P.C.Thomas vs Adv.P.M.Ismail & Ors

2. Election to the said Parliamentary Constituency was held on 10th May, 2004 and the result was declared on 13th May, 2004. The appellant, who was the first respondent in the Election Petition, was the candidate from the Indian Federal Democratic Party (`IFDP' for short), a constituent of the National Democratic Alliance. He was declared elected by a margin of 529 votes over the first respondent (hereinafter referred to as the `election petitioner'), who got the second highest number of votes. The election petitioner was the candidate from the Communist Party of India (Marxist), a constituent of the Left Democratic Front (for short `LDF'). While the appellant secured 2,56,411 votes, the election petitioner got 2,55,882 votes. The second respondent in the election petition, who had contested the election as a candidate of the Kerala Congress (M), a constituent of the United Democratic Front (`UDF' for short), secured 2,09,880 votes. The other 13 contestants got an insignificant number of votes.

4. The allegations in the Election Petition were denied by the appellant. In the first instance, as a preliminary objection, the appellant questioned the maintainability of the Election Petition. Rejecting the objection, the High Court, vide its order dated 28th February, 2005 sustained the maintainability of the Election Petition only on two grounds of corrupt practice, viz. one falling under Section 123(3) of the Act and the other under Section 123(5) of the Act. While the election petitioner himself gave up the grounds pertaining to allegation of excess election expenditure incurred by the appellant over the maximum limit provided under Section 77 of the Act and the allegation of undue influence under Section 123(2) of the Act arising out of a speech made by the then President of the Bharatiya Janta Party, the High Court rejected the ground pertaining to the allegation of bribery 4 in the form of gratification offered by the appellant to one of the contestants in order to get his candidature withdrawn from this election.

5/4400, KL-5/C 3431 and Jeep Nos. KRO 6606 and KL- 5/1845 for free conveyance of the electors to and from the polling station Nos. 57 to 71 in Poonjar Thekkekara 5 Panchayat in Poonjar Assembly Constituency of No. 2 Muvattupuzha Parliamentary Constituency for the election held on 10.5.2004.

6. On behalf of the election petitioner, twenty five witnesses, including himself were examined. Alleged public notice dated 21st April, 2004 and photo-calendar, filed as Annexures I and II respectively with the election petition, were exhibited through election petitioner as Ext.P1 and P2 respectively. On the side of the appellant, eleven witnesses, including himself were examined and Ext. R1(a) to R1(g) were marked.

18. Indeed, the community members all over understood it as such. This is borne out from the testimony of Benny George (PW-2), K.J. Reji (PW-6), Chako (PW-7), Benny Avoly (PW-8), Jose (PW-9), etc. etc., who all deposed about the party workers of IFDP, to which party the appellant belonged to, giving notice (Ext.P1) and calendar (Ext.P2) to each one of them as a statement by John K., a known leader of Catholics. The consent of the appellant for distribution of the said exhibits among the Catholic voters, though not directly proved was rightly 22 inferred from the fact that his agent James, who got these printed, paid charges and circulated these. The circulation of the said exhibits amounted to violation of Section 123(3) of the Act. The aforesaid witnesses also stated having gone through the notice (Ext.P1), discussed about it with their family members or friends and to have come to the conclusion that the appellant being a leader of Catholics and a candidate in the Parliamentary Elections 2004, having always stood with the community, deserved to be supported and voted for. Nothing significant was brought out in their cross examination to discredit them. Considering it all, the High Court was satisfied that notice (Ext.P1) and calendar (Ext.P2) were distributed by workers of the appellant. Applying the test of common man's understanding and the effect of the said documents on the mind and feelings of an ordinary average voter, we agree with the High Court that the said notice/statement (Ext.P1) did constitute an appeal to the members of the Christian community, particularly, the Catholics to seek their votes for the appellant, being a Catholic, on the ground of religion, caste and community. Calendar 23 (Ext.P2), as indicated above, does not per se fall within the mischief of Section 123(3) of the Act but taken along with Exhibit P1 does serve as a statement to strengthen the appeal in notice (Ext.P1).

32. This appeal under Section 116A of the Act has been preferred by the 2nd respondent in C.A. No.5033 of 2006, who had unsuccessfully contested the election as a candidate of the Kerala Congress (M). As noted above, the appellant in the said appeal, who was declared elected had got 2,56,411 votes; the election petitioner got 2,55,882 votes and the appellant in this appeal had secured 2,09,880 votes. The short grievance of the appellant is that election of P.C. Thomas having been 36 set aside, instead of declaring the election petitioner as elected; the High Court should have declared the appellant as elected from 12 H.P. Muvattupuzha Parliamentary Constituency.

30. For the view we have taken above, we deem it unnecessary to examine the second issue, viz. the corrupt practice in hiring or procuring vehicles free of charges to the electors to go to and from the polling booths falling under Section 123(5) of the Act, on which ground also the election of the appellant has been invalidated by the High Court.

31. For all the foregoing reasons, we see no merit in this appeal. The same is dismissed accordingly but in the circumstances of the case, we make no order as to costs in this appeal.

CIVIL APPEAL NO.5777 OF 2006

33. In our opinion, fresh election to the said parliamentary constituency having already taken place in this year, this appeal is rendered infructuous and has to be dismissed on that ground. It is ordered accordingly.

SEPTEMBER 4, 2009.