MERCYKUTTY AMMA versus KADAVOOR SIVADASAN AND ANR.

Citation: [2003] SUPP. 5 S.C.R. 313 · Decided: 06-11-2003 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Disposed off

Judgment (excerpt)

MERCYKUTTY AMMA 
v. 
KADA VOOR SIV ADASAN AND ANR. 
NOVEMBER 6, 2003 
[V.N. KHARE, CJ. AND S.B. SINHA, J.] 
Election Laws : 
Representation of the People Act, 1951 : 
Section 123, 123(3A) and (4)-Corrupt practices-Election petition-
Allegation of publication of defamatory material by agent of the elected 
candidate-Held: Such allegations must be proved beyond reasonable doubt 
as in criminal trial-Election petitioner is required to plead and prove the 
consent of the elected candidate to the alleged corrupt practices-On facts, 
election petitioner could not prove that the person was the agent of the elected 
candidate and that the offending material was printed and published with the' 
consent and knowledge of the elected candidate-Hence, allegations of corrupt 
practices not made out-Order of High Court correct to the said effect. 
A 
B 
c 
D 
Section 99-Corrupt practices-Naming of persons not party to E 
proceedings-Mandatory requirement to be complied with-Held: Before a · 
person is named as having indulged in corrupt practice, he must be given 
notice and allowed to cross-examine the witnesses examined on ht-half of the 
parties to the petition. 
Appellant and Respondent contested the election from a Legislative p 
Assembly Constituency. Respondent was declared elected by the returning 
officer. Appellant filed election petition alleging that the respondent had 
committed "corrupt practices" within the meaning of Section 123 of the 
Representation of People Act, 1951. It was alleged that agent M of the 
respondent published defamatory material to prejudice the prospects of 
the appellant's election having full knowledge that they were untrue and G 
Convenor v· in the Constituency distributed the same. High Court 
dismissed the election petition holding that the appellant having not been 
able to prove consent of the first respondent as regards the publication of 
the pamphlet by M and V, the same did not meet the requirements of law 
313 • 
H 
314 
SUPREME COURT REPORTS (2003) SUPP. 5 S.C.R. 
A as no sufficient evidence was brought on records to show that any of them 
was authorised to act on behalf of the respondent. Howe\•er, High Court 
without issuing any notice to M, held that the proved circumstances fully 
justified beyond reasonable doubt that the pamphlet was brought out by 
M. Hence the present appeals. 
B 
Appellant contended that the High Court erred in holding that the 
appellant was unable to prove the corrupt practice on the part of the first 
respondent since he had pleaded and proved that M and V were agents 
of the first respondent; that for arriving at a conclusion as to whether the 
elected candidate had taken recourse to corrupt practices or not, it is not 
C necessary to prove that the publication in question was made by an election 
agent or polling agent or counting agent as it is sufficient to show that 
the same was made by a person who was otherwise an agent of the 
returned candidate; and that the consent of first respondent in relation 
to the said publication must be held to have been proved as the materials 
brought on record clearly show that the publications in question were sent 
D to the Election Commissioner for the purpose ofshowing that the election 
expenses incurred by the first respondent, which had been proved by PW-
18. 
Respondent contended that the appellant had not been able to 
establish any nexus between the material published and the list containing 
E details of pamphJets, posters and notices printed during the last general 
election by both the rival candidates; and that the manager of the Press, 
having denied that the pamphlet in question, was printed in his Press, the 
appellant cannot be said to have proved that the said matter was printed 
at the instance of the first respondent. 
F 
Disposing of the appeals, the Court 
HELD : 1. Appellant has not been able to prove that M was the agent 
of the first respondent; and that the offending material was printed and 
published with the knowledge and consent of the first respondent. 
Therefore, High Court was right in coming to its finding to the said effect. 
G 
[326-D-E) 
2.1. Allegations of corrupt practices are quasi-criminal charges and 
the proof that would be required in the support thereof would be as in a 
criminal charge. The charges of corrupt practices are to be equated with 
the criminal charges and proof thereof would be not preponderance of 
H probabilities as in civil action but proof beyond reasona

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