Kerala High Court dismisses election petition challenging Jose K Mani's election as MP from Kottayam

The Kerala High Court on Tuesday dismissed an election petition filed by an independent candidate Noble Mathew backed by the National Democratic Alliance (NDA) who unsuccessfully contested the Lok Sabha elections from Kottayam constituency of Kerala, challenging the election of his opponent Jose K Mani of the Kerala Congress (Mani) party from the said constituency. 

It was alleged by the petitioner that while attending election meetings in areas where opponents to high speed railway project had exhorted for boycotting the election, the Chief Minister had told the gatherings that the project has been dropped. Advertisements to this effect were also given, the petitioner had pointed out while alleging that is it is a corrupt practice. 

Further, the petitioner had alleged that the statements to influence the voters were made by the chief minister with the knowledge and support of Jose K Mani's main poll agent Thomas Chazhikkadan and agents Mons Joseph and Tomy Kallani.

Opposing this, Mr. Jose K Mani through his counsel contended that while it was possible to clearly know who the candidate's agent was, the petition refers to more than one agent. Moreover, the petition fails to say that the chief minister made the statement on the influence or enticement of the candidate, the counsel argued.

 

Jose K Mani, MP from Kottayam constituency

Justice B Kemal Pasha dismissing the election petition filed by Noble Mathew held that the allegation raised against four persons, including the Chief Minister to the effect that they acted as agents of Jose K Mani is unclear. 

The Court held that the petitioner has not been able to produce documents to substantiate that the Chief Minister's statement was made due to the influence exerted by the candidate or his agent. 

Further, the argument that the statement was made with the knowledge of more than one agent cannot be accepted as it is not legally permissible to have more than one agent, the Court said. 

“When there cannot be more than one election agent at the election, it cannot be said that one of the election agents has committed corrupt practice. The submission on the alleged corrupt practice is vague and not specific. Hence the election petition is liable to be weeded out at the threshold itself as not maintainable in the eye of law,” observed Justice Kemal pasha while dismissing the election petition filed by Noble Mathew.

Restrictions imposed on new construction or modification of existing building as per town planning scheme not violative of the constitutional right to property : High Court of Kerala

Restrictions imposed on new construction or modification of existing building as per town planning scheme cannot be said to be violative of the citizens' constitutional right to property, said the High Court of Kerala in a recent judgment.

The Court was considering a case where building permit was denied for a commercial building in an area that was specified as an industrial zone in the detailed town planning scheme. The single judge had held that imposing restriction on the right of the land owners to put their land to beneficial use is violative of their right to property. The single Judge had allowed the writ petition filed by the petitioner, one Jacob Vaidyan of Mynagappally in Kollam district by holding that categorization of the land in question as industrial zone is arbitrary, unreasonable and hence unenforceable.

Disagreeing with the reasoning of the Single Judge, a Division Bench of the High Court, considering an appeal filed by the Kollam Corporation held thus:  "The observation of the learned single judge that putting restriction on the right of the petitioner to put their land to beneficial use is violative of their right to property, does not commend on us. The right to property under Article 300A is in no manner effected by the development plan or the scheme nor any such challenge is made in the writ petition."

The Division Bench observed in its judgment that development plan and the scheme regulating the use of any property can in no manner be said to be irrational or arbitrary. Town planning, in the present day, is becoming more and more necessary for orderly living and sanitation. Thus, regulation of construction in a municipal area/area covered by scheme cannot be said to be interference of any right of an owner under Article 300A, the Division Bench said.

"We thus also do not approve the observation made by the learned single judge that the regulation of right of petitioner to beneficial use of their property is deprivation of their right. The scheme which is sanctioned under Section 12 (of Town Planning Act) or any other detailed development scheme which has a statutory flavour is binding both on the corporation as well as the petitioners who seek sanction of his building plan," said the Bench while allowing the appeal filed by the Kollam Corporation.

Rehabilitating the victim is as important as punishing the accused, says the Supreme Court while lamenting the failure of the courts in awarding compensation to the victims in terms of Section 357(1) Cr.P.C

Lamenting the failure of the courts in awarding compensation to the victims in terms of Section 357(1) CrPC, the Supreme Court of India in a recent judgment (Manohar Singh v. State of Rajasthan and others) has emphasised that rehabilitating the victim is as important as punishing the accused. The Court also highlighted the need to compensate the victim in criminal cases, which, it said is integral to just sentencing. 

 

The Apex Court has highlighted the need to compensate the victim in criminal cases, which it said, is integral to just sentencing

“Order of sentence in a criminal case needs due application of mind. The Court has to give attention not only to the nature of crime, prescribed sentence, mitigating and aggravating circumstances to strike just balance in needs of society and fairness to the accused, but also to keep in mind the need to give justice to the victim of crime. In spite of legislative changes and decisions of this Court, this aspect at times escapes attention. Rehabilitating victim is as important as punishing the accused. Victim’s plight cannot be ignored even when a crime goes unpunished for want of adequate evidence,” said a Bench of the Apex Court consisting of Justice T.S. Thakur and Justice Adarsh Kumar Goel, while hearing an appeal preferred against the order of acquittal passed by the High Court of Rajasthan at Jaipur.

The case involved as many as 13 accused who were tried on the allegations that they assaulted and caused injuries to PW-5- Manohar Singh, appellant, Devi Singh PW-4, Maan Singh PW-11 and Karan Singh PW-1 on 29th October, 1980 at around 2 P.M. with a view to disturb the possession of the complainant party on the agricultural land in question.  The trial Court convicted the accused including respondent Nos.2 to 11 and one Mool Singh, son of Jaswant Singh who died during pendency of the proceedings. The Sessions Court had set aside the conviction of the accused for offences other than the one under Section 323 IPC but maintained the conviction under Section 323 IPC. The sentence of imprisonment imposed by the trial Court was also set aside and the accused were granted probation subject to fine of Rs.5,000/- which was to be paid to the victim. The injured PWs, namely, Karan Singh, Devi Singh and Maan Singh entered into the compromise and compounded the offence qua them but the appellant filed a revision in the High Court which was dismissed.

The appellant before the Apex Court contended that the Court of Sessions erred in setting aside the conviction for offences other than Section 323 and also erred in granting benefit of probation. The fine imposed was not adequate and having regard to number of injuries and their nature, adequate compensation ought to have been granted. The appellant received as many as 10 injuries including an incised wound in the parietal region by sharp edged weapon, a muscle deep injury on the front of left leg and a bone deep injury just above the front of left leg. “Even if technically, the injury could be held to be simple instead of grievous, the sentence should have been adequate and in any case, due compensation ought to have been granted,” contended the counsel for the appellant.

The Apex Court, taking into account the fact that 35 years had passed since the date of occurrence said that “while it may not be appropriate to impose the sentence of imprisonment at this stage, having regard to the nature and extent of injuries, the appellant-complainant deserves to be duly compensated.” It was in this context that the above observations on the need to compensate the victim were made by the Court.

Elucidating on the various aspects to be considered by the Court in the matter of compensating the victim, the Bench said: “Just compensation to the victim has to be fixed having regard to the medical and other expenses, pain and suffering, loss of earning and other relevant factors. While punishment to the accused is one aspect, determination of just compensation to the victim is the other. At times, evidence is not available in this regard. Some guess work in such a situation is inevitable. Compensation is payable under Section 357 and 357-A. While under section 357, financial capacity of the accused has to be kept in mind, Section 357-A under which compensation comes out of State funds, has to be invoked to make up the requirement of just compensation.”

The Apex Court also referred to several decisions on the subject including State of Gujarat and anr. vs. Hon’ble High Court of Gujarat, (1998) 7 SCC 392 , Ankush Shivaji Gaikwad vs. State of Maharashtra, (2013) 6 SCC 770, Hari Singh v. Sukhbir Singh [(1988) 4 SCC 551 : 1998 SCC (Cri) 984] , Sarwan Singh v. State of Punjab [(1978) 4 SCC 111 : 1978 SCC (Cri) 549], Balraj v. State of U.P [(1994) 4 SCC 29 : 1994 SCC (Cri) 823], Baldev Singh v. State of Punjab [(1995) 6 SCC 593 : 1995 SCC (Cri) 1132], and Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. [(2007) 6 SCC 528 : (2007) 3 SCC (Cri) 209] to highlight the fact that the Supreme Court had recommended to all courts to exercise the power available under Section 357 CrPC liberally so as to meet the ends of justice.

The Apex Court also referred to its decision in State of A.P. v. Polamala Raju [(2000) 7 SCC 75 : 2000 SCC (Cri) 1284] wherein it had set aside the judgment of the High Court for non-application of mind to the question of sentencing and held “..it is an obligation of the sentencing court to consider all relevant facts and circumstances bearing on the question of sentence and impose a sentence commensurate with the gravity of the offence…

 ..while the award or refusal of compensation in a particular case may be within the court’s discretion, there exists a mandatory duty on the court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order under Section 357 CrPC would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family.” 

The Apex Court, in the light of the precedents on the point, thereafter proceeded to set aside the fine of Rs. 5,000/- and directed the surviving respondents (accused) to pay the appellant a sum of Rs.50,000/- as compensation under Section 357(3) within two months, and in default to undergo rigorous imprisonment for three months.