ANWAR PV VS PK BASHER
Facts :
Construction by plaintiff, destruction by defendant. Construction by pleadings, proof by
evidence; proof only by relevant and admissible evidence. Genuineness, veracity or
reliability of the evidence is seen by the court only after the stage of relevancy and
admissibility. These are some of the first principles of evidence. What is the nature and
manner of admission of electronic records, is one of the principal issues arising for
consideration in this appeal.
In the general election to the Kerala Legislative Assembly held on 13.04.2011, the first
respondent was declared elected to 034 Eranad Legislative Assembly Constituency. He
was a candidate supported by United Democratic Front. The appellant contested the
election as an independent candidate, allegedly supported by the Left Democratic Front.
Sixth respondent was the chief election agent of the first respondent. There were five
candidates. Appellant was second in terms of votes; others secured only marginal
votes. He sought to set aside the election under Section 100(1)(b) read with Section
123(2)(ii) and (4) of The Representation of the People Act, 1951 (hereinafter referred to
as ‘the RP Act’) and also sought for a declaration in favour of the appellant. By order
dated 16.11.2011, the High Court held that the election petition to set aside the election
on the ground under Section 123(2)(a)(ii) is not maintainable and that is not pursued
before us either. Issues (1) and (2) were on maintainability and those were answered as
preliminary, in favour of the appellant.
issue :
Whether Annexure A was published and distributed in the constituency
Both the first respondent and all his election agents and other persons who were working for him knew that the
contents of Annexure A which was got printed in the manner stated above are false and false to their knowledge and
though the petitioner was falsely implicated in the Manaf murder case he has been honourably acquitted in the case
and declared not guilty. True copy of the judgment in S.C. No. 453 of 2001 of the Additional Sessions Court (Adhoc
No.2), Manjeri, dated 24.9.2009 is produced herewith and marked as Annexure B. Though this fact is within the
knowledge of the first respondent, his agents referred to above and other persons who were working for him in the
election on the 12th of April, 2011 at about 8 AM bundles of Annexure A which were kept in the house of the first
respondent at Pathapiriyam, within the constituency were taken out from that house in two jeeps bearing Nos KL13-
B 3159 and KL10-J 5992 which were seen by two electors, Sri V Arjun aged 31 years, Kottoor House, S/o Narayana
Menon, Pathapiriyam Post, Edavanna and C.P. Faizal aged 34 years, S/o Muhammed Cheeniyampurathu
Pathapiriyam P.O., who are residing in the very same locality of the first respondent and the jeeps were taken around
in various parts of the Eranad Assembly Constituency and Annexure A distributed throughout the constituency from
the aforesaid jeeps by the workers and agents of the first respondent at about 8 PM that night. The aforesaid
publication also amounted to undue influence as the said expression is understood in Section 123(2)(a)(ii) of The
Representation of the People Act, in that it amounted to direct or indirect interference or attempt to interfere on the
part of the first respondent or his agent and other persons who were his agents referred to below with the consent of
the first respondent, the free exercise of the electoral right of the voters of the Eranad Constituency and is also a
corrupt practice falling under Section 123(4) of The Representation of the People Act, 1951. …” The allegation is
on distribution of Exhibit-P1 at about 08.00 p.m. on 12.04.2011. But the evidence is on distribution of Exhibit-P1 at
various places at 08.00 a.m., 02.00 p.m., 05.00 p.m., 06.30 p.m., etc. by the UDF workers. No doubt, the details on
distribution are given at Paragraph-5 (extracted above) of the election petition at different places, at various timings.
The appellant as PW-1 stated that copies of Exhibit-P1 were distributed until 08.00 p.m. Though the evidence is on
printing of 1,000 copies of Exhibit-P1, the evidence on distribution is of many thousands. In one panchayat itself,
according to PW-22-KV Muhammed around 5,000 copies were distributed near Areakode bus stand. Another
allegation is that two bundles were entrusted with one Sarafulla at Areakode but he is not examined. All this would
show that there is no consistent case with regard to the distribution of Exhibit-P1 making it difficult for the Court to
hold that there is credible evidence in that regard.
All that apart, the definite case of the appellant is that the election is to be declared void on the ground of Section
100(1)(b) of the RP Act and that too on corrupt practice committed by the returned candidate, viz., the first
respondent and with his consent. We have already found that on the evidence available on record, it is not possible
to infer consent on the part of the first respondent in the matter of printing and publication of Exhibit-P1-leaflet.
There is also no evidence that the distribution of Exhibit-P1 was with the consent of first respondent. The allegation
in the election petition that bundles of Exhibit-P1 were kept in the house of the first respondent is not even
attempted to be proved. The only connecting link is of the two jeeps which were used by the UDF workers and not
exclusively by the first respondent. It is significant to note that there is no case for the appellant that any corrupt
practice has been committed in the interest of the returned candidate by an agent other than his election agent, as per
the ground under Section 100(1)(d)(ii) of the RP Act. The definite case is only of Section 100(1)(b) of the RP Act.
I do not think it necessary to deal with the aspect of oral evidence since the main allegation of corrupt practice is
of publication of Exhibit-P1- leaflet apart from other evidence based on CDs. Since there is no reliable evidence to
reach the irresistible inference that Exhibit-P1-leaflet was published with the consent of the first respondent or his
election agent, the election cannot be set aside on the ground of corrupt practice under Section 123(4) of the RP
Act.
CIVIL APPELLATE JURISDICTION
133
