- (1.)These two appeals are directed against a common judgment of the High Court of Kerala at Ernakulum dated 02.12.2011 passed in Election Petition No.1 of 2011 and I.A. No. 3 of 2011. By the impugned judgment, the High Court, while allowing I.A. No. 3 of 2011 simultaneously dismissed Election Petition No.1 of 2011 filed by the Appellant challenging the successful election of the First Respondent to 062 Kunnamkulam Constituency in the general election held on 13.04.2011, as a candidate of Communist Party of India (Marxist) (hereinafter called "CPI (M)"), which is a constituent of the Left Democratic Front (hereinafter called "LDF"). Such a decision of the Election Petition was at the threshold under Sections 83(1) and 86 of the Representation of the People Act, 1951 (hereinafter called "the Act") read with Rule 11 of Order 7 of Code of Civil Procedure, 1908.
(2.)The brief facts which are required to be stated are that the Appellant was a candidate of the Communist Marxist Party (hereinafter called "CMP"), which was a constituent of United Democratic Front (hereinafter called "UDF"). The Second Respondent was also a candidate in the said election along with Respondent Nos.3 to 5. The First Respondent secured 58,244 votes whereas the Appellant secured 57,763 votes. The Second Respondent, who was an independent candidate, secured 860 votes. According to the Appellant, the Second Respondent whose name is identical to that of the Appellant was maliciously set up by the First Respondent to contest the election and in that process indulged in various corrupt practices, namely, inducing the Second Respondent by offering bribe, issued a pamphlet which was marked as Annexure IV in the High Court in the name of the Second Respondent deceptively which attracted Section 123(1)(A) and (4) of the Act and consequently his election was liable to be set aside. One other allegation of the Appellant raised in the Election Petition was that the First Respondent was convicted in two criminal cases, namely, Sessions Case No.4 of 1975 (Crime No.136/1974 of Pattambi Police Station) for offences under Sections 143, 148, 323, 324 and 302 read with 149, IPC for murdering one Syed Ali, an S.F.I. activist and that the First Respondent was the second accused in Crime No.463/1994 of Kunnamkulam Police Station where again he was convicted by the Judicial First Class Magistrate, Kunnamkulam in CC No.167/1995 along with other accused and was sentenced to undergo two years rigorous imprisonment apart from a fine of Rs.2000/- for the offences under Sections 143, 147, 148, 151, 332, 353 and 427 and 149, IPC and Section 3(2)(r) of the Prevention of Destruction to Public Properties Act. It is the contention of the Appellant in the Election Petition that the First Respondent concealed the above convictions in his nomination which was a deliberate suppression and in violation of Section 33A(1) of the Act. It is based on the above three substantive grounds, the Appellant challenged the successful election of the First Respondent in Election Petition No.1 of 2011.
(3.)As far as the allegations against the First Respondent were concerned, the allegation relating to the issue of bribery falling under Section 123(1)(A) was levelled in paragraphs 4, 5, 6 and 9 of the Election Petition. The allegation relating to the issuance of pamphlets attracting Section 123(4) of the Act was made in paragraphs 11, 12, 13, 14 and 15 of the Election Petition. The allegation relating to the criminal conviction and its suppression was raised in paragraph 7 of the Election Petition.