony of PW1 to PW14 and documentary evidence of Exts.P1, P2, P2(a), P3, P3(a), P4, P4(a), P5, P5(a), P6, P6(a), P7, P7(a), P8, P8(a), P9, P9(a), P10, P10(a), P11, P11(a), P12, P12(a), EL.PET..NO. 11 OF 2016 12 P12(b), P13, P13(a), P14, P14(a), P15, P15(a), P15(b), P15(c), P16, P16(a), P16(b), P16(c), P17, P18, P19, P20, P21, P22, P23, P24, P25, P26 and P27. Respondent's evidence consist of oral testimony of RW1 to RW12 and documentary evidence of Exts.B1, B2, B4 and B4. Third party exhibits were marked as Exts.X1, X2, X3, X4, X5, X6, X7, X8, X9 (152 notices), X9(a), X9(b), X9(c), X10, X11, X12 (555 notices), X12(a), X12(b), X12(c), X12(d), X13, X14 (929 notices), X14(a) series, X14(b) series, X14(c) series, X14(d) series, X14(e), X15, X16(162 notices), X16(a), X16(b), X17, X18 X18(a), X19, X20, X21, X22, X23 series, X24 series and X25 series.
7. Point Nos.1 to 4: Maintainable. An election to the assembly under the Representation of People Act, 1951 has provided sufficient guard to make the elections fair and free and Section 123 of the R P Act, 1951 deals with various corrupt practices. The first ground advanced by the petitioner is that first 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 first respondent and his agent and EL.PET..NO. 11 OF 2016 13 others with the consent of the 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 first respondent or 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 being a statement was reasonably calculated to prejudice the prospects of petitioner's election.
8. While adverting to the asserted corrupt practice, it is better to examine the oral and documentary evidence in this case.
9. Petitioner's evidence in Brief:-
Petitioner was examined as PW1. His evidence shows that he was a candidate in the election to the Azheekode EL.PET..NO. 11 OF 2016 14 Assembly Constituency representing Communist Party of India, Marxist (for short CPIM). There were nine other candidates who contested in that election, out of which, first respondent was his main opponent, who represented Indian Union Muslim League (for short IUML). Petitioner's symbol was 'hammer, sickle and star' and first respondent's symbol was 'ladder'. Petitioner secured 60795 votes and the first respondent got 63082 votes and the total margin was 2287 votes, and the first respondent was declared as the returned candidate by Ext.P1 notification. PW1 deposed that first respondent being a Muslim, wanted the voters to vote for him on the basis of his religion and he appealed to the Muslim community to vote for him on the basis of Muslim religion and he circulated Ext.P2 among the voters of the Constituency. The caption in Ext.P2 was written in arabic language and the remaining portion was printed in Malayalam language. It was stated in Ext.P2 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 EL.PET..NO. 11 OF 2016 15 times a day and stands guard over us. Multi colour photograph of the first respondent and his election symbol ladder was published in Ext.P2. PW1 stated that Ext.P2 pamphlet was published only to make undue influence among the voters with the free exercise of their electoral right. Ext.P2 also induces 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 censures. The above pamphlet was circulated by first respondent or his agent or other person with the consent of the first respondent or his election agent. Ext.P2 pamphlet is an appeal by the first respondent or his agent or any other person with the consent of the first respondent or his election agent to vote or refrain from voting for any person on the ground of religion. They also published Exts.P3, P4 and P5 pamphlets, the facts published in those pamphlets are false and untrue with intention to defame the reputation of the petitioner and it creates misunderstanding among the voters, which affected his election prospects. One Abdul Nazar K.T, K.Baiju and other workers brought Exts.P2 to P5 to him.EL.PET..NO. 11 OF 2016 16
10. PW1 also deposed that his workers filed a petition on 12.05.2016 before the Returning Officer and filed other petitions before Valapattanam Police and Mayyil Police. On 12.05.2016, Valapattanam police registered Crime No.1074 of 2016 and Ext.P6 is the F.I.R. On 12.05.2016, Special Squad also submitted Ext.P9 report to the Nodal Officer, who issued a show cause notice. The Special Squad conducted inspection at Pallikunnu Chettipeedika area and seized pamphlets from C.V.Santhosh, his two brothers and one Prem Prakash while they were distributing the above pamphlets in their house to house campaign. Ext.P10 is the copy of the report submitted by the Special Squad to the Nodal Officer. On 14.05.2016, Special Squad seized pamphlets from the verandah of building No.127 of ward no.8 of Narath Panchayat and Ext.P11 is the copy of the report of Special Squad submitted to Nodal Officer. On 14.05.2016, Fazir, Mandalam Committee Secretary, Youth League and 10 workers of Youth League, during their house to house campaign, distributed Exts.P2 to P5 pamphlets at Thangal Vayal. On 15.05.2016, Special Squad detected circulation of Exts.P2 to P5 pamphlets at Kannadiparamba, EL.PET..NO. 11 OF 2016 17 Talkies Road and three persons were found circulating Exts.P2 to P5 pamphlets and they were taken into custody by Mayyil Police. The Special Squad seized Exts.P2 to P5 from them and reported the matter to the Nodal Officer and Ext.P14 is the copy of that report. On 15.05.2016, Mayyil police arrested Rajeevan, A.V.Narayanan and Padmanabhan with Exts.P2 to P5 pamphlets. One Baiju, Local Secretary of CPIM, Kannadiparamba filed a petition to the Sub Inspector, Mayyil Police Station and they registered a crime against the accused. Ext.P12 is the F.I.R in which Rajeevan, A.V.Narayanan and Padmanabhan were arrayed as accused. Padmanabhan was the polling agent of first respondent in Booth No.58 of Azheekode Assembly Constituency. Smt N.P.Manorama, President, Valapattanam Grama Panchayat, who is the close associate of first respondent, circulated and distributed Exts.P2 to P5 along with other election materials. Even though this witness was cross examined by the first respondent, it is clear that PW1 has no direct knowledge with regard to the distribution of the pamphlets at various places on 12.05.2016, 13.05.2016, 14.05.2016 & 15.05.2016 and other alleged corrupt practices. EL.PET..NO. 11 OF 2016 18
11. The Additional District Magistrate and Deputy Collector (General), Kannur was examined as PW2, who was the Nodal Officer, MCC, Kannur from 04.03.2016 till the completion of election. His evidence shows that there were 13 Special Squads under his control and they were entrusted with defacement duties to remove unnecessary posters, hoardings, banners and wall writing displayed in violation of MCC in Kannur District. On 12.05.2016, the Charge Officer (PW6) submitted Ext.P9 report to him. Ext.X1 is the original report and it's english translation is marked as Ext.P9(a). In Ext.P9 it was reported that ten different kinds of notices were seized from the house of Smt N.P.Manorama, by the Valapattanam Police and thereafter police had registered a case. The copies of each notice seized by the police were forwarded to his office by the Special Squad, which were marked as Exts.X2, X3, X4 and X5 (Ext.P2 to P5). On the basis of Exts.X1 to X5, he issued Ext.X6 show cause notice on 12.05.2016 to the first respondent and sent Ext.X7 letter to the Returning Officer. It was reported in Ext.X7 that there was violation of MCC by the first respondent. The file copy of the show cause EL.PET..NO. 11 OF 2016 19 notice dated 12.05.2016 is marked as Ext.X6 in which the first respondent signed in it.
12. PW2 deposed that on 13.05.2016, the Charge Officer (PW6) sent Ext.P10 report to him. PW2 categorically stated that as per his direction, the Special Squad conducted an inspection at Chettipeedika on 13.05.2016 and found C.V.Santhosh, Sujith, Pradeepan and Prem Prakash conducting house to house campaign and Special Squad seized hundreds of notices of Exts.P2, P3 and P5 from them. He received those notices in his office as per Ext.X8 report and those notices were marked as Ext.X9(a), X9(b), X9(c) (Exts.P2, P3 and P5). On the basis of Ext.X8 report, on 14.05.2016 he sent Ext.X10 letter to the District Police Chief, Kannur. On 14.05.2016, he received Ext.X11 report from Charge Officer, MCC, Special Squad in which it is reported that Special Squad had visited Kannadiparamba Pulloopikadavu and found 500 notices on the top of a table in the verandah of building No.127 of Ward no.8 of Narath Panchayat, which were marked as Ext.X12, X12(a), X12(b), X12(c) and X12(d) series (Ext.P2 to P5). On 14.05.2016, PW6 submitted Ext.X13 report stating that the Special EL.PET..NO. 11 OF 2016 20 Squad had visited Thangal vayal Valapattanam and seized Ext.X14, X14(a), Ext.X14(b), Ext.X14(c) and Ext.X14(d) series (Ext.P2 to P5) and Ext.X14(e) notices from Fazir, Shakir, Favaz, Rehman and others while conducting house to house campaign. On 15.05.2016, PW6 submitted Ext.X15 report in which it is stated that the Special Squad had visited talkies road, Kannadiparamba, at that time Sub Inspector of Police, Mayyil Police Station seized bundles of notices from three workers of 1 st respondent and they were taken into custody. On demand of people who gathered there, the Special Squad went in search of a scooter No.KL- 13/AE 4526 which was parked in front of a house at Kannadiparamba and seized Ext.P16, P16(a), P16(b) series notices (copies of Ext.P2 and P3). Even though this witness was cross examined by the first respondent, nothing has been brought out to discredit his evidence. In cross examination he stated that all works done by the Squad were videographed and the CDs were not handed over to him by the Special Squad, but the CDs are kept in the safe custody of election department. After verifying the contents of the document forwarded to him, he reported the matter EL.PET..NO. 11 OF 2016 21 to the District Election officer. Only after verifying the documents and after discussing with the District Collector, he issued show cause notice. In Ext.X6, door number and ward number of house of Smt N.P.Manorama is specifically mentioned. PW2 denied the suggestion made by the first respondent that Exts.X1, X2, X3, X4 and X5 were created by himself and PW6 to help the petitioner. PW2 admitted that he got Ext.X8 complaint on 13.05.2016 and he intimated that matter to the Special Squad over telephone.
13. The Secretary, Valapattanam Grama Panchayat was examined as PW3, his evidence shows that Smt.N.P.Manorama is the President of Valapattanam Grama Panchayat from 12.11.2015 onwards, the panchayat is maintaining Ext.X17 register under Rule 3 of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 (the original register returned). Ext.X17 shows that N.P.Manorama was elected as a member of Indian National Congress, a coalition party of UDF.
14. The Returning Officer, Azheekode Assembly Constituency for the election held in May, 2016 was examined as PW4. His evidence shows that as per Ext.X18, EL.PET..NO. 11 OF 2016 22 V.M.Padmanabhan was the polling agent of V.P.Prasad in Booth No.58 of Azheekode Assembly Constituency. V.M.Padmanabhan and A.V.Narayanan were the polling agents of V.P.Prasad, appointed by K.Ragesh, who was the election agent of V.P.Prasad.
15. The evidence of PW5 shows that on 15.05.2016 at 1.30 pm, Paramban Rajeevan, A.V.Narayanan and V.M.Padmanabhan were taken into custody by Baburaj, the Grade Sub Inspector, Mayyil Police Station with pamphlets from Kannadiparamba. While he was working as SHO, Mayyil Police Station, one Baiju filed Ext.P12(b) petition in which it is alleged that the congress workers Paramban Rajeevan, A.V.Narayanan and V.M.Padmanabhan were widely circulating pamphlets defaming the petitioner at talkies road within the limits of booth No.58. On the basis of Ext.P12(b), on 15.05.2016 at 17.00 hours, he registered Crime No.620 of 2016 of Mayyil Police Station under Section 153 IPC and Section 127(A) of R P Act, 1951 and Ext.P12 is the F.I.R.
16. The Charge Officer of MCC, Azheekode Assembly Constituency was examined as PW6. His evidence shows EL.PET..NO. 11 OF 2016 23 that being the Charge Officer for detection of violation of MCC, he has to report the violation to PW2, the Nodal Officer. PW6 deposed that he conducted inspection as directed by the Nodal Officer, MCC. On 12.05.2016, he had inspected different parts of Azheekode Assembly Constituency and submitted Ext.X1 report to the Nodal Officer. On that day, he got information over telephone that several bundles of defamatory pamphlets were kept in the house of the President, Valapattanam Grama panchayat. When he reached there, the police party seized the bundles of pamphlets and removed it to the police jeep, immediately he informed about the seizure to PW2. Subsequently, the police party took the bundles of pamphlets to the police station, PW6 went to the police station, from there he obtained Exts.X2 to X5 and handed over them with a report to the Nodal Officer. On 13.05.2016, he seized hundreds of pamphlets from C.V.Santhosh, Sujith, Pradeepan and Prem Prakash while they were conducting house to house campaign at Chettipeedika and by Ext.X8 report, he informed the seizure to the Nodal Officer. Those seized notices were marked as Exts.X9(a), X9(b) and X9(c) series EL.PET..NO. 11 OF 2016 24 (Exts.X2, X3 and X5). On 14.05.2016, he seized pamphlets kept on a table in the verandah of a closed shop in Building No.127 of Ward no.8 of Narath Panchayat. On the same day (14.05.2016), he found ten persons including Fazir, Shakeer, Favaz and Rehman, distributing pamphlets containing defamatory statement about the petitioner at Thangal Vayal. Immediately he reported the violation to PW2, Nodal Officer with Ext.X13 report and Ext.X14(a) to Ext.X14(e) series are the seized pamphlets. The contents and caption of Exts.X2 to X5 and X14(a) to X14(d) are the same. On 15.5.2016, he seized pamphlets from Talkies road, Kannadiparamba from a scooter No.KL 13 A E 4526. Those notices were forwarded to the Nodal Officer with Ext.X15 report. In cross examination, he admitted that he could not remember the telephone number through which he received information on 12.05.2016. He did not conduct any search in the house of Smt.N.P.Manorama. The entire incident was videographed by Latheef, the Videographer who accompanied the Special Squad. In cross examination, he admitted that Exts.X2 to X5 were entrusted to him by the Valapattanam Police and he handed over the CD containing EL.PET..NO. 11 OF 2016 25 the videography to the Nodal Officer. Every day he sent the report to the Nodal Officer in the prescribed proforma.
17. PW7 deposed that he was a member of Special Squad, MCC, Azheekode Assembly Constituency. Several pamphlets and notices defaming the petitioner were seized by PW6 the Charge Officer, Special Squad, MCC from various parts of Azheekode Assembly Constituency viz, from the house of Smt N.P.Manorama, from Talkies road, Kannadiparamba and from Thangal Vayal, Valapattanam. Ext.X9 series were seized from Chettipeedika while distributing pamphlets and Ext.X14 series were seized from Thangal vayal.
18. PW8 deposed that he was a member of Special Squad, MCC, Azheekode Assembly Constituency during 2016 Assembly election. PW6, PW7, Prajith Kumar, Videographer and the driver of the vehicle were in the Squad. Sub Inspector of Police, Valapattanam seized pamphlets from the house of Smt.N.P.Manorama, the President of Valapattanam Grama Panchayat and subsequently, Sub Inspector entrusted Exts.X2 to X5 pamphlets to PW6. The Special Squad seized Exts.X14(a) to EL.PET..NO. 11 OF 2016 26 X14(e) from some workers at Thangal Vayal while they were engaged in the house to house campaign and seized Ext.X16 series of pamphlets from talkies road, Kannadiparamba. His evidence shows that the seizure at Thangal Vayal was videographed and CD was entrusted to the Collectorate.
19. PW9 deposed that on 12.05.2016, while he was in charge of G D, Valapattanam Police Station, one Abdul Nazar K.T filed a petition before Sub Inspector of Police, Valapattanam. On that basis he registered a crime under Section 153 r/w 34 IPC and Section 127(A) of R P Act, 1951. Ext.P6 is the copy of the F.I.R, Ext.P6(b) is the certified copy of the complaint filed by Abdul Nazar K.T. As per Ext.P6, the President, Valapattanam Grama Panchayat and her husband Sukumaran are the accused in that case.
20. PW10, the Joint RTO, Kannur deposed that as per Ext.X10, the registered owner of the vehicle No.KL-13/ AE 4526 is Rajeevan P, S/o.K.Sreedharan, Paramban House P.O, Kannadiparamba.
21. PW11 is a voter in booth No.63 of Azheekode Assembly Constituency and residing at Talkies road, EL.PET..NO. 11 OF 2016 27 Kannadiparamba. He deposed that Narayanan, Noufal, Rajeevan, Padmanabhan, Majeed, Unni and four others campaigned for the first respondent. Baiju, Kandappan Rajeevan, Ibrahim, Sarath, Damodaran, Muhammed and three others campaigned for the petitioner. He personally know all the persons who campaigned for UDF and LDF. During 2016 election, the above persons visited his house two or three times in connection with the election campaign. On 15.05.2016 at 7 am, the members of UDF squad Narayanan, Noufal, Rajeevan, Padmanabhan, Majeed Unni and others visited his house with voter's slip and appealed to vote for first respondent and entrusted Exts.X2, X3, X4, and X5 pamphlets and notices. He also identified Ext.X12 series and X16 series notices which were published during election period. On the same day at about 10-11 am, LDF squad under the leadership of Baiju, visited his house and at that time, he handed over Exts.X2 to X5 notices to them. On the same day at 1 pm, police arrested some of the members of the UDF squad 100 metres away from his house. In cross examination, he stated that he has no affinity towards any political party.
EL.PET..NO. 11 OF 2016 28
22. The evidence of PW12 shows that he is residing at Talkies Road, Kannadiparamba and a voter of Azheekode Assembly Constituency. On 15.05.2016, the workers of UDF Padmanabhan, Majeed, Rajeevan, Narayanan, Noufal and three or four others visited his house in connection with election campaign and handed over Exts.P2 to P5 pamphlets and voter's slip to him and requested to vote for first respondent. The LDF workers Baiju, Sarath, Rajeevan, Ibrahim and several others also visited his house. On 15.05.2016, at 7.30 am, the above UDF workers visited his house and handed over Exts.P2 to P5 and voter's slip and requested to vote for first respondent. On the same day, between 10.30 am and 11 am, he handed over those notices to Baiju. Those notices were marked as Ext.X16 series. The caption of one of the notices was that Nikesh Kumar had illicit relationship with Saritha and the wife of Nikesh Kumar had given petition for divorce before Family Court. Another notice containing a caption in arabic language was also handed over to him which was read by himself and his family members.
23. The Local Secretary of LDF and a voter of EL.PET..NO. 11 OF 2016 29 Azheekode Assembly Constituency was examined as PW13. His evidence shows that he had conducted house to house visits as part of the election campaign. On 15.05.2016, he visited the house of PW11 at Kannadiparamba, along with other workers, at that time PW11 entrusted a bunch of pamphlets and asked 'how one can vote for your candidate' ? PW11 informed that the notices were entrusted by Paramban Rajeevan, Narayanan, Padmanabhan, Noufal, Majeed and Ashraf and others who were members of the UDF squad. Immediately he informed the matter to Mayyil police Station and at 4.30 pm, he went to the police station and enquired about the action taken. He realized that no case was registered and the Sub Inspector informed him to file a complaint in writing, accordingly, he gave Ext.P12(b) complaint. On the same day when he was at Talkies Road, the Special Squad seized Exts.P2 to P5 pamphlets from the scooter of Paramban Rajeevan.
24. PW14 was a voter of Azheekode Assembly Constituency. His evidence shows that he had filed an application to the Public Information Officer, Kannur Collectorate and obtained Exts.P9, P10, P11, P13, P14, P15, EL.PET..NO. 11 OF 2016 30 P15(a), P15(b) and P15(c) under Right to Information Act (for short R.T.I Act). Subsequently he handed over the reports and copies of the notices to Nikesh Kumar. Respondent's evidence in brief:-
25. The first respondent was examined as RW1. His evidence shows that he had never shown any affinity towards any religion, but for the last seven years, he is facing threat from NDF and Jama-ath islami which are the two religious organisations and the Government have rendered police protection to him. The 7 th respondent was the Secretary of DCC, Kannur and the President of Pallikunnu Grama Panchayat, who contested the election as a rebel candidate of congress. Sri Balakrishnan Master was the convenor of his election committee and there were other sub committees at panchayat and booth levels. Sri Biju Ummer was his election agent. The election campaigning was mainly by visiting the houses of voters and meeting them in person. There were public meetings, affixing of posters and hoarding etc throughout the Constituency. He had given strict instruction to obey the MCC in the campaign. Neither he nor his election agent or others had EL.PET..NO. 11 OF 2016 31 campaigned in the name of Muslim religion in that election. He, his election agent, his workers or any other agents had never published Ext.P2 notice in the campaign. Exts.P2 to P5 notices were never printed, published or circulated in the Azheekode assembly constituency during his election campaign. There is no organization in the name of Indian Overseas Congress Kannur Jilla Committee. He had no occasion to enquire about the personal life of the petitioner and the private life of the petitioner was not a subject matter in the election campaign. He, or his election agent or other persons with his consent or with the consent of election agent never printed or published Exts.P2, P3, P4 and P5 pamphlets. Only after receipt of notice in the election petition, he came to know about Exts.P2 to P5 pamphlets. The police, the Nodal Officer or other officers of MCC never seized the above pamphlets violating MCC. Smt N.P.Manorama never participated in any public meeting nor canvassed any vote in connection with election campaign. She never kept the above notice in her house. On 11.05.2016 and 12.05.2016, N.P.Manorama and the workers of the Indian National Congress did not conduct any house EL.PET..NO. 11 OF 2016 32 to house campaign and never distributed the above pamphlets for RW1. On 13.05.2016, C.V.Santhosh, Sujith, Pradeep and Prem Prakash never distributed Exts.P2 to P5 pamphlets as alleged. There was no seizure of any pamphlets in violation of MCC on 13.05.2016, 14.05.2016 or 15.05.2016. He had no knowledge about Crime No.1074 of 2016 registered by Valapattanam police. Rajeevan, A.V.Narayanan and Padmanabhan were not his workers or workers of UDF and he had no knowledge about the arrest of the above persons on 15.05.2016 from Talkies road, Kannadiparamba and they never distributed Exts.P2 to P5. Fazir K.V, Shakir, Favaz, Nisham and Rehman had not distributed Exts.P2 to P5 at Thangal Vayal and the seizure of 750 pamphlets by the MCC, Special Squad from Fazir is incorrect. He had no knowledge about the ownership of KL- 13/AE 4526 or about the seizure of pamphlets from that vehicle. He, his election agent or other workers had never influenced the voters of Muslim community on the ground of religion. The pamphlets seized by Valapattanam police and Mayyil police were printed and published by the petitioner himself. The members of Special Squad of MCC were corrupt EL.PET..NO. 11 OF 2016 33 officers and workers of CPIM. But he admitted that Biju Ummer and Ragesh were working for him during the election period and they were present at the time of inauguration of his election office. He admitted that in Ext.X6 a complaint was received by the Nodal Officer. He admitted that Smt N.P.Manorama is the member of Indian National Congress, Valapattanam Grama Panchayat and in cross examination, he stated that Kallikodan Ragesh was a worker of his election campaign, but not an active worker. But in re-examination he answered that Kallikodan Ragesh never campaigned for him.
26. The member of Narath Grama Panchayat representing ward No.13 was examined as RW2. His evidence shows that 25% of the voters of that Panchayat belong to Muslim community. Ummer is a CPM worker and the Secretary of Football Club, 'Rising Star'. Mohammed Sheriff, who is residing at Talkies road, is a known criminal involved in several cases. Ummer and Mohammed Sheriff campaigned for LDF candidate in the 2016 assembly election. Paramban Rajeevan, A.V.Narayanan and Padmanabhan have no specific political affinity, but they EL.PET..NO. 11 OF 2016 34 worked for congress rebel candidate in the panchayat election. During the assembly election, they had campaigned for V.P.Prasad. On 15.05.2016 Mayyil police had taken them into custody from Kannadiparamba, while they were demonstrating model electronic voting machine at talkies road, CPM workers detained them, at that time police came there and arrested them. They never carried Exts.X2 to X5 notices or pamphlets. After one hour, Special Squad came there. He did not see the Scooter bearing No.KL 13 AE 4526 at talkies road and according to him, MCC Special Squad never seized Ext.X16 series from that scooter.
27. The District Collector, Kannur was examined as RW3. His evidence shows that Ext.X22 (register regarding the MCC of assembly election, 2016) is being maintained in the District Election Office, Kannur and Ext.X23 is the consolidated report submitted by Nodal Officer, MCC, Kannur. He is the custodian of the above documents and Ext.X24 series are true copies of the report submitted by Charge Officer, MCC, Azheekode Assembly Constituency during 2016 election. Ext.X25 series are true copies of show cause notices dated 04.05.2016 and its reply dated EL.PET..NO. 11 OF 2016 35 09.05.2016 and show causes notices dated 12.05.2016 and its reply dated 15.05.2016. The letter dated 12.05.2016 from Nodal Officer, MCC, Kannur to the Returning Officer, Azheekode LAC 2016 and letter dated 14.05.2016 from Nodal Officer, MCC, Kannur to the District Police Chief, Kannur were already produced by PW2 and was identified by him. He admitted that there was no direction to submit daily report in proforma by the Special Squad, MCC.
28. The evidence of RW4 shows that from 15.02.2014 to 15.08.2016, he was the District Collector, Kannur and District Election Officer, Kannur District. He appointed PW2 as the Nodal Officer for MCC, Kannur District and he is the custodian of the daily report. He never delegated any of his duties as District Election Officer to the Nodal Officer. The Nodal Officer is the competent person to issue show cause notice for violation of MCC. District Election Officer has also authority to issue show cause notice and take action against violation of MCC. The Nodal Officer informed about the show cause notice issued to RW1 for violation of MCC. All proceedings of MCC were videographed by the Special Squad and each charge officer is accompanied by a EL.PET..NO. 11 OF 2016 36 Videographer and the CDs were submitted before District Election Office. Deputy Collector, Election is the competent person to receive CD in his office. RW4 had no opportunity to see the complaints mentioned in Ext.X22 and there is no endorsement in Ext.X23 series to show that they were received by him or by his election officer.
29. The Station House Officer, Valapattanam Police Station was examined as RW5. He deposed that while he was working as Station House Officer, Valapattanam, he conducted investigation in Crime No.1074 of 2016 of Valapattanam Police Station, Ext.B1 is the final report, Ext.B2 is the memo of evidence, and Ext.B3 is the scene mahazar. As part of the investigation, he conducted a search in Door No.8/50 of Valapattanam Grama Panchayat. Fifteen different types of pamphlets were seized from that house, for that he prepared a search list and his subordinate police officers seized the above pamphlets under his supervision. The seized articles were produced before Judicial First Class Magistrate II, Kannur. He handed over few pamphlets to the officers of MCC, Special Squad, but they had not given written request for getting the same. No documents were EL.PET..NO. 11 OF 2016 37 kept in the police station to prove the handing over of the seized documents and no acknowledgement was obtained from the officers of MCC, Special Squad.
30. The evidence of RW6 shows that while working as Sub Inspector, Mayyil Police Station, he seized documents in Crime No.620 of 2016 of Mayyil Police Station and Ext.B4 is the seizure mahazar. The seized articles were brought before Police Station and entrusted to SHO, Mayyil Police Station and subsequently those documents were produced before court. The pamphlets were seized from Kannadiparamba which is within the limits of Narath Grama panchayat. He spent nearly one hour at the place of occurrence. Biju, the Local Committee Secretary of CPM was present there, nearly 25 persons were assembled at the place of occurrence. RW6 deposed that he received information that Paramban Rajeevan, A.V.Narayanan, and V.M.Padmanabhan were distributing pamphlets at talkies road on 15.05.2016 at 13.30 hours and he prevented them from distributing the same and seized the pamphlets from their possession by a mahazar.
31. The District Police Chief was examined as RW7, EL.PET..NO. 11 OF 2016 38 who deposed that he had verified the entries in the Tapal register from 14.05.2016 onwards, there was entry with reference number as shown in Ext.X10, but he did not conduct any investigation with regard to the document dated 14.05.2016.
32. One C.V.Sumith was examined as RW8. He deposed that he received the summons in the name of Sujith and not in the name of C.V.Sumith, but the house address in the summons is correct. He had campaigned for the first respondent on 06.05.2016, but his brother Sandeep died on 08.05.2016, thereafter he did not go for election campaign. But he went to vote for election on 16.05.2016. He did not go for election campaign on 13.05.2016 with his brother C.V.Santhosh, Pradeepan and Prem Prakash at Chettipeedika and the Special Squad MCC never seized Ext.X9 series of pamphlets from him. He was a member of UDF Booth Election Committee of Booth No.98 of Azheekode Assembly Constituency and the polling agent of K.M.Shaji. He had collected the pass for the polling agent so as to enter the booth. When he went for campaigning, he distributed the request of the UDF candidate in few houses. EL.PET..NO. 11 OF 2016 39 There is no congress worker in the name, Pradeepan in Chettipeedika area.
33. RW9 deposed that he is the Secretary, INC, Chirakkal Block Committee and he campaigned for K.M.Shaji in the 2016 assembly election. C.V.Santhosh is residing 500 metres away from his house and he has no brother named Pradeepan. On 13.05.2016, he did not engage in any house to house campaign with C.V.Santhosh and C.V.Sujith for K.M.Shaji at Chettipeedika and the Special Squad never seized any pamphlets. In cross examination he admitted that himself, A.K.Akhil and Sagunan were the polling agents of K.M.Shaji in Booth No.98. Chettipeedika and Pallikunnu area come under Booth No.98. C.V.Santhosh, C.V.Sumith, Akhil and Sagunan were the main leaders of the campaign for K.M.Shaji in Booth No.98 and they distributed only one type of pamphlet in that booth.
34. RW10 deposed that he had campaigned for V.P.Prasad, an independent candidate in the Azheekode Assembly Constituency. Kallikodan Ragesh, Narayanan and Padmanabhan were congress workers. There was a resentment among the congress workers in alloting EL.PET..NO. 11 OF 2016 40 Azheekode Assembly Constituency to Muslim League and they decided to campaign for V.P.Prasad. They never distributed Ext.X16 series of pamphlets at Talkies road, Kannadiparamba on 15.05.2016. While they were campaigning for V.P.Prasad, a group of people detained them and Mayyil police took them to the police station. At that time, Baiju, who is the Secretary of CPIM, handed over a bunch of pamphlets to the police. On the same day, he went to talkies road in a scooter KL-13 AE 4526 and parked that vehicle 8 to 10 metres away from the place where they were detained. No pamphlets were seized from the scooter by the Special Squad, MCC.
35. RW11 deposed that he is a member of congress party and the polling agent of V.P.Prasad in Booth No.58. Ext.X18(a) is the appointment order. As per Ext.X18(a), K.Ragesh, the President of Chirakkal Block Congress Committee was the Chief Election Agent of V.P.Prasad. There was resentment among the congress workers in alloting Azheekode Assembly Constituency to Muslim league. Therefore they canvassed for V.P.Prasad. Kallikodan Ragesh fielded V.P.Prasad as an independent candidate. On EL.PET..NO. 11 OF 2016 41 15.05.2016, while they were campaigning for V.P.Prasad at Kannadiparamba with Dummy election voting machine, nearly 100 CPM workers detained them and the police took them to the police station. While they were taken into the police jeep, Baiju handed over a cover to the Sub Inspector of Police and no pamphlets were seized from their possession as alleged. In cross examination, he admitted that he has been working for INC for the last 30 years.
36. The evidence of RW12 shows that he was the polling agent of V.P.Prasad. The Chief Election agent of V.P.Prasad, Kallikodan Ragesh, appointed him as the polling agent. He admitted that he is a member of Indian National Congress which is a coalition party of UDF. There was resentment among the congress workers in alloting the seat to Muslim league. He had conducted house to house campaign for V.P.Prasad with Narayanan and Rajeevan with dummy voting machine at talkies road, hundreds of people gathered there and detained them. Subsequently, Mayyil police came there and removed them to police station. They were detained in the police station until Baiju, local secretary of CPIM reached there at 5 pm. He stated that he EL.PET..NO. 11 OF 2016 42 never distributed any notice or pamphlets as alleged.
37. Sri K.Gopalakrishna Kurup, the learned counsel for the petitioner contended that the first respondent or his agent or any other person with the consent of the candidate or his election agent circulated Ext.P2 pamphlet among muslim voters and appealed to muslim voters to vote for him on the ground of his religion. The contents of Ext.P2 shall be deemed to cause undue influence and thereby interfering with the free exercise of electoral right. They also published Exts.P3 to P5 pamphlets and notices with the consent of the first respondent or his agent, the statement of facts mentioned therein are false in relation to the personal character and conduct of the petitioner, which was calculated to prejudice the prospects of the election 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 any candidate or in relation to the candidate. Hence the election of the first respondent is liable to be set aside. The learned counsel relied on the decisions reported in Sheopat Singh V. Harish Chandra(AIR 1960 SC 1217), Kumara Nand V. EL.PET..NO. 11 OF 2016 43 Brijmohan Lal Sharma (AIR 1967 SC 808), Rahim Khan V. Khurshid Ahmed and others(AIR 1975 SC 290), Ziyauddin Burhanuddin Bukhari V. Brijmohan Ramdass Mehra and others (AIR 1975 SC 1788),Udhav Singh V. Madhav Rao Scindia (AIR 1976 SC 744), Virendra Singh V. Vimal Kumar (AIR 1976 SC 2169), S.Harcharan Singh V. S.Sajjan Singh and others (AIR 1985 SC 236), Gadakh Yashwantrao Kankarrao V. Balasaheb Vikhe Patil and others (AIR 1994 SC 678), Mahadeorao Sukaji Shivankar V. Ramaratan Bapu and others (2004(7) SCC 181) and Ponnala Lakshmaiah V. Kommuri Pratap Reddy and others (2012(7) SCC 788).
38. Sri S Sreekumar, the learned counsel appearing for the first respondent contended that the returned candidate or his election agent or other persons with his consent or the with the consent of his election agent had never campaigned in the name of muslim religion in the election. Exts.P2 to P5 notices were never printed, published, or circulated in the Azheekode Assembly Constituency by the returned candidate or his election agent or his workers or any other person with his consent or his EL.PET..NO. 11 OF 2016 44 agents' consent. There were no pleadings in the election petition about the statement of facts and material particulars. The printing, publishing and circulation must be pleaded and proved by the petitioner and the burden of proof is upon the petitioner. The names of the printer and publisher of the above notices were not mentioned in the petition and the standard of proof is with regard to the trial of a criminal case. If the printer and publisher are not pleaded and proved, it will go to the root of the case. In the show cause notice, there was no mention about Exts.P2 to P5 and the reply Ext.X20 was created by the petitioner himself who had unholy alliance with PW2, RW5 and PW6. The evidence is contradictory to the pleadings and material facts totally lacking in the petition. Hence prima facie case is not made out against the returned candidate and the election petition is liable to be dismissed. Learned counsel relied on the decisions reported in Jamuna Prasad Mukhariya and others V. Lacchi Ram and others (AIR 1954 SC 68), Kultar Singh V.Mukhtiar Singh (AIR 1965 SC 141), Dr Jagjit Singh V. Giani Kartar Singh (AIR 1966 SC 773), Samant N.Balkrishna and another V. EL.PET..NO. 11 OF 2016 45 George Fernandez and others (1969(3) SCC 238), Hardwari Lal V. Kanwal Singh (1972(1) SCC 214), Harasingh Charan Mohanty V. Surendra Mohanty (1974(3) SCC 680), Thakur Virendra Singh V. Vimal Kumar (1977(1) SCC 718), Komireddy Ramuloo V.Chennemaneni Vidyasagar Rao and others (1990(3) SCC 612), Mullapudi Venkata Krishna Rao V. Vedula Suryanarayana (1993 Supp (3) SCC 504), ShivajiRao B Patil Kawekar V. VilasRao D Deshmukh (2000(1) SCC
398), R.P.Moidutty V.P.T.Kunju Mohammad and another (2000(1) SCC 481), Mercykutty Amma V.Kadavoor Sivadasan and others (2004(2) SCC 217), Mahendra Singh V. Gulab (2005(4) SCC 522), Joseph M Puthussery V. T.S.John and others (2010 KHC 4949).
39. 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 or his agent, or of any other person (with the consent of the EL.PET..NO. 11 OF 2016 46 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, (with the consent of a candidate or his election agent), of any EL.PET..NO. 11 OF 2016 47 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
40. 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. Apex Court in N.C.Zeliang V. Aju Newmal (AIR 1981 SC 8) held that a charge of corrupt practice in election petition must be proved by clear and cogent evidence as a charge for criminal offence. 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. In K.V.Narayana Rao V. P.Purushotham Rao (AIR 1993 SC 1698) it was held that corrupt practice must be clearly alleged and cogently EL.PET..NO. 11 OF 2016 48 established. In Mercykutty Amma V.Kadavoor Sivadasan and others (2004(2) SCC 217), it was held in paragraph 27 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 civil action but proof beyond reasonable doubt as in a criminal trial". The same principle was earlier settled by the Apex Court in Sunder Singh V Hardayal Singh (1985 SCC 91). Both parties in this case admitted that corrupt practices are quasi criminal charges and the proof required in such cases would be like criminal charge and allegation of corrupt practice must be proved beyond reasonable doubt.
41. Before ascertaining the correctness of rival submissions made by the learned counsel, the first point to be analysed is whether there was any publication of Exts.P2 to P5 by the first respondent, his agent or any other person with the consent of the candidate or his election agent ? Turning to the evidence, to establish the allegation of EL.PET..NO. 11 OF 2016 49 publication, petitioner was examined as PW1. The evidence of PW1 shows that first respondent wanted the muslim voters to vote for him on the basis of his religion, for that he circulated Ext.P2 pamphlet among muslim voters in the Constituency and appealed them to vote for him on the basis of Muslim religion. Ext.P2 pamphlet was published to make undue influence among the voters with the free exercise of their electoral right and requested the muslim voters to vote for him on the basis of his religion since the petitioner is a non muslim. He also published Exts.P3, P4 and P5 pamphlets, the facts published in those pamphlets are false and untrue with intention to defame the reputation of the petitioner and it created misunderstanding among the voters, which affected his election prospects. One Abdul Nazar K.T, K.Baiju and other workers handed over Ext.P2 to P5 to him, which were circulated by the 1 st respondent or his agent or workers or any other person with the consent of the first respondent or his election agent. It is an admitted fact that PW1 has no direct knowledge about this corrupt practice, but he examined the witnesses who saw the distribution of Exts.P2 to P5 during election campaign EL.PET..NO. 11 OF 2016 50 by the workers of the first respondent. The returned candidate, who was examined as RW1, denied the allegation of publication of notice and pamphlets. RW1 deposed that he or his election agent or his workers never campaigned in the election in the name of muslim religion and never printed, published or circulated Exts.P2 to P5 notices in his election campaign. Only after receipt of the notice in the election petition, he came to know about the pamphlets. RW1 stated that the police, Nodal Officer and other officers of MCC never seized any pamphlets violating MCC as alleged. The pamphlets seized by Valapattanam police and Mayyil police were printed and published by the petitioner himself. The members of the Special Squad of MCC were corrupt officers and workers of CPIM. Rajeevan, A.V.Narayanan and Padmanabhan were not his workers or workers of UDF and they never distributed Exts.P2 to P5 on 15.05.2016. He had no knowledge about the arrest of the above persons from Talkies Road, Kannadiparamba. Fazir K.V, Shakir, Favaz, Nisham and Rehiman had never distributed the above pamphlets at Thangal Vayal.
42. The independent witnesses PW11 and PW12, who EL.PET..NO. 11 OF 2016 51 are muslim voters of the Azheekode Assembly Constituency supported the evidence of PW1 about the distribution of Exts.P2 to P5 by the election squad of 1 st respondent. PW11 and PW12 are the voters of Azheekode Assembly Constituency, residing at Talkies road, Kannadiparamba. The evidence of PW11 shows that Narayanan, Noufal, Rajeevan, Padmanabhan, Majeed, Unni and four others, the local workers of first respondent campaigned for the first respondent at Kannadiparamba. He personally know the persons campaigned for UDF and LDF. On 15.05.2016 at 7 am, Narayanan, Noufal, Rajeevan, Padmanabhan, Majeed, Unni and other members of UDF squad visited his house with voter's slip and appealed to vote for first respondent and entrusted to him Exts.X2, X3, X4, and X5 (Exts.P2 to P5) pamphlets and notices. On the same day at 11 am, LDF workers visited his house, at that time he entrusted pamphlets Exts.P2 to P5 to Baiju, the LDF worker and enquired about the facts mentioned in the pamphlets to them. On the same day at 1 pm, police arrested some of the above workers of the UDF squad who campaigned in the morning near his house. PW12 supported the evidence of EL.PET..NO. 11 OF 2016 52 PW11 about the distribution of Exts.P2 to P5 pamphlets at Kannadiparamba. His evidence shows that on 15.05.2016, the workers of UDF Padmanabhan, Majeed, Rajeevan, Narayanan, Noufal and three or four others visited his house and handed over Exts.P2 to P5 pamphlets and voter's slip to him and requested him to vote for first respondent. On the same day between 10.30 am and 11 am, the LDF workers visited his house, at that time he handed over those notices to PW13 Baiju. Those notices were marked as Ext.X16 series. The evidence of PW11 and PW12 show that they handed over those notices to PW13 when he conducted house to house campaign of LDF as part of election. PW13 deposed that he visited the house of PW11 on 15.05.2016 at Kannadiparamba with LDF workers, at that time, PW11 entrusted Exts.P2 to P5 notices to him, who told that Paramban Rajeevan, Narayanan, Padmanabhan, Noufal, Majeed, Ashraf and other workers of UDF gave those notices. Immediately, PW13 informed the matter to Mayyil Police Station but till 4.30 pm, police did not take any action. Subsequently he gave Ext.P12(b) complaint to the Sub Inspector. This evidence of PW13 is corroborating the EL.PET..NO. 11 OF 2016 53 evidence of PW11 and PW12.
43. The first violation of Model Code of Conduct was reported by PW6, the Charge Officer. His evidence shows that on 12.05.2016, he got information that N.P.Manorama, President, Valapattanam Grama Panchayat was keeping pamphlets in her house, immediately he reached there, at that time, Valapattanam police seized those pamphlets from her house and he obtained Exts.X2 to X5 (Exts.P2 to P5) from Valapattanam police station and handed over those pamphlets to the Nodal Officer. RW5, the Station House Officer, Valapattanam police station supported the evidence of PW6 and stated that on 12.05.2016, he searched the house of N.P.Manorama and seized 15 kinds of different pamphlets from her house, for that Crime No.1074 of 2016 was registered against N.P.Manorama and her husband and after completing investigation, Ext.B1 final report was filed before Judicial First Class Magistrate II, Kannur against the accused. His evidence shows that he handed over few seized pamphlets to the Charge Officer (PW6), Special Squad, MCC, Kannur and the balance seized articles were produced before court.
EL.PET..NO. 11 OF 2016 54
44. The facts may be further analysed on the basis of the evidence of the official witnesses PW2, the Nodal Officer, PW6 the Charge Officer, PW7 and PW8 members of Special Squad, Model Code of Conduct, Kannur. The evidence of PW2 shows that he was the Nodal Officer from 04.03.2016 till the completion of election, appointed by RW4, the District Collector, Kannur. While working so, on 12.05.2016, PW6 submitted Ext.P9 report in which it was stated that on 12.05.2016, different kinds of pamphlets and notices were seized by Valapattanam police from the house of N.P.Manorama, and PW6 obtained Exts.P2 to P5 from Valapattanam police and forwarded to his office. After that incident, the Charge Officer reported that the workers and election squad of the first respondent violated the model code of conduct on 13.05.2016, 14.05.2016 and 15.05.2016 in various parts of the Azheekode Assembly Constituency. On 13.05.2016, the Charge Officer, PW6 and other members of MCC Special Squad found C.V.Santhosh, Sujith, Pradeepan and Prem Prakash, the workers of RW1, conducting house to house campaign with Exts.P2 to P5 pamphlets at Chettipeedika. On 14.05.2016, the Special EL.PET..NO. 11 OF 2016 55 Squad under the leadership of PW6 seized 500 notices of Exts.P2 to P5 from the top of a table, at Kannadiparamba, Pulloopikadavu, for that he received Ext.X11 report from PW6. On 14.05.2016, Charge Officer seized (Exts.P2 to P5) notices from Fazir, Zakir, Favaz and Rehman, who are the workers of RW1 from Valapattanam, Thangal Vayal while they were conducting house to house campaign. On 15.05.2016, the Sub Inspector, Mayyil Police Station seized notices from three workers of first respondent while conducting house to house campaign and they were taken into custody. On the same day, Special Squad seized Ext.P2 and P3 from the scooter KL 13AE 4526 which was owned by RW10.
45. The evidence of PW6 shows that being the Charge Officer for detection of violation of MCC, Kannur, he reported the violation to PW2, the Nodal Officer. On 12.05.2016, he had inspected different parts of Azheekode Assembly Constituency and submitted Ext.X1 report to the Nodal Officer. On that day, he got information over telephone that several bundles of defamatory pamphlets were kept in the house of the President, Valapattanam EL.PET..NO. 11 OF 2016 56 Grama panchayat. When he reached there, the police party seized the pamphlets and removed it to their police jeep, immediately he informed about the seizure to PW2. Subsequently, the police party took the pamphlets to the Valapattanam police station, PW6 went to the police station, from there he obtained Exts.X2 to X5 and handed them over with a report to the Nodal Officer. On 13.05.2016, he seized hundreds of pamphlets from C.V.Santhosh, Sujith, Pradeepan and Prem Prakash while they were conducting house to house campaign at the courtyard of a house at Chettipeedika and by Ext.X8 report, he informed the matter to the Nodal Officer. PW6 deposed that he conducted inspection as directed by the Nodal Officer, MCC. Those seized notices were marked as Ext.X9(a), X9(b) and X9(c) series (Ext.X2, X3 and X5). On 14.05.2016, PW6 inspected Pulloopikadavu and seized certain pamphlets kept on a table in the verandah of a closed shop in Building No.127 of Ward No.8 of Narath Panchayat. On the same day (14.05.2016), he visited Thangal vayal in Valapattanam Grama Panchayat and found ten persons including Fazir, Shakeer, Favaz and Rehman, distributing pamphlets containing defamatory EL.PET..NO. 11 OF 2016 57 statement about the petitioner. Immediately he reported the matter to PW2, Nodal Officer and Ext.X13 is the report. On 15.5.2016 also, he seized pamphlets from Talkies road, Kannadiparamba from a scooter No.KL 13 A E 4526.
46. It is true that PW1 and PW2 have no direct knowledge about the seizure, but PW6 had direct knowledge and he reported the violations of Model Code of Conduct on 12.05.2016, 13.05.2016, 14.05.2016 and 15.05.2016 to PW2 with seized pamphlets. On 12.05.2016, PW2 got Ext.X1 report, after that he sent Ext.X7 report to the returning officer. Another report Ext.X8 dated 13.05.2016, from PW6 shows that the inspection was conducted as per the direction of the Nodal Officer. The notice Ext.X9 series shows that 152 notices were received from PW6 in his office (Ext.X9(a), (b) and (c) series), Exts.P2, P3 and P5. On 14.05.2016, he received Ext.X11 report in which it was reported that PW6 received 500 notices (Exts.P2, P3 and P5) of Ext.X12 series. As per Ext.X13 report, 929 pamphlets, (Ext.X14 series) were seized. On 15.05.2016, as per Ext.X15 report he received 162 notices, which were marked as Ext.X16 series (Ext.P2 and P3). PW6 has direct EL.PET..NO. 11 OF 2016 58 knowledge about seizure of Exts.P2 to P5 on 12.05.2016 by RW5. On 13.05.2016, PW6 saw the distribution of Exts.P2, P3 and P5 by C.V.Santhosh, Sujith, Pradeepan and Prem Prakash, the workers of RW1 at Chettipeedika while they were conducting house to house campaign. On the next day, 14.05.2016, PW6 seized Exts.P2 to P5 from a shop building No.127 of Ward VIII of Narath Panchayat. On the same day, he saw 10 workers of first respondent including Fazir, Zakir, Favaz and Rehman distributing Ext.X14(a) to Ext.X14(e) at Thangal Vayal. On 15.05.2016, he seized pamphlets from a scooter KL-13 AE 4526 owned by Rajeevan from Talkies Road, Kannadiparamba and forwarded to PW2 with Ext.X15 report. The first respondent contended that the evidence of PW2 and PW6 are contradicting each other and their evidence is not believable. The contradiction is that PW6 and PW7 deposed that the seizure was videographed and the CDs were handed over to PW2, but PW2 deposed that the CDs were not handed over to him, but the CDs are kept in the safe custody of the election department. The District Election Officer, RW4 admitted that all squads have a videographer EL.PET..NO. 11 OF 2016 59 and they submit their CDs before the District Election office. Therefore that statement is not a ground to discard the evidence of PW2, PW6 and PW7 in toto, it shows that rigorous examination of their evidence is necessary.
47. Apex Court in Charan Singh V State of Punjab (1975 (3) SCC 3952) held that "the question of credibility of a witness has primarily to be decided by referring to his evidence and finding out how the witness has feared in cross examination and what impression is created by his evidence taken in the context of the other facts of the case". In short, the Evidence Act enables a court to imply only the standard of a prudent man in judging what is to be proved according to law. Therefore the minor discrepancy in handing over the CD to the District Election Officer is not a ground to disbelieve the entire evidence of PW2 and PW6. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is necessary for the court to scrutinise the evidence in view of the infirmities and drawbacks pointed out in the evidence as a whole and evaluate whether the EL.PET..NO. 11 OF 2016 60 evidence is shaken and unworthy of credit.
48. Apex Court in State of UP V. M.K.Anthony(AIR 1985 SC 48) held that "even honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals". While analysing the evidence as a whole, the minor discrepancies will not be a ground to reject their evidence on the ground of minor variations.
49. The other members of Special Squad, PW7 and PW8 saw the seizure of pamphlets from the house of N.P.Manorama on 12.05.2016 and the seizure of pamphlets by RW6 from Chettipeedika on 13.05.2016, Thangal Vayal on 14.05.2016 and from Kannadiparamba on 15.05.2016 and they supported the evidence of PW6. This shows that the workers of the election squad of the first respondent distributed the above pamphlets among voters in different places of Azheekode Constituency on 13.05.2016, 14.05.2016 & 15.05.2016. On examination of evidence of PW2, PW6, PW7 and PW8, the official witnesses, it is credible and strong enough to believe the seizure and distribution of Exts.P2 to P5. Analysing their evidence, it is EL.PET..NO. 11 OF 2016 61 clear that the above witnesses are responsible officers of Model Code of Conduct and they discharged their official duty in good faith. There are some minor discrepancies in their evidence, but no infirmity attached to their testimony, merely because they are officers of Revenue and Police Department and that is not a ground to discard their evidence in toto. If their evidence is found reliable and corroborated by independent evidence of PW11, PW12 and PW13, there is no impediment in accepting their direct oral and documentary evidence about distribution of Exts.P2 to P5. A careful scrutiny of their evidence shows that they are not interested in the case projected by the petitioner. Where the evidence of these official witnesses, after careful scrutiny inspires confidence and found to be trustworthy, it is reliable and the alleged distribution is proved. Apex Court in N Vimala Devi V K.M.Reddy (AIR 1975 SC 1135) held that "publication of defamatory pamphlets is corrupt practice". In another decision Jagir Singh V Jasdev Singh (AIR 1975 SC 1627) it was held that distribution of offending pamphlet and posters at the instance of successful candidate is corrupt practice. EL.PET..NO. 11 OF 2016 62
50. The defence put forward by the first respondent can legitimately be taken into account while assessing the value of the above evidence and judging the veracity of the seizure. It is an admitted fact that the falsity of the defence will not help the petitioner to establish his case. The case of the petitioner has to be tested independently of the version of the first respondent. It is not necessary for the returned candidate to prove his case in the same manner as the petitioner is required to prove. Apex Court in Lakshmi Singh V State of Bihar (AIR 1976 SC 2263) held that 'if the defence succeeds in throwing a reasonable doubt on the prosecution case, that will be sufficient to reject the prosecution case". The evidence of RW1 shows that he or his agent Biju Ummer or other person with his consent or agent's consent had never printed, published or circulated Exts.P2 to P5 in the constituency. The police Officer and the officers of MCC never seized pamphlets from the house of N.P.Manorama, violating the MCC. He, his election agent, his workers or any other agents had never influenced or canvassed votes from the muslim community on the ground of religion. The members of Special Squad of MCC were EL.PET..NO. 11 OF 2016 63 corrupt officers and workers of CPIM. Only after receipt of notice in the election petition, RW1 came to know about Exts.P2 to P5 pamphlets. Smt N.P.Manorama neither participated in any public meeting nor canvassed any vote and she never kept the above notice in her house. On 13.05.2016, C.V.Santhosh, Sujith, Pradeep and Prem Prakash never distributed Exts.P2 to P5 pamphlets as alleged. He had no knowledge about the case registered by Valapattanam police.
51. Another contention was that Rajeevan, A.V.Narayanan and Padmanabhan were not his workers or workers of UDF and RW1 had no knowledge about the arrest of the above persons on 15.05.2016 from Talkies road, Kannadiparamba. Fazir K.V, Shakir, Favaz, Nisham and Rehman had not distributed Exts.P2 to P5 at Thangal Vayal and the seizure of 750 pamphlets by the MCC, Special Squad from Fazir is incorrect. RW1 categorically stated that the pamphlets seized by Valapattanam police and Mayyil police were printed and published by the petitioner himself, but he admitted that Biju Ummer and Ragesh were working for him during the election period and they were present at EL.PET..NO. 11 OF 2016 64 the time of inauguration of his election office. He admitted that Smt N.P.Manorama is the member of Indian National Congress, Valapattanam Grama Panchayat and in cross examination he stated that Kallikodan Ragesh was a worker of his election campaign, but not an active worker.
52. The defence of RW1 may be examined in the light of the oral evidence of RW2, RW8, RW9, RW10, RW11 and RW12. It is pertinent to note that RW2 is the member of Narath Grama panchayat and the convenor of UDF Election Committee Narath, and polling agent of RW1 in Booth No.60. According to him, Rajeevan and A.V.Narayanan have no political affinity and they worked for V.P.Prasad, an independent candidate. On 15.05.2016, when RW2 was standing at Kannadiparamba, both of them were arrested by Mayyil Police while demonstrating electronic voting machine at Kannadiparamba and no notices were seized from them. He did not see the seizure of Exts.X2 to X5 from the varandah at Kannadiparamba. The evidence of RW8 shows that he did not go for election campaign after 06.05.2016. The evidence of RW9 shows that he is the Secretary, Indian National Congress, Chirakkal Block EL.PET..NO. 11 OF 2016 65 Committee and the polling agent of first respondent in Booth No.98. RW10 admitted that he was a congress worker and the President of the Congress Ward Committee. RW11, Narayanan and RW12 Padmanabhan are also congress workers. He denied his arrest and the arrest of RW11 and RW12 from Kannadiparamba by Mayyil police. He admitted that he is the owner of the scooter KL-13 AE 4526 which was parked near the place of occurrence. He is an accused in C.C.1164 of 2016 of the Judicial First Class Magistrate II, Kannur and enlarged on bail by that court. He admitted that Kallikodan Ragesh was the President, Chirakkal Block Committee, Indian National Congress. His evidence shows that RW11, RW12 and himself had campaigned for V.P.Prasad as per the direction of Kallikodan Ragesh. In cross examination, he admitted his arrest, the arrest of RW11 and RW12 on 15.05.2016 by Mayyil police from Kannadiparamba. He did not know whether there was any difference of opinion among the members of INC for alloting the seat to IUML. RW11 admitted that RW10 came at Kannadiparamba in a scooter. RW12 campaigned for V.P.Prasad in the election and the polling agent in Booth EL.PET..NO. 11 OF 2016 66 No.58, appointed by Kallikodan Ragesh, the Chief election agent of V.P.Prasad. He admitted that on 15.05.2016, Mayyil police arrested him with RW10 and RW11 from Kannadiparamba. The person mentioned in Ext.X18 as 'Padmanabhan' is he himself and he is a worker of Indian National Congress.
53. The evidence of RW10, RW11 and RW12 shows that there was a resentment among the congress workers in alloting the assembly seat to Indian Union Muslim League and they worked for V.P.Prasad, an independent candidate. Sri Kallikodan Ragesh is the President, Chirakkal Block Congress Committee which was stated by RW10. RW1 admitted that Ragesh is his worker and he participated in the inauguration of his election office. RW9 stated that he was the Secretary, Chirakkal Block Committee and polling agent of RW1 in booth No.98. RW10, RW11 and RW12 are congress workers, who were appointed as polling agents of V.P.Prasad by Kallikodan Ragesh. In the light of the relationship between RW1 and Kallikodan Ragesh, the falsity found in the defence is a circumstance against RW1. The defence of RW1 can be legitimately taken into account while EL.PET..NO. 11 OF 2016 67 assessing the value of his evidence. The false explanation by the witness and RW1 can be used as an additional link to prove the unholy alliance of RW1 with Kallikodan Ragesh. When Indian National Congress Block President is acting as the Chief election agent of an independent candidate V.P.Prasad and he appoints RW10, RW11 and RW12, the congress workers as polling agents of V.P.Prasad and they were distributing Exts.P2 to P5 in the constituency, this will create a doubt in the credibility of the evidence of RW1. RW10, RW11 and RW12 took defence that when they campaigned with dummy voting machine, CPM workers obstructed them, in the meantime, police came there and arrested them with dummy voting machine is a false story, in the light of the evidence of PW6, PW7, PW8 and RW6, it is to be discarded.
54. The seized articles were brought before Mayyil police station and from there those documents were produced before court. In Ext.B4 seizure mahazar, the details of dummy voting machine were not mentioned by RW6. Even though RW10, RW11 and RW12 contended that they were fielded by Kallikodan Ragesh due to the EL.PET..NO. 11 OF 2016 68 resentment among congress workers for alloting seat to the Muslim league, no evidence has been produced before this court to prove the alleged resentment among congress workers in that constituency. When seat sharing was adjusted by the coalition political parties, it is the duty of the coalition parties to campaign for the victory of the candidate of the coalition front. When congress workers RW10, RW11 and RW12 were fielded by Kallikodan Ragesh, who is the President of Chirakkal Block Committee of the Indian National Congress and they were carrying Exts.P2 to P5, this creates a doubt in the trustworthiness of their evidence. The President of Valapattanam Grama Panchayat and the congress leader N.P.Manorama was keeping the same pamphlets in her house which was seized by RW5. The congress workers and the polling agents of V.P.Prasad, RW10, RW11 and RW12 had been widely distributing the above pamphlets in the election campaign in different parts of the constituency for first respondent, which were seized by the police and officers of MCC, it is found that RW2, RW8, RW9, RW10, RW11 and RW12 are suppressing real facts and lying before court. The credibility of the above EL.PET..NO. 11 OF 2016 69 witnesses can be decided from how the witnesses answered about the incident in their cross examination and what impression is created by their evidence in the context of other facts of the case. Consistency in the testimony of a witness is not the sole test for ascertaining the truth. Some times even falsehood is skilfully given in appearance of truth, then truth disappears and falsehood comes on the surface. The falsehood in their evidence and exaggeration of facts are relevant points which are destructive to the negative evidence of RW1 and it is the courts duty to sift the evidence, separating truth from the falsehood. Therefore the inconsistent and exaggerated version of RW2, RW8, RW9, RW10, RW11 and RW12 is not reliable and it is only to be discarded. These witnesses are suppressing real facts due to their political affinity and loyalty. It do not touch the core of the case, when trustworthy evidence of the official witness is available for supporting the real substance of the case.
55.The crucial first question to be examined in this context is whether there was any undue influence made by the first respondent or his agent or his workers with the EL.PET..NO. 11 OF 2016 70 consent of the candidate or agent and committed any corrupt practice under Section 123(2) of R P Act 1951. The basic concept of undue influence relating to an election is voluntary interference or attempt to interfere with the free exercise of electoral right. If the first respondent or his agent or workers campaigned in the election which is calculated to interfere with the free exercise of electoral right of a voter, it is the true test to prove undue influence. Such free exercise of electoral right has a nexus with direct or indirect interference in the election process or attempt to interfere at any stage of the election. If there is any direct or indirect interference or attempt to interfere on the part of the candidate, it amounts to an undue influence. Therefore, the words 'direct' or 'indirect' used under Section 123(2) of the R P Act have to be considered bearing in mind the factual context and evidence of that case. Apex court in Krishnamoorthy V. Sivakumar and others (2015(3) SCC
467) 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".
56. While deliberating on undue influence as enshrined EL.PET..NO. 11 OF 2016 71 under Section 123(2) of the Representation of People Act, 1951 apex court in Ziyauddin Burhanuddin Bukhari V. Brijmohan Ramdass Mehra and others (AIR 1975 SC 1788), held that ;-
"it is an essential ingredient of the corrupt practice of "undue influence" under Section 123(2) of the Representation of the People Act, 1951 that there should be any "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".
57. In another decision Aad Lal V Kanshi Ram (AIR 1980 SC 1358) it was 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'.
58. Bearing in mind first I have examined whether there was specific pleadings in the petition about the alleged corrupt practice under Section 123(2)(a)(ii) and EL.PET..NO. 11 OF 2016 72 123(3) of the R P Act, 1951. Petitioner pleaded in paragraph 3 about the corrupt practice under Section 123(2)(a)(ii).The pleadings are as follows:
"കകാരുണണ്യവകാനകായ അലകാഹുവവിനന്റെ അടൂക്കൽ അമുസവിസ്ലിംകൾക സകാനമവില.. അനണ്യ നകാളളീൽ അവർ സവിറകാതവിനന്റെ പകാലസ്ലിം ഒരവിക്കലസ്ലിം കടകകയവില.. അവർ നചെകുതകാനന്റെ കൂനട അനവി ഉറങങ്ങേണ്ടവരകാണു . 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 നവിങ്ങേളനട അടുത്തു വന്നകാൽ നവിങ്ങേളതേവിനന പറവി വണ്യക്തമകായവി അങനശഷവിചെചെറവിയണസ്ലിം. . അറവിയകാനതേ എനനങവിലസ്ലിം ഒരു ജനതേക്കദ് നവിങ്ങേൾ ആപതദ് വരുത്തുകയസ്ലിം എന്നവിട്ടു ആ നചെയ്തതേവിനന്റെ ങപരവിൽ നവിങ്ങേൾ ങഖേദക്കകാരകായളീ തേളീരുകയസ്ലിം നചെയയകാതേവിരവിക്കകാൻ ങവൺടവി".
The pleadings is 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 EL.PET..NO. 11 OF 2016 73 stands guard over us. Multi colour photograph of the first respondent and his election symbol 'ladder' was published in Ext.P2. PW1 stated that the above pleading are sufficient to prove the undue influence made by the first respondent among the muslim voters directly or indirectly in the constituency. The caption was written in arabic language and the remaining portion was printed in Malayalam language.
59. The evidence of PW11 and PW12, who are the muslim voters in the Constituency shows that the workers of first respondent distributed Exts.P2 to P5 pamphlets in their houses. PW12 also deposed that the workers of first respondent entrusted the above pamphlets and requested to vote for the first respondent. Analysing their evidence, it is found that no direct threat or intimidation was made by the workers of RW1, but PW1 stated that by circulation of Ext.P2, the first respondent has made an indirect interference with the free exercise of the electoral right. Petitioner contended that the words used in Ext.P2 induce or attempt to induce an elector to render an object of divine displeasure or spiritual censures, if he does not vote for RW1. Petitioner urged that if such an attempt is made, it EL.PET..NO. 11 OF 2016 74 shall be deemed to interfere with the free exercise of electoral right of such candidate. When there was no direct threat or intimidation from the side of the first respondent or his agent or other persons, another aspect to be examined is whether there was any inducement or indirect interference made by them to an elector and that is sufficient to attract Section 123(2)(a)(ii) of the Act. Apex court in Ziyauddin Burhanuddin Bukhari's case (supra) held as follows :-
"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, 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".
60. 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 EL.PET..NO. 11 OF 2016 75 act which directly or indirectly interferes or attempts to interfere with the free exercise of electoral right. The words used in Ext.P2 is 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. The above words do not give a vigorous propaganda by a candidate to induce an elector to believe that he will be rendered to divine displeasure or spiritual censures. If voters were pressurised or threatened either directly or indirectly by making any publication, there should be a sufficient ground to take an inference. The evidence shows that Ext.P2 pamphlet was published among the voters, but no evidence has been adduced by the petitioner to show that it induces 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 censures for a corrupt practice under Section 123(2)(a)(ii) of the R P Act 1951. When there was no direct or indirect threat or intimidation from the side of the first respondent EL.PET..NO. 11 OF 2016 76 or his agent or other persons, I am of the view that there was no inducement or interference to attract a corrupt practice under Section 123(2)(a)(ii) of the Act.
61. 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. 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 mileage by seeking votes on the ground of candidate's religion. Therefore, the election should not be contested on the ground of religion or caste, in this context, what are the pleadings and evidence in this case 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 in paragraph 3 of the petition about the corrupt practice under Section 123(3) of the R P Act, 1951. The EL.PET..NO. 11 OF 2016 77 malayalam writing in Ext.P2 reads as follows:
"കകാരുണണ്യവകാനകായ അലകാഹുവവിനന്റെ അടൂക്കൽ അമുസവിസ്ലിംകൾക സകാനമവില.. അനണ്യ നകാളളീൽ അവർ സവിറകാതവിനന്റെ പകാലസ്ലിം ഒരവിക്കലസ്ലിം കടകകയവില.. അവർ നചെകുതകാനന്റെ കൂനട അനവി ഉറങങ്ങേണ്ടവരകാണു 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".
The pleadings show that first respondent being 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 and he circulated the pamphlets among the voters of the Constituency. The above words show 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 EL.PET..NO. 11 OF 2016 78 pray to Allah to bless the first respondent, a Muslim, who prays five times a day and stands guard over us. The word 'മുഹവിൻ' means muslim. Muslim voters pray to Allah for the victory of the first respondent, a muslim and no place for non muslim near merciful Allah is an appeal on the ground of religion. Voters have to bless a candidate by casting their votes. This is a direct request to vote on the ground of muslim religion and not to vote for a non muslim. The muslims not to bless a non muslim during election means not to vote for a non muslim. This single act 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 or refrain from voting for any person on the ground of religion, race, caste or community etc. would be corrupt practice.
62. The ordinary meaning expressed in the pamphlet may be analysed in this context. The caption was written in arabic language and the remaining portion was printed in Malayalam language. In Harcharan Singh's case (supra), it was held that "the nature and consequence of an act may not appear on its very fact but the same can be EL.PET..NO. 11 OF 2016 79 implied having regard to the language, the context, the status and position of the person issuing the statement, the appearance and known religion of the candidate, the class of persons to whom the statement or act is directed, etc". The evidence of PW1 shows that Ext.P2 conveyed an impression among the muslim voters in the constituency not to cast vote for PW1, a non muslim but also demanded to refrain from voting for him. PW11 and PW12 deposed before court about the impression created in their mind about the petitioner after reading Ext.P2 which was conveyed to PW13 during his visit. Ext.P2 was circulated to PW11 and PW12 by the workers of RW1, who are familiar to them. The persons who circulated the pamphlets are the workers of RW1 in that locality. PW11, PW12 and PW13 are muslim voters of which PW11 and PW12 have no political affinity. Even though RW1 denied the political affection of the person who circulated Ext.P2, the evidence of the official witnesses PW6, PW7, PW8, RW5 and RW6 and independent witnesses PW11 and PW12 show that RW8, RW9, RW10, RW11 and others are workers of UDF. It would not be an appeal to religion if a candidate is put up by EL.PET..NO. 11 OF 2016 80 saying 'vote for him' because he is a good Muslim, but it would be an appeal to religion if it is advertised not to vote for non muslim.
63. Apex Court in S.Harcharan Singh's case (supra) held as follows:-
"In order to determine whether certain activities come within the mischief of S.123(3), regard must be had to the substance of the matter rather than to the mere form or phraseology. The inhibition of S.123(3) should not be permitted to be circumvented indirectly or by circuitous or subtle devices. The court should attach importance to the effect and impact of the acts complained of and always keep in mind the paramount purpose of S.123(3) namely to prevent religious influence from entering the electoral field. The nature and consequence of an act may not appear on its very fact but the same can be implied having regard to the language, the context, the status and position of the person issuing the statement, the appearance and known religion of the candidate, the class of persons to whom the statement or act is directed, etc".
The basic principle underlying S.123(3) of the R P Act would eliminate divisive factors such as religion, caste etc from the electoral process. Therefore the emotions generated by religion should not be permitted to be EL.PET..NO. 11 OF 2016 81 exhibited during election and choice of the people are not coloured in any way. The candidates cannot tell the electors that their rivals are unfit to act as the representatives of the people on the ground of their religion, if such an appeal is made it would be an appeal on the ground of religion. The words used in Ext.P2 indicate that an appeal was made in conformity with the ground mentioned under Section 123(3) of the R P Act 1951.
64. The main allegation against the first respondent in this petition is that the returned candidate or his agent or any other person with the consent of the candidate or his election agent had published Ext.P3, P4 and P5 pamphlets against the petitioner and the statement of fact stated therein is false, and which he either believes to be false or does not believe to be true, in relation of the personal character or conduct of any candidate. Petitioner contended that the statements are made reasonably calculated to prejudice the prospects of his election, which is a corrupt practice under S.123(4) of the R P Act 1951.
65. Apex Court in Kumara Nand V. Brijmohan Lal Sharma (AIR 1967 SC 808), held that Sub-section (4) of EL.PET..NO. 11 OF 2016 82 Section 123 of the Representation of the People Act, 1951, requires : (i) publication of any statement of fact by a candidate, (ii), that fact is false, (iii) the candidate believes it to be false or does not believe it to be true, (iv) the statement is in relation to the personal character or conduct of another candidate; and (v) the said statement is one being reasonably calculated to prejudice the prospects of the other candidate's election. What has perhaps been particularly found in the section is that the responsibility of the candidate for the publication arises if he publishes the matter himself, at the same time he is equally responsible for the publication if it is published by his agent. However he is also responsible where the matter is published by any other person but with the consent of the candidate or his election agent. In all these cases the responsibility is of the candidate and it is ordinarily the candidate's belief that matters for this purpose. If the candidate either believes the statement to be false or does not believe it to be true he would be responsible under Section 123(4). What would be the position in a case where a candidate had no knowledge about the publication. This section ensure the EL.PET..NO. 11 OF 2016 83 responsibility of the candidate for the publication of any notice or pamphlet and at the same time he is equally responsible for the publication if it is published by his election agent. The expression "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. Similarly, he is responsible where the notice is published by any other person, with the consent of the candidate or his election agent. In these situations the responsibility is of the candidate and if the candidate either believes the statement to be false or does not believe it to be true, he would be responsible under S.123(4) of the R.P.Act, 1951.
66. While considering the corrupt practice under S.123(4), this is the right time to examine whether all the requirements thereof must be satisfactorily proved in this case by the petitioner. Both sides have cited several decisions of the apex court highlighting the difference between material facts and material particulars as stated under Section 123(4) of the R P Act, 1951. I have considered all decisions, but it is not necessary to refer all EL.PET..NO. 11 OF 2016 84 of them and it will be sufficient to extract the following decisions; Virendra Singh V. Vimal Kumar (AIR 1976 SC 2169), Gadakh Yashwantrao Kankarrao V. Balasaheb Vikhe Patil and others (AIR 1994 SC 678), Kumara Nand V. Brijmohan Lal Sharma (AIR 1967 SC
808).
67. Apex Court in Gadakh Yashwantrao Kankarrao V. Balasaheb Vikhe Patil and others (AIR 1994 SC 678) held as follows:-
"30. 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 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. EL.PET..NO. 11 OF 2016 85 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".
68. In Kumara Nand 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 EL.PET..NO. 11 OF 2016 86 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".
69. 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. 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. Apex Court in Gadakh's case (supra), settled the 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. Paragraph 4 of the petition reads thus:- EL.PET..NO. 11 OF 2016 87
" 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 സമർപവികനമന സൂചെന;".
The pleadings in Ext.P3 is that "can the one who do not care his family do something for the betterment of his nation ?" It is also stated in Ext.P3 that he has illicit relationship with Saritha and his wife has got evidence of telephone calls and SMS messages and she will be submitting those details before court. The torn photograph of the petitioner with his wife and children is published in Ext.P3. On the top of the above family photograph, a small photograph of petitioner and Saritha is also published. In paragraph 5 the pleading starts with "നവിങകഷദ് കുമകാർ 20 ലകസ്ലിം വകാങ്ങേവിനയന രകാജദ്കുമകാർ ഉണവി". "Nikesh Kumar received Rs.20 lakhs from Raj Kumar Unni", President of Bar Hotel Association. It was alleged that when repayment of that EL.PET..NO. 11 OF 2016 88 amount was delayed, Raj Kumar Unni called Nikesh over telephone and demanded the money immediately. Laju is the employee of marketing Division, Cochin Bureau of Reporter T.V, who went to Renai Medicity, Kochi to collect 20 lakhs as arranged by Raj Kumar Unni as per the instruction of petitioner. The pleadings in paragraph 7 starts with "നവിങകഷദ് കുമകാർ നചെറകടവിലവിൽ നവിന മകാളവികയവിൽ എതവിയ ങകകാടളീശശരൻ".". "Nikesh Kumar, who is a millionaire reached the mansion from a hut". It is alleged in Ext.P5 that PW1 has assets worth 4 ½ crores rupees and a house having 5579 sq.ft in Ernakulam.
70. The corrupt practice under Section 123(4) are pleaded in paragraph 4, 5, 6 and 7 of the petition and details of Ext.P3, Ext.P3(a), Ext.P4, Ext.P4(a), Ext.P5 and Ext.P5(a) are mentioned in paragraphs 4, 5, 6 and 7 of the petition. The material particulars are specifically pleaded in paragraphs 9, 18 and 19. In paragraph 9, details of Ext.P7, Ext.P7(a), Ext.P8, Ext.P8(a), Ext.P15, Ext.P15(a), Ext.P16, Ext.P16(a), Ext.P15(b), Ext.P15(c), Ext.P16(b) and Ext.P16(c) are mentioned. Four incidents of distribution and EL.PET..NO. 11 OF 2016 89 the person who distributed Exts.P3 to P5 and the person who stocked Exts.P2 to P5 were pleaded in the petition. First respondent contended that no specific pleadings are found in this petition to attract the alleged corrupt practice u/s.123(4) of the R P Act, 1951 and the pleadings in paragraph 9 and 10 of the petition are only general. Apart from that, RW1 contended that the person who registered FIR was not pleaded and in Ext.P24 report, the details of seizure mahazars were not mentioned. It is an admitted fact that the general pleadings cannot be believed as a gospel truth to prove the alleged corrupt practice. Apex Court in Rahim Khan V. Khurshid Ahmed and others(AIR 1975 SC 290) held that the name of every witnesses need not be mentioned in the particulars of corrupt practice except where his name is necessary item of particulars.
71. The evidence of PW1 shows that Ext.P3, P4 and P5 pamphlets were circulated by RW8, RW9, RW10, RW11, RW12 and other workers of the first respondent with the consent of the first respondent or his agent on 13.5.2016, 14.05.2016 and on 15.05.2016. Those facts published in the pamphlets have affected his personal character and EL.PET..NO. 11 OF 2016 90 conduct of himself and his family. PW1 stated that the first respondent believes that the facts published in Exts.P2, P3, P4 and P5 are false and untrue which will affect petitioner's reputation and it affected his election prospects. In Ext.P3 it is stated that petitioner has relationship with one Saritha, an accused in solar scam, for that reason his wife is going to file a petition for divorce. Petitioner stated that he does not know Saritha and never talked with her over telephone and all facts published in Ext.P3 are false. He is living with his wife Rani Varghese and children at Ernakulam and leading a peaceful family life and his wife has no intention to get separated from him. Smt Saritha is an accused in the solar scam case which was a major issue in 2016 General Assembly Election in Kerala. As a media person, petitioner had published several news about solar scam and hence in order to tarnish his name in the general election, first respondent published this false news. Another pamphlet Ext.P4 published during that election period in which Bar scam was a major issue during 2016 Kerala Assembly Election. Petitioner was the Managing Director and Editor in Chief of Malayalam Reporter Channel. In Ext.P4 it was EL.PET..NO. 11 OF 2016 91 stated that PW1 sent Laju to Raj Kumar Unni and received Rs.20 lakhs from him, but he deposed before court that he has no dealings with him and no relationship with Raj Kumar Unni. All facts published in Ext.P4 pamphlet are false and it created misunderstanding among the voters.
72. In Ext.P5 pamphlet it was published that " Nikesh Kumar Chettakudilil ninnum malikayil ethiya kodeeswaran"
and it is stated that the above news was published in Mathrubhoomi daily, a Malayalam newspaper. It also contains a statement quoting Mathrubhoomi Malayalam daily that the petitioner has got assets worth 4.5 Crores and he owns a house having an area of 5579 Sq.feet in Ernakulam and that there is a public demand that an enquiry should be conducted how Nikesh Kumar, who was a Journalist acquired so much assets. Actually no such publication was made in Mathrubhoomi newspaper. PW1 contended that he has no house or building in his name in any part of Kerala and he is residing with his family in a rented house. The affidavit filed along with his nomination before the returning officer is true and correct which was known to the first respondent. Believing the facts stated in EL.PET..NO. 11 OF 2016 92 Exts.P3 to P5 as false and not believing it to be true, first respondent and his agents published the above pamphlet and circulated it among the voters in the constituency. In Magraj Patodia V. R.K.Birla (1971(2) SCR 118: AIR 1971 SC 1295), it was held that "many times corrupt practices may not be established by direct evidence and the same may have to be inferred from the proved facts and circumstances, but the circumstances proved must reasonably establish that the alleged corrupt practice was committed by the returned candidate. It was also emphasised that preponderance of probabilities is not sufficient proof in such a matter". RW1 in his written statement admitted that the allegations in Exts.P3, P4 and P5 are related to the personal character of the petitioner and he has no knowledge about the personal life of the petitioner. RW1 stated that petitioner himself had got printed Exts.P3, P4 and P5 in order to make out a cause of action for filing an election petition. There is no force in the argument of RW1 about the publication of Exts.P3 to P5 by the petitioner. But as a fact, it is difficult to imagine such an act from the side of the petitioner to publish defamatory EL.PET..NO. 11 OF 2016 93 news against himself when he was the main opponent of the first respondent in the Assembly Election.
73. It is significant to note that the facts published in Exts.P3, P4 and P5 pamphlets are false and untrue with intention to defame the reputation of the petitioner and it created a misunderstanding among the voters. The independent witnesses PW11 and PW12 who are muslim voters stated that on reading the contents in Exts.P3 to P5, a wrong impression was created in their mind about PW1. When PW13 visited their house in connection with election campaign, they asked how they could cast vote for such a candidate like PW1 and enquired whether he was of such a character. Analysing their evidence it is found that the statement of facts mentioned in Exts.P3 to P5 created bad impression among PW11 and PW12 and other voters. In Manmohan Kalia V. Shri Yash (AIR 1984 SC 1161) it was held that " News item published in newspaper can be taken in account with other forcible evidence". RW1 was aware of the facts 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 EL.PET..NO. 11 OF 2016 94 practice under Section 123(4) of the R P Act, 1951. PW1 in his elaborate evidence proved that the statement was false and not about his hypothetical future possibility. 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 Exts.P3, P4 and P5 are related to the personal matters of PW1. This statement was made reasonably calculated to prejudice the election prospects of PW1. If the above facts are only an opinion about the personal character or conduct, it is a different matter of publication. Analysing the evidence of PW11, PW12 and PW13, false statement was published and the requirement of all ingredients attracting Section 123(4) of the R P Act, 1951 is fulfilled in this case.
74. The first respondent contended that the name of the Press and the place where the pamphlets were printed was neither pleaded nor proved by the petitioner. I have perused the pamphlets, the place where it was printed was not specifically pleaded, but it is pleaded that the above notices were published by "President, Indian Overseas Congress Kannur Jilla Committee". RW1 stated that there EL.PET..NO. 11 OF 2016 95 is no such organization at Kannur and Indian National Congress has no sister concern in the above name. RW1 also contended that Exts.P2 to P5 were seized by police and Special Squad appointed for detection of MCC is absolutely false which was printed and circulated by the petitioner himself for filing an election petition. A close inspection of the direct evidence of PW6, PW7, PW8, PW11 and PW12 shows that printed materials were seized from various parts of the assembly constituency on 12.05.2016, 13.05.2016, 14.05.2016 and 15.05.2016 from the workers of RW1 and no prompt action was taken to find out the printer and publisher by the police or the officers of MCC. No investigation was conducted by Valapattanam police and Mayyil police to find out the printer and publisher of the above pamphlets after seizure. The Printer is cited as President, Indian Overseas Congress Kannur Jilla Committee and RW1 admitted that no such organisation exists. When a scandal is spread throughout the constituency against the petitioner without a trace of source knowing that nothing will happen after election, the person from whom the pamphlets were seized has to disclose the EL.PET..NO. 11 OF 2016 96 source from which they got it and the name of the printer and publisher. The first respondent's election workers RW8, RW9, and other workers of UDF as well as RW10, RW11, RW12 were found in possession of Exts.P2 to P5 and distributing it in various parts of the constituency, then a vague denial by RW1 is not sufficient to believe that it was printed by the petitioner. The Valapattanam and Mayyil police and the officers of MCC are the competent persons for taking timely enforcement of law, but they did not take any effort to detect the printer and publisher. The persons who distributed the pamphlets were pleaded in the election petition and the petitioner contended that the above pleadings are clear and precise and PW1 has no direct knowledge about the name of the printer. In Virendra Singh's case (supra), apex court held that "It is also now well settled that failure to give particulars of printing of the pamphlet is not detrimental and cannot lead to the dismissal of the petition. (See Prabhu Narayan V. A.K.Srivastava (1975 (3) SCC 788 : (AIR 1975 SC 968)".
75. Apex Court in Joseph M Puthussery V. T.S.John (AIR 2011 SC 906) held that "publication of offending EL.PET..NO. 11 OF 2016 97 leaflet means distribution of the printed materials". The same principle was earlier settled by the Apex Court in Virendra Singh's case (supra), in which it was held that publication of offending leaflet means distribution of the printed material. Apex Court held that "when such a pamphlet is published by the returned candidate the only inference that can be drawn is that the publication was reasonably calculated to prejudice the prospects of the election of the other contesting candidate". The facts show that Exts.P2 to P5 were printed by the returned candidate or his agent or his supporters. They printed those pamphlets with specific planning, harming the chance of the petitioner and thereby helping the respondent.
76. Apex Court in Prabhu Narayan V. A.K.Srivastava (1975 (3) SCC 788) held that "the plan and the direction could have come only from one source that is the returned candidate. In that case the question of publication and distribution was a matter to be decided on the basis of oral evidence. The pamphlets were printed by the supporters of the returned candidate. They were printed with a definite purpose, that is of harming the chances of the returned EL.PET..NO. 11 OF 2016 98 candidate in the election and thereby aiding the respondent".
77. 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 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".
78. While answering the question of not pleading the name of the press and the place where the leaflets Exts.P2 to P5 were printed, the finding in respect of the decision of the Apex Court in Virendra Singh's case (supra) is relevant. Therefore failure to plead the name of the printer EL.PET..NO. 11 OF 2016 99 is not detrimental and not a ground to discard the direct evidence of distribution. Now, the only point that survives in this case is that the distribution of the pamphlets by the workers of the first respondent was reasonably calculated to prejudice the election prospects of PW1 to the State Legislative Assembly general elections of 2016. Here petitioner contended that his allegation was only distribution of pamphlets. 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, the President of Valapattanam Grama Panchayat and seizure from the possession of the workers of UDF by the police and officers of MCC, it is presumed that the workers have specific plan and the direction could have come from the returned candidate or his agent.
79. An important point to be considered in this context is whether the returned candidate or his agent had given consent for commission of corrupt practice. There is no direct evidence to prove the consent in this case. Then the question is, in the circumstances of the case whether the first respondent had knowledge of the alleged corrupt EL.PET..NO. 11 OF 2016 100 practice on various days. PW1 stated that RW1 or his agent had given consent to the workers to distribute the pamphlets. The first 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, PW2 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. From the above facts, it is clear that the above acts were done with specific design and the first respondent or his election agent must have consented to the above acts. The first respondent contended that on 12.05.2016, while preparing Ext.P24, the details of Ext.P4 pamphlet alone was stated and seizure of Exts.P2, P3 and P5 pamphlets were not mentioned therein. The evidence of PW3 shows that Smt.N.P.Manorama was elected as the member of Indian National Congress and sworn in as the member of Valapattanam Grama Panchayat on 12.11.2015 and EL.PET..NO. 11 OF 2016 101 assumed office as the President of Valapattanam Panchayat in November, 2015. Panchayat is maintaining a register as per Rule 3 of Kerala Local Authorities (Disqualification of Defected Members) Rules. The seized articles and search list were produced before Judicial First Class Magistrate II, Kannur. The Apex court in Nathu Garam V State of UP (AIR 1979 SC 716) held that proof of exclusive occupation or possession of the house is sufficient and legal ownership need not be proved. According to RW5, the search was conducted in the presence of Smt N.P.Manorama and her husband and criminal case is pending before Judicial First Class Magistrate, Kannur against them. The Charge Officer, who is an independent official witness of MCC supported the evidence of RW5 about seizure on 12.05.2016.
80. Apex court in Sheopat Singh V. Harish Chandra(AIR 1960 SC 1217) held in paragraphs 5 and 6 that "But, as a fact, we find that such acts were repeated regularly on the polling on the 3rd, 5th, 7th and 9th March, and to some of them his own agents were parties. From the above facts, it is not an unreasonable inference to draw that all the above acts were committed not haphazard but by EL.PET..NO. 11 OF 2016 102 design, and that the appellant must have consented to them. That is an inference which the learned Judges were entitled to draw, and being one of fact, this Court will not disturb it. In our opinion, that inference was a perfectly reasonable one to come to, and we accept it". The circumstance relating to search and seizure is deserving serious attention and respect. On 13.05.2016, PW6 seized Ext.X9 series of pamphlets from C.V.Santhosh, Sujith, Pradeepan and Prem Prakash, who were associates of Kallikodan Ragesh, a prominent congress leader. RW8 admitted that he is a worker of Indian National Congress and campaigned for the first respondent till 06.05.2018 and his brother C.V.Santhosh is the Secretary, Indian National Congress District Committee, Kannur and the member of UDF Election Committee, Booth No.98 and polling agent of first respondent. His evidence shows that RW9 Prem Prakash is a congress worker at Pallikunnu Chettipeedika and the Secretary, Indian National Congress Chirakkal Block Committee. The evidence of RW9 shows that he was the Secretary of Chirakkal Block Committee, who worked for the first respondent and the polling agent in Booth No.98 of EL.PET..NO. 11 OF 2016 103 Azheekode Assembly Constituency. Santhosh, Sumith, Akhil and Sagunan campaigned with him. Akhil and Sagunan were the polling agents of first respondent. K Ragesh is the President of Chirakkal Block Committee. The above evidence show that the above acts were committed by design on several days by several UDF workers on different dates and it show that the appellant or his agent must have consented to these acts and an inference of consent can be drawn from these facts.
81. In an earlier decision Harasingh Charan Mohanty V. Surendra Mohanty (1974(3) SCC 680), it was held as follows:-
"There are many kinds of corrupt practices...But the corrupt practices are viewed separately according as to who commits them. The first class consists of corrupt practices committed by the candidate or his election agent or any other person with the consent of the candidate or his election agent. These, if established, avoid the election without any further condition being fulfilled. Then there is the corrupt practice committed by an agent other than an election agent. Here an additional fact has to be proved that the result of the election was materially affected. We may attempt to put the same matter in easily understandable EL.PET..NO. 11 OF 2016 104 language. The petitioner may prove a corrupt practice of the candidate himself or his election agent or someone with the consent of the candidate or his election agent, in which case he need not establish what the result of the election would have been without the corrupt practice. The expression "Any other person"
in this part will include an agent other than an election agent. This is clear from a special provision later in the section about an agent other than an election agent".
82. Apex court in Mercykutty Amma V.Kadavoor Sivadasan and others (2004(2) SCC 217)held as follows:-
"21. The categories of agents enumerated in sub-clauses (I) and
(ii) of clause (b) are to be notified by the candidate, before the statutory authorities. Such agents, thus, are not only known to the appropriate authorities but also to his opponents and other persons concerned. However,so far as category (iii) is concerned, the name of such agent is not required to be notified. He must have an express or implied authority to act on behalf of the candidate. For the purpose of proving corrupt practices on the part of such agent, there would not be any material difference between the third category of "agent" or "any other person"
inasmuch as in both the cases consent of the candidate being the material factor, would be required to be pleaded and proved".
83. The President of Valapattanam Grama Panchayat EL.PET..NO. 11 OF 2016 105 was keeping the same pamphlets in her house. The other congress workers RW10, RW11, RW12 and other UDF workers distributed Exts.P2 to P5 pamphlets in the election campaign on different parts of the constituency for first respondent which was seized by the police and officers of MCC. The evidence of RW2, RW8, RW9, RW10, RW11 and RW12 show that they are suppressing real facts and lying before court. No credibility can be given to the evidence of the above witnesses and their answer about the incident are contradicting each other. The falsehood in their evidence and exaggeration of facts are relevant points which are destructive to the negative evidence of RW1 and it is the courts duty to sift the evidence, separating truth from the falsehood. The suppression of facts may be due to their political affinity and loyalty. It do not touch the core of the case, when trustworthy evidence of the official witness is available for supporting the real substance of the case. Sri Kallikodan Ragesh, the President of Indian National Congress, Chirakkal Block Committee participated in the election campaign of RW1, acted as the election agent of V.P.Prasad and he appointed RW10, RW11 and RW12, the EL.PET..NO. 11 OF 2016 106 other congress workers to act as agents of V.P.Prasad and they carried Exts.P2 to P5 pamphlets and worked for the first respondent. The members and office bearers of the political parties who worked for the candidate in the election campaign may be called as agents. The person or association of persons, the members and office bearers of political party may work for the candidate. It is the law that agents referred under Section 123(4) of the R P Act 1951 are to be notified by the candidate before the election officers. Such notified agents are not only known to the official authorities but also to his opponents and others. But others who worked for the candidate need not be registered. "Any other person" mentioned under Section 123(4) of the R P Act 1951 are also agents, the name of those persons need not be notified by the election officers, but they must have an implied or express authority to act on behalf of the candidate. The High Court in Inder Lall Yugal Kishore V Lal Singh (AIR 1961 Raj.122) held that "the rule laid down was that the association or persons or a society or a political party or its permanent members, who set up a candidate, sponsor his cause, and work to promote EL.PET..NO. 11 OF 2016 107 his election, may be aptly called the agent for election purposes. In such cases where these persons commit corrupt practice unless the exceptions in Section 100(2) of the 1951 Act apply, the returned candidate should be held guilty". There is no difference between 'agent' or 'any other person' for proving corrupt practice of such persons. It is presumed that first respondent or agent had given an express or implied authority to the workers and other persons to act on behalf of the candidate and they may be aptly called as agents for Election.
84. Point Nos.5 and 6 - I may however observe that there is no evidence to prove the direct interference or attempt to interfere on the part of the candidate or his agent or any other person with the consent of the candidate or his election agent with the free exercise of the electoral right to constitute a corrupt practice under Section 123(2)
(a)(ii) of the R P Act 1951. But in Ext.P2, it is stated that "he or any person in whom he is interested will become or rendered an object of divine displeasure or spiritual censures". PW11, PW12 and PW13 never deposed before this court that after reading Ext.P2, they will become or may EL.PET..NO. 11 OF 2016 108 be rendered to be an object of divine displeasure or spiritual censures, if they do not vote for RW1. The above witnesses deposed that the workers of the first respondent circulated Ext.P2 in their house campaign. In the absence of any inducement or attempt to induce by the workers, the statement in Ext.P2 does not constitute the corrupt practice under Section 123(2)(a)(ii). If any inducement either direct or indirect is made by the first respondent in the election, and that inducement is proved by the petitioner, then an inference can be taken, however on the basis of Ext.P2 alone, I cannot draw such an inference.
85. Taking into account the totality of the evidence, it is found that the workers of the first respondent circulated Ext.P2 pamphlet among the voters of the constituency with the consent of the candidate or agent and he appealed to bless him on the basis of his religion and not to vote for a non muslim is an appeal on the ground of religion. A single 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 would be a corrupt practice EL.PET..NO. 11 OF 2016 109 under Section 123(3) of R P Act 1951. Besides this, the first respondent, his agent or any other person with the consent of the candidate or his election agent had published Exts.P3, P4 and P5 pamphlets 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 of the personal character or conduct of the petitioner and thereby committed a corrupt practice under S.123(4) of the R P Act 1951.
86. The further relief claimed by the petitioner is to declare him as elected after declaring the election of the returned candidate as void under Section 101 of the R P Act, 1951. In this context, it is deserving to refer Section 101 of the R P Act which reads as follows:-
"S.101 - Grounds for which a candidate other than the returned candidate may be declared to have been elected:
- If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and (the High Court) is of opinion -
(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or EL.PET..NO. 11 OF 2016 110
(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes;
(the High Court) shall, after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected".
The further relief claimed in the present petition by the petitioner can be granted only in condition of clause (b) of Section 101 of the R P Act 1951. No cogent reasons are found in this case for granting such a relief. When there are more than two candidates contesting for a single seat, and one alone is disqualified, on proof of such disqualification, all the votes cast in his favour will be discarded and the candidate securing the next higher number of votes will be declared elected under Section 101(b) is not warranted in this case. Hence the further reliefs claimed by the petitioner is hereby dismissed.
In the result, the election petition is partly allowed as follows:-
(1) The election of K.M.Shaji to the (10) Azheekode Assembly Constituency is declared void and set aside EL.PET..NO. 11 OF 2016 111 under Section 100(1)(b) and under Section 100(1)(d)(ii) of the R P Act 1951 for having committed corrupt practice under Section 123(3) and 123(4) of the R P Act 1951. (2) He is also disqualified from contesting in any election for a period of six years from today. This finding of the corrupt practice of the first respondent shall be forwarded to the President of India for appropriate action under Section 8A of the R P Act, 1951.
(3) To declare the election of the first respondent as void for the corrupt practice under Section 123(2)(a)(ii) of the R P Act 1951 is hereby dismissed.
(4) The grant of further relief to declare M.V.Nikesh Kumar to have been duly elected is hereby rejected. (5) The first respondent K.M.Shaji shall pay a cost of Rs.50,000/- to the petitioner, M.V.Nikesh Kumar.
The High Court shall intimate the substance of the decision to the Election Commission and the Speaker of the Kerala Legislative Assembly and send a copy of the decision to the Election Commission forthwith.
Sd/-
P.D.RAJAN JUDGE LGK EL.PET..NO. 11 OF 2016 112 PETITIONER (S) WITNESSES :
PW1 : M.V. NIKESH KUMAR, S/O M.V.RAGHAVAN PW2 : DINESHAN H., S/O RAGHAVAN, DEPUTY COLLECTOR, L.R., KASARAGOD.
PW3 : P.K.PREMAN, S/O GOPALAN P.K., SECRETARY, VALAPPATTANAM GRAMA PANCHAYATH.
PW4 : K.J. MICHAEL, S/O K.M.JOSEPH, RETURNING OFFICER, AZHEEKODE ASSEMBLY CONSTITUENCY. PW5 : FAIYIS ALI E.V., S/O HAMSA T.K., S.I., CHOKLI POLICE STATION, KANNUR.
PW6 : SHAJU K.V., S/O KUNJIRAMAN, DY.TAHSILDAR, ELECTION, TALUK OFFICE, KANNUR.
PW7 : BIJU M., S/O P.K.BALAKRISHNAN, SR. CLERK, COLLECTORATE, KANNUR.
PW8 : RAVEENDRAN A., S/O POKKAN, C.P.O., VALAPATTANAM POLICE STATION.
PW9 : VINESH M., S/O PAVITHRAN M., SENIOR C.P.O., POLICE CONTROL ROOM, KANNUR.
PW10 : ABDUL SHUKOOR KOODAKAL, S/O ABDUREHMAN. PW11 : B.UMMER, S/O HAMSA C. PW12 : MUHAMMED SHAREEF P., S/O ABDUL SALAM K. PW13 : BAIJU K., S/O RAGHAVAN K. PW14 : PRASHANTHAN P., S/O T.U.KUNHAMBU NAMBIAR. EL.PET..NO. 11 OF 2016 113 RESPONDENT(S) WITNESSES :
RW1 : K.M.SHAJI, S/O.BEERANKUTTY.
RW2 : ASHKAR C.M., S/O ABOOKACKER.
RW3 : MOHAMMED ALI, S/O ASIF ALI, DISTRICT
COLLECTOR, KANNUR.
RW4 : P.BALAKIRAN I.A.S, S/O P. SAMPATH RAO, DIRECTOR OF PANCHAYAT, TRIVANDRUM.
RW5 : SREEJITH KODERI, S/O SREEDHARAN NAMBIAR, S.I., VALAPPATTANAM POLICE STATION.
RW6 : BABURAJAN K., S/O GOPALAN, SUB INSPECTOR, MAYYIL POLICE STATION.
RW7 : G.SIVA VIKRAM, S/O B.GANESH KUMAR, DISTRICT POLICE CHIEF, KANNUR.
RW8 : C.V.SUMITH, S/O PADMANABHAN.
RW9 : K.PREM PRAKASH, S/O SREEDHARAN.
RW10 : P.RAJEEVAN, S/O. SREEDHARAN.
RW11 : NARAYANAN, S/O OTHENAN
RW12 : PADMANABHAN, S/O KUNJAPPA NAMBIAR.
EL.PET..NO. 11 OF 2016 114
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF DECLARATION OF RESULT BY
THE RETURNING OFFICER, AZHIKODE
LEGISLATIVE ASSEMBLY CONSTITUENCY.
EXHIBIT P2 PAMPHLET WITH CAPTION IN ARABIC WHICH
CAN BE TRANSLATED IN ENGLISH AS "MAY
THE PEACE, MERCY AND BLESSINGS OF ALLAH
BE WITH YOU" DISTRIBUTED BY 1ST
RESPONDENT, HIS AGENTS AND OTHER
PERSONS.
EXHIBIT P2(a) TRUE AND CORRECT ENGLISH TRANSLATION OF
EXT.P2.
EXHIBIT P3 PAMPHLET WITH CAPTION IN MALAYALAM
"VEEDU NOKKATHAVANU NADU NANNAKKAN
KAZHIYUMO' PUBLISHED AND DISTRIBUTED BY
THE 1ST RESPONDENT.
EXHIBIT P3(a) TRUE AND CORRECT ENGLISH TRANSLATION OF
EXT.P3.
EXHIBIT P4 PAMPHLET WITH CAPTION IN MALAYALAM
'NIKESH KUMAR 20 LAKSHAM VANGIYENNU
RAJKUMAR UNNI' PUBLISHED AND
DISTRIBUTED BY THE 1ST RESPONDENT, HIS
AGENTS AND OTHER PERSONS.
EXHIBIT P4(a) TRUE AND CORRECT ENGLISH TRANSLATION OF
EXT.P4.
EXHIBIT P5 PAMPHLET WITH CAPTION IN MALAYALAM
'NIKESH KUMAR CHETTAKUDILIL NINNU
MALIKAYIL ETHIYA KODEESWARAN' PUBLISHED AND DISTRIBUTED BY THE 1ST RESPONDENT.
EXHIBIT P5(a) TRUE AND CORRECT ENGLISH TRANSLATION OF EXT.P5.
EXHIBIT P6 CERTIFIED COPY OF FIR IN CRIME
NO.1074/2016 OF BALIAPATTANAM POLICE
STATION.
EXHIBIT P6(a) TRUE AND CORRECT ENGLISH TRANSLATION OF
EXT.P6.
EL.PET..NO. 11 OF 2016 115
EXHIBIT P6(b) CERTIFIED COPY OF COMPLAINT FILED BY
ABDUL NASAR K.T. BEFORE VALAPATTANAM
POLICE STATION DATED 12.5.16.
EXHIBIT P7 TRUE COPY OF LETTER NO. A1/6861/16 DTD.
22.6.2016 ISSUED BY PUBLIC INFORMATION
OFFICER, KANNUR TO PRASANTHAN P.
EXHIBIT P7(a) TRUE AND CORRECT ENGLISH TRANSLATION OF
EXT.P7.
EXHIBIT P8 TRUE COPY OF LETTER NO.
ROUGH/A1/6861/16 DTD 23.6.2016 ISSUED
BY THE PUBLIC INFORMATION OFFICER,
KANNUR TO PRASANTHAN P.
EXHIBIT P8(a) TRUE AND CORRECT ENGLISH TRANSLATION OF
EXT.P8.
EXHIBIT P9 TRUE COPY OF REPORT DTD. 12.5.2016
SUBMITTED TO NODAL OFFICER, DEPUTY
COLLECTOR (GENERAL) BY SRI. SHAJU K.V,
OFFICER OF THE SPECIAL SQUAD, ISSUED
UNDER THE RTI ACT BY THE STATE PUBLIC
INFORMATION OFFICER, JS SECTION
COLLECTORATE, KANNUR.
EXHIBIT P9(a) TRUE AND CORRECT ENGLISH TRANSLATION OF
EXT.P9.
EXHIBIT P10 TRUE COPY OF REPORT DTD. 13.5.2016
SUBMITTED TO NODAL OFFICER BY SRI. K.V.
SHAJU, OFFICER OF THE SPECIAL SQUAD,
ISSUED UNDER THE RTI ACT BY THE STATE
PUBLIC INFORMATION OFFICER, JS SECTION
COLLECTORATE, KANNUR.
EXHIBIT P10(a) TRUE AND CORRECT ENGLISH TRANSLATION OF
EXT.P10.
EXHIBIT P11 TRUE COPY OF THE REPORT DTD. 14.5.2016
SUBMITTED TO NODAL OFFICER, MCC,
DY. COLLECTOR (GENERAL), KANNUR BY
K.V. SHAJU, OFFICER OF THE SPECIAL
SQUAD.
EXHIBIT P11(a) TRUE AND CORRECT ENGLISH TRANSLATION OF
EXT.P11.
EXHIBIT P12 CERTIFIED COPY OF FIR IN CRIME
NO.620/2016 OF MAYYIL POLICE STATION.
EL.PET..NO. 11 OF 2016 116
EXHIBIT P12(a) TRUE AND CORRECT ENGLISH TRANSLATION OF
EXT.P12.
EXHIBIT P12(b) CERTIFIED COPY OF COMPLAINT FILED BY
K. BAIJU BEFORE MAYYIL POLICE STATION
DT. 15.5.16.
EXHIBIT P13 TRUE COPY OF REPORT DTD. 15.5.2016
SUBMITTED TO NODAL OFFICER, DY.
COLLECTOR,(GENERAL) KANNUR, BY K.V.
SHAJU, OFFICER OF SPECIAL SQUAD.
EXHIBIT P13(a) TRUE AND CORRECT ENGLISH TRANSLATION OF
EXT.P13.
EXHIBIT P14 TRUE COPY OF REPORT DATED 14.5.2016
SUBMITTED TO NODAL OFFICER MCC AND DY.
COLLECTOR (GENERAL), KANNUR BY K.V.
SHAJU, OFFICER OF SPECIAL SQUAD.
EXHIBIT P14(a) TRUE AND CORRECT ENGLISH TRANSLATION OF
EXT.P14.
EXHIBIT P15 TRUE PHOTOCOPY OF PAMPHLET EXT.P2
ISSUED TO PRASANTHAN BY PUBLIC
INFORMATION OFFICER, KANNUR.
EXHIBIT P15(a) TRUE PHOTOCOPY OF PAMPHLET EXT.P3
ISSUED TO PRASANTHAN P. BY PUBLIC
INFORMATION OFFICER, KANNUR.
EXHIBIT P15(b) TRUE PHOTOCOPY OF PAMPHLET EXT.P4
ISSUED TO PRASANTHAN P. BY STATE PUBLIC
INFORMATION OFFICER,J.S. (A) SECTION,
COLLECTORATE, KANNUR.
EXHIBIT P15(c) TRUE PHOTOCOPY OF PAMPHLET EXT.P5
ISSUED TO PRASANTHAN P. BY STATE PUBLIC
INFORMATION OFFICER AND J.S.(A)
SECTION, COLLECTORATE, KANNUR.
EXHIBIT P16 TRUE AND CORRECT ENGLISH TRANSLATION OF
EXT.P15.
EXHIBIT P16(a) TRUE AND CORRECT ENGLISH TRANSLATION OF
EXT.P15(a).
EXHIBIT P16(b) TRUE AND CORRECT ENGLISH TRANSLATION OF
EXT.P15(b).
EXHIBIT P16(c) TRUE AND CORRECT ENGLISH TRANSLATION OF
EXT.P15(c)
EL.PET..NO. 11 OF 2016 117
EXHIBIT P17 TRUE COPY OF VOTER'S LIST 2015 FOR
PANCHAYAT ELECTION, KANNUR DISTRICT.
EXHIBIT P17(a) RELEVANT ENTRIES OF VOTER'S LIST.
EXHIBIT P17(b) RELEVANT ENTRIES OF VOTER'S LIST.
EXHIBIT P18 AFFIDAVIT BY NIKESH KUMAR SUBMITTED
BEFORE RETURNING OFFICER, AZHEEKODE.
EXHIBIT P19 PHOTOCOPY OF NOMINATION BY SHAJI IN
2011.
EXHIBIT P20 DOWNLOADED PAGE OF COPY OF FACE BOOK
PAGE.
EXHIBIT P21 NOTICE OF BAIT-U-RAHMA PROGRAMME.
EXHIBIT P22 RELEVANT PORTION OF NOTICE IN EXT.P21.
EXHIBIT P23 TRUE COPY OF REPORT FILED BEFORE
JUDICIAL FIRST CLASS MAGISTRATE COURT-
II, KANNUR IN CRIME NO.1074/2016.
EXHIBIT P24 CERTIFIED COPY OF SEARCH LIST IN CRIME
NO.1074/2016 OF VALAPATTANAM POLICE
STATION.
EXHIBIT P25 NOTICE FORM OF INAUGURAL FUNCTION OF
BAIT-U-RAHMA.
EXHIBIT P26 FINAL REPORT IN CRIME NO.620/2016 OF
MAYYIL POLICE STATION.
EXHIBIT P27 PHOTOGRAPH.
RESPONDENTS EXHIBITS:
EXHIBIT B1 CERTIFIED COPY OF FINAL REPORT IN CRIME
NO.1074/2016 OF VALAPATTANAM POLICE
STATION.
EXHIBIT B2 CERTIFIED COPY OF MEMO OF EVIDENCE IN
CRIME NO.1074/2016 OF VALAPATTANAM
POLICE STATION.
EXHIBIT B3 CERTIFIED COPY OF SCENE MAHAZAR DATED
12.05.2016.
EXHIBIT B4 CERTIFIED COPY OF SEIZURE MAHAZAR DATED
15.5.2016 IN CRIME NO.620/2016 OF
MAYYIL POLICE STATION.
EL.PET..NO. 11 OF 2016 118
OTHER EXHIBITS:
EXHIBIT X1 ORIGINAL OF EXHIBIT P9.
EXHIBIT X2 COPY OF EXHIBIT P2.
EXHIBIT X3 COPY OF EXHIBIT P3.
EXHIBIT X4 COPY OF EXHIBIT P4.
EXHIBIT X5 COPY OF EXHIBIT P5.
EXHIBIT X6 OFFICE COPY OF SHOW CAUSE NOTICE DATED
12.5.16 ISSUED TO RESPONDENT.
EXHIBIT X7 OFFICE COPY OF LETTER DATED 12.5.16
ADDRESSED TO RETURNING OFFICER, KANNUR.
EXHIBIT X8 ORIGINAL OF EXHIBIT P10.
EXHIBIT X9 SERIES COPIES OF SEIZED PAMPHLETS (152 NOS.)
EXHIBIT X9(a) 4 NOS. OF EXT.P2 NOTICE.
EXHIBIT X9(b) 3 NOS. OF EXT.P3 NOTICE.
EXHIBIT X9(c) 26 NOS. OF EXT.P5 NOTICE.
EXHIBIT X10 OFFICE COPY OF LETTER DATED 14.5.16
ADDRESSED TO DISTRICT POLICE CHIEF,
KANNUR.
EXHIBIT X11 ORIGINAL OF EXHIBIT P11.
EXHIBIT X12 SERIES COPIES OF PAMPHLETS (555 NOS.) EXHIBIT X12(a) 4 NOS. OF EXHIBIT P2 NOTICES.
EXHIBIT X12(b) 3 NOS. OF EXHIBIT P3 NOTICES.
EXHIBIT X12(c) COPY OF EXHIBIT P4 NOTICE.
EXHIBIT X12(d) 19 NOS. OF EXHIBIT P5 NOTICES.
EXHIBIT X13 ORIGINAL OF EXHIBIT P14.
EXHIBIT X14 SERIES COPIES OF SEIZED PAMPHLETS (929 NOS.) EXHIBIT X14(a) 3 NOS. OF EXHIBIT P2 NOTICE.EL.PET..NO. 11 OF 2016 119
EXHIBIT X14(b) 10 NOS. OF EXHIBIT P3 NOTICE.
EXHIBIT X14(c) 39 NOS. OF EXHIBIT P4 NOTICE.
EXHIBIT X14(d) 11 NOS. OF EXHIBIT P5 NOTICE.
EXHIBIT X14(e) PAMPHLET WITH CAPTION IN MALAYALAM "
K.M. SHAJIYE..."
EXHIBIT X15 ORIGINAL OF EXHIBIT P13.
EXHIBIT X16 SERIES COPIES OF PAMPHLETS (162 NOS.) EXHIBIT X16(a) 3 NOS. OF EXHIBIT P2 NOTICE.
EXHIBIT X16(b) 4 NOS. OF EXHIBIT P3 NOTICE.
EXHIBIT X17 PHOTOCOPY OF VALAPATTANAM GRAMA PANCHAYAT REGISTER, 2015.
EXHIBIT X18 OFFICE COPY OF FORM 10 FOR APPOINTMENT OF POLLING AGENT P.M. PADMANABHAN.
EXHIBIT X18(a) OFFICE COPY OF FORM 10 FOR APPOINTMENT OF POLLLING AGENT A.V. NARAYANAN.
EXHIBIT X19 CERTIFIED COPY OF REGISTRATION PARTICULARS OF VEHICLE NO. KL-13-AE- 4526.
EXHIBIT X20 ORIGINAL OF REPLY GIVEN BY K.M. SHAJI TO EXT.X6 NOTICE.
EXHIBIT X21 OFFICE COPY OF FORM 8 FOR APPOINTMENT OF ELECTION AGENT.
EXHIBIT X22 ORIGINAL MCC REGISTER, KLA-16 OF KANNUR DISTRICT.
EXHIBIT X23 SERIES COPY OF REPORTS SUBMITTED BY NODAL OFFICER, MCC, KANNUR DISTRICT.
EXHIBIT X23(a) COPY OF CONSOLIDATED REPORT DT.
12.5.16.
EXHIBIT X23(b) COPY OF DAILY REPORT OF MCC.
EXHIBIT X23(c) COPY OF STATUS OF ENFORCEMENT OF MCC. EXHIBIT X23(d) COPY OF STATUS OF ENFORCEMENT OF MCC. EL.PET..NO. 11 OF 2016 120 EXHIBIT X24 SERIES COPY OF PROFORMA SUBMITTED BY K.V. SHAJU, CHARGE OFFICER, MCC.
EXHIBIT X24(a) COPY OF REPORT DATED 13.5.16. EXHIBIT X24(b) COPY OF REPORT DATED 14.5.16. EXHIBIT X24(c) COPY OF REPORT DATED 15.5.16. EXHIBIT X24(d) COPY OF REPORT DATED 14.5.16. EXHIBIT X25 COPY OF SHOW CAUSE NOTICE ISSUED TO K.M. SHAJI DATED 12.5.16.
EXHIBIT X25(a) COPY OF REPLY BY K.M. SHAJI.
EXHIBIT X25(b) COPY OF SHOW CAUSE NOTICE ISSUED TO K.M. SHAJI DATED 4.5.16.
EXHIBIT X25(c) REPLY BY K.M. SHAJI.
/ TRUE COPY /
P.S. to Judge