IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.6.2008 CORAM: THE HONOURABLE MR.JUSTICE C.NAGAPPAN Election Petition No.12 of 2006 R.Kamalakkannan .. Petitioner -Vs- 1.P.R.Siva 2.J.Arumugam 3.R.Sivakumar 4.M.Sadick Ali 5. Returning Officer  VIII Tirunallar Assembly Constituency Karaikal, Pondicherry. .. Respondents For Election Petitioner : M/s.D.Rajagopal, K.Narasimhan, P.Vedhavalli and V.Vasanthakumar For Respondent No.1 : Mr.T.V.Ramanujam Senior Counsel for M/s.A.Tamilvanan, J.Om Prakash and P.Sathish For Respondent No.5 : Mr.T.Murugesan Govt. Pleader (Puducherry) (Respondents 2 to 4- Set exparte) ORDER The petitioner has filed the election petition under Sections 80-A, 81 to 84 read with Sections 100(1)(b), 100(1)(d)(ii) and Sections 101, 123, 123(1)(A)(b) of the Representation of the People Act, 1951 seeking for a declaration to declare the election of the first respondent/returned candidate as void and to declare that the petitioner has been validly elected to the Pondicherry Legislative Assembly from No.26 Tirunallar Assembly Constituency in the election held on 8.5.2006. 2. According to the election petitioner, nominations were called for on 13.4.2006 to the General Elections to the Pondicherry Legislative Assembly to be held on 8.5.2006 and he filed his nomination as a candidate belonging to INC (Indian National Congress) Political party on 20.4.2006 to No.26 Tirunallar Assembly Constituency and the first respondent submitted his nomination as a candidate belonging to MDMK Party; the second respondent as a candidate of BJP Party; the third respondent as a candidate of DMDK Party and the fourth respondent as a candidate of BSP Party filed their nominations and all the nominations were accepted and they were declared as candidates contesting the election in No.26 Tirunallar Assembly Constituency. 3. In paragraph No.5 of election petition, the election petitioner has stated that the campaign period was over at 5 pm on 6.5.2006, but however, the first respondent on 7.5.2006 at 7 pm, came along with his supporters to Nallazhandur Village in Tirunallar Assembly Constituency and offered gold nose screw to the voters by way of bribe and requested them to vote for him in the election to be held on 8.5.2006. It is further stated that when the election petitioner was in his house at about 7.10 pm on 7.5.2006, one Ulaganathan of Pettai village informed him about the distribution of gold nose screw to the voters in Pettai by the first respondent and his supporters. According to the election petitioner, he also received nearly 50 calls from various voters in the constituency as to the distribution of gold nose screw to the voters in the constituency by the first respondent and his supporters. The election petitioner has further stated that even on 8.5.2006, in the early morning, the first respondent and his supporters distributed gold nose screw to the voters of Tirunallar Assembly Constituency and gathered votes. The election petitioner has also stated that on 8.5.2006 at about 5.30 am, one Ponramasamy, a supporter of first respondent, while distributing gold nose screw to the voters in Sethur of Tirunallar Constituency, it was objected to by one Pandian, supporter of election petitioner and trouble started and Police Authorities registered a case under Section 160 IPC in FIR No.89 of 2006 and the petitioner was immediately informed by one Anbazhagan of Sethur village about the distribution of gold nose screw to the voters by the first respondent and his supporters on 8.5.2006 in Sethur village with a request to vote for first respondent. 4. In paragraph No.6 of the election petition, the election petitioner has stated that on gathering materials on 8.5.2006 at about 6.30 pm, he gave fax message registering his objections to the Superintendent of Police, Karaikal and the Election Officials and again on 9.5.2006, he sent the same objections to the Superintendent of Police, Karaikal and though the petitioner did not receive the postal acknowledgment, the postal department in their letter dated 23.5.2006, addressed to the petitioner, has vouched the due delivery of the letters to the addressee. It is further stated by the petitioner that no action was taken on his objections and they were abetting the first respondent in committing the electoral offence. According to the election petitioner, the first respondent has distributed gold nose screw to the voters of Tirunallar Assembly Constituency on 7.5.2006 and 8.5.2006 by way of bribe and requested them to vote for him in the election and that action amounts to corrupt practice rendering the election of the returned candidate as void. 5. In paragraph No.7 of the election petition, the election petitioner has stated that Ulaganathan of Pettai village informed him that he saw the first respondent and his supporters Nagarajan, Rajasekhar from Kaliamman Koil Street of Pettai distributing gold nose screw to the voters in Pettai village with a request to vote for first respondent. It is further stated by the election petitioner that Murugan of Muppaithankudi village informed the petitioner that he saw the first respondent and his supporters Mariappan, Raja and Thilagavathi distributing gold nose screw at 11.30 pm on 7.5.2006 at Muppaithankudi village to the voters with a request to vote for the first respondent. The election petitioner has further stated that Mohan and Rajasekaran of Kamatchi Nagar of Sethur and Elangovan of North Street, Sethur saw the first respondent and his supporters Pon Ramasamy, Elango and Muthuvel of Sethur distributing gold nose screw on 8.5.2006 in Sethur village to the voters and requested them to vote for the first respondent in the election. According to the election petitioner, he called upon Vijayavarman to gather particulars and on 9.5.2006, Vijayavarman videographed the persons, who received gold nose screw from the first respondent and his supporters and from the videograph, the petitioner came to know that Vembu of Nallazhandur village, Thamilselvi, Manimegalai and Jayalakshmi of Sethur village have received gold nose screw from the first respondent and his supporters to vote for the first respondent in the election. It is further stated by the petitioner that Murugan of Muppaithankudi informed him that he saw Mariappan, Raj and Thilagavathi distributing gold nose screw to the voters of Muppaithankudi and requested them to vote for the first respondent in the election on 8.5.2006. The election petitioner has further stated that from the videograph taken by Vijayavarman, he came to know that Annakili of Muppaithankudi had received gold nose screw from the first respondent and his supporters to vote for the first respondent. According to the election petitioner, the first respondent and his supporters have distributed 4000 gold nose screws to the voters of Tirunallar Assembly Constituency. 6. In paragraph No.8, the election petitioner has stated that the proof of distribution of such gratification was recorded and videographed by Vijayavarman, engaged by the petitioner on 9.5.2006 through DVD from the voters who have received the gratification and the election petitioner lodged a complaint on 18.5.2006 to the Inspector General of Police, Pondicherry enclosing the videographed DVD copies and affidavits obtained from some of the voters who have received gratification from the first respondent and his supporters and a copy of the same was sent to the Chief Secretary of Pondicherry for suitable action. 7. In paragraph No.9 of the election petition, the election petitioner has stated that he was able to gather through his supporters and his election agent Bala Dhandayutham that the first respondent and his supporters distributed cell phone to Abdul Jabbar and Rahamathulla of Ambakarathur inducing them to vote for the first respondent in the election. It is also stated by the election petitioner that the first respondent has distributed a T.V. Set to one Kandapillai of Thamanangudi inducing him to vote for him in the election. The election petitioner has further stated that the gift offered and distributed by the first respondent and his supporters gives material advantage to its recipient and to the first respondent amounting to corrupt practice thereby attracting Section 123 of the Representation of the People Act, 1951. 8. In paragraph No.10, the election petitioner has stated that the fifth respondent on 11.5.2006 declared the first respondent as duly elected to fill the seat of No.26 Tirunallar Pondicherry Legislative Assembly Constituency having secured 7237 votes and the petitioner was polled 6952 votes. It is further stated that the first respondent was declared to be the winner by a margin of 285 votes and the general observer had wantonly not taken any action against the first respondent. The election petitioner has further stated that he sent representation dated 25.5.2006 to the Authorities to take appropriate action and also filed writ petition in W.P.No.17943 of 2006 seeking a direction to the Authorities to consider the above representation and take action in accordance with law and he also filed a petition in Crl.O.P.No.13123 of 2006 to take criminal action as to the Electoral offence committed by the first respondent. 9. The election petitioner has further stated that the first respondent, his agents, men and supporters are guilty of corrupt practice under Section 123(1)(A)(b) of the Representation of the People Act, 1951 and valid ground has been made out for declaration that the election of the first respondent from No.26 Tirunallar Assembly Constituency to be void by applying the provisions of Sections 100(1)(b), 100(1)(d)(ii) and Sections 101, 123, 123(1)(A)(b) of the Representation of the People Act, 1951. 10. The first respondent, in his counter affidavit, has stated that the allegations about the 'circulars' and 'guidelines' referred to in para 4 of the election petition, are vague and general in nature and the petitioner has not referred to any specific circular or guideline and they do not make out any cause of action. 11. The first respondent has further stated in the counter that the allegations in para 5 of the election petition are scandalous, scurrilous, frivolous and vexatious and the election petitioner has used expressions like 'supporters', 'voters' and 'gathered votes' etc., which are deliberately vague and general in nature and the election petitioner has not pleaded material facts and full particulars with regard to the alleged corrupt practice and the pleadings are vague and do not give rise to any cause of action and they are denied. 12. The first respondent in the counter affidavit has denied the allegation in para 5 of the election petition stating that the first respondent on 7.5.2006 after the completion of the election campaign at 7 pm came along with his supporters to Nallazhandur Revenue Village and offered gold nose screw to the voters by way of bribe and requested the voters to vote for him in the election, as false and according to him, this allegation is vague and the expressions 'Supporters' and 'Voters' are very general in nature and no material particulars have been pleaded. 13. The first respondent has denied the further allegation in para 5 of the election petition stating that the first respondent and his supporters distributed gold nose screw in the night on 7.5.2006 in Tirunallar Assembly Constituency and gathered votes, as false and according to him, the expression 'distributed gold nose screw' is vague. 14. It is further stated by the first respondent that the further allegation in para 5 of the election petition that one Ulaganathan of Pettai informed, is vague and the names of the alleged voters who received gold nose screw in Pettai are not mentioned and the allegation is denied. According to the first respondent, no document is produced along with the election petition to prove that Ulaganathan is a voter and the identity of Ulaganathan has not been specifically pleaded and the averment that Ulaganathan was a voter in Tirunallar Constituency, is denied by the first respondent. The further allegation in para 5 of the election petition that on 8.5.2006, the first respondent and his supporters distributed gold nose screw to the voters, is denied by the first respondent and according to him, it is vaguely stated that the election petitioner received 50 phone calls from various voters as to the distribution of gold nose screw to the voters and no full particulars of the alleged voters who received the gold nose screw are mentioned and hence it is vague. 15. The first respondent has further stated that the further allegation in para 5 of the election petition that one Ponramasamy, alleged supporter of the first respondent has distributed gold nose screw, is false and according to him, the identity of the alleged Ponramasamy is not pleaded specifically and the allegation is imaginary and the allegation that Ponramasamy was supporter of the first respondent, has been denied and consent is one of the ingredient of Section 123(1)(A) of the Representation of the People Act, 1951 and there is no such pleading in para 5 of the election petition. The first respondent has further stated that the alleged information of one Mr.Anbazhagan is again vague and the names and particulars of the alleged voters are not mentioned and the entire allegations in para 5 of election petition are liable to be struck off. 16. It is further stated by the first respondent in the counter that the further allegation in para 5 of the election petition that even on 8.5.2006 in the early morning the first respondent and his supporters distributed gold nose screw to the voters in the Constituency and gathered votes, is denied by the first respondent as vague and no truth in it. The next allegation in para 5 of the election petition stating that Ponramasamy, supporter of the first respondent, at about 5.30 am on 8.5.2006, was distributing gold nose screw to the voters in Sethur and it was objected to by one Pandian and trouble started and Police Authorities on their own registered a case under Section 160 IPC under FIR No.89/2006, has been denied by the first respondent and according to him, the allegation was deliberately vague and a copy of FIR has not been filed along with the election petition and the mandatory provision of Section 123(1)(A) of the Representation of the People Act, is not attracted. The first respondent has denied the further allegation in para 5 that one Anbazhagan informed the election petitioner about the distribution of gold nose screw by the first respondent and his supporters on 8.5.2006 in Sethur to the voters with a request to vote for the first respondent and according to him, in the verification as well as in Form No.25, there is no reference to the name of Anbazhagan and the allegations are mutually contradictory apart from being vague and imaginary and they are denied. 17. The first respondent has denied the allegations in para 6 of the election petition as vague, frivolous, scandalous and vexatious and has further stated that in the averments in para 6, it was stated that some complaints have been given to the Police and the Electoral Authorities and there also, particulars of the voters who received the bribe have not been fully furnished and it is vaguely stated as 'voters of Tirunallar Assembly Constituency and the allegation has been invented for the purpose of this case without any regard for truth. According to the first respondent, the complaint said to have been given to Inspector General of Police, Pondicherry, is a false complaint lodged after the declaration of results and though the election petitioner has stated that he gave fax message to the Superintendent of Police and other Electoral Officers, copy of the fax is not produced and in the same way, though it is alleged that the election petitioner has sent some objections through registered post to the Superintendent of Police, the copy of the complaint dated 9.5.2006 is not produced and what is produced is only the complaint dated 18.5.2006 and that is long after the declaration of results. It is further stated by the first respondent in the counter that the allegation of the election petitioner that the first respondent distributed gold nose screw to the voters on 7.5.2006 and 8.5.2006 by way of bribe and requested them to vote for him, is false and denied. According to the first respondent, the allegations in para 5 and para 6 of the election petition are mutually contradictory because they are false and invented and the provisions of Section 123(1)(A) of the Act are not attracted. 18. The first respondent has denied the entire allegations in para 7 of the election petition and stated that the allegation that the voters of the Tirunallar Assembly Constituency accepted the gratification offered by the first respondent and his supporters on 7.5.2006 and 8.5.2006, is vague and there is no reference to any 'elector' and the names of the voters who received the gratification and the supporters who distributed the gold nose screw, are not mentioned and the pleadings are liable to be struck off. It is further stated by the first respondent in the counter that the election petitioner has alleged in para 7 that he gathered details and it is not stated 'when', 'from whom' and 'how' the same was gathered and the allegation is vague and general and the further allegation that one Ulaganathan informed about the distribution of gold nose screw to the voters of Pettai by the first respondent and Nagarajan alias Narayanasamy, Rajasekar, alleged supporters of the first respondent, with a request to vote for the first respondent, is denied as false. The first respondent has further denied the allegation that one Nagarajan alias Narayanasamy and one Rajasekar of Kaliamman Koil Street of Pettai were the supporters of the first respondent and they along with the first respondent distributed gold nose screw to the voters of Pettai village with a request to vote for the first respondent on 8.5.2006, as not true. According to the first respondent, the name of some person named Ulaganathan is planted just to give false evidence and the names of alleged voters are not mentioned. 19. It is further stated in the counter that the allegation in para 7 that one Murugan of Muppaithankudi village informed the petitioner and others that he saw the first respondent and his supporters Mariappan, Raja and Thilagavathi distributing gold nose screw at 11.30 pm on 7.5.2006 at Muppaithankudi to the voters with a request to vote for him, is vague and imaginary and the same is denied. The first respondent has further stated in the counter that the allegation that one Mariappan, Raja and Thilagavathi were the supporters of first respondent, is false and the election petitioner has planted some names calling them as supporters of first respondent with a view to give false evidence and the name of Murugan is planted in the same way and the first respondent does not admit the identity of Ulaganathan and Murugan as alleged in para 7 of the election petition. It is further stated by the first respondent that it is alleged that Murugan informed the election petitioner and others and it is not known as to what the petitioner means by the word 'others' and the names of the alleged voters are not mentioned. The first respondent has further denied the allegation that Mohan, Rajasekaran and Elangovan of Sethur saw the first respondent and his alleged supporters Ponramasamy, Elango and Muthuvel distributing gold nose screw in Sethur village to the voters with a request to vote for the first respondent. According to the first respondent, the election petitioner has planted the names like Mohan, Rajasekaran and Elangovan just to give false evidence and the names of the alleged voters are not mentioned. 20. It is further stated by the first respondent that in para 7 of the petition, the election petitioner has stated that he called upon one Vijayavarman to gather particulars about the alleged incident of distribution of gold nose screw by the first respondent and his supporters and Vijayavarman videographed the persons who received gold nose screw and the said allegations are false and denied. According to the first respondent, the so called videograph was taken long after the alleged incident and it is nothing but fabrication of false evidence. The first respondent has further denied the allegation that Vembu, Thamilselvi, Manimegalai and Jayalakshmi received gold nose screw from the first respondent and his supporters to vote for him, as false and further stated that they are invented and the identity of the persons has not been properly disclosed. It is further stated by the first respondent that the other allegation in para 7 of the election petition that one Murugan of Muppaithankudi informed the election petitioner that he saw Mariappan, Raja and Thilagavathi distributing gold nose screw to the voters of Muppaithankudi and requested them to vote for first respondent, is an invented one and the same is denied and the election petitioner has planted the name of Murugan to give false evidence. The first respondent has further stated that the allegation that from videograph, the election petitioner came to know that one Annakili of Muppaithankudi has received gold nose screw to vote for first respondent, is again invented for the purpose of this case and the names of Annakili and Vijayavarman have been planted with intent to give false evidence. The first respondent has specifically denied the further allegation that he and his supporters have distributed 4000 gold nose screws to the voters of Tirunallar Assembly Constituency. 21. The first respondent has denied the allegation in para 8 of the election petition and according to him, videograph said to have been recorded on 9.5.2006 by Vijayavarman, is nothing but fabrication of false evidence and the election petitioner himself has stated that he engaged Vijayavarman to record videograph on 9.5.2006, after the election was over and so the videograph is recorded for the purpose of election petition and it is denied. It is further stated in the counter that the election petitioner has alleged that he lodged a complaint dated 18.5.2006 and according to the first respondent, the election itself was over on 8.5.2006 and the election petitioner has gained ten days' time to fabricate false evidence and hence it is a false complaint and the election petitioner has procured false affidavits for the purpose of this case from obliging persons. The first respondent has further stated that the alleged affidavits given by Thamilselvi and Vembu are stereo typed and the stamp papers are purchased in the name of the election petitioner and the Notary seals are identical in both the affidavits and in those false affidavits there is no allegation against the first respondent. It is further stated in the counter that in the alleged affidavit of Vembu, there is no allegation against the first respondent and it is alleged that one Elango gave gold nose screw and even these false affidavits do not make out a case under Section 123(1)(A) of the Act and there is not even an allegation of 'consent' in the affidavit. According to the first respondent, a perusal of the videograph would clearly show that it is created for the purpose of this case and it is nothing but fabrication of false evidence. 22. The first respondent has further stated in the counter that the allegation in para 9 of the election petition that 'through his supporter and his election agent one Mr.Balathandayutham, the election petitioner was able to gather that the first respondent and his supporters have distributed cell phone to Abdul Jabbar and Rahamathulla of Ambagarathur inducing them to vote for the first respondent', is false and denied. The first respondent has further denied the allegation that he has distributed a T.V. Set to one Kandapillai inducing him to vote for the first respondent in the election. According to the first respondent, the names mentioned in para 9 of the election petition, have all been planted just to give false evidence and the identity of persons who have allegedly received Cell phone and Television set, is not mentioned and that will enable the election petitioner to procure false evidence. The first respondent in the counter has further denied the allegation that he has not contested the election in a fair manner. According to the first respondent, he has not offered any gift to the voters and he has