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T.V.Balan vs K.M.Shaji on 20 December, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE P.D.RAJAN

THURSDAY,THE 20TH DAY OF DECEMBER 2018/29TH AGRAHAYANA, 1940

EL.PET.NO.12 OF 2016

PETITIONER:

T.V.BALAN, AGED 70 YEARS,
S/O.CHATHU,3/470(0/123),
THALAKKALEVEETTIL,CHIRAKKAL.P.O.,
KANNUR DISTRICT-670 011.

BY ADVS. SRI.JOHN K.GEORGE
SMT.M.B.SHYNI
SMT.NIMA JACOB
SRI.ANISH PAUL
SRI.C.V.SHAJU
SRI.E.C.BINEESH
SRI.K.S.ARUN KUMAR
SRI.K.V.SURESH KUMAR
SRI.P.K.VARGHESE
SRI.P.P.BIJU
SRI.P.T.MANOJ
SRI.T.M.SUDHEER

RESPONDENT/S:

K.M.SHAJI, S/O.BEERANKUTTY,
H.NO.5,ALAINS GREENSVILLA,
OTTATHENG, MANAL ALAVIL,
KANNUR DISTRICT.670 008.

BY ADVS. SRI.S.SREEKUMAR (SR.)
SMT.M.RAMLATH
SRI.K.I.SAGEER IBRAHIM
SRI.MURALI PURUSHOTHAMAN, S.C.,
ELECTION COMMISSION OF INDIA

THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 20.12.2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
EL.PET.NO. 12 OF 2016 2

JUDGMENT

This election petition is filed under Section 123(2)(a)(ii),

123(3) and 123(4) and 127(A) of the Representation of People

Act 1951 by one of the voters of (10) Azheekode Assembly

Constituency against the alleged corrupt practice committed by

the respondent in the election held on 16.05.2016 to the Kerala

Legislative Assembly and to declare the election of the

respondent to be void under Sections 100(1)(b) and 100(1)(d) of

the Representation of People Act 1951 (hereinafter referred to as

‘R.P. Act 1951’). Petitioner is the member of Communist Party of

India Marxist (for short CPIM), Kannur area committee. The

respondent was the candidate of Indian Union Muslim League

(IUML), one of the coalition parties of the United Democratic

Front (for short UDF). M.V.Nikesh Kumar was the candidate of

Left Democratic Front (for short LDF) who got 60,795 votes and

the respondent got 63,082 votes, who is declared as the returned

candidate from the 10 Azheekode Assembly Constituency.

2. The challenge in this petition is that the respondent, his

election agent, and his other agents, the organisers and workers

with the consent of the respondent or his election agent
EL.PET.NO. 12 OF 2016 3

distributed and circulated Annexure I notice among the muslim

voters of the Constituency. They appealed to the voters of the

muslim community to vote for the respondent on the ground of his

religion and not to vote for M.V.Nikesh Kumar who belongs to

Hindu religion. An appeal by the respondent to the voters

belonging to the muslim community to refrain from voting for

Nikesh Kumar on the ground that he is not a member of the

muslim community is a corrupt practice. Almost 30% of the voters

of the Azheekode Assembly Constituency belong to muslim

community and the distribution of Annexure I had materially

affected the result of the election of the respondent. In Annexure

I, a passage from Holy Quran is quoted which conveyed a

message to the members of the muslim community that they will

be rendered to an object of divine displeasure or spiritual

censures, if they vote for M.V.Nikesh Kumar. The photograph of

the respondent and a request to elect him with his symbol ‘ladder’

was published in Annexure I. The respondent, his agents and

other persons with the consent of the respondent and his election

agent had printed and published Annexure II pamphlet in the

Constituency. The contents of Annexure II are in relation to the

personal character and conduct of Sri M.V.Nikesh Kumar, which

contains his photograph with Saritha, who is an accused in Solar
EL.PET.NO. 12 OF 2016 4

Scam case. It is stated that Nikesh Kumar is joining with Saritha

and having wayward relationship with her and on knowing this, his

wife is taking steps for filing a divorce case in the Family Court.

The respondent published Annexure II notice believing it to be

false and not believing it to be true. At the bottom of the

pamphlet, it bears, ‘printing and publishing President, Indian

Overseas Congress, Kannur District Committee’ to make it appear

that it was not printed by the respondent or his agents. On

15.05.2016, respondent’s workers were engaged in house to

house campaign with Annexure I and II and distributed it among

the muslim voters at Thangal Vayal. Smt N.P.Manorama, the

President of Valapattanam Grama Panchayat participated in the

public meetings and in house to house campaign along with the

respondent within the area of Valapattanam Grama Panchayat. On

11.05.2016 at 6.30 am, she conducted house to house campaign

with Abdul Rasheed, V.P.Noushad and other workers of Indian

National Congress and Indian Union Muslim League (for short

IUML) and distributed Annexure I and II pamphlets in the

presence of the respondent at Valapattanam area. They

distributed Annexure I notice secretly to the members of muslim

community. On 11.05.2016 and 12.05.2016 Smt N.P.Manorama,

Abdul Rasheed and V.P.Noushad conducted election campaign with
EL.PET.NO. 12 OF 2016 5

Annexure I and II and Abdul Rasheed and V.P.Noushad propogated

the matters stated in Annexure I secretly in selected muslim

houses. On 13.05.2016 C.V.Santhosh, Sujith, Pradeepan and Prem

Prakash distributed the above pamphlets at Chettipeedika in their

house to house campaign. On 15.05.2016, Mayyil police seized the

above pamphlets from Narayanan, Rajeevan, Padmanabhan,

Majeed and Noufal at Talkies Road, Kannadiparamba. The

respondent suppressed material facts in his affidavit filed before

the Returning Officer. Hence the respondent committed corrupt

practice under Section 123(2)(a)(ii), 123(3) and 123(4) and

127(A) of the R P 1951 and his election is liable to be set aside

under Sections 100(1)(b) and 100(1)(d)(iv) of the R P Act 1951.

3. In the written statement respondent contended that he

and his election agent and other persons or workers never

committed any corrupt practice as alleged by the petitioner. The

averment that the above notices were printed, published and

circulated by the respondent, his election agent, and other agents

with the consent, direction and connivance of the respondent and

his election agent, is false. The respondent happened to see

Annexure I and II for the first time when he received the election

petition and there is no violation of Section 127(A) of the R P Act

1951. The respondent, his election agent and others never
EL.PET.NO. 12 OF 2016 6

appealed to the voters of the muslim community not to vote for a

candidate who is not a believer in islamic faith. He never conveyed

any message to the muslim community that they will be rendered

to an object of divine displeasure or spiritual censures, if they vote

for M.V.Nikesh Kumar. It is shown that annexure I and II

pamphlets were printed and published in the name of ‘President,

Indian Overseas Congress, Kannur District Committee’. The

muslim voters in the Azheekode Assembly Constituency is less

than 20% of the total population. Respondent or his agent or

others with his consent or with the consent of his election agent

never printed, published or distributed Annexure II as alleged.

Annexure I and II were printed and published by petitioner and

M.V.Nikesh Kumar only to make out a cause of action for filing an

election petition. M.V.Nikesh Kumar is the best person to speak

about the contents of Annexure II since it relates to his personal

life and his assets and liabilities. On 14.05.2016, a group of

workers of the respondent were engaged in the house to house

campaign and they distributed copies of Annexure I among the

muslim voters at Thangal Vayal is false. The statement that

Smt.N.P.Manorama played an active role in the election campaign

is false. As a member of coalition party, she might have

participated in the election campaign for the respondent. On
EL.PET.NO. 12 OF 2016 7

11.05.2016 12.05.2016 at 6.30 am, she distributed Annexure I

and II pamphlets with other workers is absolutely false. The

allegation that several bundles of pamphlets kept in her house

were seized by K.V.Shaju is false. On 13.05.2016, C. V.Santhosh,

Sujith and Pradeepan distributed pamphlets is false. Rajeevan,

Narayanan and others conducted house to house campaign and

distributed Annexure I and II and other materials and they were

arrested by Mayyil police with the above pamphlets are absolutely

false. The petition does not disclose material facts to constitute

corrupt practice under Section 123 of R P Act 1951. Hence he

prays to dismiss the petition for want of cause of action with cost

and compensatory cost.

4. Issues/points raised for consideration.

1. Whether this petition is maintainable ?

2. Whether the returned candidate or his agent or any person

with the consent of the candidate or his election agent has made

any undue influence either direct or indirect with the free exercise

of any electoral right, thereby committed any corrupt practice

under Sec.123(2)(a)(ii) of the Representation of People Act,

1951 ?

3. Whether the returned candidate or his agent or by any other

person with the consent of the candidate or his election agent
EL.PET.NO. 12 OF 2016 8

made an appeal to vote or refrain from voting on the ground of his

religion, race, caste, community or language under Section 123(3)

of the RP Act, 1951 ?

4. Whether the returned candidate or his agent or by any person

with the consent of the candidate or his election agent has made

any publication or any statement of facts which is false as stated

under Sec.123(4) of the Representation of the People Act, 1951.

5. If any of the corrupt practice has been proved against the

returned candidate, whether the election of the returned candidate

has to be declared void ?

6. Reliefs and Cost.

5. Petitioner’s evidence consist of oral testimony of PW1 to

PW14 and documentary evidence of Exts.P1, P1(a), P2, P2(a), P3,

P4, P5, P6, P6(a) and respondent’s evidence consist of oral

testimony of RW1, RW2, RW3, RW4, RW5, RW6, RW7. Third party

evidence consist of documentary evidence of Ext.X1, X1(a), X1(b),

X2, X2(a), X2(b), X2(c), X3, X4, X5, X6, X7, X8, X9, X10, X11.

6. Point Nos.1 to 4: Maintainable. The first ground advanced

by the petitioner is that respondent, his agent and other persons

used undue influence among voters with the free exercise of their

electoral right. The second ground raised by the petitioner is that

respondent and his agent and others with the consent of the
EL.PET.NO. 12 OF 2016 9

candidate or his election agent made an appeal among muslim

voters to vote for him on the basis of his religion. An appeal by a

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

a candidate or his election agent to vote or refrain from voting for

any person on the ground of his religion, race, caste, community

will prejudicially affect the election of any candidate. The third

ground alleged by the petitioner is that the respondent and his

agent or by any other person with the consent of the candidate or

his election agent published certain statement of facts which is

false and he either believes to be false or does not believe to be

true in relation to the personal character or conduct of the

petitioner. That statement was made reasonably calculated to

prejudice the prospects of petitioner’s election. Both parties

examined several witnesses, many of these witnesses are partisan

or interested, therefore their evidence must be viewed with

circumspection. There is danger in believing the oral evidence, its

face value without backing of sure circumstances or documents.

Therefore court must look into each circumstance to prove the

alleged corrupt practices.

Petitioner’s evidence

7. To understand and appreciate the controversy, it is

imperative to scrutinize the oral and documentary evidence in this
EL.PET.NO. 12 OF 2016 10

case, for that I begin with petitioner’s evidence. The petitioner

was examined as PW1, who filed proof affidavit to prove the

allegation. PW1 deposed that he is a voter of booth No.69, seriel

No.654 of Chirakkal Panchayat in Azheekode Assembly

constituency. He is the former Principal of K.M.M.G Womens

College, Kannur and the member of CPIM, Kannur Area

Committee. The respondent was the candidate of IUML, a

coalition party of United Democratic Front (UDF) and his election

symbol was ‘ladder’. M.V.Nikesh Kumar was the candidate of CPIM

who secured 60795 votes, the respondent secured 63,082 votes

and he was declared as elected on 19.05.2016 with a margin of

2287 votes. PW1 stated that the respondent or his election agent

or his other agents and workers printed, published and circulated

Exts.P1 and P2 notices. In the bottom of the notice, it was shown,

printing and publishing, President, Indian Overseas Congress,

Kannur Jilla Committee to make it appear that it was not printed

and published by the respondent, or his election agent or his other

agents. PW1 categorically stated that this amounts to violation of

Section 127(A) of R P Act, 1951. The caption in Ext.P1 was written

in arabic language and the remaining portion was printed in

malayalam. PW1 deposed that the respondent, his election agent

and his other agents distributed and circulated Ext.P1 notice
EL.PET.NO. 12 OF 2016 11

among the muslim voters of the constituency at various places and

they appealed to them to vote for the respondent on the ground of

his religion and not to vote for M.V.Nikesh Kumar since he is not a

muslim or a believer in islamic faith. Their intention was to induce

the voters and conveyed a message to the voters of the muslim

community that they will be rendered an object of divine

displeasure or spiritual censures if they vote for M.V.Nikesh Kumar.

Approximately 30% of the voters of Azheekode assembly

constituency belong to muslim community. In Ext.P1, the symbol

of the respondent, ‘ladder’ was also printed. They also circulated

Ext.P2 pamphlet among the voters and the statements in the said

pamphlet are false. In Ext.P2 it is stated that “veedu

nokkathavanu naadu nannakkan kazhiyumo ?” The contents of

Ext.P2 are in relation to the personal character and conduct of

Nikesh Kumar, in which his photograph along with Saritha S Nair,

who is allegedly involved in Solar Scam case was published.

Another photograph of Nikesh Kumar with his wife and children

were also published in Ext.P2, which carries another caption in

bold letters ” vivaha mochanam”. PW1 stated that Nikesh Kumar

and his wife are leading a happy family life and the statement that

his wife is going to file divorce petition in Family Court is false. In

Ext.P2 it is stated that Nikesh Kumar is having wayward
EL.PET.NO. 12 OF 2016 12

relationship with Saritha, that his wife is going to file a divorce

petition and he is a cheat etc, are in relation to the personal

character and conduct of Nikesh Kumar. The wife of Nikesh Kumar

had no intention to get a divorce from him and she had not taken

any steps to file such a petition for divorce.

8. PW1 also stated that on 14.05.2016, ten persons

including Fazir K.V, Shakkeer V.P, Favaz, Nisham, Rehman and

others campaigned for the respondent at Thangal Vayal. They

distributed copies of Ext.P1 pamphlet among the members of

muslim community at Thangal Vayal. At about 11.15 am, they

distributed Exts.P1 and P2 in the house of Noushad, Abdulla, Abdul

Rasheed and Mohammed Isaac at Valapattanam. They distributed

Ext.P1 secretly among the members of muslim community and

warned the voters not to vote for a candidate who is not a believer

in islamic faith. Smt.N.P.Manorama is an active worker of Indian

National Congress who is holding the office of the President,

Valapattanam Grama Panchayat. On 11.05.2016 at 6.30 am,

Smt.N.P.Manorama and Abdul Rasheed, members of Valapattanam

Grama panchayat, V.P.Noushad, a former member of Valapattanam

Grama panchayat, along with other workers of INC and IUML

campaigned for the respondent with Ext.P1 and P2 pamphlets in

the house of Shameer.P, Savad.P.V, Faisal P.V, K.P.Dasan, Rahul
EL.PET.NO. 12 OF 2016 13

K.V, C.P.Gireeshan and Lincy K. They distributed Ext.P1 notice

secretly among the muslim voters alone. On that day, the

campaign started in the presence of respondent and Smt

N.P.Manorama was found in the election squad. After that,

respondent left the place by directing Smt.Manorama and other

members of the squad to continue the election campaign. On

12.05.2016 at 6.30 am, Smt N.P.Manorama, Abdul Rasheed,

Noushad and other workers of UDF visited the house of Jaleel.P.P,

K.C.Saleem, V.K.Shameer. On 11.05.2016 and 12.05.2016, the

above said persons distributed Exts.P1 and P2 among the voters.

The Special Squad authorised to detect violation of Model Code of

Conduct under the leadership of Shaju K.V, seized several

pamphlets from the house of N.P.Manorama. Valapattanam police

registered crime No.1074 of 2016 on 12.05.2016 against

N.P.Manorama. Sub Inspector of Police, Valapattanam Police

Station seized Exts.P1 and P2 notices on 12.05.2016 by preparing

separate seizure mahazars.

9. C.V.Santhosh, Sujith, Pradeepan and Prem Prakash were

engaged in house to house campaign and distributed Exts.P1 and

P2 pamphlets at Pallikunnu, Chettipeedika. On 13.05.2016 they

visited the house of Shamal and Sudeendral with Exts.P1 and P2

notices at Chettipeedika and distributed the above notices with
EL.PET.NO. 12 OF 2016 14

the consent and direction of respondent and his election agent.

On 15.05.2016, Rajeevan P, A.V.Narayanan, Padmanabhan,

Majeed K.C and Noufal T M distributed Exts.P1 and P2 notices at

Kannadiparamba with the consent of the respondent and his

election agent. Mayyil police registered Crime No.620 of 2016

against Rajeevan, Narayanan and Padmanabhan on the basis of a

complaint filed by K.Baiju, Local Committee Secretary of LDF,

Kannadiparamba. There was suppression of material facts in the

affidavit filed before Returning Officer. The respondent filed

nomination paper without complying Rule 4A of Conduct of

Election Rules, 1961. In the affidavit, there is suppression of facts

in mentioning the Pan Card number. He also gave false information

about his educational qualification. In cross examination PW1

admitted that he has no direct knowledge about the distribution of

Exts.P1 and P2 pamphlets. PW1 also campaigned for Nikesh

Kumar on 11.05.2016, 12.05.2016, 13.05.2016. 14.05.2016 and

15.05.2016. In almost all days, after election work the party

members informed him about the progress of the election work

and their experience in the campaign. He admitted that the

allegation made against the respondent in the election petition

and proof affidavit are on the basis of hearsay information alone.

He had no direct knowledge about the allegation.
EL.PET.NO. 12 OF 2016 15

10. The voter in Booth No.94 of Azheekode Assembly

Constituency was examined as PW2. His evidence shows that

Favaz, Fazir, Nisham, Rahman, Shakeer, Ashraf and others

campaigned for UDF in the 2016 election and they visited his

house on 10.05.2016, 11.05.2016, 12.05.2016, 14.05.2016 and

15.05.2016. Favaz, Fazir, Nisham, Rahman, Shakeer and five

others visited his house on 14.05.2016 at 11.15 am and they

handed over five or six notices to him, out of which Exts.P1 and P2

were separately given by Fazir. After reading those notices, he

gave it to his sister and her children who are the voters of the

constituency. They discussed about the notice after reading it. In

Ext.P2 it is stated that Nikesh Kumar is having illicit relationship

with another woman. In the evening he met Noushad and they

discussed about the pamphlets and Noushad informed him that he

also got similar notice like Exts.P1 and P2. He did not know the

Press where Exts.P1 and P2 were printed. Fazir K V is the

President of Muslim Youth League who is residing near his house.

Nisham is a congress worker and others are workers of Muslim

League. In cross examination, he stated that even now he believe

that Nikesh Kumar has illicit relationship with Saritha, but he has

no knowledge about the personal life of M.V.Nikesh Kumar. He

himself, his sister and her children exercised their franchise by
EL.PET.NO. 12 OF 2016 16

assessing the ability of the candidate. Favaz, Rahim and Shakeer

are members of Muslim League and he is familiar with the above

five UDF persons.

11. Another voter PW3 deposed that both LDF and UDF

workers visited his house as part of the election campaign. On

11.05.2016 at 6.30 am, the respondent with Rasheed, Manorama,

Noushad, Thaju and Azeez visited his house. They entered into

his house, at that time his father, mother, wife, sister and other

members of his family came there. His father was the former

Secretary of Muslim League Manna branch. Considering this, the

respondent told to his father that Nikesh Kumar is having illicit

relationship with Saritha and respondent being a muslim,

requested him to vote for him and not to vote for non muslims.

Noushad handed over six notices to PW3 as instructed by the

respondent. At that time, his brother came there and respondent

requested him to vote for him. PW3 stated that at the time of

giving notice, Noushad told him to read the pamphlets and vote

for the respondent. Manorama is the President of Valapattanam

Grama Panchayat and K.M.Shaji is the M.L.A. PW3 identified the

photograph of Nikesh Kumar and Saritha and the photograph of

Nikesh Kumar with his wife and children in Ext.P2. On 12.05.2016,

when he was returning from Mosque after prayers, there was a
EL.PET.NO. 12 OF 2016 17

discussion among the people about the seizure of notice from the

house of Manorama. PW3 is a painter by profession and he used to

go at 8.30 am for his work. Noushad was the former President,

Valapattanam Grama Panchayat. Thaju and Azeez are workers of

muslim league and he knows Azeez and Rasheed from their

childhood itself. The learned counsel put a suggestive question to

PW3 that Exts.P1 and P2 were printed by Nikesh Kumar which was

denied by him.

12. PW4 was a voter of Booth No.92 and was working as a

Security Guard at Pappinissery. On 10.05.2016 the workers of LDF

visited his house and on 11.05.2016, the workers of UDF

candidate visited his house. On 11.05.2016 at 7 am,

Smt.Manorama, Noushad, Rasheed, Shamal, his relative Saifuddin

and some others visited his house. Noushad entrusted Exts.P1, P2

and other notices to him, his father, mother, wife and two children

were present at that time. Noushad told him not to vote for a non

muslim and to vote for respondent. They asked PW3 to read over

the notice among the family members and to take a decision. He

read over Exts.P1 and P2 notices to his father and mother. On

hearing the contents of notice, they felt that the allegations in the

notice are true. On 15.05.2016, both LDF and UDF workers visited

his house with election slips.

EL.PET.NO. 12 OF 2016 18

13. PW5 is a voter of Booth No.91 of Azheekode Assembly

Constituency, who deposed that both LDF and UDF workers visited

his house as part of the election campaign. On 11.05.2016 and

15.05.2016, UDF workers visited his house in connection with

house to house campaign. On 11.05.2016 at 6.30 am, K.M.Shaji,

Manorama, Rasheed, Noushad, Madhusoodhanan, Azeez, and

Thajudheen visited the house of Shameer, who is his neighbour.

After that they came out from that house, the father of Shameer

also accompanied them. K.M.Shaji talked with Manorama and

thereafter left the place in his vehicle. The remaining persons

Manorama, Rasheed, Noushad, Madhusoodhanan, Azeez and

Thajudheen visited his house, Manorama informed him that they

came for canvassing vote for Shaji and she handed over two –

three notices to him. His parents and younger brother joined

there. Manorama picked up one notice and showed it to his

mother, which contained the photograph of Nikesh Kumar and

Saritha and also the family photograph of Nikesh Kumar.

Manorama told to his mother that Nikesh Kumar is having illicit

relationship with Saritha and his wife is seeking a divorce from him

and may not vote for Nikesh Kumar. Then his father asked to

Manorama whether Saritha is having illicit relationship with Nikesh

Kumar. She asked whether such a person could do anything
EL.PET.NO. 12 OF 2016 19

worthy to the constituency and she requested to vote for Shaji and

went to the next house for campaigning. The entire family read

the notice, his mother asked whether Nikesh Kumar is a person of

such character and why should they vote for such a person.

14. PW6 is a voter in Booth No.92 of Azheekode Assembly

Constituency who is residing at Valapattanam Grama Panchayat.

His evidence shows that on 12.05.2016 at 6.30 am, Smt

Manorama, Rasheed, Noushad, Ashraf, Hashim and some others

visited his house for canvassing votes for Shaji. They told that

Nikesh Kumar is having illicit relationship with Saritha and his wife

is seeking divorce from him. Smt.Manorama asked him whether a

person who is not able to manage his family could do anything for

the constituency. At that time, Noushad handed over five or six

notices to him and told him to read those notices thoroughly.

Noushad requested PW6 to vote for respondent and told him not

to vote for a non muslim, otherwise it will bring disgrace of the

Allah. He identified Exts.P1 and P2 notices. On the same day at 11

am, LDF workers L.V.Mohammed, Sasi, Mohanan, A.N.Salim and

others visited his house and handed over four notices and

requested him to vote for Nikesh Kumar. He asked them how can

he vote for a non muslim who is of such a bad character. He

showed similar notices of Exts.P1 and P2 to Abdul Nazar and they
EL.PET.NO. 12 OF 2016 20

took those notices with them and left the place. At 2 pm, when he

went to puthiyatheru, he saw several people gathered in front of

house of Manorama and a police van was also found there. On

enquiry, it was found that police raid is going on in the house of

N.P.Manorama. PW6 is a loading and unloading worker and in

cross examination he admitted that he is not a member of any

trade union. He admitted that UDF and LDF workers visited his

house on 12.05.2016 and 15.05.2016. He admitted that petitioner

visited his house on 22.05.2016 between 5 pm and 6 pm.

15. PW7 is a voter in Booth No.98 of Azheekode Assembly

Constituency. His evidence shows that both LDF and UDF workers

conducted house to house campaign by affixing posters and

displaying banners in the Constituency as part of the election

work. On 13.05.2016 at 7.30 am, the UDF workers C.V.Santhosh,

C.V.Sumith, Prem Prakash and Pradeepan visited his house and

requested to vote for the respondent. They told him that Nikesh

Kumar is having relationship with Saritha. Santhosh asked him to

call his parents and told them not to vote for Nikesh Kumar. They

handed over notices and told him to read over it among the family

members and thereafter they left. He identified Ext.P2 notice. He

read over the notice among the family members. In cross

examination he stated that Pradeepan is his friend and he is
EL.PET.NO. 12 OF 2016 21

residing 500 metres away from the house of C.V.Santhosh.

Sandeep, the brother of Santhosh died on 08.05.2016 due to

Liver Cirrhosis. When he was admitted in the hospital, he went to

see him there.

16. PW8 is a voter in booth No.63 of Kannadiparamba and

Secretary of LDF, Kannadiparamba Local Committee. On

15.05.2016 he conducted house to house campaign with other

LDF workers at Talkies Road, Kannadiparamba. When they visited

the house of one Ummer at Talkies Road, he handed over a bunch

of pamphlets to him and asked how one could vote for such a

candidate. PW8 read the content of the notice in which it was

stated that Nikesh Kumar had illicit relationship with Saritha and

wife of Nikesh Kumar had filed a petition for divorce before Family

Court. In another notice, there was a request to vote for the

respondent since he is a muslim. The symbol and photograph of

the respondent was printed in that notice. Ummer also showed

similar notices to PW8 and told that Shefiff entrusted those

notices. Immediately PW8 informed the matter to the chief

election agent of Nikesh Kumar and as per his direction, he

informed the same to the police. At about 1.30 pm, the UDF

workers were taken into custody from talkies road with pamphlets.

Till 4.30 pm, police had not taken any action against the arrested
EL.PET.NO. 12 OF 2016 22

persons, he filed a petition to the Mayyil police against them.

Subsequently Mayyil police registered Crime No.620 of 2016

against them, Ext.P3 is the copy of the complaint. In cross

examination he admitted that he went to the house of Ummer and

Sheriff two – three times in connection with election campaign and

knew about Exts.P1 and P2 notice at the time of filing Ext.P3

complaint. But he denied the allegation that under his leadership

he detained Rajeevan, A.V.Narayanan and others, which created a

law and order situation at talkies road and in order to save the life

of the UDF workers, police took them to the police station.

17. PW9 is a voter in booth No.63 who deposed that UDF

and LDF workers visited his house as part of election campaign.

The UDF workers had visited on 10.05.2016 or 11.05.2016. On

the next day, LDF and BJP workers visited his house. On

15.05.2016 at 7 am, UDF workers Ashraf, Padmanabhan, Rajeev,

Noufal, Unni, Dasan, Narayanan and others visited his house and

handed over voter’s slip and notices. Noufal entrusted Exts.P1 and

P2 notices and requested to vote for the respondent. On the same

day at 10.30 am, LDF workers Ibrahim, Baiju, Damodaran,

Sharath, Rajeevan, Kandappan and others visited his house and

handed over voter’s slip and other notices. After reading Ext.P1

and P2 notice, a bad impression was created in his mind about
EL.PET.NO. 12 OF 2016 23

Nikesh Kumar. As requested by Baiju, he handed over the notice to

him. At about 1′ 0 clock in the noon, the above UDF workers were

taken into custody by police. In cross examination he admitted

that he is the Secretary of a Food Ball Club, ‘Rising Star’ at

Kannadiparamba. On 15.05.2016, he received 9 or 10 notices

which were entrusted to Baiju on the same day.

18. PW10 deposed that on 12.05.2016, while working as

Senior Police Officer, Valapattanam Police Station, he received a

petition from Abdul Nazar K.T. On the basis of that petition, he

registered Crime No.1074 of 2016 under Section 153 read with 34

IPC and under Section 127(A) of R P Act, 1951, Ext.P4 is the copy

of the F.I.R. The accused in the above crime were Manorama and

her husband Sukumaran. Ext.P5 is the copy of the petition given

by Abdul Nazar K.T which was addressed to SHO, Valapattanam.

19. The Sub Inspector of Police, Valapattanam was

examined as PW11. His evidence shows that on 12.05.2016 at 1

pm, Crime No.1074 of 2016 was registered by Valapattanam

police on the basis of a petition filed by Abdul Nazar K.T.

Immediately the Civil Police Officer in charge of GD informed him

about the registration of the crime and he started investigation in

that case. He reached at the house of Manorama, President,

Valapattanam Grama Panchayat at 13.30 hours and found notices
EL.PET.NO. 12 OF 2016 24

and pamphlets kept in the verandah of the house of Manorama.

During inspection, Manorama came out of the house, then PW11

asked about the notices and pamphlets, at that time she answered

that it was brought for the election campaign of the respondent.

He seized those notices after preparing a search list in the

presence of witnesses, thereafter he entrusted the pamphlets to

the subordinate police officers who accompanied him. When police

party reached at the house of Manorama, hundreds of people had

gathered in front of that house, subsequently they divided into

two separate groups which created law and order situation there.

A search list was prepared by the Assistant police officers under

his supervision and signed by him. While preparing search list, two

or three members of Special Squad came there and enquired

about the seized notices and pamphlets. After preparing search

list, the seized articles were taken into custody and removed them

to the police station at 14.30 hours. The members of MCC Special

Squad visited the police station and asked for a copy of one set of

each notice and pamphlets which were seized from the house of

Manorama and on the basis of the request by the MCC officers,

he handed over one set of each notice and pamphlets to them. At

16.00 hours, he arrived at the place of occurence and prepared a

scene mahazar. After registering the above case, Abdul Nazar K T
EL.PET.NO. 12 OF 2016 25

handed over two notices containing arabic caption and three

notices containing allegation regarding relationship between

Nikesh Kumar and Saritha. Those notices were taken into custody

after preparing Ext.P6 seizure mahazar as part of the

investigation. PW11 identified Ext.P6 seizure mahazar and also

Exts.P1 and P2 pamphlets. After completing investigation, PW11

filed final report before Judicial First Class Magistrate II, Kannur.

In cross examination, he deposed that after reaching the residence

of Smt Manorama, he obtained additional force to disburse the

mob. He conducted the search only after disbursing the mob and

seized the pamphlets from the house of Manorama. He did not

conduct any investigation to find out the press where the

documents mentioned in Ext.P6 were printed. The documents

referred in Ext.P6 were found seen in the verandah of house of

Manorama.

20. PW12 was the Returning Officer, Azheekode Assembly

Constituency who produced the original of Form No.26 affidavit

submitted by respondent in 2011 assembly election which was

marked as Ext.X1. In Ext.X1, the Pan Card number is mentioned

as APQPK1630M which is marked as Ext.X1(a). In column No.6 of

page No.8 of Ext.X1, the same Pan Card number is mentioned

which is marked as Ext.X1(b). The original Form No.26 of
EL.PET.NO. 12 OF 2016 26

respondent in 2016 assembly election is marked as Ext.X2. In

page No.2 of Ext.X2, the Pan Card number is mentioned as EDWP

6273A, which is marked as Ext.X2(a). In page No.10 of Ext.X2 in

column No.10, the educational qualification is stated as ‘BBM

Course not completed’, which is marked as Ext.X2(b). In page

No.12 of Ext.X2, part B, column No.10, the educational

qualification is marked as ‘BBA, Bangalore University not

completed’. That portion is marked as Ext.X2(c). In cross

examination he admitted that he has no knowledge about the

truth or veracity of the contents of Exts.X1 and X2. He never

verified the correctness of Exts.X1(a), X1(b), X2(a) or X2(b).

21. PW13 was the Nodal Officer, MCC during 2016 election.

His evidence shows that K.V.Shaju was the Charge Officer of

Azheekode Assembly Constituency. There were 13 special squad

of MCC under him and each squad is under the control of a Charge

Officer who is bound to report the violation of MCC. The Charge

Officer of Azheekode Assembly constituency reported several

instances of violation of MCC during 2016 election. He identified

the report Ext.X1 marked in E.P.No.11 of 2016, which is marked as

Ext.X3 in this case. Another report dated 13.05.2016 which was

marked as Ext.X8 in E.P.11 of 2016, is marked as Ext.X4 in this

case. Another report dated 14.05.2016 which was marked as
EL.PET.NO. 12 OF 2016 27

Ext.X13 in E.P.11 of 2016, was marked as Ext.X5 in this case. A

report dated 15.05.2016 was marked as Ext.X15 in E.P.11 of 2016

and its certified copy is marked as Ext.X6 in this case. In Ext.X3,

it was reported that police seized 10 different kinds of notices and

pamphlets from the house of Manorama, President of

Valapattanam Grama panchayat which was produced by the

Charge Officer. The witness identified Exts.X2 and X3 marked in

E.P.11 of 2016 which is marked as Exts.P1 and P2 in this case. On

13.05.2016 the Charge Officer reported in Ext.X4 that

C.V.Santhosh, Sujith, Pradeepan and Prem Prakash were

distributing the same pamphlets at Pallikunnu Chettipeedika,

Kakkad, Nambiarmotta area, which was seized by the special

squad. On 14.05.2016 it was reported in Ext.X5 that one Fazir,

Shakeer, Favaz, Nisham, Rehman and others were campaigning at

Thangal Vayal with the above notices which were seized by the

special squad. On 15.05.2016, it was reported in Ext.X6 that

several notices and pamphlets were seized by the special squad

from the scooter KL13 AE 4526 which was parked in front of a

house. PW13 stated that he had taken follow up action on the

basis of Exts.X3 to X6. On the basis of Ext.X3 report, on

12.05.2016 he issued a show cause notice to the respondent.

PW13 identified the certified copy of Ext.X6 marked in E.P.11 of
EL.PET.NO. 12 OF 2016 28

2016 which is marked as Ext.X7 in this case. The respondent

accepted the notice and he put his signature in the show cause

notice. He informed about the violation to the Returning Officer on

12.05.2016. The certified copy of Ext.X7 report marked in E.P.11

of 2016 is marked as Ext.X8 in this case. On 14.05.2016, he

informed about the violation of MCC to the District Police Chief,

Kannur, marked as Ext.X10 in E.P.11 of 2016, which is marked as

Ext.X9 in this case. In Ext.X9, it was reported that defamatory

notices and pamphlets were seized from C.V.Santhosh, Sujith,

Pradeepan and Prem Prakash. In cross examination, respondent

suggested that Ext.X8 and X9 were forged by the witness for

helping Nikesh Kumar which was denied by PW13. He asserted in

cross examination that he had received Exts.X3, X4, X5, and X6

notices in his office. The respondent also attributed that the

Charge Officer and PW13 had conspired with Nikesh Kumar and

fabricated Ext.X3, X4, X5 and X6 which was denied by PW13. He

admitted that he received oral instruction from District Collector to

issue Ext.X7.

22. The evidence of PW14 shows that while he was working

as Special Tahsildar, he was assigned the duty as Charge Officer,

MCC, Azheekode Assembly Constituency. His evidence shows that

PW13 was his Nodal Officer and five other persons were working in
EL.PET.NO. 12 OF 2016 29

the special squad with him. He had reported every violation of

MCC to PW13, the Nodal Officer. He also stated that Ext.X3 to X6

reports were submitted to PW13 during that period. On

12.05.2016 he got information that notices and pamphlets were

seized from the house of Manorama, President, Valapattanam

Grama panchayat by the Valapattanam police. For that he sent

Ext.X3 report to the Nodal Officer. He obtained copies of the

pamphlets from Valapattanam police station and handed over to

PW13 along with the above report. On 13.05.2016, he seized more

than 100 different types of notices from C.V.Santhosh, Sujith,

Pradeepan and Prem Prakash from Pallikunnu Chettipeedika,

Kakkad Nambiarmotta area, for that he sent Ext.X4 report to the

Nodal Officer. On 14.05.2016, more than 750 notices were seized

by the Special squad from Fazir, Shakeer, Shavaz, Nisham,

Rahiman and others and he forwarded it to PW13 with Ext.X5

report. On 15.05.2016, he seized notices from a scooter KL13 AE

4526 parked in front of a house by the Special Squad at

Kannadiparamba, talkies road, for that he sent Ext.X6 report.

Similar notices like Exts.P1 and P2 were seized by PW14 which

were marked in E.P.11 of 2016 as Exts.X2 and X3. On 12.05.2016,

original of Exts.X2 and X3 were handed over to him by the police.

The documents marked as Exts.X2 and X3 marked in E.P.11 of
EL.PET.NO. 12 OF 2016 30

2016 were identified by the witness and the copies were marked

as Exts.X10 and X11 in this case. The evidence of PW14 shows

that on 13.05.2016, 14.05.2016 and 15.05.2016 he seized

pamphlets and notices similar to Exts.X10 and X11 from different

parts of the constituency, which were marked as Exts.X4 to X6 in

this case. In cross examination he admitted that while he was

working as Revenue Inspector, he was arrested by Vigilance and

Anti Corruption Bureau in the year 2012. Latheef was the

Videographer attached to the Special Squad of MCC. On

12.05.2016, he visited the house of Manorama with Latheef and

they did not enter inside the house of Manorama or did not

conduct any search there. In Ext.X3, it was recorded that notices

were seized by Valapattanam police and kept in the police station.

Respondent suggested that on 13.05.2016, PW14 had not seized

any documents from C.V.Santhosh, Sujith, Pradeepan and Prem

Prakash and they never conducted any house to house campaign,

but PW14 denied that suggestive question and admitted that he

seized the notices from them and sent Ext.X4 report to PW13. On

14.05.2016, he had not seized any documents from Fazir, Shakeer,

Favaz, Nisham, Rahman and others and they never conducted any

house to house campaign, but PW14 denied that suggestive

question and admitted that he seized the notices from them and
EL.PET.NO. 12 OF 2016 31

sent Ext.X5 report to PW13.

Respondent’s evidence

23. Now, let me examine the oral evidence of the respondent

who was examined as RW1. His evidence shows that he contested

as a candidate of Indian Union Muslim League and his symbol was

ladder. He himself or his election agent never printed, published

or circulated Exts.P1 and P2 notices or pamphlets as alleged by

the petitioner. Moreover his other agents, workers or associates

with his consent or with his agent’s consent never printed,

published or circulated any notice or pamphlets. There is no

agency called Indian Overseas Congress Kannur Jilla Committee.

He never requested the muslim voters not to vote for M.V.Nikesh

Kumar on the ground of his religion. He believe in secularism, for

that he is facing threat from two religious organizations viz, Jama

ath islami and NDF. In the Azheekode Assembly constituency, the

muslim population is less than 20%. He never appealed to

anybody to pray for him or to any of the gods for his success and

never made any undue influence. He do not know anything about

the contents of Ext.P2 and he had no knowledge about the

personal life of M.V.Nikesh Kumar. He had never heard about the

relationship between Saritha S Nair and M.V.Nikesh Kumar. The

allegations in Ext.P2 has been deliberately created so as to make
EL.PET.NO. 12 OF 2016 32

out a cause of action for filing an election petition. He had no

occasion to come across the personal life of M.V.Nikesh Kumar.

Exts.P1 and P2 and other notices were printed by M.V.Nikesh

Kumar and his election agent and workers after election so as to

file an election petition. On 14.05.2016 Fazir, Shakeer, Favaz,

Nisham and Rahman were engaged in house to house campaign

and distributed Exts.P1 and P2 pamphlets among the muslim

voters at Thangal Vayal is absolutely false. He never engaged in

any election campaign or gave any consent to the above said

persons and they are not members of muslim league or muslim

youth league. Noushad M, Abdulla B, Abdul Rasheed and

Mohammed Isakk are workers of CPIM and were campaigning for

M.V.Nikesh Kumar.

24. RW1 further stated that Smt N.P.Manorama, President of

Valapattanam Grama Panchayat never campaigned for him in the

election and she never participated in the election work like public

meeting and house to house campaign in Valapattanam. He never

went for campaigning in Valapattanam with N.P.Manorama, Abdul

Rasheed, V.P.Noushad and other workers of INC and IUML. The

allegation that they distributed Exts.P1 and P2 in the house of

Shameer, Savad and Faisal P.V is absolutely false. The allegation

that they also distributed Ext.P2 and other notices in the house of
EL.PET.NO. 12 OF 2016 33

K.P.Dasan, Rahul K V, C.P.Gireesan and Lincy K is false. On

11.05.2016 at 6.30 am, he started campaign from the house of

Shameer P, with N.P.Manorama, Abdul Rasheed and V.P.Noushad is

false and moreover, he had never met Shameer P at his residence

with the aforesaid persons. Sri Shameer P is an active worker of

CPIM and he speaks falsehood. On 12.05.2016 at 6.30 am, the

above persons and other workers of UDF visited the house of

Jaleel P P, K.C.Saleel and V.K.Shameer and distributed Exts.P1, P2

and other pamphlets is false. The allegation that several bundles

of objectionable printed materials used for the election of the

respondent were kept in the house of N.P.Manorama and seized by

Shaju K V is false. Crime No.1074 of 2016 of Baliapattam police

was registered at the instance of Sri M.V.Nikesh Kumar, his

workers and agents. The allegation that on 13.05.2016, S.I of

Police, Baliapattam police station seized Exts.P1 and P2 is false.

On 13.05.2016, C.V.Santhosh, Sujith, Pradeepan and Prem

Prakash visited the house of Shamal and Sudheendral and

distributed Ext.P2 pamphlet is false. Shamal and Sudheendral are

workers of CPIM. Sri Sandeep, the brother of C.V.Santhosh died on

08.05.2016. Before that from 06.05.2016, C.V.Santhosh was in

the hospital for looking after him. Therefore the allegation of

distribution of Ext.P2 by Santhosh and others is baseless and
EL.PET.NO. 12 OF 2016 34

unfounded.

25. It is further stated by RW1 that A.V.Narayanan and

Padmanabhan were the polling agents of V.P.Prasad, who is an

independent candidate from Azheekode Assembly Constituency

and the above persons were campaigning for V.P.Prasad in the

election. It is understood that when they were campaigning for

V.P.Prasad at talkies road, Kannadiparamba with Noufal P M and B

Ummer, the workers of CPIM detained them and the police rescued

them. However, a false case was registered against them by the

police. There was no defect in the nomination paper or in the

affidavit in support of the nomination paper. He was never known

as K.Mohammed Shaji. After 2011, his Pan Card was lost and

applied for a new one by cancelling the old one. Hence he was

issued with a new one and has not suppressed any facts in the

affidavit. He completed the BBM Course in Al Ameen College,

Bangalore University but not passed the examination. The BBM

course is also known as BBA and it is only a typographical error

and there is no suppression of facts. Exts.P1 and P2 were printed

by M.V.Nikesh Kumar and produced before this court alleging that

those exhibits were printed and published by the respondent, his

election agent or other agents with his consent or his election

agent’s consent. The election petition is filed on an experimental
EL.PET.NO. 12 OF 2016 35

basis, there is no truth in the allegations levelled against him and

the witnesses examined by the petitioners are tutored and they

are workers of CPIM and were speaking falsehood in this case. In

cross examination he stated that C.V.Santhosh is the Secretary of

DCC, Kannur, his election agent Biju Ummer was another

Secretary, DCC, Kannur and Kallikodan Ragesh is the President of

Chirakkal, Block Congress Committee. In cross examination RW1

admitted that he lost his first Pan Card and thereafter applied for a

new one.

26. The member of Ward No.13 of Narath Grama Panchayat

was examined as RW2. He deposed that there are five or six

muslim families residing at talkies road. Narath Grama Panchayat

is having 17 members which is ruled by CPIM and the muslim

population is below 25%. He knows Ummer who is a member of

CPIM branch committee and the Secretary of Foot Ball Club,

‘Rising Star’ and residing opposite to the residence of his mother’s

sister. Paramban Rajeevan and Padmanabhan are residing at

Mathodam and A.V.Narayanan is residing at Kannadiparamba. The

above three persons have no connection with any political party.

In the year 2015, they worked for rebel candidate of INC in Ward

No.12 of Narath Panchayat during panchayat election. In 2016

assembly election, they campaigned for V.P.Prasad, who is an
EL.PET.NO. 12 OF 2016 36

independent candidate. On 15.05.2016, he saw them in a police

vehicle between 11.15 am and 11.30 am, on enquiry, it is

understood that they were restrained by local people including

Baiju, Convenor of LDF Committee, Kannadiparamba while

demonstrating Dummy voting machine at Kannadiparamba. Police

did not seize any documents from them. But Baiju, Local Secretary

handed over some pamphlets to the S.I of Police, Mayyil Police

Station. According to him, the Special Squad of the Election

Commission had not visited at talkies road on 15.05.2016. He

admitted that he was the Convenor of UDF Election Committee of

Narath Panchayat. In cross examination he admitted that when he

reached there, Rajeevan, Padmanabhan and Narayanan were

found near the police jeep. He did not know whether any case was

registered by Mayyil Police against the said persons.

27. The Secretary of Youth Congress Azheekode Block

Committee was examined as RW3. His evidence shows that he

himself, Akhil, Sagunan, C.V.Santhosh, Prem Prakash campaigned

for K.M.Shaji till 06.05.2016, after that he could not participate in

the election campaign since his brother C.V.Sandeep was admitted

at MIMS Hospital, Kozhikode who died on 08.05.2016. Sri Prem

Prakash is his neighbour and he has no brother named Pradeep.

There was no election campaign thereafter and no incident
EL.PET.NO. 12 OF 2016 37

occured in connection with the election. No pamphlets were seized

from him and others by the Special Squad on 13.05.2016 or any

other dates. They have distributed the pamphlets mentioning the

development works of the respondent in the constituency. The

majority of the voters are hindus and he never campaigned

against Nikesh Kumar by raising defamatory allegation. In cross

examination, he admitted that he was a member of Pallikunnu

Grama Panchayat from 2010 to 2015 representing INC and

Chettipeedika comes within Ward No.6 of Pallikunnu Grama

Panchayat. Now it is part of 5 th Division of Kannur Corporation. His

brother C.V.Santhosh was the Secretary, District Congress

Committee and he was the member of Booth Election Committee,

but he did not sit in the booth. Prem Prakash is the Secretary of

Chirakkal Block Congress Committee from 2016 onwards.

28. The Secretary of Chirakkal Block Congress Committee,

INC and the Manager of a Scrap Company was examined as RW4.

His evidence shows that C.V.Santhosh and C.V.Sumith are residing

500 metres away from his house, who are workers of INC. There

is no brother named Pradeepan for C.V.Santhosh and RW3. He

conducted house to house campaign with Sagunan, Akhil, Sumith

and some others by distributing pamphlets and notices mentioning

the development work of the respondent. He stopped the election
EL.PET.NO. 12 OF 2016 38

campaign on 07.05.2016 because on that date C.V.Sandeep was

shifted from MIMS Hospital to Koily Hospital and subsequently he

died on 08.05.2016. The special squad never seized anything on

13.05.2016 from him or from C.V.Santhosh, C.V.Sumith and

others and no legal proceedings were initiated against them.

29. RW5 is conducting a workshop at Keecheri which is 6

kms away from Valapattanam. His evidence shows that he is not a

member of any political party and he is doing his interior design

work mostly at Kannur area. His father as well as his brothers

have no interest in any political party. One Abdulla P used to

approach him to collect donation on behalf of CPIM. He knows

Fazir K V, residing at Thangal Vayal who has no politics. He also

know one Favaz who is doing ceiling work with gypsum board. He

knows Nisham who is an electrician and he has no politics, he

know Rahman who is working abroad at Dubai for the last four or

five years. He has not participated in any election campaign.

Noushad is a worker of CPIM who approached him for collecting

donation. He had never seen Fazir, Favaz, Nisham and Rahman

campaigning for election and never approached him for canvassing

votes for any political party.

30. RW6 campaigned within the limits of Booth No.58 along

with Padmanabhan and Narayanan. He deposed that again
EL.PET.NO. 12 OF 2016 39

Azheekode seat was alloted to IUML, for that there was

resentment among the congress workers. Therefore he worked for

V.P.Prasad who is an independent candidate. Kallikodan Ragesh

was the chief election agent of V.P.Prasad and he conducted house

to house campaign with the above persons. They never visited the

house of B.Ummer and Mohammed Sherif. On 15.05.2016 they

were demonstrating dummy voting machine in the houses of

voters at talkies road, hundreds of CPIM workers gathered there,

obstructed and detained them on a misunderstanding that they

were the workers of the respondent. Baiju, Local Committee

Secretary called the police and they entered into the police jeep,

at that time Baiju handed over bundles of notices to the police.

That incident happened between 11 am and 11.30 am and police

took them to the police station. After filing a complaint by Baiju,

police registered a case alleging that they had distributed

pamphlets containing defamatory statements against Nikesh

Kumar. Actually they have not distributed any pamphlets on

15.05.2016. He is the owner of a scooter KL 13 AE 4526, he went

to talkies road in that scooter and nothing was seized from that

scooter. There is a distance of 12 kms between Azheekode and

Kannadiparamba. In cross examination, he admitted that

V.P.Prasad is not a political leader. No pamphlets were used for the
EL.PET.NO. 12 OF 2016 40

election campaign of V.P.Prasad.

31. RW7 was the polling agent in booth No.58 of Azheekode

Assembly Constituency. The evidence of RW7 shows that

V.P.Prasad was an independent candidate who contested as a rebel

candidate of UDF. K.Ragesh nominated him as the polling agent of

V.P.Prasad who was the chief election agent of V.P.Prasad. Ragesh

was the President of Chirakkal Block Congress Committee. RW7 is

a member of INC. Since Azheekode Assembly Constituency was

alloted to IUML consecutively, there was a resentment among the

congress workers since the congress wanted their own candidate.

Rajeevan and Padmanabhan campaigned with him for V.P.Prasad

and they conducted house to house campaign. He admitted that

in connection with the election campaign of V.P.Prasad, police

registered a case against them. On 15.05.2016, while they were

carrying a dummy voting machine, for demonstration at talkies

road, Kannadiparamba, CPIM workers detained them alleging that

they were working for K.M.Shaji. They seized the dummy voting

machine from Rajeevan, when police came there, they took them

to the police station. Nearly 100 CPIM workers gathered there and

Baiju handed over a carry bag containing notice to the Sub

Inspector of Police. The police never seized any pamphlets or

notices from his possession or from Rajeeven or Padmanabhan. In
EL.PET.NO. 12 OF 2016 41

the evening at 5 pm, Baiju filed a petition before police, thereafter

police registered a case and subsequently they were enlarged on

bail. They never circulated or distributed any notices or pamphlets

defaming Nikesh Kumar or never influenced muslim voters to vote

against him. He admitted that a crime was registered by Mayyil

police alleging distribution of Exts.P1 and P2 notices against them.

He admitted in cross examination that he was the Mandalam

Secretary INC and was suspended from the party and removed

from all official posts.

32. Learned counsel appearing for the petitioner contended

that the alleged corrupt practices were proved beyond reasonable

doubt by direct evidence as in a criminal charge. The direct

evidence of PW3 shows that Exts.P1 and P2 were distributed in his

house by Noushad in the presence of the respondent. The father of

PW3 was the former Secretary and due to this personal conduct

respondent visited his house. The other independent witnesses

also supported the distribution of Exts.P1 and P2 pamphlets

among the voters. When direct evidence of distribution by the

respondent is proved, proof of separate consent by the respondent

or his election agent in committing the corrupt practice is not

necessary. It shows that the respondent or his election agent or

any other person with the consent of the candidate or his election
EL.PET.NO. 12 OF 2016 42

agent had circulated Exts.P1 and P2 pamphlets among the voters.

They circulated Ext.P1 pamphlet among the muslim voters secretly

and appealed to muslim voters to vote for him on the ground of

his religion and not to vote for Sri M.V.Nikesh Kumar since he is

not a muslim. The contents of Ext.P1 shall be deemed to cause

undue influence among muslim voters and thereby interfered with

the free exercise of their electoral right. Ext.P2 pamphlet was

published with the consent of the respondent, his election agent or

by any other persons and the statement of facts mentioned

therein are false in relation to the personal character and conduct

of the petitioner. They either believe the statement of facts to be

false or do not believe to be true in relation to the personal

character or conduct of the respondent which was calculated to

prejudice the prospects of the election. Hence the election of the

respondent is liable to be set aside. He relied on the decision

reported in Janak Sinha V. Mahant Ram Kishore Das (1972

KHC 335), Ram Sharan Yadav V. Thakur Muneshwar Nath

Singh and others (AIR 1985 SC 24) S.Harcharan Singh V.

S.Sajjan Singh and others(AIR 1985 SC 236), Ram Bhual

v.Ambika Singh (2005 KHC 2126), Ponnala Lakshmaiah V.

Kommuri Pratap Reddy and others (2012 KHC 4358).

33. The learned counsel appearing for the respondent
EL.PET.NO. 12 OF 2016 43

contended that the returned candidate or his election agent or

other persons with his consent or with his agent’s consent had

never distributed or published Exts.P1 and P2 pamphlets in the

Azheekode Assembly Constituency. They never campaigned in the

name of muslim religion and never appealed to the muslim voters

to refrain from voting for M.V.Nikesh Kumar since he is not a

muslim candidate. The contents in Ext.P1 never cause any undue

influence and no interference is made with the free exercise of the

electoral right on the ground of his religion. Exts.P1 and P2 were

printed and published by Nikesh Kumar or his election agent or his

workers, there were no pleadings in the election petition about the

statement of facts and material particulars. Each and every

allegation is independent cause of action and it has to be

specifically pleaded in the petition who has committed the alleged

corrupt practice. There was no allegation in the petition that the

returned candidate or his election agent committed any corrupt

practice. Moreover, there is no pleading that some other person

committed corrupt practice with the consent of respondent or his

election agent. There are only general allegations in the petition

and that is not sufficient for prosecuting an election petition. The

name of the printer and publisher were not mentioned in the

petition, if so, it is a major defect in the election petition. The
EL.PET.NO. 12 OF 2016 44

pleadings and evidence are contradicting each other and the

material facts totally not found in this petition. Analysing the

pleadings and evidence in this case, it is found that prima facie

case is not made out against the respondent and the election

petition is liable to be dismissed. He relied on the decisions

reported in Samant N.Balkrishna and another V. George

Fernandez and others (1969(3) SCC 238), Harasingh Charan

Mohanty V. Surendra Mohanty (1974 KHC 620),Azhar

Hussain V. Rajiv Gandhi ( 1986 (Suppl.) SCC 315), Gajanan

Krishnaji Bapat and another V. Dattaji Raghobaji Meghe and

others (1995(5) SCC 347), Manohar Joshi V. Nithin Bhaurao

Patil and another (1996(1) SCC 169), Uma Ballav Rath V.

Maheshwar Mohanty (1999(3) SCC 357), Kalyan Kumar Gogoi

V. Ashutosh Agnihotri and another (2011(2) SCC 532),

Kalyan Singh Chouhan V. C.P.Joshi (2011 KHC 4068) and

Anvar P V V. P.K.Basheer and others (2014 KHC 4602).

34. In this context, I may extract Section 123 of the R P

Act, 1951 which reads as follows:-

Section 123 : Corrupt practices:- The following shall be

deemed to be corrupt practices for the purposes of this Act:-

(1)xxxxxx
(2) Undue influence, that is to say, any direct or indirect
interference or attempt to interfere on the part of the candidate
EL.PET.NO. 12 OF 2016 45

or his agent, or of any other person (with the consent of the
candidate or his election agent), with the free exercise of any
electoral right:

Provided that-

(a) without prejudice to the generality of the provisions of
this clause any such person as is referred to therein who –

(i) threatens any candidate or any elector, or any person in
whom a candidate or an elector is interested, with injury of any
kind including social ostracism and ex-communication or
expulsion from any caste or community; or

(ii) induces or attempts to induce a candidate or an elector
to believe that he, or any person in whom he is interested, will
become or will be rendered an object of divine displeasure or
spiritual censure, shall be deemed to interfere with the free
exercise of the electoral right of a candidate or elector within the
meaning of this clause;

(b)xxxxxxx
(3) The appeal by a candidate or his agent or by any other
person with the consent of a candidate 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 the candidate
or for prejudicially affecting the election of any candidate:

(Provided that no symbol alloted under this Act to a

candidate shall be deemed to be a religious symbol or a national

symbol for the purposes of this clause).

Xxxxxxxxxxxxx

(4) The publication by a candidate or his agent or by any other person,
EL.PET.NO. 12 OF 2016 46

(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”.

(5) xxxxxxxxxxxx

(6)xxxxxxxxxxxxx

(7)xxxxxxxxxxxxx

(8)xxxxxxxxxxxxx

35. Both parties in this case admitted that corrupt practices

are quasi criminal charges and the proof required in such cases

would be like criminal trial and allegation of corrupt practice must

be proved beyond reasonable doubt. This view gains strength

from the decision of the apex court in Gajanan Krishnaji Bapat

and another V. Dattaji Raghobaji Meghe and others (1995(5)

SCC 347) wherein it was held that though the nature of

allegations in cases alleging corrupt practices are quasi-criminal

and the burden is heavy on him who assails an election but unlike

in a criminal trial, where an accused has the liberty to keep silent,

during the trial of an election petition the returned candidate has

to place before the court his version and to satisfy the court that
EL.PET.NO. 12 OF 2016 47

he had not committed the corrupt practice as alleged in the

petition and wherever necessary by adducing evidence besides

giving his sworn testimony denying the allegations. However, this

stage reaches if and when the election petitioner leads cogent and

reliable evidence to prove the charges levelled against the

returned candidate as only then can it be said that the former has

discharged his burden. That necessarily means that if the election

petitioner fails to adduce such evidence which may persuade the

court to draw a presumption in his favour, the returned candidate

will not be required to discharge his burden by adducing evidence

in rebuttal. While on this point it will be also pertinent to mention

that the election petitioner has to establish the charge by proof

beyond reasonable doubt and not merely by preponderance of

probabilities as in civil action. In Surinder Singh V. Hardial

Singh (1985 SCC (1) 91) apex Court held, it is very well settled

and uniformally accepted that charges of corrupt practices 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” and if after balancing the evidence adduced

there still remains little doubt in proving the charge its benefit

must go to the returned candidate. Various tests have been laid

down by the High Courts and by this Court to determine the
EL.PET.NO. 12 OF 2016 48

extent of proof required to establish a corrupt practice. The most

well-accepted test however is that the charge must be established

fully to the satisfaction of the Court. While insisting upon the

standard of strict proof beyond reasonable doubt, the courts are

not required to extend or stretch the doctrine to such an extreme

extent as to make it well high impossible to prove any allegation of

corrupt practice and as was said in Harcharan Singh V. Sajjan

Singh, such an approach would defeat and frustrate the very

laudable and sacrosanct object of the Act in maintaining purity of

the electoral process. Apex Court in another decision Ram Singh

V.Col. Ram Singh (AIR 1986 SC 3) held that allegation of corrupt

practice must be proved beyond all reasonable doubt like criminal

case. Therefore it is true that the charge of corrupt practices are

quasi criminal in character, it must be clearly pleaded in the

petition and particulars should be clear and precise. The same

principle was expressed by the Apex Court in Mercykutty Amma

V.Kadavoor Sivadasan and others (2004(2) SCC 217), wherein

the relevant observation is that “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 criminal charges and

proof thereof would be not preponderance of probabilities as in
EL.PET.NO. 12 OF 2016 49

civil action but proof beyond reasonable doubt as in a criminal

trial”.

36. However, before considering the veracity of the

submission made by both sides, it would be appropriate to

ascertain the correctness of distribution of Exts.P1 and P2

pamphlets by the respondent, his agents or any other person. The

petitioner is under an obligation to prove the commission of

distribution of pamphlets by the respondent and his agents or

other person for which PW1 has no direct knowledge, but he

examined independent witnesses and their evidence show that

there was distribution of pamphlets by the respondent and his

workers in different parts of Azheekode Assembly Constituency.

The evidence of PW1 shows that on 11.05.2016 at 6.30 am,

Smt.N.P.Manorama, Abdul Rasheed, V.P.Noushad and other

workers of INC and IUML, distributed Exts.P1 and P2 pamphlets in

the house of Shameer P, Favad P.V, Faisal P.V, K.P.Dasan, Rahul K

V, C.P.Gireeshan and Lincy.K. On 11.05.2016 at 6.30 am, they

started the election campaign from the house of Shameer P, at

that time respondent, Manorama and other members were

present. On 12.05.2016 at 6.30 am, the above workers of the

respondent visited the house of Jaleel P P, K.C.Salim, V.K.Shameer

and distributed Exts.P1 and P2 among them. On 13.05.2016,
EL.PET.NO. 12 OF 2016 50

C.V.Santhosh, Sujith, Pradeepan and Prem Prakash distributed

Exts.P1 and P2 pamphlets at Pallikunnu chettipeedika area. On

that day they visited the house of Shamal and Sudheendral with

Exts.P1 and P2 at Chettipeedika. On 14.05.2016 Fazir K.V, Shakir

V.P, Favaz, Nisham, Rehman and others campaigned at Thangal

vayal area and distributed Exts.P1 and P2 in the house of

Noushad, Abdulla, Abdul Rasheed and Mohammed Issak at

Valapattanam. They distributed Ext.P1 secretly among the

members of muslim community and informed them not to vote for

M.V.Nikesh Kumar who is not a believer in islamic faith.

37. On 15.05.2016, Rajeevan P, A.V.Narayanan,

Padmanabhan, Majeed K.C and Noufal T M distributed Exts.P1 and

P2 notice at Kannadiparamba, the Mayyil police seized pamphlets

and notices from the above persons and registered Crime No.620

of 2016 against them. In cross examination PW1 admitted that he

has no direct knowledge of the distribution of the above pamphlets

among the voters, but he stated that he campaigned for

M.V.Nikesh Kumar on 11.05.2016, 12.05.2016, 13.05.2016,

14.05.2016 and 15.05.2016 and his party members informed him

about the progress of the election work on all days after their work

and interacted their experience with him in the election campaign.

Hearsay evidence is inadmissible to a fact which is deposed on
EL.PET.NO. 12 OF 2016 51

hearsay, but it does not necessarily preclude evidence as to a

statement having been made upon which certain action was taken

or certain results followed. The fundamental rule of law is that

hearsay evidence is not admissible. The respondent denied the

allegations of the petitioner and contended that he himself or his

election agent or workers with his consent or his agents consent

never published or circulated any notices or pamphlets. In this

circumstance the case of the petitioner has to be tested

independently of the defence version and analyse its proof with

direct testimony. The respondent took a total denial in his written

objection and in his oral evidence. The respondent was examined

as RW1 at that time he stated that Exts.P1 and P2 notices were

printed by M.V.Nikesh Kumar, his election agents and workers after

election so as to file an election petition.

38. It will be advantageous to scrutinise the independent

evidence of the voters of the Constituency to scan the reliability of

the petitioner’s evidence. PW2 is a voter in Booth No.94 of the

Constituency who supported the evidence of PW1, his evidence

shows that Favaz, Fazir, Nisham, Rahman, Shakir, Ashraf and

others are residing at Thangal Vayal and they visited his house on

10.05.2016, 12.05.2016, 13.05.2016, 14.05.2016 and

15.05.2016. Favaz, Fazir, Rahman, Shakir, Nisham and five others
EL.PET.NO. 12 OF 2016 52

visited his house on 14.05.2016 at 11.15 am and they handed

over five or six notices to him, out of which Exts.P1 and P2 were

separately given by Fazir, who is the President of Muslim youth

league and his neighbour. Nisham is a congress worker and all

others are members of muslim league and he is familiar with the

workers of UDF. The evidence of PW3 shows that his father was

the former Secretary of muslim league, Valapattanam Manna

branch and on 11.05.2016 at 6.30 am, the respondent visited his

house with Rasheed, Manorama, Noushad, Thaju and Azeez as

part of election campaign. They entered into his house, at that

time his father, mother, wife, sister and other members of the

family came near them, the respondent talked with his father

about Nikesh Kumar and requested to vote for him and not to vote

for non muslim. At that time Noushad handed over six notices to

PW3 as instructed by the respondent and they left the place.

Manorama, who is the President of Valapattanam Grama

Panchayat, was present at the time of distribution. The respondent

was the sitting MLA. The evidence of PW3 shows that Exts.P1 and

P2 pamphlets were handed over to him by Noushad in the

presence of respondent. The respondent never denied the fact that

the father of PW3 was the former Secretary of muslim league of

Valapattanam Manna Branch. Thaju and Azeez are muslim league
EL.PET.NO. 12 OF 2016 53

workers and he knows them from their childhood. RW1 stated that

N.P.Manorama never campaigned for him in the election work or in

the public meeting and never went for campaigning at

Valapattanam with Abdul Rasheed, V.P.Noushad and other

workers. They never distributed Exts.P1 and P2 in the house of

Shameer, Favad and Faisal P.V and he had not conducted any

campaigning from the house of Shameer P on 11.05.2016 at 6.30

am, with N.P.Manorama, Abdul Rasheed and V.P.Noushad. A

threadbare examination of the testimony of RW1 with the

evidence of PW2 and PW3, it is found that the evidence of PW2

and PW3 is trustworthy and deserving to be relied upon. The

corrupt practice occured inside the house of PW3 and the rest of

the distribution outside at various places. The evidence of the

inmates show that the respondent was present when Exts.P1 and

P2 were distributed by Noushad which is supporting the evidence

of PW1. The evidence of the above witnesses were consistent and

nothing has been suggested to bring any kind of improbabilities in

their testimonies. By no stretch of imagination, it can be stated

that the above said persons were not present at the time of

distribution.

39. In this context, it is better to examine the distribution of

Exts.P1 and P2 pamphlets at Booth Nos.63, 91, 92 and 98 of the
EL.PET.NO. 12 OF 2016 54

Azheekode Assembly Constituency. PW4 is residing at

Valapattanam within the area of booth No.92 and his evidence

shows that on 11.05.2016 at 7 am, Smt.Manorama, Noushad,

Rasheed, Shamal, Saifuddin and others visited his house and

Noushad entrusted Exts.P1 and P2 pamphlets to him. At that time,

his father, mother, wife and two children were present and

Noushad told him not to vote for a non muslim and to vote for the

respondent. PW4 stated that he read over the notice to his father

and mother, Saifuddin is his relative and the Secretary of Muslim

League of that area who accompanied the UDF workers to his

house. PW5 narrated the distribution of Exts.P1 and P2 within

Booth No.91 of Azheekode Assembly Constituency at Manna,

Valapattanam area. His evidence shows that he is residing at

Manna area and on 11.05.2016 and 15.05.2016 UDF workers

visited his house. On 11.05.2016 at 6.30 am, respondent

K.M.Shaji, Rasheed, Noushad, Madhusoodanan, Azeez and

Thajuddin visited the house of his neighbour Shameer. After that

they came out from that house, respondent talked with Manorama

and thereafter he left the place in his vehicle. The remaining

persons visited his house and Manorama handed over two – three

notices to him, at that time his parents and younger brother

joined with him. But RW1 denied the visit of UDF workers on
EL.PET.NO. 12 OF 2016 55

12.05.2016 at 6.30 am, at the house of Jaleel P P, K.C.Saleel and

V.K.Shameer and distribution of Exts.P1 and P2 pamphlets. PW6 is

a voter in booth No.92 of the Valapattanam Grama Panchayat, his

evidence shows that on 12.05.2016 at 6.30 pm, Smt Manorama,

Rasheed, Noushad, Ashraff, Hashim and others visited his house

and Noushad handed over five or six notices which includes

Exts.P1 and P2. Noushad told him to vote for the respondent and

not to vote for a non muslim. At 11 am, LDF workers

L.V.Mohammed, Sasi, Mohanan, A.N.Salim and others visited his

house and he handed over four notices to them. They took those

notices and left the place. PW6 admitted that LDF and UDF

workers visited his house on 12.05.2016 and on 15.05.2016.

40. The evidence of PW7, who is a voter in Booth No.98

shows that on 13.05.2016 at 7.30 am, C.V.Santhosh, C.V.Sumith,

Prem Prakash and Pradeepan visited his house and requested to

vote for the respondent, they handed over notices, thereafter they

told him to read it among the family members. It is pertinent to

note that Pradeepan is his friend who is residing 500 metres away

from the house of C.V.Santhosh. He stated that the brother of

C.V.Santhosh died on 08.05.2016 due to Liver cirrhosis. The

evidence of PW9 shows that he is a voter of Booth No.63. Both

LDF and UDF workers visited his house as part of election
EL.PET.NO. 12 OF 2016 56

campaign. On 15.05.2016 at 7 am, UDF workers Ashraff,

Padmanabhan, Rajeev, Noufal, Unni, Dasan, Narayanan visited his

house and handed over voter’s slip and Exts.P1 and P2 notices.

Noufal entrusted Exts.P1 and P2 notices and requested to vote for

the respondent. At about 10.30 am, LDF workers including PW8

Baiju, Ibrahim, Damodaran, Sharath, Rajeevan, Kandappan and

others visited his house and handed over their voter’s slip and

notices. Analysing the evidence of PW2, PW3, PW4, PW5, PW6,

PW7 and PW9 who are the voters of the constituency, it is found

that Exts.P1 and P2 notices were distributed on different dates at

different parts of the constituency. Even though the above

witnesses were cross examined by the defence counsel, nothing

has been brought out to discredit the direct oral testimony about

the distribution of Exts.P1 and P2. It is the quality of evidence of

the witness or witnesses, whose testimony has to be tested on the

touchstone of credibility and reliability. If the testimony is found

to be reliable, there is no legal impediment to admit such proof. It

is the quality not the quantity of evidence which is necessary for

proving or disproving a fact. Apex court in Vadivelu Thevar V.

State of Madras (1957 SCR 981: AIR 1957 SC 614) held that “it

is a sound and well established rule of law that the court is

concerned with the quality and not with the quantity of the
EL.PET.NO. 12 OF 2016 57

evidence necessary for proving or disproving a fact. Generally

speaking oral testimony in this context may be classified into three

categories, namely (1) wholly reliable, (2) wholly unreliable and

(3) neither wholly reliable nor wholly unreliable. In the first

category of proof, the court should have no difficulty in coming to

its conclusion either way – it may convict or may acquit on the

testimony of a single witness, if it is found to be above reproach or

suspicion of interestedness, incompetence or subornation. In the

second category, the court equally has no difficulty in coming to its

conclusion. It is in the third category of cases, that the court has

to be circumspect and has to look for corroboration in material

particulars by reliable testimony, direct or circumstantial. There is

another danger in insisting on plurality of witnesses. Irrespective

of the quality of the oral evidence of a single witness, if courts

were to insist on plurality of witnesses in proof of any fact, they

will be indirectly encouraging subornation of witnesses. Situations

may arise and do arise where only a single person is available to

give evidence in support of a disputed fact. The court naturally

has to weigh carefully such a testimony and if it is satisfied that

the evidence is reliable and free from all taints which tend to

render oral testimony open to suspicion, it becomes its duty to act

upon such testimony. There are exceptions to this rule, for
EL.PET.NO. 12 OF 2016 58

example, in cases of sexual offences or of the testimony of an

approver; both these are cases in which the oral testimony is, by

its very nature, suspect, being that of a participator in crime. But,

where there are no such exceptional reasons operating, it

becomes the duty of the court to convict, if it is satisfied that the

testimony of a single witness is entirely reliable”.

41. How the registration of a crime by the police and the

distribution of pamphlets violating Model code of conduct can be

weighed in an election petition. The senior police officer,

Valapattanam Police Station was examined as PW10, who stated

that on 12.05.2016 he received a petition from Abdul Nazar K T,

on the basis of that he registered Crime No.1074 of 2016. The

above crime was registered under Section 153 r/w 34 IPC and u/s.

127A of R P Act, 1951. Ext.P4 is the FIR and Ext.P5 is the copy of

the petition. In Ext.P4, Manorama and her husband were the

accused. The SHO, Valapattanam was examined as PW11, who

supported the evidence of PW10 and confirmed the registration of

Crime No.1074 of 2016 on 12.05.2016. The investigation was

started by PW11 at 1.30 pm and he conducted a search in the

house of Manorama. During search he detected notices and

pamphlets kept in the verandah of her house. PW11 asked about

the notices and pamphlets to Manorama and she said that it was
EL.PET.NO. 12 OF 2016 59

brought for the election campaign of the respondent. He prepared

a search list and removed the articles seized to the police station.

The members of Special Squad visited the police station and they

obtained one set of each notice and pamphlets seized from the

house of Manorama. Subsequently Abdul Nazar K T handed over

two notices containing arabic caption and three notices containing

allegation regarding relationship between Nikesh Kumar and

Saritha. Those notices were taken into custody after preparing

Ext.P6 seizure mahazar and he filed final report before Judicial

First Class Magistrate -II, Kannur. Even though these witnesses

were cross examined, nothing has been brought out to discredit

their direct evidence.

42. The Secretary, LDF, Kannadiparamba Local Committee

who is a voter of Booth No.63, was examined as PW9. His

evidence shows that on 15.05.2016, he conducted house to house

campaign at talkies road, and reached at the house of Ummer who

is a voter of booth No.63, who handed over a bunch of pamphlets

to him. When he visited the house of another voter Sheriff and

enquired about similar notices, he also entrusted similar notices to

him. At 1.30 pm, the above UDF workers were taken into custody

from talkies road with pamphlets. He filed a complaint before

Mayyil police and Ext.P3 is the copy of the complaint. On the basis
EL.PET.NO. 12 OF 2016 60

of that, they registered Crime No.620 of 2016. By handing over

pamphlets to PW11 by PW9, it can be assumed that he conveyed

further information based upon the personal knowledge of PW9,

then investigating officer might have drawn his own conclusion.

When compared with seized article in Crime No.1074 of 2016 of

Valapattanam police, the documents seized under Ext.P6 seizure

mahazar may throw light more on the points in controversy. It

cannot be said by any stretch of imagination that by giving those

pamphlets by PW9, he conveyed his personal knowledge after

conniving with PW1 but he conveyed the information and evidence

received from Ummer and Sheriff. This means he is giving

additional data to the Investigating agency.

43. The officers of Model Code of Conduct of Azheekode

Assembly Constituency had reported several instances of violation

to the Nodal Officer. Those reports were already marked in the

other Election Petition, E.P.11 of 2016. The learned counsel

appearing for the petitioner submitted that E.P.11 of 2016 was

filed by M.V.Nikesh Kumar against the respondent. In E.P.11 of

2016 the report of violation of MCC was marked as Ext.X1 which is

marked as Ext.X3 in this case. Another violation report dated

13.05.2016 marked as Ext.X8 in E.P.11 of 2016 is marked as

Ext.X4 in this case. Another violation report dated 14.05.2016
EL.PET.NO. 12 OF 2016 61

marked as Ext.X13 in E.P.11 of 2016 is marked as Ext.X5 in this

case. Another violation report dated 15.05.2016 marked as

Ext.X15 in E.P.11 of 2016 is marked as Ext.X6 in this case. The

seizure of notice from the house of N.P.Manorama, President of

Valapattanam Grama Panchayat by the police was mentioned in

Ext.X3 in this case. The seized notices marked in E.P.11 of 2016 as

Ext.X2 and X3, is marked as Exts.P1 and P2 in this case. The

name of person who distributed Exts.P1 and P2 on 13.05.2016,

14.05.2016 and 15.05.2016 were reported by PW14 in Ext.X4, X5

and X6 in this case. PW13 stated that he had taken follow up

action on the basis of Exts.X3 to X6. He also stated that on the

basis of Ext.X3, he issued a show cause notice on 12.05.2016 to

the respondent. The certified copy of the show cause notice

marked as Ext.X6 in E.P.11 of 2016, is marked as Ext.X7 in this

case. PW13 stated that he had obtained acknowledgement of the

receipt of the show cause notice by the respondent in Ext.X7 by

putting his signature on it. On the same day, ie 12.05.2016 he

informed about the violation to the Returning Officer also.

Another report marked in E.P.No.11 of 2016 as Ext.X7 is marked

as Ext.X8 in this case. The violation of MCC was informed to the

District Police Chief, Kannur on 14.05.2016, which was marked as

Ext.X10 in E.P.11 of 2016, and marked as Ext.X9 in this case. In
EL.PET.NO. 12 OF 2016 62

Ext.X9, he reported that defamatory notices and pamphlets were

seized from C.V.Santhosh, Sujith, Pradeepan and Prem Prakash.

The specific defence of the respondent was that the above

documents were fabricated by M.V.Nikesh Kumar with the

connivance of election officers after election to file an election

petition, but no circumstances are brought before this court to

believe that story. In cross examination it is found that different

types of notices were seized from different areas by the officers of

MCC and the above notices were personally scandalizing the

candidate. PW10 was a senior police officer of Valapattanam police

station and PW11 was the Station House Officer of that police

station. They registered the case and seized the pamphlets as

part of their official duty. PW13 and PW14 are the officers of Model

Code of Conduct of Azheekode Assembly constituency. PW12 is

also the election officer. Analysing their evidence, it is found that

they discharged their official duty in good faith and no reasons are

highlighted by the respondent to reject their evidence.

44. The defence of the respondent has to be legitimately

taken into consideration while assessing the value of the above

evidence. The respondent denied the allegations of the petitioner

and contended that he himself or his election agent or workers

with his consent or his agents consent never published or
EL.PET.NO. 12 OF 2016 63

circulated any notices or pamphlets. In this circumstance the case

of the petitioner has to be tested independently of the defence

version and analyse its proof with direct testimony. The

respondent took a total denial in his written objection and in his

oral evidence. RW1 stated that Exts.P1 and P2 notices were

printed by M.V.Nikesh Kumar, his election agents and workers after

election so as to file an election petition. The distribution of Ext.P1

and P2 on 14.05.2016 by Fazir, Shakir, Favaz, Nisham and

Rahiman among muslim voters at Thangal Vayal was denied by

RW1 but he has no direct knowledge about it, he contended that

he never gave any consent and the above persons are not

members of muslim Youth League or muslim league. But PW2

know all the workers of UDF. Fazir is the President of Muslim Youth

League and his neighbour. RW1 admitted that N.P.Manorama is

the President and the leader of INC, but she never campaigned for

him in the election work or in the public meeting and never went

for campaigning at Valapattanam with Abdul Rasheed, V.P.Noushad

and other workers. They never distributed Exts.P1 and P2 in the

house of Shameer, Favad and Faisal P.V. Even though RW1

contended that on 11.05.2016 at 6.30 am, he had not conducted

any campaigning from the house of Shameer P with

N.P.Manorama, Abdul Rasheed and V.P.Noushad, in view of the
EL.PET.NO. 12 OF 2016 64

direct evidence of PW2 and PW3, the above contention of RW1 has

no value. RW1 contended that on 12.05.2016 at 6.30 am, UDF

workers visited the house of Jaleel P P, K.C.Saleel and

V.K.Shameer and distributed Exts.P1 and P2 pamphlets is false

and unbelievable. But in view of the evidence of PW6, the above

denial is only to be discarded. Crime No.1074 of 2016 of

Baliapattam police was registered at the instance of Nikesh Kumar,

his workers and agents is unsustainable in law in view of the

evidence of PW10 and PW11. The visit of C.V.Santhosh, Sujith,

Pradeepan and Prem Prakash on 13.05.2016 at the house of

Shamal and Sudheendral and distribution of Ext.P2 pamphlet was

denied by RW1 but in view of the evidence of PW7, it is found that

the above persons visited the house and distributed the pamphlets

as alleged. A.V.Narayanan and Padmanabhan were the polling

agents of V.P.Prasad who is an independent candidate. They were

campaigning for V.P.Prasad at talkies road, Kannadiparamba with

Noufal P M and B.Ummer is also a false story. Apex Court in

Mohanlal Pangasa V. State of UP (AIR 1974 SC 1144) held that

“falsity of defence plea is a circumstance against the accused”.

This does not mean that respondent has to prove his case with the

same rigour as the petitioner is required to prove his case, on the

other hand it is sufficient if the defence succeeds in throwing a
EL.PET.NO. 12 OF 2016 65

reasonable doubt on the petitioner’s case which is enough to

enable the court to reject the petitioner’s case.

45. The discrepancies in the evidence of other defence

witnesses may be considered in this context. RW2, the member of

Narath Grama Panchayat admitted that Manorama is the President

and Rasheed is the member of Valapattanam Grama Panchayat,

both of them were elected as members of Indian National

Congress. C.V.Santhosh and Biju Ummer are the Secretaries of

District Congress Committee, Kannur. PW9 Ummer is a member of

CPIM Branch Committee, who is residing opposite to his mother’s

sister’s house. Paramban Rajeevan and Padmanabhan and

A.V.Narayanan have no political affiliation with any party. On

15.05.2016 at 11.15 am, RW2 saw them in a police vehicle and he

stated that while demonstrating dummy voting machine at

Kannadiparamba, local people and Baiju, who is the convenor of

LDF committee restrained them, when police came there, Baiju

handed over some pamphlets to the Sub Inspector of Police,

Mayyil. But the person to whom the dummy voting machine was

shown was not mentioned by this witness and not examined in this

case. In this context the evidence of PW8, Baiju is relevant.

According to him on 15.05.2016, he visited the house of Ummer

who is a voter of booth No.63, who handed over a bunch of
EL.PET.NO. 12 OF 2016 66

pamphlets to him. When he visited the house of another voter

Sheriff, he also entrusted similar notices to him. Both of them said

that the above members of the UDF Squad were distributing

pamphlets and at 1.30 pm, they were taken into custody from

talkies road with pamphlets by the Mayyil police. He filed a

complaint before Mayyil police and Ext.P3 is the copy of the

complaint. On the basis of that, Mayyil police registered Crime

No.620 of 2016. RW2 stated that the Special Squad never visited

talkies road on that date, but in view of the evidence of PW14 the

Charge Officer, MCC it is found that RW2 is lying before court. In

cross examination he stated that when he reached at

Kannadiparamba, Rajeevan, Padmanabhan and Narayanan were

found near the police jeep. This inconsistent version create a

doubt about the presence of RW2 at the place of occurence when

they were arrested by the police.

46. Analysing the evidence of RW2 with the evidence of PW8

and PW14, there is suppression of facts found in the evidence of

RW2 which is an infirmity to believe his evidence. RW2, RW3,

RW4, RW6 and RW7 are congress workers and leaders of Indian

National Congress of which RW6 and RW7 were working for

V.P.Prasad. President INC, Chirakkal Block Committee was the

chief election agent of V.P.Prasad. RW1 admitted that Kallikodan
EL.PET.NO. 12 OF 2016 67

Ragesh who appointed RW6, RW7 as agents of V.P.Prasad is a

strong supporter of the respondent. Speaking about the conduct of

these witnesses their evidence is inconsistent with each other

about entrustment of pamphlets by Baiju to the S.I, Mayyil police.

PW2 deposed that Baiju handed over some pamphlets to the S.I of

Police, Mayyil. RW6 stated that Baiju handed over bundles of

notices to the Sub Inspector. RW7 stated that Baiju handed over a

carry bag containing notices to the Sub Inspector. This witness

stated that while carrying voting machine, CPM workers detained

them. RW6 stated that while demonstrating dummy voting

machine in the house of voters at talkies road, hundreds of CPM

workers gathered and obstructed them. But RW2 stated that

while demonstrating voting machine at Kannadiparamba by the

workers of V.P.Prasad, local people restrained them. But they have

not mentioned the person who saw the demonstration and the

house they have visited. There is great danger in believing this

evidence in its face value without the backing of sure

circumstances. In the light of the evidence of police and the

officials of MCC, the evidence of the above witness is apparently

unreliable.

47. The seizure of pamphlets from R3 or from Akhil,

Sagunan, C.V.Santhosh and Prem Prakash by the police or special
EL.PET.NO. 12 OF 2016 68

squad on 13.05.2016 or any other date was denied by RW3. To

substantiate that point the Secretary, INC Chirakkal Block

Congress Committee was examined as RW4, he stated that

C.V.Santhosh and C.V.Sumith are workers of Indian National

Congress and he conducted house to house campaign with

Sagunan, Akhil and Sumith, no pamphlets were seized from him

or from Santhosh, Sumith and others. Another witness RW5

campaigned with Padmanabhan and Narayanan for V.P.Prasad,

who is an independent candidate. RW6 says that V.P.Prasad is a

rebel candidate of INC. The evidence of RW7 shows that

Kallikodan Ragesh the President of INC, Chirakkal Block

Committee was the chief election agent of V.P.Prasad. RW7

admitted that he is a member of INC and Kallikodan Ragesh

nominated him as the polling agent of V.P.Prasad. Rajeevan and

Padmanabhan campaigned with him for V.P.Prasad and they have

not distributed pamphlets, according to them while demonstrating

dummy voting machine, police arrested them and took them to

the police station. The above evidence of RW4 to RW7 have to be

viewed separately. RW4, RW6 and RW7 are workers of INC. In the

election process there are many kinds of corrupt practices, but the

defence of the persons has to be viewed separately according to

the facts of the case. If RW5 and RW7 had campaigned for
EL.PET.NO. 12 OF 2016 69

V.P.Prasad, no pamphlets of V.P.Prasad were seized from them by

the police. Moreover, the dummy voting machine was not seized

by the police when they were arrested. Against that non

production of dummy voting machine, Kallikodan Ragesh or

V.P.Prasad have not filed any complaint before police or to the

District Election Officer. For believing the defence version of RW5

to RW7, the above facts have to be fulfilled. But in the light of

the reports of the police officers, the Nodal officer and Charge

Officer, the above defence contention is rejected.

48. From the evidence of independent witnesses PW2, PW3,

PW4, PW5, PW6, PW7 and PW9, it is clear that the workers of the

respondent visited their house and distributed Exts.P1 and P2

notices on several dates, 10.05.2016, 11.05.2016, 12.05.2016,

13.05.2016, 14.05.2016 and 15.05.2016. The UDF workers of the

respondent Favaz, Fazir, Nisham, Rahiman, Shakeer, Ashraf and

other workers visited the house of PW2 and handed over Ext.P1

and P2 pamphlets. Fazir is the President of Muslim League of that

locality who is the neighbour of PW2. Nisham is a congress worker

and others are workers of muslim league. The respondent visited

the house of PW3 on 11.03.2016 at 6.30 am with other workers

Manorama, Noushad, Thaju and Azeez. The father of PW3 was the

former Secretary of the Muslim League. Smt.Manorama is the
EL.PET.NO. 12 OF 2016 70

present Panchayat President and respondent was the MLA.

Noushad handed over Exts.P1 and P2 to PW3 in the presence of

the respondent. There was a discussion among the muslim

members on returning from Mosque after prayers about the

contents in Exts.P1 and P2. PW3 categorically stated that

respondent told to him and his father not to vote for a non

muslim. Thaju and Azeez are muslim league workers and he know

Azeez and Rasheed from their childhood. PW4 stated that

Noushad, the worker of respondent told him not to vote for a non

muslim and to vote for the respondent. On 11.05.2016 at 7 am,

Manorama, Noushad, Rasheed, Shamal and his relative Saifudheen

and others visited his house and Noushad entrusted Ext.P2 notice

to him and told him not to vote for a non muslim and to vote for

the respondent. On 12.05.2016 at 6.30 am, Manorama, Rasheed,

Noushad, Ashraff, Hashim and other workers of UDF in that area

visited the house of PW6 and Noushad told him not to vote for

non muslim and entrusted Ext.P1 notice. Another voter PW8

stated that on 15.05.2016, he conducted house to house

campaign, at that time Ummer entrusted him Ext.P2 notice and he

informed the matter to the Chief election agent of Nikesh Kumar.

According to PW9 on 15.05.2016 at 7 am, Ashraff, Padmanabhan,

Rajeevan, Noufal, Unni, Dasan, Narayanan and other UDF workers
EL.PET.NO. 12 OF 2016 71

visited his house and Noufal entrusted Ext.P1 and voter’s slip.

Subsequently he handed over those notices to Baiju.

49. The F.I.R is an important document in the criminal law

procedure and its main object is to set the criminal law in motion

and from this point of view, the Investigating Officers obtain more

details about the alleged criminal activity so as to bring the guilty

person before law. The starting point of the powers of police to

investigate cognizable offences without the order of a Magistrate is

recording the first information of a cognizable offence. Therefore

the purpose of registering an F.I.R is to set the criminal

investigation into motion alone which culminates with the filing of

final report u/s.173(2) of Code of Criminal Procedure. In this

context the registration of crime No.1074 of 2016 of Valapattanam

Police and Crime No.620 of 2016 of Mayyil police have to be

analysed. Immediately after getting information about cognizable

offence, the S.I of Police, Valapattanam proceeded to the place of

occurence and conducted a search in the house of N.P.Manorama,

who is the President of Valapattanam Grama Panchayat. The

seized articles were produced before court after preparing a

search list. The Sub Inspector disclosed that there was violation of

MCC and commission of corrupt practice in the election and he

took all precaution during collection of the above pamphlet and
EL.PET.NO. 12 OF 2016 72

packing and forwarding the incriminating materials before Judicial

First Class Magistrate, Kannur. The oral and documentary evidence

of the Investigating Officer was carefully analysed by this court.

The Investigating Officer enquried about the seized pamphlets to

Manorama, at that time she answered that those pamphlets were

brought in connection with election campaign is an admissible

evidence. The Investigating Officer’s power of observation of the

information and collection of documents is free from any

infirmities and the respondents have not challenged the veracity

with convincing answers in cross examination. No procedural error

was detected by the respondent in the seizure made by the police

officers and the recovery is corroborating the oral testimony of the

other witnesses.

50. The respondent’s allegation is that the Charge Officer

hatched up a conspiracy with the police and M.V.Nikesh Kumar for

filing an election petition after the election. Then the question is

how the police and the officers of MCC seized the above

documents at Valapattanam, Kannadiparamba and other places

on different dates before election. In cross examination PW14

admitted that he did not know what action was taken by the

police after getting the above report, when he referred the

violation of Section 127 A of R P Act, 1951. In Ext.X9 there is an
EL.PET.NO. 12 OF 2016 73

acknowledgement made by the District Police Chief about the

receipt of the letter dated 13.05.2016. He also stated that one

Videographer was attached to each Special squad to videograph

their activities. It is pertinent to note that Ext.X8 contained the

seal of the office of the Returning Officer and Ext.X9 contained the

signature or initial of the receiver. If the evidence of PW13 is

believed, the defence of RW1 that the Returning Officer, District

Police Chief, Charge Officer and the Nodal Officer are lying before

court is a fairy tale suggested by the respondent. PW13 stated

that he never disbelieved the Charge Officer and all the reports

about distribution of pamphlets are from his personal knowledge.

This evidence of the Charge officer is admissible and should be

received by the Court to which it is tendered unless there is a

legal reason for its rejection. Admissibility also denotes the

absence of any applicable rule of exclusion. Facts should not be

received in evidence unless they are both relevant and admissible.

51. The learned counsel appearing for the respondent

contended that it is not permissible for the court to allow a party

to conduct a roving enquiry in the absence of any pleading. While

adverting to the above argument, I am of the view that the party

must plead the material facts and to adduce evidence to

substantiate that fact before court. On such satisfaction, the
EL.PET.NO. 12 OF 2016 74

court may proceed to adjudicate upon those issues. I have also

verified about the prima facie case, thereafter gone through the

material facts and particulars, also verified whether the

irregularities, if any, are pleaded. Respondent was given

opportunity to file objection about the pleadings and only when

pleadings and particulars are specifically mentioned in the

petition, the court proceed to decide the right of the parties

through trial. It is the settled law that a relief not pleaded in the

petition should not be granted. In an election petition the decision

of a case cannot be based on the grounds outside the pleadings of

the parties. It is the duty of the court to verify the pleadings and

thereafter setforth the issues to ascertain the corrupt practice in

an election petition, when parties to the petition differ in matters.

Apex Court in Kalyan Singh Chouhan V. C.P.Joshi (2011 KHC

4068), held that “Pleadings and particulars are required to enable

the Court to decide the rights of the parties in the trial. Thus, the

pleadings are more to help the Court in narrowing the controversy

involved and to inform the parties concerned to the question in

issue, so that the parties may adduce appropriate evidence on the

said issue. It is settled legal proposition that ‘as a rule relief not

founded on the pleadings should not be granted’. Therefore, a

decision of a case cannot be based on grounds outside the
EL.PET.NO. 12 OF 2016 75

pleadings of the parties. The pleadings and issues are to ascertain

the real dispute between the parties to narrow the area of conflict

and to see just where the two sides differ”. Apex Court in

Samant N.Balkrishna and another V. George Fernandez and

others (1969(3) SCC 238) held that ” since a single corrupt

practice committed by the candidate, by his election agent or by

another person with the consent of the candidate or his election

agent is fatal to the election, the case must be specifically pleaded

and strictly proved. If it has not been pleaded as part of the

material facts, particulars of such corrupt practice cannot be

supplied later on”.

52. Apex Court Azhar Hussain V. Rajiv Gandhi ( 1986

(Suppl.) SCC 315), held that “On a scrutiny of the averments

made in the election petition it is evident that it is not pleaded as

to who has distributed the pamphlets, when they were

distributed, where they were distributed and to whom they were

distributed, in whose presence they were distributed etc, etc.

Pleading is ominously silent on these aspects. It has not even

been pleaded that any particular person with the consent of the

respondent or his election agent distributed the said pamphlets

(in fact it has been stated by the learned counsel for the

respondent that no election agent had been appointed by the
EL.PET.NO. 12 OF 2016 76

respondent during the entire elections). The pleading therefore

does not spell out the cause of action. So also on account of the

failure to mention the material facts, the court could not have

permitted the election petitioner to adduce evidence on this point.

It would therefore attract the doctrine laid down in Nihal Singh

Case and there would be nothing for the respondent to answer. In

view of the doctrine laid down in Nihal Singh case as early as in

1970, the High Court was perfectly justified in taking the view

that no cause of action was made out. For, in the absence of

material particulars as to who had printed, published or circulated

the pamphlet, when, where and how it was circulated and which

facts went to indicate the respondent’s consent to such

distribution, the pleading would not disclose a cause of action.

There would be nothing for the respondent to answer and the

matter would fall within the doctrine laid down in Nihal Singh

case”. In short when there is no pleading, the court shall not look

into the evidence of the parties since the pleadings would not

disclose a cause of action to decide the right of the parties.

53. The first allegation is that the respondent, his election

agent, workers and other persons with the consent of the

candidate or his election agent, committed corrupt practice of

undue influence under Section 123(2) of R P Act 1951. It is clear
EL.PET.NO. 12 OF 2016 77

that if there is any direct or indirect interference or attempt to

interfere on the part of respondent, or his agent, or any other

person with the consent of candidate or his election agent, with

the free exercise of the electoral right, it amounts to undue

influence. Apex Court in Ram Sharan Yadav V. Thakur

Muneshwar Nath Singh and others (AIR 1985 SC 24), it was

held that : ” As the charge of a corrupt practice is in the nature of

a criminal charge, it is for the party who sets up the plea of ‘undue

influence’ to prove it to the guilt beyond reasonable doubt and the

manner of proof should be the same as for an offence in a criminal

case. This is more so because once it is proved to the satisfaction

of a court that a candidate has been guilty of ‘undue influence’

then he is likely to be disqualified for a period of six years or such

other period as the authority concerned under S.8A of the Act may

think fit. Therefore, as the charge, if proved, entails a very heavy

penalty in the form of disqualification, this Court has held that a

very cautious approach must be made in order to prove the charge

of undue influence levelled by the defeated candidate. The

decisions show that a charge of corrupt practice has to be proved

by convincing evidence and not merely by preponderance of

probabilities”. For ascertaining the truth it is better to scrutinise

the pleadings about the alleged corrupt practice of undue
EL.PET.NO. 12 OF 2016 78

influence. Before that the malayalam words used in Ext.P1

pamphlet has to be verified. It reads as follows:

“കകാരുണണ്യവകാനകായ അലകാഹുവവിനന്റെ അടൂക്കൽ അമുസവിസ്ലിംകൾക

സകാനമവില.. അനണ്യ നകാളളീൽ അവർ സവിറകാതവിനന്റെ പകാലസ്ലിം ഒരവിക്കലസ്ലിം

കടകകയവില.. അവർ നചെകുതകാനന്റെ കൂനട അനവി ഉറങങ്ങേണ്ടവരകാണ

അഞ്ചു ങനരസ്ലിം നമസ്കരവിച്ചു നമ്മൾക ങവണ്ടവി കകാവൽ ങതേടുന്ന ഒരു

മുഹവിനകായ നക.മുഹനമ്മദദ് ഷകാജവി എന്ന നക.എസ്ലിം.ഷകാജവി

വവിജയവിക്കകാൻ എലകാ മുഹമവിനുകളസ്ലിം അലകാഹുവവിങനകാടു

പകാർതവികക..

” സതേണ്യ വവിശശകാസവികനള ഒരു അധർമ്മകകാരവി വല വകാർതയസ്ലിം നകകാൺടു

നവിങളനട അടുത്തു വന്നകാൽ നവിങ്ങേളതേവിനന പറവി വണ്യക്തമകായവി

അങനശഷവിചെചെറവിയണസ്ലിം അറവിയകാനതേ എനനങവിലസ്ലിം ഒരു ജനതേക്കദ്

നവിങ്ങേൾ ആപതദ് വരുത്തുകയസ്ലിം എന്നവിട്ടു ആ നചെയ്തതേവിനന്റെ ങപരവിൽ

നവിങ്ങേൾ ങഖേദക്കകാരകായളീ തേളീരുകയസ്ലിം നചെയയകാതേവിരവിക്കകാൻ ങവൺടവി”..

It is stated in Ext.P1(a) that there is no place for non muslim near

the merciful Allah and they will not cross the bridge of ‘Sirath’.

They are doomed to sleep with the devil and requested the muslim

voters to pray to Allah to bless the first respondent, a Muslim, who

prays five times a day and stands guard over us. He quoted the
EL.PET.NO. 12 OF 2016 79

wordings from quran which reads thus: “Believers, when a wrong-

doer brings to you any news, you need to find the truth behind it.

You do this so that you do not bring any danger to any populace

unknowingly and later be forced to repent for the said deed.

(Hujurath 49:06)”. Multi colour photograph of the respondent and

his election symbol ‘ladder’ were published in Ext.P1. The above

facts are pleaded in paragraph 3 of the petition and PW1 stated

that those pleadings are sufficient to prove the undue influence

made by the respondent among the muslim voters in the

constituency. I have perused Ext.P1, the caption was written in

arabic language and the remaining portion was printed in

Malayalam language. It is true that the same words in Ext.P1(a)

are not used in the pleadings but the substance of the allegations

in Ext.P1 is specifically pleaded.

54. There is no set of procedure or formula to lay down as

to how a charge of undue influence can be proved, but if all the

circumstances taken together show that the voters were

pressurised, at the instance of either the candidate or his

supporters or agents with his consent or with his agents’ consent

that should be sufficient ground to prove undue influence. It

appears from the evidence of the above independent witnesses

that the corrupt practices are made by the agent, supporters and
EL.PET.NO. 12 OF 2016 80

other workers as instructed by the respondent. It amounts to say

that undue influence had been committed not only by the

respondent but also by his agents and workers. A person is said to

be induced by undue influence where the relationship existing

between the parties are such that one of the parties is in a

position to dominate the will of the other and uses that position to

obtain an unfair advantage over the other. In other words, where a

person who is in a position to dominate the will of another by the

verbal transaction appears on the face of it, or on the evidence,

taking undue advantage such contact is an undue influence and

the person in the position dominates the will of the other.

Petitioner urged that the above attempt is made by the

respondent directly, it shall be deemed to interfere with the free

exercise of electoral right of the voters. Apex court in Ziyauddin

Burhanuddin Bukhari V. Brijmohan Ramdas Mehra and

others (AIR 1975 SC 1788) held that “Section 123(2) of the

Representation of People Act, 1951 defines the term ‘undue

influence’. This could be exercised by a candidate or his agent

during an election. The concept under the election laws is the

same as expression as used under the Contract Act, 1872. The

Courts have to determine the effect of statement proved to have

been made by a candidate or on his behalf and with his consent,
EL.PET.NO. 12 OF 2016 81

during his election, upon the minds and feelings of the ordinary

average voters of the country in every case of alleged corrupt

practice of undue influence by making statements”.

55. Petitioner examined independent witnesses PW2, PW3,

PW4, PW5, PW6, PW7 and PW9 to prove the allegation of undue

influence. Their evidence show that the workers of the respondent

visited their house and distributed Exts.P1 and P2 in their house to

house campaign. PW2 in his evidence stated that on 10.05.2016,

11.05.2016, 12.05.2016, 14.05.2016 and 15.05.2016, Favaz,

Fazir, Nisham, Rahiman, Shakeer, Ashraf and other workers visited

his house and handed over Exts.P1 and P2 pamphlets. Fazir, the

President of Muslim League, who is his neighbour, handed over

notices. Nisham is a congress worker and others are workers of

muslim league. The evidence of PW3 shows that the respondent

visited his house on 11.05.2016 at 6.30 am with Manorama,

Noushad, Thaju and Azeez and influence him. The father of PW3

was the former Secretary, Muslim League. Smt.Manorama is the

Panchayat President and respondent was the MLA, Noushad

handed over Exts.P1 and P2 in the presence of the respondent.

There was a discussion among the muslim members about Exts.P1

and P2 while returning from Mosque after prayers. PW3 asserted

that respondent told to him and his father, not to vote for a non
EL.PET.NO. 12 OF 2016 82

muslim is a direct evidence of undue influence. Thaju and Azeez

are muslim league workers and he knows Azeez and Rasheed from

their childhood. PW4 stated that Noushad handed over Ext.P1

notice and told him not to vote for a non muslim and to vote for

the respondent. On 11.05.2016 at 7 am, Manorama, Noushad,

Rasheed, Shamal and his relative Saifudheen and others visited

his house and Noushad entrusted Ext.P1 notice to him and told

him not to vote for a non muslim and to vote for the respondent.

On 12.05.2016 at 6.30 am, Manorama, Rasheed, Noushad,

Ashraff, Hashim and other workers of UDF in that area visited the

house of PW6 and Noushad told him not to vote for non muslim

and entrusted Ext.P1 notice. On 15.05.2016 at 7 am, Ashraff,

Padmanabhan, Rajeevan, Noufal, Unni, Dasan, Narayanan and

other UDF workers visited the house of PW9 and Noufal entrusted

Ext.P1 and the voter’s slip and influenced him. This direct evidence

is believable to prove undue influence of the respondent.

56. On a reading of the definition of “undue influence” in

Section 123(2) of the Representation of People Act, 1951 it is

understood that it cover every conceivable act which directly or

indirectly interferes or attempts to interfere with the free exercise

of electoral right. The words used in Ext.P1 is that there is no

place for non muslim near the merciful Allah and they will not
EL.PET.NO. 12 OF 2016 83

cross the bridge of ‘Sirath’. They are doomed to sleep with the

devil and requested the muslim voters to pray to Allah to bless the

respondent, a Muslim, who prays five times a day and stands

guard over us. The above words in Ext.P1 along with the request

of the respondent and his workers gave a vigorous propaganda

to induce an elector to believe that he will be rendered to divine

displeasure or spiritual censures, if he does not vote for

respondent. This position has been explained by the apex court in

Krishnamoorthy V. Sivakumar and others (2015(3) SCC

467)and it was held that “If there is any direct or indirect

interference or attempt to interfere on the part of the candidate, it

amounts to undue influence”. The substance of the allegation has

to be examined whether the respondent, his agent, workers and

supporters made any direct or indirect attempt to make undue

influence among the voters at various places of the constituency.

In Aad Lal V Kanshi Ram (AIR 1980 SC 1358) apex court held

that it is an essential ingredient of the corrupt practice of ‘undue

influence’ under Section 123(2) of the Representation of People

Act, 1951 that there should be ‘direct or indirect interference or

attempt to interfere’ on the part of the candidate or his agent, or

of any other person with the consent of the candidate or his agent,

‘with the free exercise of any electoral right’. The evidence of the
EL.PET.NO. 12 OF 2016 84

independent witnesses show that the voters were pressurised

directly and indirectly by the respondent. They said that Ext.P1

pamphlet was published among the voters, by the respondent

and his agents which proves the inducement. When there is an

object of divine displeasure or spiritual censures in Ext.P1, a

corrupt practice under Section 123(2)(a)(ii) of the R P Act 1951 is

proved.

57. The next allegation is that the respondent and his agent

and other persons with the consent of the candidate or his election

agent, appealed to refrain from voting for M.V.Nikesh Kumar who

is a non muslim. An appeal by a candidate or his agent or by any

other person with the consent of a candidate or his election agent

to vote or refrain from voting for any person on the ground of

religion, race, caste or community is a corrupt practice for the

purpose of Section 123(3) of the R P Act, 1951. A candidate

cannot be allowed to contest in an election on the ground of

religion or caste, in this context, what are the pleadings and

evidence to prove such corrupt practice have to be examined by

this court. Bearing in mind first, I have examined whether there

was specific pleadings in the petition about the alleged corrupt

practice under Section 123(3) of the R P Act, 1951. Petitioner

pleaded the substance of the allegation in paragraph 3 of the
EL.PET.NO. 12 OF 2016 85

petition about the corrupt practice. The pleadings show that

respondent is a Muslim, he wanted the muslim voters to vote for

him on the basis of his religion, for that he appealed to the Muslim

community to vote for him. It is alleged that he circulated Ext.P1

pamphlets among the voters of the Constituency. In Manohar

Joshi V. Nithin Bhaurao Patil and another (1996(1) SCC 169)

it was held that “in order to constitute corrupt practice, it must be

pleaded that appeal was made on the ground of religion and the

ingredients constituting corrupt practice must be pleaded and

proved”. It is stated in Ext.P1(a) that there is no place for non

muslim near the merciful Allah and they will not cross the bridge

of ‘Sirath’. They are doomed to sleep with the devil and requested

the muslim voters to pray to Allah to bless the respondent, it is

asserted that he is a Muslim and prays five times a day and

stands guard over us. He quoted the wordings from quran which

reads thus: “Believers, when a wrong-doer brings to you any

news, you need to find the truth behind it. You do this so that you

do not bring any danger to any populace unknowingly and later be

forced to repent for the said deed. (Hujurath 49:06)”. Petitioner

pleaded about the persons who distributed the pamphlets at

different places of the constituency. The malayalam words used in

Ext.P1 are stated in the earlier paragraph.

EL.PET.NO. 12 OF 2016 86

58. The respondent contended that the words used in

Ext.P1 does not disclose any cause of action for a corrupt practice

on the ground of religion. The disclosure of a cause of action in the

election petition is a question of fact and the answer to that

question must be found from the reading of the election petition

itself. The Court trying an election petition shall examine whether

the petition discloses a cause of action, to assume that the

averments made in the petition are factually correct. If the

averments are taken as factually pleaded, the Court finds cause of

action emerging from the averments that it may be justified in the

petition. In this context Apex Court held in Ponnala Lakshmaiah

V. Kommuri Pratap Reddy and others (2012 KHC 4358) that

the Courts are, therefore, duty bound to examine the allegations

whenever the same are raised within the framework of the statute

without being unduly hyper-technical in its approach without

being oblivious of the ground realities. The expression ’cause of

action’ has acquired a judicially settled meaning. In the restricted

sense ’cause of action’ means the circumstances forming the

infraction of the right or the immediate occasion for the reaction.

In the wider sense, it means the necessary conditions for the

maintenance of the suit, including not only the infraction of the

right, but also the infraction coupled with the right itself.
EL.PET.NO. 12 OF 2016 87

Compendiously, as noted above the expression means every fact,

which it would be necessary for the plaintiff to prove, if traversed,

in order to support his right to the judgment of the Court. Every

fact, which is necessary to be proved, as distinguished from every

piece of evidence, which is necessary, to prove each fact

comprises in ’cause of action’.

59. In Raj Narain V. Indira Nehru Gandhi and Another,

1972 KHC 648: 1972(3) SCC 850 : AIR 1972 SC 1302: 1972(3)

SCR 841, apex Court held that if allegations regarding a corrupt

practice do not disclose the constituent parts of the corrupt

practice alleged, the same will not be allowed to be proved and

those allegations cannot be amended after the period of limitation

for filing an election petition. Rules of pleadings are intended as

aids for a fair trial and for reaching a just decision. An action at

law should not be equated to a game of chess. Provisions of law

are not mere formulae to be observed as rituals. Beneath the

words of a provision of law, generally speaking there lies a juristic

principle. It is the duty of the court to ascertain that principle and

implement it.

60. The independent witness PW2 who is a muslim voter in

Booth No.94 deposed that UDF workers Favaz, Fazir, Nisham,

Rahman, Shakeer, Ashraff and others visited his house at Thangal
EL.PET.NO. 12 OF 2016 88

vayal on 10.05.2016, 12.05.2016, 14.05.2016 and 15.05.2016.

On 14.05.2016 Fazir handed over Ext.P1 to him. PW3 is residing at

Manna, Valapattanam within booth No.91 of the Constituency is a

muslim, who deposed that the respondent himself present with

others in his house on 11.05.2016 at 6.30 am. Respondent was

his MLA at that time. Manorama is the present President of

Valapattanam Panchayat, Rasheed, Noushad, Thaju and Azeez

were also with the respondent. The father of PW3 was the former

Secretary of Indian Union Muslim League, Manna, Valapattanam.

His father, mother, wife, sisters and other family members were

present, at that time, respondent told to PW3 and to his father,

not to vote for a non muslim and vote for him. Noushad at that

time handed over six notices to him and Exts.P1 and P2 were

separately given to him. In the ultimate analysis, it is found that

Smt.Manorama is the present Panchayat President and Noushad

was the former Panchayat president of Valapattanam Grama

Panchayat and both of them belong to Indian National Congress.

61. Now I would like to consider the evidence of PW4 who is

residing in Ward No.9 of the Constituency. His evidence shows

that on 11.05.2016 at 11 am, his relative Saifudheen and other

UDF workers Manorama, Noushad, Rasheed, Shamal, and other

workers visited his house and Noushad entrusted him Exts.P1 and
EL.PET.NO. 12 OF 2016 89

P2 notices and told him not to vote for a non muslim candidate

and to vote for the respondent. PW5 is a voter in booth No.91 and

he is residing at Manna, Valapattanam. His evidence shows that

the workers of respondent viz, Manorama, Rasheed, Noushad,

Azeez and Thajudheen visited his house on 11.05.2016 and

15.05.2016. On 11.05.2016 at 6.30 pm, the above persons along

with the respondent was present in the house of his neighbour

Shameer. After visiting the house of Shameer, respondent left the

place and other workers visited his house and Manorama entrusted

two or three pamphlets to him and explained the details in the

pamphlets and requested to vote for the respondent. Another

voter PW6 who is residing at Boat jetty and a voter in booth No.92

stated that on 12.05.2016 at 6.30 am, Manorama, Rasheed,

Noushad, Ashraf, Hashim and other workers of UDF visited his

house, at that time Noushad handed over five or six notices which

includes Exts.P1 and P2 and told him to vote for Shaji and not to

vote for a non muslim. Subsequently PW6 handed over those

notices to Abdul Nazar. PW7 who is residing at Pallikunnu

Chettipeedika and a voter in Booth No.98 stated that on

13.05.2016 at 7.30 pm, C.V.Santhosh, C.V.Sumith, Prem Prakash

and Pradeepan visited his house and handed over notice and

pamphlets to him. PW9 who is a voter residing at talkies road and
EL.PET.NO. 12 OF 2016 90

a voter in booth No.63 stated that on 15.05.2016 at 7 am, UDF

workers Ashraff, Padmanabhan, Rajeevan, Noufal, Unni, Dasan,

Narayanan and others visited his house and Noufal gave Exts.P1

and P2 notices to him and told him to vote for the respondent.

62. In this context, the word ‘മുഹവി ൻ ‘ used in Ext.P1 has to

be analysed. The word ‘മുഹവിൻ ‘ means muslim. Muslim voters pray

to Allah for the victory of the respondent, a muslim and no place

for non muslim near merciful Allah is an appeal on the ground of

religion. Muslim voters have to bless the respondent and cast their

votes for him. This is a direct request to vote on the ground of

muslim religion and a request not to vote for a non muslim. The

muslims not to bless a non muslim in election means not to vote

for a non muslim. This method of appeal by a candidate or his

agent or by any other person with the consent of the candidate or

his election agent to vote for respondent and to refrain from voting

for Nikesh Kumar on the ground of religion would be corrupt

practice. It is alleged that he circulated Ext.P1 pamphlets among

the voters of the Constituency. In Ext.P1 it is stated that there is

no place for non muslim near the merciful Allah and they will not

cross the bridge of ‘Sirath’. They are doomed to sleep with the

devil and requested the muslim voters to pray to Allah to bless the

respondent, it is asserted that the respondent is a Muslim and
EL.PET.NO. 12 OF 2016 91

prays five times a day and stands guard over muslims.

63. Apex Court in S.Harcharan Singh V. S.Sajjan Singh

and others(AIR 1985 SC 236) held that even a single appeal by

a candidate or his agent or by any other person with the consent

of the candidate or his election agent to vote or refrain from

voting for any person on the ground of his religion, race, caste or

community etc would be corrupt practice. In Janak Sinha V.

Mahant Ram Kishore Das (1972 KHC 335) it was observed that

the distribution of the pamphlet appealing for votes in the name of

caste was made in the presence of the appellant and the letter

had, apart from distributing the pamphlet, also made an oral

appeal to vote for him on the basis of caste, he being a Rajput.

Therefore, the making of appeal on the basis of caste by means of

the pamphlet and orally by the appellant and by his agent or

supporter DW5, with his consent, is clearly established. Apex

Court held in Kultar Singh V. Muktiar Singh (AIR 1965 SC 141)

that appeal to voters on ground of religion can be a corrupt

practice even though rival candidates belong to same religion. In

Jamuna Prasad V. Lachhi Ram (AIR 1954 SC 686), it was held

that special appeal made on caste basis, is minor corrupt practice.

In Z.B.Bhukari V. B.R.Mehra (AIR 1975 SC 1788) it was held

that appeal on grounds of religion and promoting hatred on
EL.PET.NO. 12 OF 2016 92

ground of religion, is corrupt practice. Apex court in Kalamata

Mohan Rao V. Narayana Rao, Dharmana (AIR 1996 SC 535)

held that where returned candidate was canvassing through poster

posted on walls at different places in constituencies and it was

evident that contents of poster amounted to an appeal by

candidate for votes on the ground of his religion.

64. The evidence of independent voters shows that the

distribution of Ext.P1 pamphlet created an impression among the

muslim voters of Azheekode Assembly Constituency not to vote for

M.V.Nikesh Kumar, who is a non muslim. The workers of the

respondent demanded the muslim voters to refrain from voting for

a non muslim. The appeal by a candidate and other person with

the consent of a candidate or his election agent to refrain from

voting for non muslim on the ground of religion is a corrupt

practice for the purpose of Section 123(3) of the R P Act, 1951. It

prohibits a citizen to vote or refrain from voting for any person on

the ground of caste, religion, race, community or language. It

means that the religion of a candidate cannot be used for political

benefits by seeking votes on the ground of candidate’s religion.

The electoral process is vulnerable to misuse in several ways. For

obtaining the clear picture of such misuse, the court has to

analyse the evidence independently then it will show that it is
EL.PET.NO. 12 OF 2016 93

completely different from the real facts. If courts adopt a

technical approach in election disputes, the confidence of the

people will be seriously undermined not only in the democratic

process but also in the judicial determination. Apex Court in

several pronouncements emphasised the need to maintain the

purity of election for strengthening the democratic values of this

country. Several experiences have shown that the electoral

process in spite of the safeguards taken by the statutory

authorities often vitiated by use of means that are specifically

forbidden by the statute.

65. Another allegation is that the respondent, his agent

and the other workers published defamatory pamphlets and

notices alleging false statement of facts to prejudice the election of

M.V.Nikesh Kumar. The publication of defamatory pamphlets or

notices by a candidate or his election agent or any other person

with the consent of the candidate or his election agent is a corrupt

practice under Section 123(4) of the R P Act 1951. The

responsibility of the candidate arises if he is the publisher of the

pamphlets. He is equally responsible for the publication if it is

published by his agent or other person with his consent or his

agent’s consent. The petitioner’s allegation is that the respondent

or his election agent or his workers or other persons with the
EL.PET.NO. 12 OF 2016 94

consent of the respondent or his election agent had published

Ext.P2 pamphlet at Azheekode Assembly Constituency and the

statement of facts in Ext.P2 are false and the respondent either

believes to be false or does not believe to be true in relation to the

personal character or conduct of M.V.Nikesh Kumar. PW1

contended that the statement in Ext.P2 are made to prejudice the

election prospects of M.V.Nikesh Kumar and it is corrupt practice

under Section 123(4) of R P Act 1951. The above section says

about the responsibility of the candidate for the publication of any

pamphlet and equally says about the responsibility of the election

agent if any publication is made by him. He is also responsible

where notice is published by any other person with the consent of

the candidate or his election agent. According to Section 123(4) of

R P Act, the 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. Therefore the

responsibility of the candidate is that if he either believes the

statement to be false or does not believe it to be true, would be

sufficient to attract the above corrupt practice.

66. The burden of proof that the candidate published

defamatory pamphlet is upon the complaining person. This

position has been explained by the apex court in Kumara Nand
EL.PET.NO. 12 OF 2016 95

V. Brijmohan Lal Sharma (AIR 1967 SC 808), it was held as

follows:-

“The burden of proving that the candidate publishing the

statement believed it to be false or did not believe it to be

true though on the complaining candidate is very light and

would be discharged by the complaining candidate

swearing to that effect. Thereafter it would be for the

candidate publishing the statement to prove otherwise.

The question whether the statement was reasonably

calculated to prejudice the prospects of the election of the

candidate against whom it was made would generally be a

matter of inference. So the main onus on the election

petitioner under S.123(4) is to show that a statement of

fact was published by a candidate or his agent or by any

other person with the consent of the candidate or his

election agent and also to show that that statement was

false and related to his personal character or conduct.

Once that is proved and the complaining candidate has

sworn as above indicated, the burden shifts to the

candidate making the false statement of fact to show what

his belief was. The further question as to prejudice to the

prospects of election is generally a matter of inference to

be arrived at by the tribunal on the facts and circumstances

of each case”.

EL.PET.NO. 12 OF 2016 96

In Harkirat Singh V. Aminder Singh, 2006 KHC 2014 :

2005(13) SCC 511 : AIR 2006 SC 713, apex Court once again

stated the distinction between material facts and particulars and

declared that material facts are primary and basic facts which

must be pleaded by the plaintiff while particulars are details in

support of those facts meant to amplify, refine and embellish the

material facts by giving distinct touch to the basic contours of a

picture already drawn so as to make it more clear and informative.

67. The charge of corrupt practice constituting the ingredients

are the ‘material facts’ and in an election petition, petitioner has

to plead material facts. If a party fails to plead even a single

material fact, it amounts to violation of Section 83(1)(a) of R P

Act, 1951. Material particulars on the other hand are the details

of the material facts already pleaded in the petition. In this

backdrop, it is better to examine whether material facts are

specifically pleaded in this petition. All primary facts to establish

the existence of a ’cause of action’ or defence by the party to

prove in a trial are the material facts. Apex Court in Gadakh

Yashwantrao Kankarrao V. Balasaheb Vikhe Patil and

others (AIR 1994 SC 678) held as follows:- “The primary

requirement of Section 123(4) are that the statement should be a

‘statement of fact’ which is ‘false’, and which the maker either ‘believes
EL.PET.NO. 12 OF 2016 97

to be false’ or ‘does not believe to be true’. If these requirements are

not satisfied, the further inquiry to ascertain the satisfaction of the

remaining requirements of S.123(4) serves no useful purpose. No

doubt, the burden of proving the satisfaction of all these requirements

is on him who alleges commission of the corrupt practice. The onus of

leading evidence relating to some requirements is however light in view

of their nature. Once the initial onus is discharged, the onus shifts to

the other side. For proving the statement of fact to be ‘false’, the initial

onus is discharged and the burden shifts to the other side by assertion

of its falsity on oath whereafter it is for the other side to rebut the

same. Similarly, the nature of belief of the maker being primarily

related to the state of mind of the maker, the initial burden is

discharged by an assertion on oath to that effect. If there be any

circumstances relevant for proving and justifying the belief of the

maker, that also would be a matter of evidence. The maker of the

statement knows best the material on which his belief was formed and,

therefore, it is for him to prove the same. Whether the maker of the

statement believed it to be false or did not believe it to be true, is then

ordinarily a matter of inference from the facts so proved”. T he

strictness of pleadings in election petition and the pleadings

necessary to raise a triable issue of the corrupt practice under

Section 123(4) of the R P Act 1951 are settled in the above

decision.

68. The pleadings in paragraph 4 of the election petition
EL.PET.NO. 12 OF 2016 98

starts with “veedu nokkathavanu naadu nannakkan kazhiyumo ?”

This means that “can the one who do not care his family do

something for the betterment of his nation”. It is also pleaded in

paragraph 4 of the petition that Nikesh Kumar has illicit

relationship with Saritha S.Nair who is allegedly involved in the

Solar Scam and also contain the photograph of Nikesh Kumar with

Saritha. It also contained the photograph of Nikesh Kumar with his

wife and children. Ext.P2 also carries another caption in bold

letters “vivaha mochanam”. It is also published in Ext.P2 that his

wife has got evidence of telephone calls and SMS messages and

she will be submitting those details before court. The torn

photograph of Nikesh Kumar with his wife and children is

published in Ext.P2. On the top of the above family photograph, a

small photograph of petitioner with Saritha S Nair is also

published. In Ext.P2, the malayalam words used are as follows:-

” വളീടു ങനകാക്കകാതവനു നകാടു നന്നകാക്കകാൻ കഴവിയങമകാ ? വവിവകാഹ

ങമകാചെനസ്ലിം സരവിതേ നവിങകഷദ് ബനസ്ലിം ; നവിങകഷസ്ലിം ഭകാരണ്യദ് റകാണവിയസ്ലിം

തേമ്മവിൽ വവിവകാഹ ങമകാചെനതവിങലക ; വവിവകാഹ ങമകാചെന

ഹർജവിനക്കകാപസ്ലിം നവിങകഷസ്ലിം സരവിതേയസ്ലിം തേമ്മവിലള്ള നൂറു കണക്കവിനു

ങഫകാൺ ങകകാളകളൂനട ങരഖേ റകാണവി ങകകാടതേവിയവിൽ

സമർപവികനമന്നു സൂചെന;”.

EL.PET.NO. 12 OF 2016 99

The corrupt practice under Section 123(4) of R P Act is pleaded in

paragraph 4. The material particulars are specifically pleaded in

the different paragraphs of the election petition. Several incidents

of distribution and the person who distributed Ext.P2 and the

person who stocked Ext.P1 and P2 were specifically pleaded in this

petition. Even though first respondent contended that the petition

lacks proper pleadings about material facts and material

particulars to attract a corrupt practice under Section 123(4) of R

P Act, 1951 on a perusal of the petition, it is clear that the details

are pleaded in consonance with the corrupt practice.

69. The evidence of independent witnesses shows that the

workers of the respondent visited the houses of the voters and

distributed defamatory pamphlets. Favaz, Fazir, Nisham, Rahiman,

Shakeer, Ashraf and other workers visited the house of PW2 on

10.05.2016, 11.05.2016, 12.05.2016, 13.05.2016, 14.05.2016

and 15.05.2016, but on 14.05.2016 at 11.15 am Favaz, Fazir,

Nisham, Rahman, Shakeer, Ashraf and others visited his house

and Fazir handed over Ext.P2. Fazir is the President of Muslim

League who is the neighbour of PW2. Nisham is a congress worker

and others are workers of muslim league. PW2 is a muslim voter

in booth No.94 of the Azheekode Assembly Constituency. The

evidence of PW3 shows that Manorama, Noushad, Thaju and
EL.PET.NO. 12 OF 2016 100

Azeez visited the house of PW3 on 11.05.2016 at 6.30 am. The

father of PW3 was the former Secretary of the Muslim League.

Smt Manorama is the Panchayat President and respondent was the

MLA, in their presence Noushad handed over Exts.P1 and P2 to

PW3. There was a discussion among the muslim members on

returning from Mosque after prayers about the contents in the

pamphlets. PW3 is a muslim voter, he stated that respondent

instigated Noushad to distribute the defamatory pamphlets. Thaju

and Azeez are muslim league workers and he knows Azeez and

Rasheed from their childhood. PW4 also admitted that he received

Ext.P2 notice. Noushad, the worker of respondent distributed

notices to him and requested to vote for the respondent. PW4

also stated that on 11.05.2016 and 15.05.2016, UDF workers

visited his house. On 11.05.2016 at 7 am, Manorama, Noushad,

Rasheed, Shamal and his relative Saifudheen and others visited

his house and Noushad entrusted Ext.P2 notice to him and told

him to vote for the respondent. PW6 stated that on 12.05.2016 at

6.30 am, Manorama, Rasheed, Noushad, Ashraff, Hashim and

other workers of UDF in that area visited his house and Noushad

entrusted notices. PW8 stated that on 15.05.2016 he conducted

house to house campaign, at that time Ummer entrusted him

Ext.P2 notice and he informed the matter to Chief election agent
EL.PET.NO. 12 OF 2016 101

of Nikesh Kumar. PW9 stated that on 15.05.2016 at 7 am, Ashraff,

Padmanabhan, Rajeevan, Noufal, Unni, Dasan, Narayanan and

other UDF workers visited his house and Noufal entrusted the

above pamphlets and voter’s slip. Subsequently he handed over

those notices to Baiju. PW11 admitted that Abdul Nazar K T

handed over Exts.P1 and P2 notices on 12.05.2016, after

preparing Ext.P6 seizure mahazar, the notices were taken into

custody. PW13 also stated that he received the report about the

seizure of pamphlets from PW14 on 12.05.2016, 13.05.2016,

14.05.2016 and 15.05.2016 from different parts of the

constituency which was seized by him as part of his official duty.

The evidence of Charge Officer also shows that he seized the

above notice on 12.05.2016, 13.05.2016, 14.05.2016 and

15.05.2016 from different parts of the constituency. It appears

from the above evidence that the charge of corrupt practice by the

respondent, his agent, supporters and other workers are proved in

this case and the workers distributed the pamphlets as instructed

by the respondent.

70. In Vadivelu Thevar’s case (supra) it was held that the

court is concerned with the quality of evidence and not with the

quantity of the evidence necessary for proving or disproving a fact.

In this case oral testimony was classified into three categories,
EL.PET.NO. 12 OF 2016 102

namely (1) wholly reliable, (2) wholly unreliable and (3) neither

wholly reliable nor wholly unreliable. If the evidence is wholly

reliable, the court should have no difficulty in coming to its

conclusion either it may convict or may acquit on the testimony of

a single witness, if it is found to be above reproach or suspicion of

interestedness, incompetence or subornation. If it is unreliable,

the court has no difficulty in coming to its conclusion. But if the

evidence is neither wholly reliable nor wholly unreliable, the court

has to be circumspect and has to look for corroboration in material

particulars by reliable testimony, direct or circumstantial.

Irrespective of the quality of the oral evidence of a single witness,

if courts were to insist on plurality of witnesses in proof of any fact,

they will be indirectly encouraging subornation of witnesses. In

certain cases there may arise situations where only a single person

is available to give evidence in support of a disputed fact. In that

circumstance, the court naturally has to weigh carefully such a

testimony and if it is satisfied that the evidence is reliable and free

from all taints which tend to render oral testimony open to

suspicion, it becomes its duty to act upon such testimony. The

apex court also stated exceptions to this rule, for example, in

cases of sexual offences or of the testimony of an approver; both

these are cases in which the oral testimony is, by its very nature,
EL.PET.NO. 12 OF 2016 103

suspect, being that of a participator in crime. But, where there are

no such rules, it becomes the duty of the court to convict, if it is

satisfied that the testimony of a single witness is reliable.

71. The evidence of PW1 shows that Ext.P2 and other

pamphlets were circulated by the respondent and other workers

of the respondent with the consent of the respondent or his agent

on 11.05.2016, 12.05.2016, 13.05.2016, 14.05.2016 and on

15.05.2016. The facts published in Ext.P2 pamphlet have affected

the personal character and conduct of M.V.Nikesh Kumar and his

family. PW1 stated that the respondent believes that the facts

published in Exts.P2 are false and untrue which affected the

reputation of the candidate and his election prospects. It is stated

in Ext.P2 that Nikesh Kumar has relationship with one Saritha, an

accused in solar scam, for that reason his wife is going to file a

divorce petition before family court. Smt Saritha is an accused in

the solar scam case which was a major issue in 2016 General

Assembly Election in Kerala. It is significant to note that the facts

published in Exts.P2 pamphlets are false and untrue with intention

to defame the reputation of the candidate and it created a

misunderstanding among the voters. The independent witnesses

PW2, PW3, PW4, PW5, PW6, PW7 and PW9 are voters of the

constituency, they stated that on reading the contents in Ext.P2,
EL.PET.NO. 12 OF 2016 104

a wrong impression was created in their mind about Nikesh

Kumar. When the workers of LDF visited their house in connection

with election campaign, some of the voters asked how they could

cast vote for such a candidate like Nikesh Kumar and enquired

whether he was of such a character. Analysing their evidence it is

found that the statement of facts mentioned in Ext.P2 created

bad impression among voters. RW1 was present in the house of

PW3 when Ext.P2 was given in his house. The present President

and former President of Valapattanam Grama Panchayat were

present when Ext.P2 was served in that house. RW1 was aware of

the facts in Ext.P2 and he believed it to be false or did not believe

it to be true. This falsity of belief of the maker at the time of

making the statement of facts is enough to attract a corrupt

practice under Section 123(4) of the R P Act, 1951. PW1 in his

evidence deposed that the statement was false and not about the

hypothetical future possibility of the candidate. The belief of RW1

about the falsity or the lack of belief in its truth is clear from his

reply which was admitted by RW1 in his written statement. RW1

admitted that all facts stated in Ext.P2 are related to the personal

character of the candidate. This statement was made reasonably

calculated to prejudice the election prospects of the candidate.

Analysing the evidence of the voters PW2, PW3, PW4, PW5, PW6,
EL.PET.NO. 12 OF 2016 105

PW7 and PW9 false statement has been published and the

requirement of all ingredients attracting Section 123(4) is fulfilled

in this case.

72. In Mohan Singh V. Bhanwarlal (AIR 1964 SC 1366)

it was held that in considering whether a publication amounts to a

corrupt practice within the meaning of Section 123(4) of the

Representation of People Act, 1951, the Tribunal would be entitled

to take into account matters of common knowledge among the

electorate and read the publication in that background, for one of

the ingredients of the particular corrupt practice is the tendency of

the statement in the publication to be reasonably calculated to

prejudice the prospects of that candidate’s election. The test in

cases under Section 123(4) is whether the imputation beside

being false in fact, is it published with the object of lowering the

candidate in the estimation of the electorate and calculated to

prejudice his prospects at the election. And in ascertaining

whether the candidate is lowered in the estimation of the

electorate, the imputation made must be viewed in the light of

matters generally known to them.

73. The respondent contended that the name of the press

and the place where the pamphlets were printed was neither

pleaded nor proved. A perusal of Exts.P1 and P2 pamphlets show
EL.PET.NO. 12 OF 2016 106

that the place where it was printed was not mentioned, but it is

stated that the above pamphlets were published by “President,

Indian Overseas Congress, Kannur Jilla Committee”. The evidence

of RW1 shows that no such organization functions at Kannur and

Indian National Congress has no such organization in Kannur. It is

an admitted fact that Valapattanam police and Mayyil police had

seized pamphlets on different dates, but they have not taken any

action against the person who printed those pamphlets. When

Ext.P1 and P2 pamphlets are distributed in the presence of the

returned candidate, the only inference that can be drawn is that

the publication was made with the consent of the respondent.

Therefore the direction could have come from the respondent or

his election agent. In such situation, the question of publication

and distribution can be considered on the basis of evidence of

independent witnesses PW2, PW3, PW4, PW5, PW6, PW7 and PW9

available in a case. Apex Court in Rahim Khan’s case (supra)

held in paragraphs 35 and 37 as follows:-

“35. Unfortunately when such printed material is circulated there is

no agency of the law which takes prompt action after due

investigation, with the result that no printer or candidate or other

propagandist during elections bothers about the law and he is able

successfully to spread scandal without a trace of the source,

knowing that nothing will happen until long after the election, when
EL.PET.NO. 12 OF 2016 107

in a burdensome litigation this question is raised. Timely

enforcement is as important to the rule of law as the making of

legislation. We may conclude by holding that we accept Exhibits

P.18 and P.19 as genuine and concomitantly find that the handbills

containing injurious statements were in existence on or before the

10th of March. The only question that remains is whether a nexus is

established between these handbills and the appellant and the

factum of their pre-poll circulation by him or his agents is proved”.

While answering the question of not pleading the name of the

person and press where Exts.P1 and P2 were printed, the finding

in respect of the decision of the Apex Court in Virendra Singh

V.Vimal Kumar (AIR 1976 SC 2169) is relevant. Therefore failure

to plead the name of the printer is not detrimental and not a

ground to discard the direct evidence of distribution.

74. In this context this court considered whether the

distribution of the pamphlets by the workers of the respondent

was reasonably calculated to prejudice the election prospects of

M.V.Nikesh Kumar. Petitioner contended that even though he had

pleaded about distribution, he could not trace out the printer, but

the seizure of pamphlets from the house of N.P.Manorama, who is

the leader of Indian National Congress and President of

Valapattanam Grama Panchayat, the seizure from the possession

of the workers of UDF by the police and officers of MCC, from the
EL.PET.NO. 12 OF 2016 108

direct evidence of PW2, PW3, PW4, PW5, PW6, PW7 and PW9 it is

presumed that the workers have specific plan and the returned

candidate or his agent might have given direction for distribution.

An important point to be considered in this context is that

returned candidate was present in the house of PW3 and Noushad

distributed Exts.P1 and P2 to him, it shows that the respondent

had given consent for commission of corrupt practice. Then the

question is, in the circumstances of the case whether the

respondent had knowledge of the alleged corrupt practice on

various days. PW1 stated that RW1 or his agent had given

consent to the workers to distribute the pamphlets. The

respondent argued that consent cannot be inferred, but must be

proved with convincing evidence. Here the acts reported to have

committed were numerous and on several days. On 12.05.2016,

PW13 had given a show cause notice to RW1 after seizing

pamphlets from the house of N.P.Manorama by Valapattanam

police and RW1 signed in it. Even after receipt of the show cause

notice, there was distribution of pamphlets on 13.05.2016,

14.05.2016 and 15.05.2016 by the UDF workers in the

Constituency. The report submitted by the Sub Inspector of Police,

Valapattanam and the Sub Inspector of Police, Mayyil are

admissible. The police had seized the pamphlets from the workers
EL.PET.NO. 12 OF 2016 109

of the respondent and they were taken into custody by the police.

In an election petition for supporting the grounds of corrupt

practice, if those documents were produced as evidence before

court, such evidence is admissible. It is presumed that such

seizure reports satisfied the conditions of Section 160 of the

Evidence Act. Apex Court in Kanti Prasad Jayasankar Yagnik

V. Purushotham Das Ranchhoddas Patel (AIR 1969 SC 851)

considered a similar set of facts, in that case the notes of

speeches made by certain persons during election campaign were

taken down by the police and reported to their officers. Apex

Court held that the said report is admissible to prove the ground

of corrupt practice alleged in the petition. From the above facts, it

is clear that the above acts were done with specific design and the

respondent had consented to the above acts.

75. Another ground taken by the petitioner is that there is

violation of Section 4A of the Conduct of Election Rules, 1961.

According to the section, the candidate or his proposer shall at the

time of delivering to the Returning Officer, the nomination paper

under sub-section (1) of section 33 of the Act, also deliver to him

an affidavit sworn by the candidate before a Magistrate of the First

Class or a Notary in Form No.26. PW1 deposed that there is

violation of Rule 4 of Conduct of Election Rules. There was
EL.PET.NO. 12 OF 2016 110

suppression of material facts in the affidavit filed before Returning

Officer. The respondent filed nomination paper without complying

Rule 4A of Conduct of Election Rules, 1961. In the affidavit, there

is suppression of facts in mentioning the Pan Card number. He also

gave false information about his educational qualification. In cross

examination PW1 admitted that he has no direct knowledge about

the information. RW1 deposed that after 2011, his Pan Card was

lost and he applied for a new one by cancelling the old one. Hence

he was issued with a new one and has not suppressed any facts in

the affidavit. He appeared for BBM Course in Al Ameen College,

Bangalore University but not passed. The BBM course is also

known as BBA and it is only a typographical error and there is no

suppression of facts. The Returning Officer, Azheekode Assembly

Constituency was examined as PW12 who produced the original of

Form No.26 affidavit submitted by respondent in 2011 assembly

election which was marked as Ext.X1. In Ext.X1, the Pan Card

number is mentioned as APQPK1630M which is marked as

Ext.X1(a). In column No.6 of page No.8 of Ext.X1, the same Pan

Card number is mentioned which is marked as Ext.X1(b). The

original Form No.26 of respondent in 2016 assembly election is

marked as Ext.X2. In page No.2 of Ext.X2, the Pan Card number is

mentioned as EDWP 6273A, which is marked as Ext.X2(a). In page
EL.PET.NO. 12 OF 2016 111

No.10 of Ext.X2 in column No.10, the educational qualification is

stated as ‘BBM Course not completed’, which is marked as

Ext.X2(b). In page No.12 of Ext.X2, part B, column No.10, the

educational qualification is marked as ‘BBA, Bangalore University

not completed’. That portion is marked as Ext.X2(c). In cross

examination PW12 admitted that he has no knowledge about the

truth or veracity of the contents of Exts.X1 and X2. He never

verified the correctness of Exts.X1(a), X1(b), X2(a) or X2(b). The

respondent stated that he obtained a new pan card on losing the

first one. The Income Tax department is the competent authority

to issue the pan card, they were not examined to prove the

issuance of the new pan card. Therefore the testimony of RW1 is

admissible and there is no legal impediment to reject his plea

about his pan card and educational qualification. Moreover, PW12

has also no information about the facts. However considering the

evidence of RW1 it is found that there is no violation of section 4A

of the Conduct of Election Rules.

76. In the instant case, another ground advanced by the

petitioner is that there is violation of S.127A of the R P Act, 1951.

127A. Restrictions on the printing of pamphlets, posters,

etc.- (1) No person shall print or publish, or cause to be printed

or published, any election pamphlet or poster which does not bear
EL.PET.NO. 12 OF 2016 112

on its face the names and addresses of the printer and the

publisher thereof.

(2) No person shall print or cause to be printed any election

pamphlet or poster –

(a) unless a declaration as to the identity of the publisher thereof,

signed by him and attested by two persons to whom he is

personally known, is delivered by him to the printer in duplicate;

and

(b) unless, within a reasonable time after the printing of the

document, one copy of the declaration is sent by the printer,

together with one copy of the document, –

(i) where it is printed in the capital of the State, to the Chief

Electoral Officer; and

(ii) in any other case, to the district magistrate of the district in

which it is printed.

(3)For the purposes of this section, –

(a) any process for multiplying copies of a document, other than

copying it by hand, shall be deemed to be printing and the

expression “printer” shall be construed accordingly; and

(b) “election pamphlet or poster” means any printed pamphlet,

hand-bill or other document distributed for the purpose of

promoting or prejudicing the election of a candidate or group of
EL.PET.NO. 12 OF 2016 113

candidates or any placard or poster having reference to an

election, but does not include any hand-bill, placard or poster

merely announcing the date, time, place and other particulars of

an election meeting or routine instructions to election agents or

workers.

(4) Any person who contravenes any of the provisions of sub-

section (1) of sub-section (2) shall be punishable with

imprisonment for a term which may extend to six months, or with

fine which may extend to two thousand rupees, or with both).

77. The restriction on the printing of pamphlets, posters are

specifically mentioned under Section 127A of R P Act, 1951.

According to the section, no person shall print or publish or cause

to be printed or published any election pamphlet or poster which

does not bear the name and address of the printer and the

publisher thereof. Moreover no person shall print or cause to be

printed any election pamphlet or poster unless a declaration as to

the identity of the publisher thereof signed by him and attested

by two persons to whom he is personally known is delivered by

him to the printer in duplicate. After printing of the document, a

copy of the declaration with one copy of the document within a

reasonable time after printing shall be forwarded to the chief

electoral officer if it is printed in the Capital of the State or in any
EL.PET.NO. 12 OF 2016 114

other case to the District Magistrate of the District where it is

printed. Any person who contravenes any of the provisions of the

above section shall be punishable under Section 127A of the R P

Act, 1951. Petitioner contended that respondent printed and

published Exts.P1 and P2 pamphlets and other notices and

circulated among the voters. At the bottom of the pamphlet, the

name of the printer is mentioned as Printing and Publishing,

President Indian Overseas Congress, Kannur Jilla Committee to

make it appear that it was not printed by the respondent or his

agent. RW1 who denied the allegation of printing and publishing,

deposed before court that he happened to see Exts.P1 and P2 for

the first time when he received the election petition. Moreover,

Exts.P1 and P2 were printed and published by the petitioner only

to make out a cause of action for filing an election petition.

Petitioner’s witness did not depose about the identity of the

printer. Analysing the oral evidence of PW1, without backing of an

independent evidence or documents to prove the printing, I am

of the view that it is dangerous to rely that part of petitioner’s

evidence to prove printing and publishing by the respondent. It is

for the petitioner to prove the name of the printer and publisher

beyond reasonable doubt, then only the court can fasten liability

upon the respondent. Therefore I am of the opinion that the
EL.PET.NO. 12 OF 2016 115

presence of the respondent in the house of PW3 and the

distribution of Exts.P1 and P2 by Noushad itself are not sufficient

to presume that the notices were printed by the respondent or his

agent. In the circumstance, I am of the view that no violation

under Section 127A is proved against the respondent.

Points 5 and 6

78. There are many kinds of corrupt practices provided

under section 123 of the R P Act 1951, but the corrupt practices

are viewed separately as to who commits them. The corrupt

practices may be committed by the candidate or his election

agent or any other person with the consent of the candidate or his

election agent. If this corruption is proved, the election of the

candidate shall be set aside without waiting for any further

condition being fulfilled. If the corrupt practice is committed by an

agent other than an election agent, in the presence of the

candidate, in such cases the additional fact of consent need not

be proved. Apex Court in Uma Ballav Rath V. Maheshwar

Mohanty (1999(3) SCC 357), it was held that “to avoid an

election, it is necessary that cogent evidence is led in support of

the charge. An election cannot be set aside on “presumptions”,

surmises or conjectures. Clear and cogent proof in support of the

allegations is essential”.

EL.PET.NO. 12 OF 2016 116

79. Analysing the evidence of the independent witnesses, it is

found that the respondent or his agent and his workers, who are

agents, with the consent of the candidate or his election agent

distributed Exts.P1 and P2 pamphlets at different parts of the

constituency on 10.05.2016, 11.05.2016, 12.05.2016,

13.05.2016, 14.05.2016 and 15.05.2016. The evidence of PW3

shows that the respondent was present in the house of PW3 on

11.05.2016 at 6.30 am with Manorama, the President of

Valapattanam Panchayat and in their presence, Noushad handed

over Exts.P1 and P2 pamphlets to PW3. This happened because

the father of PW3 was the former Secretary of IUML, Manna ward.

The distribution of Exts.P1 and P2 pamphlet on 11.05.2016 in the

house of PW4 by Manorama, Noushad, Rasheed and Shamal along

with Saifudheen was proved by PW4. It is pertinent to note that

Saifudheen is the relative of PW4. This evidence of PW3 and PW4

is admissible unless there is reason for its rejection. The

distribution of Exts.P1 and P2 on 12.05.2016 at 6.30 am by

Manorama, Rasheed, Noushad, Ashraff, Hashim and other workers

of the respondent was proved by the evidence of PW6. The

distribution of Exts.P1 and P2 on 13.05.2016 at 7.30 am by the

UDF workers C.V.Santhosh, Prem Prakash, C.V.Sumith and

Pradeepan was proved through PW7. The distribution of Exts.P1
EL.PET.NO. 12 OF 2016 117

and P2 on 14.05.2016 in the house of PW2 by Fazir is proved by

the evidence of PW2. According to PW2, Fazir is his neighbour and

the President of IUML. Nisham is a congress worker and others are

workers of IUML. The distribution of Exts.P1 and P2 by Ashraf,

Padmanabhan, Rajeevan, Noufal, Unni, Narayanan on 15.05.2016

at 7 am in the house of PW9 by Noufal was proved through the

evidence of PW9. The evidence of the official witnesses PW10,

PW11, PW12, PW13 and PW14 corroborates the evidence of the

above independent witnesses. While appreciating the evidence of

PW2, PW3, PW4, PW6, PW7 and PW9 their version is believable,

no enmity or personal interest were attributed against these

witnesses by the respondent in his cross examination. It appears

from the above evidence that the charge of distribution of Exts.P1

and P2 by the respondent, his agents, supporters and workers

with the consent of the respondent or his election agent is proved

beyond reasonable doubt.

80. The totality of the direct evidence about the distribution

of Exts.P1 and P2 and the direct interference on the part of the

respondent or his election agent or workers of the UDF with the

consent of the candidate or election agent with the free exercise of

the electoral right and circulation of the pamphlet in the muslim

houses shows that respondent committed corrupt practice. They
EL.PET.NO. 12 OF 2016 118

induced the muslim voters to believe that they will be rendered to

an object of divine displeasure or spiritual censures, if they vote

for M.V.Nikesh Kumar which constitutes a corrupt practice under

Section 123(2)(a)(ii) of the R P Act 1951. They appealed to the

muslim voters not to vote for M.V.Nikesh Kumar and to refrain

from voting for a non muslim which is an appeal on the ground of

religion and a corrupt practice. The above act of appeal by a

candidate or his agent or any other person with the consent of the

candidate or his election agent to vote for him or refrain from

voting for any other person on the ground of religion is a corrupt

practice under Section 123(3) of R P Act 1951. Besides this, the

respondent, his agent or any other person with the consent of the

candidate or his election agent had published Ext.P2 pamphlet

among the voters and the statement of facts stated therein 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

M.V.Nikesh Kumar and thereby committed a corrupt practice under

S.123(4) of the R P Act 1951. In Ram Sharan Yadav V. Thakur

Muneshwar Nath Singh and others (AIR 1985 SC 24) it was

held that the charge of a corrupt practice is in the nature of a

criminal charge, and once it is proved to the satisfaction of a court

that a candidate has been guilty of ‘undue influence’ then he is
EL.PET.NO. 12 OF 2016 119

likely to be disqualified for a period of six years or such other

period as the authority concerned under S.8A of the Act may think

fit. Therefore the charge, if proved, entails a very heavy penalty

in the form of disqualification, therefore the apex Court has held

that the court must be very cautious in its approach. Assessing

the evidence in its cumulative effect it is found that the petitioner

proved the allegation of corrupt practice under section 123(2)(a)

(ii), 123(3) and 123(4) of the R P Act, 1951 beyond reasonable

doubt and the election of the respondent is liable to be set aside

thereunder.

In the result, the election of the returned candidate is

declared void under the following conditions:-

1) The election of the returned candidate from (10)

Azheekode Assembly Constituency is declared void

and set aside under Section 100(1)(b) and under

Section 100(1)(d)(ii) of the Representation of People

Act, 1951 for having committed corrupt practice

under Section 123(2)(a)(ii), 123(3) and 123(4) of

the Representation of People Act 1951.

2) This disqualification on the ground of corrupt

practice by the respondent shall be submitted to the

appropriate authority for forwarding it to the
EL.PET.NO. 12 OF 2016 120

President of India for appropriate action under

Section 8A of the Representation of People Act,

1951.

3) The respondent has already been disqualified

from contesting in any election for a period of six

years vide judgment of this court dated 09.11.2018

in E.P.No.11 of 2016, hence no further directions

are warranted.

4) The respondent shall pay a cost of Rs.50,000/- to

the petitioner, T.V.Balan.

5) The High Court shall intimate the substance of the

decision to the Election Commission of India and the

Speaker of the Kerala Legislative Assembly and send

a copy of the same to the Election Commission and

Speaker forthwith.

sd/-

P.D.RAJAN
JUDGE
LGK
EL.PET.NO. 12 OF 2016 121

PETITIONER(S) WITNESSES :

PW1 : T.V.BALAN, S/O CHATHU

PW2 : ABDULLA P., S/O KATHEEM

PW3 : SHAMEER P., S/O GAFOOR

PW4 : SAVAD P.V., S/O ABDULLA

PW5 : RAHUL K.V., S/O MOHANAN

PW6 : JALAL, S/O MOIDEEN

PW7 : SHAMEL, S/O BHASKARAN

PW8 : K.BAIJU, S/O RAGHAVAN

PW9 : UMMAR, S/O HAMSA

PW10 : VINESH M., S/O PAVITHRAN, SENIOR C.P.O., POLICE
CONTROL ROOM, KANNUR.

PW11 : SREEJITH KODERI, S/O SREEDHARAN NAMBIAR, S.I.,
VALAPATTANAM POLICE STATION.

PW12 : K.H. MICHAEL, S/O JOSEPH, RETURNING OFFICER,
AZHEEKODE ASSEMBLY CONSTITUENCY.

PW13 : DINESHAN H., S/O RAGHAVAN, DEPUTY COLLECTOR (LR),
COLLECTORATE, KASARAGOD.

PW14 : SHAJU K.V., S/O KUNHIRAMAN, DEPUTY TAHSILDAR
(ELECTION), TALUK OFFICE, KANNUR.

RESPONDENT(S) WITNESSES :

RW1 : K.M. SHAJI, S/O BEERANKUTTY.

RW2 : ASHKAR C.M., S/O ABOOBACKER.

RW3 : C.V.SUMITH, S/O PADMANABHAN.

RW4 : PREM PRAKASH, S/O SREEDHARAN.

RW5 : MOHAMMED SHAKKIR B.P., S/O MOHAMMED ISHAQUE.

RW6 : P.RAJEEVAN, S/O SREEDHARAN.

RW7 : A.V.NARAYANAN, S/O OTHENAN.
EL.PET.NO. 12 OF 2016 122

APPENDIX
PETITIONER’S/S EXHIBITS:

ANNEXURE I PAMPHLET WITH CAPTION IN ARABIC, WHICH CAN
BE TRANSLATED IN ENGLISH AS “MAY THE
PEACE, MERCY AND BLESSINGS OF ALLAH BE
WITH YOU” AND ” IN THE NAME OF ALLAH, THE
MOST BENEVOLENT AND THE MOST MERCIFUL”
PUBLISHED AND DISTRIBUTED BY THE
RESPONDENT, HIS AGENT AND OTHER PERSONS
WITH HIS CONSENT IN DIFFERENT PART OF THE
CONSTITUENCY DURING THE COURSE OF ELECTION
CAMPAIGN.

ANNEXURE I (a) TRUE AND CORRECT ENGLISH TRANSLATION OF
ANNEXURE-I

ANNEXURE II PAMPHLET WITH THE CAPTION IN MALAYALAM
“VEEDU NOKKATHAVANU NADU NANNAKKAN
KAZHIYUMO ? ” PUBLISHED AND DISTRIBUTED BY
THE RESPONDENT, HIS AGENTS AND OTHER
PERSONS WITH HIS CONSENT IN DIFFERENT
PARTS OF THE CONSTITUENCY DURING THE
COURSE OF ELECTION CAMPAIGN FOR THE
RESPONDENT.

ANNEXURE II (a) TRUE AND CORRECT ENGLISH TRANSLATION
ANNEXURE-II

ANNEXURE III A TRUE COPY OF THE FORM – 26 AFFIDAVIT
SWORN BY THE RESPONDENT.

ANNEXURE IV CHELAN RECEIPT DATED 4/7/2016 EVIDENCING
THE DEPOSIT OF RS. 2000/- AS SECURITY
BEFORE THIS HON’BLE COURT.

EXHIBIT P1 PAMPHLET WITH CAPTION IN ARABIC

EXHIBIT P1(a) TRUE AND CORRECT ENGLISH TRANSLATION OF
EXT. P1

EXHIBIT P2 PAMPHLET WITH CAPTION IN MALAYALAM “VEEDU
NOKKATHAVANU NADU NANNAKKAN KAZHIYUMO”

EXHIBIT P2(a) TRUE AND CORRECT ENGLISH TRANSLATION OF
EXT. P2

EXHIBIT P3 CERTIFIED COPY OF PETITION FILED BY BAIJU
K. BEFORE MAYYIL POLICE STATION DATED
15.5.2016
EL.PET.NO. 12 OF 2016 123

EXHIBIT P4 CERTIFIED COPY OF F.I.R. IN CRIME NO.
1074/2016 DATED 12.5.2016 OF VALAPATTANAM
POLICE STATION.

EXHIBIT P5 CERTIFIED COPY OF PETITION FILED BY ABDUL
NASAR BEFORE S.H.O, VALAPATTANAM DTD.
12.5.2016

EXHIBIT P6 CERTIFIED COPY OF SEIZURE MAHAZAR DATED
13.5.2016 OF PAMPHLET (WITH ARABIC
CAPTION).

EXHIBIT P6(a) CERTIFIED COPY OF SEIZURE MAHAZAR DATED
13.5.16 PAMPHLET (WITH MALAYALAM CAPTION)

OTHER EXHIBITS:

EXHIBIT X1 AFFIDAVIT OF K.M. SHAJI IN FORM 26 DATED
26.3.2011.

EXHIBIT X1(a) PAGE 2, COLUMN 1 OF THE AFFIDAVIT, X1

EXHIBIT X1(b) PAGE 8 OF THE AFFIDAVIT, X1

EXHIBIT X2 AFFIDAVIT OF K.M. SHAJI DATED 27.4.16 FILED
ALONG WITH NOMINATION PAPER.

EXHIBIT X2(a) PAGE 2, COLUMN 1 (PAN CARD NO. ) IN
AFFIDAVIT X2.

EXHIBIT X2(b) PAGE 10,EDUCATIONAL QUALIFICATION SHOWN IN
AFFIDAVIT, X2.

EXHIBIT X2(c) PAGE 12, COLUMN 10(1) OF AFFIDAVIT X2.

EXHIBIT X3 COPY OF EXT. X1 IN E.P. NO.11/2016. (REPORT
OF MCC SQUAD DTD. 12.5.2016).

EXHIBIT X4 COPY OF EXHIBIT X8 IN EP. NO.11/2016 (REPORT
OF MCC SQUAD DTD 13.5.2016)

EXHIBIT X5 COPY OF EXT. X13 IN EP. NO.11/2016 (REPORT
OF MCC SQUAD DATED 14.5.2016)

EXHIBIT X6 COPY OF EXT. X15 IN EP. NO.11/2016 (REPORT
OF MCC SQUAD DATED 15.5.2016)

EXHIBIT X7 COPY OF EXT. X6 IN EP. NO.11/2016 (NOTICE BY
NODAL OFFICER, MCC GIVEN TO K.M. SHAJI)

EXHIBIT X8 COPY OF EXT. X7 IN EP NO.11/2016 (REPORT BY
EL.PET.NO. 12 OF 2016 124

NODAL OFFICER MCC TO RETURNING OFFICER DATED
12.5.2016)

EXHIBIT X9 COPY OF EXT. X10 IN EP NO.11/2016 (REPORT
BY NODAL OFFICER MCC TO DISTRICT POLICE
CHIEF, KANNUR DATED 14.5.16)

EXHIBIT X10 PHOTOCOPY OF EXT. X2 IN EP NO.11/2016
(PAMPHLET WITH ARABIC CAPTION).

EXHIBIT X11 PHOTOCOPY OF EXT. X3 IN EP NO.11/2016
(PAMPHLET WITH MALAYALAM CAPTION).

//True copy//

P.S to Judge

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