ANVAR P.V Vs. P.K. BASHEER

JUDGEMENT

(1.) FIRST respondent P.K. Basheer was declared elected to 034 Eranad Legislative Assembly Constituency in the election held on April 13, 2011. He was the candidate of Indian Union Muslim League with the election symbol 'ladder'. He was supported by the United Democratic front Indian National Congress and Indian Union Muslim League and similar parties constituting the United Democratic Front. Petitioner was an independent candidate who contested the election with the symbol 'baloon'. Second respondent was the candidate of Communist Party of India supported by the Left Democratic Front. Third respondent was the candidate of Bharathiya Janatha Party. Respondent No.4 was one of the candidates. Though respondents 5 to 7 had filed their nominations, they had withdrawn their candidature before the last date for withdrawal of nomination papers. Sixth respondent, in addition was also the Chief Election Agent of the first respondent. First respondent who secured 58,698 votes as against 47452 votes secured by the petitioner was declared elected by a majority of 11246 votes. Election Petition is filed to declare the election of the first respondent void and to set it aside under section 100(1)(b) read with section 123(2)(ii) and (4) of Representation of People Act, (hereinafter referred to as the R.P.Act) and also to declare the petitioner as the duly elected candidate from 034 Eranad Assembly Constituency.

(2.) THE pleadings in the Election Petition in brief are as follows:- The polling was held on 13.4.2011. On 12.4.2011 Palliparamban Aboobacker, (who was examined as PW4) a member of the Constituency Committee of the UDF and the Convenor of Kizhakkechathalloor Ward Committee of the UDF who was actively involved in the election propaganda of the first respondent as his agent got printed in the District Panchayat Press, Kondotty, at least twenty five thousand copies of Ext.P1 leaflet in Malayalam with the headline "P.P.Manafinte Rakthasakshidhinam- Nam Marakkathirukkuka - April 13" (Martyr Day of P P Manaf- let us not forget April 13). In that leaflet petitioner is described as son of P.V.Shaukath Ali President of Edavanna Panchayat. It is alleged that petitioner gave leadership to commit the murder of Manaf in cinema style. Name of the petitioner is specifically mentioned by highlighting it within a black circle. Allegation is made that under the leadership of petitioner Manaf was murdered. In another part of the leaflet name of the petitioner is shown in square with black border. The leaflet shows excerpts from newspaper report of 1995 highlighting comments in big letters which are deliberate contribution of the publishers. It was done to expose the petitioner as the murderer by intentionally concealing the fact that he was honourably acquitted by the court. In addition there is an appeal to the voters reminding that whoever indirectly helps a person who kills a believer, will be an object of divine displeasure and spiritual censure which amounts to inducing or attempting to induce the electors to believe that petitioner or any person to whom he is interested will be rendered an object of divine displeasure. It is corrupt practice of undue influence under section 123(2)(a)(ii) falling within section 123(4) of the Act. PW4 Palliparamban Aboobacker got the leaflet printed in the District Panchayat Press, Kondotty. V. Hamza was the General Manager of the Press who helped in getting the leaflet printed. Hamza was the official account agent of the first respondent for the election. Though the publication is styled in the name "Kudumba Souhrida Samithi" it was got printed by PW4 Palliparamban Aboobacker and the said Hamza. Both Aboobacker and Hamza are agents of the first respondent who actively participated in the election campaign. The printing and publication and distribution of Ext.P1 leaflet was made with the consent and knowledge of the first respondent.It is gathered from P.V. Musthafa, a worker of the petitioner that the expenses for the printing have been shown in the electoral return of the first respondent. After publication of the leaflet petitioner could himself feel the change in the attitude of some of the voters particularly in women folk when he visited their houses in different part of the Constituency. The workers of the petitioner also felt the same. The contents of Ext.P1 amount to publication by first respondent, his agent PW4 Palliparamban Aboobacker and Hamza and others with the consent and knowledge of the first respondent, are statements which the first respondent and at his instance those who printed and published knew, are false and have reasons to believe that they are false and do not believe to be true and in relation to the personal character and conduct of the petitioner reasonably calculated to prejudice the prospects of the petitioner. First respondent and his election agent and other persons who were working for him knew that the contents of Ext.P1 are false and false to their knowledge. Though petitioner was falsely implicated in the Manaf murder case, he was honourably acquitted by Additional Sessions Court, Manjeri by Ext.P2 judgment. Though this fact is within the knowledge of the first respondent and his agents and other persons who were working for him in the election, at about 8 a.m on 12.4.2011 bundles of Ext.P1 leaflet which were kept in the house of the first respondent at Pathapiriyam within that Constituency were taken out from that house in two jeeps KL13-B 3159 and KL10-J 5992. It was seen by two electors V.Arjun(PW7) and C.P.Faizal(PW9) who are residing in the very same locality. The jeeps were taken around in various parts of Eranad Constituency and Ext.P1 leaflet was distributed throughout the Constituency by the workers and agents of the first respondent at about 8 p.m on that night in the said jeeps. The said publication amount to undue influence as provided under sections 123(2)(a)(ii) of the Act, as it amounted to a direct or indirect interference or attempt to interfere on the part of the first respondent or his agents, the free exercise of an electoral right of the voters and a corrupt practice falling under section 123(4). K.J.Thomas (PW44), Vettilapara Election Ward Committee member of UDF, circulated it within Urangattiri Panchayat. K.V. Ali (PW5)received the leaflet while standing in Poovathickal Angadi at about 5 p.m on 12.4.2011 and C.Vijayan(PW8), Chief Election Agent of the petitioner furnished the information to the petitioner. Yousuf Kunnan a member of UDF circulated it in Kavanoor Panchayat, Thelakkadan Moideen Haji(PW6) received it at 6 p.m on 12.4.2011 while he was standing in Kavanoor Angadi. He informed it to Ismail Kavanenchery (PW14) who in turn informed to the petitioner. Hafsath Ismail received it when the UDF workers wearing the badge of UDF delivered it at her residence at 4 p.m on 12.4.2011. C.Vijayan informed it to the petitioner. UDF workers under the leadership of Rajeev (PW10) circulated it at Chaliyar Panchayat. Mary Mathew (PW11) and Lovely Shaju (PW13) received it when the UDF workers wearing the badges of UDF delivered it to their residence at 2 p.m on 12.4.2011. Eranjickal Mohammed Ismail (PW12)furnished the information to the petitioner. UDF workers under the leadership of Ambazhathingal Selman(PW15) circulated it within Keezhuparambu Panchayat. Khadeeja Aboobacker (PW17) received it when UDF workers wearing the badge of UDF delivered it at her residence at about 5 p.m on 12.4.2011. Kambalathodi Ibrahim (PW16) furnished that information to the petitioner. Illiyan Kunjimoideen UDF worker circulated it at Edavanna. Pulikunnan Mohammedali (PW18) received it from Kunjumoideen at about 5 p.m on 12.4.2011 at Othayi Angadi. Sankaran (PW19) received it from Kunjimoideen at about 7.30 p.m on 12.4.2011, while he was distributing at Kodunarupoyil Harijan Colony. Amina Karanath (PW20) received it when it was delivered to her residence by UDF workers on 12.4.2011 at 6 p.m. Panackal Muhammedali (PW21) furnished that information to the petitioner. Sajid Rehman (PW24) circulated it within Areacode Panchayat. Ashraf Kuyipana (PW23) who is collecting parking fees in the Panchayath bus stand received it when he was collecting parking fees in the Areacode Bus Stand, at about 4.30 p.m on 12.4.2011. K.V.Muhammed (PW22) furnished the information to the petitioner. PW8 C.Vijayan Chief Election Agent of the petitioner submitted Ext.P3 complaint to the Returning Officer on 13.4.2011. On 13.4.2011 the date of polling flex boards highlighting death anniversay of Manaf was exhibited at various places of the Constituency along with the posters of first respondent with his knowledge and consent, by his workers. One of them was put up just in front of G.M.U.P. School, Peragamanna in which booth Nos. 68 and 69 were located. Ext.P4 Casette Disc and Ext.P5 and P6 photographs show the said exhibitions of posters. The posters were put up deliberately close to the polling station, as part of the election campaign of the first respondent with his consent and knowledge, by his election workers, along with his other posters, banners and flags to convey an impression already created in the minds of the voters that murder of Manaf is related to the petitioner and to remind the voters every time, the murder of Manaf, to convey the impression that petitioner is still under suspicion in connection with the murder of Manaf. The publication therefore amounted to a publication by the first respondent or his agents or other persons with his consent and knowledge, a statement which is false and which he either believed to be false or does not believe to be true in relation to the personal character and conduct of the petitioner. Significantly after the incident which happened in 1995 except during the election in April, 2011 a propaganda of this type relating to Manaf had never taken place in the area. It shows that the issue was deliberately raked up to prejudice the prospects of the petitioner and clearly amount to a corrupt practice.

(3.) ON 8.4.2011 at about 4 p.m a jeep covered with the posters and banners of the first respondent was spotted at Othayi Angadi of Edavanna Panchayat. Songs containing defamatory words picturising the petitioner as murderer of Manaf and using the Malayalam expression "P.P. Manafinte Chora Kudichore" was made. The said reference are false and false to the knowledge of the workers or believed them to be not true and amounts to a corrupt practice under section 123(4) of the Act. Since the jeep was covered with posters and banners used during the election of the first respondent and got printed and published at his instance, it is clear that the announcements and songs were made with his consent and knowledge. Announcements were heard by the electors C.T.Shihabudeen (PW25) a resident of that locality. Ext.P8 is the VCD. On 9.4.2011 at about 3.30 p.m Mullan Sulaiman(PW30) who was then the executive member of Indian Union Muslim League Ernad Mandalam Committee and the agent of the first respondent made a speech at Puliyakode U.P. School junction, Kuzhimanna Panchayath, raising allegations against the petitioner in relation to his personal character and conduct which are false and false to the knowledge of the maker of the speech and solely intended to cause prejudice to the electoral prospects of the petitioner knowing that he was making false and at any rate not true facts. He said in the speech that petitioner is the murderer of Manaf and a drunkard and the burial of his father was done in Themmadikuzhi. That speech was made by the said agent of the first respondent, with his knowledge and consent, is one of the vehicles covered with banners and posters used for his election campaign and therefore with the consent and knowledge of the first respondent. The speech was made from the jeep KL10-D 5619 of the first respondent. It was heard by K.M. Mohammed Abdulrahiman(PW31) who recorded it in Ext.P9 casette disc.