9911796707
TMI Blog1978 (9) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted under sub-section (7 of section 123 of the Representation of the People Act, 1951, hereinafter referred to as the Act. It therefore declared K. M. Mani s election from the constituency to be void, with costs, but rejected the prayer for directing N. C. Joseph to have been elected. It made a separate order the same day naming K. M. Mani and Joseph Thomas as the persons who were guilty of the corrupt practice. While K. M. Mani has filed appeal No. 99 of- 1978 and will hereafter be referred to as the appellant, Joseph Thomas has filed appeal No. 79 of 1978. Polling at the election was held on March 19, 1977, and the result was declared on March 20. The appellant obtained 39,664 votes. N.C. Joseph, who was the nearest rival at the election, obtained 24,807 votes and the other defeated candidate Joseph Cheriyan obtained 521 votes. The appellant was a Roman Catholic and was working as the Finance Minister of the Kerala Government at the time of the election. He was the candidate of the Kerala Congress. which had entered into some sort of an election alliance with some other parties. N. C. Joseph, who was also a Roman Catholic, was an independent candidate. The contest was th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eph Thomas is a member of the Police Force and a Gazetted Officer. The said Police officer is known for his antipathy towards the opposition Parties. Obtaining or procuring his services for the furtherance of the prospects of the 1st respondent s election is a corrupt practice falling within the mischief of Sec. 123(7) of the Representation of People Act, 1951. The appellant filed a written statement in which he traversed the averments in the election petition and, in regard to the allegation in paragraph S, he set up the following defence,- This respondent denies the averments in para 5 of the petition. This respondent does not know whether Shri Joseph Thomas attended or addressed the meeting as alleged in para S of the election petition. This respondent is not aware of any exhortation having been made by Shri Joseph Thomas as alleged in paragraph S of the petition. This respondent denies that Shri Joseph Thomas went to Palai at the instance A of this respondent. He has not gone to Palai with this respondent s consent and knowledge to assist the convening of any meeting of Bishop and Priests for furtherance of the prospect of the victory of this respondent in the election. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w and could not be acted upon, and it was in that context that the aforesaid averment was made about the vagueness of the allegations in the election petition as well as the affidavit. But even if we were to correlate that averment of paragraph 11 to the allegations in the election petition, we have no doubt that it could be said to relate only to the allegations in paragraphs 4 and 6 of the election petition regarding the commission of corrupt practices under subsections (2), (3) and (1) of section 123 of the Act which, as has been stated, have not been raised for consideration in these appeals. There is therefore justification for the argument of learned counsel for the respondent that the argument regarding the vagueness of the allegation in paragraph of the election petition is an afterthought and should be rejected as it has, at any rate, nat been shown that it has prejudiced the defence. It has also been argued that the election petition has not been properly verified as it has not been stated which of the averments in paragraphs 3 to 6 were true according to the information received by the petitioner and which were believed by him to be true. Our attention has in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating an argument of this nature bearing on the contents, nature and extent of an allegation recording the commission of a corrupt practice to read the allegation as a whole, and not to disjoint it, or to tear a line here or a line there, from the context. If this test is applied to the averment in paragraph 5 of the election petition, it will be quite clear that the paragraph taken as a whole relates to the allegation regarding the commission of the corrupt practice under sub-section (7) of section l 23 of the Act in obtaining or procuring the assistance of Joseph Thomas not only for convening the meeting of the Bishop and the priests for the furtherance of the prospects of the appellants in the election but also his addressing that meeting and exhorting those present to work for that purpose. The mere fact that the allegation regarding addressing the meeting and exhorting the audience is contained in a separate sentence will not justify the argument that the allegation in paragraph 5 was confined to convening the meeting and not to addressing it. This is borne out by the sentences that precede and follow the allegation about convening the meeting where it has clearly been state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (d) of subsection (7) of section 123 of the Act. It would be recalled that it was alleged, inter alia, in paragraph S of the election petition that Joseph Thomas went to Palai at the instance of the appellant to assist the conventing of the meeting for furtherance of the appellant s prospects in the election. The trial court however found that sufficient evidence was not available to substantiate the allegation, and it therefore proceeded to consider the question whether he addressed that meeting as alleged in the election petition. That finding of fact of the High Court is quite correct and has rightly not been challenged before us. We shall therefore examine the evidence in regard to the other two allegations that Joseph Thomas addressed the meeting at the instance of the appellant and exhorted those present to work for his victory in the election. In order to arrive at a decision, it will be convenient to examine why Joseph Thomas went to Palai, why he visited the Bishop s house and what exactly he said in the meeting there. lt has been stated by Joseph Thomas, and has not been disputed before us, that he was posted in those days as City Commissioner of Police, Triva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also stated that the decision to convene the meeting was taken by the Bishop. It was therefore imperative for the election petitioner to establish the remaining allegation. that Joseph Thomas went to the Bishop s house for the purpose of exhorting those present at the meeting to work for the appellant s victory in the election and that he actually did so. Joseph Thomas (P.W. 6) has stated that he left Bharananganam hospital at about 3.30 p.m. and went to the Bishop s house to see the Father Chancellor Madathilparambil in connection with his suggestion regarding the marriage of the sister of a priest with his (Joseph Thomas s) brother. He has stated further that he met the Bishop and the Father Chancellor together at about 3.45 p.m.. because the F Chancellor lived in the same premises. He left there after 4.15 p.m. for his house at Palai and returned to the Bishop s house at about 8 p.m. to inform Father Chancellor about his reaction regarding the proposal for his brother s marriage and there he learnt that he was in the dining room. He went there and found a number of persons. He met the Father Chancellor and returned soon after. We shall revert to Joseph Thomas s talk in the Bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to the election Court, it has the advantage of giving the respondent an opportunity of meeting a precise allegation. But it may be that this may not be possible in a given situation. In that case it will be reasonable and fair to expect that the election petitioner will produce a contemporaneous record of the points that were made in the speech, or at least its substance. But no such record has been made available in this case. Even a gist of what Joseph Thomas said at the meeting, has not been stated in the election petition and the election petitioner has contended himself by making the cryptic statement that Joseph Thomas addressed this meeting exhorting to work for the victory of the 1st respondent . That may well have been the impression or the opinion of the election petitioner on hearing what others told him about the speech because he was admittedly not present at the meeting. All the same, some other witnesses have been examined about the purport of the speech, and we shall examine what they have stated. Dr. Sebastian Vayalil (P.W. 2), the Bishop who called the meeting in his house, has stated that Joseph Thomas spoke at the meeting after his own speech was over an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng his future course of action, and it shows that Joseph Thomas realised that without giving up his job it was not possible for him to assist the appellant in the election. When therefore Joseph Thomas was conscious of that limitation, it cannot be believed that he would throw discretion to the winds and then and there launch an exhortation for the appellant s success at the polls. The fact that no such impression was created from what Joseph Thomas said at the meeting, will be clear from the Bishop s answer that he did not know what for the witness mentioned his willingness to give up his job when necessary. We have no reason to disbelieve the statement of the Bishop, and we are unable to take the view that it can be used for the purpose of proving the alleged corrupt practice of obtaining or procuring the assistance of the police officer for furtherance of the appellant s prospects in the election. Cherian J. Kappan (P.W.3) is another witness in this connection. He has no doubt stated that the person who was mentioned as City Commissioner of Police spoke thrice and said that Mani s success was a necessity and that if only he won then it will be possible to exclude the estates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh the witness stated that the City Commissioner of Police. Trivandrum, participated in the meeting, and all said about election matters, he was not asked whether Joseph Thomas said anything in the meeting which could be said to assist the appellant in the election. Father Joseph Pallikkaparambil (P.W. 7) was the Auxiliary Bishop of the Palai Diocese. He attended the meeting for a while, but he was also not asked whether Joseph Thomas made any speech at the meeting and, if so, to what effect. This omission is also not without significance. Father George Nellikkattu (P.W. 8) was the Vicar of St. Joseph s Church, Paika. He has stated that City Commissioner of Police Joseph Thomas was present at the meeting and that he spoke as if participating in it. He has said further that he remembered Joseph Thomas speaking about the matter of Agrarian Bill and that he said that the presence of persons like Mani was essential in the Legislative Assembly to see that the Bill did not affect them adversely. The witness has stated further that Joseph Thomas stood and spoke three or four times. We have already pointed out that the statement of Dr. Sebastian Vayalil (P.W. 2) shows that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf to it and has gone to the extent of saying that it was perhaps the only real question for consideration. There is no direct evidence to prove that Joseph Thomas went to attend the meeting and spoke there at the instance of the appellant, and this fact has been noticed by the trial court. It has however arrived at a decision against the appellant on the basis of the circumstantial evidence on the record. The court was led to that conclusion because of its finding, with which we have disagreed, that in the meeting which had been held at the Bishop s house Joseph Thomas actively and vehemently canvassed all assistance on behalf of the 1st respondent, and has also found that the explanation given by P.W. 6 in that respect cannot be accepted. The court has also found that Joseph Thomas was not a reliable witness and could not be believed when he said that he had gone to Palai to meet his ailing father. In reaching that conclusion the court has gone to the extent of pointing out that Joseph Thomas was not very careful in stating the facts even in the court, and has made a reference to his incorrect assertion in paragraph 21 of his objection petition dated December 8, 1977 in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served to be rejected. But even if it is assumed that the appellant was in or around Palai and was attending one or the other of his election meetings, it would not necessarily follow that he visited the Bishop s house while the meeting was going on there. It is significant in this connection that the election petitioner did not venture to plead that the appellant attended the Bishop s meeting, even though such a plea would have helped him substantially in establishing a direct causal connection between the appellant and the meeting and between him and what was said there by Joseph Thomas. The trial court has based its finding about the appellant s presence in the meeting on the statement of M. K. Raju (P.W. 5). He was the car driver of Cholikara Mathai Chettan in those days and he claims to have driven his employer there. He has stated that he did not go inside the Bishop s house and went away to take coffee after leaving his employer there. He returned at about 12 in the night. He saw the appellant in the Bishop s courtyard, but did not see him returning. We have gone through the statement of Raju but we do not find it possible to accept it in the face of the statement of Dr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y P.W. 6 faced the risk out of fear or favour, and either of which could have emanated only from the 1st respondent because it was the 1st respondent alone who was benefited by the impugned activities of P.W. 6. To these circumstances Mr. Govindan Nair has added the further argument that as the Bishop wanted to remove the incorrect impression that he was against the appellant, it must follow that as the meeting was convened to remove that impression it was held for furtherance of the prospects of the election and any speech delivered by Joseph Thomas must be presumed to have that object. But as has been shown earlier, there is no satisfactory evidence to prove that Joseph Thomas spoke anything at the meeting for furtherance of the appellant s electoral prospects or that he went there and spoke at his instance. It will be recalled that the Bishop has categorically stated that he never said to whom votes should be cast and he did not even intend that votes should be cast for the appellant. Dr. Joseph Chovethukunnel (P.W. 4) has also stated that the Bishop did not even say who among the candidates (who were all Roman Catholics) should succeed. The trial court was not therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... At any rate the appellant was not new to that contest and had won the elections on three earlier occasions. It is therefore difficult for us to uphold the argument that he was so driven by the prospect of defeat as to seek the assistance of a police officer openly, on pain of losing his success at the hands of any elector who may charge him of the commission of that corrupt practice. So as there is no direct evidence to prove that Joseph Thomas went to attend the meeting at the Bishop s house at the instance of the appellant and spoke there at his instance, and as the circumstantial evidence referred to above was inadequate to reach that conclusion, we are constrained to set aside the finding of the trial court that it was the appellant who obtained and procured the services of P.W. 6, a police officer, in furtherance of the prospects of the election of the 1st respondent, and the corrupt practice set out in sub-section (7) of section 123 of the Act has been established beyond any doubt. We have given our reasons for differing with the trial court about what was said by Joseph Thomas in the meeting at the Bishop s house. The appeals are allowed with costs, the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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