(2012) 267 KLR 703

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN 

TUESDAY, THE 21ST DAY OF AUGUST 2012/30TH SRAVANA 1934 

El.Pet..No. 8 of 2011 ( ) 

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PETITIONER(S):

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PRAHLADAN, S/O.SREEDHARAN, AGED 55 YEARS VALLIVILAYIL, PATHARAM.P.O., SOORANAD SOUTH KUNNATHOOR TALUK, KOLLAM. 

BY ADV. SRI.J.OM PRAKASH 

RESPONDENT(S):

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VARKALA KAHAR, 10/278, (8/335), PUTHENVEEDU, NADAYARA, VARKALA.P.O. THIRUVANANTHAPURAM. 

BY ADV. SRI.K.RAMAKUMAR (SR.) BY ADV. SMT.SARITHA DAVID CHUNKATH BY ADV. SMT.SMITHA GEORGE BY ADV. SRI.C.R.REKHESH SHARMA BY ADV. SRI.K.G.RAJEESH BY ADV. SMT.ASHA BABU BY ADV. SRI.T.RAMPRASAD UNNI 

THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 10-04-2012, THE COURT ON 21-08-2012 DELIVERED THE FOLLOWING:

APPENDIX 

PETITIONER'S EXHIBITS:

• ANNEXURE-A: THE RECEIPT ISSUED BY THE ASSISTANT RETURNING OFFICER, DATED 26.3.2011. 
• ANNEXURE-B: COPY OF THE ORDER OF THE RETURNING OFFICER IN RESPECT OF ARO-13 DATED 28.3.2011. 
• ANNEXURE-C: COPY OF THE ORDER OF THE RETURNING OFFICER IN RESPECT OF ARO-14 DATED 28.3.2011. 
• ANNEXURE-D: CHALAN NO.345 DATED 17.6.2011. 
• EXT.P1: THE RECEIPT ISSUED BY ASSISTANT RETURNING OFFICER DATED 26.3.2011. 
• EXT.P2: COPY OF ORDER OF THE RETURNING OFFICER IN RESPECT OF ARO-13 DATED 28.3.2011. 
• EXT.P3: COPY OF THE ORDER OF THE RETURNING OFFICER IN RESPECT OF ARO-14 DATED 28.3.2011. 
• EXT.X1: ARO-13 NOMINATION PAPER OF ELECTION TO LEGISLATIVE ASSEMBLY OF KERALA STATE OF SRI.PRAHALADAN DATED 25.3.2011. 
• EXT.X1(A): FORM 26 IN X1 (PAGE 9) 
• EXT.X1(B): FORM 26 IN X1 (PAGE 11) 
• EXT.X1(C): AFFIDAVIT ATTACHED TO FORM 26 IN EXT.X1. 
• EXT.X2: ARO-14 - NOMINATION PAPER OF ELECTION TO LEGISLATIVE ASSEMBLY OF KERALA STATE OF SRI.PRAHALADAN DATED 25.3.2011. 
• EXT.X2a - FORM 26 IN X2 PAGE 11. 
• EXT.X2b - FORM 26 IN X2 PAGE 15. 
• EXT.X2c: AFFIDAVIT ATTACHED TO FORM 26 IN EXT.X2. 
• EXT.X3: VIDEO TAPE 1 - (SCRUTINY ON 28.3.2011 AT 127 VARKALA LEGISLATIVE ASSEMBLY CONSTITUENCY) 
• EXT.X4: VIDEO TAPE 2 OF SCRUTINY ON 28.3.2011 AT 127 VARKALA LEGISLATIVE ASSEMBLY CONSTITUENCY. 
• EXT.X5: PROCEEDINGS OF SCRUTINY OF NOMINATION BY RETURNING OFFICER, 127 - VARKALA LEGISLATIVE ASSEMBLY CONSTITUENCY. 

//TRUE COPY// P.A. TO JUDGE 

C.R. 

S.S.SATHEESACHANDRAN, J. 

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E.P.NO.8 OF 2011 

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Dated this the 21st day of August, 2012 

Head Note:-

Representation of People Act, 1951 - Sections 80, 81, 83, 84 and 100(1)(c) - Conduct of Election Rules, 1961 - Rule 4-A -  Code of Civil Procedure, 1908 - Order VII Rule 11 - Application under - Hand Book of instructions issued by the Election Commission - Whether the Hand Book of instructions issued by the Election Commission has statutory character or not has little significance in impeaching the maintainability of the election petition for non-production of that Hand Book as an annexure to the election petition? 

Held:- Where the Hand Book of instructions given by the Election Commission to the Returning Officers has been issued for providing guidelines for the preparation of the electoral rolls and in the conduct of elections, in exercise of the powers vested on the Election Commission under Article 324 (1) of the Constitution, such instructions have the full force of law. Strict compliance of such instructions by the Returning Officers in matters covered by the Hand Book, is called for. When such guidelines or instructions covered by the Hand Book have the force of law, as the same having been issued by the Election Commission, for conduct of elections it is futile to contend that production of Hand Book with the Election petition is essential when reference to any such guidelines is made in the election petition to sustain the grounds canvassed of in such petition.  

Representation of People Act, 1951 -  Sections 33(1) and 36(1) - Conduct of Election Rules - Rule 4-A - Form 2B -   Hand Book of instructions issued by the Election Commission - Paragraph 10.1(viii) - Non-affixing of the required stamp when the affidavit was attested by the Notary Public - Whether the rejection of the nomination paper of the petitioner for the reason that Form No.26 affidavit produced with the nomination paper sworn to before a Notary was not stamped for notarization was proper or improper? 

Held:- Non-affixing the stamp for notarization in Form No.26 affidavit was only a mistake, and such mistake was not a defect of substantial character. Rejection of the nomination papers of the petitioner on the ground that it was not duly attested by the Notary for the reason of non-affixing of stamp for notarization in Form No.26 affidavit was improper. When Form No.26 affidavit was filed with the nomination paper duly signed by a Notary even if stamp for notarization has not been affixed in such affidavit, but only in the other affidavit produced, still, it is a case where an opportunity for affixing of the required stamp for notarization of the affidavit should have been extended to the petitioner having regard to the instructions given under the guidelines in paragraph 10.1(viii) of the Hand Book issued to the Returning Officers. The Returning officer has rejected the nomination paper of the petitioner on a ground which is not sustainable under law. Having regard to the provisions of the Act, Rules and guidelines under the Hand Book it has to be concluded that the nomination papers of the petitioner have been improperly rejected.

J U D G M E N T 

The above election petition has been filed under Sections 80, 81, 83, 84 and 100(1)(c) of the Representation of People Act, 1951, hereinafter referred to as the "Act" challenging the election of the respondent from No.127 of Varkala Legislative Assembly Constituency in the General Election held on 13.04.2011.

2. Petitioner, as a candidate, submitted two nomination papers, numbered as ARO-13 and ARO-14, to contest the election from the above Constituency. He submitted his nomination as a candidate of the Bahujan Samaj Party, for short, the 'BSP', a registered National Political Party. Scrutiny of the nomination papers were conducted by the Returning Officer on 28.03.2011. The Returning Officer rejected both the nomination papers of the petitioner holding that the affidavit in Form No.26, though signed by the Notary Public, was not duly attested since the stamp of the required value has not been affixed on such affidavit. Certified copy of the order rejecting the nomination paper ARO-13 is Annexure-B and the nomination paper ARO-14 is Annexure-C. There are two affidavits attached to Form No.26 and both affidavits were attested by the Notary Public but by mistake notary stamp was affixed only in one affidavit. When his nomination papers on submission were verified no formal defect was noticed or pointed out. Petitioner pointing out the above, at the time of scrutiny, requested for allowing him to affix the notary stamp and, thus, cure the defect, but it was declined. Petitioner had also pointed out the instruction in Chapter VI of the Hand Book for Returning Officers, which specifically states that if the prescribed affidavits have been filed, but are found or considered to be defective or containing false information, the nomination should not be rejected on that ground. Discarding and turning down the request of the petitioner, the Returning Officer rejected his nomination papers. What transpired as above could be seen from the video recorded at the time of scrutiny, is the case of the petitioner. Orders passed by the Returning Officer rejecting his nomination papers are illegal and arbitrary, and defect noticed was not of a substantial character, and what has been pointed out by the Returning Officer, in fact, is not a defect at all, is his case. Even assuming that it is a defect, petitioner should have been granted an opportunity to cure such defect, is his further case. Nomination papers of the petitioner were improperly rejected by the Returning Officer, and as such, the election conducted on 13.04.2011, in which, the respondent was declared elected, is void ab initio, according to the petitioner. Improper rejection of the nomination papers of the petitioner has adversely and materially affected the result of the election, and as such, the election of the respondent as the returned candidate is liable to be set aside, is his case. Petitioner stating thus has sought for a declaration that the election of the respondent from No.127 of the Varkala Legislative Assembly Constituency is void and for setting aside the result of the election declared on 13.05.2011, with his costs.

3. Respondent filed a written statement resisting the challenge against his election as the returned candidate. Maintainability of the election petition was impeached contending that it does not disclose a cause of action. Petitioner has not filed any valid nomination as he has not complied with Rule 4-A of the Conduct of Election Rules, for short, the "Rules", in filing the nomination as it was not accompanied by an affidavit in Form No.26. Attestation of the Notary should be on the stamp of the required value and it should be affixed while signing by the Notary. If that has not been done it is not a curable mistake to make notarization legal. Since no valid nomination was presented, the Returning Officer has no alternative other than rejecting such invalid nomination. That fatal defect was not noticed at the time of submitting the nomination papers is immaterial where the defect is of a substantial nature, and the nomination papers were rightly rejected by the Returning Officer. Order of the Returning Officer, according to the respondent, is perfectly in order and consistent with the provisions and Rules. Non-production of the two affidavits as part of the election petition while referring to the same as having been properly attested is fatal to the entertainability of the election petition since the respondent has been prejudiced from knowing about the contents of the affidavits. Petitioner has relied on the video recorded at the time of scrutiny but neither the details thereof nor the video is produced with the election petition, and, that would also show that the petition has not been properly presented. Verification of the petition is also not proper, and as such, the election petition is defective and liable to be rejected. Annexures produced are not properly verified and therefore there is non-compliance of the provisions of Section 83 of the Act, making the election petition defective and liable to the rejected. Petitioner has incorporated by reference in the election petition Hand Book published by the Election Commission, but the same has not been produced. The election petition, being not statutory, when he has relied on that book, he was bound to produce the same as an Annexure to the election petition. Non-production of the Hand Book renders the election petition defective, and on that ground also, it is liable to be rejected. The order passed by the Returning Officer rejecting the nomination papers of the petitioner was perfectly correct since his nomination papers were not accompanied by the affidavits prescribed by the Rules. There were other candidates also in the field besides the respondent, but the petitioner has suppressed that fact in the election petition. Election of the respondent as the returned candidate is not liable to be declared void by reason of rejection of nomination papers of one of the candidates. Allegation raised that the rejection of the petitioner's nomination papers has materially affected the election, is absolutely unsustainable and not supported by any material facts pleaded in the petition. There is no ground to set aside the election of the respondent as the returned candidate, and serious prejudice would be caused to the electorate if the election is set aside on the flimsy ground as the Constituency will be left unrepresented and the majority will reflected in favour of the respondent will be seriously and prejudicially affected, is the further contention of the respondent to urge for dismissal of the election petition, with his costs.

4. On the pleadings of the parties as above, the following issues have been raised for trial:- 

(1) Is not the election petition maintainable ? 

(2) Has the nomination filed by the petitioner to contest the election from No.127 of the Varkala Legislative Assembly Constituency been improperly rejected ? 

(3) Is the election of the respondent as the returned candidate from No.127 of Varkala Legislative Assembly Constituency liable to be declared as void on account of improper rejection of the nomination of the petitioner as alleged ? 

(4) Further reliefs and costs.

5. The evidence in the election petition consists of PWs.1 and 2 and Exts.P1 to P3 for the petitioner. PW1 is the petitioner and PW2, the Returning Officer. Exts.X1 to X5 documents summoned were also exhibited. No evidence was adduced by the respondent.

6. Before considering the issues involved on the pleadings and evidence let in the case, it has to be stated that the respondent raising preliminary objections to the entertainability of the petition had urged for its rejection as not maintainable. After hearing both sides, by order dated 21.12.2011, such preliminary objections were overruled making it clear that the observations made in that order shall not have any bearing in the final decision of the election petition. That order was challenged by the respondent in appeal seeking Special Leave before the Supreme Court. The Supreme Court turned down the Special Leave Petition, but, making it clear that the observations made by this Court in its order negativing the preliminary objections with respect to the non-affixing of the required stamp when the affidavit was attested by the Notary Public shall be treated only for the purposes of consideration of the application under Order VII Rule 11 of the Code of Civil Procedure, for short, the 'Code', and shall not have any bearing at the time of consideration of the matter finally. The Supreme Court has further observed in that order thus:

"All issues and aspects concerning the validity and legality of the order of the Returning Officer rejecting the nomination of respondent No.1 are kept open for consideration at the time of final hearing of the Election Petition." 

The issues framed are accordingly considered taking note of the observations made above.

7. Issue No.(1):

Maintainability of the election petition has been impeached on various grounds, many of them urged as preliminary objections to the entertainability of the election petition had been considered and negatived earlier. All preliminary objections raised over the entertainability of the petition had been negatived and the petition has proceeded with trial for its disposal on merits. Observations made in that order turning down the preliminary objections, as already indicted, shall not be treated as decisive or final in adjudicating the petition on its merits. The question of maintainability of the election petition has to be examined on the basis whether the respondent has any sustainable ground to canvass that the petition is not maintainable. What has been canvassed to impeach the maintainability of the election petition contending that it has not been properly filed is that when reference was made to the Hand Book for Returning Officers published by the Election Commission to sustain the case of the petitioner that he had pointed out the relevant provision thereof to the Returning Officer at the time of scrutiny of the nomination papers, it should have been produced as a necessary document with the election petition. When that is not done, it is fatal to the election petition and any reference to that Hand Book with reference to the case canvassed by the petitioner over the rejection of his nomination papers is improper and it would cause serious prejudice to the respondent. Hand Book for Returning Officers published by the Election Commission is not statutory and where it is not produced with the election petition, it cannot be relied upon for any purpose, is the submission of the learned senior counsel for the respondent to contend that non-production of that document is fatal to the election petition rendering it not maintainable. Reliance is placed on M.Karunanidhi v. Dr.H.V.Hande and Others ((1983) 2 SCC 473), Mulayam Singh Yadav v. Dharam Pal Yadav and Others ((2001) 7 SCC 98), M.I.Shanavas v. Returning Officer & Others (1987 (2) KLT 530, U.S.Sasidharan v. K.Karunakaran (1987 (2) KLT 1001), Manohar Joshi v. Nitin Bhaurao Patil and another (AIR 1996 SC 796) and Harkirat Singh v. Amrinder Singh ((2005) 13 SCC 511) to support the challenge canvassed as above to hold that the election petition is not maintainable. The decisions relied by the counsel, as above, do not call for a critical scrutiny in the given facts of the case, to examine the question whether Hand Book issued to the Returning Officers, which is referred to in the election petition should have been produced with such petition when it has been relied upon by the petitioner to sustain the challenge raised against the rejection of his nomination papers by the Returning Officer, as improper. The learned senior counsel has adverted to the decisions as aforesaid on the premise that the Hand Book for Returning officers being non-statutory where it is referred to in the election petition and relied upon its production with the petition is necessary. The Apex Court in Mohinder Singh Gill and Another v. The Chief Election Commissioner, New Delhi and Others ((1978) 1 SCC 405) has considered the ambit and scope of Election Commission's powers as vested in that Commission under Article 324 of the Constitution of India over the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of all elections to Parliament and to the Legislature of every State and the elections to the offices of the President and the Vice-President held under the Constitution. Such powers enjoined in the conducting of such elections by the Election Commission, it has been held, are to be given wide scope and it operates in areas left unoccupied by legislation, but, with the limitations that in exercise of such powers the Election Commission has to act not only bona fide but subject to rules of natural justice. When that be so, the Hand Book of instructions given to the Returning Officers by the Election Commission cannot be assailed as having no statutory binding force as of law for the reason that such instructions have not been legislated upon but issued only by the Election Commission. Any how, whether the Hand Book of instructions has binding force in the conduct of election is not at all open to doubt. In Uttamrao Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite-Patil (AIR 2009 SC 2975), that too, with reference to the scrutiny of nomination papers the importance and significance of the Hand Book for Returning Officers issued by the Election Commission has been considered by the Apex Court observing thus in paragraph 30: 30. Indisputably, the said instructions are binding being statutory in nature. Such observation was made following the decision rendered earlier in Rakesh Kumar v. Sunil Kumar ((1999) 2 SCC 489). However, in a later decision, Ramesh Rout v. Rabindra Nath Rout (2011 (13) SCALE 423), the Supreme court striking a different note that the Hand Book does not have statutory character has however emphasised its binding force on the Returning Officers.

8. The question whether the Hand Book of instructions issued by the Election Commission has statutory character or not has little significance in impeaching the maintainability of the election petition for non-production of that Hand Book as an annexure to the election petition. Where the Hand Book of instructions given by the Election Commission to the Returning Officers has been issued for providing guidelines for the preparation of the electoral rolls and in the conduct of elections, in exercise of the powers vested on the Election Commission under Article 324 (1) of the Constitution, such instructions have the full force of law. Strict compliance of such instructions by the Returning Officers in matters covered by the Hand Book, is called for. When such guidelines or instructions covered by the Hand Book have the force of law, as the same having been issued by the Election Commission, for conduct of elections it is futile to contend that production of Hand Book with the Election petition is essential when reference to any such guidelines is made in the election petition to sustain the grounds canvassed of in such petition.

9. The learned senior counsel for the respondent adverting to the evidence of the petitioner, PW1, with respect to some of the averments made in the petition has attempted to project a case that the case presented by him over the affidavit filed with his nomination papers as set forth in the petition is conflicting with his version in evidence and that would also render his election petition not maintainable. I do not find any merit in the challenge so canvassed, which, at the most, is something relevant in the realm of appreciation of evidence over the materials produced having regard to the averments made in the petition but not a matter touching upon the maintainability of the petition. Suffice to state, that challenge canvassed against the maintainability of the petition has no merit. Election petition is found to be perfectly maintainable and the issue is answered accordingly.

10. Issue No.(2):

Petitioner has been examined as PW1. He has given evidence that his nomination papers submitted were received without pointing out any defect directing rectification. He would also state that at the time of scrutiny of the nomination papers, he had pointed out the relevant provisions of the Hand Book for Returning Officers, the instructions given to the Returning Officers by the Election Commission, seeking time to provide him an opportunity to cure the defect pointed out in the affixture of stamps for notarization of his affidavit produced with the nomination papers. The Returning Officer turned down that request and rejected his nomination papers, two sets, is his evidence. The Returning Officer is examined as PW2. He has produced two nomination papers of the petitioner, ARO-13 and ARO-14, which had been rejected as defective. Exts.X1 and X2 are those nomination papers. He has given evidence that the Election Commission has given specific instructions that the nomination paper should contain duly attested affidavits, and, if not, they are to be rejected. While admitting that the affidavit to be furnished with the nomination paper has been insisted as per the provisions covered by Section 33-A of the Act, he would state that a defect in the affidavit so filed with the nomination paper is fatal and it has to be rejected, which, according to him, is the instruction given by the Election Commission. The Returning Officer has also denied the suggestion made that a request was made by the petitioner at the time of scrutiny to cure the defect pointed out in his affidavit. While conceding that the Hand Book of instructions issued to the Returning Officers contained instructions that even if the affidavit is found to be defective, for that reason, the nomination paper is not liable to be rejected, PW2 asserted that subsequently instructions otherwise have been received from the Election Commission. Though he had asserted so, instructions, if any, so received, have not been tendered.

11. Exts.X1 and X2 are the two sets of nomination papers submitted by the petitioner to contest the election as a candidate from Varkala Constituency. In both sets of his nomination papers, his affidavit in Form No.26 appended to the respective nomination paper has been attested to by a Notary Public, but, no stamp as prescribed for notarization has been affixed. The affidavits since not affixed with stamp for notarization are not duly attested by the Notary, was the reason for rejection of the nomination papers by the Returning Officer. The decision for rejecting the nomination papers as stated in part 5 of Exts.X1 and X2 reads thus:

"Nomination is rejected because the affidavit in Form No.26 is not duly attested by the Notary (the stamp for required value was not affixed while the signing was done by the Notary.)" 

Whether the rejection of the nomination papers for the reason stated by the Returning Officer is proper and sustainable under law, or does it amount to improper rejection of the nomination papers, is the question emerging for consideration in this petition.

12. Rule 4-A of the Conduct of Election Rules, 1961, which has been inserted under S.O.935 (E) and brought into force with effect from 03.09.2002 mandates the filing of the affidavit in Form No.26 by the candidate at the time of delivering to the Returning Officer the nomination paper. Rule 4-A of the above Rules reads thus:

[4-A. Form of affidavit to be filed at the time of delivering nomination papers: - The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under sub-section (1) of Section 33 of the Act, also deliver to him an affidavit sworn by the candidate before a Magistrate of the First class or a Notary in Form 26] 

The above rule mandates furnishing of particulars whether the candidate who files the nomination paper has suffered any conviction and whether he is an accused of any offence punishable with imprisonment for two years or more, directing him to furnish full particulars of such matters, as prescribed in the Form as an affidavit with his nomination paper. Though both sets of nomination papers filed by the present petitioner contained affidavit by him in Form No.26, furnishing the full particulars, and duly signed before a Notary Public, it was not duly attested by the Notary since the stamp for required value was not affixed in such affidavit while the Notary signed such affidavits, is the reason stated by the Returning Officer to reject the nomination papers. On perusal of the nomination papers of the petitioner exhibited as Exts.X1 and X2, what could be noticed is that the Notary has attested the affidavit in Form No.26 with the respective nomination paper filed by the petitioner but the stamp for notarization was affixed in two other affidavits, through one such affidavit alone was required to be furnished with the nomination papers. The nomination papers contain the required stamp fee when affidavits of the petitioner were notarized by the Notary Public but the stamp was affixed not in Form No.26 affidavit but in the two other affidavits, which do not require such affixation of stamps nor even notarization by the Notary Public, is what is evident from scrutiny of the nomination papers. In Ext.X1 nomination paper (ARO-13), Form No.26 affidavits, two in number, are attached, and they are Exts.X1(a) and X1(b). Ext.X1(a) is sworn to before a Notary Public. The other two affidavits filed with that nomination paper containing the stamp affixed for notarization are Ext.X1(c). What is further noticed is that though only one such affidavit under Ext.X1(c) was required with the nomination paper, petitioner has filed two affidavits, with both of them, duly stamped for notarization. Stamps which ought to have been affixed on Form No.26 affidavit, it seems, was affixed in the second affidavits referred to above. In the other, Ext.X1 nomination paper (ARO-14), Form No.26 affidavit is Ext.X2(b). Here also two other affidavits have been filed by the petitioner in compliance with the mandate under Section 33 of the Act, and both such affidavits stamped for notarization. Affixing of stamps in the aforesaid two affidavits, of which, one alone was required, that too without any notarization, but non-affixture of stamp for notarization in the affidavit in Form No.26, Ext.X2(b), evidently, led to rejection of his nomination papers by the Returning Officer on the premise that required stamp for notarization has not been affixed in the affidavit of Form No.26, and as such, there is no due attestation by Notary.

13. Affidavit in Form No.26 to be filed with the nomination is one mandated by sub section (2) of Section 33A of the Act and Rule 4-A of the Rules referred to above. Sub section (2) of Section 33A of the Act states thus:

"The candidate or his proposer, as the case may be, shall, at the time of delivering to the Returning officer the nomination paper under sub section (1) of Section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub section (1)." 

Sub section (1) of the aforesaid Section mandates for furnishing of information by the candidate, apart from those required to be furnished under the Act and the Rules, as to whether (i) he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the Court of competent jurisdiction; (ii) he has been convicted of an offence [other than any offence referred to in sub-section (1) or sub-section (2), or covered in sub-section (3), of Section 8] and sentenced to imprisonment for one year or more. Section 8 of the Act contemplates of disqualification on ground of corrupt practices. The candidate who submits the nomination is accused of any offence punishable with imprisonment for two years or more and the case thereof after framing of charge is pending before the court, and also where he has suffered conviction and sentenced to imprisonment for one year or more other than an offence referred to in sub sections (1) to (3) of Section 8, has to furnish information thereof in the affidavit as prescribed in Form No.26 appended to the Rules. That is the mandatory requirement to be complied with for submitting of valid nomination to contest the election. As already indicated Rule 4-A of the Rules mandates that the affidavit furnishing such information in Form No.26 has to be sworn by the candidate before the Magistrate of the First Class or Notary. Indisputably, the affidavit in Form No.26 produced by the petitioner with his nomination papers, both of them, contained affidavits in Form No.26 duly sworn before a Notary but in such affidavit stamp for notarization was not affixed is the defect to hold that there was no due attestation of the affidavit by the Notary Public and for that reason the nomination papers were rejected.

14. Section 36 of the Act deals with the scrutiny of the nomination papers. What are the circumstances under which a nomination paper can be rejected are covered by sub section (2) of that Section, which reads thus:

"(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, [reject] any nomination on any of the following grounds: - 

[(a) [that on the date fixed for the scrutiny of nominations the candidate] either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely:- 

Article 84, 102, 173 and 191, [Part II of this Act and sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963)]; or 

(b) that there has been a failure to comply with any of the provisions of section 33 or 34; or 

(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.] 

Sub section (4) of the aforesaid Section is also quite relevant and material in deciding the question whether the rejection of the nomination paper of the petitioner by the Returning officer was proper or improper. That sub section reads thus: 

"(4). The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character." 

15. So, on the facts and circumstances presented in the case, the crucial question that emerges for consideration is whether the non-affixing of the stamp for notarization in the affidavit in Form No.26 submitted with the nomination paper when such affidavit was sworn to before the Notary Public, is it a defect of substantial character automatically warranting rejection of the nomination paper. If we examine sub section (2) (b) of Section 36 of the Act, the failure should be one as to non- compliance with any of the provisions of Section 33 or Section 34 of the Act. Section 33 of the Act contemplates of presentation of nomination paper and requirements of a valid nomination and Section 34 of the Act, the sum to be deposited with such nomination paper. What has been newly brought in under Section 33A of the Act with respect to furnishing of information by way of an affidavit sworn to before a Magistrate or a Notary in Form No.26 on the matters covered by that Section to throw light whether the candidate has got any criminal antecedents, has not been included in Section 36 (2) (b) of the Act necessarily has to be taken note of in examining whether any defect relating to Form No.26 affidavit filed with the nomination paper is a defect of substantial character warranting outright rejection of the nomination paper.

16. Where the Statute specifically provides what are the circumstances under which failure to comply with any prescription under the Act or Rules should give rise to a rejection of the nomination paper automatically, any other defect or failure to comply with any other statutory provision has to be examined with reference to the question whether such defect noticed is curable and permitted to be rectified. In the context, the relevant guidelines given to the Returning Officers over the scrutiny of nomination papers as covered under the Hand Book for Returning Officers published by the Election Commission deserve to be taken note of. Chapter VI of the Hand Book deals with the scrutiny of nominations by the Returning Officer. Paragraph 2 of that Chapter emphasizes that scrutiny of nomination papers is a quasi judicial function and it has to be discharged by the Returning officers with the highest judicial standards. Paragraph 6 spells out that even if no objection is raised over the nomination paper the Returning Officer has to satisfy that it is valid in law. If any objection is raised, he has to conduct a summary enquiry to decide the question of objection to consider whether the nomination paper is valid or invalid. Paragraph 7 cautions the Returning Officer that there is a presumption that every nomination paper is valid unless the contrary is prima facie obvious and has been made out. If at all there is any reasonable doubt it is further stated that the benefit of doubt should go to the candidate concerned and the nomination paper should be held to be valid. It further reminds the Returning Officer if a candidate's nomination paper is improperly rejected and he is prevented thereby from contesting the election there is a legal presumption that the result of the election has been materially affected by such improper rejection and the election will, therefore, be set aside. What are the defects which could be treated as defects of substantial nature giving certain illustrations are covered by paragraph 9.6. In such illustrations among others failure to file affidavits in Form No.26 and affidavits provided by Election Commission of India for disclosing criminal antecedents, assets, liability and educational qualification are included as defects of substantial nature. Paragraph 10 deals with the grounds for rejection of nomination papers. Paragraph 10.1(viii) says that if the prescribed affidavits have not been filed at all by the candidates it is a ground for rejection. However that ground for rejection is qualified with a rider, which is of significance, and that reads thus:

"If the prescribed affidavits have been filed, but are found or considered to be defective or containing false information, the nomination should not be rejected on this ground." 

17. Another material aspect to be taken note of is the relevancy and significance of the check list prepared at the time of the submission of the nomination papers. Duplicate of the check list forms part of the nomination paper and original thereof is given to the candidate/petitioner who submits the nomination paper. The issuance of the check list to a candidate filing a nomination paper has been introduced by a notification issued by the Election Commission. The nomination papers, both of them, filed by the candidate/proposer contain the check list prepared by the Assistant Returning Officer. That check list demands primary satisfaction of the Returning Officer over the documents required to be produced with the nomination paper. If any of the documents has not been filed, it requires the Returning Officer to clearly state in the bottom of the check list fixing the time limit by which such documents can be submitted. Such check list is required to be signed both by the Returning Officer receiving the nomination paper and also the candidate/proposer as to receiving it. Notification issued by the Election Commission dated 10th February, 2009 in that regard states that the check list serves dual purpose acknowledging the receipt of the document as well as notice as directed in the Hand Book. If a document is filed subsequent to the filing of the nomination an acknowledgment to that effect is issued to the candidate mentioning the date and time and that is also to be indicated appropriately in the check list.

18. Going through the check list forming part of the nomination paper filed by the petitioner, it is seen that no defect was noticed by the Returning officer who received the nomination; and, production of every document including the affidavit in Form No.26 has been duly acknowledged without noticing any defect at all, leave alone, directing any rectification of defect in such document.

19. The question whether the rejection of the nomination paper of the petitioner for the reason that Form No.26 affidavit produced with the nomination paper sworn to before a Notary was not stamped for notarization was proper or improper has to be adjudged and examined with reference to the provisions covered by Sections 33(1) and 36(1) of the Act, Rules 4 and 4-A of the Conduct of Election Rules, Form 2B and paragraph 10.1 (viii) of the guidelines issued to the Returning Officers in the Hand Book. In the context, it is also to be pointed out that the Returning officer examined as PW2, when his attention was drawn to the guidelines given in the Hand Book, particularly, paragraph 10.1(viii) that a defect in the affidavit should not be a ground for rejection of the nomination conceding that guideline asserted that subsequently contra instructions have been given by the Election Commission. That assertion made by him that instructions conflicting with that covered by paragraph 10.1(viii) of the Hand Book is nothing but an explanation canvassed of, which has no merit, to justify the rejection of the nomination papers for not following the guidelines given in paragraph 10.1 (viii) of the Hand Book.

20. As already indicated Form No.26 affidavit was sworn to before a Notary Public, but, stamp for notarization however happened to be affixed in a different affidavit produced with the nomination paper. When that be so, it was clearly a case that non-affixing the stamp for notarization in Form No.26 affidavit was only a mistake, and such mistake was not a defect of substantial character. Rejection of the nomination papers of the petitioner on the ground that it was not duly attested by the Notary for the reason of non-affixing of stamp for notarization in Form No.26 affidavit was improper. When Form No.26 affidavit was filed with the nomination paper duly signed by a Notary even if stamp for notarization has not been affixed in such affidavit, but only in the other affidavit produced, still, it is a case where an opportunity for affixing of the required stamp for notarization of the affidavit should have been extended to the petitioner having regard to the instructions given under the guidelines in paragraph 10.1(viii) of the Hand Book issued to the Returning Officers. The Returning officer has rejected the nomination paper of the petitioner on a ground which is not sustainable under law. Having regard to the provisions of the Act, Rules and guidelines under the Hand Book it has to be concluded that the nomination papers of the petitioner have been improperly rejected.

21. The learned senior counsel appearing for the respondent/returned candidate has relied on Rattan Anmol Singh and another v. Ch.Atma Ram and others (AIR 1954 SC 510) and V.R.Kamath v. Divisional Controller, Karnataka State Road Transport Corporation and others (AIR 1997 Karnataka 275) to contend that an affidavit cannot be said to be duly attested when it has not been notarized in accordance with the provisions of law. The question whether it was properly notarized or not in relation to acceptance or rejection of a nomination paper has to be examined and appreciated with reference to the provisions of the Act, Rules and guidelines issued by the Election Commission. Rule 4-A of the Conduct of Election Rules only mandates of signing of an affidavit before a Magistrate or a Notary Public. Even if an affidavit is sworn to before the Notary Public is not affixed with the stamp for notarization, in the light of the guidelines covered by 10.1(viii) to the Returning Officers in the Hand Book issued by the Election Commission the nomination paper is not to be rejected, and if it is so rejected it is improper. Success of a returned candidate is not to be interfered with unless there are strong and compelling circumstances as it would amount to setting at naught the decision of the majority of the electorate was another ground canvassed by the learned counsel relying on Ram Sukh v. Dinesh Aggarwal ((2009) 10 SCC 541). In a case where election is challenged on the ground of improper rejection of nomination paper the scope of enquiry is limited. The Apex Court repelling a contention similarly canvassed has stated thus in Anil Baluni v. Surendra Singh Nagi (AIR 2005 SC 3987):

"The election petition has been filed on the ground that the appellant's nomination papers had been improperly rejected, which is a ground contemplated by Section 100(1)(c) of the Act. In such a case the only issue before the Court is to a examine the correctness and propriety of the order by which the nomination papers of a candidate are rejected and the scope of inquiry is limited to the said consideration." 

22. The Returning Officer has improperly rejected the nomination papers of the petitioner, and the reason for such rejection, non-affixing of the stamp for notarization in Form No.26 affidavit, is found to be unsustainable. Issue found accordingly.

23. Issue No.(3):

In the light of the finding entered on issue No.2 that the rejection of the nomination papers of the petitioner by the Returning Officer is improper it follows that the election of the respondent as the returned candidate is liable to be set aside. 

In the result, election of the respondent as the returned candidate from No.127 of Varkala Legislative Assembly Constituency is declared void. 

Considering the facts and circumstances involved in the case parties are directed to suffer their respective costs. 

Registry shall communicate the substance of the decision in the election petition to the Speaker of the Legislative Assembly and the Election Commission, and an authenticated copy of the judgment shall be forwarded to the Election Commission. 

Election Petition is allowed. 

S.S.SATHEESACHANDRAN JUDGE 

prp 

ANVAR.P.V, S/O.P.V.SHOUKATH ALI, AGED 44 YEARS, RAFI NIVAS, PERAKAMANNA P.O., MALAPPURAM DISTRICT, 676541. 

BY ADVS.SRI.K.RAMAKUMAR (SR.) SMT.SMITHA GEORGE SRI.C.R.REKHESH SHARMA SMT.ASHA BABU SRI.A.A.ZIYAD RAHMAN 

1. P.K.BASHEER,S/O.LATE SEETHI HAJI, AGE APPROX.55 YEARS, FIRDOUSE PATHAPIRIYAM POST, EDAVANNA, MALAPPURAM 676123. 

2. SRI.ASHRAF KALIATH, S/O.MOIDU KALIYATH AGE APPROX.35 YEARS, VENDALLUR, IRUMPILIYAM POST, MALAPPURAM DISTRICT-679572 

3. SRI.K.P.BABURAJ MASTER, S/O.MAHDAVAN NAIR, AGE APPROX. 38 YEARS, VENNAKKATTIL, AZHUKALARI, PATHAPIRIYAM POST, EDAVANNA, MALAPPURAM 676123. 

4. SRI.P.P.SHAUKATH ALI, S/O.UNNI MOIDEEN HAJI, AGE APPROX.45 YEARS, MODI ESTATE, VALIYAKAVIL, ELEYUR, IRIVETTI POST, MALAPPURAM DISTRICT 673 639 

5. P.SOMASUNDARAM, S/O.PADMAVATHIAMMA, AGE APPROX.45 YEARS NADUVILAKKANDY HOUSE, MYTHRA POST, AREEKODE, MALAPPURAM DISTRICT 673639 

6. M.C.MOHAMMED HAJI, AGE APPROX.55 YEARS, S/O.EANUDDIN, M.C.HOUSE, KUZHIMANNA POST, KONDOTTY VIA, MALAPPURAM DISTRICT 673641 

7. HAMZA, S/O.AITHUTTY HAJI, AGE APPROX. 45 YEARS, KOOMANKALLINGAL, VALAMANGALAM, PULPATTA POST, MALAPPURAM DISTRICT 676126. 

R1 BY SRI.T.KRISHNANUNNI SRI.K.M.SATHYANATHA MENON R4 BY ADV. SRI.P.K.ABDURAHIMAN (POOLACKAL KARATCHAL BY ADV. SRI.T.KRISHNAN UNNI (SR.) BY ADV. SRI.K.M.SATHYANATHA MENON R6 BY ADV. SRI.K.RAJENDRAN 

Representation of People Act, 1951 - Section 100(1)(b) read with section 123(2)(ii) and (4) - Eranad Assembly Constituency - Corrupt practice of undue influence - Petition dismissed.

1) Whether the election petition is liable to be rejected/dismissed under Order VII Rule 11 of the Code of Civil Procedure for want of "concise statement of material facts" and "full particulars of corrupt practice" alleged, as contemplated under section 81 of the Representation of People Act? 

2) Whether the election petition is liable to rejected/dismissed for want of proper verification of the Annexures and Schedules attached to the election petition? 

3) Whether Annexure A was published and distributed in the constituency on 12.4.2011 as alleged in paragraphs 4 and 5 of the election petition and if so whether Palliparamban Aboobacker was an agent of the first respondent? 

4) Whether any of the statements in Annexure A publication is in relation to the personal character and conduct of the petitioner or in relation to the candidature and if so whether its alleged publication will amount to commission corrupt practice under section 123(4) of the Representation of People Act? 

5) Whether any of the statements in Annexure A can be treated as an interference with the free exercise of the electoral right by the petitioner or any elector as contemplated under proviso (a)(ii) of section 23(2) of Representation of People Act? 

6) Whether the Flux Board and posters mentioned in Annexures D, E and E1 were exhibited on 13.4.2011 as part of the election campaign of the first respondent as alleged in paragraphs 6 and 7 of the election petition and if so whether the alleged exhibition of Annexures D, E and E1 will amount to commission of corrupt practice under section 123(4) of the Representation of People Act? 

7) Whether the announcements mentioned in paragraph 8 of the election petition were made between 6.4.2011 and 11.4.2011, as alleged in the above paragraph, as part of the election propaganda of the first respondent and if so whether the alleged announcements mentioned in paragraph 8 will amount to commission of corrupt practice as contemplated under section 123(4) of the Representation of People Act? 

8) Whether the songs and announcements alleged in paragraph 9 of the election petition were made on 8.4.2011 as alleged, in the above paragraph, as part of the election propaganda of the first respondent and if so whether the publication of the alleged announcements and songs will amount to commission of corrupt practice under section 123(4) of the Representation of People Act? 

9) Whether Mr.Mullan Sulaiman mentioned in paragraph 10 of the election petition did make a speech on 9.4.2011 as alleged in the above paragraph as part of the election propaganda of the first respondent and if so whether the alleged speech of Mr.Mullan Sulaiman amounts to commission of corrupt practice under section 123(4) of the Representation of People Act? 

10) Whether the announcements mentioned in paragraph 11 were made on 9.4.2011, as alleged in the above paragraph, as part of the election propaganda of the first respondent and if so whether the alleged announcements mentioned in paragraph 11 of the election petition amount to commission of corrupt practice under section 123(4) of the Representation of People Act? 

11) Whether the announcements mentioned in paragraph 12 of the election petition were made, as alleged in the above paragraph, as part of the election propaganda of the first respondent and if so whether the alleged announcements mentioned in paragraph, 12 of the election petition amount to commission of corrupt practice under section 123(4) of the Representation of People Act? 

12) Whether the alleged announcements mentioned in paragraph 13 of the election petition were made as alleged and if so whether it amounts to commission of corrupt practice under section 123(4) of the Representation of People Act? 

13) Whether the alleged announcements mentioned in paragraph 14 of the election petition were made as alleged and if so whether it amounts to commission of corrupt practice under section 123(4) of the Representation of People Act. 

14) Whether the election of the first respondent is liable to be set aside for any of the grounds mentioned in the election petition? 

15) Whether the petitioner is entitled to get himself declared elected in the election? 

"The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election." 

100.Grounds for declaring election to be void.(1) subject to the provisions of sub section (2) if the High Court is of opinion 

-------------------------- --------------------------------- 

(b)that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent or, 

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-- 

(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent. 

1) Publication of any statement of fact by a candidate or his election agent or by any other person with the consent of the candidate or his election agent. 

2) That fact is false 

3) The candidate or his election agent believes it to be false or does not believe to be true. 

4) The statement is in relation to the personal character or conduct of the candidate or in relation to the candidature or withdrawal of any candidate. 

5) The statement reasonably calculated to prejudice the prospect of that candidate's election. 

"13. Though it is clear that the statute wants to make a broad distinction between public and political character on the one hand and private character on the other, it is obvious that a sharp and clear-cut dividing line cannot be drawn to distinguish the one from the other. In discussing the distinction between the private character and the public character, sometimes reference is made to the "man beneath the politician" and it is said that if a statement of fact affects the man beneath the politician it touches private character and if it affects the politician, it does not touch his private character. There may be some false statements of fact which clearly affect the private character of the candidate. If, for instance, it is said that the candidate is a cheat or murderer there can be no doubt that the statement is in regard to his private character and conduct and so if the statement is shown to be false, it would undoubtedly be a corrupt practice. Similarly, if the economic policy of the party to which the candidate belongs or its political ideology is falsely criticised and in strong words it is suggested that the said policy and ideology would cause the ruin of the country, that clearly would be criticism, though false, against the public character of the candidate and his political party and as such, it would be outside the purview of the statute. But there may be cases on the borderline where the false statement may affect both the politician and the man beneath the politician and it is precisely in dealing with cases on the border-line that difficulties are experienced in determining whether the impugned false statement constitutes a  corrupt practice or not. If, for instance, it is said that in his public life, the candidate has utilised his position for the selfish purpose of securing jobs for his relations, it may be argued that it is criticism against the candidate in his public character and it may also suggested that it nevertheless affects his private character. Therefore, it is clear that in dealing with corrupt practices alleged under S. 123 (4) where we are concerned with border-line cases, we will have to draw a working line to distinguish private character from public character and it may also have to be borne in mind that in some cases, the false statement may affect both the private and the public character as well." 

"The language of section 123 (4) is 'any statement of fact which is false' and that language must be used in contrast to a false statement of opinion. The language used is not merely a 'false statement' but a 'statement of fact which is false'. The statement in question must be in relation to the personal character or conduct of a candidate, which means a false statement of fact bearing on the personal character or conduct of a candidate. Further one of the ingredients of the corrupt practice under S. 123 (4) is that statement complained of must be one reasonably calculated to prejudice the prospects of the election of the person against whom it is made. It may be noted that the section does not merely say 'being a statement calculated to prejudice the prospects of the candidate's election', but on the other hand, it says: 'being a statement reasonably calculated to prejudice the prospects of that candidate's election'. The meaning of that expression is as held by a Division Bench of the Bombay High Court in Dattatraya Narayan v Dattatraya Krishnaji AIR 1964 Bombay 244, that the publication of false statement of fact relating to the personal character or conduct must be such as would, in the estimation of the Court having regard to the nature of the publication, the evidence tendered in Court and the surrounding circumstances have its natural and probable consequence of prejudicing the aspects of the candidate relating to whose personal character or conduct the publication has been made. So far as the last limb of Section 123 (4) is concerned, the emphasis is not so much on the intention of the publisher but on the probable effect on the election of the candidate against whom those statements are directed." 

"The primary requirements of Section 123(4) are that the statement should be a 'statement of fact' which is 'false' and which the maker either 'believes to be false' or 'does not believe to be true'. If these requirements are not satisfied, the further inquiry to ascertain the satisfaction of the remaining requirements of S. 123(4) serves no useful purpose. No doubt, the burden of proving the satisfaction of all these requirements is on him who alleges commission of the corrupt practice. The onus of leading evidence relating to some requirements is however light in view of their nature. Once the initial onus is discharged, the onus shifts to the other side. For proving the statement of fact to be 'false', the initial onus is discharged and the burden shifts to the other side by assertion of its falsity on oath whereafter it is for the other side to rebut the same. Similarly, the nature of belief of the maker being primarily related to the state of mind of the maker, the initial burden is discharged by an assertion on oath to that effect. If there be any circumstances relevant for proving and justifying the belief of the maker, that also would be a matter of evidence. The maker of the statement knows best the material on which his belief was formed and, therefore, it is for him to prove the same. Whether the maker of the statement believed it to be false or did not believe it to be true, is then ordinarily a matter of inference from the facts so proved." 

"It needs no elaboration to say that a 'statement of fact' can be proved to be 'false' only if it relates to an event which has happened and not to a hypothetical future possibility. Similarly, the belief of the maker about its falsity or the lack of belief in its truth relates to an existing fact and not to a hypothetical future apprehension howsoever honestly one may believe in its likelihood. It is clear that any statement made which is a conjecture of a likelihood in future would not come within the ambit of the expression "statement of fact" used in S. 123(4)." 

"It is a different matter if the statement amounts to an opinion relating to the personal character or conduct of any candidate which is based on existing or past acts of the candidate. In other words, if the statement made is that a candidate is a 'murderer', that would imply that he had committed a murder and that amounts to a 'statement of fact' for the purpose of S. 123(4)." 

"The allegations refer to the personal character and conduct of the respondent who was a candidate for the election. The words "personal character or conduct" are so clear that they do not require further elucidation or definition. The character of a person may ordinarily be equated with his mental or moral nature. Conduct connotes a person's action or behaviour. The said acts attributed to the first respondent certainly relate to his personal character and conduct. What is more damaging to a person's character and conduct than to state that he instigated a murder and that he was guilty of violent acts in his political career. We, therefore, have no hesitation in holding that the allegations in the two leaflets, exhibits P3 and P4 are in relation to the personal character and conduct of the first respondent." 

A charge of electoral corrupt practices being of a quasi- criminal character, the onus on an election petitioner is heavy as if in a criminal charge. The allegations must be established beyond reasonable doubt to the satisfaction of the court by cogent and unimpeachable evidence. That being the position in law the petitioner will have to satisfy the court that the returned candidate had reason to believe that the allegations in the offending pamphlet were false or not true. Even assuming this ingredient is satisfied, since the charge may fail, if it is not established that the appellant himself distributed the offending pamphlet as alleged." 

"It would be noticed that the onus to prove the essential ingredients prescribed by the said subsection is on the appellant. He has to show that the impugned statement has been published by the candidate or his agent or by any other person with the consent of the candidate or his election agent. This fact has been proved in the present case in regard to both the statements. The appellant has further to show that the impugned statement is a statement of fact which is false; that respondent No. 1 either believed that the said statement was false, or did not believe it to be true; and that the statement is in relation to the personal character or conduct of the candidate or his candidature." 

"It is true that as observed in Dr. M. Chenna Reddy v. V. Ramchandra Rao, that a charge of corrupt practice cannot be equated to a criminal charge in all respects. While the accused in a criminal case can refuse to plead and decline to adduce evidence on his behalf and yet ask the prosecution to prove its case beyond reasonable doubt such is not the position in an election petition. But the fact remains that burden of proving' the commission of the corrupt practice pleaded is on the petitioner and he has to discharge that burden satisfactorily. In doing so he cannot depend on preponderance of probabilities. Courts do not set at naught the verdict of the electorate except on good grounds." 

"The onus of establishing a corrupt practice is undoubtedly on the person who sets it up, and the onus is not discharged on proof of mere preponderance of probability, as in the trial of a civil suit; the corrupt practice must be established beyond reasonable doubt by evidence which is clear and unambiguous." 

"It is trite to say that the burden of proving every one of the ingredients of the corrupt practice alleged is on him who alleges it. If he fails to establish any one of them to the satisfaction of the Court he must fail." 

A plea in an election petition that a candidate or his election agent or any person with his consent has committed a corrupt practice raises a grave charge, proof of which results in disqualification from taking part in elections for six years. The charge in its very nature must be established by clear and cogent evidence by those who seek to prove it. The Court does not hold such a charge proved merely on preponderance of probability : the Court requires that the conduct attributed to the offender is proved by evidence which establishes it beyond reasonable doubt." 

"Charges, such as have been imputed here, are viewed as quasi-criminal, carrying other penalties than losing a seat, and strong testimony i needed to subvert a Returning Officer's declaration.....When elections are challenged on grounds with a criminal taint, the benefit of doubt in testimonial matters belongs to the returned candidate...Oral evidence ordinarily is inadequate especially if it is of in different quality or orally procurable." 

"It is well settled that a charge of corrupt practice is substantially akin to a criminal charge. The commission of a corrupt practice entails serious penal consequences. It not only vitiates the election of the candidate concerned but also disqualifies him from taking part in elections for a considerably long time. Thus, the trial of an election petition being in the nature of an accusation, bearing the indelible stamp of quasi-criminal action, the standard of proof is the same as in a criminal trial. Just as in a criminal case, so in an election petition, the respondent against whom the charge of corrupt practice is levelled, is presumed to be innocent unless proved guilty. A grave and heavy onus therefore rests on the accuser to establish each and every ingredient of the charge by clear, unequivocal and unimpeachable evidence beyond reasonable doubt. It is true that there is no difference between the general rules of evidence in civil and criminal cases, and the definition of "proved" in section 3 of the Evidence Act does not draw a distinction between civil and criminal cases. Nor does this definition insist on perfect proof because absolute certainty amounting to demonstration is rarely to be had in the affairs of life. Nevertheless, the standard of measuring proof prescribed by the definition, is that of a person of prudence and practical good sense. 'Proof' means the effect of the evidence adduced in the case. Judged by the standard of prudent man, in the light of the nature of onus cast by law, the probative effect of evidence in civil and criminal proceedings is markedly different. The same evidence which may be sufficient to regard a fact as proved in a civil suit, may be considered insufficient for a conviction in a criminal action. While in the former a mere preponderance of probability may constitute an adequate basis of decision, in the latter a far higher degree of assurance and judicial certitude is requisite for a conviction. The same is largely true about proof of a charge of corrupt practice, which cannot be established by mere balance of probabilities, and, if, after giving due consideration and effect to the totality of the evidence and circumstances of the case, the mind of the Court is left rocking with reasonable doubt - not being the doubt of a timid, fickle or vacillating mind - as to the veracity of the charge, it must hold the same as not proved." 

"It is also well settled that it is a sound principle of natural justice that the 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." 

"Martyr Day of P.P. Manaf. We shall not forget April, 13th." 

"Aboobacker got the leaflet printed in the District Panchayat Press, Kondotty and the General Manager of which was one V.Hamza, Valapra House, Irivetty, Thottilangadi, Malappuram District, who also helped in getting the notice printed and has published it in his name. It is to be noted that the said V. Hamza was the official account agent of the 1st respondent for the election. Though the publication is styled in the name of 'Kudumba Souhrida Samithi' it was got printed by the aforesaid Aboobacker and Hamza on the eve of the polling and during the election campaign in the aforesaid press. 

xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx. 

Since both the said Aboobacker and V. Hamza are agents of the first respondent, who had actively participated in the election campaign, the printing, publication and distribution of Annexure A was made with the consent and knowledge of the first respondent as it is gathered from P.V. Musthafa, a worker of the petitioner that the expenses for printing have been shown in the electoral return of the first respondent. 

xxx xx xx xx xx xx xx xx xx xx xxx xx xx xx xx xx xx xx x 

Both the first respondent and all his election agents and other persons who were working for him knew that the contents of Annexure A which was got printed in the manner stated above are false and false to their knowledge and though the petitioner was falsely implicated in the Manaf murder case he has been honourably acquitted in the case and declared not guilty. 

xx xx xx xx xx xx xx xx xx xx xx xx xx. 

Though this fact is within the knowledge of the first respondent, his agents referred to above and other persons who were working for him in the election on the 12th of April, 2011 at about 8 AM bundles of Annexure A which were kept in the house of the first respondent at Pathapiriyam, within the constituency were taken out from that house in two jeeps bearing Nos KL13-B 3159 and KL10-J 5992 which were seen by two electors, Sri.V.Arjun aged 31 years, Kottoor House, S/o.Narayana Menon, Pathapiriyam Post, Edavanna and C.P. Faizal aged 34 years, S/o.Myuhammed Cheeniyampurathu, Pathapiriyam P.O who are residing in the very same locality of the first respondent and the jeeps were taken around in various parts of the Eranad Assembly Constituency and Annexure A distributed throughout the Constituency from the aforesaid jeeps by the workers and agents of the first respondent at about 8 p.m that night." 

"It is true that S. 90 of the Act provides that subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. This provision itself emphasises the fact that the whole of the Civil Procedure Code is not fully applicable. What the section provides is that the proceedings should be tried ''as nearly as may be'' according to the Code of Civil Procedure. If the contention raised by MR. Garg is accepted at its face value, it may logically lead to this consequence that if a returned candidate does not controvert the allegations made by the petitioner in his election petition alleging the commission of a corrupt practice by the returned candidate, a finding would have to be made in favour of the petitioner without any evidence at all. In other words, the question is: can a corrupt practice prescribed by S. 123 (4) of the Act be held to be proved merely on the ground that no specific denial has been made by the returned candidate in his written statement in that behalf? In considering this point, we cannot overlook the fact that the onus to prove the essential ingredients of S. 123 (4) is on the petitioner, and so, it would be for him to prove that the statement is false, and that the other requirements of the section are satisfied. Having regard to the nature of the corrupt practice which is prescribed by S. 123 (4), we are no prepared to hold that the strict rule of pleadings prescribed by O. 8, R. 5 of the Code can be blindly invoked in election proceedings of this type." 

(underline supplied) 

"178. ye who believe' The law of equality Is prescribed to you In cases of murder: The free for the free. The slave for the slave. The woman for the woman. But if any remission is made by the brother Of the slain, then grant Any reasonable demand And compensate him." 

"The responsibility of the candidate for the publication arises if he publishes the thing himself. He is equally responsible for the publication if it is published by his agent. Thirdly he is also responsible where the thing is published by any other person but with the consent of the candidate or his election agent." 

"In all three cases the responsibility is of the candidate and it is ordinarily the candidate's belief that matters for this purpose. If the candidate either believes the statement to be false or does not believe it to be true he would he responsible under S. 123 (4) In the present case the poem was not actually read by the appellant, but it was read in his presence at a meeting at which he was presiding by Avinash Chander. In these circumstances the High Court was right in coming to the conclusion that the recitation of the poem by Avinash Chander at the meeting amounted to the publication of the false statement of fact contained in it by another person with the consent of the candidate, and in this case, even of his election agent who was also present at the meeting. But the responsibility for such publications in the circumstances of this case is of the candidate and it is the candidate's belief that matters and not the belief of the person who actually read it with the consent of the candidate. What would be the positions in a case where the candidate had no knowledge at all of the publication before it was made need not he considered for that is not so here. It is not disputed in this case that the statement that the respondent was the greatest of all thieves, was false. It is also not seriously challenged that the appellant did not believe it to be true. The contention that Avinash Chander's belief should have been proved must therefore fail." 

(underline supplied). 

"The latter consent is part of the make up or the constitution of an agent, and without such consent which may be either express or implied, there could be no agency even in the law of election. Similarly the consent referred to in sub section (1)(b) has also to be differentiated from consent which is part of the several definitions in section 123 and which is related to 'any other person' as distinguished from an agent, as noticed above. Despite the distinction in the definitions in section 123, it must follow from our conclusion that the term 'any other person' in sub-section (1)(b)includes an agent, that sub section (1)(b) and sub section (1)(d)(ii) between them make a distinction in prescribing the conditions for nullification of an election. The reason for the distinction is not far to seek and lies in the greater measure of responsibility of the returned candidate for what the agent does with consent, than for what he does without it but in the interests of the former. We consider that this is the reasonable way to interpret sub section(1)(b). To accept the contention, that no consent to an agent is necessary under sub section (1)(b), would be to do away with this distinction and to render sub section (1)(d)(ii) otiose." 

"We therefore come to the conclusion, that consent of the returned candidate or his election agent to the actual commission of the corrupt practice by an agent must be proved, before the election can be declared void on that ground under sub section(1) (b). It is necessary to state that such consent need not be express but may be inferred from circumstances."

"Whenever the requirement is of consent it must be free consent given by the giver of the consent of his own volition. Ordinarily, it also implies a subservient role of the person to whom consent is given and the authority of the giver of the consent to control the actions of the agent. It is difficult to ascribe to an acknowledged leader of the party a role subservient to the candidate set up by that party inasmuch as the candidate is ordinarily in no position to control the actions of his leader. However, if even without giving his consent the candidate has received benefit from the leader's act." 

"Proof of express consent is not necessary; inference of such consent may be raised from the circumstances. Prior knowledge of the contents and the knowledge that it is likely to be published may raise an inference of consent, if the candidate deliberately keeps quiet and does not stop the publication, if it be within his power. Where the offending publication has already been published and thereafter it comes to the knowledge of the candidate at the election and he does not take steps to repudiate it, the consent may not necessarily be inferred unless the candidate or his election agent permits or aids its publication. Mere commission of a corrupt practice is not sufficient; it is proof of consent of the candidate or his election agent to the commission of the corrupt practice which requires the court to declare the election void." 

"there is no doubt that consent need not be directly proved and a consistent course of conduct in the canvass of the candidate may raise a presumption of consent."  

The evidence proves only that Mr. Atrey was a supporter and that perhaps established agency of Mr.Atrey. It may be that evidence is to be found supporting the fact, that Mr.Atrey acted as agent of Mr.Fernandez with his consent.That however does not trouble us because Mr. Chari admitted that Mr. Atrey can be treated as an agent of Mr.Fernandez. It is however a very wide jump from this to say that Mr.Fernandez had consented to each publication as it came or even generally consented to the publication of items defaming the character and conduct of Mr.Patil. That consent must be specific. If the matter was left entirely in the hands of Mr. Atrey who acted solely as agent of Mr. Fernandez, something might be said as was done in Rama Krishna's case, (supra) by this Court. Otherwise there must be some reasonable evidence from which an inference can be made of the meeting of the minds as to these publications or at least a tacit approval of the general conduct of the agent, If we were not to keep this distinction in mind there would be no difference between Sections 100 (1)(b) and 100 (1) (d) in so far as an agent is concerned. We have shown above that a corrupt act per se is enough under Section 100 (1) (b) while under Section 100 (1) (d) the act must directly affect the result of the election in so far as the returned candidate is concerned. Section 100 (1) (b) makes no mention of an agent while Section 100 (1) (d) specifically does. There must be some reason why this is so. The reason is this that an agent cannot make the candidate responsible unless the candidate has consented or the act of the agent has materially affected the election of the returned candidate. In the case of any person (and he may be an agent if he does the act with the consent of the returned candidate there is no need to prove the effect on the election." 

"If every act of an agent must be presumed to be with the consent of the candidate there would be no room for application of the extra condition laid down by Section 100 (1) (d), because whenever agency is proved either directly or circumstantially, the finding about consent under Section 100 (1) ) will have to follow. We are clearly of opinion that Mr. Jethamalani's argument that Section 100 (1) (b) applies can only succeed if he establishes consent on the part of Fernandez" 

"the principle of law is settled that consent may be inferred from circumstantial evidence but the circumstances must point unerringly to the conclusion and must not admit of any other explanation. Although the trial of an election petition is made in accordance with the Code of Civil Procedure, it has been laid down that a corrupt practice must be proved in the same way as a criminal charge is proved. In other words, the election petitioner must exclude every hypothesis except that of guilt on the part of the returned candidate or his election agent." 

"9. As an abstract proposition of law it cannot be held that every speech by a leader of a Political party. who is not an agent of the candidate set up by the party, is necessarily with the consent of the candidate set up by that party to make it superfluous to plead and prove the candidate's consent, if that speech otherwise satisfies the remaining constituent parts of a corrupt practice. The act amounting to a corrupt practice must be done by a candidate or his agent or by any other person with the consent of a candidate or his election agent.' A leader of a political party is not necessarily an agent of every candidate of that party. An agent is ordinarily a person authorised by a candidate to act on his behalf on a general authority conferred on him by the candidate. Ordinarily, the agent is the understudy of the candidate and has to act under the instructions given to him, being under his control. The position of a leader is different and he does not act under instructions of a candidate or under his control. The candidate is held to be bound by acts of his agent because of the authority given by the candidate to perform the act on his behalf. There is no such relationship between the candidate and the leader, in the abstract merely because he is a leader of that party. For this reason, consent of the candidate or his election agent is necessary when the act is done by any other person. Thus, even in the case of a leader of the party, ordinarily, consent of the candidate or his election agent is to be pleaded and proved, if the election of the candidate is to be declared void under Section 100(1)(b) for the corrupt practice committed by the leader." 

"There is thus no occasion to read into the ground in Section 100(1)(b) or the definition of "corrupt practice" the implied consent of the candidate for any act done by a leader of that party to dispense with a clear pleading and proof of the candidate's or his election agent's consent as a constituent part of the corrupt practice for the ground under Section 100(1) (b) of the R. P. Act."

"27. It seems to us that the matter here is not free from difficulty but the preponderance of authorities - Indian and foreign - are in favour of admissibility of the statement provided certain conditions and safeguards are proved to the satisfaction of the court. We now proceed to discuss the various ramifications and the repercussions of this part of the case. 

28. This Court had the occasion to go into this question in a few cases and it will be useful to cite some of the decisions. In Yusufalli Esmail Nagree v. State of Maharashtra, (1967) 3 SCR 720 : (AIR 1968 SC 147) this Court, speaking through Bachawat, J., observed thus : 

"If a statement is relevant an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified. One of the features of magnatic tape recording is the ability to erase and re-use the recording medium. Because of this facility of erasure and re-use, the evidence must be received with caution. the court must be satisfied beyond reasonable about that the record has not been tampered with. The tape was not sealed and was kept in the custody of Mahajan. The absence of sealing naturally gives rise to the argument that the recording medium might have been tampered with before it was replayed." 

29. In the case of N. Sri Rama Reddy, v. V. V. Giri, (1971) 1 SCR 399 : (AIR 1971 SC1162) the following observations were made: 

"Having due regard to the decisions referred to above, it is clear that a previous statement, made by a person and recorded on tape, can be used not only to corroborate the evidence -given by the witness in Court but also to contradict the evidence given before the Court, as well as to test the veracity of the witness and also to impeach his impartiality." 

30. In R. M. Malkani v. State of Maharashtra, (1973) 2 SCR 417 : (AIR 1973 SC 157) this Court laid down the essential conditions which, if fulfilled or satisfied, would make a tape- recorded statement admissible otherwise not; and observed thus : 

"Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record." 

(Emphasis supplied) 

31. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra (1975) Supp SCR 281 : (AIR 1975 SC 1788), Beg, J. (as he then was) made the following observations: 

"We think that the High Court was quite right in holding that the tape records of speeches were "documents", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions 

(a) The voice of the person alleged to be speaking must be duty identified by the maker of the record or by others who knew it. 

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record. 

(c) The subject matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act." 

32. Thus, so far as this Court is concerned the conditions for admissibility of a tape recorded statement may be stated as follows : 

1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. 

2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial. 

3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible. 

4) The statement must be relevant according to the rules of Evidence Act. 

5) The recorded cassette must be carefully sealed and kept in safe or official custody. 

6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances. 

33. The view taken by this Court on the question of admissibility of tape recorded evidence finds full support from both English and American authorities. In R. v. Maqsud Ali, (1965) 2 All ER 464 Marshall, J., observed thus :  

"We can see no difference in principle between a tape recording and a photograph. in saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices, recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape, recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged." 

34. We find ourselves in complete agreement with the view taken by Marshall, J., who was one of the celebrated Judges of the Court of Criminal Appeal. To the same effect is another decision of the same court in R. v. Robson, (1972) 2 All ER 699 where Shaw, J., delivering a judgment of the Central Criminal Court observed thus: 

"The determination of the question is rendered more difficult because tape recordings may be altered by the transposition, excision and insertion of words or phrases and such alterations may escape detection and, even elude it on examination by technical experts. During the course of the evidence and argument on the issue of admissibility the recordings were. played back many times. In the end I came to the view that in continuity, clarity and coherence their quality was, at the least, adequate to enable the jury to form a fair and reliable assessment of the conversations which were recorded and that with an appropriate warning the jury would not be led into any interpretation unjustifiably adverse to the accused. Accordingly, so far as the matter was one of discretion, I was satisfied that no injustice could arise from admitting the tapes in evidence and that they ought not to be excluded on this basis." 

What constitutes proper foundation for the admission of a sound recording and reasonably strict adherence to the rules prescribed for testing the admissibility of recordings, are outlined as follows:- 

"(1) a showing that the recording device was capable of taking testimony; 

(2) a showing that the operator of the device was competent; 

(3) establishment of the authenticity and correctness of the recording ; 

(4) a showing that changes, additions, or deletions have not been made; 

(5) a showing of the manner of the preservation of the recording ; 

(6) identification of the speakers; and 

(7) a showing that the testimony elicited was voluntarily made without any kind of inducement." 

"It is well settled that tape-records of speeches are "documents" as defined in Section 3 of the Evidence Act and stand on no different footing than photographs. (See : Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and Ors.4). There is also no doubt that the new techniques and devices are the order of the day. Audio and video tape technology has emerged as a powerful medium through which a first hand information about an event can be gathered and in a given situation may prove to be a crucial piece of evidence. At the same time, with fast development in the electronic techniques, the tapes/cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and, therefore, such evidence has to be received with caution. Though it would neither be feasible nor advisable to lay down any exhaustive set of rules by which the admissibility of such evidence may be judged but it needs to be emphasised that to rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence." 

"(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it. (b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial had to be there so as to rule out possibilities of tampering with the record. (c) The subject matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act."