MERCYKUTTY AMMA Vs. KADAVOOR SIVADASAN

JUDGEMENT

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

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

(3.) In the light of the pleadings of the parties, the High Court inter alia framed the following issues :