ELECTION COMMISSION OF INDIA

(Nirvachan Sadan, Ashoka Road, New Delhi-110 001)

19th June, 2008.

Dated:

29 Jyaistha 1930 (Saka)

NOTIFICATION

No. 82/KL-LA/(2/2006)/2008.— In pursuance of section 106 b of the

Representation of the People Act, 1951 (43 of 1951), the Election

Commission hereby publishes the judgement of the High Court of Kerala dated

6-5-2008 in Election Petition No. 2 of 2006.

By order,

(Sd.)

TAPAS KUMAR,

Principal Secretary.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Present

THE HONOURABLE MR. JUSTICE THOTTATHlL B. RADHAKRISHNAN

Tuesday, the 6th May 2008/16th Vaisakha 1930

[ El. Pet. No. 2 of 2006 ]

Petitioner:

A. Narayanan,

s/o Ayyappan,

Aged 51 years,

Valayil House,

Kakkoor P. O.,

Koothattukulam,

Ernakulam Dist.

By Adv. Sri K. Ramakumar,

Sri T. Ramprasad Unni

Sri A. Sameer

Smt. Saritha David Chunkath

Sri V. Binoy Ram

Sri Issac Ninan

Respondent:

Sri M. J. Jacob,

s/o Joseph,

Aged 61 years,

Muttapallil House,

Oliyappuram P. O.,

Koothattukulam.

Persons to whom Notices under Proviso to Section 99 (1) of the R.P. Act

were issued:

P. G. Manu,

s/o Gopalan,

Padmalayam House,

Mamalassery P. O.,

Ramamangalam.

O. N. Vijayan,

s/o Narayanan,

Oolakunnel House,

Mannathur P. O.,

Thirumarady Village,

Ernakulam District.

Jinson V. Paul,

Vadakkemechariyil House,

Mamalassery P. O.,

Ramanagalam,

Ernakulam District.

By Adv. Sri G. Janardhana Kurup (SR)

Sri K. Surendra Mohan

Sri K. Paul Kuriakose

Sri John K. George

Smt. S. Sulochana

Sri P. K. Varghese

Sri B. Vinod

Sri K. S. Arun Kumar

Sri E. C. Bineesh

Sri N. K. Shyju

This Election Petition having been finally heard on 17-4-2008, the Court on

6-5-2008 delivered the following.

THOTT ATHIL B. RADHAKRISHNAN, J.

[E.P. No. 2 OF 2006]

Dated this the 6th day of May, 2008

ORDER

1. This election petition is filed challenging the election of the respondent

from No.79 piravom LA constituency to be a member of the Kerala

Legislative Assembly, the polling for which was held on 29-4-2006. The

election petitioner is a voter of that constituency. Going by the petitioner’s

version, the respondent Sri.M.J.Jacob (R.W.4) secured 52903 votes as against

his rival candidate Sri T.M.Jacob (P.W.30), who secured 47753 votes.

2. The petitioner challenges the election of the respondent on the ground

that a corrupt practice as defined in Section 123 (4) of the Representation of

the people Act, 1951, hereinafter referred to as “the Act”, has been committed

by the publication of Ext. P1 and that such publication has been made by the

respondent’s election agent (R.W.l) and by other persons with the consent of

the returned candidate, the respondent or his election agent; that the statements

of facts in Ext. P1 made in relation to the personal character or conduct of

P.W.30, are false and that the publisher of Ext. Pl either believes them to be

false or does not believe them to be true and that the said statements were

reasonably calculated to prejudice the prospects of P. W. 30 in the election.

Thus, the plea is,

pithily, that the election is 1iable to be declared void

under Section 100 (1) (b) of the Act read with section 123 (4 ) thereof.

3. It is stated in paragraph 2 of the election petition that the issuance of Ext.Pl

is part of a systematic campaign of personal vilification of P.W.30 and that

Ext.Pl notice contains false personal accusations and references, which are

wholly untrue. The said notice allegedly contains description of P.W.30 as a

cheat and as a person deceiving the people and that he is a fake. Ext.P1,

according to the petitioner, also contains false allegation accusing P.W.30

of complicity in shielding an accused in a case of an attempt to murder. It is

pleaded that R.W.1, the election agent of the respondent knew very well that

the accusations made against P.W.30 in Ext. P1 are false. It is also alleged

that R. W. 1, the election agent had every reason to believe that such

statements are false. Paragraph 5 of the election petition enumerates various

localities at which Ext. P1 pamphlets were distributed. It also enumerates

the different persons who were allegedly involved in such distribution and

also persons who had either witnessed such distribution or received the

notices. It is alleged that the election of the respondent is liable to be declared

void by reason of the aforesaid corrupt practice committed by R. W. 1, the

election agent of the respondent and other agents who are allegedly involved

in distribution of the notices etc., with the consent of R.W. l, the election

agent.

4. The respondent filed written statement contending that his mode of campaign

was by travelling the length and breadth of the constituency and meeting the

electors personally and circulating Ext. R2 pamphlet requesting for votes in

his favour. He contended that he was not involved in the printing and

publication of posters, leaflets or other publicity materials other than

publication of Ext. R2, while other such materials were designed, printed

and distributed by various organisations of the LDF in the name of the

Convener and Secretary, LDF Election Committee, Piravom Legislative

Assembly Constituency and that the respondent had no role in any such activity

and he was not aware of the printing or circulation of any such leaflet. It is

contended that he had not consented to the printing and circulation of any

leaflet or other publicity material and that his election agent or his polling

agents have also not drafted or distributed any publicity material, including

the alleged offensive publication, Ext. P1.

5. The respondent further pleaded that Ext. P1 would show that it has been issued

by the Left Democratic Youth Front (LDYF), Piravom Mandalam Committee.

He further averred that Ext. P1 was issued in reply to Ext. Rl pamphlet issued

by the Convener, Election Committee, United Democratic Front, Piravom

Assembly Constituency and that Ext. P1 was issued by the LDYF in answer

to the claims made in Ext. R1. He, however, pleaded that Ext. P1 was not

prepared with either his consent or knowledge or with the consent or

knowledge of his election agent. The respondent also denied that Ext. P1

notice contains personal accusations, which are false. The respondent has

averred that the statements in Ext. P1 are not accusations against the private

or personal character of P.W. 30. The respondent has further averred that

Exts.R10 and R11 would show that there was an attempt to murder some

persons who had left the political party of P.W. 30. According to the

respondent, Sri Scaria, the second accused in that case was a member of the

personal staff of P.W. 30, while he was a minister and that the said Sri Scaria

was not arrested by the police, though his whereabouts were known to all.

The respondent also disputed the alleged distribution of Ext. Pl, with his

consent.

6. During the course of the case, the respondent through counsel raised a

preliminary objection that the verification of the election petition and the

affidavit filed by the election petitioner in Form 25 in terms of Rule 94A of

the Conduct of Election Rules, 1961 read with Section 83 of the Act are

defective and that the election petition is liable to be rejected. On such

objection being taken, the learned counsel for the petitioner sought for an

opportunity to cure such defect. The opportunity granted following such

request was utilised and yet another affidavit in Form 25 stands filed afresh

which cures any defect regarding the verification and also the affidavit in

Form 25 that was tendered along with the election petition.

7. On the basis of the pleadings on record, the following issues were settled

for trial:

(i)

Is the petition maintainable?

(ii)

Do the allegations constitute a corrupt practice for the purpose of

the Representation of the People Act, 1951? If so, has it been

proved?

(iii) If Issue No. II is answered in the affirmative, has the result of the

election of the respondent been materially affected by such corrupt

practice?

(iv)

Is the election of the respondent liable to be set aside as prayed for?

(v)

What shall be the order as to costs ?

8. After recording the documentary and ora1 evidence tendered by

P.W.1—the e1ection petitioner, P.W. 2 to P.W. 31, R.W. 1 to R.W. 3 and the

respondent as R.W. 4, an order was issued on 2-2-2007, directing issuance

of notice to R.W.1 Sri O. N. Vijayan, R.W. 2 Sri Jinson V. Paul and R. W. 3

Sri P. G. Manu in terms of the proviso to Section 99 (1) of the Act to show

cause why they should not be named in the final order in this election petition

as persons who have committed the corrupt practice, as noticed in the said

order. Opportunities as are available to them under clause (b) of the proviso

to Section 99 (1) were notified to them as available, if they so desire.

9. Pursuant to the aforesaid show cause notices, R.W. 1, R.W. 2 and R.W. 3

entered appearance and filed separate replies. R.W. 1 took the stand that

Ext. P1 was not published by the LDF Election Committee and that the

contents of Ext. P1 do not affect the personal character or conduct of the

contesting candidate. R. Ws . 2 and 3 filed separate replies, taking the stand

that Ext. P1 was published by LDYF and that the statements therein were

made on the basis of facts which were publicly known.

10.

Even while issuing the order dated 2-2-2007, it was noticed that in the event

of it being held that Ext. Pl was published by or with the consent of the

respondent or R.W. l, his election agent, Issue No. III as framed, would not

survive for consideration as such since the allegations, if established, would

otherwise fall pithily under Section 100 (1) (b) of the Act. Accordingly, as

per order dated 2-2-2007, Issue No. III was struck off.

11.

Pending proceedings on the basis of the notices issued to R.W. l, R.W. 2 and

R.W. 3, the order dated 2-2-2007 was challenged by the respondent before

the Hon’ble Supreme Court of India. Ultimately, Civil Appeal No. 1250 of

2007 was disposed of by order dated 20-2-2008, noticing that the contents

of the order dated 2-2-2007 are only prima facie findings and the matter has

to be proceeded with and decided in accordance with 1aw with reference to

Sections 98 and 99, after giving opportunity to the three noticees also,

before deciding the matter, finally. The case has accordingly been remitted

for final disposal.

12.

After the noticees filed their respective replies to the show cause notices,

P.W. 30 was again examined on the request of the noticees, as X.W. l. The

Official Report of the Proceedings of the Kerala Legislative Assembly

regarding the12th Session of the 11th Kerala Legislative Assembly, prepared

and published under Rule 308 (iii) of the Rules of Procedure and Conduct

of Business in the Kerala Legislative Assembly, was marked as Ext. Xl and

certain portions of that document were also specifically marked. X.W. 2 to

X.W. 5 were examined. R.W. 3 and R.W. 2 were again examined as X.W. 6

and X.W. 7 and R.W.1 again tendered evidence as X.W. 8.

13.

Having regard to some of the statements made by P.W. 30 as X.W. 1, the

noticees filed applications to call upon the Secretary of the Kerala

Legislature to produce the CD versions of the proceedings of the Legislature

as regards Ext. Xl. The Legislature through the Secretary placed on record

that the Kerala Legislative Assembly’s Committee on Privileges and Ethics

had recommended to the Assembly against the production of the videograph

and the Assembly had unanimously accepted the said recommendation. The

stand taken in the affidavit dated 3-4-2008 filed by the Secretary of the

Kerala Legislative Assembly through the Deputy Secretary was accepted

and it was ordered that production of the videograph cannot be insisted or

enforced (See order dated 8-4-2008).

14.

With the entire materials now on record, the focus of the submissions at

the time of final hearing was confined to the question of responsibility of

having published Ext. P1 and as to whether Question Nos. 2 and 6 in page 3

of Ext. P1 amount to statements of facts affecting the personal character

and conduct of P.W. 30 Sri T. M. Jacob and still further, whether the tail-

piece of Ext. P1 containing the exhortation to “recognise the shameless

hypocrite of development trickery......react against the deceiver of the

people.....” amounts to a statement of facts affecting the personal character

and conduct of P. W. 30, in the setting in which it is placed, referable to

Question Nos. 2 and 6 in page 3 of Ext. P1 and as to whether the election is

1iable to be set aside on grounds referable to Section 100 (1) (b) read with

Section 123 (4) of the Act.

15.

Barring the effect of the materials placed on record after the order dated

2-2-2007 and the consideration of the submissions on behalf of the noticees,

the respondent and the petitioner regarding the appreciation of evidence and

the legal issues involved, the assimilation of the materials on record adduced

before the order dated 2-2-2007 is not much at variance from what has been

recorded in the order dated 2-2-2007. Hence, some of the portions of the

order dated 2-2-2007, in so far as they are not at conflict with the views in

the order being rendered hereby, have been included, verbatim, as they occur

in the order dated 2-2-2007.

Printing Publication and distribution of Ext.1- Responsibility for—

16.

P.W. 29, the proprietor of Kamal Printers, admitted to have printed Ext. Pl.

He deposed that on 24-4-2006, he was engaged to do the printing and a

compact disc (CD) containing the material to be printed, was given to

him by R.W. 2–Sri Jinson, an AIYF worker and the printing was

completed and printed material delivered on the evening of 24-4-2006.

He stated that R.W. 3– Sri P. G. Manu, a DYFI worker took delivery of

the printed material and made the payment. According to him, the

printing of Ext. Pl pamphlets was carried out after obtaining

necessary declarations in writing from the Convener, LDF Election

Committee, Piravom Constituency and that Sri O. N. Vijayan, R.W. 1

was the convener, LDF Election Committee, Piravom Constituency.

However, he asserted that R.W. 1- Sri O. N. Vijayan, the election agent

of the respondent was not involved in printing Ext. P1. This led to

certain questions being put by the Court to P. W. 29. He then stated that

the entry in the 6th page of Ext. P1 shows his press as the printer and

that such entry was made while preparing the CD and that it was done

with his consent, obtained by R. W. 2 - Sri Jinson. He further stated that he

consented to print the material without seeing it and still further that, he

had not obtained declaration from the Convener, LDF Election

Committee. There was no further material, by the noticees contradicting

P. W. 29.

17.

Sri Jinson, as R.W. 2, stated that the draft of Ext. Pl was prepared by the

active workers of LDYF and that the printer (P. W. 29) wanted the

material to be brought in the form of a CD and therefore, the material

was composed through an active worker in Mulamthuruthy and a

declaration was given by him (R. W. 2) to P. W. 29 for the purpose of

printing Ext. Pl. He also deposed that it was he who delivered the

declaration to P. W. 29. He further deposed that the printed materials

(Ext. P1) were collected from P. W. 29 and taken to the Office of a

Co-operative College in Piravom which was being used by LDYF

activists and information was passed on to the active workers in

different Panchayat areas to collect Ext. Pl for distribution. He further

stated that since the polling day was nearing, only a portion of Ext. P1

notices was taken by the active workers and that the remaining were left

there. He stated that Ext. Pl was obtained from the press only in the

evening of 25-4-2006 and it was distributed only from 26-4-2006. He

also conceded that Ext. P1 contains a request to cast the votes for the

respondent, the LDF candidate. He stated that “LDYF workers distributed

Ext. P1 as part of the election campaign of the LDF candidate, the

respondent”. He further stated as follows:

“I do not definitely know the Panchayats where Ext. Pl was

distributed. Ext. P1 was printed and published for circulation

among the voters. P. G. Manu, P. K. Suresh, Swamidasan, Siby

Padikkaparambil, Vimal Chandran are active workers of LDYF and

Ext. P1 was distributed by them and through others under their

control. They belong to Ramamangalam, Piravom and

Edakkattuvayal Panchayats. The distribution of Ext. P1 was not

confined to Piravom Town. Such distribution of Ext. P1 was in

connection with the election campaign for respondent, the LDF

candidate and was not for any other candidates. It was on

22-4-2006 that it was decided by the LDYF Mandalam

Committee to print Ext. P1. The decision regarding distribution in

different parts of the constituency was also taken on that day.”

G.. 687/08/DTP.

18.

Sri Jinson (R. W. 2), in his explanation to the show cause notice issued

under the proviso to Section 99 (1), has taken the stand that the pamphlet

was published by LDYF Piravom Mandalam Committee of which he is a

member. It is pleaded by him that Ext. P1 was not published by LDF

Election Committee but it was published by Convener, LDYF Piravom

Mandalam Committee.

19.

As X. W. 7, Sri Jinson gave evidence stating that he was involved in the

preparation of Ext. P1 and it was published by LDYF Piravom

Mandalam Committee. He stated that he was the Chairman of LDYF

Election Committee, though later he stated that there was no Election

Committee for LDYF, but there was only a Mandalam Committee and it

was that Committee which decided to publish Ext. Pl.

20.

R. W. 3-Sri Manu deposed that he is an active worker of DYFI and that

LDYF is an organisation consisting of active workers of DYFI, AIYF,

NCP, etc., with leftist ideologies. He deposed that “Ext. P1 was prepared

by the important workers of LDYF including me”. His version

corroborates R. W. 2 - Sri Jinson regarding the preparation of the CD

and that Ext. P1 pamphlets were printed and obtained from P.W.29 in the

evening of 25-4-2006. According to him, he and R. W.2- Sri Jinson

watched the CD in a computer unit and then gave it to P. W. 29, for

printing.

Regarding distribution, he stated as follows:

“The entire printed materials (Ext. Pl) were not distributed. LDYF

workers would have distributed a portion of it. But I do not specifically

know as to who distributed.”

R.W. 3, Manu, further stated as follows:

“The bill for printing Ext. P1 and two copies of Ext. P1 were given to

the Office Secretary of LDF Election Committee because the expenditure

incurred had to be accounted for by the candidate.”

21.

In his reply to the notice under the proviso to Section 99 (1) of the Act,

R.W. 3 Sri P. G. Manu also took the stand that Ext. P1 was published by

the LDYF and” not the LDF Election Committee.

22.

In his further deposition as X.W. 6, he stated that he was involved in the

preparation of Ext. Pl and that it was prepared on the basis of the

discussions between him and others. He attempted to characterize his

statements as R. W. 3 as those rendered based on his persona1 opinion.

23.

R. W. l-Sri O. N. Vijayan, the election agent of the respondent, stated as

follows:

“As the convener it was part of my duties to identify the party

workers who will work in the different areas within the Assembly in

connection with the election campaign. It was also my duty to arrange

for the public meetings and other propaganda modes for the

campaign. It is part of my duties to ensure that the materials printed

by the LDF for the election campaign are made available in different

localities within the constituency. LDF workers in each panchayat

were given the responsibility of distributing those pamphlets. The

workers at the panchayat level will make available the pamphlets to

workers at the booth level and the workers at the booth level

distribute the pamphlets to the voters. It is the LDF Election

Committee with me as the convener which decided as to what are the

pamphlets to be printed and published in relation to the election

campaign. It is the said pamphlets which are so printed that are made

available by the LDF for distribution in the constituency.”

He further stated as follows:

“All pamphlets pub1ished by the LDF in connection with the campaign

of the respondent have been printed showing my name as the

publisher. Those pamphlets were distributed by the LDF workers.”

He also stated as follows:

“I had sent the copies of those pamphlets including the number of

copies, expenses incurred etc., as per the return to be filed before

the District Election Officer. The candidate has to sign in that

return. The return regarding the publications of pamphlets etc. and the

expenditure incurred is filed with the signature of the candidate and

the candidate signs the same after ascertaining the correctness of the

statement.”

24.

When Ext. P2 certified copy of the return filed by the respondent in

relation to his expenditure was put to R.W.1, he, who is the election

agent of the respondent, stated as follows:

“Ext. P2 return shows that the expenditure for printing Ext. P1 was

incurred by me on behalf of CPI-M. All statements in Ext. P2 return

of declaration are true. The materials, publication of which is

recorded in Ext. P2, were for the purpose of distribution during the

election campaign.”

25.

Sri O. N. Vijayan, in his reply to the show cause notice issued under the

proviso to section 99 (1), took the stand that Ext. P1 was not published

by the LDF Election Committee, but was published at the behest of the

LDYF Piravom Mandalam Committee and the inclusion of the

expenditure for Ext. P1 also, in the return filed by the respondent

candidate is only an inadvertent omission in preparing Ext. P5 return.

26.

In his further evidence as X.W. 8, his explanation for the script at the

foot of Ext. P1 that it is published by the LDF Election Committee is

the same as that extended by Jinson and Manu, to wit, that the letter ‘Y’

was erroneously omitted while printing and it was therefore that the

publisher was shown as the LDF Election Committee instead of LDYF

Election Committee. He, however, vouchsafed the inclusion of the expenditure

for Ext. P1 as part of the expenditure incurred for the candidate, in Ext.

P5 return. He also conceded that the bill issued by Kamal Printers for

printing Ext. P1 was produced along with the return and that his name is

shown as the payee in Ext. P5 regarding the expenditure for printing

Ext. P1.

27.

The respondent as R.W. 4 stated that Ext. P5 is a certified copy of the

books

of accounts maintained

by him in the statutory form in

relation to the election and that he has certified at the foot of each

page of that document that it is true account kept by him/his election

agent under Section 77 of the Act. He also deposed to have certified to

the veracity of the entries in Ext. P5, bona fide believing the correctness

of the accounts maintained by the Office Secretary of the Election

Committee. He stated as follows:

“I am responsible for the said accounts. Sri O. N. Vijayan, R.W.1, is

election agent. He is equally responsible like me for matters

relating to the election. He was authorised to expend the funds in

connection with the expenditures.”

He further stated as follows:

“Different organisations including SFI with leftist ideology have

worked for me in the elections. The expenditures incured by them

have also been shown in my election expenses. Similarly expenditure

incurred by LDYF have a1so been shown in the accounts.

LDYF

was active1y involved in my election campaign. LDYF had conducted

a kaalajhadha as part

of my election campaign. Ext. P5 reflects the

expenditure for the food provided for the participants of the sid

kalajhadha. The expenditure incurred by such different organisations

who have campaigned for me and had printed leaflets, pamphlets etc.

are also included in my election expenditure on the basis of the bills

and proceeds provided by such organisation. The entries in Ext.P5

with the date 25-4-2006 include printing charges of different notices

paid by the election agent shown to be incurred by the political party,

CPI-M and spent towards different organisations namely, SFI, Mahila

etc. It has been so shown since the expenditure was for the purpose

of my election campaign. Ext.P1 is the brochure in relation to which

an expenditure of Rs.10,000 is shown as on 25-4-2006.”

He further stated as follows:

“Ext. Pl contains the exhortion to lead me to victory in the election

from

Piravom L. A. Constituency. My election symbol is also

conspicuously shown in Ext. P1. Different photographs showing me

are also printed in Ext. P1. The final return given by me regarding

election expenses was submitted after verifying the supporting bills

and vouchers regarding various expenditures. It included the voucher

for printing Ext.Pl pamphlet. That final return was filed along with my

affidavit dated 7-6-2006. I had seen all the vouchers including the

voucher regarding the printing for LDYF.”

28.

Regarding publication of Ext. P1, he further stated as follows:

“The publication of Ext. Pl would have been for being distributed

among the electors. Ext. Pl would have been published to convey ideas

to the electors though I do not know the real intention of its

publisher, LDYF. Any publication would be for the purpose of

communication and therefore Ext. Pl would have been distributed.

Ext. Pl contains different matters including replies to the contents of

a notice pub1ished by the UDF election committee. I believe that the

contents of Ext. Pl are replies to the UDF e1ection committee.”

29.

Regarding expenditure, the respondent, as R.W.4, stated as follows:

“The statement in Ext.P2 affidavit that the abstract statement of

election expenses annexed as Annexure II to the said account also

includes all expenditures incurred or authorised by me, my election

agent, the political party which sponsored me, other associations/body

of persons and other individuals supporting me, in connection with

the election is true. The statement in Ext. P2 that the account of my

election expenditure as annexed thereto includes all items of election

expenditure incurred or authorised by me or by my election agent, the

political party which sponsored me, other associations/body of

persons and other individuals supporting me, in connection with the

election is also true. The expenditure for printing Ext. P1 is also

included in the accounts which are so verified by me as per Ext. P2

affidavit.”

30.

In the backdrop of the above evidence from the side of the respondent,

his witnesses and P.W.29, the printer, as also the depositions of the

notices as X.W.6, X.W.7 and X.W.8, the fact that Ext. Pl was drafted,

printed and published with the consent of the election agent of the

respondent is well established. By filing Ext. P5 return Under Section 77

of the Act, showing the expenditure for printing Ext. Pl as having been

incurred by the election agent, the respondent has taken upon himself the

responsibility of such publication. This is all the more so because, the

election agent is the alter ego of the candidate and the candidate is

bound by all the actions of the election agent. The attempted explanation

of the notices and the respondent that Ext.Pl was published by LDYF

election committee and not LDF election committee, cannot be accepted

at all. Firstly, it is the admitted situation that there was no committee

called the LDYF election committee. The explanation offered was that

the LDYF Piravom Mandalam Committee acted as the LDYF election

committee. The law relating to election requires the name of the

publisher of notice and other materials to be specifically and correctly

stated. Having shown the expenditure incurred for Ext.Pl in the return

filed by the respondent candidate and having shown his election agent

X.W.8 (R.W.l) as the payee for such expenditure in the return, the

respondent cannot be heard to contend that the notice was not published

by his election agent or even himself and with their consent.

31.

One of the questions for specific decision is as to who is the publisher

of Ext. P1. Was it the respondent? or his agent R.W.1? The allegation in

the election petition is that Ext. P1 has been published by

Sri O. N. Vijayan (R.W.1), the election agent of the respondent while

R.W.2 Sri Jinson V. Paul and R.W.3 Sri P. G. Manu have deposed owning

up the drafting and the publication of Ext. P1, as printed by P.W.29.

However, they take “the stand that it was the LDYF, Piravom Mandalam

Committee which published Ext. P1 and not the convener, LDF Election

Committee, Piravom LA Constituency as shown at the foot of the 1ast

page of Ext. Pl. It is their explanation that the letters “LDF”

among the last sentence in the last page of Ext.PI are errors and that it

should read “LDYF”. I shall immediately dispose of that argument. The

last sentence in the last page of Ext. pl shows that the publisher is

convener, LDF Election Committee, Piravom LA Constituency. Assuming

that I were to insert the letter “Y” between the letters “D” and “F” and

read it as published by the Convener, LDYF Election Committee,

Piravom LA constituency, that would contradict the stand of R.Ws. 2 and

3 that LDYF did not have any Election Committee and that LDYF,

Piravom Mandalam Committee shown in the line above the last line of

the last page of Ext. Pl is not a committee constituted in connection with

the Election. So much so, the attempt of R. Ws. 2 and 3 and also R. W.l

to pass off Ext.Pl as one published by any person other than the

Convener LDF Election Committee, Piravom LA constituency has to

necessarily fail. Now, who is the convener, LDF Election Committee,

Piravom LA constituency? Admittedly, it is R.W.l Sri O. N. Vijayan, who

is the Election agent of the respondent. Therefore, on the face of

Ext. Pl, it is shown that it was the election agent of the respondent, who

published Ext. Pl. The Election agent is nothing but the alter ego of the

candidate. It was, obviously, therefore that the election petition was filed

attributing the publication of Ext. Pl to the election agent of the

respondent.

32.

Now, I shall consider certain other materials on recorded.

33.

Ext. P2 is the affidavit sworn to by the respondent on 7-6-2006 and filed

before the District Election Officer. It is stated in that affidavit that he/his

election agent kept a separate and correct account of all expenditure

incurred/authorised by him/his election agent, in connection with the

above election between the date of his nomination and the date of

declaration of the result, both days inclusive. He had annexed the account

maintained in the register furnished by the Returning Officer, for such

purpose . The supporting vouchers, bi11s etc. were also presented along

with Ext. P2. The relevant portion of the statement of accounts marked as

Ext. P2 (i ) , read along with the connecting oral evidence would show

that the expenditure of Rs. 10,000 shown to have been incurred for

printing the LDYF notice was shown to have been spent by CPI (M) and

paid by the election agent of the respondent, namely, R.W. l. and that the

said payment was made by R.W. 1. There is no controversy that this

expenditure shown in the accounts is the expenditure for printing Ext. PI.

Ext. P2 also contains the copy of the receipt issued by P.W.29, printer,

to LDYF Piravom N. Mandalam Committee. The entire accounts along

with the Abstract Statement of Election Expenses are also on record as

Ext. P5. It also contains the affidavit dated 7-6-2006 referred to above,

as also the Abstract Statement of Election Expenses. Among other

things, it shows that the respondent’s election agent was R. W.1 and that

the respondent was a candidate set up by a recognised political party,

namely, CPI(M) which is recognised as a national party and the said party

has incurred/authorised expenses in the election of the respondent. The

entry in clause VI in Part II of the Abstract Statement of Election

Expenses (Appendix 2 at page 31 in Ext.P5) would show that according to

the said statement of the respondent, no other association/body of

persons/individual had incurred/authorised expenses in the election of the

respondent. It is therefore that in clause VII, the respondent did not give

any details of any such association or body of persons or individuals. An

amount of Rs.1,11,430 is shown as the expenditure towards campaign

materials like handbills, posters etc., going by the Abstract Statement of

Expenditure on Election by the candidate/his Election Agent in Part III of

Ext. P5. The said expenditure is shown as incurred/authorised by the

political party which had set up’ the respondent for the election Ext.P2

(i) entry regarding the expenditure towards printing of Ext.p1 is also part

of Ext. P5. Apart from that entry, the said accounts statement takes in

various other expenditures. It can be seen that al1 the expenditures are

incorporated by showing as having been incurred/authorised by the

candidate (respondent)/his election agent (R.W.1), CPI (M), a political

party and the name and address of the payee of all those expenditures is

either the respondent or R.W.1, the election agent.

34.

On the basis of the aforesaid materials even if it is assumed that it were

R.w.2 and R.w.3 who were instrumental in having Ext.P1 printed, as

spoken to by them, the responsibility and legal liability of having printed

and published Ext. Pl falls back on R.W.!, the election agent and R.W.4,

the respondent. More so, when the expenditure for printing Ext. P1 has

been shown to have been incurred by making payment through R.W.l, the

election agent of the respondent who, as a1ready noted, is none other

than the a1ter ego of the respondent. So much so, I have no hesitation to

conclude that the respondent and his election agent, R.W.l are

responsible for the publication of Ext.Pl.

35.

It is the plea of the petitioner that the publication was made by R.W.l.

As already noticed, that plea was on the basis of the inscriptions at the

foot of Ext. Pl. I have found that R.W.l is responsible for the publication

of Ext. Pl. Even without a plea, the materials on record abundantly

proved that even the respondent took up the responsibility of the

publication of Ext. Pl by including its expenditure as expenditure

incurred for the purpose of his election and payment having been made

by his election agent, R.W. l.

36.

The question that immediately arises for decision is as to what, in the

eye of 1aw, is the role of R.W. 2 and R.W. 3 who have taken up the

responsibility of having been instrumental in drafting and publishing

Ext. Pl ? Going by their own admissions, they cannot wriggle out of the

fact that they were also participants in the process of the drafting,

printing and publication of Ext. Pl. So much so, along with the

respondent and his election agent, R.W.l, R.Ws. 2 and 3 are also

responsible for the publication of Ext. Pl.

37.

The other evidence regarding the publication and distribution of Ext. P1

can also be considered.

38.

The petitioner, P.W. l, is an office bearer of the political party of P. W. 30.

He is a resident of Kakkoor in Thirumarady Village. He spoke regarding

the propaganda meetings of the respondent and the distribution of Ext.Pl.

P.W. 2 was earlier the President of the Pampakuda Grama Panchayat and

was involved in election work. He named Sri John Thuruthikattil,

Sri Suneesh Asokan of Laksham Veedu and Sri John Kuriakose

Kaduvakulangara as those who distributed Ext. Pl. He stated that he saw

the distribution on 23-4-2006 and that he was given a copy of Ext. Pl on

that day. P.W. 3 is a college lecturer, who stated that he received Ext.P1

on 23-4-2006. One Sri Sony, Sri Radhakrishnan and Sri Benny, LDF

workers belonging to CPM, had given me the notice. He is a member of

the

State

Committee

the

political

party

Sri T. M. Jacob. P. W. 4 is a rubber tapper, who deposed to have

received Ext. Pl on 22-4-2006. He is the President of the Piravom

Constituency Committee of the political party of P.W.30. P.W.5, a

resident of Oliyappuram stated that he obtained Ext. P1 notice on

24-4-2006 from Sri Narayanan, a former member of the Thirumarady

Panchayat and that the said person was accompanied by Sri Babu

Thacharukuzhiyil and Sri Raju Vattappillil. P.W.6, a resident of

Valiyapadam, a retired Head Warder from the Jail Department deposed

that he got Ext. P1 on 24-4-2006. P.W.7 deposed to have received

Ext. P1 on 24-4-2006 in Kakkoor junction. He further deposed that

Sri Krishnan Raman Chittezhath and Sri Sijumon Markose, Nallarikunnel

were found distributing Ext. P1 and that they are active LDF and CPI (M)

G.. 687/08/DTP.

workers. He also stated that he has no political activity and had not

worked for any person in connection with the elections. P.W.8 is a

resident of Peppathy of Edakkattuvayal Panchayat. He deposed of having

received Ext. P1 on 26-4-2006 from Sri Eldhose, Sri George Kurivila

and Sri C. O. Sudhakaran, who are CPI (M) workers. He is an

agriculturist and deposed that he has no particular politica1 affiliations.

P.W.9 is a resident of Mannathoor in Thirumarady Panchayat. He stated

that he obtained Ext. P1 on 24-4-2006 while being distributed by

Sri John Kuriakose, Sri Alias Varkey and Sri P. M. Krishnan, who are

workers of CPI (M). He stated that he knows P.W.30 whose wife

Smt. Daisy is a distant cousin of the said witness. He stated that he was

not engaged in canvassing votes for P.W.30 and that he is an

agriculturist. P.W. 10 stated that he is a resident of Kanjiramattom in

Amballoor Panchayat and that on 24-4-2006 at 9 a. m. he was given

Ext. P1 notice by Sri K. A. Narayanan, Kumbathil, Sri E. M. Balan and

Sri E. N. Gopalan who are CPI (M) workers. He was the President of

Amballoor Grama Panchayat Committee of Kerala Congress Jacob

Group, though he does not hold any such post, as of now and was not

invo1ving in the electioneering of P.W.30. P.W.11 is a resident of

Kanjiramattom in Amba11oor Panchayat. He deposed of having received

Ext. P1 at about 9.45 a.m. on 24-4-2006 in Thondilangady junction and

that it was given to him by Sri. K. F. Kuriakose, an LDF worker

accompanied by one Sri Baby and Sri Shammu alias Shanmughan, who

are also CPI (M) workers. He was the President of Amballoor Mandalam

Committee of the political party of P.W. 30. P.W. 12 is an autorickshaw

driver. He also works as a rubber tapper. He deposed to have received

Ext. P1. He denied the suggestion that he is tendering false evidence at

the instance of the Smt. Jessy Peter to whom he had mentioned about the

receipt of Ext. P1. P.W.13 is a former President of Ramamangalam

Grama Panchayat. He deposed to have received Ext. P1 at about 3 p.m.

on 24-4-2006 at Sivily Junction in Ooramana and that it was handed

over to him by SriYacob and Sri Sumith, who are CPI (M) workers. He

was campaigning for P.W.30. P.W.14 is the present President of

Thiruvamkulam Mandalam Committee of Kerala Congress Jacob Group.

At the time of election, he was a worker of DIC (K). He stated that

Sri Ravi and Sri Yacob delivered Ext. P1 to him on 23-4-2006 and that

they are CPI (M) workers. P. W. 15 was actively involved in campaigning

for the election of P.W.30. She stated that she was an office bearer of

DIC (K) at the time of the election and she got Ext. P1 notice at about

7 p. m. on 25-4-2006 at Peppathy. She belongs to that ward. She was given

that notice by Sri Eldhomon and Sri Sudhakaran, who came during the

election campaign programme of the respondent. Sri Yeldhomon was the

polling agent of the respondent. P.W.16 is a Christian Priest, who was

earlier the Vicar of the Church to which P.W.30 belongs. He stated that

he had obtained Ext.P1 pamphlet at 5 p.m. on 23-4-2006, being

distributed by certain persons who were wearing the badge containing the

symbol “hammer, sickle and star”, though he does not know the names

of the persons who distributed the notice. He said that he got the notice

at Karingachira. P.W. 17 is a Congress (I) worker. He deposed that he

obtained Ext. P1 notice on 23-4-2006 while he was in his shop. The

pamphlet was delivered to him by Sri P. K. Mathew, Sri Sojan George

and the Local Secretary of CPI (M). P.W.18 is a student of M. A. Degree

course in the school of International Relations and Politics in the M. G.

University Centre. He deposed that Ext. P1 was given to him by Sri Jose,

Sri Rajan and Sri Sasi on 23-4-2006 at Piravom. P.W. 19 is the Piravom

Mandalam President of the political party of P. W. 30. He deposed that

Sri Rajan, Sri Sasi and Sri Jose gave Ext. Pl pamphlet to him. P.W.20,

belonging to the political party of P.W. 30 and a Member of the Piravom

Panchayat and who had actively campaigned for P.W. 30, stated that he

obtained Ext.Pl pamphlet and that he personally knows the persons named

by him as those who delivered Ext. Pl to him. P.W.21 is an elector from

Ward No.12. He deposed that he was given copy of Ext. P1 pamphlet on

23-4-2006 at Pallippady junction by LDF workers, including Sri Ajesh

Manoharan and Sri Sajeev Kumarasseril. P.W.22 retired from the Boarder

Security Force and is a resident of Maneed and presently working with

the BSNL on contract basis. He stated that while returning from Piravom

with one Sri Aji Peter, Ext. Pl pamphlet was given to him at Nechur

church

bus

stop

about

2-2.30

p.m.

26-4-2006 by Sri Dinesan, Sri Nanukkuttan and Sri Rajappan of whom

Sri Dinesan is the Loca1 Secretary of CPI (M). P.W. 23 is the Vice

President of Chottanikkara Grama Panchayat and an office bearer of the

political party of P.W.30. He deposed that while standing in front of the

lodge belonging to him, Sri Lalan, Sri Haridas and Sri Sadanandan, who

belong to CPI (M), de1ivered Ext. Pl pamphlet to him. P.W.24 is the

Ernakulam District Secretary of the political party of P.W.30 and was

actively involved in the election work for P. W. 30. He deposed of having

got Ext. Pl as distributed by Sri P. J. Jose, Sri Sadha and Sri Raju, LDF

workers. P. W. 25 deposed of having received Ext. P1 while it was being

distributed by LDF workers, including Sri Mathew Pramadom, a CPI

worker, Sri John of CPI (M) and Sri Sojan George of Janatha Dal. P. W. 27,

an office bearer of Sri T. M. Jacob’s political party and an Ayurvedic

Physician, deposed that Ext. P1 was given to him on 26-4-2006 by

Sri C. K. Reji, Sri Rajan and other LDF workers who were distributing

Ext. P1 at Mulamthuruthy while campaigning for the respondent. P.W.28

deposed that he is a sympathizer of P.W. 30's political party and that he

was given Ext. P1 pamphlet on 26-4-2006 by Sri C. K. Reji and

Sri T. K. Rajan, who are CPI (M) workers. P.W.31, an office bearer of

the political party of P.W.30, deposed of having obtained Ext. P1 on

24-4-2006 having been received the same from Sri Vasu and Sri Mohan,

who are LDF workers belonging to Ramamangalam Town. The aforesaid

depositions of the witnesses examined on behalf of the election

petitioner would provide formidable support to the other materials on

record in the form of the depositions of R. W. 1, R.W. 2, R. W. 3, R. W. 4

and P. W.29 referred to by me earlier, on the basis of which it can be

concluded beyond any reasonable doubt that Ext. P1 pamphlet was

printed, published and distributed. There is no contra evidence brought

out at any point of time, including at the stage after the noticees have

come on record with their objections.

39.

I may also immediately notice that there is an apparent variance between

the stand taken by R. Ws. 1 to 4 and P. W. 29 on the one hand, and the

other witnesses referred to above, on the other, regarding the dates of

distribution of the pamphlet. There was an earnest attempt on the side of

P.W.29 and R.Ws.2 and 3 to push off the actual date of printing and

distribution to be after the dates of distribution, spoken to by the

witnesses examined on behalf of the election petitioner. It is also true

that the return filed by the respondent, before the institution of this

election petition shows that the expenditure for publication of Ext. P1

was incurred only on 25-4-2006. But that is of no consequence because,

the evidence of R.Ws. l to 4 and that of P. W. 29, read as a whole,

establishes beyond any reasonable doubt that Ext. P1 was, as a matter of

fact, drafted, printed, published and distributed among the voters in the

constituency in relation to the election campaign of the respondent.

40.

In view of the above, it is only to be held that Ext. P1 was drafted,

printed and published and distributed by or with the consent of the

respondent and his election agent and the respondent, in making Ext. P5

return as noticed above has owned the legal responsibility for such

publication. I do so. It is further held that R. W. 2 and R. W. 3 were

instrumental in drafting, printing and publishing Ext.P1 and the

responsibility of such publication falls on R. W. 1 and the respondent

along with R. W. 2 and R.W. 3.

Does Ext. P1 contain any incriminating statement falling within

section 123(4) of the Act as alleged, calling for the election

to be declared void under Section 100 (1) (b) of the Act?

41.

The next issue that arises for decision is as to whether Ext. P1 notice

contains statements of facts which are false, in relation to the personal

character or conduct of P. W. 30 Sri T. M. Jacob and whether such

statements have been made by the wrong doer either believing such

statements to be false or without believing such statements to be true and

still further, whether such statements are reasonably calculated to

prejudice the prospects of P. W. 30 in the election. The plea of the

election petitioner primarily relates to Questions 2 and 6 posed in page

3 of Ext. P1 and the tail-piece of Ext. P1 in the backdrop of the said

two questions.

42.

Since Ext. P1 (produced as Annexure A, along with the election petition)

is in Malayalam and an English version was filed along with the election

petition, it was deemed appropriate to obtain an official

English translation of that pamphlet. Accordingly, an English translation

of Ext. Pl was prepared by the Head Translator of High Court. Copies of

the same were issued to the parties along with the order dated

24-11-2006. Neither of them has raised any objection to that English

translation of Ext. P1. At the time of hearing, prior to the order dated

2nd February, 2007, the learned counsel for the respondent pointed out

that instead of the word “identify” in the last page in the sentence

“Identify the Shameless Hypocrite of Development Trickery”, it would be

appropriate that the word “recognise” is used. The said suggestion is

accepted. The English translation of Ext. P1 with such modification is

hereinafter referred to as “Ext. P1”.

43.

Having regard to the nature of the contentions revolving the contents of

Ext.P1 and the stand taken by some of the defence witnesses particularly,

R.W. 2 and R.W. 3, I deem it appropriate to extract the entire

English version of Ext. Pl with the substitution of the word “identify”

with the word “recognise”. It reads as follows :

ANNEXURE A-1

ENGLISH TRANSLATION OF ANNEXURE A

(Photograph of M. J. Jacob)

PEOPLE’S JACOB

M. J. JACOB

Page 2

Our dear M. J. Jacob - of people sided development ordinary person - for

completing in the soi1 of Piravom the development began in a village road.

The leader of democratic development, who introduced the small village

Thirumaradi to Indians.

The unbelievable victory song of Thirumaradi model in memories...

It is requested to elect the noble, people’s leader of unblemished

development activities, your trusted M. J. Jacob as your representative.

M. J. JACOB

(Emblem)

Page 3

CHARIOT RIDE OF DEVELOPMENT TRICKERY WITH THE

RIDDLES OF A QUARTER CENTURY

1. Though 15 years have passed since five Congress Panchayath Presidents

were made to conduct satyagraha, has the Piravom Taluk become a

reality ?

First step of deception on congressmen. Beginning of challenge to the

people of Piravom.

2. A member of your personal staff who had attempted ‘to murder

Thirumaradi Congress Mandalam President P. J. Baby, Joseph Babu and

K. P. Jacob at Onakoor is still continuing as an absconder. Can you give

an answer to the ordinary congressmen in this regard ?

3. Employment to l5 lakhs people - UDF manifesto - what industry has been

brought to Piravom Mandalam ? How many employment opportunities

have been created ? Answer expected.

4. What have you got to say about the pitiable condition of five Government

Hospitals which are the only resort of the poor people of Piravom

Mandalam ?

5. Is it enough to speak about National Highway only through newspapers ?

Where is the Highway, MLA?

Page 1

6. Do you still stick

to the Rs. 1300 crore corruption charges levelled by

you against Oommen Chandi ?

Page 4

A BRIEF HISTORY OF PIRAVOM MANDALAM

T. M. JACOB

Piravom MLA for 19 years. Minister for 8½ years after winning from

Piravom. If the notice issued by you with the caption “Chariot Ride of

Development” is true, it would be 1ike putting the cart before the horse. Is it

political morality to arrogate to yourself the achievements of developments

during the period of Sri Gopi Kottamurikka1, Sri P. C. Chacko and Benny

Behanan ?

Thiruvankulam

How does the Railway Overbridge constructed by the Central Government

become your development? Should the Chitrapuzha Bridge Completed by

Sri Gopi Kottamurikkal be written in your account ?

What is the business of the MLA in Nedungapuzha Bridge Constructed by

the Roads & Bridges Corporation ?

Drinking Water Scheme which is a part of Tripunithura - need it be put in

your account ? Why is it that the road parallel to Tiruvankulam road which is

hassled by motor accidents is not constructed so far ? Can you give a reply ?

Chottanikkara

How can Chottanikkara Bypass for which Rs. 37 1akh was got sanctioned by

Sri Gopi Kottamurikkal and the work of which has commenced be that of the

MLA ? Which is the scheme in your account except the drinking water scheme

commissioned by Minister Baby John during the LDF rule? Is it proper to put

the existing veterinary hospital in the new account ?

Why is that the Periyar Valley Canal was not completed in Tiruvankulam in

spite of holding the Portfolio? In spite of being a Minister for drinking water

for 8½ years, could the shortage of drinking water be solved ? The famous

Chottanikkara temple is an important pilgrim centre in the Mandalam. Is there

any development to Chottanikkara consistent with that ?

Mulamthuruthi

Is it correct to be the new claimant to the Kolenchery Kadavu Bridge

begun by Gopi Kottamurikkal, V. Viswatha Menon? was drinking water made

available in a manner beneficial to the public ? ICDF Office was set up during

the period of Sri Gopi Kottamurikkal. How can you claim the money given to

the Technical School by the three tier Panchayaths? What is the development in

Mulamthuruthi Hospital except the Rs.1.25crores given by the Block

Panchayath. Claim worth Rs. 55 lakh is made on the Perumpilly Nada -

Mattathanam Road. But the amount was given by the Block Panchayth. How was

the Office of ANERT lost ?

Page 5

STEPS OF DEVELOPMENT

(Photograph of M. J. JACOB)

Photograph

The society started by M.J in 1974

was converted into Manimalakunnu

College by the LDF Government

in 1980.

Amballoor

The Rs. 8 crore worth Thottara Puncha Scheme put an end to farming

itself.

Cheating the Agriculturists the contractors made huge profit. Need

you take away the credit of Padivattom Bridge form Sri P. C. Chacko? Could

you complete the drinking water scheme begun by Gopi Kottamurikkal? The

people of Amballoor are struggling for drinking water. Housewives are roaming

with pots in the place where there was Drinking Water Minister.

Edakkattuvayal

Even now water is brought by the Panchayath in Lorries to different parts

of the Panchayth. What happened to P. V. I. P. which should have reached

Tonnalloor ? The claim regarding Minor Irrigation is rank hollow.

Friend, is it not shameful to speak about the controversial Olippuram-

Moolemyal Road ? Have you forgotten that money was collected by the

people? It is a Panchayath without a Plus Two School.

Maneed

Do not misrepresent.

Neerkuzhi Lift Irrigation Scheme has not yet commenced. Is the Office of

Periyar Valley that existed, functioning today? There is no Nechur distributory.

In this Panchayath with a lot of Harijan Settlement Colonies, were any scheme

for these groups of people implemented in Maneed where they are in largest

number ? Nothing. Who closed down the KSEB Billing Section Office ?

Piravom

KSRTC depot in own name. The 1and of 3.5 acres belongs to the

Panchayath. Is the Sultan Bathery -Piravom-Thiruvananthapuram bus still in

existence ?

Page 6 Photograph

M.J. Jacob receives Swaraj Trophy of the State

Government for the best Panchayath from M. Vijayakumar,

the then Speaker of the Legislative Assembly. T. M. Jacob

and V. J. Paulose MLA are also seen.

The situation is that treatment is not available in Piravom Government

Hospital. Do you know that drinking water is not still there in Itiyarmala-

Pongummala ? Stone was laid for the second time for Kalambur Bridge.

Why is work not done ?

Ramamangalam

Is not the Peruvammuzhi Bridge completed by P. J. Joseph an achievement

of the LDF rule? Why is it that Mammalasseri-Ooramana section of M.V. I. P.

is not completed? Why is it that the drinking water problem in the Unnekkadu,

Parayampathi area is not solved? Are you aware that the Mammalassery River

side road is lying unfit for traffic for the last 14 years?

Pampakuda

Both M.T.M. High School and Government High School got plus two

through the court. Are you putting the same in your account? Not a paisa has

been given as help for the Government High School for the last 29 years.

People remember the Onakkur Bridge completed during the LDF Government.

Have you forgotten the 15 rural roads for which stones were laid in 1996,

which are yet to be completed ? No drinking water is available in Ayyanthanam,

Mangattukuzhumbu, Chennattupadi area.

Thirumaradi

People a can identify those who declared when Thirumaradi Panchayath got

the Best Panchayath award, that it does not deserve it. The breaking of the

plaque in the Manimalakunnu Government College, also will not be forgotten.

RECOGNISE THE SHAMELESS HYPOCRITE OF

DEVELOPMENT TRICKERY...

REACT AGAINST THE DECEIVER OF THE PEOPLE...

L. D .Y. F., PIRAVOM MANDALAM COMMITTEE

(Translated by: C. M. Mathai, Head Translator, High Court of Kerala.)

44.

R.W.3 - Sri P. G. Manu, an active worker of DYFI stated that he was the

convener of the LDYF for Piravom LA Constituency and that LDYF is an

organisation consisting of active workers of DYFI, AIYF, NCP and other

youth organisations with 1eftist ideologies. He stated that Ext. P1 was

prepared by the important workers of LDYF, including him. He said that

Ext. P1 was issued by way of reply to the claims of P.W.30

Sri T. M. Jacob in Ext.R1 pamphlet. At one stage during his cross

G.. 687/08/DTP.

examination, he took the stand that Ext. P1 is not one published in

connection with the election but was published “at the time of election”

and that it contains statements regarding the youth and matters affecting

students and youth. He admitted that Ext. P1 contains a photograph of the

respondent and his election symbol. He also deposed that Ext. P1

contains matters connected with the e1ection and that it contains a call to

vote for the respondent and that the request in Ext.P1 is to the voters of

Piravom LA Constituency. He stated that Questions 2, 5 and 6 in the

third page of Ext.P1 are addressed to Sri T. M. Jacob and that all the

Questions in Ext. P1 are posed to be answered by P. W. 30

Sri T. M. Jacob and they are Questions to that individual. He further

stated that Question No.2 in the third page of Ext.P1 is so posed

because, while Sri T. M. Jacob was a minister, a member of his

personal staff was an accused in a criminal case and he was not

arrested, but was absconding. He also stated that “if a member of the

personal staff is an accused, the local people will take him as bad to have

protected the said person from being arrested or to go as an absconder”.

He further stated that “the said question was so crafted to give the

message to the people that Sri T. M. Jacob is involved in harbouring

the accused persons in that criminal case who are evading arrest and

are absconders”. R. W. 3, who is an advocate by profession, stated that

the word “absconder” is not specifically stated anywhere in the police

papers in relation to the said criminal case and that he had not enquired

about bai1 being granted to the second accused Sri Scaria, who was in

the personal staff of P. W. 30, while he was a minister. He further

stated that if the contents of the second question in the third page of

Ext. P1 relating to Onakkoor incident are false, such statements will

communicate a false information to the public and that what is stated

in that question is not a silly matter and if that has been done by a

person, while a minister the public has to know it and that is why it

was so stated in Ext. P1.

45.

Of immediate relevance is the testimony of the respondent as R.W.4. He

stated that Ext. Pl contains the exhortation to lead him to victory in the

election in the Piravom LA Constituency; that the publication of Ext. Pl

would have been for distribution among the electors and any publication

would be for the purpose of communication and therefore, Ext. Pl would

have been distributed. He corroborates the version of R.W.3 that all the

six questions in the third page of Ext. Pl are addressed to P.W.30

Sri T. M. Jacob. He stated that “the said questions are of a personal

nature and of a political colour”. He went on to state that:

“to harbour an absconder in relation to a crime is

neither good conduct nor part of the politica1 1ife.

If done, it is essentially a matter affecting the

personal conduct of that person”.

He stated that:

“if the allegation of harbouring an accused is levelled against a Minister

or any person in connection with an accused, who was already

enlarged on bail, such allegation would be a serious one. The local

people including me had great amount of resentment to the onakkur

incident and to the fact that certain persons were not arrested. We had

further resentment since a member of the personal staff of

Sri T. M. Jacob while a Minister was involved in that incident”.

He also stated that:

“my personal opinion is that any wrong public statement as to whether

a person involved in a criminal case is an absconder is wrong

particularly when the matter is pending before the court. My opinion is

that wrong statements should not be included in pamphlets.”

Regarding the onakkur incident, forming the theme of Question No. 2 in the

third page of Ext. P1, respondent - R.W.4 deposed as follows:

“P. J. Baby, Joseph Babu and K. P. Jacob are prominent men in

Thirumarady Panchayat. Joseph Babu and K. P. Jacob belong to the

Political Party of Sri T. M. Jacob. P. J. Baby is the Thirumarady

Congress Mandalam President. There was a hue and cry in the 1ocality

regarding the onakkur incident in which there was an attempt to murder

the said persons. There was also a local harthal as the accused

persons were not arrested. The second accused was a member of the

then personal staff of Sri T. M. Jacob, as a Minister. Hence, there were

heated local discussions that the second accused Scaria was not being

arrested only because he is a member of the personal staff of

Sri T. M. Jacob. That would have been the reasons for the second

among the questions in Page No. 3 of Ext. Pl.”

46. R. W. 2—Sri Jinson V. Paul deposed that Ext. P1 contains a request to

Cast votes for the respondent, the LDF candidate and that LDYF

workers distributed Ext. P1 as part of the election campaign of the LDF

candidate, the respondent. He stated that the six questions enumerated

in the third page of Ext. P1 are not intended to any particular individual

and that no specific rep1y was expected from any particular person to

those questions. He said that:

“we did not expect any answer to those questions from anybody

because they were not intended to be questions but were only parts of

the particular style adopted by us in making Ext. Pl. The person to

whom the question “can you give an answer to the ordinary congress

men in this regard” as part of the second among the six queries in the

third page of Ext. P1 is addressed to Sri T. M. Jacob.”

Later, he stated as follows :

“The person to whom reference is made in Question No.2 is

Sri T. M. Jacob. That question was addressed to an individual and it is

not merely a style in drafting. Question No. 6 also relates to corruption

charges levelled by Sri T. M. Jacob. The person referred to as MLA

in Question No. 5 is Sri T. M. Jacob. Question Nos.1 to 6 in page 3 of

Ext. P1 are against Sri T. M. Jacob and it reflects that answers were

expected from him. Question No. 2 in page 3 of Ext. P1 refers to Scaria,

a member of the then personal staff of Sri T. M. Jacob and the

statement that he is an absconder was made because

he was not arrested.”

He stated that :

“the intention of Question No. 2 in page 3 of Ext. P1 is that it was bad,

if a member of the persona1 staff of Sri T. M. Jacob, while a minister,

was involved in the onakkoor incident. The said question will create an

impression in the voters that it was bad, if such an incident

had taken place.”

and further that :

“if such an incident had happened, that is bad for the people of

Piravom and that the said question did not relate to developmental

activities.”

Regarding Question No. 6, he stated as follows:

“Question No. 6 relating to the allegation of corruption levelled by

Sri T. M. Jacob against Sri Oommen Chandy is also not one touching

developmental activities of Piravom. That was also a question

personal1y addressed to Sri T. M. Jacob. I do not know whether the

allegation of corruption regarding rupees 1300 crores levelled by

Sri T. M. Jacob against Sri Oommen Chandy is recorded-in the

proceeding of the Assembly. Our information regarding that allegation

was from Malayala Manorama and Mathrubhumi Newspapers and the

Television and nothing more.”

He further stated :

“The contents of Ext. P1 were prepared without referring to any

authentic documents, but based on paper reports and information

gathered from others, including the congress workers about whom

reference is made in the second question in the third page of Ext. Pl.

The truth of the matter can be ascertained only by reference to the

documents. We, however, relied only on the newspaper reports and

other information. The reference to development trickery in the last

page of Ext. P1 was not also intended against any particular individual.”

47. The contents of Ext. P1 have to be considered in the light of the above

defence evidence.

48. With the aforesaid evidence, Question No. 2 in the third page of

Ext. P1 contains a statement of fact that a member of the personal staff of

P. W. 30-Sri T. M. Jacob attempted to murder the Thirumarady Congress

Mandalam President Sri P. J. Baby, Sri Joseph Babu and Sri K. P. Jacob

at onakoor. It contains the further statement that the said member of the

personal staff of Sri T. M. Jacob is still continuing as an absconder. The

question to Sri T. M. Jacob is whether he can give an answer to the

ordinary Congress-men in that regard. It is a matter of fact over which

there is not much of a dispute and for which there is evidence in this

case, that Sri T. M. Jacob contested the election with the symbol

“television”, of the political party DIC (K) which was then a constituent

of UDF, of which the congress-I was also a constituent. Sri P. J. Baby, Sri

Joseph Babu and Sri K. P. Jacob are Congress-men. The suggestion in

the second question in third page of Ext. P1 is that a member of the

personal staff, who going by the evidence is Sri Scaria, is an accused in

that case and that he was continuing as an absconder. The fact that he

was a member of the personal staff and the allegation that he is

continuing as an absconder coupled with the question being posed to

Sri T. M. Jacob as to what answer he can give to the ordinary

Congress-men in that regard, is a clear communication to any ordinarily

prudent man that it was with the aid of Sri T. M. Jacob that Sri Scaria

was continuing as an absconder or that Sri T. M. Jacob had harboured

the said accused person. It is a1so suggestive that the said accused

person has turned out to be an absconder and not merely one wanted,

but yet to be arrested. In the backdrop of the political combinations in

the then conglomeration called the UDF, it is apparent that the attribute

thus made to Sri T. M. Jacob was reasonably calculated to prejudice the

prospects of Sri T. M. Jacob’s election because, he is one, who by the

then po1itica1 combination, could have well aspired to get the votes of

the members, workers and sympathizers of congress-I and DIC (K) and

other components in the UDF. Holding out an accusation that a member

of his personal staff is an accused in an attempt to murder some

congress-men and that the said person is an absconder and posing the

question to Sri. T. M. Jacob as to what answer he has for the ordinary

Congress-men is a manifest suggestion that Sri. T. M. Jacob was

instrumental in letting that accused person to continue as an absconder

and that he had harboured him. The said statement was intended to

prejudice the prospects of Sri T. M. Jacob securing the votes of the

Congress-men. Even the defence witnesses and the respondent as R. W. 4

have candidly conceded to the position that the contents of the said

question would amount to levelling a personal charge against Sri T. M.

Jacob. I have, therefore, no hesitation to conclude that Question No. 2 in

the third page of Ext. P1 is a statement of fact affecting the persona1

character and conduct of Sri T. M. Jacob and one reasonably calculated

to prejudice the prospects of the said candidate in the election.

49. The question that now arises for decision is as to whether such

statement was false and whether the maker of such statement believed it

to be false or did not believe it to be true.

50. Going by the version of P. W. 29 and R. Ws. 2 and 3, Ext. Pl was printed

by 25-4-2006.

51. Ext. P10 is a copy of the bai1 order issued by the High Court of Kerala

on 2-1-2006 on Bai1 Application No. 7581/2005 to Sri George John and

Sri Skaria in relation to Onakkoor incident. That document was produced

along with I. A. 16/2006 and proved through P.W.1, being recalled and

examined following the order dated 18-12-2006. Noticing that Ext. Pl0 is

not a certified copy, a duly certified copy of the said order was also

produced by the election petitioner along with memo dated 21-12-2006.

The said document is received and taken on record as Ext. P l0(a). The

said order is on an application filed under Section 438 Cr. P. C. for

pre-arrest bail. This Court noticed that since the investigation of the case

was already over and final report filed, accused persons could be given

an opportunity to enable them to appear before the appropriate court with

an order for pre-arrest bai1 by this Court. It was accordingly that

Ext. P10(a) order was issued.

52. 1 shall advert to Ext. Rl1, certified copy of the charge-sheet proved

through R. W. 1. The said charge-sheet No. 13/05 is dated 22-10-2005.

Following investigation on the basis of FIR. No. 43/02 registered on

24-2-2002, the Judicial Magistrate of the First Class, Muvattupuzha took

cognizance of the said case on 25-11-2005 as C. P. No. 50/2005. The

second accused is Scaria. Witness No. 41, the then Circle Inspector of

Piravom Police Station, who was conducting the investigation, deleted

Accused Nos.1 and 2 during the course of investigation and filed a report

to the Court. On further investigation, Accused Nos.1 and 2 were also

found to be involved and they were brought back into the array and

Witness No. 45, Deputy Superintendent of Police, Crime Branch CBCID

who then conducted the investigation, had fi1ed a report to the Court.

Accused Nos. 1, 2 and 14 were not arrested. These are facts discernible

from the 18th page of Ext. R11.

53. From the aforesaid materials, it can be seen that while Ext. P1 was drafted

and published towards the end of April, 2006, it was a matter of record of

the competent courts, as early as by the end of October, 2005, that the

aforesaid Sri Scaria was never arrested and that he was even removed

from the array of accused persons during the course of investigation,

though he was later on brought back to the array. It was also a matter of

record that this Court had granted an order of bai1 to

Sri Scaria on the 2nd of January, 2006. Hence, there was absolutely no

material on record, nor have the respondent or noticees placed any

further material, to show that the said Sri Scaria was ever declared as an

absconder or could have been treated as an absconder while the

overwhelming evidence is to the effect that an investigation in relation to

a case in which he was arrayed as an accused in the FIR had proceeded

and ended up in a charge-sheet being filed arraying him as an accused,

while during the course of investigation he was removed from the array

of parties and later brought back into the array and still further, that he

was granted an order of pre-arrest bail by this court, at least, four

months before the publication of Ext. Pl pamphlet. Therefore, it is

abundantly clear and it has been proved beyond all reasonable doubt

that the statement in the second question in the third page of Ext. Pl that

the member (Sri Scaria) of the persona1 staff of Sri T. M. Jacob “is still

continuing as an absconder” was false.

54. Now, the question is whether the publisher of such statement had either

believed it to be false or did not believe it to be true.

55. Having already found that the respondent—R. W. 4, his e1ection agent

R. W. 1 and R. Ws . 2 and 3, even by their admissions, are responsible

for the publication of Ext. P1, I shall now consider as to whether all or

any of them had either believed the statements in Ext. P1 to be false or

did not believe them to be true.

56. Firstly, I shall deal with the question whether R. W. 1, the election agent

of the respondent had either believed the statements in Ext. P1 to be

false or did not believe them to be true. In his proof affidavit, the stand

he took was that Ext. P1 pamphlet was not issued by the LDF and that

neither he nor the respondent is responsible for its publication. He

attempted to justify the contents of Ext. P1 by stating that they are

answers to the statements in Ext. R1 and that a combined reading of

Exts. R1 and P1 would show that Ext. P1 has been issued in answer to

the claims in Ext. Rl. He further stated that Ext. Pl was issued with the

knowledge or consent of neither the respondent nor him. In paragraph 8

of the proof affidavit, he relies on Exts. Rl0 and Rll, FIR and the charge-

sheet respectively to state that the statements in Ext. Pl regarding the

criminal case (Onakkoor incident) are true and that the allegations of

corruption referred to in Ext. Pl are very well known to the voters of the

constituency, having been. prominently reported in all leading

Newspapers. In cross-examination, he admitted that Ext. P1 would have

been put to use in the campaigning for the respondent and that was why

it was included in Ext. P2 return filed before the District Election Officer.

He said that he does not know whether there was any accused in the

Onakkoor incident case, who was or is an absconder. He also does not

know whether then accused persons in that case are absconding.

In cross-examination, he explained his statement in the proof affidavit—

that the statements in Ext. P1 regarding the criminal case are true—by

stating that all that he meant by that statement was that a criminal case in

relation to that incident was registered and that a member of the then

personal staff of Sri T. M. Jacob was an accused person and he did not

intend to show by referring to Exts. R9 and R10 that the statement in Ext.

P1, that the accused persons are absconding, is true. He also stated that

the identity of the accused persons was known to him only after the

papers relating to that criminal case were taken after the commencement

of this election case. He further stated that the fact that the second

accused in that case who was in the personal staff of Sri T. M. Jacob

was removed from the array of accused persons during the course of

investigation, was not known to him earlier and he knew about it only

when he perused Ext. R11 file relating to that case, which, as already

noticed, had been perused by him only after commencement of this

election case. He also vouchsafed that Exts. Rl0 and Rll do not contain

any statement that Sri Scaria, the second accused in that case is an

absconder.

57. As against the aforesaid deposition of his alter ego-R. W. 1, the

respondent, as R. W .4, has stated, as already noticed, that if the

allegation of harbouring an accused is levelled against a Minister or any

person in connection with an accused, who was already enlarged on bail,

such allegation would be a serious one. He also stated that any wrong

public statement as to whether a person involved in a criminal case is an

absconder is wrong particularly when the matter is pending in court.

58. Ext. P10 bail order was issued by this Court on 2-1-2006, granting bail to

the second accused Sri Scaria as regards the said criminal case, more

than three months before the election. The said order for pre-arrest bail

was granted after noticing that the investigation of the case was already

over and final report filed.

G. 687/2008/DTP.

59. As already notice, none of the documents relating to the Criminal case

(Onakkoor incident) would show that Sri Scaria was an absconder.

Ext. R10, the FIR was registered on 24-2-2002, more than three years

before the notification of the election in question. Ext. Rll charge sheet is

dated 22-10-2005 while the case of the respondent and his witnesses is

that Ext.P1 was printed only on 25-4-2006. Ext. Rll would show that

though Sri Scaria was initially arrayed as an accused, he was removed

from the array of accused during the course of investigation and was

later on brought in. Ext.Rll records the fact that the said person, among

others, has not been arrested. It is also nowhere stated in Ext. Rll that

those persons are absconding.

60. The respondent was set up by a recognised national political party.

I had the benefit of hearing his evidence and I take him as the person of

prudence, caution, commonsense and fairly well informed of how people

understand publications and other modes of communications of

information and opinion. His election agent R. W. 1 is a political activist

for the last 25 years, going by his deposition. The nature of duties and

responsibilities attached to his official position as the LDF Election

Committee Convener as disclosed by him during his cross-examination

establishes that he is a person of fair exposure. R. W. 3 stated that

Ext. P1 was prepared by important workers of LDYF, including him.

He stated that Question No. 2 in the third page of Ext. P1 regarding the

Onakkoor incident was so crafted to give the message to the people that

Sri T. M. Jacob is involved in harbouring the accused persons in that

criminal case, who are evading arrest and are absconders. He is an

advocate. He said that he had seen the documents relating to that case

before Ext. P1 was drafted. If so, did he not read them? Could he not

notice from the charge-sheet Ext. R11 that the second accused Sri Scaria

was removed from the array of the accused persons during the course of

investigation and was brought in only later on? Did he not read those

documents to notice that the accused persons were not recorded as

absconders? Did he not notice that the accused persons were granted

bail by this Court in January 2006 following the filing of Ext. R11 charge-

sheet? Leaving aside that R. W. 3 is an advocate, is this the quality of

enquiry that is expected from an ordinarily prudent person while throwing

an allegation against a person, that too, one who had been holding a

public office? To call a person an absconder, if he is not one so, is itself

bad. To call yet another (Sri T. M. Jacob) a person who had been

harbouring an absconder or aiding one to continue an absconder is still

bad. I am not prepared to swallow the statement of R. W. 3 that the

accused person in Onakkoor incident was described as an absconder in

Ext: Pl merely as a part of the “style of the pamphlet”, because he was

recorded as not arrested.

61. Printed and published materials as well as information given through

different media as part of the e1ection propaganda convey lot of

information, ideas and opinions to the electors. They may some times be

charged with strong opinion; or even over charged with coloured

opinions, but the requirement of the law is that even if it is permissible

to overstep while making a political comment, it is impermissible to do so,

if the statement touches on the personal character and conduct of a

candidate. To harbour an accused person or an absconder is no part of

the political character or conduct of an individua1. To accuse a person of

having harboured an accused, an absconder, is one touching the personal

character and conduct of a person. Therefore, for one to believe that he

is making a true statement or for one to believe that the statement that

he is making touching the personal character and conduct of a candidate

is not false, he has to necessarily show that he had exercised ordinary

prudence and reasonableness of a common man in the matter of

understanding the true facts before throwing a slush of criticism touching

the personal character and conduct of a candidate. This has not been

done in this case.

62. R. W. 2-Sri Jinson V. Paul is the Mandalam Secretary of AIYF and the

Mandalam Chairman of the LDYF. He said that Ext. P1 contains request to

cast votes for respondent, the LDF candidate. Before conceding to the

question that the reference made in Question No. 2 in Ext. P1 is

Sri T. M. Jacob, he attempted to take the stand that the questions in

Ext. Pl were not addressed to any particular person. Later on, he stated

that Question No. 6 in Ext. Pl related to corruption charges levelled by

Sri T. M. Jacob and the person referred to as MLA in Question No. 5 is

Sri T. M. Jacob. Ultimately, he conceded that Question Nos. l to 6 in

page 3 of Ext. Pl are against Sri. T. M. Jacob and such queries reflected

that answers were expected from him. Regarding Question No. 2 relating

to the Onakkoor incident, he said that the reference there in was to

Sri Scaria and the statement that he is an absconder was made because,

he was not arrested. He asserted of having seen the police papers

relating to the incident from Sri Joseph Babu and that he cannot deny if

there are records in the court to show that Sri Scaria was granted

anticipatory bail in January, 2006. He also stated that the intention of

Question No. 2 in page 3 of Ext. Pl is that it was bad for a member of the

personal staff of Sri. T. M. Jacob, while a minister, to be involved in the

Onakkoor incident. He further stated that the said question will create an

impression in the voters that it was bad, if such an incident had taken

place.

63. R. W. 4, the respondent, stated that all the six questions in page 3 of

Ext. Pl are addressed to Sri. T. M. Jacob and the said questions also

carry the concept of a query being posed to UDF. He deposed that the

said questions are of a personal nature and of a political colour. He

stated that to harbour an absconder in relation to a crime is neither good

conduct nor part of political life and if done, it is essentially a matter

affecting the personal conduct of that person. He said that he had not

seen the relevant papers in relation to the Onakkoor incident and Ext. Pl

might be the reflection of the local discussions touching that incident and

it might be touching the conduct of Sri T. M. Jacob. He stated that he

had not examined the records of that criminal case before the written

statement was filed and had not ascertained the reason why the accused

persons 1 and 2 in that criminal case were not arrested. He had not

enquired, even before filing the proof affidavit, as to whether Sri Scaria

was granted bail by any court in connection with the Onakkoor incident.

He further said that if Ext. P1 contains a wrong statement, though it is

published supporting his candidature, it is wrong.

64. Fol1owing an analysis of the aforesaid in the context of the entire

materials on record, it can be seen that neither R. W. 3, the person who

owned up of having been involved in the drafting of Ext. P1 nor

R. W. 2, the person who is stated to have been involved in obtaining

Ext. P1 ready for publication, has a case that the personal imputations

made against Sri T. M. Jacob therein were made after due and proper

enquiry as is expected of a reasonably prudent man placed ln the

situation. R. W. l, the election agent, though he attempted to wash his

hands off, as regards the publication of Ext. Pl, cannot do so because, he

is shown to have disbursed the amounts for the expenditure for printing

Ext. Pl. I have also held against the defence version that Ext. Pl was

printed by LDYF and not Convener, LDF Election Committee-none other

than R. W. 1. He also does not vouchsafe of having cross-checked the

veracity of the personal allegations levelled against Sri T. M. Jacob in

Ext. Pl, at any time, at least, before the responsibility of Ext. P1 fell on him

by having disbursed the expenditure incurred for printing Ext. Pl and also

by showing it in the election expenditure of the respondent. The

respondent also cannot disown the responsibility and liability for the

publication of Ext. Pl after having treated such expenditure as part of his

election expenditure spent by making the payment through his alter ego,

the election agent, namely, R. W. l. It is also the case of the respondent,

as already noticed, that none of the material statements in Ext. Pl

touching the personal character of Sri T. M. Jacob was cross-checked

before the publication of Ext. Pl. In fact, the stand taken is that relevant

materials were searched and reached at only after the filing of the written

statement. Therefore, R .W. S. l, 2, 3 and 4 had no grounds referable to

common course of human conduct, reasonableness or common sense to

be held to have believed that the said statement in Ext. P1, touching the

personal character of Sri T. M. Jacob is false or not to be true.

65. On the issue relating to the case based on Question No. 2 in the third

page of Ext. P1, the 1earned senior counsel appearing for the noticees

and the

learned counsel for the respondent argued at the final hearing

that a plain reading of that statement in Ext. P1 does not, in any manner,

connect that question as one addressed to Sri T. M. Jacob and the

identity of the person who has not been arrested in connection with the

alleged incident at Onakkoor is also not identified. Therefore, the

contents of that statement were characterized as an innuendo and hence,

it is argued that even if that question was addressed, the issue could not

be tried and decided in the absence of definite pleading in the election

petition disclosing the identity of the person about whom the allegation

is made and the identity of the accused in the Onakkoor case and the

connection between that person and P. W. 30 Sri T. M. Jacob. In

support of this contention, specific reference was made to the decision of

the Hon’ble Supreme Court of India in M. J. Zakharia Sait, v.

T. M. Mohammed [(1990) 3. SCC. 396] and it was argued that the

innuendo meaning must be specifically pleaded and proved by stating the

special or extrinsic facts in the knowledge of the candidate filing the

election petition, explaining the innuendo. Reference was also made to

Mahendra Singh, v. Gulab [(2005) 4 SCC 522] that statements which are

not specific were insufficient to put an allegation of corrupt practice to

trial. R. P. Moidutty v. P. T. Kunju Mohammad [(2000) 1 SCC 481] was

referred to state that it is basic to the law of elections and election

petitions that in a democracy, the mandate of the people as expressed at

the hustings must prevail and be respected by the courts and that is

why the election of a successful candidate is not to be set aside lightly.

It was pointed out that a heavy onus lies on the election petitioner

seeking to set aside the election to make out a clear case both in

pleadings and at trail. The decision in M. J. Zakharia Sait (supra) which

is directly one referring to a case of an innuendo, was one where the

Apex Court concluded that the identity of the person covered by the

innuendo was not pleaded and established. It was he1d that in a case

where a corrupt practice depends upon the statements which are implied,

a statement of material facts will not be complete without the statement

of such implicit facts.

66. In the case in hand, the e1ection petition is by a voter and not a

candidate. He pleaded that Ext. Pl is published by Sri O. N. Vijayan, the

election

agent of the respondent. He produces Ext. Pl as Annexure-A

along with the election petition. The English version of that document is

produced as Annexure-Al along with the election petition. Reference is

made in the election petition to the contents of Annexure-A and it is

pleaded that in that document, “false personal accusations and references,

which are wholly untrue, are made against the main rival candidate,

Sri T. M. Jacob.” In paragraph 3 of the election petition, it is pleaded that

“the reference in Annexure A that Sri T. M. Jacob has harboured a

member of his personal staff and that he is an absconder escaping arrest

is totally false as he had appeared in Court and granted bail.” With these

pleadings by the election petitioner, the respondent stated in paragraph 7

of his written statement as follows:

“The statements made in paragraph 3 of the Election Petition are denied

as they are not true. The allegation of the petitioner that the statements

in Annexure-A amounts to character assassination of the UDF

candidate, Shri T. M. Jacob and is an accusation against his private

and personal character is denied, as it is not true. It is submitted that,

the Deputy Superintendent of Police, Crime Branch CID Ernakulam, has

registered a Crime under Sections 143, 147, 148, 150, 341, 324, 326, 212,

307 and 427 read with Section 149 of the Indian Penal Code with

respect to an incident in which an attempt to murder some persons who

had left the party of Shri T. M. Jacob and joined the Indian National

Congress, was committed. The said case is still pending trial. The

respondent produces herewith marked Annexures B-3, B-4 and

B-5 respectively, photostat true copies of the F.I.R. dated 24-2-2002, the

statement of Shri Joseph Babu under Section 161 Cr. P.C., and the

charge sheet dated 22-10-2005 in the said case. It is submitted that, the

1^st and the 2^nd accused in the said case are members of

Shri T. M. Jacob’s party. The 2nd accused, Shri Skaria s/o Mathai,

Thevarmadathil House, Thirumarady Vil1age, was a member of the

personal staff of Shri T. M. Jacob, who was a Minister at that time.

He had not been arrested by the police, though his whereabouts were

known to all.”

67. The fundamental purpose of the rules of pleadings, including in quasi

criminal matters, is to place the case before the Court and to the notice

of the person against whom an allegation is made. The connection

between the Onakkoor incident and a person, who was then in the

personal staff of Sri T. M. Jacob is explicit in the election petition. This is

beyond doubt because, the respondent had himself understood the

pleadings in such a manner and had responded by placing his written

statement as quoted above. With these pleadings on record, even the

respondent as a witness and his witnesses R. W. 1, R. W. 2 and R. W. 3

had no doubt in their mind regarding the plea of the election petitioner

when they gave evidence even before notices were issued to R. W. 1,

R. W. 2 and R.W.3 under the proviso to Section 99 (1). They, in particular,

R. W. 2 and R. W. 3 were categoric that the allegations made by them in

Ext. P1 were in relation to Sri T. M. Jacob, P. W. 30 and Sri Scaria, a

person who was in the personal staff of Sri T. M. Jacob while he was a

Minister and still further that the reference was to the criminal case in

which Sri Scaria was an accused person. Even in answer to the

show cause notices, the noticees, namely, R.W.1, R. W. 2 and R. W. 3,

cannot be heard to contend that they never understood the pleading of the

election petitioner. This is so because it is their version before this Court

as R.W.l, R.W.2 and R.W.3 that the allegations in Question No. 2 in page

3 of Ext. Pl were made with reference to P. W. 30 Sri T. M. Jacob and

Sri Scaria, in relation to the Onakkoor incident. Their intention is also

categorically established. The respondent a1so spoke about the impact of

such an allegation P. W. 30 Sri T. M. Jacob was treated as a rival

candidate by the respondent. Looking at Ext. Pl as a whole, in the

context and setting in which the different statements therein are made, the

clear nexus between the persons with reference to whom the second

question in page 3 of Ext. Pl is crafted is sufficiently pleaded particularly

because the original of Ext. Pl was produced as

Annexure-A along

with

the election petition and in view of the specific pleading, as

already noticed, that “the reference in Annexure A that Sri T. M. Jacob

has harboured a member of his personal staff and that he is an

absconder escaping arrest is totally false as he had appeared in Court

and granted bail.” Even if the laws relating to pleadings in election

petitions are more stringent and are statutorily regulated, requiring the

satisfaction of specific pleading regarding the material facts and full

particulars of the corrupt practice, such bench mark has been satisfied by

the pleadings in this case, particularly when the respondent, rather than

pleading the non disclosure of a cause of action, had specifically pleaded

in paragraph 7 of his written statement regarding the incident in relation

to which the said allegation rests.

68. Question No. 2 in page 3 of Ext. P1 reads as follows :

“A member of your personal staff who had attempted to murder

Thirumaradi Congress Mandalam President P. J. Baby, Joseph Babu

and K. P. Jacob at Onakkoor is still continuing as an absconder. Can

you give an answer to the ordinary Congressmen in this regard ?”

This question is admitted and proved to have been addressed to Sri T.

M. Jacob. It finds the obvious meaning that a member of the personal

staff of Sri T. M. Jacob, while a minister, had attempted to murder

Thirumaradi Congress Mandalam President Sri P. J. Baby, Sri Joseph

Babu and Sri K. P. Jacob at Onakkoor and that the said person is still

continuing as an absconder. By making such a statement and addressing

it to Sri T. M. Jacob, the query as to whether he can give an answer to

the ordinary Congressmen in this regard would ordinarily be understood

as conveying the fact that the alleged victims of the said incident are

Congressmen and the accusation is patently that, one of the accused

persons who was a member of the personal staff of Sri T. M. Jacob, while

a minister, was not only absconding but Sri T. M. Jacob is responsible for

letting the said person as an absconder. To an ordinarily prudent man, a

literate elector in the Kerala context, it is obvious that the suggestion in

the said question is that a member of the personal staff of Sri T. M. Jacob

was involved in an attempt to murder Congress-men and that

Sri T. M. Jacob had either harboured or otherwise aided the said accused

person to remain an absconder. To be involved in a criminal case of the

nature of the Onakkoor incident, is itself bad, even according to the

witnesses of the respondent. It is still worse, if the accused person is

successful in being an absconder, that too with the blessings of a

minister. The person who harbours or otherwise provides aid for the

accused person to continue as an absconder is all the more tainted. The

said question would necessarily send the message to any elector who

reads Ext. P1 that Sri T. M. Jacob was instrumental in ensuring that

Sri Scaria remained an absconder, though involved in the Onakkoor

incident of attempting to murder the Thirumaradi Congress Mandalam

President and others. The further suggestion that the said accused

person remained an absconder also definitely reflects upon the persona1

conduct of Sri T. M. Jacob, while a minister, because, if Sri Scaria was

an absconder, there would have been no reason why Sri T. M. Jacob, as

a minister, could have let him continue as a member of his personal staff.

It has also to be immediately remembered that Sri T. M. Jacob was

contesting as a member of the DIC(K), then a constituent of the UDF, of

which the Congress was also a constituent. So much so, the clear

message contained in the second question in page 3 of Ext. P1 is an

exhortation to vote for the respondent, who is a rival candidate of

Sri T. M. Jacob, on the ground that Sri T. M. Jacob had harboured

Sri Scaria, an absconder, a person accused in the criminal case relating to

the Onakkoor incident. The overwhelming material, even in defence, is

that question No. 2 in page 3 of Ext. P l, relating to the Onakkoor incident

is a matter affecting the personal character of Sri T. M. Jacob. It is so

held.

G. 687/2008/DTP.

69. Reverting to question No. 6 in page 3 of Ext. Pl, it reads as follows :

“6. Do you still stick to the Rs. 1300 crore corruption charges levelled

by you against Oommen Chandi ?”

70. The said question, even according to the witnesses of the respondent,

holds out a query to Sri T. M. Jacob as to whether he still stands by the

corruption charges levelled against Sri. Oommen Chandy to the tune of

Rupees 1300 crores. Sri Oommen Chandy was the Chief Minister

demitting office on completion of the term which gave way to the

Assembly Election in question. Sri Oommen Chandy and Sri T. M. Jacob

belonged to UDF, as members of two components of that conglomeration

to charge Sri T. M. Jocob of having accused Sri Oommen Chandy with

corruption, be it of Rupees 1300 crores or otherwise, is to slur him before

Congress-men whose votes he could reasonably expect, going by the

political understandings in the election. To accuse a person with

corruption and still further, to accuse a person who is leading one’s own

faction, with corruption, that too, to the tune of Rupees 1300 crores, is

one touching the personal character of, in this case, Sri T. M. Jacob,

unless it is shown that Sri T. M. Jacob made such allegations against

Sri Oommen Chandy.

71. Sri T. M. Jacob, as P. W. 30, stated in Chief Examination that he had

supported a no-confidence motion against Sri Oommen Chandy and whi1e

speaking in support of the no-confidence motion, he had not levelled

any allegation of corruption personally against Sri Oommen Chandy.

Facing cross-examination on that aspect, he stated that he had not made

any statement in the floor of assembly criticising Sri Oommen Chandy

personally during the discussion of the no-confidence motion. He also

stated that he had seen in newspaper reports, including Exts. R3, R4 and

R5, that he had charged Sri Oommen Chandy with corruption. The

different allegations, according to him, were not levelled for the first time

by him and he had in fact relied on a report of Inspector General

Sri Senkumar regarding the volume of corruption. These newspaper reports

were placed by him in the House and he wanted the Government to

conduct an enquiry. He said that the publication of Ext. Pl has affected a

good section of electorate having attained 18 years of age since they

would not have had seasoned ideas and they were easi1y influenced by

the contents of Ext. Pl.

72. To accuse a person of having charged another with corruption, is also a

matter affecting the persona1character of the maker of such accusation.

This can be easily demonstrated referring to the facts of this case.

Sri Oommen Chandy is himself a politician. He was the Chief Minister

demitting office, leading to the election. He was the Chief Minister, while

Sri T. M. Jacob is accused of having charged him with corruption. That

accusation is alleged to have been made in the floor of the Assembly. If,

as a matter of fact, Sri T. M. Jacob had not made an accusation of

corruption against Sri. Oommen Chandy, the allegation that Sri T. M. Jacob

had made such an accusation is itself to charge Sri T. M. Jacob of

having made such a statement affecting the personal character and

conduct of Sri Oommen Chandy. If that were so, for a responsible

politician to make a criticism of another politician of having committed a

crime, that too, the crime of corruption, which is an anathema to political

life, is itself a serious allegation and if one makes such allegation without

any basis, it is still worse. So much so, if a person is accused of having

made a personal allegation and if the making of such an allegation is not

proved, then it amounts to an attack on the personal character of the

alleged maker, in this case, Sri. T. M. Jacob. It is not part of the political

character or any character other than the personal character of

Sri T. M. Jacob to have made a personal accusation against

Sri Oommen Chandy of having committed corruption.

73. As P. W. 30, Sri T. M. Jacob had asserted that he had not made any

personal allegation against Sri Oommen Chandy. His deposition appeared

to suggest that his version is that he was only addressing Sri Oommen

Chandy to make an answer regarding the corruption charges levelled by

P. W. 30 on the basis of certain reports of a Police Officer Sri Sen Kumar.

While examined as X. W. 1, after the noticees had filed their replies to

the show cause notices, faced with Ext. Xl Report of the proceedings of

the Legislative Assembly regarding the speech in question, the said

witness took the stand that he only addressed Sri Oommen Chandy by

calling him by name and he was not making any allegation of corruption

against Sri Oommen Chandy. He took the stand that the version recorded

as Ext. X1 is an uncorrected version and it was recorded by a

stenographer when there was hubbub in the Assembly. He also stated

that he does not remember having made any statement which was marked

as Ext. X1 (c). Faced with the portion Ext. X1 (b), Sri T. M. Jacob, as

X. W. 1, stated that though it is recorded that he had stated that Sri

Oommen Chandy could be shivering all over on account of the

possession of the bribe money, he only meant such a statement in the

entire context of the allegation levelled against the Government led by

Sri Oommen Chandy on the basis of the report of Sri Sen Kumar.

74. Ext. X1, as already noticed, is the Full Report of the Proceedings of the

Assembly prepared by the Secretary of the Legislature. Ext. Xl, on the face

of it, states that it is an official report. Rule 308 (iii) of the Rules of

Procedure and conduct of Business in the Kerala Legislative Assembly

enjoins that the Secretary is duty bound to prepare and publish such full

reports. Section 78 of the Evidence Act deals with proof of “other official

documents”. It provides that the public documents enumerated there in

may be proved as stated therein. The second among the enumerations in

section 78 deals with the proceedings of the Legislatures. It provides that

the proceedings of the Legislatures may be proved by the journals of

those bodies respectively or by copies, purporting to be printed by

order of the Government concerned. Ext. Xl is one such document. As

already noticed, it is a document prepared in terms of a provision among

the Rules of Procedure and Conduct of Business in the Kerala Legislative

Assembly. No material is forthcoming to dislodge the veracity of the

contents of Ext. Xl.

75. Now, I shall advert to the contents of Ext. Xl, in particular, Exts. Xl (a) to

Xl (d) since that document is in Malayalam and an English version of the

same has also been obtained, such translation being by the Head

Translator of this court.

76.

Ext. Xl (a) reads as follows :

“At the rate of 7 lakh Rupees, for 30 years the amount comes to

Rupees 2 crores and 10 lakhs. If such signboards are put at 350

locations and calculating at the rate of Rupees 7 lakhs,

Shri Oommen Chandy has done an embezzlement of Rs.735 Crores.”

Ext. X1(b) is as follows :

“Can

Shri

Oommen

Chandy

remove

this

single

board?

Shri Oommen Chandy would tremble from head to toe. The reason is that

the bribe is in your hand. Receipt of bribe is also behind this. This is it,

it is not possib1e for you. Does Shri Oommen Chandy have any qualms

about withdrawing case(s)? There is no qualm to withdraw cases,”

Ext. Xl (c) reads as follows :

“I shall conclude by mentioning one more thing. The Manager of the

Special Judge’s Court is summoned by the office of Shri Oommen Chandy.

This order is handed to the manager. It is addressed to the Special

Judge. The Special Judge warns the manager. Can Shri Oommen Chandy

point out an instance of a Government Order withdrawing a case being

given to a Vigilance Judge so far in the history of Kerala?.....

(Pandemonium). ..... Many do withdraw cases. That should be

submitted there by the Government Pleader. Subsequently the judge

should examine it. It is the judge who should withdraw it, not that the

Vigilance Judge is posted there to hear the order issued by you.

Shri Oommen Chandy should understand that, violating the procedure,

what has happened to you Shri Oommen Chandy, you are in the stupor

of arrogance, you are impudent, you are arrogant, you are haughty. The

attitude of “I, I, I”, is it not this what you are showing Shri Oommen

Chandy?........................ (Pandemonium).........I have already said here.

I got that paper, Shri Oommen Chandy’s...... (Pandemonium)

..................................”

Ext. Xl (d) is as follows:

“Sir, Baju George is an agent who collects money for this Smart City and

for Sri Oommen Chandy. The first instalment of it has come via.

Bombay. A constant companion of Sri Oommen Chandy, I don’t mention

the name. It is through this person that the money has come here. In

our State corruption to the magnitude of 300 Crore Rupees has been

committed under the cover of this Gyantri Sign Board, and like wise in

the name of this Smart City. Is Sri Oommen Chandy ready to institute

an inquiry into this? Will this be inquired into by the Assembly

Committee? This Government have been immersed in corruption. Sri

Oommen Chandy has only one agenda. How much he can garner up

when he exists, how much destruction he can bring to the State,

plunder this state, I strongly support the no confidence motion brought

against the Oommen Chandy Government which attempts to do so.”

77. Ext. X1, as a whole, and Exts. Xl (a) to Ext. Xl (d), in particular,

indisputably, contains allegations levelled against Sri Oommen Chandy of

embezzlement and allied allegations of corruption. So much so, the fact

that P. W. 30 (X.W.1) Sri. T. M. Jacob had levelled allegations of

embezzlement and corruption against Sri Oommen Chandy in the floor of

the Assembly as recorded in Ext. X1 stands.

78. Hence, the fact that Ext. P1 contains Question No. 6 in page 3 thereof

requiring Sri T. M. Jacob to answer as to whether he still stands by the

allegations of corruption levelled against Sri Oommen Chandy cannot be

treated as a false allegation of P. W. 30 (X.W.1) Sri T. M. Jacob of having

made allegation of corruption and embezzlement against Sri Oommen

Chandy. Hence, Question No. 6 in page 3 of Ext. P1 cannot form the

foundation of any corrupt practice under Section 123 (4) of the Act. It is

so found.

79. Now, I shall advert to the contents of Ext. P1 which are shown to affect

the personal character of Sri T. M. Jacob. Page 3 of Ext.P1 contains six

questions under the caption “CHARIOT RIDE OF DEVELOPMENT

TRICKERY WITH THE RIDDLES OF A QUARTER CENTURY”. Out of the

said six questions, the thrust of the case revolves on Questions 2 and 6.

80. Ext. P1 (ii) is a statement in bold letters towards the end of Ext. P1

pamphlet “RECOGNISE THE SHAMELESS HYPOCRITE OF

DEVELOPMENT TRICKERY...................REACT AGAINST THE DECEIVER

OF THE PEOPLE...........”

81. The learned counsel for the respondent urged that the contents of

Ext. P1 are by way of replies to the claims in Ext. R1, a publication made

by the convener of the Election Committee of the UDF highlighting what

are enumerated therein as achievements of Sri T. M. Jacob and that the

contents therein, when read as a whole, do not project any personal

attack on Sri T. M. Jacob. He further urged that whatever has been

characterised by the petitioner as a statement affecting the personal

character and conduct of Sri T. M. Jacob, in Ext. P1, is made on the basis

of bona fide information and material and therefore, there was no reason

to hold that the publication of Ext. P1 was made believing that the said

statements are false or without believing that they are true.

82. Ext.P1, taken as a whole, shows that it is a pamphlet drafted, printed and

published during the period of the election. Going by the stand of the

respondent that Ext. P1 would have been published by way of replies to

Ext.Rl, which is nothing but the versions spoken to by R.Ws.2 and 3, in

all reasonableness, there is no doubt that Ext. Pl was published and

circulated. Coupled with these is the admission of R. W. 3, which has

already been noticed, that it was published. The front page of Ext. Pl

gives a photograph of the respondent and Ext. Pl contains explicit

statements exhorting the electors to vote for the respondent. Ext. Pl

contains the symbol in which the electors are called upon to vote. So

much so, I have no hesitation to brush aside the attempt of R.Ws.2 and 3

to state that Ext. Pl was not issued for the purpose of canvassing votes

for the respondent. In fact, that stand would even contradict the

statements of the respondent as R.W.4 and his election agent as R. W. l.

R. Ws. 2 and 3 stated that the mode of presentation of Ext. Pl is a style

of presentation of ideas and the predominant intention of issuing Ext. Pl

was to highlight the problems of the youth. Different queries are raised

through out in Ext. P1. Some of them can be related to the contents of

Ext. Rl. However, even the respondent’s witnesses have conceded that

many of the queries particularly, the six questions posed in the third page

of Ext. Pl are not referable to any statement in Ext. Rl. Be that as it may,

the statement in bold letters in the last page of Ext. Pl “RECOGNISE THE

SHAMELESS HYPOCRITE OF DEVELOPMENT TRICKERY...................

REACT AGAINST THE DECEIVER OF THE PEOPLE................” is referable

to the entire contents of Ext. Pl and it is placed in Ext. Pl as being its

conclusion to the contents of Ext. Pl. To call a person a hypocrite, as

urged by R.W.4 in his evidence, could be situational. To go a step

further, to call one a shameless hypocrite, may also be a situation. If one

is to be a shameless hypocrite of development trickery and if his claims

are shown to be trickery, then to call a person shameless hypocrite of

development trickery, by itself, would not amount to a statement of fact in

relation to the personal character or conduct of a person, but may, at the

most, amount to an overzealous and charged description, provided it

confines to the realm of political and other shades of character and

conduct of a person, which may not amount to personal character and

conduct. The same would be, so far, the request to react against the

deceiver of the people concerned. But, when such a tailpiece is placed as

a conclusion after making different statements of which one or a few is/are

referable exclusively to the personal character and conduct of a particular

person, the tailpiece takes the character, colour and shade of amounting to

a criticism on the basis of a statement of fact in relation to the personal

character and conduct of the said person. Viewed in that angle, the

tail-piece of Ext. P1, namely, the exhortation to “recognise the shameles

hypocrite of development trickery.............react against the deceiver of the

people...........” amounts to a statement of fact affecting the personal

character and conduct of Sri T. M. Jacob. This is because, tail-piece also

depends upon the questions contained in Ext. P1 including statements of

facts in relation to the personal character and conduct of Sri T. M. Jacob.

The said tail-piece amounts to a statement of facts affecting the personal

character and conduct of Sri T. M. Jacob in the setting in which it is

placed, referable to Question No. 2 in page 3 of Ext. Pl.

83. The learned counsel for the respondent, at the final hearing, also argued

that in view of the contents of section 100 (1) (b) of the Act, if the

corrupt practice is committed by any person other than the returned

candidate or his selection agent, such corrupt practice cannot be treated

as one committed with the consent of the returned candidate or his

election agent unless such consent precedes the Commission of the

corrupt practice. On facts, it is argued that there is no material on record

to hold that the respondent and his election agent, namely, R.W.l, were

involved at any point of time before taking over the responsibility of

having spent the

funds for the printing of Ext. Pl and also the

responsibility for that document by showing the expenditure incurred for

its publication as an item of expenditure incurred by the candidate,

namely, the respondent and describing R. W.1 as the payee. On such

premises, it is contended that the words “with the consent” occurring in

section 100(1) (b) of the Act have to be construed only as available in a

case where the consent of the respondent or his election agent precedes

the actual Commission of the corrupt practice in question.

84. As already found, the actual Commission of the corrupt practice in

question gets connected to the respondent and his election agent,

namely, R.W.1, by the responsibility that inheres on R. W. 1 as the

election agent of the respondent of having been the payee for the

printing of Ext. Pl. The election agent is none other than the alter ego of

the candidate. The laws relating to election as are specifically contained

in the Act are primarily intended to achieve a free and fair result of the

electoral process of this great democracy and maintenance of purity of

that process includes the requirement that the candidates are not

subjected to character assassination and other methods, particularly

those enumerated in section 123 (4). The particular purpose for making the

publication of material in violation of Section 123(4) of the Act, an

incriminating exercise for the purpose of section 100, is essentially to

safaguard a candidate from such attack, as is sought to be prevented by

such legislation. When a person becomes a candidate for an election, it is

his bounden duty to ensure that no corrupt practice is committed either

by him or by his election agent or by any other person either with his

consent or with the consent of his election agent. Therefore, if a wrong

committed by a person, who is connected with the candidate or his

election agent is shown to have been enjoyed or taken over by the

candidate or his election agent, it necessarily does not call for any

further judicial dissection to discern whether the candidate or his election

agent was wilfully involved in the process. Therefore, the question

whether actual consent had preceded the commission or whether it was

anex post facto consent for a wrong, the fruit of which would have been

enjoyed or not, is immaterial. If this contention on behalf of the

respondent is accepted, that will provide in the law, a loophole, which is

just not there.

85. The foregoing discussions and reasons lead to the following

conclusions:

(i)

Question No. 2 in page 3 of Ext. P1 amounts to a statement of

facts

affecting the personal character and conduct of

Sri T. M. Jacob. The said statement in Ext. P1 is false.

(ii)

The tail-piece of Ext. P1, namely, the exhortation to “recognise the

shameless hypocrite of development trickery.................react against the

deceiver of the people........” amounts to a statement of facts affecting

the personal character and conduct of Sri T. M. Jacob in the setting in

which it is placed, referable to Question No. 2 in page 3 of Ext. Pl.

(iii)

The publication of Ext. P1 containing the aforesaid statements has

been made by the respondent, he having owned up the responsibility

of the said publication by having its expenditure met by making

payment through his election agent and showing such expenditure as

an expenditure incurred by him in the return filed under Section 77 of

the Act and by R.W.1, the election agent of the respondent and

R.W.2 and R.W.3.

G. 687/2008/DTP.

(iv) Publishers of Ext. P1, namely, the respondent and R.W.1, his

election agent and those who were involved in the preparation,

publication and distribution of Ext. P1, namely, R. Ws. 2 and 3, had no

reason to believe that the aforesaid statements are true and had every

reason to believe that they are false.

(v)

The aforesaid statements made in Ext. P1, were reasonably

calculated to prejudice the prospects of Sri T. M. Jacob in the election.

(vi)

Question No. 6 in page 3 of Ext. P1 is not a false statement in as

much as the materials on record disclose that P. W. 30 Sri T. M. Jacob

had levelled corruption charges against Sri Oommen Chandy and

therefore, the query to Sri T. M. Jacob in Ext. Pl as to whether he still

stands by those allegations is neither groundless nor false.

86. On the basis of the aforesaid findings, it is held that the respondent and

his election agent R.W.l and two other persons, namely, R.W.2 and R.W.3,

with the consent of R.W.l, the election agent of the respondent and with

the consent of the respondent, have committed corrupt practices in terms

of section 123 (4) of the Act and the election of the respondent is,

therefore, liable to be declared void as per sub-section (1) (b) of Section

100 of the Act. It is so held.

87. In the result, this election petition is allowed declaring that the election

of the respondent from No. 79 piravom LA constituency to be a member

of the Kerala Legislative Assembly, the polling for which was held on

29-4-2006, is void. It is also recorded that R. W. 1, R. W. 2 and R. W. 3,

namely, Sri O. N. Vijayan, Sri Jinson V. Paul and Sri P. G. Manu, apart from

the respondent, have been proved at the trial to have been gui1ty of the

corrupt practice under Section 123 (4) of the Act of the nature as found

by this Court in this order. No costs.

The substance of this decision shall be communicated to the Election

Commission and to the speaker of the Kerala Legislative Assembly as

required by section 103 of the Act. An authentic copy of this order shall

also be sent to the Election Commission as prescribed.

(Sd.)

THOTTATHIL B. RADHAKRISHNAN,

JUDGE.

APPENDIX

Petitioner’s Witnesses :

P. W. 1—A. Narayanan

P. W. 2—Sunil Mathai

P. W. 3—Eby N. Elias

P. W. 4—Joy Mullankuzhiyil

P. W. 5—Joshy K. Paul

P. W. 6—R. Pushparajan

P. W. 7—Raju John

P. W. 8—John Thomas

P. W. 9—Rajesh Thampi

P. W. 10—M. T. Issac

P. W. 11—Chandramohan, K. S.

P. W. 12—Biju, P. A.

P. W. 13—K. S. Babu

P. W. 14—M. M. Kuriakose

P. W. 15—Jessy Peter

P. W. 16—Fr. Rejo Nirappu Kandam

P. W. 17—M. O. Baby

P. W. 18—Anoopunni

P. W. 19—T. V. Thomas

P. W. 20—Molly Joseph

P. W. 21—Domy Chirapurathu

P. W. 22—P. U. Raju

P. W. 23—P. G. Shaji

P. W. 24—Lalu Varghese

P. W. 25—P. M. Raju

P. W. 26—K. Prasada Chandran Pillai

P. W. 27—Dr. K. V. Kurian

P. W. 28—M. K. Joseph

P. W. 29—M. Rajendran

P. W. 30—T. M. Jacob

P. W. 31—T. K. Alexander

Respondent’s Witnesses:

R. W. 1—O. N. Vijayan

R. W. 2—Jinson V. Paul

R. W. 3—P. G. Manu

R. W. 4—M. J. Jacob

Court Witnesses [Persons to whom Notices under Proviso to Section 99 (1) of

the R. P. Act were issued]:

X. W. 1—T. M. Jacob

X. W. 2—Baby Mathew

X. W. 3—Lyju P. Varghese

X. W. 4—C. K. Ramachandran

X. W. 5—A. Narayanan

X. W. 6 (R. W. 3)—P. G. Manu

X. W. 7 (R. W. 2)—Jinson V. Paul

X. W. 8 (R. W. 1)—O. N. Vijayan

Petitioner’s Exts:

Ext. P1—True Copy of the Leaflet Published By Convenor, LDF Election

Committee (P. W. l)

Ext. P1(i)—True Copy of the Paragraph in Ext. P1 Relating to Thirumarady

Ext. P1(ii)—True Copy of the sentence in bold letters in the 6th page

of Ext. P1.

Ext. P1-A—Model Conduct for the Guidance of political parties and

Candidates. (P. W. 26)

Ext. P2— Affidavit Submitted by M. J. Jacob before the District Election

Officer. (R. W. 1).

Ext. P3— News item in Mathrubhumi Daily dated 6-4-2006. (R. W. 3)

Ext. P4—News item in Malayala Manorama dated 6-4-2006.

Ext. P5—Abstract Statement of Election Expenses.

Ext. P6—News item in Mathrubhumi Daily dated 19-4-2006. (R. W. 4)

Ext. P7—News item in Malayala Manorama Daily dated 23-4-2006.

Ext. P8—News item in Deshabhimani Daily dated 9-4-2006.

Ext. P9— Form No. 8 - PW1 Proved.

Ext. P10—Copy of Judgment dated 2-1-2006.

Respondent’s Exts:

Ext. R1—Pamphlet issued by UDF to Commemorate the Silver Jubilee of

Sri T. M. Jacob

Ext. R2—Leaflet of M. J. Jacob (P. W. 1)

Ext. R3—News item in Malayala Manorama Daily dated 20-7-2005 (P. W. 30)

Ext. R4—News item in Mathrubhumi Daily dated 20-7-2005 (P. W. 30)

Ext. R5—News item in Deshabhimani Daily dated 20-7-2005 (P. W. 30)

Ext. R6—News item in Malayala Manorama Daily dated 25-7-2006 (P. W. 30)

Ext. R7—News item in Mathrubhumi Daily dated 25-7-2005 (P. W. 30)

Ext. R8—News item in Dashabhimani Daily dated 25-7-2005 (P. W. 30)

Ext. R9—Leaflet of C. P. Saju (R. W. 1).

Ext. R10—FIR (R. W. 1).

Ext. R11—Charge Sheet (R. W. 1).

Ext. R12—C. C. of File (R. W. 4).

Ext. XI—Report issued by the Legislative Secretary under rule 308(iii) of

the rules of procedure and conduct of business in the Kerala

Legislative Assembly Regarding the 12th Session of the 11th Kerala

Legislative Assembly.

Ext. XI(a)—The Statement in Page 43 of Ext. XI (English Version is

obtained).

Ext. XI(b)—The Statement in Pages 44 of Ext. XI (English Version is

obtained).

Ext. XI(c)—The Statements in Pages 44 & 45 of Ext. XI (English Version is

obtained).

Ext. XI(d)—The Statements in Pages 46 & 47 (English Version is obtained)

Ext. D1—Communication dated issued by the Secretary of the Kerala

Legislature to the Registrar General of this Court with No.

1204/Table/2/2007/Leg.

Ext. D2—The Second Report of The Privileges and Ethics Commitiee of

the Kerala Legislature on 12-3-2008.

(Sd.)

TAPAS KUMAR,

Principal Secretary..