Madras High Court
Rule 11 Cpc To Reject The Election ... vs Peddireddigari Ramachandra on 9 November, 2018
Author: D. Krishnakumar
Bench: D. Krishnakumar
O.A.No.53 of 2022
in E.L.P.No.1 of 2021
RESERVED ON: 06.01.2023
DELIVERED ON: 31.03.2023
O.A.No.53 of 2022
in Election Petition No.1 of 2021
D.KRISHNAKUMAR, J.
ORDER
This original application has been filed to reject the Election Original Petition No.1 of 2021 filed by the respondent No.1 in ELP No.1 of 2021. For the sake of convenience, the array of parties in the original application has been adopted.
2. The election petitioner/1st respondent in the original application has filed this Election Petition under Sections 100(1)(b), 100(1)(d)(ii) & (iv), 101(a)&(b), 123(2) and (4) of the Representation of Peoples Act 1951 [in short “RP Act”], read with Rule 2 of the Madras High Court Conduct of Election Petition Rules, 1967, praying for the following relief:
(a) Declare the election of the first respondent / applicant a returned candidate from Neravy – T.R.Pattinam constituency in Karaikal at Union Territory of Puducherry on 02.05.2021 as null and 1 https://www.mhc.tn.gov.in/judis O.A.No.53 of 2022 in E.L.P.No.1 of 2021 void;
(b) Declare the petitioner as the duly elected candidate from Neravy-T.R.Pattinam Constituency in Karaikal at Union Territory of Puducherry;
BRIEF FACTS OF THE CASE 3.1. The 1st respondent / election petitioner is one of the candidates who contested for the general elections at Neravy – T.R. Pattinam Constituency in Karaikkal. The petitioner is a Bharathiya Janata Party (BJP) Candidate and the first respondent is a Dravida Munnetra Kazhagam (DMK) candidate contested in the general elections of Neravy-T.R.Pattinam Constituency, Union Territory of Puducherry, both being recognized political parties. The respondents 3 to 8 are other party candidates who also contested along with the election petitioner/first respondent and the applicant.
3.2. The election petitioner states that on 26.02.2021, the Election Commission of India [in short “ECI”] has announced the Schedule of General Elections to the Legislative Assemblies of 2 https://www.mhc.tn.gov.in/judis O.A.No.53 of 2022 in E.L.P.No.1 of 2021 Puducherry, 2021. According to the Press Note released by the ECI, the notification for the Puducherry Legislative Assembly Constituency will be issued on 12.03.2021 and polling will be held on 06.04.2021. ECI has communicated the provisions of Model Code of Conduct [in short “MCC”] for ensuring peaceful, free and fair election.
3.3. The election petitioner further states that as per Section 39A of the RP Act, 1951 and the MCC issued by the respondents 9 and 10, all activities of canvassing on all forms is permitted till 48 hours before the hour fixed for poll for such election and the canvassing activities have to be completed on 04.04.2021.
3.4. According to the election petitioner, the first respondent/applicant, being a contesting candidate even though fully aware that the time to canvass has ended and any activity in 48 hours before the hour fixed for poll for such election is prohibited under the Act and MCC, in violation of the same, has made a video statement on 05.04.2021 i.e., one day prior to the election date 06.04.2021 and 3 https://www.mhc.tn.gov.in/judis O.A.No.53 of 2022 in E.L.P.No.1 of 2021 circulated the same to local public by way of Whatsapp video.
3.5. The video statement made through Whatsapp by the first respondent / applicant in the vernacular language reads as follows:
“*tzf;fk;/ ehd; c';fs; ehfjpahfuh$d;/ fle;j ehy;w tUrkh kf;fSf;F ehd; xU rK:f nrtfuh.
vz;bzy;yhk; vd;bdbty;yhk; gzp bra;a Koa[nkh
mj;jida[k; ehd; br";rp xU ey;yJ gz;zpf;fpl;L
,Ue;njd;/ mijg; ghh;j;Jl;L. xU ey;y fl;rpapy
vdf;bfhU rPl;L bfhLj;jh';f/ ehDk; xU MLA
Mdh. rl;lkd;w cWg;gpdh; Mdh. kf;fSf;F VjhtJ
ey;yJ bra;ayhk; mg;go';fpwjhy. mij Vj;Jf;fpl;L
njh;jiy re;jpr;nrd;/ njh;jy;y rPl;L
fpilf;fhjt';f. kj;jt';f vy;yhk; xd;dh nre;J
vdf;Ff; bfhLj;j Jd;gk; Jauk; mij btspapy;
brhy;yKoahj xU tpc&ak;/ ,e;j gjpd";R ehSy
vd;dhy Ko";rtiuf;Fk; ehd; rkhspr;R ,e;jj;
njh;jy; tiuf;Fk; te;Jl;nld;/ Mdh. ehisf;F
njh;jy;/ ,d;idf;F ehd; btspapy Tl tuKoahk.
gJ';fpf;fpl;L ,Uf;fpw N:He
; piyapy mij vg;go
brhy;wJd;DTl bjhpay. brhy;ynt gakhapUf;F.
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in E.L.P.No.1 of 2021
mg;go xU N:He
; piyapy bfhz;lhe;J vd;d
tr;rpUf;fh';f/ mt';f gz gyj;ija[k;. mjpfhu
gyj;ija[k; ntw khjphp gad;gLj;Jwh';f/ ehd;
,e;jj; njh;jYf;fhf vd;bdd;dbty;yhk; Vw;ghL
br";rp tr;rpUe;njndh. mj;jida[k; Klf;fp. vd;id
epuha[jghzpahf ,';f tr;rpUf;fh';f/ ehd; filrpah
ek;g[wJ kf;fs;. flt[s; buz;L ngiua[k;jhd;/ eP';f
ehisf;F elf;Fw njh;jy;y cjaN:hpad; rpd;dj;jpy;
thf;fspj;J vd;d fhg;ghj;Jy mg;god;dh. mJ
ntwkhjphpahd xU Koth ,Ue;jh vd;dthf
nghnw';fpwJ vdf;nf bjhpay/ vd;Dila thH;f;if
c';f ifapyjhd; ,Uf;F/ eP';fjhd; xU ey;y
Koit brhy;yDk;. Vd;dh. vd;dhy vd;d Koa[nkh
mj;jida[k; ,He;Jl;L ,d;idf;F epuha[jghzpahf
epf;fpnwd;/ ,d;idf;F elf;Fw tpc&a';fs; vd;
thH;fi
; fapy te;J xU kwf;f Koahj ehshapUf;Fk;/
vd;Dila filrp ek;gpf;if flt[Sk; eP'f
; Se;jhd;D
ek;g[nwd;/ ehisf;F cjaN:hpad; rpd;dj;jpy;
thf;fspr;R epr;rakh xU ey;y Kot[ FLg;gP'f
; d;D
ek;g[nwd;/ ed;wp/”
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O.A.No.53 of 2022
in E.L.P.No.1 of 2021
3.6. According to the election petitioner, the act of the first respondent/applicant falls within the definition of corrupt practice under Section 123 of RP Act and the same is a ground for declaring the election as void under Section 100 of the RP Act.
3.7. The election petitioner states that immediately a complaint was given by the State Vice President, BJP to the District Election Officer, Karaikkal, Pondicherry, on the same day on 05.04.2021 and subsequently, an FIR was registered in Crime No.0037/2021 by the Station House Officer, T.R.Pattinam Police Station, Karaikkal under Sections 171F and 188 IPC. However, inspite of the complaint, the election was permitted to continue and the results were declared declaring the first respondent as the returned candidate. According to the election petitioner, the first respondent has won the election illegally, in violation of the RP Act and MCC and therefore, the election petitioner has filed the Election Petition in ELP.No.1 of 2021.
to declare the election as void.
6 https://www.mhc.tn.gov.in/judis O.A.No.53 of 2022 in E.L.P.No.1 of 2021
4. The first respondent in the election petition has filed the present Original Application in O.A.No.53 of 2022 under Order VII Rule 11 CPC to reject the election petition by denying the averments made in the election petition. It is contended that the election petition does not disclose any cause of action and therefore, the same deserves to be rejected in limine. The election petitioner has also filed a counter affidavit in the original application.
5. Mr.P.Dinesh Kumar, learned counsel for the applicant has filed his written submissions, wherein it has been stated as under:
5.1. The allegations in the Election Petition does not contain violation of any of the provision of Representation of the People Act, 1951 and Model Code of Conduct and therefore, the Election petition does not disclose any cause of action and therefore the same deserves to be rejected in liminie. In this regard relied on the judgments in Madiraju Venkata Ramana Raju vs Peddireddigari Ramachandra Reddy [(2018) 14 SCC 1] and Amar Singh Vs Kedar Nath AIR 1987 SC 1926].
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https://www.mhc.tn.gov.in/judis O.A.No.53 of 2022 in E.L.P.No.1 of 2021 5.2. Section 126 of the Representation of the Peoples Act pertains to Prohibition of “public meetings” during the period of forty- eight hours ending with four fixed for conclusion of poll. Sub– clause1(b) of the said provision prohibits a person from displaying to the public any election matter by means of cinematograph, television or other similar apparartus. The use of words ‘’other similar apparatus’’ makes it explicit that the said expression refers to those apparatus having broadcasting features similar to that of cinematograph and television that could be displayed to the public gathering. In the instant case, it is alleged that canvassing was made during prohibited hours by circulation of Whatsapp message. The “Whatsapp” is online medium having messenger service features that faciliates digital communication between individuals and the same, unlike television and cinematograph, does not have broadcasting features to be displayed to the public gathering. Therefore, Whatapp does not fall within the ambit of phrase “other similar apparatus’’ and further, there is no public meeting in the instant case. Consequently, the said 8 https://www.mhc.tn.gov.in/judis O.A.No.53 of 2022 in E.L.P.No.1 of 2021 allegation of canvassing during prohibited hours by circulation of Whatsapp message to individuals does not attract Section 126 of the said Act.
5.3. The prohibition contained under Section 126 of the RP Act does not include mobile outreach campaign and same could be evidenced from the Report of the Committee constituted to examine Section 126 of the representation of the people Act, 1951 and other related provisions submitted on 10.01.2019. The said committee was constituted to study on the new forms of communication technology and different forms of campaigning including online campaigning and mobile outreach campaigning and to bring the same within the ambit of Section 126. The said committee recommends the inclusion of both print, electronic media and intermediaries within the scope of section 126 and for the said purpose, the committee proposed the following amendments in the text of section 126 of the RP Act 1951 as follows:-
“126 (1) No person shall...
(a)...9
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(b) publish, publicise or disseminate any election matter by means of print or electronic media or through intermediaries or through any other means ; or ...
(c) “electronic media” includes internet , radio and television , including internet Protocol Television, satelite terrestrial or cable channels , or internet / digital versions of print media , mobile and such other media either owned by the Goverment or private persons by both;
5.4. It is relevant to mention that the above mentioned amendment proposed by the committee never got implemented and Section 126 does not undergo any amendment to include the “mobile outreach campaign” within its ambit.
5.5. The allegations in the election petition does not contain any violation of the Model Code of Conduct [MCC] and even the Model Code of Conduct does not have any statutory force. The relevant clause in the Model Code of Conduct applicable to the present case is extracted hereunder :
“(4) All parties and candidates shall avoid the scrupulously all activities which are “corrupt practices 10 https://www.mhc.tn.gov.in/judis O.A.No.53 of 2022 in E.L.P.No.1 of 2021 ”and offences under the election law, such as bribing of voters, intimidation of voters, impersonation of voters, canvassing within 100 meters of polling stations, holding public meetings during the period of 48 hours ending with the hour fixed for close of poll, and the transport and conveyance of voters to and from polling station.” 5.6. There are no “public meetings” in the instant case and therefore the allegation contained in the Election petition does attract the rigours of the said clause. Further, MCC does not carry statutory force to fall within the ambit of the Section 100(1)(d)(iv) of RP Act and therefore, an Election cannot be set aside on the ground of Violation of MCC. Any infraction of the same can only be brought to the notice of Election Commission for appropriate action against the candidate or Political Party. In this regard relied on the judgment in Bashiruddin Halhipparga vs Rajashekhar Basavaraj Patil & others [AIR 2004 Kant 471].
5.7. Sections 39A and 126-A of the RP Act has no relevance to the instant case. Section 39A pertains to restrictions on Election 11 https://www.mhc.tn.gov.in/judis O.A.No.53 of 2022 in E.L.P.No.1 of 2021 Commission, Cable operators and Electronic media concerning equitable sharing of timing for propagation of election matter. The word “Electronic Media” is defined under Explanation to the said section as follows:-
126-A (3)(b) “electronic media” includes radio and any other broadcasting media notified by the Central Government in the Official Gazette;” Section 126-A pertains to restrictions concerning Exit polls. Both the above mentioned sections have no relevance to the present instant case, where allegations pertain to canvassing through Whatsapp message.
6. Mr.P.Parthiban, learned counsel appearing for the election petitioner/respondent has made the following submissions:
6.1. The applicant has violated Sections 39A and 126 of the RP Act and also the Model Code of Conduct made in exercise of power conferred under the act and thus his election is liable to be declared void, if proved. Hence for non-compliance with the provisions of the Act or of any rules or orders made under this Act, this Court can declare the election of the returned candidate to be void as per section 100(1)(d) (iv) of the RP Act.
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https://www.mhc.tn.gov.in/judis O.A.No.53 of 2022 in E.L.P.No.1 of 2021 6.2. The respondent/election petitioner should be permitted to take evidence and establish his case by way of full fledged trial and seeks to dismiss the present application.
6.3. The canvass activity in any form is permitted only during the time allocated, more particularly till forty- eight hours before the hour fixed for polling for such election. The applicant/respondent has violated the same and circulated a Whatsapp video to the public during prohibited hours which is intentional and calculated to influence or affect the result of the election.
6.4. Section 126 (1)(c)(3) of the RP Act, 1951 specifically states that "election matter" means any matter intended or calculated to influence or affect the result of an election. The applicant has violated the same and sent a Whatsapp video and circulated the same to public during prohibited hours which is intentional and calculated to influence or affect the result of the election. The statement in the video is self 13 https://www.mhc.tn.gov.in/judis O.A.No.53 of 2022 in E.L.P.No.1 of 2021 explanatory, he states that the election is tomorrow and requests to vote. It was a calculative move of the applicant/respondent to influence and gain votes at the last moment and thereby defeat the valid right of the respondent/petitioner illegally.
6.5. Section 126-A (3) (b) of the RP Act states that electronic media includes Internet, mobiles and such other devices, thus canvas on mobile using internet is also included and the same is also prohibited under Section 126 of the RP Act. Further 126-A(3)(d) of the RP Act states that dissemination includes display on electronic media. Thus Whatsapp canvass is also prohibited under the Act.
6.6. On 06.04.21 an FIR was registered by the T.R.Pattinam Police Station, Karaikal for the above alleged offences under Sections 171 F, 188 of the Indian Penal Code in Crime No. 37/21 for releasing video on social media on 05-04-2021 at about 18.00 Hrs influencing calculatedly the voters to vote in his favour by his audio statement and 14 https://www.mhc.tn.gov.in/judis O.A.No.53 of 2022 in E.L.P.No.1 of 2021 succeeded in the election. Thus a prima facie case has been made out to lead a fair trial as there is non compliance of Sub Clause (iv) of Clause (d) of Sub Section (1) of Section 100 of the Act which is the subject matter of trial for non compliance of Section 39A and Section 126-A of the act or the MCC.
6.7. The applicant has made emotional blackmail and induced the voters during prohibited hours with a statement intended and calculated as explained in Sections 126(3) of the RP Act to influence or affect the result of an election and therefore, prays to dismiss O.A.No.53 of 2022 in ELP.No.1 of 2021.
6.8. The learned counsel for the respondent/election petitioner, in support of his contentions, has placed reliance on the decision in Pandia Rajan. K. Vs S.M.Nasar [Order dated 09.11.2018 in O.A.Nos.94 and 95 of 2017 in ELP.No. 3 of 2016].
15 https://www.mhc.tn.gov.in/judis O.A.No.53 of 2022 in E.L.P.No.1 of 2021
7. This Court has anxiously considered the rival submissions and also perused the entire materials available on record.
8. The primordial contention of the applicant is that neither the provisions of Representation of People Act, 1951 nor the Model Code of Conduct have been violated and the election petition does not disclose any cause of action and therefore, the same deserves to be rejected in limine. However, the contention of the respondent / election petitioner is that the applicant has circulated a Whatapp video within the prohibited hours, which is nothing by an emotional blackmail and therefore the action of the first respondent / falls within the definition of corrupt practice under Section 123 of the RP Act and the same is a valid ground for declaring the election as void under Section 100 of the RP Act.
9. The contention of the parties concerned would impress upon this Court to decide the following issues in this original applications: 16
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(i)Whether the respondent/election petitioner has made out an allegation of corrupt practice against the applicant under Sections 123(2) and 123(4) of the Act?
(ii) Whether the election petition disclose any cause of action?
(iii) Whether the applicant has committed violation of any of the provisions of the Representation of People Act, 1951 and Model Code of Conduct ?
ISSUE NO.1
10. Section 123 of the Representation of the People Act, 1951, elaborately deals with Corrupt Practices, more particularly Sections 123(2) and 123(4) of the RP Act reads as under:
“123.Corrupt Practices:- The following shall be deemed to be corrupt practices for the purposes of this Act:-
(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 17 https://www.mhc.tn.gov.in/judis O.A.No.53 of 2022 in E.L.P.No.1 of 2021 consent of the candidate or his election agent, with the free exercise of any electoral right:
....
(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 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.”
11. The main contention of the election petitioner is that the statement of the applicant circulated in the Whatsapp video attracts corrupt practice in terms of Section 123(2) and the same is a ground for declaring the election as void under Section 100 of RP Act. According to the respondent, for the alleged circulation of whatsapp video during prohibited hours a complaint was lodged and an FIR was registered by the T.R.Pattinam Police Station in Crime No.37 of 2021 for the offences under Sections 171F and 188 of the Indian Penal Code and therefore, a prima facie case is made out to conduct trial, constituting a ground to declare the election as void under Section 100 of the RP Act. 18 https://www.mhc.tn.gov.in/judis O.A.No.53 of 2022 in E.L.P.No.1 of 2021
12. Section 123(2) of the RP Act enumerates the instances which constitute undue influence. In order to attract Section 123(2) of the RP Act, there should be some act of influencing mental element causing pleasure or tyranny in the mind of candidate or voter. There must exist a direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person, with the free exercise of any electoral right. A bare perusal of the Whatsapp video message circulated by the applicant would disclose as if he was under life threat and his only last belief is on the voters and god and therefore, requested the public to vote for him; otherwise his life would be under peril. By circulating such a whatsapp video, the respondent/applicant has made an attempt to gain sympathy or unfair advantage by influencing the mind of the public to vote for him. A blind reading of the whatsapp video message circulated by the applicant, would very much deceive the general public, that too same has been circulated during the prohibited hours and as such, the same may indirectly influence the mind of the general public/voters to vote in favour of him. The decisions relied on by the learned counsel for the applicant 19 https://www.mhc.tn.gov.in/judis O.A.No.53 of 2022 in E.L.P.No.1 of 2021 only pertains to the proviso to Section 123(2) of the RP Act and does not cover 123(2) of the RP Act.
13. The fact remains that the applicant has circulated a Whatsapp video message to the general public during the prohibited hours to unduly influence the mind of the public/voters by gaining sympathy. There are rival contentions with regard to the attraction of Section 123(2) of the RP Act, 1951. It is to be reiterated at this juncture that for the alleged circulation of whatsapp video during prohibited hours, already a complaint was lodged as against the applicant and an FIR was registered by the T.R.Pattinam Police Station in Crime No.37 of 2021 for the offences under Sections 171F and 188 of the Indian Penal Code and criminal proceedings are under progress. In the light of the provisions of Section 123(2) of the Act and in the light of the rival contentions over disputed question of fact, is of the considered view the mater requires full fledged trial based on oral and documentary evidence.
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14. As regards attraction of Section 123 (4) of the RP Act, there should be a publication of false statement against any candidate about his conduct and personal character and thereby offending his candidature. Section 123 (4) extends the ambit of “corrupt practices” to the intentional publication of false statements which can prejudice the outcome of the candidate’s election. In this context, it is relevant to refer to the decision of the Hon'ble Supreme Court in M.J.Jacob v. A.Narayan and Others [2009 (3) Scale 536], wherein it was held as under:
“23. It is now well settled that the five ingredients required to establish a corrupt practice under Section 123(4) of the Act are:
(i) there should be a publication by the candidate or his agent, or by any other person, with the consent of a candidate or his election agent;
(ii) the said publication should contain a statement of fact which is false;
(iii) the person making such publication should either believe such statement to be false or not believe it to be true;
(iv) such false statement should be in relation to the personal character or conduct of any candidate; and
(v) such false statement should reasonably be calculated to prejudice the prospects of that candidate's election.21
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24. There is thus no doubt that any false accusation relating to the personal character or conduct of any candidate calculated to prejudice the prospect of his election would amount to a corrupt practice. But what is crucial is that the false statement should relate to the personal character or conduct of a defeated candidate. Where the false statement was about some one other than the candidate, this Court has refused to consider the publication to be a corrupt practice under Section 123(4). In Dev Kanta Barooah v. Golak Chandra Baruah (1970) 1 SCC 392 a statement imputed corruption and chaos when the defeated candidate was chairman of a Municipality and asked the voters to note the injustices and chaos during his tenure. This Court refused to hold the same as a corrupt practice under Section 123(4) on the following reasoning :
"It may, however, be noted that, in this part, it is not stated that Respondent No.1 himself was corrupt. The imputation only is that, during his tenure of office, there were instances of corruption and chaos. Thereafter, the four instances are given. It cannot, therefore, be held that the leaflet was intended to convey to the readers that Respondent No.1 was himself corrupt. The impression that would be expected to be created would be that his administration as Chairman of the Municipality was so unsatisfactory that corruption and chaos prevailed in the affairs of the Municipality. The imputation, therefore, was as to mismanagement of the affairs of the Municipality by Respondent No.1, indicating that he was not a good administrator. The leaflet was not intended to convey to the voters any reflection on the personal character of Respondent No.1."
25. In Jagdish Prasad Tiwari v. Ramdhani Mishra (1975) 1 SCC 108, this court held (vide para 3) :
22
https://www.mhc.tn.gov.in/judis O.A.No.53 of 2022 in E.L.P.No.1 of 2021 "Under Section 123(4) of the Representation of the People Act the false statement must be in relation to the personal character or conduct of the candidate. We should here set out the offending portion in Ext. P1 :
Then Tewariji who now proclaims himself a Congressman, and has as well been accepted, had no satiety from reviling using abusive and debased terms, Prime Minister Indira Gandhi, and the Congress. His supporters were raising slogans of very mean standard, Gali Gali mein Jhandi hai Indira Gandhi Randi hai.
The Hindi words used are "Khari Khoti" which mean true and false rather than legitimate and illegitimate. However, as pointed out by the learned Judge the first sentence relates to what the appellant himself did. The second sentence relates to what his supporters did. It is the second sentence that is obscene and abusive of the Prime Minister. Therefore, it cannot be said that the character or conduct of the appellant was attacked and therefore the matter does not fall within sub-section (4) of Section 123. We are, therefore, of opinion that the appellant has failed to prove the corrupt practice that he alleged against the respondent even as the learned Judge did."
26. We may also refer to the principles relating to construing offending pamphlets, laid down in Kultar Singh v. Mukhtiar Singh (1964) 7 SCR 790:
"The principles which have to be applied in construing such a document are well-settled. The document must be read as a whole and its purport and effect determined in a fair, objective and reasonable manner. In reading such documents, it would be unrealistic to ignore the fact that when election meetings are held and appeals are made by candidates of opposing political parties, the atmosphere is usually 23 https://www.mhc.tn.gov.in/judis O.A.No.53 of 2022 in E.L.P.No.1 of 2021 surcharged with partisan feelings and emotions and the use of hyperboles or exaggerated language, or the adoption of metaphors, and the extravagance of expression in attacking one another, are all a part of the game, and so, when the question about the effect of speeches delivered or pamphlets distributed at election meetings is argued in the cold atmosphere of a judicial chamber, some allowance must be made and the impugned speeches or pamphlets must be construed in that light. In doing so, however, it would be unreasonable to ignore the question as to what the effect of the said speech or pamphlet would be on the mind of the ordinary voter who attends such meetings and reads the pamphlets or hears the speeches."
(emphasis supplied)
15. Para 23 of the decision cited supra clearly laid down the ingredients required to establish corrupt practice under Section 123(4) of the RP Act. The applicant, in his Whatsapp statement circulated has stated that he has been threatened by the ruling party by using their high financial and official position and he was made to hide and he was helpless. The applicant also stated that as a last resort, he is believing on god and the people and if the people did not vote for him and safeguard him, the end consequences would be different. A perusal of the aforesaid Whatsapp statement circulated by the applicant would 24 https://www.mhc.tn.gov.in/judis O.A.No.53 of 2022 in E.L.P.No.1 of 2021 disclose that those words were uttered to gain emotional sympathy from voters. However, in view of the rival contentions made by the parties, this Court cannot come to the conclusion at the threshold as to whether the said statement has been made with the consent of a candidate or his agent and whether such statement is false or which believe to be false and whether it is in relation to the personal conduct or character of any candidate and the matter requires detailed consideration by way of full fledged trial based on oral and documentary evidence.
ISSUE NO.2
16. According to the applicant, the election petition does not disclose any cause of action and accordingly, it deserves to be rejected. In this regard he relied on the judgement of the Hon'ble Supreme Court in Madiraju Venkata Ramana Raju v. Peddireddigari Ramachandra Reddy [(2018) 14 SCC 1] .
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17. Considering the averments made in the election petition, it cannot be said that no cause of action is made out and therefore, the present issue also requires detailed consideration, warranting trial on the basis of oral and documentary evidence.
ISSUE NO.3
18. According to the election petitioner, the applicant/first respondent has violated Sections 39A and Section 126 of the RP Act and also the Model Code of Conduct and thus, his election is liable to be declared void. The said contention of the applicant is refuted by the learned counsel for the respondent/election petitioner. This Court is of the view that since Issue Nos.1 and 2 require full fledged trial, the present ground raised by the respondent / election petitioner will also be left open to be decided at the time of trial, based on oral and documentary evidence.
26 https://www.mhc.tn.gov.in/judis O.A.No.53 of 2022 in E.L.P.No.1 of 2021 CONCLUSION
19. In view of the above discussions, this Court is of the view that no case is made out to entertain the present original application. Accordingly, O.A.No.53 of 2022 is dismissed. All the grounds raised by the parties would be decided at the time of trial in the election petition, without being influenced by any observations made in this order. Registry is directed to list the Election Petition No.1 of 2021 for trial on 21.04.2023. No costs.
31.03.2023 Index:Yes Internet:Yes Jvm 27 https://www.mhc.tn.gov.in/judis O.A.No.53 of 2022 in E.L.P.No.1 of 2021 D. KRISHNAKUMAR, J.
Jvm Order in O.A.No.53 of 2022 in E.L.P.No.1 of 2021 31.03.2023 28 https://www.mhc.tn.gov.in/judis