IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 El.Pet..No. 6 of 2009() ----------------------- PETITIONER: -------------------- PA.MOHAMMED RIYAS, GRACE, PUDUKKUDI PARAMBA, PO, KOZHIKODE-16. BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.P.K.VIJAYAMOHANAN SRI.ALAN PAPALI SRI.SOJAN MICHEAL SRI.GILBERT GEORGE CORREYA SRI.NISHIL.P.S. RESPONDENT(S): -------------------------- 1. M.K.RAGHAVAN, MEMBER OF PARLIAMENT, ASWATHI, PAYYANNUR PO, KANNUR. 2. A.K.ABDUL NASAR, KARAKKUNNUMMAL, KUDUKKIL UMMARAM, THAMARASSERY PO, KOZHIKODE. 3. V.MURALEEDHARAN, 5/338, VIKAS SADAN, CIVIL STATION PO, KOZHIKODE -20. 4. P.KUMARANKUTTY, ADOVATE, 'CHALANAM', KARINGALIPARAMBA,RAM MOHAN ROAD, PUTHIYARA PO, CALICUT-4. 5. K.MUHAMMED RIYAS, KUNNUMMAL, PALAKKUTTY, KODUVALLY PO. 6. P.MUHAMMED RIYAS, RAZAK MANZIL, AYYAPPANKANDY, KOLATHARA, 7. P.A.MOHAMMED RIYAS, PEEDIKAKKANDY HOUSE,KUTTAMASSERY, THOTTUMUKKAM, ALUVA. 2 8. MUDOOR MUHAMMED HAJI, MUDOOR HOUSE, PUTHUR PO, KODUVALLY. 9. K.RAGHAVAN, ANJALI, SANTHIRITHIVAYAL, KARUVASSERY PO, KOZHIKODE. 10. P.RAMACHANDRAN NAIR, RAROTH KOVILAKAM, KANNANKODE, ERAMANGALAM PO, BALUSSERY. 11. M.RAGHAVAN, MEETHALE KANDOTH, CHOLAM VAYAL, VATAKARA PO. 12. VINOD.K, KUNNUMMAL, POONATH PO, AVIDANELLUR, NADUVANNOOR,KOZHIKODE. 13. SABI JOSEPH, ADVOCATE, 33/4944.A, SUCHITHRA DALE, CHEVARAMBALAM PO, KOZHIKODE. 14. DR.D.SURNDRANATH, UJJAYINI, PANNENPARA, PALLIKUNNU PO, KANNUR-4. 15. RIYAS, EDATHIL HOUSE, ARAMBARAM, PANANILAM PO, KUNNAMANGALAM, KOZHIKODE. ADV. SRI.P.M.MOHAMMED SHIRAZ FOR R15 SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R1 SRI.SAJU.S.A FOR R1 SRI.P.FAZIL FOR R1 SRI.THOMAS ANTONY FOR R13 SRI.TITUS MANI FOR R4 THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 06/01/2010, THE COURT ON 17.05.2010 DELIVERED THE FOLLOWING: CR V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Election Petition No. 6 of 2009 * * * * * * * * * * * * * * * * * * Dated: 17th May, 2010 JUDGMENT In this petition filed under Sec. 81 read with Sections 100, 101 and 123 of the Representation of the People Act, 1951, (hereinafter referred to as “the R.P. Act” for short) the petitioner (P.A. Mohammed Riyas) challenges the election of the first respondent ( M.K. Raghavan) , the returned candidate from No. 05 - Kozhikode Constituency of the House of People in the Parliamentary election which was held on 16-4-2009 and the result of which was declared on 16-5-2009. The petitioner contested the election as the official candidate of the Communist Party of India (Marxist) [“the C.P.I. (M)” for short] led by the Left Democratic Front [“LDF” for short]. The major constituents of the LDF were the C.P.I. (M), the Communist Party of India, the Kerala Congress (Joseph) , the Janatha Dal and the Revolutionary Socialist Party. The first respondent was the candidate of the Indian National Congress and he contested the election as the candidate of the United Democratic Front (“UDF” for short). The major constituents of the U.D.F. were the Indian National Congress , the Indian Union Election Petition No. 6 of 2009 -:2:- Muslim League and the Kerala Congress (Mani). 2. The dates which are relevant for the purpose of this election petition are the following:- 1 Date of election notification 23-03-2009 2 Last date for filing Nomination 30-03-2009 3 Date of Scrutiny 31-03-2009 4 Last date for withdrawal of Nomination 02/04/2009 5 Date of publication of Final List of candidates 02/04/2009 6 Date of Election 16-04-2009 7 Number of candidates contested 16 8 Date of declaration of election results 16-05-2009 9 Last date for filing Election Petition under Section 81 (1) of R.P. Act. 30-06-2009 10 The present election petition filed on 26-06-2009 11 Summons issued to the respondents on 17-07-2009 3. Besides the petitioner respondents 1 to 15 contested the election. The number of votes secured by the petitioner and respondents 1 to 15 are as follows:- Sl.No. Name of Candidate Rank in the E.P. No. of Votes 1 P.A. Muhammed Riyas Petitioner 3,41,471 2 M.K. Raghavan Ist respondent 3,42,309 3 A.K. Abdul Nazar 2nd respondent 4044 4 V. Muraleedhara 3rd respondent 89718 5 P. Kumarankutty 4th respondent 5871 6 K. Muhammed Riyas 5th respondent 1026 7 P. Muhammed Riyas 6th respondent 980 8 P.A. Muhammed Riyas 7th respondent 1109 9 Mudoor Mohammed Haji 8th respondent 495 10 K. Raghavan 9th respondent 1740 Election Petition No. 6 of 2009 -:3:- 11 P.Ramachandran Nair 10th respondent 1005 12 M. Raghavan 11th respondent 1033 13 Vinod. K. 12th respondent 1629 14 Sabi Joseph 13th respondent 1163 15 Dr.D. Surendranath 14th respondent 2257 16 Riyas 15th respondent 1728 4. According to the petitioner the election of the first respondent is vitiated by “corrupt practice” falling under Section 123 (4) of the R.P. Act . The grounds alleged for setting aside the election of the first respondent are :- A. “Corrupt practice” by the publication of allegedly false statements in the form of - 1) Annexure A ( “Jagratha” ( “Be careful” ) Newsletter bearing no date) allegedly published on 14-4-2009 and distributed on 15- 4-2009 2) Annexure H (Anonymous notice allegedly published on 14-4-2009 and 15-4-2009 3) Annexure K (Report in the Mathrubhumi daily dated 31-3-2009 of the speech of M.P. Veerendra Kumar 4) Annexure L Hand Bill dated 11-4-2009 allegedly distributed on 14-4-2009 5) Annexure M Wall poster allegedly published on 14-4-2009 & 15- 4-2009 6) Annexure N Wall poster -do- -do- AND B). Fielding of other candidates having similarity in names 5. Highlights of the 6 publications falling under Ground A above are shown below in a tabular chart for easy comprehension. Election Petition No. 6 of 2009 -:4:- Election Petition No. 6 of 2009 -:5:- Election Petition No. 6 of 2009 -:6:- Election Petition No. 6 of 2009 -:7:- Election Petition No. 6 of 2009 -:8:- 6. Details of the publications of the allegedly false statements: I. It is alleged by the petitioner that Annexure A newsletter “Jagratha” comprising of writes-up under the captions - “Conspiracy behind the candidature of Riyas stands exposed” , “Age of “kali” ( the God of strife)”, “should the abhorred be crowned ?”, “ The end of the Drama, Faris ” , “The gentleman in politics”, and “Don't comrade, don't kill”, contains the main imputations detailed as 1 to 16 in column 3 of the above tabular statement under Serial. No. 1 and that the said newsletter was printed and published by Adv. M. Veerankutty, Chairman of the United Democratic Front, Kozhikode District with the consent and knowledge of the first respondent M.K. Raghavan and 50,000 copies of the said newsletter were printed and distributed at the instance of the first respondent with his consent and with the consent of his election agent K.C. Abu and were distributed among the voters with the object of prejudicing the voters against the petitioner. The petitioner would further allege that the 14 persons mentioned in Annexure D to the E.P. Election Petition No. 6 of 2009 -:9:- are the persons who distributed “Jagratha” in the Constituency. II. Annexure X anonymous notice, according to the petitioner has been the subject matter in Annexure F and G reports in the Mathrubhumi and Malayala Manorama dailies dated 15-4-2009. The petitioner would allege that the above anonymous notice was printed and distributed with the consent of the first respondent and the impression attempted to be created was that it was issued by the youth wing of the C.P.I. (M). It is the case of the petitioner that the said anonymous notice was distributed by one Krishnankutty and 14 others whose details are given in Annexure-I . III. Annexure K, according to the petitioner is a report in the Mathrubhumi daily dated 31-3-2009 reporting the address of the Janatha Dal Convention at Badagara by its State president Sri. M.P. Veerendra Kumar who had turned hostile to the Left Democratic Front “(L.D.F.” for short) consequent on the L.D.F. declining to allot the Kozhikode Parliamentary seat to Veerendra Kumar in the election. Election Petition No. 6 of 2009 -:10:- IV. According to the petitioner, Annexure-L hand bill dated 11-4-2009 was issued by K. Krishnankutty, Secretary General of Janatha Dal State Committee making an appeal to the electorate to vote for the Congress with special reference to the Kozhikode Parliamentary Constituency. V. Annexures M and N are wall posters at two places in Kozhikode allegedly issued by the U.D.F. canvassing for the victory of the first respondent M.K. Raghavan after defeating the petitioner Muhammed Riyas who is stated to be the benami of Faris who had allegedly given crores to the petitioner . The person responsible for the posters are stated to be “other persons” (names not given) with the consent of the first respondent and his election agent . 7. The point for consideration is as to whether the election petition is liable to be rejected/dismissed as not maintainable at the threshold for want of a complete cause of action ? 8. The point:- I heard both sides in detail. THE ARGUMENTS After entering appearance, the first respondent represented by Sr. Advocate Sri. Krishnan Unni advanced Election Petition No. 6 of 2009 -:11:- arguments to the effect that the Election Petition was liable to be dismissed for want of specific pleading in terms of Sec. 123 (4) of the R.P. Act and that the alleged statements said to have been published were not with respect to the personal character of the petitioner nor was it against the candidature of the petitioner and that the election petition does not plead a complete cause of action so as to be maintainable. Controverting the said arguments, Sr. Advocate Sri.M.K. Damodaran appearing for the petitioner, on the other hand, submitted that the Election Petition has pleaded both the “material facts” as well as the “full particulars” with regard to each and every allegation of corrupt practice and that the arguments addressed on behalf of the first respondent are unsustainable . JUDICIAL EVALUATION 9. After hearing both sides and after carefully perusing the averments in the Election Petition and after the case - law on the point, I am inclined to accept the contentions urged on behalf of the first respondent. 10. The following legal principles do not admit of any doubt or controversy :- A. An election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown Election Petition No. 6 of 2009 -:12:- to the common law and the court possesses no common law power. (Jagen Nath v. Jaswanth Singh and Others - AIR 1954 SC 2010; Ch. Subbarao v. Member, Election Tribunal - AIR 1964 SC 1027). B. Success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. [Vide Jagan Nath's case (supra)]. C. The purity of the election process has to be safeguarded . The setting aside of an election involves serious consequences not only for the returned candidate and the constituency but also for the public at large in as much as a re-election involves enormous load on the public funds and the administration. (Shivajirao B Patil Kawekar v. Vilasarao D Deshmukh - 2000 (1) SCC 398). D) The trial of an election petition where “corrupt practice” is alleged is of a quasi criminal nature . A heavy burden rests on the person alleging the corrupt practice to prove strictly all the ingredients of the charge. This is because the charge that a person has committed a corrupt practice has the serious consequence of disqualifying him from being chosen as, or from being a member of any House of the Parliament or of the Legislative Assembly or Council of a State for a period up to 6 years. (See Manohar Joshy v. Damodar Tatyaba - (1991) 2 SCC 342, 351; Election Petition No. 6 of 2009 -:13:- Nand Singh v. Ajit Inder Singh - JT (2000)10 SC 531 ; Anang Uday Singh Deo v. Rangnath Mishra and Others JT (2001) 8 SC 574. ; Jeet Mohinder Singh v. Paraminder Singh Jassi - (1999) 9 SCC 386. E. The provisions of Sec. 87 of the R.P. Act specifically enjoin that every Election Petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the C.P.C. for the trial of suits. Merely because Section 83 does not find a place in Sec. 86 (1) which enables the High Court to dismiss an Election Petition for non-compliance with the provisions of Section 81, 82 or 117, it does not mean that the powers under the C.P.C. cannot be exercised to dismiss or reject the Election Petition. Under the C.P.C. the Court has the power to act at the threshold and the said power must be exercised in appropriate cases. In regard to a matter pertaining to an elected representative of the people which is likely to inhibit him in the discharge of his duties towards the nation, the controversy should be set at rest at the earliest, if the facts of the case and the law so warrant. In a case where the election petition is lacking in any essential “material fact”, the petition can be dismissed summarily. (Vide Azhar Hussain v. Rajiv Gandhi - AIR 1986 SC 1253). If the election petition does not disclose a cause of action, eventhough non-compliance of Section 83 of the R.P. Act is not a ground mentioned in Section 86, the High Court can fall back upon the provisions of the C.P.C. and reject the plaint under Order VII Rule 11 C.PC. (See Lalit Kishore Chaturvedi Election Petition No. 6 of 2009 -:14:- v. Jagdish Prasad Thada - 1990 (Supp) SCC 248; Virender Nath Gautam v. Satpal Singh - (2007) 3 SCC 617. The Court can under Order VI Rule 15 C.P.C. strike out the pleadings in an election petition which does not disclose any cause of action. If after striking out the pleadings no triable issue remains to be considered , the Court can reject the petition under Order VII Rule 11 C.P.C. (Dhartipukar Madan Lal Agarwal v. Shri Rajiv Gandhi - AIR 1987 SC 1577; Surinder Singh v. Mardial Singh - 1985 (1) SCC 91). F. The distinction between “material facts” and “ full particulars” should not be overlooked. “Material facts” are primary or basic facts which must be pleaded by the party in support of the case set up by him either to prove his cause of action or his defence. “Particulars” on the other hand are details in support of “material facts” pleaded by the party. They amplify, refine and embellish “material facts” by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative (See Mahadeorao Sukaji v. Ramaratan Bapsu - (2004) 7 SCC 181. All facts which are essential to clothe the petitioner with a complete cause of action are material facts (See paragraph 15 of V.S. Achuthanandan v. Francis - (1999) 3 SCC 737). Material facts and particulars together constitute the facts to be proved or “facta probanda”. It is different from the evidence by which those facts are to be proved viz., “facta probantia” . (Para 38 of Chinna Swamy v. Palani Election Petition No. 6 of 2009 -:15:- Swamy - (2004) 6 SCC 341); Virender nath Gautam v. Satpal Singh and Others (2007) 3 SCC 617. While failure to plead material facts is fatal to the Election Petition and no amendment of the pleadings can be allowed to introduce such “material facts” after the expiry of the time limit prescribed for filing the Election Petition, the absence of “full particulars” can be cured at a later stage by introducing the same through appropriate amendment ( L.R. Shivaramagowda v. T.M. Chandrasekhar - (1999) 1 SCC 666; A Sapna v. Singora (1991) 3 SCC 375 ; Gajanan Krishnaji Bapat v.Dattaji Raghobaji Meghe - (1995) 5 SCC 347) G. Concise and specific pleadings setting out all the relevant material facts is indispensable in an election petition since, the election petition if allowed, nullifies the success of a candidate and is, therefore, a serious remedy. An election petition must therefore precisely allege all material facts on which the petitioner relies on in support of a plea that the result of the election has been materially affected on account of the conduct of the opposite party. [Para 15 of Santhosh Yadav v. Narender Singh - (2002) 1 SCC 160.] Concise statement of material facts means the entire bundle of facts which would constitute a complete cause of action. (Para 77 of Har Kirat Singh v. Amarinder Singh - (2005) 13 SCC 551). H. Pleadings which are vague are liable to be struck off under Order VI Rule 16 C.P.C. R.P. Act is a Election Petition No. 6 of 2009 -:16:- complete and self contained Code . The election petitioner should not be permitted to have a fishing expedition or a roving enquiry without the requisite pleadings. (Madhava Kurup v. Muraleedharan - 1990 (2) KLT 112; Azhar Hussain v. Rajiv Gandhi - AIR 1986 SC 1253). I. Order VIII Rule 5 C.P.C. is not applicable to an election petition (Dr. Jagjit Singh v. G.K. Singh - AIR 1966 SC 773). But Order VIII Rules 1, 8 and 9 as judicially interpreted are applicable to election trials (Kailash v. Nanhku - (2005) 4 SCC 480. J. Where the Court finds that neither the material facts nor the full particulars are stated in the election petition , the petition can be dismissed for not disclosing the cause of action. (Para 21 of Subash Desai v. Sarad Rao - AIR 1994 SC 2277). An election petition can be dismissed summarily if it does not disclose any cause of action (Abraham Kriakose v. P.T. Thomas - 1991 (2) KLT 650). Election Petition alleging corrupt practice is liable to be dismissed if there is omission to state material facts or give full particulars. (Subash Desai v. Sharad J. Rao - AIR 1994 SC 2277). K . Omission of a single material fact leads to incomplete cause of action and the statement of claims becomes bad. (Vide S.N. Balakrishna v. George Fernandez - AIR 1969 SC 1201). Failure to plead a single material fact is fatal (Azhar Hussain v. Rajiv Election Petition No. 6 of 2009 -:17:- Gandhi - AIR 1986 SC 1253). L. To enable the Court to reject an election petition for non disclosure of cause of action , the election petition alone should be looked into and it is the duty of the Court to do so without a written statement by the opposite party. (Para 24 of Hari Shankar Jain v. Sonia Gandhi - (2001) 8 SCC 233). M. In stating the “material facts”, merely quoting the words of the Section is not sufficient. The facts which constitute the corrupt practice must be stated and the facts must be co-related to one of the heads of corrupt practice. (S.N. Balakrishna's case - supra). N. Section 100 of the R.P. Act enumerates the grounds for declaring an election to be void by the High Court. “Corrupt practice” which is elaborately defined under Sec. 123 of the R.P. Act is a ground under Sec. 100 of the R.P. Act. Clause (1) (b) of Section 100 constitutes the ground for declaring an election to be void on the ground of “corrupt practice” if such corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent. O. The entirety of averments that the publication was made by the returned candidate or his election agent or by any other person with the consent of the candidate or his election agent of any statement of Election Petition No. 6 of 2009 -:18:- fact which is false, which he either believes to be false or does not believe to be true in relation to the personal character or conduct of the candidate, would constitute “material facts”. (Ravinder Singh v. Jarmeja Singh - AIR 2000 SC 3026). Mere proof of corrupt practice by an agent other than the returned candidate's election agent is not sufficient. It should further be shown that such corrupt practice has materially affected the result of the election in so far as it concerns the returned candidate. [Section 100 (1) (d)]. Where the above aspect is not pleaded the election petitioner cannot be permitted to adduce evidence to that effect. [Shivaramagowda's case (supra)]. P. A “statement of fact” for the purpose of Section 123 (4) can only be a past event capable of being proved to be false and cannot be a hypothetical future apprehension or the conjecture of a likelihood in future . (Gadak's case - AIR 1994 SC 678). Q. If a false statement is made in regard to a public or political character of the candidate, it would not constitute corrupt practice under Sec. 123 (4) of the R.P.Act. (Lalit Kishore Chaturvedi v. Jadish Prasad - (1990) Supp. SCC 248; K. Yaswant Rao v. Vikhe Patil - AIR 1994 SC 678). R. Consent is the life line to link up the candidate with the action of the other person. Without such consent it may not amount to corrupt practice. Hence, such consent should be specifically pleaded and proved. (Para 20 of Azhar Hussain's case) (supra). Election Petition No. 6 of 2009 -:19:- S. It is the candidate's belief which matters under Section 123 (4) of the R.P. Act (Paras 42 and 43 of S.N. Balakrishna's case (supra). T. Failure to prove that the impugned statement of fact is not only false but also that the respondent returned candidate and his agents publishing the impugned statement s either believed the statement to be false or did not believe them to be true, is fatal and the impugned statement will not fall within the mischief of Sec. 123 (4) of the R.P. Act (Mangilal v. Krishnaji Rao - AIR 1971 SC 1943). Thus, the belief of the candidate that the statement is false or is not true is a “material fact “ which has to be pleaded and proved and omission to plead the above material fact is fatal to the election petition. (See Sheonath Singh v. Ram Pratap- AIR 1965 SC 677, paragraph 17 of Kumara Nand v. Brijmohan Lal Sharma - AIR 1967 SC 808, paragraphs 20 and 21 of Raghunath Singh v. Krishna Chandra Sharma - AIR 1971 SC 1839, paragraph 19 of Dr. Jagjit Singh v. Giani Kartar Singh and Others - AIR 1966 SC 773 and paragraph 7 of Ravinder Singh v. Janmeja Singh and Others - AIR 2000 SC 3026). U. For non - disclosure of cause of action the Court has the power to reject the petition at any stage and starting of trial or settlement of issues is no bar to the exercise of the above power. (K.K. Somanathan v. K.K. Ramachandran Master - AIR 1988 Kerala 259). Election Petition No. 6 of 2009 -:20:- V. For a person to be considered as an agent of a particular candidate , such person should have been employed by the candidate in connection with the election. Employment is essential for his being treated as an agent. The mere fact that some persons assist a candidate or that they support him does not by itself make them his agents. (Gervasis v. Augustine - 1971 KLT (SN) 51 and Suresh Babu v. Baby John - 1983 KLT (SN) 6. 11. Bearing in mind the above principles, let us now consider the scope of “corrupt practice” as a ground for setting aside the election. Section 123 of the R.P. Act encompasses 10 varieties of corrupt practices enumerated under sub sections (1), (2), (3), (3A), (3B), (4), (5), (6), (7), and (8) thereof. In this case, we are concerned only with the corrupt practice falling under sub-section 4 of Section 123. The said sub-section reads as follows:- “123: Corrupt practices:- The following shall be deemed to be corrupt practices for the purposes of this Act - (4). The publication by a candidate or his agents or by any other person with the consent of a candidate or his election agent of any statement of fact