Madras High Court
R.Kamalakkannan vs P.R.Siva on 9 June, 2008
Author: C. Nagappan
Bench: C.Nagappan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 9.6.2008
CORAM:
THE HONOURABLE MR.JUSTICE C.NAGAPPAN
Election Petition No.12 of 2006
R.Kamalakkannan .. Petitioner
-Vs-
1.P.R.Siva
2.J.Arumugam
3.R.Sivakumar
4.M.Sadick Ali
5. Returning Officer VIII
Tirunallar Assembly Constituency
Karaikal, Pondicherry. .. Respondents
For Election Petitioner : M/s.D.Rajagopal,
K.Narasimhan,
P.Vedhavalli
and V.Vasanthakumar
For Respondent No.1 : Mr.T.V.Ramanujam
Senior Counsel for
M/s.A.Tamilvanan,
J.Om Prakash and
P.Sathish
For Respondent No.5 : Mr.T.Murugesan
Govt. Pleader (Puducherry)
(Respondents 2 to 4- Set exparte)
ORDER
The petitioner has filed the election petition under Sections 80-A, 81 to 84 read with Sections 100(1)(b), 100(1)(d)(ii) and Sections 101, 123, 123(1)(A)(b) of the Representation of the People Act, 1951 seeking for a declaration to declare the election of the first respondent/returned candidate as void and to declare that the petitioner has been validly elected to the Pondicherry Legislative Assembly from No.26 Tirunallar Assembly Constituency in the election held on 8.5.2006.
2. According to the election petitioner, nominations were called for on 13.4.2006 to the General Elections to the Pondicherry Legislative Assembly to be held on 8.5.2006 and he filed his nomination as a candidate belonging to INC (Indian National Congress) Political party on 20.4.2006 to No.26 Tirunallar Assembly Constituency and the first respondent submitted his nomination as a candidate belonging to MDMK Party; the second respondent as a candidate of BJP Party; the third respondent as a candidate of DMDK Party and the fourth respondent as a candidate of BSP Party filed their nominations and all the nominations were accepted and they were declared as candidates contesting the election in No.26 Tirunallar Assembly Constituency.
3. In paragraph No.5 of election petition, the election petitioner has stated that the campaign period was over at 5 pm on 6.5.2006, but however, the first respondent on 7.5.2006 at 7 pm, came along with his supporters to Nallazhandur Village in Tirunallar Assembly Constituency and offered gold nose screw to the voters by way of bribe and requested them to vote for him in the election to be held on 8.5.2006. It is further stated that when the election petitioner was in his house at about 7.10 pm on 7.5.2006, one Ulaganathan of Pettai village informed him about the distribution of gold nose screw to the voters in Pettai by the first respondent and his supporters. According to the election petitioner, he also received nearly 50 calls from various voters in the constituency as to the distribution of gold nose screw to the voters in the constituency by the first respondent and his supporters. The election petitioner has further stated that even on 8.5.2006, in the early morning, the first respondent and his supporters distributed gold nose screw to the voters of Tirunallar Assembly Constituency and gathered votes. The election petitioner has also stated that on 8.5.2006 at about 5.30 am, one Ponramasamy, a supporter of first respondent, while distributing gold nose screw to the voters in Sethur of Tirunallar Constituency, it was objected to by one Pandian, supporter of election petitioner and trouble started and Police Authorities registered a case under Section 160 IPC in FIR No.89 of 2006 and the petitioner was immediately informed by one Anbazhagan of Sethur village about the distribution of gold nose screw to the voters by the first respondent and his supporters on 8.5.2006 in Sethur village with a request to vote for first respondent.
4. In paragraph No.6 of the election petition, the election petitioner has stated that on gathering materials on 8.5.2006 at about 6.30 pm, he gave fax message registering his objections to the Superintendent of Police, Karaikal and the Election Officials and again on 9.5.2006, he sent the same objections to the Superintendent of Police, Karaikal and though the petitioner did not receive the postal acknowledgment, the postal department in their letter dated 23.5.2006, addressed to the petitioner, has vouched the due delivery of the letters to the addressee. It is further stated by the petitioner that no action was taken on his objections and they were abetting the first respondent in committing the electoral offence. According to the election petitioner, the first respondent has distributed gold nose screw to the voters of Tirunallar Assembly Constituency on 7.5.2006 and 8.5.2006 by way of bribe and requested them to vote for him in the election and that action amounts to corrupt practice rendering the election of the returned candidate as void.
5. In paragraph No.7 of the election petition, the election petitioner has stated that Ulaganathan of Pettai village informed him that he saw the first respondent and his supporters Nagarajan, Rajasekhar from Kaliamman Koil Street of Pettai distributing gold nose screw to the voters in Pettai village with a request to vote for first respondent. It is further stated by the election petitioner that Murugan of Muppaithankudi village informed the petitioner that he saw the first respondent and his supporters Mariappan, Raja and Thilagavathi distributing gold nose screw at 11.30 pm on 7.5.2006 at Muppaithankudi village to the voters with a request to vote for the first respondent. The election petitioner has further stated that Mohan and Rajasekaran of Kamatchi Nagar of Sethur and Elangovan of North Street, Sethur saw the first respondent and his supporters Pon Ramasamy, Elango and Muthuvel of Sethur distributing gold nose screw on 8.5.2006 in Sethur village to the voters and requested them to vote for the first respondent in the election. According to the election petitioner, he called upon Vijayavarman to gather particulars and on 9.5.2006, Vijayavarman videographed the persons, who received gold nose screw from the first respondent and his supporters and from the videograph, the petitioner came to know that Vembu of Nallazhandur village, Thamilselvi, Manimegalai and Jayalakshmi of Sethur village have received gold nose screw from the first respondent and his supporters to vote for the first respondent in the election. It is further stated by the petitioner that Murugan of Muppaithankudi informed him that he saw Mariappan, Raj and Thilagavathi distributing gold nose screw to the voters of Muppaithankudi and requested them to vote for the first respondent in the election on 8.5.2006. The election petitioner has further stated that from the videograph taken by Vijayavarman, he came to know that Annakili of Muppaithankudi had received gold nose screw from the first respondent and his supporters to vote for the first respondent. According to the election petitioner, the first respondent and his supporters have distributed 4000 gold nose screws to the voters of Tirunallar Assembly Constituency.
6. In paragraph No.8, the election petitioner has stated that the proof of distribution of such gratification was recorded and videographed by Vijayavarman, engaged by the petitioner on 9.5.2006 through DVD from the voters who have received the gratification and the election petitioner lodged a complaint on 18.5.2006 to the Inspector General of Police, Pondicherry enclosing the videographed DVD copies and affidavits obtained from some of the voters who have received gratification from the first respondent and his supporters and a copy of the same was sent to the Chief Secretary of Pondicherry for suitable action.
7. In paragraph No.9 of the election petition, the election petitioner has stated that he was able to gather through his supporters and his election agent Bala Dhandayutham that the first respondent and his supporters distributed cell phone to Abdul Jabbar and Rahamathulla of Ambakarathur inducing them to vote for the first respondent in the election. It is also stated by the election petitioner that the first respondent has distributed a T.V. Set to one Kandapillai of Thamanangudi inducing him to vote for him in the election. The election petitioner has further stated that the gift offered and distributed by the first respondent and his supporters gives material advantage to its recipient and to the first respondent amounting to corrupt practice thereby attracting Section 123 of the Representation of the People Act, 1951.
8. In paragraph No.10, the election petitioner has stated that the fifth respondent on 11.5.2006 declared the first respondent as duly elected to fill the seat of No.26 Tirunallar Pondicherry Legislative Assembly Constituency having secured 7237 votes and the petitioner was polled 6952 votes. It is further stated that the first respondent was declared to be the winner by a margin of 285 votes and the general observer had wantonly not taken any action against the first respondent. The election petitioner has further stated that he sent representation dated 25.5.2006 to the Authorities to take appropriate action and also filed writ petition in W.P.No.17943 of 2006 seeking a direction to the Authorities to consider the above representation and take action in accordance with law and he also filed a petition in Crl.O.P.No.13123 of 2006 to take criminal action as to the Electoral offence committed by the first respondent.
9. The election petitioner has further stated that the first respondent, his agents, men and supporters are guilty of corrupt practice under Section 123(1)(A)(b) of the Representation of the People Act, 1951 and valid ground has been made out for declaration that the election of the first respondent from No.26 Tirunallar Assembly Constituency to be void by applying the provisions of Sections 100(1)(b), 100(1)(d)(ii) and Sections 101, 123, 123(1)(A)(b) of the Representation of the People Act, 1951.
10. The first respondent, in his counter affidavit, has stated that the allegations about the 'circulars' and 'guidelines' referred to in para 4 of the election petition, are vague and general in nature and the petitioner has not referred to any specific circular or guideline and they do not make out any cause of action.
11. The first respondent has further stated in the counter that the allegations in para 5 of the election petition are scandalous, scurrilous, frivolous and vexatious and the election petitioner has used expressions like 'supporters', 'voters' and 'gathered votes' etc., which are deliberately vague and general in nature and the election petitioner has not pleaded material facts and full particulars with regard to the alleged corrupt practice and the pleadings are vague and do not give rise to any cause of action and they are denied.
12. The first respondent in the counter affidavit has denied the allegation in para 5 of the election petition stating that the first respondent on 7.5.2006 after the completion of the election campaign at 7 pm came along with his supporters to Nallazhandur Revenue Village and offered gold nose screw to the voters by way of bribe and requested the voters to vote for him in the election, as false and according to him, this allegation is vague and the expressions 'Supporters' and 'Voters' are very general in nature and no material particulars have been pleaded.
13. The first respondent has denied the further allegation in para 5 of the election petition stating that the first respondent and his supporters distributed gold nose screw in the night on 7.5.2006 in Tirunallar Assembly Constituency and gathered votes, as false and according to him, the expression 'distributed gold nose screw' is vague.
14. It is further stated by the first respondent that the further allegation in para 5 of the election petition that one Ulaganathan of Pettai informed, is vague and the names of the alleged voters who received gold nose screw in Pettai are not mentioned and the allegation is denied. According to the first respondent, no document is produced along with the election petition to prove that Ulaganathan is a voter and the identity of Ulaganathan has not been specifically pleaded and the averment that Ulaganathan was a voter in Tirunallar Constituency, is denied by the first respondent. The further allegation in para 5 of the election petition that on 8.5.2006, the first respondent and his supporters distributed gold nose screw to the voters, is denied by the first respondent and according to him, it is vaguely stated that the election petitioner received 50 phone calls from various voters as to the distribution of gold nose screw to the voters and no full particulars of the alleged voters who received the gold nose screw are mentioned and hence it is vague.
15. The first respondent has further stated that the further allegation in para 5 of the election petition that one Ponramasamy, alleged supporter of the first respondent has distributed gold nose screw, is false and according to him, the identity of the alleged Ponramasamy is not pleaded specifically and the allegation is imaginary and the allegation that Ponramasamy was supporter of the first respondent, has been denied and consent is one of the ingredient of Section 123(1)(A) of the Representation of the People Act, 1951 and there is no such pleading in para 5 of the election petition. The first respondent has further stated that the alleged information of one Mr.Anbazhagan is again vague and the names and particulars of the alleged voters are not mentioned and the entire allegations in para 5 of election petition are liable to be struck off.
16. It is further stated by the first respondent in the counter that the further allegation in para 5 of the election petition that even on 8.5.2006 in the early morning the first respondent and his supporters distributed gold nose screw to the voters in the Constituency and gathered votes, is denied by the first respondent as vague and no truth in it. The next allegation in para 5 of the election petition stating that Ponramasamy, supporter of the first respondent, at about 5.30 am on 8.5.2006, was distributing gold nose screw to the voters in Sethur and it was objected to by one Pandian and trouble started and Police Authorities on their own registered a case under Section 160 IPC under FIR No.89/2006, has been denied by the first respondent and according to him, the allegation was deliberately vague and a copy of FIR has not been filed along with the election petition and the mandatory provision of Section 123(1)(A) of the Representation of the People Act, is not attracted. The first respondent has denied the further allegation in para 5 that one Anbazhagan informed the election petitioner about the distribution of gold nose screw by the first respondent and his supporters on 8.5.2006 in Sethur to the voters with a request to vote for the first respondent and according to him, in the verification as well as in Form No.25, there is no reference to the name of Anbazhagan and the allegations are mutually contradictory apart from being vague and imaginary and they are denied.
17. The first respondent has denied the allegations in para 6 of the election petition as vague, frivolous, scandalous and vexatious and has further stated that in the averments in para 6, it was stated that some complaints have been given to the Police and the Electoral Authorities and there also, particulars of the voters who received the bribe have not been fully furnished and it is vaguely stated as 'voters of Tirunallar Assembly Constituency and the allegation has been invented for the purpose of this case without any regard for truth. According to the first respondent, the complaint said to have been given to Inspector General of Police, Pondicherry, is a false complaint lodged after the declaration of results and though the election petitioner has stated that he gave fax message to the Superintendent of Police and other Electoral Officers, copy of the fax is not produced and in the same way, though it is alleged that the election petitioner has sent some objections through registered post to the Superintendent of Police, the copy of the complaint dated 9.5.2006 is not produced and what is produced is only the complaint dated 18.5.2006 and that is long after the declaration of results. It is further stated by the first respondent in the counter that the allegation of the election petitioner that the first respondent distributed gold nose screw to the voters on 7.5.2006 and 8.5.2006 by way of bribe and requested them to vote for him, is false and denied. According to the first respondent, the allegations in para 5 and para 6 of the election petition are mutually contradictory because they are false and invented and the provisions of Section 123(1)(A) of the Act are not attracted.
18. The first respondent has denied the entire allegations in para 7 of the election petition and stated that the allegation that the voters of the Tirunallar Assembly Constituency accepted the gratification offered by the first respondent and his supporters on 7.5.2006 and 8.5.2006, is vague and there is no reference to any 'elector' and the names of the voters who received the gratification and the supporters who distributed the gold nose screw, are not mentioned and the pleadings are liable to be struck off. It is further stated by the first respondent in the counter that the election petitioner has alleged in para 7 that he gathered details and it is not stated 'when', 'from whom' and 'how' the same was gathered and the allegation is vague and general and the further allegation that one Ulaganathan informed about the distribution of gold nose screw to the voters of Pettai by the first respondent and Nagarajan alias Narayanasamy, Rajasekar, alleged supporters of the first respondent, with a request to vote for the first respondent, is denied as false. The first respondent has further denied the allegation that one Nagarajan alias Narayanasamy and one Rajasekar of Kaliamman Koil Street of Pettai were the supporters of the first respondent and they along with the first respondent distributed gold nose screw to the voters of Pettai village with a request to vote for the first respondent on 8.5.2006, as not true. According to the first respondent, the name of some person named Ulaganathan is planted just to give false evidence and the names of alleged voters are not mentioned.
19. It is further stated in the counter that the allegation in para 7 that one Murugan of Muppaithankudi village informed the petitioner and others that he saw the first respondent and his supporters Mariappan, Raja and Thilagavathi distributing gold nose screw at 11.30 pm on 7.5.2006 at Muppaithankudi to the voters with a request to vote for him, is vague and imaginary and the same is denied. The first respondent has further stated in the counter that the allegation that one Mariappan, Raja and Thilagavathi were the supporters of first respondent, is false and the election petitioner has planted some names calling them as supporters of first respondent with a view to give false evidence and the name of Murugan is planted in the same way and the first respondent does not admit the identity of Ulaganathan and Murugan as alleged in para 7 of the election petition. It is further stated by the first respondent that it is alleged that Murugan informed the election petitioner and others and it is not known as to what the petitioner means by the word 'others' and the names of the alleged voters are not mentioned. The first respondent has further denied the allegation that Mohan, Rajasekaran and Elangovan of Sethur saw the first respondent and his alleged supporters Ponramasamy, Elango and Muthuvel distributing gold nose screw in Sethur village to the voters with a request to vote for the first respondent. According to the first respondent, the election petitioner has planted the names like Mohan, Rajasekaran and Elangovan just to give false evidence and the names of the alleged voters are not mentioned.
20. It is further stated by the first respondent that in para 7 of the petition, the election petitioner has stated that he called upon one Vijayavarman to gather particulars about the alleged incident of distribution of gold nose screw by the first respondent and his supporters and Vijayavarman videographed the persons who received gold nose screw and the said allegations are false and denied. According to the first respondent, the so called videograph was taken long after the alleged incident and it is nothing but fabrication of false evidence. The first respondent has further denied the allegation that Vembu, Thamilselvi, Manimegalai and Jayalakshmi received gold nose screw from the first respondent and his supporters to vote for him, as false and further stated that they are invented and the identity of the persons has not been properly disclosed. It is further stated by the first respondent that the other allegation in para 7 of the election petition that one Murugan of Muppaithankudi informed the election petitioner that he saw Mariappan, Raja and Thilagavathi distributing gold nose screw to the voters of Muppaithankudi and requested them to vote for first respondent, is an invented one and the same is denied and the election petitioner has planted the name of Murugan to give false evidence. The first respondent has further stated that the allegation that from videograph, the election petitioner came to know that one Annakili of Muppaithankudi has received gold nose screw to vote for first respondent, is again invented for the purpose of this case and the names of Annakili and Vijayavarman have been planted with intent to give false evidence. The first respondent has specifically denied the further allegation that he and his supporters have distributed 4000 gold nose screws to the voters of Tirunallar Assembly Constituency.
21. The first respondent has denied the allegation in para 8 of the election petition and according to him, videograph said to have been recorded on 9.5.2006 by Vijayavarman, is nothing but fabrication of false evidence and the election petitioner himself has stated that he engaged Vijayavarman to record videograph on 9.5.2006, after the election was over and so the videograph is recorded for the purpose of election petition and it is denied. It is further stated in the counter that the election petitioner has alleged that he lodged a complaint dated 18.5.2006 and according to the first respondent, the election itself was over on 8.5.2006 and the election petitioner has gained ten days' time to fabricate false evidence and hence it is a false complaint and the election petitioner has procured false affidavits for the purpose of this case from obliging persons. The first respondent has further stated that the alleged affidavits given by Thamilselvi and Vembu are stereo typed and the stamp papers are purchased in the name of the election petitioner and the Notary seals are identical in both the affidavits and in those false affidavits there is no allegation against the first respondent. It is further stated in the counter that in the alleged affidavit of Vembu, there is no allegation against the first respondent and it is alleged that one Elango gave gold nose screw and even these false affidavits do not make out a case under Section 123(1)(A) of the Act and there is not even an allegation of 'consent' in the affidavit. According to the first respondent, a perusal of the videograph would clearly show that it is created for the purpose of this case and it is nothing but fabrication of false evidence.
22. The first respondent has further stated in the counter that the allegation in para 9 of the election petition that 'through his supporter and his election agent one Mr.Balathandayutham, the election petitioner was able to gather that the first respondent and his supporters have distributed cell phone to Abdul Jabbar and Rahamathulla of Ambagarathur inducing them to vote for the first respondent', is false and denied. The first respondent has further denied the allegation that he has distributed a T.V. Set to one Kandapillai inducing him to vote for the first respondent in the election. According to the first respondent, the names mentioned in para 9 of the election petition, have all been planted just to give false evidence and the identity of persons who have allegedly received Cell phone and Television set, is not mentioned and that will enable the election petitioner to procure false evidence. The first respondent in the counter has further denied the allegation that he has not contested the election in a fair manner. According to the first respondent, he has not offered any gift to the voters and he has not induced any voters to vote for him by offering a gift, as falsely alleged and he has never authorised or consented for anyone to offer gifts to any electors to vote for him and the first respondent has not given any gift amounting to corrupt practice, as falsely alleged.
23. Regarding the allegations in para 10 of the election petition are concerned, the first respondent has stated that he has been validly declared as elected in the election and the allegation that General Observer had wantonly not taken any action against him, is not true and denied and the first respondent has not offered any gratification in the election, as falsely alleged and the representation dated 25.5.2006 said to have been sent by the election petitioner, is purely by way of an afterthought and the first respondent has not committed any electoral offence and also not committed any corrupt practice, as falsely alleged and the first respondent has further denied the allegation in para 11 of the election petition and stated that there is no cause of action to file the election petition and the election petitioner cannot seek for a prayer setting aside the election of the first respondent as void.
24. The first respondent in the counter has further denied the allegations in para Nos.12 and 13 of the election petition and stated that the election petitioner is not entitled to any relief sought for in the election petition. According to the first respondent, the affidavit said to be in Form 25 filed by the election petitioner in the election petition, is not in compliance with the mandatory provision of Section 83(1)(c) of the Representation of the People Act, 1951 read with Rule 94-A of Conduct of Election Rules, 1961 and Form No.25 and the name of the corrupt practice is not mentioned and the names and particulars of the alleged informants are also not mentioned and the time of alleged corrupt practice is not mentioned and hence the election petition is liable to be dismissed on that ground also.
25. The Election Petitioner in his reply statement has denied the averments found in the counter statement filed by the first respondent and has stated that the material facts and the material particulars have been clearly mentioned in the Election Petition and Form 25 affidavit filed by the election petitioner is in accordance with law. It is further stated by the election petitioner that the material particulars of corrupt practice have been clearly mentioned and the names, dates and those who are involved in such practice have been clearly mentioned and the facts which are essential to constitute the complete cause of action have been pleaded. According to the election petitioner mere repetition of the word "vague" in the counter statement of the first respondent cannot put curtain to the concised statement of material facts furnished to the election petitioner as to the commission of corrupt practice by the first respondent.
26. It is further stated in the reply statement that the election petitioner in para 5 of the petition has stated the particulars of commission of corrupt practice by the first respondent on 07.05.2006 and 08.05.2006 with full details of distribution of gratification by whom to whom, where and when and for what purpose and in para 6 of the petition, the petitioner has mentioned the steps taken by him on knowing the commission of corrupt practice including sending of fax message to the Superintendent of Police and to the Election Officers and also sending registered posts. It is further stated by the Election Petitioner that in para 7 of the Election Petition, he has mentioned the material facts with particulars of the commission of corrupt practice by the first respondent by mentioning the place, person, time of the commission of corrupt practice and in para 8, he has specifically pleaded as to the proof of distribution of gratification and in para 9, he has furnished the particulars of the distribution of cell phone and T.V. set by the first respondent. According to the election petitioner, the case pleaded by him is that the corrupt practice was committed by the first respondent himself and the distribution of gifts was by the first respondent and his supporters and on such averments, the question of consent of candidate may not arise and even otherwise, the consent may be either expressed or implied, which is the question of fact to be proved at the time of trial and if the election petitioner is able to satisfy the Court at the time of trial as to a single bribery atleast to a single person, the election petitioner is entitled for the declaration that the election of the first respondent is void.
27. The Respondents 2 to 4 have been set exparte.
28. The following issues have been framed for trial:-
1. Whether the first respondent/returned candidate has committed corrupt practice within the meaning of Section 123 (1) (A) (b) of the Representation of the People Act, 1951.
2. Whether the election petitioner has set forth material facts and full particulars of the alleged corrupt practice that would attract the ingredients of Sections 100 (1) (b), 100 (1) (d) (ii) and 123 (1) (A) (b) of the Representation of the People Act, 1951.
3. Whether the election petitioner is entitled for a declaration that the election of the first respondent/returned candidate is void.
4.Whether the election petitioner is entitled for a further declaration that he has been validly elected to the Pondicherry Legislative Assembly, from No.26, Tirunallar Assembly Constituency in the election held on 08.05.2006.
5. To what other reliefs the petitioner is entitled to.
ISSUE NOS.1 AND 2:-
29. Mr.D.Rajagopal, learned counsel for the election petitioner, submitted that the first respondent distributed gold nose screws to the voters of Tirunallar Assembly Constituency on 7.5.2006 and 8.5.2006 by way of bribe and requested the voters to vote for him in the election to be held on 8.5.2006 and the petitioner has furnished the names, dates, time and place of commission of corrupt practice mainly in paragraph Nos.5 and 7 of election petition and the material facts and full particulars of the corrupt practice have been set-forth in the petition and the petitioner has adduced oral and documentary evidence including contemporaneous documents with regard to the allegation of bribery and the petitioner has proved the commission of corrupt practice by the returned candidate/first respondent and hence he is entitled for the reliefs sought for in the election petition. In support of his contentions, the learned counsel for the election petitioner relied on the following decisions of the Supreme Court:-
"1. INAMATI MALLAPPA BASAPPA v. DESAI BASAVARAJ AYYAPPA AND OTHERS (A.I.R. 1958 S.C. 698)
2. S.B.ADITYAN v. S.KANDASWAMI AND OTHERS (AIR 1958 Supreme Court 857)
3. SHEOPAT SINGH v. HARISH CHANDRA AND ANOTHER (AIR 1960 Supreme Court 1217)
4. SARAT CHANDRA RABHA AND OTHERS v. KHAGENDRANATH NATH AND OTHERS (AIR 1961 Supreme Court 334)
5. RAJENDRA PRASAD JAIN v. SHEEL BHADRA YAJEE AND OTHERS (AIR 1967 Supreme Court 1445)
6. R.M.SESHADRI v. G.VASANTHA 'PAI AND OTHERS (AIR 1969 SUPREME COURT 692)
7. JANAK SINHA v. MAHANT RAM KISHORE DAS (AIR 1972 SUPREME COURT 359)
8. P.C.PURUSHOTHAMA REDDIAR v. S.PERUMAL (AIR 1972 SUPREME COURT 608)
9. ABDUL HUSSAIN MIR v. SHAMSUL HUDA AND ANOTHER (AIR 1975 SUPREME COURT 1612)
10. HARISINGH PRATAPSINGH CHAWDA v. POPATLAL MULSHANKER JOSHI AND OTHERS (AIR 1976 SUPREME COURT 271)
11. D.VENKATA REDDY v. R.SULTAN AND OTHERS (AIR 1976 SUPREME COURT 1599)
12. MANMOHAN KALIA v. SHRI YASH AND OTHERS (AIR 1984 SUPREME COURT 1161)
13. RAM SHARAN YADAV v. THAKUR MUNESHWAR NATH SINGH AND OTHERS (AIR 1985 SUPREME COURT 24)
14. SURINDER SINGH v. HARDIAL SINGH AND OTHERS (AIR 1985 SUPREME COURT 89)
15. S.HARCHARAN SINGH v. SAJJAN SINGH AND OTHERS (AIR 1985 SUPREME COURT 236)
16. THAKUR SEN NEGI v. DEV RAJ NEGI AND ANOTHER (AIR 1994 SUPREME COURT 2526)
17. MANOHAR JOSHI v. NITIN BHAURAO PATIL AND ANOTHER (1996) 1 Supreme Court Cases 169)
18. CHANDRAKANTA GOYAL v. SOHAN SINGH JODH SINGH KOHLI (1996) 1 Supreme Court Cases 378)
19. RAMAKANT MAYEKAR v. SMT. CELINE D'SILVA (AIR 1996 SUPREME COURT 826)
20. R.PUTHUNAINAR ALHITHAN, ETC., v. P.H.PANDIAN AND OTHERS (AIR 1996 SUPREME COURT 1599)
21. GOPALRAO RAVALAJI GULVE v. SHANTARAM PUNJAJI AHER (AIR 1999 SUPREME COURT 3358)
22. HARSH KUMAR v. BHAGWAN SAHAI RAWAT AND ORS. (2003 (6) Supreme 6)
23. BORGARAM DEURI v. PREMODHAR BORA & ANR. (2004 (1) Supreme 100)
24. MERCYKUTTY AMMA v. KADAVOOR SIVADASAN AND ANOTHER (AIR 2004 SUPREME COURT 342)
25. MAHENDRA SINGH v. GULAB (AIR 2005 SUPREME COURT 2515)
30. Per contra, Mr.T.V.Ramanujam, learned Senior Counsel appearing for the first respondent/returned candidate contended that there is no pleading of material facts and full particulars of the alleged corrupt practice in the election petition and it does not give rise to any cause of action and there is no pleading or evidence with regard to consent or agency in the commission of the alleged corrupt practice and the pleadings are vague and there are material contradictions and improvements in the testimonies of witnesses which do not tally with or corroborate with the pleadings and their testimonies are interested and unreliable and there is no contemporaneous complaint in regard to the allegation of bribery and the election petitioner has failed to prove the charge of corrupt practice against the first respondent/returned candidate and the election petition is liable to be dismissed. In support of his contentions, the learned Senior Counsel for the first respondent relied on various decisions of the Apex Court and in fact, some of the decisions were relied on by both sides for the proposition of law laid down therein. In addition, the following decisions were cited by him.
1. SRI HARASINGH CHARAN MOHANTY v. SURENDRA MOHANTY (AIR 1974 SUPREME COURT 47)
2. RAHIM KHAN v. KHURSHID AHMED AND OTHERS (AIR 1975 SUPREME COURT 290)
3. RAMJI PRASAD SINGH v. RAM BILAS JHA AND OTHERS (AIR 1976 SUPREME COURT 2573)
4. RAMANBHAI NAGJIBHAI PATEL v. JASVANTSINGH UDESINGH DABHI AND OTHERS (AIR 1978 SUPREME COURT 1162)
5. N.C.ZELIANG v. AJU NEWMAI AND OTHERS (AIR 1981 SUPREME COURT 8)
6. THAKUR SEN NEGI v. DEV RAJ NEGI AND ANOTHER (AIR 1994 SUPREME COURT 2526)
7. MANOHAR JOSHI v. NITIN BHAURAO PATIL AND ANOTHER (AIR 1996 SUPREME COURT 796)
8. GOPALRAO RAVALAJI GULVE v. SHANTARAM PUNJAJI AHER (1999) 8 Supreme Court Cases 574)
9. JEET MOHINDER SINGH v. HARMINDER SINGH JASSI (1999) 9 Supreme Court Cases 386)
10. R.P.MOIDUTTY v. P.T.KUNJU MOHAMMAD AND ANOTHER (2000) 1 Supreme Court Cases 481)
31. Before adverting to the contentions of the parties, it would be necessary in the first instance to consider what it is that is required under the provisions of the Representation of the People Act for unseating a successful candidate on charges of corrupt practice. Clauses (b) and (d) (ii) of sub-section (1) of Section 100 of the Act deal with corrupt practices, while Section 123 of the Act sets out what shall be deemed to be corrupt practices. Clauses (b) and (d) (ii) of sub-section (1) of Section 100 and Section 123 (1) (A) (b) which are relevant for the purposes of this case are as follows:
"100 (1). Subject to the provisions of sub-section (2) if the High Court is of opinion -
(a) ....
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) ....
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected -
(i) .....
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) ....
(iv) ....
the High Court shall declare the election of the returned candidate to be void.
123. Corrupt practices.- The following shall be deemed to be corrupt practices for the purposes of this Act:-
(1) "Bribery", that is to say, -
(A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the objects, directly or indirectly, of inducing-
(a) .....
(b) an elector to vote or refrain from voting at an election, or as a reward to -
(i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or
(ii) an elector for having voted or refrained from voting;"
32. Several decisions of the Supreme Court have laid down various tests to determine a corrupt practice and the standard of proof required to establish such corrupt practices and the observations of Their Lordships in some of the landmark Judgments are extracted below:-
D.VENKATA REDDY v. R.SULTAN AND OTHERS (AIR 1976 SUPREME COURT 1599) "Para 3. .... In a democracy such as ours, the purity and sanctity of elections, the sacrosanct and sacred nature of the electoral process must be preserved and maintained. The valuable verdict of the people at the polls must be given due respect and candour and should not be disregarded or set at naught on vague, indefinite, frivolous or fanciful allegations or on evidence which is of a shaky or prevaricating character. It is well settled that the onus lies heavily on the election petitioner to make out a strong case for setting aside an election. In our country election is a fairly costly and expensive venture and the Representation of the People Act has provided sufficient safeguards to make the elections fair and free. In these circumstances, therefore, election results cannot be lightly brushed aside in election disputes. At the same time it is necessary to protect the purity and sobriety of the elections by ensuring that the candidates do not secure the valuable votes of the people by undue influence, fraud, communal propaganda, bribery or other corrupt practices as laid down in the Act.
Para 4. Another principle that is equally well settled is that the election petitioner in order to succeed must plead all material particulars and prove them by clear and cogent evidence. The allegations of corrupt practices being in the nature of a quasi-criminal charge the same must be proved beyond any shadow of doubt. Where the election petitioner seeks to prove charge by purely partisan evidence consisting of his workers, agents, supporters and friends, the Court would have to approach the evidence with great care and caution, scrutiny and circumspection, and would, as a matter of prudence though not as a rule of law, require corroboration of such evidence from independent quarters, unless the Court is fully satisfied that the evidence is so credit-worthy and true, spotless and blemishless, cogent and consistent, that no corroboration to lend further assurance is necessary. It has to be borne in mind that the attempt of the agents or supporters of the defeated candidate is always to get the election set aside by means fair or foul and the evidence of such witnesses, therefore, must be regarded as highly interested and tainted evidence which should be acted upon only if the Court is satisfied that the evidence is true and does not suffer from any infirmity. .......
Para 6. Similarly in Rahim Khan v. Khurshid Ahmed, (1974) 2 SCC 660 = (AIR 1975 SC 290) Krishna Iyer, J., speaking for the Court most lucidly and aptly observed as follows:
"An election once held is not to be treated in a light-hearted manner and defeated candidates or disgruntled electors should not get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence, thereby introducing a serious element of uncertainty in the verdict already rendered by the electorate. An election is a politically sacred public act, not of one person or of one official, but of the collective will of the whole constituency. Courts naturally must respect this public expression secretly written and show extreme reluctance to set aside or declare void an election which has already been held unless clear and cogent testimony compelling the court to uphold the corrupt practice alleged against the returned candidate is adduced. Indeed election petitions where corrupt practices are imputed must be regarded as proceedings of a quasi-criminal nature wherein strict proof is necessary. The burden is therefore heavy on him who assails an election which has been concluded."
To the same effect is the decision of this Court in Abdul Hussain Mir v. Shamsul Huda, (1975) 4 SCC 533 = (AIR 1975 SC 1612), where this Court observed as follows:
"Even so, certain basic legal guidelines cannot be lost sight of while adjudging an election dispute. The verdict at the polls wears a protective mantle in a democratic polity. The Court will vacate such ballot count return only on proof beyond reasonable doubt of corrupt practices. Charges, such as have been imputed here, are viewed as quasi-criminal, carrying other penalties from losing a seat, and strong testimony is needed to subvert a Returning Officer's declaration. x x x x x x x When elections are challenged on grounds with a criminal taint, the benefit of doubt in testimonial matters belongs to the returned candidate. Similarly in Ghasi Ram v. Dal Singh, (1968) 3 SCR 102 = (AIR 1968 SC 1191), while emphasizing the standard of proof in an election case for a corrupt practice of bribery, Hidayatullah, J., as he then was, speaking for the Court observed thus:
"In Anjanaya Reddy v. Gangil Reddy, 21 ELR 247 it was held that the proof required to establish a corrupt practice must be almost of the character required to establish a criminal charge.
In our opinion the law requires that a corrupt practice involving bribery must be fully established. The evidence must show clearly that the promise or gift directly or indirectly was made to an elector to vote or refrain from voting at an election."
............
Para 26. Indeed if such serious and momentous allegations made against successful candidate are allowed to be proved by interested and partisan evidence as in the present case without any corroboration and where the evidence adduced is highly improbable and unworthy of credence, it would give an easy handle to any defeated candidate to unseat a duly elected candidate by collecting evidence of his friends and supporters which will undoubtedly destroy the very sanctity and purity of the electoral process. Thus in view of the cumulative effect of the compelling circumstances, the inherent improbabilities, the intrinsic infirmities and the unnatural human conduct disclosed by the evidence produced by the contesting respondent leads us to the inescapable conclusion that the contesting respondent has failed to prove the allegation of the offer of bribe which is the subject-matter of issue No.7 beyond any shadow of doubt."
RAMJI PRASAD SINGH v. RAM BILAS JHA AND OTHERS (AIR 1976 SUPREME COURT 2573) " Para 23. That leaves the second of the two contentions to be considered, namely, that respondent 1's election is vitiated because he attempted to bribe the voters Sri Narain Prasad and Ram Swarath Raut. ......... In the absence of any evidence of unimpeachable nature and particularly in the absence of any contemporaneous complaint in regard to the allegation of bribery, it would be unsafe to accept the bare word of the appellant and his witnesses on such a serious charge. The charge of bribery is quasi-criminal in nature and in a series of cases this Court has held that such a charge must be proved not by a mere preponderance of probabilities but beyond a reasonable doubt. That proof is lacking here."
SURINDER SINGH v. HARDIAL SINGH AND OTHERS (AIR 1985 SUPREME COURT 89) "Para 16. ...... By a catena of decisions of this Court it has by now been very well settled that allegations of corrupt practice are quasi-criminal charges and the proof that would be required in support of such allegations would be as in a criminal charge. .......
Para 21. We may now refer to two decisions of this Court rendered this year where the same question had arisen for consideration. In A. Younus Kunju v. R.S.Unni (1984) 3 SCC 346 : (AIR 1984 SC 960), one of us observed (at p.962 of AIR):
"There is total consensus of judicial opinion that a charge of corrupt practice under the Act has to be proved beyond reasonable doubt and the standard of proof is the same as in a criminal case ........."
Para 22. In Manmohan Kalia v. Yash (1984) 3 SCC 459 : (AIR 1984 SC 1161); a three Judge Bench reiterated (At p.1163 of AIR) "It is now well settled by several authorities of this Court that an allegation of corrupt practice must be proved as strictly as a criminal charge and the principle of preponderance of probabilities would not apply to corrupt practices envisaged by the Act because if this test is not applied a very serious prejudice would be caused to the elected candidate who may be disqualified for a period of six years from fighting any election, which will adversely affect the electoral process."
Para 23. It is thus clear beyond any doubt that for over 20 years the position has been uniformly accepted that charges of corrupt practice 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 criminal trials."
THAKUR SEN NEGI v. DEV RAJ NEGI AND ANOTHER (AIR 1994 SUPREME COURT 2526) "Para 3. ........... It must be remembered that in an election dispute the evidence is ordinarily of partisan witnesses and rarely of independent witnesses and, therefore, the Court must be slow in accepting oral evidence unless it is corroborated by reliable and dependable material. It must be remembered that the decision of the ballot must not be lightly interfered with at the behest of a defeated candidate unless the challenge is on substantial grounds supported by responsible and dependable evidence. The election result shows that both the contesting candidates were influential persons having a strong hold on large numbers of people of the constituency. Between the two the appellant was a far more influential person who had been in office since long and had held important positions. He had been in active politics for the last many years and had won many elections. Loss in this contest must have given him a rude shock. How an election Court should evaluate the evidence in such a situation has been stated time and again by this Court. It would be sufficient if we extract a passage from this Court's decision in Rahim Khan v. Khurshid Ahmed (1974) 2 SCC 660 at pp.671-672 : (AIR 1975 SC 290 at pp. 298-299) (Para 21) which reads thus:
"We must emphasize the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents. It must be remembered that corrupt practices may perhaps be proved by hiring half-a-dozen witnesses apparently respectable and dis-interested, to speak to short and simple episodes such as that a small village meeting took place where the candidate accused his rival of personal vices. There is no X-ray whereby the dishonesty of the story can be established and, if the Court were gullible enough to gulp such oral versions and invalidate elections, a new menace to our electoral system would have been invented through the judicial apparatus. We regard it as extremely unsafe, in the present climate of kilkenny-cat election competitions and partisan witnesses wearing robes of veracity, to upturn a hard won electoral victory merely because lip service to a corrupt practice has been rendered by some sanctimonious witnesses. The Court must look for serious assurance, unlying circumstances or unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the election result, but extinguish many a man's public life."
4. Since allegations in regard to corrupt practice are quasi-criminal in nature and entail the penalty of disqualification, the Court would be justified in looking for strong and dependable evidence and its refusal to base its decision on oral evidence alone would not be unjustified if the said evidence is not supported by strong, reliable and trustworthy corroboration."
R.PUTHUNAINAR ALHITHAN, ETC., v. P.H.PANDIAN AND OTHERS (AIR 1996 SUPREME COURT 1599) "Para 7. ......... Therefore, we hold that to draw an inference that a fact in dispute has been established, there must exist, on record, some direct material facts or circumstances from which such an inference could be drawn. The standard of proof required cannot be put in a strait-jacket formula. No mathematical formula can be laid on the degree of proof. The probative value could be gauged from the facts and circumstances in a given case.
Para 8. An inference from the proved facts must be so probable that if the Court believes, from the proved facts, that the facts do exist, it must be held that the fact has been proved. The inference of proof of that fact could be drawn from the given objective facts, direct or circumstantial.
Para 9. ........ It is true that the charge of corrupt practice under Section 123 is treated akin to a charge in a criminal trial. The trial of an election petition is like a trial in the criminal case and the burden to prove corrupt practice is on the election petitioner. The doctrine of preponderance of probabilities in a civil action is not extended for proof of corrupt practice. It is not, like a criminal trial, that the accused can always keep mum. In a criminal trial accused need not lead any defence evidence. It is an optional one. The burden of proof of charge in a criminal case is always on the prosecution. The guilt of the accused beyond reasonable doubt should be established by the prosecution. But in an election petition when the election petitioner had adduced evidence to prove that the returned candidate had committed corrupt practice, the burden shifts on the returned candidate to rebut the evidence. After its consideration, it is for the Court to consider whether the election petitioner had proved the corrupt practice as alleged against the returned candidate."
JEET MOHINDER SINGH v. HARMINDER SINGH JASSI (1999) 9 Supreme Court Cases 386) " Para 40. ........ we would like to state a few well-settled legal principles in the field of election jurisprudence and relevant to our purpose. They are:
(i) The success of a candidate who has won at an election should not be lightly interfered with. Any petition seeking such interference must strictly conform to the requirements of the law. Though the purity of the election process has to be safeguarded and the court shall be vigilant to see that people do not get elected by flagrant breaches of law or by committing corrupt practices, the setting aside of an election involves serious consequences not only for the returned candidate and the constituency, but also for the public at large inasmuch as re-election involves an enormous load on the public funds and administration. (See Jagan Nath v. Jaswant Singh, Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe).
(ii) Charge of corrupt practice is quasi-criminal in character. If substantiated it leads not only to the setting aside of the election of the successful candidate, but also of his being disqualified to contest an election for a certain period. It may entail extinction of a person's public life and political career. A trial of an election petition though within the realm of civil law is akin to trial on a criminal charge. Two consequences follow. Firstly, the allegations relating to commission of a corrupt practice should be sufficiently clear and stated precisely so as to afford the person charged a full opportunity of meeting the same. Secondly, the charges when put to issue should be proved by clear, cogent and credible evidence. To prove charge of corrupt practice a mere preponderance of probabilities would not be enough. There would be a presumption of innocence available to the person charged. The charge shall have to be proved to the hilt, the standard of proof being the same as in a criminal trial. (See Quamarul Islam v. S.K.Kanta, F.A. Sapa v. Singora, Manohar Joshi v. Damodar Tatyaba and Ram Singh v. Col. Ram Singh).
R.P.MOIDUTTY v. P.T.KUNJU MOHAMMAD AND ANOTHER (2000) 1 Supreme Court Cases 481) "Para 14. It is basic to the law of elections and election petitions that in a democracy, the mandate of the people as expressed at the hustings must prevail and be respected by the courts and that is why the election of a successful candidate is not to be set aside lightly. A heavy onus lies on the election petitioner seeking setting aside of the election of a successful candidate to make out a clear case for such relief both in the pleadings and at the trial. The mandate of the people is one as has been truly, freely and purely expressed. The electoral process in a democracy such as ours is too sacrosanct to be permitted to be polluted by corrupt practices. If the court arrives at a finding of commission of corrupt practice by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent then the election of the returned candidate shall be declared to be void. The underlying principle is that corrupt practice having been committed, the result of the election does not echo the true voice of the people. As the consequences flowing from the proof of corrupt practice at the election are serious, the onus of establishing commission of corrupt practice lies heavily on the person who alleges the same. The onus of proof is not discharged merely on preponderance of probabilities; the standard of proof required is akin to that of proving a criminal or a quasi-criminal charge. Clear-cut evidence, wholly credible and reliable, is needed to prove beyond doubt the charge of corrupt practice."
HARSH KUMAR v. BHAGWAN SAHAI RAWAT AND OTHERS (2003 (6) Supreme 6) "Para 8. ....... The burden of proof of corrupt practice is very heavy on the appellant. The will of the people cannot be lightly set aside, though, of course, it is necessary to protect the purity of the election. In order to succeed on the ground of corrupt practice, the appellant had to lead cogent, reliable and satisfactory evidence. The standard of proof required is not of preponderance of probability but proof beyond doubt."
BORGARAM DEURI v. PREMODHAR BORA & ANR. (2004 (1) Supreme 100) " Para 10. The allegations of corrupt practices are viewed seriously. They are considered to be quasi-criminal in nature. The standard of proof required for proving corrupt practice for all intent and purport is equated with the standard expected in a criminal trial. However, the difference between an election petition and a criminal trial is, whereas an accused has the liberty to keep silence, during the trial of an election petition the returned candidate has to place before the Court his version and to satisfy the Court that he had not committed the corrupt practice as alleged in the petition. The burden of the election petitioner, however, can be said to have been discharged only if and when he leads cogent and reliable evidence to prove the charges levelled against the returned candidate. For the said purpose, the charges must be proved beyond reasonable doubt and not merely by preponderance of probabilities as in civil action. (See Gajanan Krishnaji Bapat and Another vs. Dattaji Raghobaji Meghe and Others, AIR 1995 SC 2284, Surinder Singh vs. Hardial Singh and Ors. 1985 (1) SCR 1059, R.P.Moidutty vs. P.T.Kunju Mohammad and Another, (2001) 1 SCC 481 and Mercykutty Amma vs. Kadavoor Sivadasan and another, 2003 AIR SCW 6306)."
33. With so much statement of law, we proceed to deal with the issue relating to corrupt practice. The ground of challenge is that the returned candidate/first respondent had committed corrupt practice of bribery in order to secure his election and the election petitioner has averred instances of distribution of golden nose screws by the first respondent and his supporters to the voters in the villages and also the distribution of cell-phones and T.V. Set by them to the voters in the Constituency as bribe requesting the voters to vote for the first respondent and the alleged instances of bribery are taken up for consideration in seriatim.
34. The relevant averments with regard to the incident alleged to have happened in Nallazhandur Revenue Village are found in paragraph Nos.5 and 7 of the election petition and they are extracted below:
Averments in Paragraph No. 5However the 1st Respondent on 07.05.2006 after the completion of the election campaign at 7.00 pm came along with his supporters to Nallazhandur Revenue Village in Tirunallar Assembly Constituency and offered Gold Nose Screw to the voters by way of bribe and requested the voters to vote for him in the election to be held on 08.05.2006.
Averments in Paragraph No.7 The petitioner further states that after hearing the incident of the distribution of golden nose screw by 1st Respondent and his supporters to the voters, called upon one Vijayavarman S/o Murugesan to gather particulars as to the same and who in turn on 09.05.2006 videographed the persons who received golden nose screw from 1st Respondent and his supporters. The petitioner states that on such videograph came to know that one Vembu W/o.Ganesan of Nallazhanthur Village had received golden nose screw from one Elango the supporter of 1st Respondent."
35. According to the first respondent, the averment in paragraph No.5 is vague, general and does not constitute a material fact and further the source of information, date, time, name and address of the alleged informant were not furnished and the averments do not constitute a cause of action.
36. Mrs.Vembu, a resident of Nallazhandur Village, was examined as P.W.9 and she has stated that on the previous day of the election day at about 8 pm, Elango gave her a gold nose screw and asked her to cast her vote in 'Top' symbol.
37. The contention of the learned counsel for the election petitioner is that it is averred in the election petition that the petitioner, through DVD, came to know that Vembu received gold nose screw from Elango and that Vembu has been examined as P.W.9 and she has also testified about the same and in Ex.P14 final report, Elango has been shown as one of the accused having committed the electoral offences mentioned therein and the election petitioner has shown that Elango has committed corrupt practice and it has to be inferred that he committed the same at the instance of the first respondent Siva.
38. Per contra, the learned Senior Counsel appearing for the first respondent submitted that the name of P.W.9-Vembu is not mentioned in the averment in paragraph No.5 and she did not mention the name of the first respondent in her testimony and also she did not allege that Elango acted based on the consent of the first respondent and the referral of name of Elango in her testimony is irrelevant since it is nobody's case that Elango gave the gift acting as the agent of the first respondent or with his consent.
39. It is true that P.W.9-Vembu has not stated that the first respondent Siva distributed gold nose screws. Though she has mentioned that Elango gave her gold nose screw in her testimony, she has not stated that Elango either acted as agent of the first respondent Siva or gave the gift with the consent of the first respondent. The first respondent in the counter as well as in his oral testimony has denied the same. It is relevant to point out that P.W.9-Vembu in her cross-examination has stated that in her statement given to the Police, she has told that on 7.5.2006 at about 9 or 10 pm, two persons came to her house and gave gold nose screw asking her to cast her vote in 'Top' symbol. In short, the testimony of P.W.9-Vembu does not inspire confidence and the petitioner has failed to prove the incident.
40. The relevant averments with regard to the incidents alleged to have happened in Pettai Village are found in paragraph Nos. 5 and 7 of the election petition and they are as follows:
Averments in Paragraph No.5 The Petitioner states that one Ulaganathan S/o.Arumugham of Pettai being a voter in Tirunallar Constituency informed the Petitioner when he was in his house at about 7.10 pm on 07.05.2006 about the distribution of golden nose screw to the voters in Pettai by the 1st Respondent and his supporters.
Averments in Paragraph No.7 The Petitioner states that Ulaganathan S/o.Arumugam of Pettai village informed the Petitioner that he saw the 1st Respondent and his supporters Mr.Nagarajan alias Narayanasamy S/o.Ramasamy and one Rajasekhar S/o.Murugaiyan both from Kaliamman Koil Street of Pettai distributed Golden nose screws to the voters in Pettai village with a request to vote for 1st respondent on 08.05.2006.
41. According to the first respondent, time of the alleged distribution of gold nose screws, names of voters and the names of the alleged supporters of the first respondent are not mentioned in the averments in paragraph 5 and it is also not mentioned therein that Ulaganathan personally saw the incident and hence the averment based on the alleged information of Ulaganathan is vague and does not constitute material facts or full particulars and there is non-compliance of the relevant provisions of the Representation of the People Act. It is further stated by the first respondent that in the averments in paragraph 7, the election petitioner has not stated the date of the alleged distribution of the gold nose screws, time and the name of the alleged voters and there is no clear pleading of material facts and full particulars and the vague averments do not give rise to any cause of action.
42. The election petitioner, as P.W.1, in his chief-examination, has stated that Ulaganathan of Pettai Village met him and told him that the first respondent and his supporters distributed the gold nose screws to the voters and requested them to vote for first respondent. In the cross-examination, the election petitioner has stated that Ulaganathan gave information to him over phone and he did not remember the exact time of the receipt of the information and apart from Ulaganathan, one Balasubramanian also gave information over phone in this regard.
43. Ulaganathan was examined as P.W.2 and he has stated that at the time of election campaign on 7.5.2006, the first respondent Siva, Narayanasamy and Rajasekhar gave gold nose screws to the voters and requested them to vote for 'Top' symbol and he contacted the election petitioner over phone and informed him about the same and he personally saw the first respondent distributing the gold nose screws.
44. The learned counsel for the election petitioner submitted that on a conjoint reading of the averments in paragraph Nos.5 and 7 of the election petition and the testimonies of P.Ws.1 and 2 would show that the first respondent and his supporters distributed gold nose screws to the voters.
45. Per contra, the learned Senior Counsel appearing for the first respondent submitted that in the averments in para 5, there is no pleading that Ulaganathan personally saw the distribution of gold nose screws to the voters and in his testimony as P.W.2, Ulaganathan only mentioned the names of Narayanasamy and Rajasekhar and did not state that they are the supporters of the first respondent and further in his testimony, he has not mentioned the father's name, address and identity of Narayanasamy and Rajasekhar, though the pleading in paragraph 7 is said to be based on the information given by Ulaganathan and P.W.2-Ulaganathan has admitted that he is a sympathizer of Indian National Congress Party and hence he is an interested party witness and he does not own any patta land and has built house in Temple land and he has not given any contemporaneous complaint to the Authorities and his evidence is interested and remains uncorroborated and hence cannot be relied upon.
46. The learned Senior Counsel appearing for the first respondent further submitted that the election petitioner in paragraph 6 has stated that after getting advice and gathering materials on 8.5.2006 at about 6.30 pm, he gave the complaints in Exs.P2 and P5 and the election petitioner, who has taken advice, would not have kept quiet without recording the alleged information of Ulaganathan in writing, but he never referred to the name of Ulaganathan in Exs.P2 and P5 complaints and if really there is any such information given by Ulaganathan as alleged in the petition, the election petitioner would not have omitted to mention the name of Ulaganathan in his complaints and the said Ulaganathan has been planted as a witness to give false evidence and his testimony has no credence and liable to be rejected.
47. It is true that the election petitioner in his complaints in Exs.P2 and P5, has not referred to the name of Ulaganathan and the information allegedly supplied by him. In his testimony as P.W.1, the election petitioner in his chief-examination has stated that P.W.2-Ulaganathan met him and told him that the first respondent and his supporters distributed gold nose screws to the voters in Pettai village, whereas in his cross-examination, he has stated that Ulaganathan gave information to him over phone only. No date and time as to when gold nose screws were given, is mentioned by the election petitioner in the petition. Though P.W.2-Ulaganathan claims to have witnessed the distribution of gold nose screws by the first respondent, he did not lodge any complaint as admitted by him in his cross-examination and there is no contemporaneous complaint. The first respondent has denied the averment in the counter filed by him as well as in his oral testimony. Concededly, P.W.2-Ulaganathan is a sympathizer of Indian National Congress Party and he worked for the election petitioner in the election campaign and in the absence of any contemporaneous document to substantiate his testimony, which remains uncorroborated, it is unsafe to rely upon his evidence. The election petitioner has failed to prove this allegation of bribery.
48. The relevant averments with regard to the incidents alleged to have happened in Sethur village are found in paragraph Nos.5 and 7 of the election petition and they are taken up for consideration in seriatim.
Averments in paragraph No.5 The petitioner states that even on 8.5.2006 in the early morning the 1st respondent and his supporters distributed Gold Nose Screws to the voters of Tirunallar Assembly Constituency and gathered votes. The petitioner states that on 8.5.2006 at about 5.30 A.M when, one Ponramasamy, S/o.Ponusamy a supporter of the 1st respondent while distributing gold nose screw to the voters in Sethur of Tirunallar Constituency, it was objected to by one Pandian S/o.Periyasamy of Sethur, supporter of the petitioner trouble started and Police Authorities on their own registered a case under Section 160 of IPC under FIR No.89/06. The Petitioner was immediately informed by one Anbazhagan S/o.Ganapathy of Sethur about the distribution of gold nose screw by 1st respondent and his supporters on 08.05.2006 in Sethur to the voters with a request to vote for 1st Respondent.
49. The learned counsel for the election petitioner submitted that Pandian and Anbazhagan have been examined on their side as P.Ws.3 and 4 respectively and both of them have testified that they have seen the distribution of gold nose screws by the first respondent to the voters in the morning on 8.5.2006 and in the case registered in Ex.R1-FIR.No.89 of 2006, Pandian and Anbazhagan have been shown as 'A' party and Ponramasamy and another Pandian have been shown as 'B' party and it is a contemporaneous document corroborating the oral testimonies of P.W.3-Pandian and P.W.4-Anbazhagan and hence the averment stands proved. Per contra, the learned Senior Counsel appearing for the first respondent submitted that the averments in paragraph No.5 do not constitute material facts and full particulars since nowhere in the pleadings, there is any averment with regard to consent or agency and the petitioner has not pleaded that Pandian has personally seen the first respondent distributing the gold nose screws and the names of the alleged voters who received the gold nose screw have not been mentioned and no electoral offence is mentioned in the case registered in FIR No.89/2006 and the averments are vague and P.W.3-Pandian and P.W.4-Anbazhagan are interested witnesses and there are material discrepancies in their testimonies and in the absence of any contemporaneous corroboration, their testimonies are liable to be rejected as false.
50. Reading the averment as a whole, the allegation is that Ponramasamy, a supporter of the first respondent, distributed gold nose screws to the voters of Sethur village and it was seen by Pandian, a supporter of the petitioner and it cannot be termed as a corrupt practice of the returned candidate. The first respondent has denied that Ponramasamy is his supporter and the Election petitioner has not stated that Ponramasamy acted as agent of the first respondent or with his consent. It is not pleaded therein that at that time another Pandian, Elango, Muthuvel and others accompanied the first respondent along with Ponramasamy. Pandian, in his testimony as P.W.3, has stated that he personally saw the distribution of gold nose screws to the voters by the first respondent in the morning on 8.5.2006 and at that time, Ponramasamy, another Pandian, Elango, Muthuvel and some others had accompanied the first respondent in the distribution of gold nose screws to the voters and Ponramasamy and another Pandian caught hold of him and beat him resulting in injury and thereafter, Police arrived at the scene and he informed Anbazhagan about the distribution of gold nose screws by the first respondent and others and the attack made on him. The above testimony that P.W.3-Pandian personally saw the distribution of gold nose screws by the first respondent to the voters in the morning on 8.5.2006 and at that time, he was accompanied by Ponramasamy and others, is not stated in the averments in the election petition and P.W.3 Pandian has tried to improve the case by stating a new version not pleaded and he has also tried to say what is stated in paragraph No.7 of the election petition. Though P.W.3-Pandian has stated that on seeing the distribution of gold nose screws by the first respondent and others, he made a complaint over phone to the Police, no material is placed before the Court to substantiate the same. A case in Ex.R1 FIR No.89 of 2006 has been registered not on the complaint of P.W.3 Pandian, but on the complaint of Assistant Sub-Inspector of Police for the alleged offence of affray between two groups and even in that complaint, there is no mention of alleged distribution of gold nose screws by the first respondent and his supporters.
51. P.W.3-Pandian has admitted in the cross-examination that in Ex.R1 complaint, it is not mentioned that the quarrel arose because of the distribution of gold nose screws and though he knew about this, he did not give any complaint in this regard and he admitted the case and paid the fine and till today, he has not given any complaint to any of the Authorities about the distribution of gold nose screws to the voters by the first respondent and his supporters. The case registered in Ex.R1 FIR.No.89 of 2006 does not reflect the version spoken to by P.W.3-Pandian and there is no contemporaneous document produced to substantiate the testimony of this witness.
52. The first respondent in his counter affidavit has denied this averment made in the election petition and has suggested to P.W.3-Pandian in the cross-examination that his testimony is false. Besides, the first respondent, in his testimony as R.W.1 has denied the averment and the testimony of P.W.3-Pandian and has stated that Ponramasamy is not his supporter.
53. The learned Senior Counsel appearing for the first respondent submitted that P.W.3 Pandian has no means and he is dependent of the Election petitioner and being interested witness, he tried to implicate the first respondent in his testimony by stating a new case that the first respondent Siva himself distributed gold nose screws, which is not covered by pleadings and not spoken to by the Election petitioner as P.W.1 and his version is not corroborated by any independent, unimpeachable evidence or immediate contemporaneous complaint in writing to the Police or Election Authorities and it is highly unsafe to rely on the testimony of this witness, which does not stand to test or credibility. This submission is well-founded.
54. The Election petitioner has examined Anbazhagan as P.W.4 and according to him, on the date of election, namely, 8.5.2006, at about 6.30 am, when he was proceeding from his house to the polling booth, he met P.W.3 Pandian with injuries on his body and when enquired, P.W.3 Pandian told him that the first respondent Siva, Ponramasamy and the supporters were distributing gold nose screws to the voters and he objected for the same and there was a scuffle and he got injured in it. P.W.4 Anbazhagan has further stated that after meeting P.W.3 Pandian, he proceeded to polling booth and on the way, the first respondent Siva was standing on the road side and he asked him as to why he was distributing gold nose screws to the voters and the first respondent Siva said that they can also distribute the same, if they want and by saying so, the first respondent left the place in scooter and he telephoned the Election petitioner and narrated the above happenings.
55. There is no averment in the election petition stating that Anbazhagan met the first respondent Siva, who was standing on the road side and asked him as to why he distributed gold nose screws to the voters and the first respondent replied that they can also distribute the same if they want and left the place in scooter, but in evidence, P.W.4 Anbazhagan has stated so. The learned Senior Counsel appearing for the first respondent submitted that the first respondent was taken by surprise by this evidence since there was no information given about it in the petition and further contended that no particular voter was mentioned by name and date, time and place is also not stated and the first respondent Siva alone is mentioned and not his supporters and it is not difficult to procure such evidence. It is true that the above oral testimony is not supported by pleadings and cannot be appreciated and it is eschewed.
56. As already seen, the election petitioner has stated in the petition that Anbazhagan informed him about the distribution of gold nose screws by the first respondent and his supporters on 8.5.2006 in Sethur to the voters and no name of the supporter or voter is mentioned therein. In the chief-examination, P.W.4-Anbazhagan did not say that he personally saw the first respondent Siva distributing gold nose screws to the voters, but in the cross-examination, he has stated so. The learned Senior Counsel appearing for the first respondent submitted that the Election petitioner in his pleadings as well as in his oral evidence did not say that P.W.4-Anbazhagan personally saw the first respondent Siva distributing gold nose screws to the voters and P.W.4 Anbazhagan himself did not say so in his chief-examination and only in cross-examination, he has improved his version and if it is true, he would have immediately given a Police complaint about the same and he has not done so and his testimony has to be tested carefully, since he is an interested witness. This submission of the learned Senior Counsel cannot be brushed aside.
57. According to P.W.4-Anbazhagan, P.W.3-Pandian told him at 6.30 am on 8.5.2006 that first respondent Siva, Ponramasamy and the supporters were distributing gold nose screws to the voters and he objected the same and it led to a scuffle, in which, he was injured and he informed the same to the Election petitioner over telephone. The learned Senior Counsel appearing for the first respondent submitted that no complaint about the occurrence was lodged either by P.W.3-Pandian or P.W.4-Anbazhagan on that day though the injured P.W.3 Pandian was treated in the hospital and the Election petitioner also did not mention about the alleged incident in his Ex.P2 complaint given on 8.5.2006 as well as in his subsequent Ex.P5 complaint dated 18.5.2006, though the Election petitioner has stated in the petition that he lodged the complaint after getting advice and on gathering materials.
58. It is true that in Ex.P2 complaint dated 8.5.2006, the Election petitioner has not mentioned about the information given by P.W.4 Anbazhagan and what is alleged therein is the distribution of gold nose screws by the first respondent Siva to women voters in Nallazhandur village. Ex.P5 complaint came to be lodged by the Election petitioner eleven days after the election, after getting advice and one can expect names to be mentioned therein, but there also the Election petitioner has not mentioned the alleged information given by Anbazhagan with regard to the occurrence, in which, P.W.3-Pandian came to be injured. It is not the case of the Election petitioner that P.W.4-Anbazhagan gave an independent complaint to the Police about the alleged occurrence and it was refused to be taken on file. On the other hand, on the complaint given by the Assistant Sub-Inspector of Police, the case in Crime No.89 of 2006 came to be registered for the alleged offence under Section 160 IPC, in which, P.W.3-Pandian and P.W.4-Anbazhagan were shown as 'A' party and one Ponramasamy and another Pandian were shown as 'B' party and it is alleged therein that both the groups committed affray by openly fighting in public around 5.30 am and thereby disturbed the public peace due to wordy quarrel and Pandian of 'A' party was said to have been injured and he was sent to hospital for treatment. It is relevant to note that in the above complaint, there is no allegation of dispute over distribution of gold nose screws to the voters. The injured P.W.3-Pandian also did not give any independent complaint alleging distribution of gold nose screws by the first respondent and his supporters. The learned Senior Counsel appearing for the first respondent submitted that this witness P.W.4-Anbazhagan has tried to improve his version out of over interest and the first respondent suggested in the cross-examination that the testimony of this witness is false and in addition, the first respondent gone into box and examined himself as R.W.1 and in his testimony, he has specifically stated that Ponramasamy is not his supporter and he does not know such person and he has seen P.W.4 Anbazhagan for the first time in the trial of the case in the Court and he cannot prove the negative and the Election petitioner has to prove the positive.
59. P.W.4-Anbazhagan is a correspondent of High School and still he did not give any complaint about the occurrence to the Police or Election Authorities and he claimed to have informed the election petitioner, P.W.3-Pandian and his friends about himself witnessing the first respondent distributing gold nose screws to the voters, but P.W.3-Pandian, in his testimony, does not say so and as already seen, P.W.1, election petitioner also did not state either in the pleadings or in evidence that P.W.4-Anbazhagan personally saw the first respondent Siva distributing gold nose screws to the voters. In short, the testimony of P.W.4 Anbazhagan appears to be an interested one and in the absence of any corroboration, no credence can be given to his testimony. As admitted by him, P.W.4-Anbazhagan is a Member of Congress Party and he was appointed as one of the Members in the Advisory Committee of the Slum Clearance Board of Pondicherry Government and he is an interested witness, belonging to a political party and contrary to pleadings, he has tried to improve the case and there is no contemporaneous corroboration for his testimony as already seen.
60. In short, the testimonies of P.W.3-Pandian and P.W.4-Anbazhagan are not trustworthy and cannot be accepted and the petitioner has not proved this averment.
61. The relevant averments in paragraph 7 are extracted below:
Averments in Paragraph No.7 "The petitioner further states that Mohan S/o.Kathaperumal of Kamatchi Nagar, Sethur Village, Rajasekaran S/o.Jayaraman of Kamatchi Nagar of Sethur and one Elangovan S/o.Ganapathy of North Street, Sethur who saw the 1st Respondent and his supporters namely one Pon Ramasamy S/o.Ponnusamy of Mathurnadappu, Sethur, one Elango S/o.Venkatachalam, Kamakshi Nagar, Sethur and one Muthuvel S/o.Panchavarnam of Kamakshi Nagar of Sethur distributing golden nose screw on 08.05.2006 in Sethur Village to the various voters with a request to the voters to vote for 1st Respondent in the election on 08.05.2006. The petitioner further states that after hearing the incident of the distribution of golden nose screw by 1st Respondent and his supporters to the voters, called upon one Vijayavarman S/o.Murugesan to gather particulars as to the same and who in turn on 09.05.2006 videographed the persons who received golden nose screw from 1st Respondent and his supporters. ...... ...... Similarly the petitioner came to know that one Thamilselvi D/o.Perumal, Manimegalai W/o.Kaliyaperumal and one Jaylakshmi W/o.Govindasamy of Sethur Village have received golden nose screw from 1st Respondent and his supporters to vote for 1st Respondent in the election on 08.05.2006."
62. The allegation said to have been gathered from Mohan, Rajasekaran and Elangovan is not supported by oral or documentary evidence. None of the abovesaid persons have been examined in the case. Further, there is no pleading that Ponramasamy, Elango, Muthuvel acted with consent or as agent of the first respondent. The election petitioner himself, in his testimony as P.W.1, has not spoken about the alleged incident mentioned in the averment and there is no evidence let in, in support of the averment.
63. The learned counsel for the election petitioner submitted that Vijayavarman, who interviewed the voters, has been examined as P.W.6 and the voters, namely, Thamilselvi and Jayalakshmi have been examined as P.Ws.7 and 8 respectively and their testimonies, coupled with Ex.P13-DVD clippings throw light and fortifies the case of the election petitioner. Per contra, the learned Senior Counsel appearing for the first respondent submitted that Ex.P13-DVD came to be recorded long after the event and not taken at the time of alleged incidents and P.W.6-Vijayavarman is a relative of the election petitioner and he has no personal knowledge and P.W.7-Thamilselvi and P.W.8-Jayalakshmi, in their testimonies, have not mentioned any name of the person, date, time and the place of the distribution of gold nose screw and there is no pleading or evidence with regard to consent or agency and the name of the alleged supporters of the first respondent has not been mentioned in the petition and as such, the averment does not constitute 'material facts' or 'full particulars' within the meaning of relevant provisions of the Representation of the People Act and in the election petition, the village name of PW.7-Thamilselvi and PW.8-Jayalakshmi was mentioned as Sethur and in the evidence, it was stated as Sellur village and Manimegalai, who is one of the allleged recipient of the gold nose screw was not examined as a witness in the case.
64. The election petitioner has examined Vijayavarman as P.W.6 and according to P.W.6, the Election petitioner told him that gold nose screws have been distributed by the first respondent on 8.5.2006 to the voters and he directed him to interview some of the voters and take videography of the same and he agreed and accordingly interviewed Vembu, Thamilselvi, Jayalakshmi and two others using his DV Handycam and recorded the same directly on DVD with audio effect and all the above voters in his oral interview told that gold nose screws were distributed for casting votes in the 'Top' symbol and Ex.P13 is the DVD containing the interview. P.W.6 also played the said DVD in the Court through his Laptop.
65. The learned Senior Counsel appearing for the first respondent submitted that P.W.6 Vijayavarman, in the cross-examination, has stated that he is not a professional videographer and the Election petitioner is his maternal uncle and on the direction of the Election petitioner, he interviewed five persons in their residences and videographed the same and in the interview, none of the persons have told that the first respondent Mr.P.R.Siva himself handed over gold nose screws to them and except recording the interview through Handycam, he does not have any personal knowledge about the contents of the interview and he was not examined by the Investigation Officer in the case registered in Ex.P9 FIR. The learned Senior Counsel for the first respondent further submitted that at the time of playing of DVD in the Court, the voices of persons other than the person who interviewed, namely, P.W.6-Vijayavarman, are heard and according to P.W.6-Vijayavarman, he cannot identify the voices prompting and the persons and hence it is highly unsafe to give any credence to Ex.P13 DVD clippings, which is created for the purpose of the case. The above submission cannot be easily brushed aside.
66. P.W.6-Vijayavarman is the sister's son of the Election petitioner and on his direction, he had interviewed the voters by taking videography and he has no personal knowledge. The fact remains that the videography was not taken at the time of alleged incidents and it was subsequently taken by a person interested in the election petition.
67. P.W.7-Thamilselvi is one of the persons interviewed by P.W.6-Vijayavarman and according to her, she is a voter in Tirunallar Assembly Constituency and during the election campaigning, the party workers of first respondent P.R.Siva gave her gold nose screw and asked her to cast her vote in the 'Top' symbol and P.W.6-Vijayavarman interviewed her and took video of the same. P.W.7-Thamilselvi did not say that the first respondent Siva gave gold nose screw to her and has only stated that his party workers gave it and she has not mentioned the date and time of the incident and the names of the workers and also she did not say that they acted as agents of the first respondent or with his consent and hence it would not come under the definition of 'corrupt practice'. In the interview recorded in Ex.P13 DVD, after the election, P.W.7 Thamilselvi has only stated that somebody gave gold nose screw asking her to vote in the 'Top' symbol and hence her present testimony that the party workers of first respondent Siva gave her gold nose screw, appears to be an afterthought.
68. P.W.8-Jayalakshmi has stated that the first respondent Siva's men gave her gold nose screw and asked her to vote in 'Top' symbol during the campaign period and in her cross-examination, she has testified that in her statement given before the Police, she has told that some persons whose names and residences are not known to her gave gold nose screw and asked her to vote in 'Top' symbol. It is true that this witness also did not mention the date and time of the incident and the name of the person and also she did not say that they acted as agents of the first respondent or with his consent and hence it would not come under the definition of "corrupt practice". The learned Senior Counsel for first respondent submitted that P.W.8 Jayalakshmi is the wife of N.S.Perumal, residing at No.7, Keezhatheru, Sellur Village, Tirunallar and she is not mentioned in the averments in the election petition and what is referred to in the averments of the election petition is one Jayalakshmi, wife of Govindasamy of Sethur Village as having received the gold nose screw and that person has not been examined in the case. It is true that P.W.8-Jayalakshmi was not referred to in the election petition and Jaylakshmi, referred to therein, has not been examined. In short, the testimonies of P.W.7-Thamilselvi and P.W.8-Jayalakshmi are not trustworthy and cannot be relied upon and the averment is not substantiated by the election petitioner.
69. The relevant averments with regard to the incidents alleged to have happened in Muppaithankudi are found in paragraph No. 7 of the election petition and they are as follows:
" The petitioner states that one Murugan S/o.Selvaraj of Muppaithankudi village informed the petitioner and others that he saw 1st Respondent and his supporters one Mariappan S/o.Pakkirisamy, one Raja S/o.Muthukumarasamy, one Thilagavathi W/o.Kailasam distributed golden nose screw at 11.30 pm on 07.05.2006 at Muppaithankudi Village of Tirunallar Constituency to the voters with a request to the voters to vote for 1st Respondent on 08.05.2006. ......... The petitioner further states that in Muppaithankudi one Murugan S/o.Selvaraj of Muppaithankudi informed the petitioner that he saw one Mariappan S/o.Pakkirisamy, Raj S/o.Muthukumarasamy and one Thilagavathi W/o.Kailasam distributing golden nose screw to the voters of Muppaithankudi and canvassing to vote for 1st Respondent in the election on 08.05.2006. The petitioner further states that he came to know from the Videograph taken by Vijayavarman that one Annakili W/o.Selvarajan of Muppaithankudi had received golden nose screw from the 1st Respondent and his supporters to vote for 1st Respondent in the election on 08.05.2006. In the process the 1st Respondent and his supporters have distributed 4000 gold nose screws to the voters of that Tirunallar Assembly Constituency."
70. The learned counsel for the election petitioner submitted that Murugan has been examined as P.W.5 and he has testified about witnessing the handing over of gold nose screw by Thilagavathi to Annakili in the early morning on the date of poll.
71. P.W.5-Murugan is a resident of Muppaithankudi village and he has testified that a day prior to election i.e., on 7.5.2006, at about 11 pm, when he was proceeding to his house in Muppaithankudi village, he saw first respondent Siva and four of his supporters having gold nose screws in a bag standing in the house of Rajagopal and the first respondent handing over that bag in the hands of Raja. The learned Senior Counsel appearing for the first respondent submitted that there is no such pleading in the election petition and the election petitioner has also not spoken about it in his testimony as P.W.1 and hence the above oral testimony of P.W.5-Murugan has to be eschewed. This submission is well-founded. In the absence of the pleading in this regard, the above oral testimony of P.W.5-Murugan, cannot be looked upon. P.W.5-Murugan has further stated that on the date of poll, namely, on 8.5.2006, at about 5.30 am in the morning, he saw Thilagavathi handing over gold nose screw to Annakili. The first respondent has denied the above averment and in his testimony as R.W.1, he has stated that he has no supporters by name Mariappan, Raja and Thilagavathi. The learned Senior Counsel for the first respondent submitted that it is not pleaded in the election petition that Thilagavathi handed over gold nose screw to Annakili and P.W.5-Murugan also did not state that Thilagavathi acted as agent of the first respondent or gave the gold nose screw with his consent and hence it would not come under the definition of "corrupt practice". In the averments in paragraph 7, it is alleged that one Murugan of Muppaithankudi informed the election petitioner that he saw one Thilagavathi distributing gold nose screws to the voters of Muppaithankudi and canvassing votes for the first respondent and in the next sentence, the election petitioner has averred that he came to know from DVD that one Annakili of Muppaithankudi had received gold nose screw from the first respondent and his supporters to vote for first respondent. Hence, it is not pleaded that Murugan saw Thilagavathi distributing gold nose screw to Annakili. Therefore, the testimony of P.W.5-Murugan that Thilagavathi handed over gold nose screw to Annakili, is a new version spoken to by him.
72. It is also relevant to note that P.W.5-Murugan in the chief-examination itself has stated that he did not see the first respondent Siva distributing gold nose screws directly to the voters. P.W.5-Murugan is a 27 year old young man, who had undergone training as Tourism Guide and he has no permanent employment and he has admitted that he has encroached the public property in Muppaithankudi village. He is a obliging witness to the Election petitioner and his testimony is tainted and cannot be relied upon. Annakili also was not examined and the averments are not supported by evidence.
73. The other incidents mentioned in paragraph 9 of the election petition are extracted below:
"The petitioner states that through his supporters and his election agent one Mr.Bala Dhandayutham able to gather that also the 1st Respondent and his supporters have distributed cell phone to one Abdul Jabbar S/o.Abdul Rahman and Rahamathulla S/o.Mohammed Abdullaha of Ambakarathur inducing them to vote for 1st Respondent on 08.05.2006. Similarly the 1st Respondent has distributed a TV set to one Kandapillai S/o.Murugaiah Pillai of Thamanangudi inducing him to vote for him in the election on 08.05.2006."
74. The learned counsel for the election petitioner submitted that P.W.1, the election petitioner and P.W.10-Balathandayutham, election agent have testified about the incidents mentioned in the averment and the election petitioner in his complaints in Exs.P5 and P7 had mentioned about the distribution of cell phones and T.V. Set to named persons by the first respondent and his supporters and those are contemporaneous documents in support of the averments. Per contra, the learned Senior Counsel appearing for the first respondent submitted that the averments are made without mentioning the particulars regarding when, where and what time the alleged corrupt practice was committed and there is no pleading or evidence regarding the consent of the first respondent and the persons alleged to have received cell phones and T.V. set were not examined to corroborate the pleadings and the testimony of P.W.10-Balathandayutham is not based on personal knowledge and it is only hearsay.
75. P.W.1, the election petitioner, has stated in the cross-examination that the entire averments in paragraphs 5 to 9 of the election petition have been stated by him based on information only and not based on his personal knowledge and his testimony in chief-examination with regard to corrupt practice is also based on information only. P.W.10, the election agent, also in his cross-examination has stated that he did not see the first respondent Siva distributing gold nose screws to the voters and he has no personal knowledge and he only came to know from others. Hence, the testimonies of P.W.1 and P.W.10 are based on alleged information given by P.Ws.2 to 9 and not on personal knowledge and it does not help the case of the petitioner. The persons who are alleged to have received cell phones and T.V. Set, namely, Abdul Jabbar, Rahamathulla and Kandapillai were not examined. This averment is also not substantiated by the election petitioner.
76. The maintenance of purity of elections is indeed essential. The salutory principle of election law is that the allegations of corrupt practice have to be satisfactorily proved by reliable, trustworthy and satisfactory evidence and proof of commission of corrupt practices must be clear, cogent, specific and reliable, which in the instant case is found hopelessly wanting. The election petitioner had failed to prove that the first respondent/returned candidate has committed corrupt practice and the Issue No.1 is answered accordingly.
77. While denying the averments in the election petition, the first respondent/returned candidate has stated that the election petitioner has not set forth the material facts and the full particulars of the alleged corrupt practice that would attract the relevant ingredients of Sections 100 and 123 of the Representation of the People Act and hence the election petition is liable to be rejected. In this context, the law laid down by the Constitution Bench of the Supreme Court in BALWAN SINGH v. LAKSHMI NARAIN (AIR 1960 SC 770) is relevant and is extracted below.
"Para 8. ..... Insistence upon full particulars of corrupt practices is undoubtedly of paramount importance in the trial of an election petition, but if the parties go to trial despite the absence of full particulars of the corrupt practice alleged, and evidence of the contesting parties is led on the plea raised by the petition, the petition cannot thereafter be dismissed for want of particulars, because the defect is one of procedure and not one of jurisdiction of the Tribunal to adjudicate upon the plea in the absence of particulars."
78. Reiterating the above statement of law, Their Lordships of the Supreme Court, in the subsequent decision in QUAMARUL ISLAM v. S.K.KANTA AND OTHERS (AIR 1994 SUPREME COURT 1733) have observed thus:
"Para 41. Even if the application of the appellant, IA III, seeking dismissal of the election petition may be held to have been rightly rejected on the ground that after the parties had gone to trial, despite the absence of full facts and particulars of the alleged corrupt practice and had led evidence, an election petition is not liable to be thereafter dismissed for those defects only but in such cases, the evidence that is required to prove the allegations of corrupt practices in an election petition has to be more strictly scrutinised, lest the evidence, which in a way travels beyond the pleadings, is accepted without proper analysis."
79. As already seen, in the present case, the parties had gone to trial and evidence was also let in on the plea raised by the election petitioner and it is concluded that the evidence adduced is not sufficient and trustworthy to prove the charge of corrupt practice and the facts and particulars of the alleged corrupt practice do not attract the relevant ingredients of Sections 100 and 123 of the Representation of the People Act and the Issue No.2 is answered thus.
ISSUE NOS.3 AND 480. In view of the findings in the earlier Issues, the election petitioner is not entitled for the declaratory reliefs sought for in the election petition.
ISSUE NO.5
81. The election petitioner is not entitled to any relief in this petition.
82. In the result, the Election Petition is dismissed with costs.
9.6.2008 Index: Yes.
Internet: Yes.
Vks C. NAGAPPAN, J.
vks Pre-Delivery Order in Election Petition No.12 of 2006 9.6.2008