- (1.) Leave granted in S.L.P. (C) No. 15350/2003. This appeal under Section 116-A of the Representation of the People Act, 1951, arises out of a judgment and order dated 29th October, 2002 passed by the High Court of Kerala at Ernakulam in Election Petition No. 7 of 2001 whereby and whereunder the election petition filed by the appellant herein was dismissed. FACTUAL BACKGROUND :
(2.) The parties herein contested the election from 123 Kundara Legislative Assembly Constituency. The respondent got 50,875 votes, whereas the appellant obtained 46,408 votes. The respondent was declared to be elected by the returning officer of the said Constituency on 13th May, 2001. The appellant in his Election Petition inter alia contended that the respondent had taken recourse to "corrupt practices" within the meaning of Section 123 of the Representation of the People Act, 1951 insofar as a pamphlet was brought out with an intent to promote feelings of enmity and hatred amongst the voters belonging to Ezhava caste and communal feelings, which was raised thereby, became a major factor resulting in the spirit of votes of the people of the said community. The appellant contended that had such pamphlet being not printed and published, the votes of these aforementioned community would have gone mainly in his favour. The said publication, the appellant urged, was made by Sh. K. C. Marydasan, an agent of the first respondent amounting to a corrupt practice within the meaning of Section 123(3A) of the Act, particularly having regard to the fact that the contents thereof are false and made with the full knowledge that they were untrue. It was further alleged that the photographs of the petitioner was published in a bi-weekly publication by name 'Palco Crime Magazine' wherein an article was published making allegation that the appellant might be responsible for the murder of one Thankama, a cashew factory worker and the said Thankama had been upbringing a child aged 11 years as its fostered mother, who was very likely the illegitimate child of the appellant. It was alleged that the said publication was also made at the instance of the first respondent herein with a view to defame the appellant and the same was distributed by Shri Vellimon Vijayanandan, UDF Convenor, Perinad Madalam in Kundara Constituency, segment of the constituency in question. ISSUES :
(3.) In the light of the pleadings of the parties, the High Court inter alia framed the following issues : "2. Whether K. C. Marydasana and Vellimon Vijayanandan referred to in paras 3 and 5 of the E.P. were acting as agents of the Ist respondent when they acted as alleged in the said paras 3. Whether the publication of Annexures II and IV were made by K. C. Marydasan with the full knowledge and consent of the Ist respondent 4. Whether the publication of Annexures II and IV amounts to corrupt practice for the purpose of Sections 123(3A) and 123(4) read with Section 100(1)(d)(ii) of the R.P. Act 5. Whether, the publication of Annexures II and IV were made by the agent and workers of the first respondent with the knowledge and belief of themselves and of the first respondent that the contents thereof were false and untrue and with intent to prejudice the prospects of the petitioner's election -;