Kerala High Court
T.S. John vs Joseph M. Puthussery on 4 October, 2001
Equivalent citations: AIR 2002 KERALA 166, (2002) 1 KER LJ 284, (2002) 1 KER LT 503, (2002) 2 CIVLJ 590
Author: M.R. Hariharan Nair
Bench: M.R. Hariharan Nair
ORDER M.R. Hariharan Nair, J.
1. Based on preliminary objections raised by the 1st respondent with regard to the maintainability of the Election, Petition, both sides were heard.
2. The challenge in the E.P. is with regard to the declaration of results made by the Returning Offer on 13.5.2001 to the effect that the 1st respondent therein has won from No. 106-Kallooppara Constituency in the General Election to the Kerala Legislative Assembly held on 15.5.2001. The petitioner, who belongs to the Kerala Congress, contested as the Left Democratic Front (LDF) candidate, whereas the 1st respondent, who belongs to the Kerala Congress (Mani Group), contested as a United Democratic Front (UDF) candidate. The 1st respondent, who secured 42238 votes, was declared elected; as the nearest candidate, who is the petitioner, received only 31013 votes. The respondents 2 and 3, who were the other candidates, who contested as BJP and independent candidates, got only 4432 and 361 votes respectively.
3. The attack of the petitioner is on the ground that there was corrupt practice on the part of the 1st respondent and his agents and workers through distribution of copies of Annexure I pamphlet wherein the character of the petitioner was maligned which has affected the results.
4. In the preliminary objection filed by the 1st respondent, the following grounds are taken. These are taken on the points for consideration:
(1) The petition is filed beyond the limitation period.
(2) The copies of the E.P. and records made available to the 1st respondent are not 'true copies', as required under Section 81(3) of the Representation of the People Act, 1951 and for that reason, the petition is liable to be dismissed under Section 86(1) of the R.P. Act.
(3) After presentation, opportunity was allowed to the petitioner to correct certain mistakes and this has prejudiced the 1st respondent.
(4) The petitioner is unable to find from the copies served on him the precise case he has to meet.
(5) There is contradiction appearing in different paragraphs with regard to the persons who made the alleged publication.
(6)Annexure-I is actually a copy of article which appeared in the 'Crime' Weekly and even if the case of the petitioner that the workers of the 1st respondent distributed the same is proved, that does not amount to 'publication' coming within the meaning of 'corrupt practice' contemplated in Section 100 read with Section 123 of the R.P. Act.
(7)The affidavit filed by the petitioner does not conform to the requirements of Rule 94A of the Conduct of Election Rules, 1964.
The defence contention therefore is that continuance of the proceedings in the case, in such a situation, will only result in wastage of time for all concerned and hence the petition deserves to be dismissed in limine.
5. The aforesaid contentions are refuted by the learned counsel for the petitioner. According to him, the petition, as it is filed, conforms to the requirements of law and there has been no material defect in the copy supplied also, which would prejudice the 1st respondent. These aspects may be considered.
6. Point No. 1:- As regards the question of limitation raised by the 1st respondent, it is seen that the E.P. is field in Court on 27.6.2001. Admittedly, the date of election (declaration of results) is 13.5.01. Tarun Prasad Chatterjee v. Dinanath Sharma ((2000) 8 SCC 69) is authority for the proposition that Section 9 of the General Clauses Act, 1897 is applicable with regard to an election petition as well in view of Rule 2(6) of the Representation of the People (Conduct of Elections & Election Petitions) Rules, 1951 and that the 'date of election' is liable to be excluded while computing the period of 45days. In view of the said decision, the present petition filed on 27.6.2001 has to be taken as filed on the last day of limitation and is well within time. The point is decided in favour of the petitioner.
7. Point No. 2:- pursuant to the directions of this Court, the 1st respondent has produced both the copies of the E.P. received by him ie., by direct service and through postal service as contemplated in Rule 211 of the Kerala High Court Rules. For easy reference, these are marked as Exts. R1 and R2 respectively for the purpose of the present order.
8. It is alleged that the copies are not properly attested in so far as the words 'true copy' does not appear above the signature of the petitioner appearing at the end of the E.P. and affidavit i.e., at pages 41 and 43. Yet another defect is that the copy of Annexure X made available to the 1st respondent contains, at the end of it, a verification, as though it is copy of Annexure I(a). Yet another defect is that in Ext. R2 copy, Annexure IV is verified as of Annexure VI. Yet another defect is that in the original and in Ext. R1 copy, the verification, at page 2 of the Index, is by 'Ad: T.S. John', whereas in the corresponding portion in Ext. R2 copy, the verification is by T.S. John-the prefix 'Ad:' being omitted. The contention therefore is that what is furnished is not exactly a true copy of the original and that the 1st respondent is mislead by the wrong certification.
9. A large number of decisions were cited by either side in support of their respective contentions with regard to the adequacy of the verification and certification. As the authorities produced are numerous, I am of the view that it is sufficient if reference is made here to the decisions of the larger Benches and Constitution Benches of the Apex Court and also to the latest decisions on the point.
10. F.A. Sapa v. Singora (AIR 1991 SC 1557), decided by a Bench of three Judges, is authority for the proposition that the object of verification is to fix responsibility for the averments on the person verifying the same and to discourage wild and irresponsible allegations; and that mere defect in the verification of the election petition is not fatal to its maintainability. It was also found that it is enough if compliance with Section 83 is ensured with regard to the pleadings and verifications before the parties go to trial; that as no particular form of attestation is prescribed, it would be sufficient if such copies are signed at the foot by the concerned petitioner and that the court can always allow defects regarding verification etc., to be cured through amendments once it falls under Section 86(5).
11. In Murarka Radhey Shyam Kumar v. Roop Singh Rathore & Ors. (AIR 1964 SC 1545), a Constitution Bench of 5 Judges found that the verification defects can always be cured; that 'true copy' referred to in Section 81(3) does not mean an absolutely exact copy; but only means a copy so true that nobody can, by any possibility, misunderstand it; that the test is whether the verification is calculated to mislead the respondent and that the court could very well allow defects to be cured. In Bhagwan Rambhan Karankal v. Chandrakant Batesingh Raghuvanshi & Ors. (2001 (6) Supreme 101) a Bench of 3 Judges found that where each page of the Election Petition contained signatures of the petitioner, though without endorsement 'true copy' at the end, it can be taken as substantial compliance which would include application of Section 86(1) and rejection of the E.P. In T.M. Jacob v. C. Poulose & Ors. ((1999) 4 SCC 274) = 1999 (2) KLT SC 260, which is a decision by Bench of five Judges, also distinction was drawn between defects which are material and those curable. It was reiterated that the object of serving a copy is to enable the respondent to have precise information as to the case he has to meet and that the test is whether the variation/defect, if any, is calculated to mislead the respondent or not; that a certain amount of flexibility is envisaged and that only impermissible violations tantamouting to 'vital defects' will entail dismissal of the case for non-compliance with S. 81(3) of the R.P. Act.
12. M. Kamalam v. Dr. V.A Syed Mohammed ((1978) 2 SCC 659 = 1978 KLT 349) K.K. Mohamad Koya v. P.P. Sayeed (AIR 1977 Kerala 160) and Ch. Subbarao v. Member, Election Tribunal (AIR 1964 SC 1027) are cases where signatures of the petitioners were affixed at the end of the petition; but the words 'true copy' were not written above that. The Court found that the signature concerned was only for attestation; that the requirement of law is substantially complied with and that merely because the words 'true copy' are not mentioned there, the petition is not liable to be dismissed.
13. In Mithileh Kumar Pandey v. Baidyanath Yadav (AIR 1984 SC 305) it was found that a 'true copy' only means a copy which is wholly and substantially the same as the original and that if these are insignificant the Court should not take notice thereof.
14. As regards the verification at the end of Annexure X, in Exts. R1 and R2 copies made available to the 1st respondent, at page 72, there is reference to the fact that it is a copy of Annexure I(a). The fact is that Annexure X is actually a portion of Annexure I(a). It cannot be said, in the circumstances, that the certification as above is directed to mislead the 1st respondent or that by certification the 1st respondent is actually confused, mislead or prejudiced in any manner. Likewise, the other defect in certification which relates to Annexure IV at page 56 where copy of Annexure IV is certified as Annexure No. VI in Ext. R2 copy is also an insignificant defect. Ext. R1 copy contains the correct Annexure number itself. The contention of the petitioner that it is the result of a clerical errors can always be allowed to be corrected. In the circumstance, this point is also found in favour of the petitioner. The mistakes aforementioned will be allowed to be corrected if motion is made therefore.
15. Point No. 7:- As regards the affidavit filed in Form No. 25, it is contended that the Form is not strictly followed in so far as the exact words mentioned in the Form are not found in the affidavit at pages 42 and 43 of the petition. I have examined the affidavit and I do not think that there is any substantial variation. What is important in the affidavit is to specify and authenticate the precise paragraphs which, according to the petitioner, are true to his knowledge and the paragraphs and schedules which, according to him, are true to his information. This requirement is sufficiently met in the affidavit. He has clearly stated therein that the averments in paras 1 to 10, 12:1, 12:2, 18 and 19 are based on the information given to him by one Sherry Thomas and also divulged the full details of the persons from whom he got information with regard to each of the other allegations in the E.P. It also to be mentioned here that as found by the three learned Judges in G. Mallikarjunappa v. Shamanur Shivashankarappa (AIR 2001 SC 1829), defects in affidavit and verification can always be cured.
16. It is true that the notarial endorsement available in page 43 of the E.P. in the affidavit are not reproduced in full in the copy in so far as affixation of a notary stamp worth Rs. 50/- is not mentioned in the copy. It cannot be said that the respondent was in any way misled in the matter or that prejudice was caused to him. The defect, if any , in the matter is curable. In the circumstances, I am not convinced that the E.P. is not furnished to the 1st respondent or that the verification in the affidavit is defective.
17. Point Nos, 4 and 5:- A verification of the E.P. shows that in paras 6 to 9 and 12, a concise statement of material facts are divulged. Form para 13 onwards particulars with regard to the allegations are given. The corrupt practice alleged in the case took place at various places and on different dates. Full details thereof are contained in the E.P. What is alleged in para 6 is that two days immediately preceding the poll i.e., on 8.5.01, the 1st respondent distributed copies of Annexure I pamphlet containing malignment of the personal character of the petitioner to the 1st respondent's election agent by name K. Jayavarma, who, in turn, distributed the same to several persons with the knowledge and consent of the 1st respondent. In paras 13:1(8), it is alleged that at about 6 p.m.. on 8.5.2001 the Additional Sub Inspector of Police, Tiruvalla, arrested 7 men who were distributing copies of Annexure I. Their names are also specified therein. The allegation in para-13:1:ii is that at about 8 p.m. on 8.5.2001 the 1st respondent was seen coming out from the Thiruvalla Police Station with the 7 persons arrested as above, who had been got released from police custody by then and after the 1st respondent and the said 7 persons reached the Pazhayakavu Junction at about 9 p.m. the 1st respondent challenged the workers of the LDF who reached there as to what they could do against the 7 persons who had been caught in the act of distribution of pamphlet. Thereafter he snatched a handful copies of Annexure I from one Sajikumar and flung them over in the air with the exhortation to his people that they should continue the distribution of pamphlet without fear for anyone. He then got another handful of copies from Sajikumar and distributed them to the persons assembled there and thereafter the 1st respondent directed one Lalu Thomas to take the 7 persons aforementioned who had been released from the police custody to the Kolad L.P.S. area whereform they were taken to custody earlier and also exhorted the 7 persons to re-start the distribution from the very same place from where distribution was interrupted and from where they were taken to custody.
18. The names of the persons who received the pamphlet in the course of distribution as above are also given in para-13:1(i) para-13:3(i) of the E.P. deals with distribution of pamphlet that took place at about 11 a.m. at Maramkolly which comes within the area of polling booth No. 52. the names of persons who have seen the incident are also given in para 13. Para 15:1(ii) deals with the details of distribution of pamphlet that took place at 2.30 p.m. on 835301 at 'Chacko Bhagam' area at Kallooppara. Full particulars about the distribution with date, time and place are available in sub-paras 1 to 27 of para 17 in para 17 in page 29 to 39. Thus, there are clear everments with regard to the persons who made the distribution; the recipients of the pamphlet; the precise time and place where the distribution took place and also an averment that the distribution was at the instance of the 1st respondent and on his directions and with his full knowledge. It cannot therefore be said that the 1st respondent is confused in any manner by lack of details regarding the corrupt practice under Section 100(1)(b) of the R.P. Act alleged in para 18 of the petition.
19. Point No. 3:- The 1st respondent has a case that certain corrections were allowed to be made in the petition and other records and that there is no provision for any such correction once the E.P. is presented in court. There is no substance in this contention. The corrections referred to by the 1st respondent are those mentioned in C.M.P. No. 2353/2001 which was allowed by me on 23.7.01. It was after carrying out the corrections sought therein that summons was ordered to the respondents on 27.7.01. The corrections allowed were: verification in the original and copies of index forming part of the petition; supply of signature of the petitioners counsel in pages 42 and 43 relating to the affidavit in Form 25 in the copies; incorporation of chalan receipt (which and actually been produced along with the E.P., but with out inclusion in the Index) into the E.P. bundle itself; supply of signature of the petitioner's counsel in page 48 of the E.P., the supply of annexure numbers therein and the inclusion of page numbers in the copy of the index. It cannot be said that the 1st respondent is prejudiced by the grant of the CMP as aforementioned. In fact, the corrections were allowed so that the respondents could clearly understand and answer the allegations made in the petition. There no legal bar to the grant of the said request.
20. Meethian v. Poulose (1997 (1) KLT 623) relied on by the 1st respondent provides that the registry is bound to place the E.P. as filed before the Judge for appropriate orders and that the scrutiny contemplated in R. 210 of the Kerala High court Rules read with Section 86(1) of the R.P. Act is to be done by the assigned Judge and not by the registry. At the same time, the said judgment also contains an observation that the petition is to be placed before the Judge immediately after registering the petition and that the registration can be undertaken by the registry only on it being satisfied that the E.P. conforms to the form prescribed by the Act and the relevant Rules. It is also observed in that judgment that the proper course to follow for the registry would be to note the defects that have come to its notice on the E.P. and place them for orders before the Judge assigned and not to undertake the return of E.P. on its own for curing of defects by the election petitioner.
21. There was no violation of the said directions in the instant case. Actually, on noting that there were some defect, the case itself was posted for curing non-material defects as per order dated 10.7.01 and it was following the said posting that CMP No. 2353/01 was filed. I am not convinced that the procedure followed is in any way violative of the provisions in the R.P. Act, 1951 or of the provisions in the C.P.C. or against the directions in the judgment aforementioned.
22. Point No. 6:- During hearing it was mentioned by the learned counsel for the 1st respondent that Annexure I which is the very basis of the corrupt practice relied on by the petitioner does not specify its source and that it is actually a copy of the bi-weekly by name "Crime". Hence by distributing copies of certain parts of the magazine there is no publication involved. There is no substance in this contention. At the bottom of the publication it is stated that it was printed in the Sivas Press, Kottayam, at the instance of Shaji P. Jacob Kallungal, President of the Youth front (Joseph Group), Tiruvalla Constituency. It is also clear from Annexure-I that it is not actually a copy of the 'Crime' magazine; but a pamphlet edited incorporating the alleged copies of three different editions of the 'Crime' Magazine. The pamphlet also contains a title under the head "Impostor of the small hut" printed in black back ground. The fact that Annexure I is a collection of relevant portions gathered from different editions of 'Crime' Magazine and is a re-publication is made clear in the said title portion itself. It is true that the petitioner has stated that he had issued Annexure II suit notice to the Editor of the 'Crime' with regard to a news item on 30.10.2000 which is part of Annexure I and in Annexure III, the Chief Editor of the 'Crime' magazine had sent an interim reply. The argument that in views of the said correspondence, the cause of action, if any, available to the petitioner was only against the 'Crime' Magazine has no substance in so far as Annexure I filed in the present case is not actually a copy of a particular issue of the 'Crime' Magazine; but an edited re-publication incorporating news items from different issues of the bi-weekly with an editorial note. As far as Annexure I publication is concerned, the cause of action is not against the Editor of 'Crime" Magazine; but with regard to the persons at whose instance the edited re-publication was brought out and distributed. Since the allegation is that it was distributed at the 1st respondent's instance, the contention in the petition raising a cause of action under s. 100 of the R.P. Act, 1951 is well maintainable.
23. The first respondent has a case that there is no publication at all in the matter of distribution of Annexure I and that the details regarding the manner of alleged publication are not available in the petition. It is true that the word 'publication' is not defined in the Act or Rules though Section 123(4) of the R.P. Act, while dealing with corrupt practice, refers to "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 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". Such publication is clearly a corrupt practice under Section 123 and a ground for declaring the election to be void under Section 100(1)(b) and 100(1)(d)(iii) of the R.P. Act, 1951. In the present case only Section 100(1)(b) is invoked.
24. The meaning of the word 'publish' which is given in Chamber's 20th Century Dictionary is "to make; to divulge; to announce; to proclaim; to send forth to the public; to put into circulation" etc. In the Black's Law Dictionary Fifth Edition the meaning of 'publication' is given as follows: "To make public, to make known to people in general; to bring before public; to exhibit, display, disclose or reveal; and to the act of publishing anything; offering it to the public notice; or rendering it accessible to public scrutiny". Viewed from the said perspective, Annexure I is certainly a written matter capable of publication, provided, it was brought to the notice of the public by distribution as alleged in the E.P. Therefore the 1st respondent cannot be heard to contend that even in pleadings as available now, there was no publication within the meaning of Section 123(4) of the R.P. Act and that the publication was only on the part of Editor of the 'Crime' Magazine.
25. The four elements necessary to constitute corrupt practice under Section 123(4) are: (i) Publication by the candidate or his agent or by any other person with the consent of the candidate of any statement of fact; (ii) the statement of fact should be false and the candidate or his agent or any other person publishing it either believes it to be false or does not believe it to be true; (iii) the publication is in relation to the personal character and conduct of any candidate and (iv) the statement is reasonably calculated to prejudice the prospects of the rival candidate's election.
26. The 1st respondent has a case that Annexure I does not at all relate to the personal character of the petitioner and that at the most it can only reflect on the public character of the petitioner. I find no substance in the said contention. The substance of Annexure I is to characterise the petitioner as a pretender, a hypocrite, a masquerader, an impostor or a person who hoodwinks the public and acts in violation of law. The three allegations mentioned in Annexure I (not repeated here for brevity) prima facie touch upon the personal image of the petitioner and to that extent affects his reputation based on personal character. It picturises him as an unworthy candidate. In case the contents are established to be untrue and publication with that knowledge by the persons mentioned in the petition, and in the circumstances stated therein is proved, even if Annexure I is really a re-publication of excerpts from different issues of 'Crime' bi-weekly, it will certainly fall under the sweep of Section 123(4) of the R.P. Act capable of providing a cause of action under Section 100(1)(b) of the R.P. Act.
27. In view of the findings on the aforesaid points, it follows that there is no merit in the contentions of the 1st respondent. The petition certainly deserves to be considered on the merits in so far as if corrupt practice arising from publication of Annexure I, alleged against the petitioner is proved, there may be justification for invalidating the election under Section 100(1)(b) of the R.P. Act.
28. The petitioner is afforded an opportunity to move for amendment of the clerical errors etc., dealt with in the foregoing paragraphs of this order. After the amendments. If any, are considered, the case will be proceeded with in accordance with law.