T.S. John vs Joseph M. Puthusery and Others

M.R. Hariharan Nair, J.—The prayer in this petition is to set aside the election of the first Respondent (Joseph M. Puthussery) from No. 106 Kallooppara Assembly Constituency in the election held on 10th May 2001. The Petitioner -- T.S. John belongs to the Kerala Congress which was one of the constituents of the Left Democratic Front (L.D.F.), whereas the 1st Respondent who belongs to the Kerala Congress (Mani Group) represented United Democratic Front (U.D.F.). The 1st Respondent was declared elected with a margin of 11225 votes over the Petitioner.

The election is sought to be set aside on the ground of corrupt practice'' u/s 123(4) of the Representation of the People Act, 1951 (for short ''the ROP Act'') and the declaration regarding invalidation is sought u/s 100(1)(d) of the ROP Act. The substance of the allegation is that on the eve of the election i.e., on 8th May 2001 and 9th May 2001 the 1st Respondent, in accordance with the pre-hatched plan, widely distributed copies of highly defamatory pamphlets, a specimen of which is produced as Ext. X-4 through out the Constituency. It is alleged that besides distribution of the same through the workers of the 1st Respondent, there was also direct distribution at certain places by the Petitioner himself and by his election agent K. Jayavarma at some other places. Following issues were raised in the case:

Whether on the two days immediately preceding the poll, copies of Annexure I pamphlet were distributed by the 1st Respondent and his election agent by name K. Jayavarma as alleged?

Whether there was distribution of Annexure I pamphlet on 8th May 2001 by the workers of the 1st Respondent as alleged in para 13 of the E.P.?

Whether the distribution of pamphlets by the workers of the 1st Respondent was with the consent of the 1st Respondent or his election agent?

Whether distribution of pamphlets made by the Petitioner, his election agent and by his workers was reasonably calculated to prejudice the prospects of the Petitioner''s election?

Whether the 1st Respondent has committed corrupt practice as defined in Section 123(4) of the R.P. Act, 1951 by distribution of Annexure 1 pamphlet directly and through his election agent and workers?

Whether the election of the 1st Respondent is liable to be declared void u/s 100(1)(b) of the R.P. Act?

Whether the allegation in Annexure I relate to the political conduct of the Petitioner?

Whether the E.P. as filed is maintainable?

Reliefs and Costs?

The collection of evidence in the case is complete by now. Elaborate evidence was adduced by both sides. The evidence available for consideration consists of the depositions of P.Ws.1 to 90, D.Ws.1 to 53 and Exts.P-1, to P-17, X-1 to X-25 series and R-1 to R-20. There is difficulty for the disposal of the case on a consideration of the aforesaid evidence in view of the mandate in Sections 98 and 99 of the ROP Act. Even though Section 98 of the ROP Act provides that at the conclusion of the trial the Court could declare the election of the returned candidate to be void or declare that the Petitioner or any other candidate has been duly elected, Section 99 operates as a proviso thereto. It is useful to quote Section 99 here:

Other orders to be made by the High Court. -- (1) At the time of making an order u/s 98 the High Court shall also make an order.

(a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording

(i) finding whether any corrupt practice has or has not been proved to have been committed at election, and the nature of that corrupt practice; and

(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

(b) fixing the total amount of cost payable and specifying the persons by and to whom costs shall be paid:

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

(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.

The apparent conflict between Sections 98 and 99 of the ROP Act came up for judicial consideration in very many cases. It is not necessary to discuss in detail the dicta in all these cases because the latest available decision of a three Judge Bench of the Apex Court viz., that in Makhan Lal Bangal v. Manas Bhunia and Ors. (2001) 2 S.C.C. 652 discusses all those precedents and finally lays down the following propositions in paras 9 to 19 of the Judgment:

(1) The principle behind the requirement of notice in the proviso to Section 99(1) is to extend an opportunity which a party to the petition had at the trial to defend against the allegation of corrupt practice to the other persons who also would be affected by the decision in case they are named as persons responsible for commission of corrupt practice.

(2) There is nothing in Section 98 which permits the High Court to decide the Election Petition piecemeal and to declare the election of a returned candidate to be void at an intermediate stage of the trial when any part of the trial remains to be concluded.

(3) The order contemplated in Section 99(1) has to be made only at the conclusion of the trial of an Election Petition. That indicates that the requirement of Section 99 is to be completed during the trial of the Election Petition and the final order u/s 99 has to be made in the decision of the High Court rendered u/s 98 at the conclusion of the trial of the Election Petition including the evidence collected after issuance of notice to the persons to be named.

(4) Even in a case where adequate evidence with regard to the commission of corrupt practice is available as against the returned candidate himself, if the issues in the case relate to a commission of corrupt practice by his election agent and by others also, the court cannot make an order u/s 98 recording the finding of proof of corrupt practice against the returned candidate alone and on that basis declare the election of the returned candidate to be void and then proceed to comply with the requirement of Section 99 in the manner stated in Section 99 with a view to decide, at a later stage, whether such other persons are also guilty of corrupt practice for the purpose of naming them u/s 99 of the ROP Act. The Court has no option in the matter to decide whether to proceed u/s 99 against the other persons along with returned candidate in as much as the requirement of Section 99 is mandatory and the finding to be recorded by the High Court requires it to name all persons proved at the trial to have been guilty of the corrupt practice. The expression ''the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice'' in Sub-clause (ii) of Clause (a) of Sub-section (1) of Section 99 clearly provides for such proof being required ''at the trial'' which means ''the trial of an Election Petition'' mentioned in Section 98 at the conclusion of which alone the order contemplated u/s 98 can be made.

(5) Absence of notice u/s 99 of the ROP Act would vitiate the final order made u/s 98 by the High Court declaring the election to be void.

In view of the above position of law, I do not propose to discuss the evidence adduced in the matter of corrupt practice on the part of the 1st Respondent directly in this order. Nor do I propose to venture an elaborate discussion of the evidence and counter evidence adduced with regard to the allegations against Advocate Jayavarma, the election agent of the 1st Respondent, as also against the various other workers of the 1st Respondent in this order because that might stand against the appropriate evaluation of evidence based on the further evidence that might be collected in this case, in case the persons who are proposed to be named in the case offer sufficient evidence in the course of the further trial of the case justifying a conclusion that there was no corrupt practice as alleged by the Petitioner and as spoken to by the Petitioners'' witnesses. The findings recorded by this Court, on the evidence available as it is now, might stand in the way of such prospective conclusions. Suffice it to say that with regard to the distribution of Ext.X-4 by the election agent of the 1st Respondent which is pleaded in para-15:1:i, details are spoken to by P.Ws.12, 13, 14 and 17; the incident of such direct participation in the distribution of copies of the same pamphlets alleged to have taken place at 2.30 p.m. on 8th May 2001 as pleaded in para 15:1:ii are spoken to by P.Ws.2 and 33 to 36; the incident said to have taken place at 2 p.m. on 9th May 2001 near the Chinju Hotel where a Dharna was held, where also the said election agent allegedly exhorted the persons present there to read Ext.X-4 and directly distributed the same to persons who assembled there, is spoken to by P.Ws.29, 37, 39, 41 and 42. It was found in categoric terms in para 5 of the Judgment in Patangrao Kadam Vs. Prithviraj Sayajirao Yadav Deshmukh and Others, that if the High Court comes to the conclusion, after considering the evidence on record that the election agent is also to be named as having committed corrupt practice, notice has to be given to him under the proviso to Section 99(1)(b) notwithstanding the contention that the election agent is only an ''alter ego'' of the candidate. In view of this legal position, necessarily notice under the proviso to Section 99(1)(b) of the ROP Act has to be issued to Advocate Jayavarma, the election agent of the 1st Respondent, before final disposal of the case.

The details of distribution of copies of Ext.X-4 at Maramkolly by the workers of the U.D.F. are narrated in para-13:3:1 of the Electron Petition and the details of the persons are also enumerated therein. The full particulars of the distribution as above are available in the sub-clauses of para-17 of the Election Petition. P.Ws.15, 21, 43 to 48, 51, 53 and 54 have given evidence with regard to the distribution as mentioned in paras-17:1 to 17:5. P.Ws.34, 49, 50, 52 and 55 have deposed about the distribution pleaded in Paras-17:6 to 17:9. Similar distribution as pleaded in paras-17:10, 17:11 and 17:12 is spoken to by P.Ws.56 to 58, 60 and 61. Distribution as pleaded in para-17:14 is spoken to by P.Ws.63 and 64. P.Ws.37, 65 to 67, 73, 74 and 80 have spoken about the distribution as pleaded in paras-17:15, 17:16, 17:20 and 17:27. Distribution as pleaded in paras-17:18 and 17:19 are spoken by P.Ws.68 to 70, 23 and 83. P.Ws.59, 62 and 72 spoke of the distribution as pleaded in paras-17:3 and 17:21. P.Ws.5, 75, 76, 78 and 79 spoke of the distribution as pleaded in paras-17:22 and 17:25 and lastly P.Ws.77, 81 and 82 spoke of me distribution as pleaded in paras-17:23, 17:24 and 17:26. P.W.43 who is a retired A.E.O. deposed that a copy of Ext.X-4 was handed over to him by U.D.F. workers by name Gangadhara Kurup and Radhakrishna Kurup. P.W.46 who is a retired Sq. Leader from the Indian Air Force also spoke of the distribution of Ext.X-4 to him by the aforesaid two persons. It is necessary that the persons responsible for the alleged distribution of Ext.X-4 as mentioned above are also issued notice as required under the proviso to Section 99(1)(b) of the ROP Act. The Petitioner shall file a list of aforesaid persons with their full and correct addresses and take steps for issuance of notice through speed post to them requiring their appearance at 10.15 a.m. on 19th April 2003 to show cause why they should not be named for commission of ''corrupt practice'' under the ROP Act.