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PART - I

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23 {

No.

Poudouchéry

Jeudi

Janvier

2025 (3 Magha 1946)

No.

Puducherry

Thursday

23rd

January

2025

GOVERNMENT OF PUDUCHERRY

ELECTIONS DEPARTMENT

NO. E.81(EP)/2021-33.

Puducherry, dated 22nd January 2025.

NOTIFICATION

The Election Commission of India’s Notification No. 82/PUDU-LA/(EP 01

of 2021)/2025, dated 08-01-2025, regarding Order of the High Court of Madras, dated

08-11-2024 in the Election Petition No. 0l of 2021 is hereby published for the

information of the public.

P. JAWAHAR, I.A.S.,

Chief Electoral Officer.

2 0

LA GAZETTE DE L’ETAT

[ PART-I

SECRETARIAT OF THE ELECTION COMMISSION OF INDIA

Nirvachan Sadan,

Ashoka Road,

New Delhi-110 001.

Dated: 08th January, 2025,

18 Pausha, 1946 (Saka).

NOTIFICATION

No. 82/PUDU-LA/(EP 01 of 2021)/2025:- In pursuance of section 106 (b) of

the Representation of the Peoples Act, 1951 (43 of 1951), the Election Commission,

hereby publishes the Order of the High Court of Madras, dated 08-11-2024 in

Election Petition No. 01 of 2021.

(Here print the Judgement/Order attached)

(By Order)

MALAY MALLICK,

Principal Secretary,

Election Commission of India.

————

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 30-08-2024

Delivered on : 08-11-2024

CORAM :

THE HON’BLE MR. JUSTICE D. KRISHNAKUMAR

Election Petition No. 1 of 2021

V.M.C.S.Manoharen

. .

Petitioner

Vs.

1. M. Nagathiyagarajan

2. A. Arulraju

3. S. Sellamuthu

4. C. Baladhandayudhabani

5. Mohammed Yusuf

6. VMCS.Rajaganapathi

7. A. Geetha Anandan

8. S. Sridhar

9. The Returning Officer -X,

Neravy – T.R.Pattinam Constituency, Karaikal District,

Union territory of Puducherry.

10. The Chief Electoral Officer,

Union territory of Puducherry-605 001.

11. The District Election Officer,

Karaikal District.

. .

Respondents

(R9 to Rl1 struck off, vide order, dated 03-12-2021 made in O.A.No. 704/2011)

PART-I ]

LA GAZETTE DE L’ETAT

Prayer: Election Petition filed under sections 100(1)(b), 100(1)(d)(ii) & (iv),

101 (a) & (b), 123(2) & (4) of the Representation of the Peoples Act, 1951 r/w. Rule 2

of the Madras High Court Conduct of Election Petition Rules, 1967.

For Petitioner

: M/s. Parthiban Patmanabane

For Respondents : Mr. P.V. Balasubramaniam, Sr. Counsel for

Mr. S. Ganeshkumar for R1

ORDER

The petitioner has filed this Election Petition under sections 100(1)(b),

100(1)(d)(ii) & (iv), 101(a)&(b), 123(2) and (4) of the Representation of Peoples Act,

1951 [in short “RP Act”], read with Rule 2 of the Madras High Court Conduct

of Election Petition Rules, 1967, praying for the following relief:

(a) Declare the election of the first respondent, a returned candidate

from Neravy - T.R.Pattinam Constituency in Karaikal at Union territory of

Puducherry on 02-05-2021 as null and void;

(b) Declare the petitioner as the duly elected candidate from Neravy -

T.R.Pattinam Constituency in Karaikal at Union territory of Puducherry;

Brief Facts of the Case

2.1. The election petitioner is one of the candidates who contested

for the general elections at Neravy - T.R. Pattinam Constituency in Karaikal.

The petitioner is a Bharathiya Janata Party (BJP) Candidate and the first respondent

is a Dravida Munnetra Kazhagam (DMK) candidate contested in the general

elections of Neravy-T.R.Pattinam Constituency, Union territory of Puducherry, both

being recognized political parties. The respondents 3 to 8 are other party

candidates who contested along with the election petitioner and the first respondent.

2.2. On 26-02-2021, the Election Commission of India [in short “ECI”]

has announced the Schedule of General Elections to the Legislative Assemblies of

Puducherry, 2021. According to the Press Note released by ECI, the notification

for the Puducherry Legislative Assembly Constituency will be issued on 12-03-2021

and polling will be held on 06-04-2021. ECI has communicated the provisions of

Model Code of Conduct [in short “MCC”] for ensuring peaceful, free and fair

election.

2.3. The election petitioner further states that as per section 39A of the

RP Act, 1951 and the MCC issued by the respondents 9 and 10, all activities of

canvassing on all forms is permitted till 48 hours before the hour fixed for poll for

such election and the canvassing activities have to be completed on 04-04-2021.

2.4. According to the election petitioner, the first respondent, being a

contesting candidate, even though fully aware that the time to canvass has ended

and any activity in 48 hours before the hour fixed for poll for such election is

prohibited under the Act and MCC, in violation of the same, has made a video

statement on 05-04-2021, i.e., one day prior to the election date 06-04-2021 and

circulated the same to local public by way of Whatsapp video.

2 2

LA GAZETTE DE L’ETAT

[ PART-I

2.5. The video statement made through Whatsapp by the first

respondent/applicant in the vernacular language reads as follows:

“































































”

2.6. According to the election petitioner, the act of the first respondent

falls within the definition of corrupt practice under section 123 of RP Act and the

same is a ground for declaring the election as void under section 100 of the RP

Act.

2.7. The election petitioner states that immediately a complaint was given

by the State Vice-President, BJP to the District Election Officer, Karaikal,

Pondicherry, on the same day on 05-04-2021 and subsequently, an FIR was

registered in Crime No. 0037/2021 by the Station House Officer, T.R.Pattinam Police

Station, Karaikal under sections 171F and 188 IPC. However, inspite of the complaint,

the election was permitted to continue and results were declared declaring the first

respondent as the returned candidate. According to the election petitioner, the first

respondent has won the election illegally, in violation of the RP Act and MCC and

therefore, the election petitioner has filed the Election Petition in ELP.No. 1 of 2021

to declare the election as void.

3. The first respondent in the election petition has filed O.A.No. 53 of 2022

under Order VII Rule 11 CPC to reject the election petition by denying the averments

made in the election petition. It is contended that the election petition does not

disclose any cause of action and therefore, the same deserves to be rejected in

limine. The election petitioner has also filed a counter affidavit in the original

application.

PART-I ]

LA GAZETTE DE L’ETAT

4. This Court heard both the learned Counsel for the parties concerned in

the said original application and held the matter requires full fledged trial and

posted the matter for trial by granting liberty to the praties to raise all the grounds

at the time of trail in the election petition and accordingly dismissed the original

application.

5. At the time of trial, the following issues were framed for consideration:

(1) Whether, the circulated video during the prohibited hours of

election canvassing to voters has indirectly induced the voters or circulated with

a calculation that the said video will create an impact in the next day election ?

(2) Whether, the clarification of the Election Commission of India vide

its Instructions No. 491/SM/2013/COMMUNICATION, dated 25-10-2013 is binding

on the candidates and permissible under the Representation of People’s Act ?

(3) Whether, the first respondent has circulated a video in Whatsapp

canvassing to the voters during the prohibited hours of election ?

(4) Whether, the first respondent has committed Corrupt Practice

warranting the election to be declared as null and void in terms of section 100(1)(b)

of the Representation of People Act, 1951 ?

(5) Whether, the first respondent had violated any provisions of

Constitution of India or The Representation of the Peoples Act, 1951 or the Rules

made thereunder warranting declaration of election as null and void in terms of

section 100(1)(d)(iv) ?

(6) Whether the Election Petitioner is entitled to be declared as duly

elected candidate from Neravy - T.R.Pattinam Constituency ?

6. The election petitioner examined himself as PW.1 and examined four

others witnesses and also marked Exs.P1 to P16. On the defence side, the first

respondent examined himself as RW.1 and no document was made on his side. The

District Collector, Karaikal, was examined as CW.1 and Exs.C1 to C3 were marked.

7. Mr. P.Parthiban, learned Counsel appearing for the election petitioner

has made the following submissions:

7.1. The first respondent has violated sections 39A and 126 of the RP

Act and also the Model Code of Conduct made in exercise of power conferred under

the Act and thus his election is liable to be declared void, if proved. Hence, for

non-compliance with the provisions of the Act or of any rules or orders made under

this Act, this Court can declare the election of the returned candidate to be void

as per section 100(1)(d) (iv) of the RP Act.

7.2. The canvass activity in any form is permitted only during the time

allocated, more particularly till 48 hours before the hour fixed for polling for such

election. The first respondent has violated the same and circulated a Whatsapp

video to the public during prohibited hours which is intentional and calculated to

influence or affect the result of the election.

7.3. Section 126 (1)(c)(3) of the RP Act, 1951 specifically states that

“election matter” means, any matter intended or calculated to influence or affect

the result of an election. The first respondent has violated the same and sent

2 4

LA GAZETTE DE L’ETAT

[ PART-I

a Whatsapp video and circulated the same to public during prohibited hours which

is intentional and calculated to influence or affect the result of the election. The

statement in the video is self explanatory, he states that the election is tomorrow

and requests to vote. It was a calculative move of the first respondent to influence

and gain votes at the last moment and thereby defeat the valid right of the election

petitioner illegally.

7.4. Section 126-A (3) (b) of the RP Act states that electronic media

includes internet, mobiles and such other devices, thus canvas on mobile using

internet is also included and the same is also prohibited under section 126 of the

RP Act. Further, 126-A(3)(d) of the RP Act states that dissemination includes display

on electronic media. Thus Whatsapp canvass is also prohibited under the Act.

7.5. On 06-04-21 an FIR was registered by the T.R.Pattinam Police

Station, Karaikal for the above alleged offences under sections 171 F, 188 of the

Indian Penal Code in Crime No. 37/21 for releasing video on social media on

05-04-2021 at about 18.00 Hrs. influencing calculatedly the voters to vote in his

favour by his audio statement and succeeded in the election. Thus, a prima facie

case has been made out, as there is non-compliance of sub-clause (iv) of clause

(d) of sub-section (1) of section 100 of the Act which is the subject matter of trial

for non-compliance of section 39A and section 126-A of the Act or the MCC.

7.6. The first respondent has made emotional blackmail and induced the

voters during prohibited hours with a statement intended and calculated as explained

in sections 126(3) of the RP Act to influence or affect the result of an election.

7.7. The learned Counsel for the respondent/election petitioner, in

support of his contentions, has placed reliance on the decision in Mohinder Singh

Gill and another v. Chief Election Commissioner, New Delhi and Others [AIR 1978

SC 851].

8. Mr. P.V.Balasubramaniam, learned Senior Counsel appearing for the first

respondent has filed his written submissions, wherein it has been stated as under:

8.1. The allegations in the Election Petition does not contain violation

of any of the provision of Representation of the Peoples Act, 1951 and Model

Code of Conduct and therefore, the Election petition does not disclose any

cause of action and therefore, the same deserves to be rejected in liminie. In this

regard relied on the judgments in Madiraju Venkata Ramana Raju vs Peddireddigari

Ramachandra Reddy [(2018) 14 SCC 1] and Samar Singh Vs. Kedar Nath [AIR 1987

SC 1926].

8.2. Section 126 of the Representation of the Peoples Act pertains to

Prohibition of “public meetings” during the period of forty-eight hours ending with

hour fixed for conclusion of poll. Sub-clause l(b) of the said provision prohibits a

person from displaying to the public any election matter by means of cinematograph,

television or other similar apparatus. The use of words “other similar apparatus”

makes it explicit that the said expression refers to those apparatus having

broadcasting features similar to that of cinematograph and television that could be

displayed to the public gathering. In the instant case, it is alleged that canvassing

was made during prohibited hours by circulation of Whatsapp message.

The “Whatsapp” is online medium having messenger service features that faciliates

PART-I ]

LA GAZETTE DE L’ETAT

digital communication between individuals and the same, unlike television and

cinematograph, does not have broadcasting features to be displayed to the public

gathering. Therefore, Whatsapp does not fall within the ambit of phrase “other

similar apparatus” and further, there is no public meeting in the instant case.

Consequently, the said allegation of canvassing during prohibited hours by

circulation of Whatsapp message to individuals does not attract section 126 of the

said Act.

8.3. The prohibition contained under section 126 of the RP Act does

not include mobile outreach campaign and same could be evidenced from the Report

of the Committee constituted to examine section 126 of the Representation of the

Peoples Act, 1951 and other related provisions submitted on 10-01-2019. The said

Committee was constituted to study on the new forms of communication technology

and different forms of campaigning including online campaigning and mobile

outreach campaigning and to bring the same within the ambit of section 126. The

said Committee recommends the inclusion of both print, electronic media and

intermediaries within the scope of section 126 and for the said purpose, the

Committee proposed the following Amendments in the text of section 126 of the

RP Act 1951 as follows:-

“126 (1) No person shall...

(a) ...

(b) publish, publicise or disseminate any election matter by

means of print or electronic media or through intermediaries

or through any other means ; or

...

including internet Protocol Television, satellite terrestrial or

cable channels, or internet/digital versions of print media,

mobile and such other media either owned by the Government

or private persons by both;

8.4. It is relevant to mention that the above-mentioned amendment

proposed by the Committee never got implemented and section 126 does not

undergo any amendment to include the “mobile outreach campaign” within its ambit.

8.5. The allegations in the election petition does not contain any

violation of the Model Code of Conduct [MCC] and even the Model Code of

Conduct does not have any statutory force. The relevant clause in the Model Code

of Conduct applicable to the present case is extracted hereunder :

“(4) All parties and candidates shall avoid the scrupulously all

activities which are “corrupt practices” and offences under the election

law, such as bribing of voters, intimidation of voters, impersonation of

voters, canvassing within 100 metres of polling stations, holding public

meetings during the period of 48 hours ending with the hour fixed

for close of poll, and the transport and conveyance of voters to and

from polling station.”

2 6

LA GAZETTE DE L’ETAT

[ PART-I

8.6. There are no “public meetings” in the instant case and therefore,

the allegation contained in the Election petition does attract the rigours of the

said clause. Further, MCC does not carry statutory force to fall within the ambit of

the section 100(1)(d)(iv) of RP Act and therefore, an Election cannot be set aside

on the ground of Violation of MCC. Any infraction of the same can only be brought

to the notice of Election Commission for appropriate action against the candidate

or Political Party. In this regard relied on the judgment in Bashiruddin Halhipparga

vs Rajashekhar Basavaraj Patil and others [AIR 2004 Kant 471].

8.7. Sections 39A and 126-A of the RP Act has no relevance to the instant

case. Section 39A pertains to restrictions on Election Commission, Cable operators

and Electronic media concerning equitable sharing of timing for propagation of

election matter. The word “Electronic Media” is defined under Explanation to the

said section as follows:-

126-A (3)(b) “electronic media” includes radio and any other

broadcasting media notified by the Central Government in the Official

Gazette;”

Section 126-A pertains to restrictions concerning Exit polls. Both the

above-mentioned sections have no relevance to the present instant case,

where allegations pertain to canvassing through Whatsapp message.

9. This Court has anxiously considered the rival submissions and also

perused the entire materials available on record.

10. The election petitioner has filed the election petition under Sections

100(1)(b), 100 (1)(d)(ii) & (iv) of the RP Act, to declare the election to be void on

the ground of corrupt practice under section 123(2) and (4) of the RP Act.

11. Even though issues have been framed by this Court, the prime issue

to be decided is whether the election petition is maintainable to attract sections

123(2) and (4) of the RP Act?

12. Section 123 of the Representation of the Peoples Act, 1951, elaborately

deals with Corrupt Practices, more particularly sections 123(2) and 123(4) of the

RP Act reads as under:

“123.Corrupt Practices:- The following shall be deemed to be

corrupt practices for the purposes of this Act:-

(2) Undue influence, that is to say, any direct or indirect interference

or attempt to interfere on the part of the candidate or his agent, or of any other

person with the consent of the candidate or his election agent, with the free exercise

of any electoral right:

....

(4) The publication by a candidate or his agent or by any other person

with the consent of a candidate or his election agent, of any statement of fact which

is false, and which he either believes to be false or does not believe to be true,

in relation to the personal character or conduct of any candidate or in relation to

the candidature, or withdrawal of any candidate, being a statement reasonably

calculated to prejudice the prospects of that candidate's election.”

PART-I ]

LA GAZETTE DE L’ETAT

Section 123(2) of the RP Act enumerates the instances which constitute

undue influence. In order to attract section 123(2) of the RP Act, there should be

some act of influencing mental element causing pleasure or tyranny in the mind of

candidate or voter. There must exist a direct or indirect interference or attempt to

interfere on the part of the candidate or his agent, or of any other person, with the

free exercise of any electoral right.

13. The primordial contention of the election petitioner is that the

statement of the applicant circulated in the Whatsapp video attracts corrupt practice

in terms of section 123(2) and the same is a ground for declaring the election as

void under section 100 of RP Act. According to the respondent, for the alleged

circulation of whatsapp video during prohibited hours a complaint was lodged and

an FIR was registered by the T.R.Pattinam Police Station in Crime No. 37 of 2021

for the offences under sections 171F and 188 of the Indian Penal Code.

14. The first respondent, in his Whatsapp statement circulated, has stated

that he has been threatened by the ruling party by using their high financial and

official position and he was made to hide and he was helpless. The first respondent

also stated that as a last resort, he is believing on god and the people and if, the

people did not vote for him and safeguard him, the end consequences would

be different. The Whatsapp video message circulated by the first respondent would

also disclose as if he was under life threat and his only last belief is on the voters

and god and therefore, requested the public to vote for him; otherwise his life would

be under peril. A perusal of the aforesaid Whatsapp statement circulated by the

applicant would disclose that those words were uttered to gain emotional sympathy

from voters and the same does not in any way comes under the ambit of

section 123 of the RP Act.

15. The said video statement circulated through Whatsapp has been

extracted in para 2.5 above. The print out of the screen shot of the video sent

through Whatsapp was marked as Ex.P5 and the typed version of the content of

the video was marked as Ex.P6. The first respondent has specifically denied the

allegation of circulating a video within 48 hours prior to the election. He has also

stated that he has not seen the video and also not aware of its contents and he

came to know about the existence of the video only when the lawyer informed him

about it and only after serving of notice by the ECI.

16. According to the election petitioner, a notice has been served to the

first respondent by the Election Officer on 05-04-2021, for which he has sent a reply,

dated 06-04-2021 which has been marked as Ex.C1, wherein it was stated that the

video with voice was recorded one week before for his personal use and that video

has been leaked without his knowledge in the whatsapp and the original video has

been manipulated and tampered and has been circulated in the whatsapp cunningly

and fraudulently by some miscreants. There is no evidence whether who has

manipulated the said video statement. This Court has also gone through the video

statement which has been circulated in the whatsapp.

17. The election petitioner has relied upon Model Code of Conduct wherein

it has been clearly laid that circulation of messages in social media within 48 hours

of election is strictly prohibited and as such, there is a clear violation of the Model

Code of Conduct and the same would attract disqualification of the candidate

2 8

LA GAZETTE DE L’ETAT

[ PART-I

under section 123 of the RP Act and he has fairly agreed to seek his remedy before

the competent forum. The fact remains that for the alleged circulation of whatsapp

message, already a criminal complaint was preferred before the jurisdictional Police

and the same was subsequently challenged by the first respondent/returned

candidate and the same has been quashed. It is also not disputed that the petitioner

is not a party to the aforesaid proceedings.

18. A perusal of the said video statement would disclose that there is no

element of any undue influence would be caused in the mind of the voters and it

is only a vague statement and it would not amount to any corrupt practice as

envisaged under section 123 of the Representation of Peoples Act. The act of the

first respondent is only a violation of the Model Code of Conduct for circulation

of whatsapp video message during the prohibited 48 hours before election. There

is no clear provision to attract section 123 of the RP Act, for any violation of the

Model Code of Conduct. The Model Code of Conduct is still at the recommendatory

stage and not notified as an amendment to the Act and it has no statutory backing.

When such being the position, this Court cannot come to the aid of the election

petitioner to declare the election petition as void on the ground of violation of the

Model Code of Conduct.

19. In such circumstances, the Election Petition stands dismissed. It is open

to the election petitioner, if permissible, to seek his remedy before the competent

Court in accordance with law for the violation of the Model Code of Conduct.

20. With the above liberty, this Election Petition stands dismissed.

08-11-2024

Index

: yes/no

Internet : yes

Jvm

List of witnesses

Witnesses examined on the side or Election Petitioner

PW.1 —

Mr. V.M.C.S.Manoharan

PW.2 —

Mr. N.Kalyanasundaram

PW.3 —

Mr. Sundarajan

PW.4 —

Mr. Karthikeyan

PW.5 —

Mr. Murugesan

List of Documents marked on the side of Election Petitioner

Exhibits

Details

Date

(1)

(2)

(3)

Ex.P1

Letter No. 51011/3/2021/DPAR/SS-I(1), issued by Government

05-03-2021

of Puducherry, Department of Personnel and Administrative

Reforms (Personnel Wing).

Ex.P2

Affidavit filed by the candidate along with Nomination

17-03-2021

paper before the Returning Officer.

PART-I ]

LA GAZETTE DE L’ETAT

Ex.P3

11th respondent order under section 144 Cr.PC., issued

03-04-2024

regarding the prohibition election campaigning-

M.C.No. DCK/A1/2020-21.

Ex.P4

Compact Disc of the canvassing video circulated by the

05-04-2021

1st respondent through Whatsapp and Facebook groups.

Ex.P5

Screenshot of Whatsapp Video circulated in Whatsapp

group “VTS Vegetables”.

Ex.P6

Contents of the statement in the video circulated by the

1st respondent.

Ex.P7

Complaint of the petitioner’s party given to the 11th

05-04-2021

respondent against the 1st respondent

Ex.P8

Certified copy of FIR

05-04-2021

Ex.P9

Complaint given by the petitioner to the 11th respondent

07-04-2021

to withhold the election result of the 1st respondent,

after polling day.

Ex.P10

Results published on ECI website showing the votes

02-05-2021

obtained by each candidate at Neravy - T.R. Pattinam.

Ex.P11

Extract of the Newspaper Dinathanthi daily declaring the

03-05-2021

1st respondent as returned candidate at Neravy -

T.R. Pattinam constituency.

Ex.P12

Representation given by the petitioner to the 11th

26-05-2021

respondent and copy made to the 9th and 10th respondent.

Ex.P13

Proof of Acknowledgments to the Official respondents.

31-05-2021

Ex.P14

Affidavit filed under section 65 of the Evidence Act

01-06-2021

Ex.P15

ECI instructions on canvass through Social Media

25-10-2013

Ex.P16

Lava Mobile Phone

On the side of respondent

RW.1 —

Mr. M.Nagathiyagarajan

Court side witness

CW.1 —

Dr. D.Manikandan

Court side documents

Exhibits

Details

Date

(1)

(2)

(3)

Ex.C1

Reply submitted by the first respondent to the Member-

06-04-2021

Secretary, District Level Media Certification and Monitoring

Committee- Karaikal.

(1)

(2)

(3)