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CASE NO.: Appeal (civil)  4 of 2003

PETITIONER: Mercykutty Amma                                          

RESPONDENT: Kadavoor Sivadasan & Anr.                        

DATE OF JUDGMENT: 06/11/2003

BENCH: CJI & S.B.Sinha

JUDGMENT: J U D G M E N T With CIVIL APPEAL NO.8648 OF 2003 (Arising out of S.L.P.(C) No. 15350/2003)

S.B. SINHA, J.

       Leave granted in S.L.P. (C) No. 15350/2003.

       This appeal under Section 116-A of the Representation of  People  Act, 1951, arises out of a Judgment and order dated 29th October, 2002  passed by the High Court of Kerala at Ernakulam  in Election Petition  No. 7 of 2001 whereby and whereunder the election petition filed by the  appellant herein was dismissed.

FACTUAL  BACKGROUND :

       The parties herein contested the election from 123 Kundara  Legislative Assembly Constituency.  The respondent got 50,875 votes,  whereas the appellant obtained 46,408 votes.  The respondent was  declared to be elected by the returning officer of the said Constituency  on 13th May, 2001.  The appellant in his Election  Petition inter-alia   contended that the respondent had taken recourse to "corrupt practices"  within the meaning of Section 123 of the Representation of People Act,  1951 insofar as a pamphlet was brought out with an intent to promote  feelings of enmity and hatred amongst the voters belonging to Ezhava  caste and communal feelings, which was raised thereby, became a major  factor resulting in the split of votes of the people of the said  community.  The appellant contended that had such pamphlet being not  printed and published, the votes of these aforementioned community would  have gone mainly in his favour.  The said publication, the appellant  urged, was made by Sh. K.C. Marydasan, an agent of the first respondent  amounting to a corrupt practice within the meaning of Section 123(3A)   of the Act, particularly  having regard to the fact that the contents  thereof are false and made with the full knowledge that they were  untrue.  It was further alleged that the photographs of the petitioner  was published in a bi-weekly publication by name ’Palco Crime Magazine’  wherein an article was published making allegation that the appellant  might  be responsible for the murder of one Thankama ,a  cashew factory  worker and the said  Thankama had been upbringing a child aged 11 years  as its fostered mother, who was very likely the illegitimate child of  the appellant. It was alleged that the said publication was also made at  the instance of the first respondent herein with a view to defame the  appellant and the same was distributed by Shri Vellimon Vijayanandan,  UDF Convenor, Perinad Mandalam in Kundara Constituency, segment of the

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constituency in question.

        ISSUES:

       In the light of the pleadings of the parties, the High Court inter  alia framed the following issues:

"2.     Whether K.C. Marydasan and Vellimon  Vijayanandan referred to in paras 3 & 5 of the  E.P. were acting as agents of the Ist respondent  when they acted as alleged in the said paras?          3.      Whether the publication of Annexures II  and IV were made by K.C. Marydasan with the full  knowledge and consent of the Ist respondent?

4.      Whether the publication of Annexures II &  IV amounts to corrupt practice for the purpose  of Sections 123(3A) and 123(4) read with Section  100(1)(d)(ii) of the R.P. Act?

5.      Whether the publication of Annexures II  and IV were made by the agent and workers of the  first respondent with the knowledge and belief  of themselves and of the first respondent that  the contents thereof were false and untrue and  with intent to prejudice the prospects of the  petitioner’s election?"

HIGH COURT JUDGMENT:

       The High Court in its judgment held that printing and publication  of the aforementioned pamphlet and article amounted to a corrupt  practice within the meaning of Section 123(3A) of the Act.  It was  further held that assuming that the publication of Ex.P-2 was made at  the instance of or the consent or knowledge of the first respondent,  there was nothing to show that the contents thereof came within the  purview of the corrupt practices justifying setting aside of the  election on the basis that it promoted feelings of enmity or hatred on  the part of the voters of Ezhava community against the CPM and its  candidate.  

       Analysing the said ingredients which are required to be proved   for the purpose of  Section 123(4) of the Act, the High Court came to  the conclusion that the appellant has not been able to prove that the  said publication was made by Shri Marydasana and Vellimon Vijayanandan  as agents of the first respondent. The appellant having not been able to  prove consent of the first respondent as regards the publication of the  said pamphlet by Marydasana and Vellimon Vijayanandan, the same did not  meet the requirements of law as no sufficient evidence has been brought  on records to show that any of them was authorised to act on behalf of  the first respondent.  The High Court, however, without issuing any  notice to Marydasan held that the proved circumstances, fully justify  the conclusion beyond reasonable doubt, that Ex. P-2 was brought out by  none other than Marydasan.   

       At the trial an application was filed by the first respondent for  examining the said Shri K.C. Marydasan as a court witness.  By an order  dated 2.8.2002 the said application was disposed of by the High Court  observing that it would be open to the first respondent to examine him

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but no step was taken to summon the said witness.

       The High Court despite the same held:

"The proved circumstances also fully justify a  conclusion, beyond reasonable doubt, that it was  brought out by none other than Marydasan.

In the circumstances it is safe to conclude that  Exhibit P2 is a Convenor pamphlet printed and  published by Marydasan himself...I, therefore,  find that the petitioner had succeeded in  establishing that publication of material that  can constitute corrupt practice under section  123(4), (Subject to proof of consent) was done  by the person Marydasan in respect of Exhibit  P2.  Though it is not proved that any corrupt  practice was committed by him within the meaning  of Section 123(3A) of the Act."

       As regard, Issue No. 5 the High Court observed:

"Publication of Annexure 2. (Exhibit.P2) by  K.C. Marydasan, UDF Convenor stands established,  but that does not amount to corrupt practice  within the meaning of Section 100 of the Act."

SUBMISSIONS:

Mr. G. Prakash, learned counsel appearing on behalf of the  appellant would submit that the High Court committed a manifest error in  arriving at the conclusion that the appellant was not able to prove the  corrupt practice on the part of the first respondent having regard to  the fact that he had pleaded and proved that the aforementioned  Marydasan and Vellimon Vijayanandan were agents of the first respondent  herein.  The learned counsel would contend that for the purpose of  arriving at a conclusion as to whether the elected candidate had taken  recourse to corrupt practices or not, it is not necessary to prove that  the publication in question was made by an election agent or polling  agent or counting agent as it is sufficient to show that the same was  made by a person who was otherwise an agent of the returned candidate.   Strong reliance, in this behalf, has been placed on S.N. Balakrishna Vs.  Fernandez (AIR 1969 SC 1201).  In any event the learned counsel would  submit that as the materials brought on records clearly show that the  publications in question were sent to the Election Commissioner for the  purpose of showing that the election expenses incurred by the first  respondent that had been proved by PW-18  (G. Kumaran); the consent of  first respondent in relation to the said publication must be held to  have been proved.   

       Mr. Reddy, learned Senior counsel appearing on behalf of the  respondent, on the other hand, would submit that the appellant had not  been able to establish any nexus between the material published and the  Ex. P-10, which is said to be the list containing details of pamphlets,  posters and notices printed during the last general election by both the  rival candidates.  The learned counsel had also drawn our attention to  the statements made by PW-17 (Prasad Nanappan) in this behalf.  The  learned counsel would urge that the said witness being the manager of  Karthika Press, having denied that the pamphlet in question, was printed  in the said Press, the appellant cannot  be said to have proved the  material fact that the said Exhibit was printed at the instance of the  first respondent herein.

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STATUTORY PROVISIONS:

       The relevant statutory provisions of the Representation of the  People Act, 1951 read as under:   "99. Other orders to be made by the High Court.  \027 (1) At the time of making an order under  section 98 the High Court shall also make an  order\027 (a) where any charge is made in the petition of  any corrupt practice having been committed at  the election, recording-- (ii) the names of all persons, if any, who have  been proved at the trial to have been guilty of  any corrupt practice and the nature of that  practice; and Provided that a person who is not a party to the  petition shall not be named in the order under  sub-clause (ii) of clause (a) unless\027  (a) he has been given notice to appear before  the High Court and to show cause why he should  not be so named; and  (b) if he appears in pursuance of the notice,  he has been given an opportunity of cross- examining any witness who has already been  examined by [the High Court] and has given  evidence against him, of calling evidence in his  defence and of being heard.  (2) In this section and in section 100, the  expression "agent" has the same meaning as in  section 123.  123. Corrupt practices. \027The following shall  be deemed to be corrupt practices for the  purposes of this Act:--  (3A) The promotion of, or attempt to promote,  feelings of enmity or hatred between different  classes of the citizens of India on grounds of  religion, race, caste, community, or language,  by a candidate or his agent or any other person  with the consent of a candidate or his election  agent for the furtherance of the prospects of  the election of that candidate or for  prejudicially affecting the election of any  candidate.] (4) The publication by a candidate or his agent  or by any other person with the consent of a  candidate or his election agent, of any  statement of fact which is false, and which he  either believes to be false or does not believe  to be true, in relation to the personal  character or conduct of any candidate or in  relation to the candidature, or withdrawal, of  any candidate, being a statement reasonably  calculated to prejudice the prospects of that  candidate’s election. (8) Booth capturing by a candidate or his agent  or other person. Explanation. \027(1) In this section the  expression "agent" includes an election agent, a  polling agent and any person who is held to have  acted as an agent in connection with the  election with the consent of the candidate."

CORRUPT PRACTICES - WHETHER PROVED:

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       Indisputably the burden of proof to prove commission of corrupt  practices by the first respondent was on the appellant.

For proving corrupt practices within the meaning of Section 123(4)  of the Act, he was required to prove the following:

(i)     Ext.P2 was published by the first respondent or by his ’agent’ or  other person, but with his consent. (ii)    the statement are false and the first respondent believed them to  be true. (iii)   the allegations touch upon the personal conduct of the petitioner. (iv)    the statement are reasonably calculated to prejudice the prospects  of the petitioner’s election.

       The appellant in paragraph 3 of the Election Petition alleged:

        (i)     K.C. Marydasan, general Convener, U.D.F.  Election Committee, Kundara, published  Annexure A2 (Ex.P2) notice containing  defamatory statements about the  petitioner, which are false on the face of  it, and believing the same to be not true.

(ii)    This was done with the full knowledge and  consent of the first respondent."

In the written statement the first respondent traversed the said  allegations stating :

"It is quite incorrect to contend that but for  the publication and distribution of Annexures A2  and A4 the petitioner would have secured more  number of votes.  The first respondent has not  resorted to any corrupt practice."

The first respondent, however, categorically stated that no  defamatory statement was made or published with his knowledge. He  further denied and disputed the allegation that Marydasan was his  election agent or a polling agent or agent for any purpose.   He further  denied and disputed that Ex.P-2 was published with his knowledge.  

       It may further be noticed that no allegation was made in the  election petition that the first respondent had incurred the expenditure  as regard the printing and publishing of the said exhibit.

The submission of the learned counsel is that apart from election  agent, polling agent or counting agent, another types of agents are also  contemplated within the meaning of Section 123 of the Act.  The learned  counsel may be correct, but as would appear from the discussions made  hereinafter the same would not make any material difference in law.

In terms of sub-section (4) of Section 123 the corrupt practices  may be committed by (a) the candidate; (b) his agent, that is to say \026  (i) an election agent, (ii) a polling agent, (iii) any person who is  held to have acted as an agent in connection with the election with the  consent of the candidate; (c) by any other person with the consent of

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the candidate or his election agent.

The categories of agents enumerated in (i) and (ii) of clause (b)  are to be notified by the candidate, before the statutory authorities.   Such agents, thus, are not only known to the appropriate authorities but  also to his opponents and other persons concerned.  However, so far as  category (iii) is concerned, the name of such agent is not required to  be notified.  He must have an express or implied authority to act on  behalf of the candidate.  For the purpose of proving corrupt practices  on the part of such agent, there would not be any  material difference  between the third category of "agent" or "any other person" inasmuch  as in both the cases consent of the candidate  being  the material  factor, would be required to be pleaded and proved.  Thus, the appellant  was required to prove that alleged corrupt practices were committed by  the aforementioned Marydasan and Vellimon Vijayanandan with the consent  and knowledge of the elected candidate.  The first respondent, as  noticed hereinbefore, herein in his written statement denied or disputed  that a pamphlet has been published defaming the appellant herein at his  instance or with his knowledge or consent.  The appellant sought to  prove such consent on the part of the first respondent vis-‘-vis  Marydasan on the ground that not only the same was printed in Karthika  Press but the expenditure incurred by Respondent No.1 on  the printing  and publishing thereof was intimated to the Election Commission in his  election expenditure account.    In terms of Section 127A of the Representation of People Act, the  printers are required to produce four copies of each printed material  that they printed and provided during the election period to the  candidates or their representatives.  The authorities of the Karthika  Press responded to a notice issued by the said witness.  A data was also  collected on such disclosures and further materials were collected by  the officers of the department on the basis whereof the list was  prepared.  It is, however, accepted that the posters and pamphlets  produced by the printers were not exhibited in the notice board of the  Collectorate.   

       PW10 upon undertaking a purported comparison of Ex. P2(b) with the  entries made in Ex. X10, sought to correlate the both  on the ground  that a sum of Rs. 4,350/-  was paid by the first respondent herein to  the printer.  However, in  cross-examination he stated that it was not  easy to correlate those items of printing with entries in Ex. X10; the  reason being that payments towards printing charges may not be made in  one lump.  He categorically stated:

"I now see a bill dt. 19.05.2001 issued to the  Secretary of the L.D.F., Election Committee,  Kundara from the Kollam District Co-operative  Printing Society (the bill is marked Ext.  XII(a).  A verification of Ext. X10 is not a  statement prepared based on bills produced by  the candidate and their agent.  Actually we  collected data from the field which is verified  by the staff after going to the election offices  of the candidates as also the various printing  presses.  Later on when the candidate submitted  their bills, I cross checked the details with  those in Ext. X10.

I now see Bill dt. 30.04.2001 issued from the  Don Bosco Industries.  Offset Printers to the  Secretary, the LDF Election Committee, Kundara  on 30.04.2001 for the sum of Rs. 4,250/-  These  are in respect of printing two matters.  First  of these was 1000 posters for which the printing  charge was Rs. 3000/-.  This is shown as serial

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No. 7 of Ext. X10.  The other item mentioned in  the bill dt. 30.04.2001 is shown as item 6 of  Ext. X10 (the bill is marked Ext. X1(b)."

       It is, therefore, clear that the evidence of the said witness is  not conclusive on the question that offending material was printed and  published by Karthika Press or the expenditure therefor was borne by the  respondent No. 1.   

       The Manager of the aforementioned Karthika Press was examined by  the appellant as PW17.  He categorically stated that Ex. P2(b) was not  printed in the his Press.   

       He furthermore denied the suggestion that the matter printed in  his Press was Ex. P2(b).  A question was asked to whom as to which  pamphlet pertaining to the printing shown in Ext. X7(d) and in answer  thereto he stated:

"Sl. No. 3 of Ext. X7(d) covers printing  charges of Ext. P3(a).  Item 2 shown as Convenor  Pamphlet in Ext. X7(c) was a matter printed in  four pages.  I deny the suggestion that it  relates to Ext. P2(b) actually has six pages."

Allegations of corrupt practices are quasi-criminal charges and  the proof that would be required in the support thereof would be as in a  criminal charge.  The charges of corrupt practices are to be equated  with the criminal charges and proof thereof would not be not  preponderance of probabilities as in civil action but proof beyond  reasonable doubt as in a criminal trials. (See Surender Singh Vs.  Hardial Singh and Ors. (1985) 1 SCR 1059)

       From the materials on record, therefore, in our opinion, it has  not been proved that the offending article was printed and published  with the consent and knowledge of the first respondent herein.   

NON-COMPLIANCE OF SECTION 99:

       Admittedly Shri Marydasan was not issued any notice.  He was not  given any opportunity to cross-examine the witnesses examined on behalf  of the appellant or adduce evidence on his own behalf.  

       Section 99 of the Act empowers the High Court to record the names  of all persons, who have been proved at the trial to have been guilty of  any corrupt practice and the nature of that practice.  The proviso  appended to Clause (a) of sub-section 1 of Section 99 mandates that  before a person is so named, he has to be given notice to appear before  the High Court and to show cause why he should not be so named and upon  his appearance, if any, pursuant to such notice he must be given an  opportunity to cross-examine the witnesses who have already been  examined by the High Court and gave evidence against him and further  giving him an opportunity of calling evidence in his defence and of  being heard.

       The requirement to apply the provisions of Section 99 is in  respect of a person who is not a party to the proceeding.  The statute  mandates that before a person is named as having indulged in corrupt  practices he must be given the same opportunity which is given to a  party to the petition.  By reason of such a notice and giving an  opportunity to the noticee to cross-examine the witnesses examined on  behalf of the parties to the said petition and examining witnesses on

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behalf of his defence, he is placed on same position as that of a party  in the petition. (See Dr. Ramesh Yeshwant Prabhoo Vs. Prabhakar  Kashinath Kunte and Others (1996) 1 SCC 130).

       Naming of a person as having indulged in corrupt practices has  serious consequences.  A person indulged in corrupt practices whether  party to the petition in terms of Section 82 or subsequently receives a  notice in terms of Section 99 would stand on the same footing having  regard to the provisions contained in Section 8A of the Act.  Such a  person may not be a necessary party within the meaning of Section 82 of  the Act but it is beyond any cavil that no finding could be recorded by  naming such a person unless the mandatory provisions of Section 99 are  complied with.  (See Patangrao Kadam Vs. Prithviraj Sayajirao Yadav  Deshmukh and Others (2001) 3 SCC 594).

       Even if Marydasan was agent of the first respondent within the  meaning of Section 123 of the Act, the High Court was required to comply  with the aforementioned statutory mandate.  It has not been disputed  that the provisions of Section 99 are mandatory.  Marydasan, thus, could  not have been named as having indulged himself in corrupt practices  without complying with the mandatory provisions of Section 99 of the  Act.   

The High Court, thus, committed a manifest illegality in coming to  the conclusion that the offending article Ex. P2(b) was published at the  instance of Marydasan.   

CONCLUSION:

       We, therefore, are of the opinion that the appellant has not been  able to prove:

a.      That the said Shri K.C. Marydasan was his agent; b.      that the offending material was published with the knowledge  and consent of the first respondent.

       We have, therefore, no hesitation in coming to the conclusion that  the High Court was right in its finding to the said effect.  In view of  our finding, it is not necessary to go into the cross-appeal filed by  the first respondent.

       For the reasons aforementioned, we do not find any merit in this  appeal, which is accordingly dismissed.  

       So far as the Appeal filed by Shri K.C. Marydasan is concerned, we  are of the opinion, that having regard to the fact that he had not been  given a notice nor  was allowed to cross-examine the witnesses examined  on behalf of the parties on the said issues, the High Court was not  correct in making any observation against him.  The said observations  against Shri K.C. Marydasan shall stand expunged.  Civil Appeal No. 4 of  2003 is dismissed and the appeal arising out of Special Leave Petition  (C) No.15350 of 2003 filed by K.C. Marydasan is allowed.  No costs.