M.C.Jacob vs A.Narayanan & Ors

2. Heard Shri Fali Nariman, learned Senior Advocate assisted by Ms. Malini Poduval and Vishnu B. Saharia for the appellants, and Shri K.K. Venugopal, learned Senior Advocate assisted by Ms. Bina Madhavan for the respondents. The impugned judgment was passed on an Election Petition challenging the election of the appellant M.J. Jacob as an MLA for the Kerala Legislative Assembly in the polling held on 29.4.2006. The High Court by the impugned judgment has declared the said election to be void on the ground that the appellant was guilty of corrupt practice under Section 123 (4) of the Representation of People Act, 1951 (in short "the Act").

4. The ground on which the Election Petition was allowed was that a corrupt practice was committed by the publication of the pamphlet Ext. P1 and that such a publication has been made by the appellant's election agent, one Shri O.N. Vijayan (RW1), and by two other persons (RW2 and RW3) with the consent of the appellant or his election agent, that the statement of facts in Ext. P1 was made in relation to the personal character or conduct of PW-30 Shri T.M. Jacob, who was a candidate in the said election, which is false and which the publisher of Ext. P1 either believes to be false or does not believe to be true, and that such statement was reasonably calculated to prejudice the prospects of Shri T.M Jacob PW 30 in the election. Hence it was prayed that the election be declared to be void under Section 100 (1) (b) of the Act r/w Section 123 (4) thereof. Though in the election petition, it was contended that several statements in Ext.P1 amounted to false statements in relation to the personal character and conduct of Shri T.M. Jacob, in this appeal, we are concerned with only one allegation, viz., question No.2 posed to Shri T.M. Jacob in Ext.P1.

30. The above statement is totally different from alleging that the statement in para 2 of Ext. P1 that Shri Scaria is an absconder is an innuendo. As already mentioned above, in paragraph 2 of Ext. P1 there is no mention that Shri T.M. Jacob is harbouring Shri Scaria, and the mention is only that Shri Scaria who was in the personal staff of Shri T.M. Jacob is absconding. Hence, there should have been a clear pleading in the Election Petition that the statement in paragraph 2 of Ext. P1 is an innuendo, and that it really means that Shri T.M. Jacob harboured Shri Scaria, but there is no such pleading as already stated above. Innuendo is to be clearly pleaded but that has not been done in the Election Petition.

34. However, even if the statement in the interrogative form in paragraph (2) is regarded as an assertion in our opinion it will not amount to a corrupt practice under Section 123(4), for the reasons given above.

38. In a democracy many allegations and counter-allegations are made, and sometimes these are incorrect, but that does not mean that an election should be set aside straightaway on that account, as has been done in the present case, unless all the ingredients of Section 123(4) of the Act are clearly made out, otherwise almost every election will have to be set aside.

39.For the reasons given above these appeals are allowed, the Impugned judgment is set aside and the Election Petition is dismissed. There shall be no order as to costs.