Civil Appeal Nos. 5987-5988 of 2012. Case: C.P. John Vs Babu M. Palissery. Supreme Court (India)
| Case Number | Civil Appeal Nos. 5987-5988 of 2012 |
| Judges | Fakkir Mohamed Ibrahim Kalifulla and Shiva Kirti Singh, JJ. |
| Issue | Representation of the People Act, 1951 - Sections 8, 33A, 33A(1), 80A(2), 81, 82, 83, 83(1), 83(2), 86, 86(1), 86(5), 87, 97, 98, 100(1), 117, 123(1), 123(1)(A), 123(4), 123(5); Prevention of Destruction to Public Properties Act - Section 3(2); Indian Penal Code (IPC) - Sections 143, 147, 148, 149, 151, 302, 323, 324, 332, 353, 427; Code of ... |
| Judgement Date | September 11, 2014 |
| Court | Supreme Court (India) |
Judgment:
Fakkir Mohamed Ibrahim Kalifulla, J.
1. These two appeals are directed against a common judgment of the High Court of Kerala at Ernakulam dated 02.12.2011 passed in Election Petition No. 1 of 2011 and I.A. No. 3 of 2011. By the impugned judgment, the High Court, while allowing I.A. No. 3 of 2011 simultaneously dismissed Election Petition No. 1 of 2011 filed by the Appellant challenging the successful election of the First Respondent to 062 Kunnamkulam Constituency in the general election held on 13.04.2011, as a candidate of Communist Party of India (Marxist) (hereinafter called "CPI (M)"), which is a constituent of the Left Democratic Front (hereinafter called "LDF"). Such a decision of the Election Petition was at the threshold Under Sections 83(1) and 86 of the Representation of the People Act, 1951 (hereinafter called "the Act") read with Rule 11 of Order 7 of Code of Civil Procedure, 1908.
2. The brief facts which are required to be stated are that the Appellant was a candidate of the Communist Marxist Party (hereinafter called "CMP"), which was a constituent of United Democratic Front (hereinafter called "UDF"). The Second Respondent was also a candidate in the said election along with Respondent Nos. 3 to 5. The First Respondent secured 58,244 votes whereas the Appellant secured 57,763 votes. The Second Respondent, who was an independent candidate, secured 860 votes. According to the Appellant, the Second Respondent whose name is identical to that of the Appellant was maliciously set up by the First Respondent to contest the election and in that process indulged in various corrupt practices, namely, inducing the Second Respondent by offering bribe, issued a pamphlet which was marked as Annexure IV in the High Court in the name of the Second Respondent deceptively which attracted Section 123(1)(A) and (4) of the Act and consequently his election was liable to be set aside. One other allegation of the Appellant raised in the Election Petition was that the First Respondent was convicted in two criminal cases, namely, Sessions Case No. 4 of 1975 (Crime No. 136/1974 of Pattambi Police Station) for offences Under Sections 143, 148, 323, 324 and 302 read with 149, Indian Penal Code for murdering one Syed Ali, an S.F.I. activist and that the First Respondent was the second accused in Crime No. 463/1994 of Kunnamkulam Police Station where again he was convicted by the Judicial First Class Magistrate, Kunnamkulam in CC No. 167/1995 along with other accused and was sentenced to undergo two years rigorous imprisonment apart from a fine of Rs. 2000/- for the offences Under Sections 143, 147, 148, 151, 332, 353 and 427 and 149, Indian Penal Code and Section 3(2)(r) of the Prevention of Destruction to Public Properties Act. It is the contention of the Appellant in the Election Petition that the First Respondent concealed the above convictions in his nomination which was a deliberate suppression and in violation of Section 33A(1) of the Act. It is based on the above three substantive grounds, the Appellant challenged the successful election of the First Respondent in Election Petition No. 1 of 2011.
3. As far as the allegations against the First Respondent were concerned, the allegation relating to the issue of bribery falling Under Section 123(1)(A) was levelled in paragraphs 4, 5, 6 and 9 of the Election Petition. The allegation relating to the issuance of pamphlets attracting Section 123(4) of the Act was made in paragraphs 11, 12, 13, 14 and 15 of the Election Petition. The allegation relating to the criminal conviction and its suppression was raised in paragraph 7 of the Election Petition.
4. The various above allegations were refuted on behalf of the First Respondent in the written statement filed as against the Election Petition. The First Respondent filed I.A. No. 3 of 2011 contending that the Election Petition was liable to be rejected on the ground that it was not filed in accordance with Section 83 as well as Section 86 of the Act. The contentions raised in the I.A. were to the effect that as regards the issue of bribery, though the same was referred to in paragraphs 4, 5, 6 and 9 of the Election Petition, in the affidavit, which was mandatory as per the proviso to Section 83(1) of the Act, the Appellant failed to support the said allegations with exception to what was stated in paragraph 9 of the Election Petition. It was contended in the I.A. that while the allegations relating to the offer of bribe to the Second Respondent by way of a gift of Rs. 50,000 and a promise to pay Rs. 1,00,000/- after the elections were raised in paragraphs 4, 5, 6 and 9, the affidavit did not support the allegations in paragraphs 4, 5 and 6 of the Election Petition and the affidavit only mentioned paragraph 9. It was, therefore, contended that it was not in compliance with the proviso to Section 83(1) and consequently, the Election petition was liable to be rejected on the ground of want of cause of action.
5. As far as the allegation of corrupt practice falling Under Section 123(4) of the Act was concerned, the First Respondent by referring to Annexure IV took the stand that the pleadings in paragraphs 11, 12, 13 and 14, which pertained to Annexure IV-pamphlet in the name of the Second Respondent contended that there was no pleading as to which part of it was false and incorrect and how based on Annexure IV alone it was stated that a false statement in relation to the personal character or conduct of any candidate or in relation to the candidature or withdrawal of any candidate with reasonable calculation would prejudice the prospect of that candidate's election. It was, therefore, contended that the Appellant failed to plead the required facts and material particulars to support the ground of corrupt practice stipulated Under Section 123(4) of the Act.
6. With regard to the allegations based on criminal convictions, it was contended that of the two criminal cases which were referred to by the Appellant in the Election Petition, in one case the First Respondent was acquitted by the Sessions Court in Criminal Appeal No. 248/2000 and that in CC No. 167 of 1995, the sentence awarded was less than a year and, therefore, there was no violation of Section 33A of the Act. The First Respondent, therefore, prayed for the dismissal of the Election Petition as the same was not in conformity with Section 83 of the Act.
7. On behalf of the Appellant a counter affidavit was filed to I.A. No. 3 of 2011. In the counter affidavit a categoric stand was taken on behalf of the Appellant that the required facts and material particulars as required Under Section 83 have been fully pleaded with supporting Affidavit and, therefore, it was in compliance of the Act and the Election Petition cannot be dismissed in limine. In other words, it was contended that there was full compliance of both the substantive parts of Section 83 as regards the furnishing of the facts as required Under Section 83 as well as material particulars with supporting affidavit as required under the proviso to Section 83(1) of the Act and, therefore, the prayer of the First Respondent as made in I.A. No. 3 of 2011 was liable to be rejected.
8. The High Court having examined the rival contentions of the parties, reached a conclusion that in support of the Election Petition, the averments contained in paragraphs 4, 5 and 6 of Election Petition were not specifically affirmed and that the affidavit only referred to paragraph 9 of the Election Petition. The High Court further held that since the averments contained in paragraph 9 of the Election Petition only referred to personal information of the Appellant, which lacked in very many material particulars, there was total lack of pleadings as required Under Section 83 of the Act and consequently, the said allegation did not give scope for any cause of action to support the Election Petition.
9. For the allegation based on Annexure IV, here again the High Court held that the statement contained in the said Annexure did not make out a cause of action as against the First Respondent in order to attract the allegation of corrupt practice as stipulated Under Section 123(4) of the Act and, therefore, on that ground as well, the Election Petition could not be proceeded with.
10. As far as the allegation based on the criminal cases was concerned, the High Court has found that the conviction in Sessions Case No. 4 of 1975 was set aside in Criminal Appeal No. 248 of 2000, which was also admitted by the Appellant and the conviction in CC No. 167 of 1995, the certified copy of which was placed before the Court, disclosed that the sentence awarded was less than a year and consequently, there was no violation of Section 33A of the Act.
11. Based on the above findings, the High Court held that the I.A. filed by the First Respondent deserved to be allowed and, consequently, for want of cause of action the Election Petition itself was dismissed.
12. We heard Mr. Romy Chacko, learned Counsel for the Appellant and Mr. Pallav Shishodia, learned Senior Counsel for the First Respondent. Mr. Romy Chacko learned Counsel for the Appellant in his submissions contended that the Appellant stood in the election for Kunnamkulam Constituency in 2011 as a candidate of CMP, under the banner of UDF. He pointed out that Appellant lost the election with a thin margin of 408 votes and that the Second Respondent who had the same name as that of the Appellant secured 860 votes. According to the Appellant, but for the candidature of the Second Respondent, there was every scope for the Appellant to win the election. It was the contention of the Appellant that the First Respondent, with a view to mislead the voters, indulged in the corrupt practices of bribery, as well as, issuance of pamphlet with misleading and distorted version about the candidature which was covered by Sections 123(1)(a) and 123(4) of the Act and that the Appellant otherwise...
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