REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5033 OF 2006

P.C. THOMAS — APPELLANT (S)

VERSUS

P.M. ISMAIL & ORS. — RESPONDENT (S)

WITH

CIVIL APPEAL NO.5777 OF 2006

J U D G M E N T

D.K. JAIN, J.:

This  appeal  under  Section  116A  of  the  Representation  of  

People  Act,  1951  (for  short  ‘the  Act’)  is  directed  against  the  

judgment and order dated 31st October, 2006 rendered by the High  

Court  of  Kerala  at  Ernakulam in  Election  Petition  No.1  of  2004,  

setting aside the election of the appellant to the House of People  

(Lok  Sabha)  from  12  H.P.  Muvattupuzha  Parliamentary  

Constituency.

2. Election to the said Parliamentary Constituency was held  

on 10th May, 2004 and the result was declared on 13th  

May, 2004. The appellant, who was the first respondent  

in  the  Election  Petition,  was  the  candidate  from  the  

Indian  Federal  Democratic  Party  (‘IFDP’  for  short),  a  

constituent of the National Democratic Alliance. He was  

declared elected by a margin of 529 votes over the first  

respondent  (hereinafter  referred  to  as  the  ‘election  

petitioner’), who got the second highest number of votes.  

The  election  petitioner  was  the  candidate  from  the  

Communist Party of India (Marxist), a constituent of the  

Left  Democratic  Front  (for  short  ‘LDF’).  While  the  

appellant secured 2,56,411 votes, the election petitioner  

got  2,55,882  votes.  The  second  respondent  in  the  

election petition,  who had contested the election as a  

candidate of the Kerala Congress (M), a constituent of  

the United Democratic Front (‘UDF’ for short),  secured  

2,09,880  votes.  The  other  13  contestants  got  an  

insignificant number of votes.

3. The  election  of  the  appellant  was  challenged  by  the  

election petitioner on the ground that the appellant had  

committed  corrupt  practices  as  enumerated  under  

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Sections 123(3) and 123(5) of the Act and, therefore, his  

election  was  liable  to  be  declared  void  under  Section  

100(1)(b) of the Act. The consequent relief prayed for in  

the  Election  Petition  was  for  declaring  the  election  

petitioner as elected in terms of  Section 101(b) of  the  

Act.

4. The allegations in the Election Petition were denied by  

the  appellant.  In  the  first  instance,  as  a  preliminary  

objection, the appellant questioned the maintainability of  

the Election Petition.  Rejecting the objection,  the High  

Court, vide its order dated 28th February, 2005 sustained  

the maintainability  of  the Election Petition only on two  

grounds  of  corrupt  practice,  viz.  one  falling  under  

Section 123(3) of the Act and the other under Section  

123(5) of the Act.  While the election petitioner himself  

gave up the grounds pertaining to allegation of excess  

election expenditure incurred by the appellant over the  

maximum limit provided under Section 77 of the Act and  

the allegation of undue influence under Section 123(2) of  

the  Act  arising  out  of  a  speech  made  by  the  then  

President of the Bharatiya Janta Party, the High Court  

rejected the ground pertaining to the allegation of bribery  

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in the form of gratification offered by the appellant to one  

of  the  contestants  in  order  to  get  his  candidature  

withdrawn from this election.

5. Upon consideration of the pleadings and taking note of  

abandonment  of  the  afore-noted  allegations  by  the  

election  petitioner,  the  learned  Judge  framed  the  

following issues:

1. Whether the 1st respondent has committed corrupt  

practice  as  contemplated  under  Section  123(3)  of  the  

Representation of the People Act, 1951 by printing and  

publishing  Annexure  I  notice  and  Annexure  II  photo  

calendar and distributing and circulating Annexure I along  

with Annexure II by himself, his election agent and other  

agents,  his  election  workers  and  campaigners  with  the  

consent and connivance of the 1st respondent in various  

places  of  No.12  H.P.  Muvattupuzha  Parliamentary  

Constituency for the election held on 10.5.2004.

2. Whether the 1st respondent, his election agent and  

other agents with the consent of the 1st respondent, had  

committed  corrupt  practice  contemplated  under  Section  

123(5) of the Representation of the People Act, 1951 by  

hiring and procuring vehicles, viz., autorickshaw Nos. KL-

5/4400, KL-5/C 3431 and Jeep Nos. KRO 6606 and KL-

5/1845 for free conveyance of the electors to and from the  

polling  station  Nos.  57  to  71  in  Poonjar  Thekkekara  

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Panchayat  in  Poonjar  Assembly  Constituency of  No.  2  

Muvattupuzha Parliamentary Constituency for the election  

held on 10.5.2004.

3. Whether the election of the 1st respondent from No.  

12 H.P.Muvattupuzha Parliamentary Constituency can be  

declared  as  void  by  the  conduct  of  corrupt  practices  

enumerated in issue Nos.1 and 2 and is it liable to be set  

aside.

4. Whether the petitioner has to be declared as duly  

elected  from  No.12  H.P.  Muvattupuzha  Parliamentary  

Constituency  after  setting  aside  the  election  of  the  1st  

respondent.

5. Whether the election petitioner is entitled to get the  

cost of his election petition.

6. On  behalf  of  the  election  petitioner,  twenty  five  

witnesses,  including  himself  were  examined.  Alleged  

public notice dated 21st April, 2004 and photo-calendar,  

filed as Annexures I and II respectively with the election  

petition,  were  exhibited  through  election  petitioner  as  

Ext.P1 and P2 respectively. On the side of the appellant,  

eleven witnesses, including himself were examined and  

Ext. R1(a) to R1(g) were marked.  

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7. Analysing the evidence adduced by the parties on the  

issues, except for issue No.5, the High Court answered  

all the issues in favour of the election petitioner. Thus,  

costs of the election petition, were not awarded. It has  

been  observed  by  the  High  Court  that  in  the  instant  

case,  even though consent  of  the appellant  herein for  

printing Ext.P1 and P2 is not proved by direct evidence  

but from proven facts, namely, the election agent of the  

appellant,  Advocate  James  Anakallungal,  (hereinafter  

referred to as ‘James’),  arranging for printing of Ext. P1  

& P2; the appellant paying the printing charges and the  

party  workers  distributing  these  documents  in  the  

houses of electors, who are Catholics, the only inference  

possible  is  that  the  circulation  of  printed  copies  of  

Exts.P1  &  P2  was  with  the  knowledge  of  the  

appellant.   Inter  alia,  observing  that  while  Ext.P1  

independently  constitutes  an  appeal  to  the  Catholic  

voters  to  vote  for  the  appellant  on  the  ground  of  his  

religion attracting the mischief of Section 123(3) of the  

Act,  Ext.P2  supports  and  strengthens  Ext.P1,  the  

learned  Judge  held  that  the  appellant  has  committed  

corrupt  practice  under  Section  123(3)  of  the  Act  by  

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appealing to the electors to vote on the ground of his  

community  and  religion  through  the  printing  and  

circulation  of  Exts.P1  and  P2  among  the  electors.  

Consequently, his election was liable to be declared void  

under Section 100(1)(b) of the Act.  On the second issue  

also, the High Court has observed that though no direct  

evidence is produced to prove the consent given by the  

appellant  or  his election agent  to his party workers to  

arrange the vehicles and even the witnesses have not  

specifically  stated  that  the  vehicles  were  provided  to  

them free of charge, yet in view of the evidence of the  

witnesses that party workers of the appellant had offered  

vehicles to them, the only possible inference could be  

that the witnesses were provided vehicles free of charge  

resulting in violation of Section 123(5) of the Act. Having  

found issues No.1 to 3 against the appellant, the High  

Court  came to  the  conclusion  that  but  for  the  corrupt  

practices,  proved  to  have  been  practiced  by  the  

appellant, the election petitioner would have got at least  

265  more  of   the  votes polled  in   favour  of  the  

appellant,  in  which  case,  he  would  have  won  the  

election.  Accordingly, exercising power conferred on it  

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under  Section  100(1)(b)  of  the  Act,  the  High  Court  

declared  the  election  of  the  appellant,  the  returned  

candidate, to the said Parliamentary Constituency, to be  

void  and  the  election  petitioner  was  declared  elected  

under Section 101(b) of the Act in his place from the said  

Constituency.  The High Court  further  ordered that  the  

findings  of  commission  of  corrupt  practices  by  the  

appellant under Sections 123(3) and 123(5) of the Act  

will hold good for the purpose of Section 99 of the Act as  

well. Aggrieved by the said decision, the appellant has  

come up in appeal before us.

8. Assailing  the  findings  of  the  High  Court,  Mr.  F.S.  

Nariman, learned senior counsel appearing on behalf of  

the appellant, strenuously urged that the conclusion of  

the  High  Court  to  the  effect  that  the  appellant  had  

committed corrupt  practices as envisaged  under sub-

sections  (3)  and  (5)  of  Section  123  of  the  Act  are  

palpably erroneous, inasmuch as: (i) it was neither the  

case of the election petitioner, nor any specific plea was  

raised  in  the  election  petition,  that  the  appellant  had  

appealed to the electors to vote for him on the ground of  

his  community  or  religion  by  distribution  of  printed  

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offending  materials  viz.  a  notice/statement  dated  21st  

April,  2004 (Ext.P1) and a photo calendar for the year  

2004 (Ext.P2); (ii) both the offending documents (Ext.P1  

and  Ext.P2)  were  not  proved  as  per  the  prescribed  

procedure and, therefore, the very basis in forming the  

opinion that the appellant had committed corrupt practice  

was missing; (iii) having held that independently Ext.P2  

did not  constitute an appeal  to vote on the ground of  

religion of the appellant and that the said exhibit had to  

be read collectively with Ext.P1, alleged to be a notice  

purportedly  authored  and  printed  by  one  John  

Kachiramattom  (hereinafter  referred  to  as  ‘John  K.’),  

which had been circulated along with  Ext.P2,  and the  

circulation  of  both  amongst  the  electors  together  

constituted an appeal  to  vote for  the appellant  on the  

ground of his religion,  the learned Judge has failed to  

appreciate that none of the witnesses examined by the  

election  petitioner  had  stated  that  John  K.  had  

acknowledged or  stated  to  them that  he  had,  in  fact,  

prepared  and  signed  the  said  notice/statement  for  

circulation; (iv) though John K. was cited as one of the  

witnesses by the election petitioner in the list submitted  

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by him, he was not called by the election petitioner for  

recording of his evidence; (v) the  inferences drawn by  

the learned Judge were based on unproven documents,  

even source whereof had not been proved; and (vi)  the  

finding of the High Court to the effect that appellant had  

committed corrupt practice under Section 123(5) of the  

Act was based only  on  inferences  drawn  from the  

statements made by interested witnesses when none of  

the witnesses had stated that the vehicles were provided  

free of charge. To buttress his argument that an adverse  

inference should have been drawn against the election  

petitioner  for  not  examining  John  K.,  learned  counsel  

placed reliance on the decisions of this Court  in  Hem  

Raj  Vs. Ramji Lal & Anr.1,  Thakur Sen Negi  Vs.  Dev  

Raj  Negi  &  Anr.2,  Virendra  Kumar  Saklecha  Vs.  

Jagjiwan  &  Ors.3,  Jeet  Mohinder  Singh  Vs.  

Harminder  Singh  Jassi4 and  Kanhaiyalal  Vs.  

Mannalal  &  Ors.5. Reliance  was  also  placed  on  the  

decisions of this Court in  Ram Chand Bhatia  Vs.  Shri  

Hardyal6, Ch.  Razik  Ram  Vs.   Ch.  Jaswant  Singh  1 (1975) 4 SCC 671 2 (1993) Supp. 3 SCC 645 3 (1972) 1 SCC 826 4 (1999) 9 SCC 386 5 (1976) 3 SCC 646  6 (1986) 2 SCC 121

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Chouhan & Ors.7, Surinder Singh Vs. Hardial Singh &  

Ors.8, Mercykutty Amma Vs.  Kadavoor Sivadasan &  

Anr.9,  and  a  number  of  other  decisions  in  which  the  

dictum  in  Ch.  Razik  Ram  (supra)  was  followed  in  

support of the proposition that the standard of proof in an  

election petition is the same as in a criminal trial, which  

the election petitioner failed to discharge.

9. Mr. P.S. Narasimha, learned senior counsel appearing  

for the election petitioner, on the other hand, supporting  

the  decision  of  the  High  Court,  submitted  that  upon  

production of originals of pamphlet and the calendar by  

PW1, they were marked as Exts.P1 and P2 respectively  

and  duly  endorsed  by  the  Court  trying  the  election  

petition,  therefore,  the  documents  stood  proved.  In  

support  of  the  plea  that  once  a  document  has  been  

admitted  in  evidence  and  marked  as  an  exhibit,  the  

objection  that  it  should  not  have  been  admitted  in  

evidence  or  that  the  mode  adopted  for  proving  the  

document was irregular, cannot be allowed to be raised  

at any stage subsequent to the marking of the document  

7 (1975) 4 SCC 769 8 (1985) 1 SCC 91 9 (2004) 2 SCC 217

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as exhibit, reliance was placed on the decisions of this  

Court in  R.V.E. Venkatachala Gounder  Vs. Arulmigu  

Viswesaraswami & V.P. Temple & Anr.10,  Dayamathi  

Bai  (Smt)  Vs. K.M. Shaffi11 and  P.C.  Purushothama  

Reddiar Vs. S. Perumal 12. Other pleas raised were also  

countered by the learned counsel.

10. Before we proceed to examine the facts of the case to  

consider the question as to whether charges of corrupt  

practices  were  established  against  the  appellant,  we  

deem it necessary to reiterate that a charge of corrupt  

practice envisaged by the Act is to be equated with a  

criminal charge and the standard of proof thereof would  

not   be   preponderance  of   probabilities  as  in  a  civil  

action but  

proof beyond reasonable doubt as in a criminal trial. If this test is not  

applied,  a  very  serious  prejudice  is  likely  to  be  caused  to  the  

successful candidate whose election would not only be set aside, he  

may also incur disqualification to contest an election for a certain  

period entailing even extinction of his political career. Undoubtedly,  

10 (2003) 8 SCC 752 11 (2004) 7 SCC 107 12 (1972) 1 SCC 9

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the onus lies heavily on the election petitioner to make out a strong  

case for setting aside an election.

11. In  Ch.  Razik  Ram (supra),   speaking  for  the  Bench,  

Sarkaria, J. observed thus:

“..It  is  well  settled  that  a  charge  of  corrupt  practice  is  substantially akin to a criminal charge. The commission of  a corrupt practice entails serious penal consequences. It  not only vitiates the election of the candidate concerned  but also disqualifies him from taking part in elections for a  considerably  long  time.  Thus,  the  trial  of  an  election  petition being in the nature of an accusation, bearing the  indelible  stamp of  quasi-criminal  action,  the  standard  of  proof is the same as in a criminal trial. Just as in a criminal  case,  so  in  an  election  petition,  the  respondent  against  whom  the  charge  of  corrupt  practice  is  levelled,  is  presumed to be innocent unless proved guilty. A grave and  heavy onus therefore,  rests  on the accuser  to  establish  each  and  every  ingredient  of  the  charge  by  clear,  unequivocal  and  unimpeachable  evidence  beyond  reasonable  doubt.  It  is  true  that  there  is  no  difference  between the general rules of evidence in civil and criminal  cases, and the definition of "proved" in Section 3 of the  Evidence Act does not draw a distinction between civil and  criminal  cases.  Nor  does this  definition insist  on perfect  proof  because  absolute  certainty  amounting  to  demonstration  is  rarely  to  be  had  in  the  affairs  of  life.  Nevertheless, the standard of measuring proof prescribed  by  the  definition,  is  that  of  a  person  of  prudence  and  practical   good  sense.  ‘Proof’ means the effect of the  evidence adduced in the case. Judged by the standard of  prudent man, in the light of the nature of onus cast by law,  the  probative  effect  of  evidence  in  civil  and  criminal  proceedings  is  markedly  different.  The  same  evidence  which may be sufficient to regard a fact as proved in a civil  suit,  may be considered insufficient for a conviction in a  criminal action. While in the former, a mere preponderance  of  probability  may  constitute  an  adequate  basis  of  decision, in the latter a far higher degree of assurance and  

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judicial certitude is requisite for a conviction. The same is  largely  true about  proof  of  a  charge of  corrupt  practice,  which  cannot  be  established  by  a  mere  balance  of  probabilities  and,  if,  after  giving  due  consideration  and  effect to the totality of the evidence and circumstances of  the  case,  the  mind  of  the  Court  is  left  rocking  with  reasonable doubt - not being the doubt of a timid, fickle or  vacillating mind - as to the veracity of the charge, it must  hold the same as not proved”.

12. A three-Judge  Bench  of  this  Court  in  Jeet  Mohinder  

Singh  (supra),  referring  to  a  large  number  of  earlier  

decisions,  culled  out  the  following  legal  principles,  

relevant  for  our  purpose,  in  the  field  of  election  

jurisprudence:

“(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  Vs. Jaswant  Singh13,  Gajanan  Krishnaji  Bapat  Vs. Dattaji   Raghobaji Meghe14].

(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  

13 AIR 1954 SC 210 14 (1995) 5 SCC 347

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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  Vs. S.K. Kanta15, F.A. Sapa Vs. Singora16, Manohar  Joshi etc. Vs. Damodar Tatyaba alias Dada Saheb  Rupwati  etc.17 and Ram  Singh  Vs. Col.  Ram  Singh18].

(iii) The  Appellate  Court  attaches  great  value  to  the  opinion formed by the trial Judge more so when the  trial Judge recording findings of fact is the same who  had  recorded  the  evidence.  The  Appellate  Court  shall remember that the jurisdiction to try an election  petition  has  been  vested  in  a  Judge  of  the  High  Court. Secondly, the trial Judge may have had the  benefit of watching the demeanour of witnesses and  forming first-hand opinion of them in the process of  evaluation of evidence. The Supreme Court may re- assess  the  evidence  and  come  to  its  own  conclusions  on  feeling  satisfied  that  in  recording  findings  of  fact  the  High  Court  has  disregarded  settled  principles  governing  the  approach  to  evidence  or  committed  grave  or  palpable  errors.[See:Gajanan Krishnaji Bapat (supra); Kripa  Shankar Chatterji Vs.  Gurudas Chatterjee19]”.

15 1994 Supp (3) SCC 5 16 (1991) 3 SCC 375 17 (1991) 2 SCC 342 18 1985 Supp SCC 611 19 (1995) 5 SCC 1

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13. Similar  opinion  has  been  expressed  in  subsequent  

decisions,  including  Surinder  Singh  (supra) and  

Mercykutty Amma (supra) on which reliance had been  

placed by learned counsel for the appellant.

14. With  this  background,  it  has  to  be  examined  if  the  

findings  recorded  in  the  judgment  in  appeal,  holding  

corrupt practices under Section 123(3) and (5) of the Act  

having been committed by the appellant, are justified or  

hit  by  the  contentions  to  the  contrary  raised  by  the  

appellant.   It  would  be  appropriate  to  reproduce  the  

aforesaid  provisions  of  the  Act,  which  are  extracted  

below:

“Section 123 - Corrupt practices. —The following shall  be deemed to be corrupt practices for the purposes of this  Act:—

(1) xxx xxx xxx

(2) xxx xxx xxx

(3)  The appeal  by  a  candidate  or  his  agent  or  by any  other  person  with  the  consent  of  a  candidates  or  his  election agent to vote or refrain from voting for any person  on the ground of his religion, race, caste, community or  language or the use of, or appeal to religious symbols or  the use of, or appeal to, national symbols,  such as the  national flag or the national emblem, for the furtherance of  the  prospects  of  the  election  of  that  candidate  or  for  prejudicially affecting the election of any candidate:

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Provided that no symbol allotted under this Act to a  candidate shall be deemed to be a religious symbol or a  national symbol for the purposes of this clause.

(3A) xxx xxx xxx

(3B) xxx xxx xxx

(4) xxx xxx xxx

(5)  The  hiring  or  procuring,  whether  on  payment  or  otherwise, of any vehicle or vessel by a candidate or his  agent  or  by  any  other  person  with  the  consent  of  a  candidate or his election agent or the use of such vehicle  or  vessel  for  the free conveyance of  any elector  (other  than the candidate himself the members of his family or  his agent) to or from any polling station provided under  section 25 or place fixed under sub-section (1) of section  29 for the poll:

Provided that the hiring of a vehicle or vessel by an  elector or by several electors at their joint costs for the  purpose of conveying him or them to and from any such  polling  station  or  place  fixed  for  the  poll  shall  not  be  deemed to be a corrupt practice under this clause if the  vehicle  or  vessel  so  hired  is  a  vehicle  or  vessel  not  propelled by mechanical power:

Provided further that the use of any public transport  vehicle or  vessel  or  any tramcar or  railway carriage by  any elector at his own cost for the purpose of going to or  coming from any such polling station or place fixed for the  poll shall not be deemed to be a corrupt practice under  this clause.

Explanation.-In  this  clause,  the  expression  "vehicle"  means any vehicle used or capable of being used for the  purpose  of  road  transport,  whether  propelled  by  mechanical  power  or  otherwise  and  whether  used  for  drawing other vehicles or otherwise.”

17

15. Issue  No.1  is  based  on  the  alleged  violation  of  sub-

section (3) of Section 123, the vital ingredients of which,  

relevant for our purpose, are:- (i) appeal by a candidate  

or his agent or by any person with the consent of the  

candidate or his election agent, (ii) to vote or refrain from  

voting for any person, (iii) on the ground of religion, race,  

caste, community or language.  

16. Therefore,  in  order  to  decide  whether  in  the  present  

case,   corrupt  practice  is  committed,  it  has  to  be  

examined:  (a)  whether  notice  (Ext.P1)  and  photo-

calendar  (Ext.P2)  independently  or  jointly  constitute  

appeal to the voters to vote on the ground of religion or  

caste or  community  of  the appellant  as alleged in the  

election  petition  and  (b)  if  so,  whether  the  appellant  

herein or his agent or any other person with the consent  

of the appellant or his agent has printed and distributed  

or  at  least  distributed  the  same  among  the  voters  to  

bring  them  within  the  mischief  of  the  sub-section.  

Calendar (Ext.P2) is described as printed at “Akshara”  

with the telephone number of the Press.  It contains the  

photograph of the appellant with the Holy Pope, taken on  

the  occasion  of  the  beatification  ceremony  of  Mother  

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Teresa.   Notice  (Ext.P1)  purportedly  authored  and  

published in the name of John K., does not contain the  

name  of  the  printing  press  or  a  direct  appeal  to  the  

voters  to  vote  for  the  appellant.   To  appreciate  its  

contours  and  the  purpose,  it  would  be  expedient  to  

visualize its contents, which are extracted below:

“Dear People, 21.4.2004

I need not introduce Adv. P.C. Thomas, Former President  of the Kothamangalam Diocese, former State Secretary of  the Catholic Congress, the son of P.T. Chacko, who was  Kerala’s powerful Home Minister and the prominent leader  our  community has been.   It  is  humbly brought  to your  notice that  our  land and society  will  be blessed if  P.C.  Thomas who has for the last 15 years been carrying out  illustrious  service  as  the  people’s  representative  of  Muvattupuzha Lok Sabha Constituency and safeguarded  the honour of the community and above all of Keralites at  the national level, is once again made victorious.

The  Holy  Father  has  exhorted  us  that  the  Christian Community, which is about 2% of population of  India,  should  not  keep  away  from  the  national  main  stream.  Many priests, nuns and spiritualists from Kerala  are  carrying  out  gospel  work,  educational  activities  and  nursing of  the  sick  all  over  North  India.   Most  of  these  places are now under  BJP Rule.   Various just  released  opinion surveys clearly predict that the BJP Government  will again come to power at the centre.  It is indisputable  that  if  elected  from  Muvattupuzha,  P.C.  Thomas  will  receive  central  cabinet  membership  and  also  thereby  a  chance to do more good for our homeland and society.

When  our  missionaries  were  abused  in  Jambuva of  Madhya Pradesh,  it  was P.C.  Thomas who  reached rushed first and took a strong stand.  And was not  

19

this matter acknowledged and established through public  declaration  by  revered  father  mar  Mathew  Vaniyakizhakkal.   Many  representatives  of  the  Christian  community  serving  in  North  India  have,  via  phone  and  letters informed me that the help and service they received  at the political level should not be caused to be lost, and  requested that P.C. Thomas must be elected and sent with  more  strength  for  functioning  for  them  at  Delhi.   I  too  desire for their hope to be fulfilled, for P.C. Thomas is the  greatest friend and well-wisher of Malayalees in Delhi and  other outside places.  We are also witnesses to the fight  he fought in parliament for the benefit of the Agricultural  Sector, which represents a great majority of the members  of our community.  Financial security is indispensable for  spiritual strength, to some extent, as we know.

P.C. Thomas,  who participated as the official  representative of the Central Government at the function  beatifying and conferring sainthood to Mother Teresa who  had flown away to God’s court like the piece of white cloud  of purity and declared before the whole world, by kissing  the hand of the holy father, the love and affection of 100  crore  Indians,  stands  as  social  worker  whom  our  community can always be proud of it was the selfishness  and personal interest of certain people, which sent him to  the BJP front.   But there too he stands as a witness of  Christ like the old Joseph who was elevated as king by the  aliens.

I request you to give P.C. Thomas, who is the  representative of the Christians followings the footsteps of  lord  Jesus  who  stepped  in  to  this  world  to  preach  the  gospel to the poor, to console the sad at heart to free the  shackled,  to  give  sight  to  the  blind  and  to  liberate  the  oppressed and who follows the commandment of the Holy  Church, your ever strong prayer support to enable that son  to continue as Jesus witness in Delhi.

With love and regard John Kachiramattom

Sd/- John Kachiramattom”

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17. Obviously, as the High Court has also deduced, notice  

(Ext.P1)  clearly  contains  an  appeal  in  that,  the  Holy  

Father,  the  Pope,  head of  the  Roman Catholics  does  

exhort them not to keep away from the mainstream.   It  

applauds the services of the appellant in standing for the  

community  when it  is  under  attack  and  had  fought  in  

Parliament  for  the  benefit  of  the  community,  whose  

interest  demanded the  Catholics/Christians  to  vote  for  

him.  The notice does contain a message or an appeal  

on religious grounds to the Christians/Catholics to vote  

for  him  for  the  benefit  of  the  larger  interests  of  the  

Christians, particularly the Roman Catholics.

18. Indeed, the community members all over understood it  

as such.  This is borne out from the testimony of Benny  

George      (PW-2),  K.J. Reji  (PW-6),  Chako (PW-7),  

Benny  Avoly  (PW-8),  Jose  (PW-9),  etc.  etc.,  who  all  

deposed about the party workers of IFDP, to which party  

the  appellant  belonged  to,  giving  notice  (Ext.P1)  and  

calendar (Ext.P2) to each one of them as a statement by  

John K., a known leader of Catholics. The consent of the  

appellant for distribution of the said exhibits among the  

Catholic  voters,  though not  directly  proved was rightly  

21

inferred  from  the  fact  that  his  agent  James,  who  got  

these printed, paid charges and circulated these.  The  

circulation of the said exhibits amounted to violation of  

Section 123(3) of the Act.  The aforesaid witnesses also  

stated  having  gone  through  the  notice  (Ext.P1),  

discussed about it with their family members or friends  

and to have come to the conclusion that the appellant  

being  a  leader  of  Catholics  and  a  candidate  in  the  

Parliamentary Elections 2004, having always stood with  

the community, deserved to be supported and voted for.  

Nothing  significant  was  brought  out  in  their  cross  

examination  to  discredit  them.   Considering  it  all,  the  

High  Court  was  satisfied  that  notice  (Ext.P1)  and  

calendar  (Ext.P2)  were  distributed  by  workers  of  the  

appellant.   Applying  the  test  of  common  man’s  

understanding and the effect of the said documents on  

the mind and feelings of an ordinary average voter, we  

agree with the High Court that the said notice/statement  

(Ext.P1) did constitute an appeal to the members of the  

Christian community, particularly, the Catholics to seek  

their  votes  for  the  appellant,  being a  Catholic,  on  the  

ground  of  religion,  caste  and  community.   Calendar  

22

(Ext.P2), as indicated above, does not per se fall within  

the mischief of Section 123(3) of the Act but taken along  

with Exhibit P1 does serve as a statement to strengthen  

the appeal in notice (Ext.P1).

19. To bring the aforesaid appeal within the ambit of Section  

123(3) of the Act, it required proof that as per specific  

pleas  in  paras  11  and  14  of  the  Election  Petition,  

documents  Ext.P1  and  Ext.P2  were  got  printed  and  

published at Akshara Press by the appellant through his  

election agent, James and distributed by the agents or  

workers/campaigners as alleged. We have examined the  

evidence produced in the case. The election petitioner–

Respondent  No.1  claimed  to  have  no  personal  

knowledge about it and stated that the information about  

it was supplied to him by the jeep driver, Ajimon (PW-4)  

and  K.K.  Parmeswaran  (PW-19)  who deposed having  

supplied the said information  to  the election petitioner  

around the middle of May, 2004, whereafter the election  

petition was filed on 26th June, 2004.

20. Three  witnesses  were  produced  by  the  election  

petitioner in support of his pleas (regarding printing and  

23

distribution of Exts.P1 & P2) in paras 8, 9, 11 and 14 of  

the petition. Ajimon (PW-4) driver of the jeep KEF 7953  

made a detailed statement about his reporting with jeep  

to appellant’s election agent James on 24th April, 2004;  

the  latter  taking  the  jeep  to  Akshara  Press;  the  

appellant’s  arriving  there  and  making  cash  payment  

through  his  agent  James  to  the  Press  owner;  taking  

delivery of bundles of printed materials, each bundle with  

a copy of the printed material  Exts.P1 or P2 on it;  50  

bundles of Exts.P1 and P2 being loaded in the jeep and  

James taking the jeep driven by PW-4 to the election  

office at eight named places and the stated number of  

bundles being unloaded at appellant’s election offices at  

each place.  He also stated his reporting to James again  

on 25th April, 2004, loading from the Press the remaining  

50 bundles of the printed material in the jeep and going  

to  three  named  places  with  and  under  instruction  of  

James and unloading the same at each place.  When  

cross-examined, he stated that the said jeep was sold  

away by its owner (RW-9) – Thomas, some two months  

after  the election.   Further  cross-examined,  he denied  

that he was an IFDP worker or that the day before, he  

24

was in the CPI(M) office, and was pressurized by them  

to make a statement as above.

21. PW-5,  K.K.  Balachandran  (claiming  to  have  been  

temporarily employed for a month at the Akshara Press  

to meet  the election rush of  work) deposed about  the  

appellant/his agent James visiting the Press on 8th April,  

2004 and placing a printing order for notice (Ext.P1) and  

calendar (Ext.P2); these being printed there and packed  

in bundles; his being associated in packing of the printed  

material  at  the Press and of  James (RW-11)  with  the  

jeep driven by Ajimon (PW-4), taking delivery; appellant  

reaching  there;  making  payment  to  the  Press  owner  

through  his  agent  James;  his  (witnesses)  assisting  in  

loading of 50 bundles in the jeep and James leaving the  

Press in the said jeep.  Cross-examined, he gave details  

of the premises, the machinery installed therein, and the  

other  occupiers  of  the  building.   He  denied  the  

suggestion that he had no connection with the Press or  

that he came to the court to make a false statement.

22. PW-6 (K.J.Reji) deposed about his attending an election  

meeting at 5.30 p.m. on 24th April, 2004 at Vazhakulam;  

25

participation of the appellant and John K in the meeting;  

the  latter  making  a  speech;  the  jeep  coming  to  the  

election  office  of  the  appellant,  unloading  of  some  

bundles and on request of Anil Johny (his friend) to have  

taken  bundles  to  the  election  office  of  the  first  

respondent.  He also stated of being given a calendar  

(Ext.P2)  and  notice  (Ext.P1)  from  these  bundles;  his  

going back home with these; reading notice (Ext.P1) and  

seeing  the  calendar  (Ext.P2).   Cross-examined,  he  

denied that he was an active worker of the IFDP.  He  

was not questioned on his statement about the election  

meeting  on 24th April,  2004 attended by the appellant  

and being addressed by John K.  

23. To counter the evidence of PW-4, PW-5 and PW-6, the  

appellant produced Thomas (RW-9), the owner of jeep,  

Jose Kutty (RW-6), owner of Akshara Press and James  

(RW-11),  who  respectively  sought  to  counter  the  

versions of the respondent No.1’s witnesses, PWs-4, 5,  

and 6  aforesaid.    RW-9,  Thomas,  owner of  the jeep  

stated that he never gave the jeep to PW-4 or instructed  

him to report to James on 24th April, 2009.  He admitted  

that Ajimon was employed by him but to drive his bus.  

26

According to him, the jeep was purchased just for sale  

and was not run by him.  According to him, the jeep was  

sold away by him within eight days of its purchase.  If  

really  so,  there  was  no  occasion  for  him  to  get  it  

transferred  in  his  name,  which  he  did.  RW-6  (Jose  

Kutty), owner of the Press denied having ever employed  

PW-5  or  the  printing  of  notice  (Ext.P1)  and  calendar  

(Ext.P2)  at  his  Press.   In  cross-  examination,  he  

admitted that the appellant and his election agents were  

known  to  him  for  a  long  time;  that  he  did  undertake  

election printing work for them and also that printing any  

material  without  inscribing  the  name  of  the  Press  

thereon  (as  on  notice,  Ex.P1)  is  violative  of  the  

provisions  of  Section  137A  of  the  Act,  inviting  

prosecution/action against  him.   The High Court  in  its  

judgment  under  appeal  for  reasons  stated  discredited  

the testimony of the owner of the jeep (RW-9) and owner  

of the printing Press (RW-6) and believed the testimony  

of  PW-4,  PW-5  and  PW-6.   While  dealing  with  the  

statement of RW-9, the High Court has recorded that his  

answers to the questions were generally evasive and his  

evidence  untrustworthy.   Nothing  was  pointed  out  

27

against these observations.  His testimony carries little  

conviction as against that of PW-4 (Ajimon).

24. RW-11, James, the chief election agent of the appellant,  

in his proof affidavit, denied the allegation made by PW-

4, PW-5 and   PW-6 and the part allegedly attributed to  

him by PW-5 about  the  placing  of  a  printing  order  of  

Exts.P1 and P2 with Akshara Press on 8th April,  2004  

and taking delivery of the printed material on 24th April,  

2004 (vouched by PW-4 and PW-5) at 5.00 p.m. or so,  

or about the election meeting on 24th April, 2004 at 5.30  

p.m. at  Vazhakullam;  stated by PW-6 as having been  

attended by him and the appellant or being addressed  

by John K,  purported  author  of  Ext.P1.   According  to  

him, there was no such meeting at  5.30 p.m. or  6.00  

p.m.,  as on that date and time;  he was in the District  

Collector’s office where scrutiny of nomination papers of  

the appellant was held.  In cross-examination, he stated  

that his attendance in proceedings for scrutiny of papers  

is a matter reflected in court records.  No evidence about  

it  was  produced  in  support.   Being  an  advocate  of  

standing, associated with law office of the appellant for  

26 years, he well understood its importance, for if really  

28

so, production of such record could have rendered the  

entire  case  of  the  election  petitioner  about  RW-11  

getting  Exts.P1  and  P2  printed;  taking  delivery  of  the  

same from Akshara  Press;  its  distribution  that  day  as  

highly doubtful, nay, a nullity and not doing so provided  

sanctity to the election petitioner’s case and credibility to  

the testimony of PW-4 to PW-6.  We accordingly see no  

ground to differ with the findings recorded by the High  

Court on issue No.1.

25. The aforesaid findings on issue No.1 were sought to be  

assailed  by  learned  senior  counsel  appearing  for  the  

appellant  on  points  No.(i)  to  (v)  digested  in  para  8  

(supra).   These are not  tenable.   Pithily  stated,  these  

were: (i) it was neither the case of the election petitioner  

nor any specific plea that the appellant had appealed to  

the electors to vote for him on the ground of community  

or  religion  by  distribution  of  Exts.P1  and  P2;  (ii)  the  

aforesaid  documents  were  not  proved  by  prescribed  

procedure and the basis for forming opinion thereon was  

missing; (iii) notice (Ext.P1) purports to be authored by  

John K, who was not examined by the election petitioner  

despite having cited him as a witness and as such an  

29

inference  drawn by the  learned  Judge  was  based  on  

unproved  documents;  (iv)  no  witness  produced  had  

stated that he had acknowledged to him that John K had  

prepared  or  signed  the  said  exhibits  and  (v)  the  

inference drawn is based on unproved documents.

26. As already noted above (Para  19 supra),  the  election  

petitioner’s case in paras 8, 9, 11 and 14 of the petition  

laid  in  specific  terms,  concisely  put,  does  show  that  

documents  Exts.P1  and  P2,  purportedly  authored  by  

John K, were got  printed by the appellant  through his  

admitted election agent – James at Akshara Press; the  

appellant paid charges therefor through his said agent to  

the  owner  of  the  Press  and  delivery  of  the  printed  

material was taken from the Press and the same were  

circulated  amongst  Catholic/Christian  voters  by  

appellant’s  agents and campaigners to his knowledge.  

As noted in para 17 (supra), these did contain an appeal  

to  Catholics/  Christians  to  vote  for  the  appellant  on  

religious grounds.  These documents, produced by the  

election  petitioner,  were  also  proved by him as PW-1  

and exhibited P1 and P2 with the consent of the parties.  

PW-5 also stated that the notice (Ext.P1) and calendar  

30

(Ext.P2)  were  given  by James  (RW-11),  agent  of  the  

appellant for printing at Akshara printers where he was  

then working.  No objection on pleas of “inadmissibility”  

or  “mode  of  proof”  was  raised  at  the  time  of  their  

exhibition or any time later during trial, when most of the  

witnesses, produced by the parties were confronted with  

these,  as  duly  exhibited,  bearing  stamp  marking  with  

particulars,  prescribed  under  Order  XIII  Rule  4  of  the  

Code of Civil Procedure, 1908 and duly signed as such.  

In our opinion, it is too late in the day now to object to  

their exhibition on the ground of “prescribed procedure”  

i.e. mode of proof.  Moreover, we also find that it was  

nobody’s case that the said documents were got printed  

by  John  K  or  distributed  amongst  voters  by  him.  

Absence of proof of acknowledgment by him because of  

non  production  of  John  K  as  a  witness,  in  the  

circumstances,  in  our  view,  is  inconsequential.  

Admittedly,  John  K  was  a  well  known  leader  of  high  

stature, recognized as such by Christian/Catholic voters  

including  those  mentioned  in  Para  17  (supra)  and,  

therefore,  there is  no question of  drawing an adverse  

inference  against  the  election  petitioner  for  not  

31

examining him,  as strenuously urged on behalf  of  the  

appellant, particularly when the printing and circulation of  

offending material (Exts.P1 and P2) has been proved by  

the election petitioner beyond reasonable doubt.  In that  

view of the matter, the dictum of this Court in Hem Raj  

(supra) and other cases referred to in para 8 (supra) is  

not  applicable.   In  these  cases,  the  election  petitions  

were dismissed because of inadequacy of the evidence  

produced by the election petitioners in order to discharge  

the onus to prove the corrupt practice alleged and not  

because  of  non-examination  of  a  named  witness.  

Moreover, the printing and circulation of Exts.P1 and P2  

having been proved,  the question as to who authored  

Ext.P1  is  immaterial.  The  contentions  raised  by  the  

learned counsel on the point are thus, unsustainable.

27. As regards the decision of this Court in Ch. Razik Ram  

(supra) and other decisions on the issue, relied upon on  

behalf of the appellant, there is no quarrel with the legal  

position  that  the  charge  of  corrupt  practice  is  to  be  

equated with criminal charge and the proof required in  

support thereof would be as in a criminal charge and not  

preponderance of  probabilities,  as in a civil  action but  

32

proof “beyond reasonable doubt”.  It is well settled that if  

after balancing the evidence adduced there still remains  

little doubt in proving the charge, its benefit must go to  

the  returned  candidate.   However,  it  is  equally  well  

settled  that  while  insisting  upon the  standard  of  proof  

beyond a reasonable doubt, the Courts are not required  

to  extend  or  stretch  the  doctrine  to  such  an  extreme  

extent as to make it well nigh impossible to prove any  

allegation of corrupt practice.  Such an approach would  

defeat  and frustrate  the  very  laudable  and sacrosanct  

object  of  the Act  in  maintaining  purity  of  the  electoral  

process.   (See:  S.  Harcharan  Singh  Vs.  S.  Sajjan  

Singh & Ors.20).   As noted above, in the present case,  

the  High  Court  has  recorded  a  clear  finding  that  the  

election  petitioner  has  produced  adequate  evidence  

which goes to prove the charges against the appellant  

under  Section  123(3)  of  the  Act  beyond  reasonable  

doubt.  Thus, the ratio of the decision relied upon by the  

appellant is of no avail to him.  

28. This  Court  in  Gajanan  Krishnaji  Bapat  (supra)  has  

observed that although being the Court of First appeal,  

20 (1985) 1 SCC 370

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this Court has no inhibition in reversing such a finding, of  

fact or law, which has been recorded on a misreading or  

wrong  appreciation  of  the  evidence  or  the  law  but  

ordinarily the appellate court attaches great value to the  

opinion formed by the Trial  Judge,  more so when the  

Trial  Judge  happens  to  be  a  High  Court  Judge;  had  

recorded the evidence and had the benefit of watching  

the demeanour of witnesses in forming first hand opinion  

of them in the process of evaluation of evidence. This  

Court  should  not  interfere  with  the  findings  of  fact  

recorded by the Trial Court unless there are compelling  

reasons to do so.    

29. Having examined the material on record in the light of  

the afore-noted settled principles, we are convinced that  

the High Court has not committed any grave error in the  

appreciation  and  assessment  of  the  evidence  on  the  

point.   On consideration of  the evidence in its  totality,  

adduced by the election petitioner and the appellant, we  

agree with the High Court that the election petitioner has  

adduced  cogent,  satisfactory  and  reliable  evidence  to  

establish the charge against the appellant under Section  

123(3) of the Act.

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30. For  the  view  we  have  taken  above,  we  deem  it  

unnecessary  to  examine  the  second  issue,  viz.  the  

corrupt  practice  in  hiring  or  procuring  vehicles  free  of  

charges  to  the  electors  to  go  to  and  from the  polling  

booths falling under Section 123(5) of the Act, on which  

ground  also  the  election  of  the  appellant  has  been  

invalidated by the High Court.

31. For all  the foregoing reasons, we see no merit  in this  

appeal.   The same is dismissed accordingly but in the  

circumstances of the case, we make no order as to costs  

in this appeal.

CIVIL APPEAL NO.5777 OF 2006

32. This  appeal  under  Section  116A of  the  Act  has been  

preferred by the 2nd respondent in C.A. No.5033 of 2006,  

who  had  unsuccessfully  contested  the  election  as  a  

candidate of the Kerala Congress (M).  As noted above,  

the  appellant  in  the  said  appeal,  who  was  declared  

elected had got  2,56,411 votes;  the election petitioner  

got 2,55,882 votes and the appellant in this appeal had  

secured  2,09,880  votes.   The  short  grievance  of  the  

appellant is that election of P.C. Thomas having been  

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set aside, instead of declaring the election petitioner as  

elected;  the  High  Court  should  have  declared  the  

appellant  as  elected  from  12  H.P.  Muvattupuzha  

Parliamentary Constituency.

33. In our opinion, fresh election to the said parliamentary  

constituency having already taken place in this year, this  

appeal is rendered infructuous and has to be dismissed  

on that ground. It is ordered accordingly.  

………………………………….J.             (D.K. JAIN)

 ………………………………..…J.                               (R.M. LODHA)

NEW DELHI;  SEPTEMBER 4, 2009.

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