Case: Abdulrasakh Vs. K.P. Mohammed &amp; Others

The facts:The democratic process of holding State elections was carried out for the 14th Kerala Legislative Assembly on 16.5.2016 in which the appellant contested from the Koduvally Assembly Constituency as an independent candidate. The results were declared on 19.5.2016 and the appellant, having obtained the highest number of votes was declared as elected.2. Respondent Nos.1 & 2 who were stated to be the voters from the same constituency filed election petitions on grounds of corrupt practices. The challenge to the election of the appellant was laid under Section 123(4) of the Representation of People Act, 1950 (hereinafter referred to as the `said Act) alleging that the appellant made false allegations against respondent No.3, a candidate, knowing the same to be false.The election petition is stated to have been filed on 1.7.2016 in which certain defects are stated to have been pointed out. It is the case of the appellant that the petition was returned from the Registry and wasonly on 11.7.2016 by which time the prescribed period of limitation of 45 days to file such an election petition had expired on 3.7.2016 and, thus, the election petition was time barred. It is also the say of the appellant that the Registry had no power to return the election petition or permitting curing of any defects. Even on representation, the petition is stated to have been defective and was placed before the learned single Judge of the Kerala High Court, who by the order dated 18.7.2017 granted one weeks time to respondent Nos.1 & 2 to cure the defects. It is thereafter that notice was issued to all the respondents in the election petition including the appellant herein.4. On account of the aforesaid two grounds and more the appellant moved an application for summary dismissal of the election petition under Section 86 of the said Act read with Section 151 and Order VI Rule 16, Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the `said Code).The objections filed by the appellant were, however, dismissed vide impugned judgment dated 16.6.2017, by the learned single Judge of the Kerala High Court against which the present Special Leave Petition has been filed.

Reasoning:
14. The Kerala High Court Rules (Rule 210) itself provided for scrutiny by the Judge assigned to the case and not by the Registry. There was no violation of this Rule. The defects were also cured only after 18.7.2016. The contents of the conversation recorded in the mobile phone have been produced as annexures and CDs and the mobile phones were themselves produced. The question of admissibility of evidence would, thus, have to be examined at the stage of trial. Similarly the photocopy of a photograph could only be a copy taken from mobile phone and at this stage it could not be said that it did not truly represent the contents of what was recorded in the mobile phone, which was again a matter of evidence.The issue of supply of copies has also been appropriately dealt with as copies of a transcript and the CD were supplied as also the translation thereof. This is not the stage to verify as to whether the translation correctly reflects what was said. In any case it would be a doubtful proposition whether it was mandated that a translation should also be filed that being possibly a part of the requirement of the High Court Rules since the record had to be in English. It has rightly been observed that the phone has been filed and keeping the phone in a sealed cover or the allegation ofof the chip alleged to be violative of Section 81(3) of the said Act is not a plea which can be accepted. At best these are all matters for trial.18. We are conscious of the fact that the law relating to election is a technical one as it amounts to a challenge laid to the democratic process determining the will of the people. An eligible person whether a candidate or a voter coming to Court, seeking to set aside any election has to, thus, meet with the technical natures of the election petition and the provisions prescribed under the said Act as otherwise it would be fatal to the election petition at the threshold itself. It is in these circumstances that the principles have been succinctly set out in Mithilesh Kumar PandeyThe observations in that case provide for clerical and typographical errors to be corrected. Thus, issues like mentioning of the correct number of annexures or tagging with the file, etc. would all fall within the said Section.19. Similarly copies of the documents have been supplied to the appellant and multiple copies of the phone or the chip (which is kept in a sealed cover) are not mandated to be supplied when the material relied upon in the phone has been reproduced in CD and a transcription also provided. The defence of the appellant cannot be said to be impaired in any manner.20. We are, thus, of the unequivocal view that the pleas advanced on behalf of the appellant are meritless and deserve to be rejected.