P M ISMAIL Vs. P C THOMAS

JUDGEMENT

(1.) This Election Petition is filed by one of the defeated candidates challenging the election of the first respondent to the House of People from 12 H.P. Muvattupuzha Parliamentary Constituency in the election held on 10.5.2004. The first respondent won the election with a margin of 529 votes over the petitioner who got second largest number of votes. While the petitioner was the candidate from CPI (M), a constituent of Left Democratic Front, the first respondent was the candidate from the Indian Federal Democratic Party, a constituent of the National Democratic Alliance, and the second respondent who also contested the election on party lines was from. Kerala Congress (M), a constituent of the United Democratic Front. When the first respondent secured 2,56,411 votes, the election petitioner got 2,55,882 votes and the second respondent secured 2,09,880 votes. Respondents 3 to 15 contested the election as independents and all of them got insignificant number of votes compared to the total number of votes polled, that is, 7,45,885 out of which 7,45,871 were valid votes. Petitioner's case is that the first respondent won the election with a narrow margin of 529 votes over him by committing corrupt practices under Sections 123(3) and 123(5) of the Representation People Act, 1951, hereinafter called the "Act" detailed in the election petition and therefore his election is liable to be declared void under Section 100(1)(b) of the said Act. Consequent relief prayed is for declaring the petitioner elected as provided under Section 101(b) of the Act.

(2.) Even though notices were issued to all the respondents only the elected candidate, namely, the first respondent filed written statement and contested the Election Petition. However, respondents 2, 4, 5 and 10 entered appearance through counsel and supported the Election Petition during hearing but opposed the petitioner's prayer for declaring him elected. The maintainability of the Election Petition was questioned by the first respondent and this Court vide detailed order dated 28.2.2005 sustained the maintainability of the Election Petition on two grounds of corrupt practices, one falling under Section 123(3) of the Act and the other falling under Section 123(5) of the Act. While the petitioner himself gave up grounds pertaining to allegation of excess election expenditure incurred by first respondent over the maximum limit provided under Section 77 of the Act and the allegation of corrupt practice of undue influence under Section 123(2) of the Act arising out of the speech made by the then BJP President, Sri. Venkaiah Naidu, this Court rejected the ground of bribery alleged in the form of gratification offered by the first respondent to the 10th respondent to withdraw the letter's candidature from election. The adjournments taken by both sides particularly the first respondent on account of SLP filed in the Supreme Court against the order rejecting preliminary objections on maintainability of Election Petition caused some delay in commencement of trial of the Election Petition. However, after calling for draft issues from petitioner and first respondent, this Court framed the following issues for trial:

(3.) On behalf of the petitioner, twenty five witnesses including the petitioner were examined. Annexure I notice dated 21.4.2004 with it's English translation as Annexure I(a) and photo calendar Annexure II produced along with the Election Petition were marked through petitioner as Exts.P1 and P2 respectively. On the side of the first respondent, eleven witnesses including himself were examined and Exts.R1(a) to R1(g) were marked. After closure of evidence and during hearing, this Court felt that controversy on claim by witnesses about filing documents marked in evidence in the office of the Returning Officer, participation in the proceeding before him and compliance of legal formalities in the office of the Returning Officer, on which oral evidence produced is conflicting would be better resolved by reference to official Election records. However, instead of ordering production of entire election records to Court, this Court vide order dated 9.6.2006 issued appropriate directions to the Returning Officer to give opportunities to both the parties to verify election records, and issue them copies of documents or certificates on facts borne out by records as demanded by them for production in this Court. The petitioner accordingly obtained and produced Annexures III to VII from the Returning Officer along with I.A. No. 4 of 2006 filed under Order XI, Rule 14 read with Section 151 of the CPC to receive the documents. The first respondent objected to receipt of documents after closure of evidence, and therefore this Court vide order dated 28.6.2006 granted opportunity to the first respondent to file counter affidavit in support of his objections against receipt of documents and the same was filed on 9.7.2006. Since the documents were filed in the course of final hearing of the Election Petition, this Court felt there was no need to pass separate order on the Interim Application to receive documents, and therefore the first respondent's objections are considered while considering Annexures III to VII in this judgment.