K C MADHAVA KURUP Vs. MURALEEDHARAN

JUDGEMENT

(1.) The petitioner contested the General Election to the House of the People (Lok Sabha) held on 22-11-1989 from Kozhikode Parliamentary Constituency as a candidate of "Jana Seva" Party. The respondent was declared elected from the said Parliamentary Constituency by a margin of 28950 votes. The petitioner alleges that the respondent committed serious corrupt practices and, therefore, his election is to be declared void. In the petition the petitioner alleges four types of corrupt practices committed by the respondent. The respondent filed preliminary objections denying the allegations in the petition. The respondent contends that the allegations in the petition are vague and they are frivolous and vexatious. It is also contended that the petitioner has not complied with the mandate of S.83 of the Representation of the People Act, 1951 (hereinafter called 'the Act). The respondent prays that the allegations in the petition are liable to be struck out under O.6 R.16 C.P.C.

(2.) It is repeatedly held by the Supreme Court in various decisions that an election petition, where allegations of corrupt practices are imputed must be regarded as a proceeding of quasi criminal nature wherein strict proof is necessary and the pleadings of the election petitioner in his petition should be absolutely precise and clear, containing all necessary details and particulars as required by law. The allegations in the election petition should not be vague, general in character or lack material particulars. S.83 of the Act specifically gives guidelines as to the mode in which the pleadings are to be drafted in an election petition. S.83 requires the petitioner to give a concise statement of the material facts on which the petitioner relies. It is also mentioned in S.83 that the petitioner shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practices and the date and place of the commission of each such corrupt practice. From S.83 of the Act it is clear that all preliminary facts which must be proved to establish the existence of a cause of action shall be stated in the petition. In the context of a charge of corrupt practice material facts would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election petition, a particular fact is material or not and as such required to be pleaded, is a question which depends on the circumstances of the case. In Udhav Singh v. Madhav Rao Scindia (S.C.R. 1976 (2) 246) it has been held:

(3.) In the petition it is alleged that on behalf of the respondent and with his consent a false propaganda was published that the petitioner had retired from contest and that the petitioner appealed to elect the respondent. It is further alleged that these statements were made by announcements through Loud speakers at meetings and in moving vehicles two days before and on the eve of the day of election. The petitioner's efforts to prevent them by a newspaper advertisements were in vain and the respondent made this propaganda to prejudice the prospects of the election of the petitioner and as such the number of votes secured by him was substantially reduced. It is pertinent to note that the petitioner has not mentioned the names of any of the persons who made such false propaganda. Eventhough several vehicles were allegedly used to spread this propaganda the register numbers or other identifying features of these vehicles are not mentioned in the petition. It seems that the petitioner alleged this fact as a ground of corrupt practice as envisaged under S.123(4) of the Act. S.123(4) was amended by Act 58 of 1958. Formerly under S.123(4)of the Act, the publication by a candidate or his agent or by any other 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 candidate, or withdrawal or retirement from contest of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election was a corrupt practice. By S.13(6) of Act 58, the words "retirement from contest" were omitted from S.123(4) of the Act. Therefore, the propaganda, if any, regarding the retirement from contest does not amount to corrupt practice. Moreover, the allegations do not disclose all material facts. It is not specifically pleaded that the respondent gave consent to any person to make false propaganda. The names of the persons who committed the said corrupt practice are not mentioned in the petition. The petitioner has also not produced the copy of the newspaper advertisement, alleged to have been made by him, to counter the propaganda allegedly made by the supporters of the respondent. The petitioner has no case that he filed contemporaneous complaint or petition against his alleged spread of false propaganda. The allegation contained in the first ground lacks material particulars. Therefore, the whole Para.3(a)(i) is to be struck out under O.6 R.16 of the C.P.C.