Full Judgment Text
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PETITIONER:
D. P. MISHRA
Vs.
RESPONDENT:
KAMAL NARAYAN SHARMA AND ANR.
DATE OF JUDGMENT:
13/03/1970
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
HEGDE, K.S.
GROVER, A.N.
CITATION:
1970 AIR 1477 1971 SCR (1) 8
1970 SCC (2) 369
CITATOR INFO :
RF 1972 SC 608 (9)
R 1974 SC 480 (14)
R 1975 SC 290 (47)
D 1975 SC1417 (31)
RF 1991 SC1557 (18)
ACT:
Representation of the People Act, 1951--Corrupt
Practice-S. 123(b)--Incurring of expenses beyond permissible
limit--S. 123(4)--False statements about rival candidate
held proved but benefit of doubt given by High Court--Duty
of High Court to come to judicial conclusion S. 99--Duty to
name person proved guilty of corrupt practice-S. 116A-
--Appeal to High Court--Limitation--Limitation Act ss. 4 and
12 applicability of Limitation Act, Article 116--"Under the
Code of Civil Procedure", meaning--Amendment of petition--S.
90(5)--Application to amend adding to the particulars of
expenditure--If new plea of corrupt practice.
HEADNOTE:
The first respondent challenged the appellant’s election on
the ground that he had committed various corrupt practices
at the election held in June, 1963. The Election Tribunal
negatived the allegations of corrupt practices and dismissed
the petition. The High Court allowed an appeal under S.
116A of the Representation of the People Act, 1951 and
declared the appellant’s election void under s. 100(1) (b)
of the Act. The Court held it was proved that the appellant
had incurred or authorised expenditure in excess of the
permissible limit in s. 77 of the Act, and he was,
therefore, guilty of a corrupt practice within the meaning
of s. 123(6).
The order of the election Tribunal was delivered on December
28, 1966. The certified copy of the order was supplied to
the respondent on April 27, 1967. The High Court was closed
for the summer recess between May 7, 1967, and June 29, 1967
and the memorandum of appeal was lodged in the office of the
Registrar of the High Court on July 1, 1967.
During the examination of one of the witnesses before the
Tribunal it appeared from the statements made by him that
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the appellant had spent a large amount of money for
purchasing cloth for banners used for the purpose of
elections, and that amount was not disclosed in the state-
ment of expenditure. The respondent applied to the Tribunal
to amend the petition, but the Tribunal rejected the
applications. In the appeal before the High Court the
respondent repeated his request for leave to amend the
petition. The High Court granted the application observing
that the application was merely intended to amplify the
particulars of the corrupt practice which had already been
alleged in the election petition.
In respect of an allegation of a corrupt practice under s.
123(4) the High Court had held that it was proved that S.
who was the agent of the appellant printed and published
statements of facts which were false in relation to the
personal character and conduct of the respondent and that
the appellant did not believe any of them to be true; and
those statements were reasonably calculated to prejudice the
election prospects of the respondent. The High Court
observed that S might have in his own enthusiasm published
the false statements and, therefore, the Court gave the
"benefit of doubt" to the appellant "with much hesitation".
The High Court also rejected an application made at the
hearing that a proceeding should be drawn under s. 99 of the
Act against S and a notice should be issued to him to show
cause why he should not be named as having committed corrupt
practice under s. 123(4) of the Act.
In appeal to this Court it was contended : (i) the appeal to
the High Court was barred by limitation and the High Court
had no power
9
to entertain and decide the appeal; (ii) the High Court was
not justified in allowing the particulars of the corrupt
practices set up in the petition to be modified and to allow
the petition to be amended at the stage of the hearing of
the appeal or in recording evidence in support of the fresh
corrupt practices so set up; and (iii) that the evidence did
not justify the finding that any corrupt practice was
committed by the appellant as found by the High Court.
HELD : (i) The right to appeal against the order of a
Tribunal is conferred by s. 116A of the Act. The ’Act
provides a special period of limitation different from the
period of limitation prescribed by article 116 of the
Limitation Act, 1963, for an appeal to the High Court under
the Code of Civil Procedure from any decree or order. But
the expression ,,under the Code of Civil Procedure" in
article 116 of the Limitation Act 1963 means an appeal
governed by the Code of Civil Procedure, and by s. 1 1 6 (A)
(2) of the Representation of the People Act the procedure
with respect to an appeal from an order of the Tribunal. By
virtue of s. 29(2) of Limitation Act, s. 4 and 12 thereof
apply and if the appeal is filed on the date on which the
court reopens after the recess it will be regarded as within
time if the period of limitation after taking into account
the time of obtaining a certified copy had expired during
the course of the recess. There is no provision in the
Repesentation of the Peoples Act, which excludes application
of s. 4 of the Limitation Act. Therefore, the appeal filed
by the respondent before the High Court must in law be deem-
ed to be filed within the period of limitation. prescribed
by s. 116(A)(3) of the Act. [12D, 13A]
Vidyacharan Shukla v. Khubchand Baghel & Ors. [1964] 6
S.C.R. 129, referred to.
(ii) The High Court was right in granting the amendment.
Under Cl. (5) of s. 90 the Tribunal had no power to allow
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any amendment of the petition so as to supply or introduce
particulars of a corrupt practice not alleged in the
petition: But the particulars of a corrupt practice alleged
in the petition may in appropriate cases be permitted to be
introduced by amendment. By adding to the particulars of
expenditure incurred which obviously could not be within the
knowledge of the election petitioner, new plea of corrupt
practice was set up by the respondent. The particulars were
of the election expenses. By seeking to amend the petition
the respondent did not add a new ground of corrupt practice
not disclosed in the petition. He only furnished
particulars of the corrupt practice already set out in the
petition. [18 B-E]
(iii) The High Court was right in holding that it was proved
that the appellant had spent an amount which exceeded the
amount permissible under s. 77 of the Act and the appellant
having incurred or authorised expenditure in contravention
of s. 77 was guilty of the corrupt practice under Section
123(6) of the Act, and that the election of the appellant
was, therefore, void under Section 110 (b) of the Act. [27H]
(iv) In respect of the corrupt practice under s. 123(4) the
High Court first held that the appellant had consented to
the publication of the statements in the three annexures and
then proceeded somewhat inconsistently to give the "benefit
of doubt" to, the appellant "with much hesitation". The
method adopted by the High Court cannot be endorsed. In an
election petition a corrupt practice may be proved only by
evidence which establishes the case beyond reasonable doubt.
But, in giving the benefit of doubt the court has to reach a
judicial conclusion, it cannot vacillate. [1 5 H]
Under s. 99 of the Act, the court has no discretion in the
matter if the court is of the view that any person who is
proved at the trial to have
10
been guilty of any corrupt practice, not to name that
person. The duty under the Act is cast upon the court or
Tribunal and on the ground that a party to the petition has
not applied for a notice, the High Court cannot avoid the
obligation imposed by statute to take proceedings under s.
99 against the person proved at the trial to have been
guilty of corrupt practice and to name him. [The court
remanded the proceedings directing the High Court to give
notice to ’S’ under s. 99 of the Act]. [29 G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1738 of
1969.
Appeal by special leave from the judgment and order dated
March 12, 1969 of the Madhya Pradesh High Court in First
Appeal No. 49 of 1967.
A. K. Sen, S. N. Mishra, S. K. Mukherjee, A. T. M. Sampat,
S. R. Agarwal and E. C. Agarwala, for the appellant.
M. C. Chagla, Rameshwar Nath, for the interveners.
The Judgment of the Court was delivered by
Shah, J.-At an election held in June 1963 for electing a
member from the Kasdol Constituency in the State of Madhya
Pradesh, D. P. Mishra who stood as a candidate on "the
Congress ticket" was declared elected. The rival candidate
Kamal Narayan Sharma filed a petition for setting aside the
election of Mishra on the grounds that the latter had
committed corrupt practices at the election in that he
offered to bribe Sharma, by offering through his agent Dr.
Ausaf Hussain to pay Sharma a sum of Rs. 50,0001 as
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inducement for withdrawing from the contest and thereby com-
mitted a corrupt practice defined in S. 123 (1) of the
Representation of the People Act, 1951; that Mishra
published on April 12, 1963, April 26, 1963 and May 4, 1963
in a Hindi newspaper "Mahakoshal" edited, published ’and
printed by Shyamacharan Shukla (who was engaged an
authorised agent by Mishra to conduct election campaign on
his behalf) statements of facts which were false and which
they believed to be false or did not believe to be true, in
relation to the personal character and conduct of Sharma and
in relation to Sharma’s candidature, such statements being
reasonably calculated to prejudice the prospects of Sharma’s
election and there by committed corrupt practice defined’ in
S. 123(4) of the Representation of the People Act, 1951;
that Mishra through his agents and workers hired or procured
on payment or otherwise motor-vehicles and bullock-carts for
conveying electors to the polling stations in the
constituency and thereby committed a corrupt practice,
defined in S. 123 (5 ) of the Representation of the People
Act, 1951; and that he incurred and authorised, in
contravention of S. 77 of the Representation of the People
Act, 1951, expenditure in excess of the amount prescribed,
and thereby
11
Committed a corrupt practice as defined in s. 123 (6) of the
Representation of the People Act, 1951. Mishra denied the
allegations in support of the plea of corrupt practices
alleged to be committed by him. The Election Tribunal
negatived the allegations of corrupt practices and by order
dated December 28, 1966 dismissed the petition.
In an appeal under s. II 6A of the Representation of the
People Act, 1951, against the order passed by the Tribunal,
the High Court of Madhya Pradesh set aside the order and
declared that the election of Mishra "was void under s.
100(1) (b) of the Representation of the People Act, 1951,"
for, it was proved that Mishra had incurred or authorised
expenditure of an amount of Rs. 7,249-72 which was in excess
of the permissible limit, and the expenditure being in
contravention of s. 77 of the Act, Mishra was guilty of a
corrupt practice at the election within the meaning of s.
123 (6) of the Act. Against the order passed by the High
Court, this appeal has been preferred With special. leave.
Counsel for Mishra contended that-( 1 ),she appeal to the
High Court was barred by the law of limitation and
accordingly the High, Court had no power to entertain and
decide the appeal; (2) the High Court was not justified in
allowing the particulars of the corrupt practices set up in
the petition to be modified and to allow the petition to be
amended at the stage of the hearing of the appeal and in
recording evidence in support of the fresh corrupt practices
so set up; and (3) that the evidence does not justify the
finding that any corrupt practice was committed by Mishra as
found by the High Court.
The judgment of the Election Tribunal was delivered on
December 28, 1966. A certified copy of the judgment of the
Tribunal was supplied to the appellant Sharma on April 27,
1967. The High Court was closed for the summer recess
between May 7, 1967 and June 30, 1967 and the memorandum of
appeal was lodged in the office of the Registrar of the High
Court on July 1, 1967. Section 116A of the Representation
of the People Act, as it then stood, provided, insofar as it
is relevant :
"(1) An appeal shall lie from every order made
by a Tribunal under section 98 or section 99
to the High Court of the State in which the
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Tribunal is situated.
(2) The High Court shall, subject to the
provisions of this Act, have the same powers,
jurisdiction and authority, and follow the
same procedure, with respect ,to an appeal
under this Chapter as if the appeal were ,an
appeal from an original decree passed by a
civil court
12
.lm15
situated within the local limits of its civil appellate
jurisdiction :
Provided that where the High Court consists of more than two
judges every appeal under this Chapter shall be heard by a
bench of not less than two judges.
(3) Every appeal under this Chapter shall be preferred
within a period of thirty days from the date. of the order
of the Tribunal under section 98 or section 99:
Provided that the High Court may entertain an appeal after
the expiry of the said period of thirty days if it is
satisfied that the appellant had sufficient cause for not
preferring the appeal within such period.
The right to appeal against the order of a Tribunal is
conferred by S. 116A of the Act. The Act provides a special
period of limitation different from the period of limitation
prescribed by Art. 116 of the Limitation Act, 1963, for an
appeal to the High Court under the Code of Civil Procedure
from any decree or order. But the expression "under the
Code of Civil Procedure" in Art. 116 a the Limitation Act
means an appeal governed by the Code of Civil Procedure, and
by s. 116A (2) the procedure with respect to an appeal from
an order of the Tribunal. By virtue of s. 29 (2) of the,
Limitation Act, ss. 4 & 12 thereof apply and if the appeal
is filed on the date on which the Court re-opens after the
recess it will be regarded as within time if the period of
limitation, after taking into account the time requisite for
obtaining a certified copy, had expired during the course of
the recess.
Section 29 of the Limitation Act, 1963, by sub-s. (2)
provides:
"Where any special or local law prescribes for
any suit, appeal or application a period of
limitation different from the period
prescribed by the Schedule, the provisions of
section 3 shall apply as if such period were
the period prescribed by the Schedule and for
the purpose of determining any period of
limitation prescribed for any suit, appeal or
application by any special or local law, the
provisions contained in sections 4 to 24
(inclusive) shall apply only in so far as, and
to the extent to which, they are not expressly
excluded by such special or local law."
Computing the time taken for supplying the certified copies,
the period of limitation expired during the summer recess,
and the
13
memorandum of appeal was lodged in Court on July 1, 1967.
There is no provision in the Representation of the People
Act, 1951, which excludes the application of s. 4 of the
Limitation Act.
In Vidyacharan Shukla v. Khubchand Baghel & Ors.(1) thus
Court held that the exclusion of time provided by s. 12 of
the Limitation Act, 1908, is permissible in computing the
period of limitation for filing an appeal in the High Court
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under the Representation of the People Act, 1951. The Court
in that case was interpreting s. 29(2) of the Limitation
Act, 1908. It was held that in the absence of any express
provision to the contrary in the special statute, the
provisions of the Indian Limitation Act, 1908, contained in
s. 4 and ss. 9 to 18 & 22 shall apply to the extent to which
they were not expressly excluded by any special or local
law.
The appeal filed by Sharma must in law be deemed to be filed
within the period of limitation prescribed by s. 116A (3) of
the Representation of the People Act, 1951.
We are also unable to agree with the learned counsel for
Mishra that the High Court erred in allowing the amendment
of the petition.’ In paragraphs of the petition as
originally filed it was averred :
"(a) The respondent (1)-(D. P. Mishra)-
incurred and authorised expenditure in
contravention of s. 77 of the Representation
of the People Act, 1951, and thereby committed
the corrupt practice as defined under s.
123(6) of the Representation of the People
Act, 1951.
(b) (i) The respondent (1)-(D. P. Mishra)-in
his election expenses has given a return of
expenses totalling upto about Rs. 6,300/-. He
has deliberately not shown many items of
expenditure incurred or authorised by him in
connection with his election which if included
would make the total expenditure much beyond
the permissible limits."
In cls. (b) (ii), (b) (iii), (b) (iv), (b) (v), (b) (vi),
(b) (vii), (b) (viii), (b) (ix), (c) (i), (c) (ii), (c)
(iii), (c) (iv) and (c) (v) of paragraphs were set out
various items of expenditure which, it was claimed, were
incurred or authorised by Mishra in connection with his
election.
The petition was allowed to be amended by order of the High
Court on May 4, 1968, and certain particulars of expenditure
(1) [1964] 6 S.C.R. 129.
14
incurred by Mishra were incorporated in the petition. The
circumstances in which the High Court permitted the
amendment may be set out. On November 30. 1965, one Bhaskar
Kathote was examined before the Tribunal as a witness for
Sharma and from the statements made ’by him it appeared that
Mishra had spent a large amount of money for purchasing
cloth for banners used for the purpose of elections, and
that amount was not disclosed in the statement of
expenditure. An application to amend the petition by
incorporating the particulars was made on December 1, 1965
before the Tribunal. The Tribunal rejected the application
on the ground that it "was very much belated".
On December 6, 1965, Sharma submitted another application
before the Tribunal for amendment of the petition alleging,
inter alia, that on March 25, 1963, Mishra had paid into the
office of the Madhya Pradesh Congress Committee Rs. 700/- in
connection with his election, by paying Rs. 200/- as
application fee and deposit amount of Rs. 500/-, and that
this item of expenditure was liable to be included in the
return of election expenses filed by Mishra with the
Returning Officer under s. 78 of the Representation of the
People Act, 1951, and if that item be included the total
expenditure incurred by Mishra exceeded the maximum amount
of expenditure permitted for an Assembly Constituency in
Madhya Pradesh under r. 90(2) of the Conduct of Election
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Rules, 1961; and on that account there was contravention of
sub-s. (3) of s. 77 of the Representation of the People Act,
1951, and a corrupt practice falling within the terms of s.
123 (6) of the Act. The Tribunal rejected that application.
In the view of the Tribunal the introduction of allegations
made in the application if introduced would amount to adding
fresh instances of corrupt practices falling within s.
123(6) of the Representation of the People Act, and that in
any event the application for amendment was "not only very
much belated but the circumstances in which it was made led
to an inference that it was also mala fide."
In appeal before the High Court Sharma by his application
dated April 28, 1968, repeated his request for leave to
amend the petition in the manner set out in his application
dated December 1, 1965 and December 6, 1965. The High Court
granted the application observing that the application was
merely intended to amplify the particulars of the corrupt
practices which had already been made in the election
petition and that items (d) to (i) were not new items of
expenditure, but they were sought to be introduced to show
that Mishra had incurred and authorised expenditure in
excess of the permissible limit of Rs. 7,000/- In the view
of the High Court since the material was already on the
record it would be unjust to ignore it on the ground of
omission of the
15
details in the petition, and that delay ’by itself was no
ground for refusing leave to supply particulars.
Additional issues were then raised, and statements of
Ramnarayana Purohit and Mishra were thereafter recorded.
The High, Court held on a review of the evidence that an
attempt was made but without the consent of Mishra to bribe
Sharma by offering him Rs. 50,000/- consideration for his
withdrawal from the contest; that it was proved that
Shyamacharan Shukla, Parmanand Patel, Laxmishankar Bhate,
Basant Kumar Tiwari, Chakrapani Shukla, Wasudeo Chandrakar,
Bhaskar Singh, Rohini Kumar Bajpai, Jaideo Satpati and N. N.
Seel were the agents of Mishra that it was proved that
electors were conveyed to some of the polling stations in
motor-vehicles but it was not proved that any vehicle was
hired or procured for this purpose with Mishra’s consent;
that it was proved that Mahakoshal, a Hindi Daily, published
from Raipur, and Shyamacharan Shukla who was the proprietor,
publisher, printer and keeper of the Press, were the agents
of Mishra within the meaning of s. 123 of the Act; that it
was proved that three statements (Annexures 1, 11 & III)
were published in the ’Mahakoshal" issues of April 12, April
26 and May 4, 1963, in relation to the personal character
and conduct of Sharma, that all the statements were false,
and that Mishra did not believe any of them to be true and
those statements were reasonably calculated to prejudice the
election prospects of Sharma, but in the view of the High
Court Mishra had incurred or authorized expenditure within
the meaning of s. 77 of the Act which totalled Rs. 7,249-72,
and since the amount exceeded the permissible limit, Mishra
was guilty of corrupt practice under s. 123(6) of the Act.
The High Court, however, declined to issue a notice to
Shyamacharan Shukla under s. 99 of the Act calling upon him
to show cause why he should not be named for committing
corrupt practices as defined in s. 123(4) of the Act.
The arguments in this appeal are restricted to the corrupt
practice which the High Court found Mishra had committed by
incurring expenditure in excess of the permissible limit of
Rs. 7,000/-for the Assembly Constituency.
We may observe that in the course of their judgment the
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learned Judges of the High Court recorded their conclusion
that acts which would amount to corrupt practices, were in
fact committed, but it was not proved that those acts were
done with the consent of Mishra. In respect of the corrupt
practice under s. 123(4), the High Court first held that
Mishra had consented to the publication of the statements in
the three annexures; and then proceeded some-
16
what inconsistently to "give the benefit of doubt" to
Mishra. In the course of the judgment, the High Court
observed :
"The statements, annexures 1, 11 and III
appeared in the Mahakoshal. Shyamacharan
Shukla was its editor. A$ will be seen the
Mahakoshal and Shyamacharan Shukla were both
agents of the respondent within the meaning of
the election law."
Thereafter in paragraph-83 of the judgment the High Court
observed that direct evidence of consent can rarely be
expected and in the absence of direct evidence, the question
of consent has to be determined in the light of
circumstantial evidence each case being decided on its own
facts. The Court then proceeded to set out the
considerations which would guide the Court in dealing with
the question whether the false statements published in the
newspaper supporting the candidature of the publishing
candidate was with his consent and recapitulated the
evidence in support of the ,case in relation to the three
statements-Annexures 1, 11 & 111. After referring to the
admission made by Mishra that Shyamacharan Shukla had worked
for him, and the evidence that Shyamacharan Shukla was
personally associated with Mishra in his campaign and had
extensively toured with Mishra, the High Court recorded its
finding in paragraph-96 :
"In ultimate analysis, the question of consent
is one of fact and it is to be decided in each
case on its facts ,and circumstances.
Circumstances in their entirety have to be
kept in view. It is the overall picture of
the case which presents itself, and not
isolated facts, which will guide the Court to
reach the conclusion. In the present case,
the cumulative effect of the respondent’s
closeness with the Mahakoshal and personal
association with Shyamacharan Shukla for days
together and the setting in which the false
statements were published one after another,
and the respondent not contradicting nor dis-
sociating himself from them would have
persuaded us to hold that these false
statements (Annexures 1, II and 111) were
published with the consent of the respondent."
The Court then observed that the second editor may have in
his ,own enthusiasm published those false statements and
therefore they gave the "benefit of doubt" to Mishra, with
"much hesitation".
We are unable to endorse the method adopted by the High
Court. If we had disagreed with the view of the High Court
on the finding relating to the perpetrating corrupt practice
by Mishra falling under s. 123 (6) of the Representation of
the People Act, 1951, it might have been necessary for us to
consider this question more
17
fully. In an election petition a corrupt practice may be
proved only by evidence which establishes the case beyond
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reasonable doubt. But in giving the benefit of doubt the
Court has to reach a judicial conclusion : it cannot
vacillate. The High Court has pointed out that there was
strong and clear evidence justifying the, conclusion that
Mishra had consented to those publications. In our
judgment, there was on the finding so recorded little scope
for the High Court to give Mishra "the benefit of doubt".
We may now consider the questions whether the High Court was
right in allowing the amendment of the petition, and whether
the evidence establishes that corrupt practice within the
meaning of s. 123 (6) read with s. 77 of the Act was
committed by Mishra. In our judgment, the High Court was
right in granting the amendment. In paragraph-7 cls. (a)
and (b) (i) of the election petition as originally filed
Sharma averred that Mishra bad incurred and authorised
expenditure exceeding the permissible limit of Rs. 7,000/-
fixed under the rules framed under the Representation of the
People Act, 1951. Mishra in his statement of election ex-
penses had disclosed that he had spent Rs, 6,324-14. By
adding to the particulars of expenditure incurred which
obviously could not be within the knowledge of the election
petitioner, no ,,new plea of corrupt practice was set up by
Sharma. The particulars were of the election expenses. By
seeking to amend the petition Sharma did not add new grounds
of corrupt practice not disclosed in the petition : he only
furnished particulars of the corrupt practice already set
out in paragraph 7(a) and 7 (b) (i) of the petition.
Section 83 (1) (b),of the Representation of the People Act,
1951, as it stood in 1963, provided :
"(1) An election petition-
(b) shall set forth full particulars of any
corrupt practice that the petitioner alleges,
including as full a statement as possible of
the names of the parties alleged to have
committed such corrupt practice and the date
and place of the commission of each such
practice
By s. 90(5) it was provided :
"The Tribunal may, upon such terms as to costs
and otherwise as it may deem fit, allow the
particulars of any corrupt practice alleged in
the petition to be amended or amplified in
such manner as may in its opinion be necessary
for ensuring a fair and effective trial of the
petition, but shall not allow any amendment of
the petition which will have the effect of
introducing particulars
18
Of a corrupt practice not previously alleged
in the Petition."
The words of cl. (5) of S. 90 are clear. The Tribunal had
no power to allow any amendment of the petition so as to
supply or introduce particulars of a corrupt practice not
alleged in the petition. But the particulars of the corrupt
practice alleged in the petition may in appropriate cases be
permitted to be introduced by amendment. In the present
case by the amendment-particulars of the corrupt practice
set out in paragraph-7 cls. (a) and (b) (i) previously
alleged in the petition were introduced, and not particulars
of a corrupt practice not previously set up in the petition.
Sharma obviously could not have knowledge or information
about the matters which from their very nature were within
the special knowledge of Mishra. As soon as he came to
learn about the additional particulars of the corrupt
practice he applied to the Tribunal for leave to amend the
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petition. The Tribunal rejected the first application for
amendment on the ground that there was delay in filing the
application, and the second application on the ground that
it was delayed and was also mala fide. We do not think the
Tribunal was right in holding that there was undue delay
which would justify rejection of the application for amend-
ment, and there are no circumstances from which it may be
inferred that the application dated December 6, 1965 was
mala fide. _ We hold that the High Court was right in
allowing the amendments to be made.
Mr. Sen appearing on behalf of Mishra contended that in
allowing an application for amendment five years after the
date on which the original petition was filed and allowing
evidence to be recorded, the High Court has gravely erred.
But Sharma did make an application for amendment during the
trial of proceeding before the Tribunal. The Tribunal was,
in our judgment, in grave error in rejecting the
application. It was not the fault of Sharma that evidence
of the particulars could not be recorded at an earlier
stage. The oral evidence as recorded on behalf of Sharma
was only formal, and only explanatory of the evidence
already on the record.
The evidence relating to the incurring or authorizing of
expenditure in respect of the items held proved by the High
Court falls under two heads: Rs. 700/- paid to the Madhya
Pradesh Congress Committee, Bhopal, on March 25, 1963, for
standing on the "Congress ticket"; and Rs. 510-25 on April
13, 1963, spent for purchasing cloth for preparing banners.
Section 77 of the Act, as it then stood,
provided
"(1) Every candidate at an, election shall,
either by himself or by his election agent,
keep a separate and
19
correct account of all expenditure in
connection with the election incurred or
authorised by him or by his election agent
between the date of publication of the
notification calling the election and the date
of declaration of the result thereo
f. both
dates inclusive.
(2) The account shall contain such
particulars, as may be prescribed.
(3) The total of the said expenditure shall
not exceed such amount as may be prescribed."
Section 78 of the Act provided :
"Every contesting candidate at an election
shall, within thirty days from the date of
election of the returned candidate or, if
there are more than one returned candidate at
the election and the dates of their elections
are different, the later of those two dates,
lodge with the returning officer an account of
his election expenses which shall be a true
copy of the account kept by him or by his
election agent under section 77."
Section 100 (1) (b) provided :
"Subject to the provisions of sub-section (2),
if the Tribunal is of opinion-
(b) that any corrupt practice has ’been
committed by a returned candidate or his
election agent or by any other person with the
consent of the returned candidate or his
election agent;
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the Tribunal shall declare the election of’
the returned candidate to be void."
Under cl. (6) of s. 123 the incurring or authorising of
expenditure in contravention of s. 77 was a corrupt
practice.
Rule 131 framed under the Representation of the People Act,,
1951, then in force, provided
"(1) The account of election expenses to be
kept by a candid-ate or his election agent
under section 77 shall captain the following
particulars in respect of each item of
expenditure from day to day, namely :-
(a) the date on which the expenditure was
incurred or authorized.
(b) the nature of the expenditure (as for
example travelling, postage or printing and
the like);
20
(c) the amount of the expenditure-
(i) the amount paid;
(ii) the amount outstanding;
(d) the date of payment;
(e) the name and address of the payee;
(f) the serial number of vouchers, in case of
amount paid;
(g) the serial number of bills, if any, in
case of amount outstanding;
(h) the name and address of the persons to
whom the amount outstanding is payable.
(2) A voucher shall be obtained for every item
of expenditure unless from the nature of the
case, such as postage, travel by rail and the
like, it is not practicable to obtain a
voucher.
(3) All vouchers shall be lodged along with
the account of election expenses, arranged
according to the date of payment and serially
numbered by the candidate or his election
agent and such serial numbers shall be entered
in the account under item (f), of sub-rule
(1).
(4).............................."
Mishra did not produce any account required to be maintained
under S. 77 of the Act: he merely relied upon the statement
headed "Account of election expenses-Election to Legislative
Assembly Constituency, Kasdol" filed under s. 78 of the Act.
This statement showed in respect of different items the date
of incurring expenditure, nature of expenditure, the date of
payment, amount outstanding, date of vouchers, name and
address of payee if paid, serial number of voucher, serial
number of bill, and the name and address of the person to
whom outstanding. The Act requires the candidate at an
election to keep a correct account of all expenditure.
Section 78 enjoins a duty upon the candidate to file a true
copy of the account kept by him.
It appears from Ext. A-1, Receipt No. 113, issued by the
Madhya Pradesh Congress Committee, Bhopal that on March 25,
1963, Mishra paid Rs. 700/- to the Madhya Pradesh Congress
Committee, Bhopal. The Permanent Secretary of the Congress
Committee acknowledged receipt of the amount of Rs. 700/-
from Mishra in connection with the bye-election to the State
Legislative Assembly from Kasdol Constituency. Out of that
amount Rs. 200/- were appropriated as application fee, and
Rs. 500/-
21
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for deposit. ’This amount was however not included in the
statement filed under s. 78 of the Act.
Mr. Sen contended that the payment was not liable to be dis-
closed in the statement of account filed by Mishra under s.
78 of the Act because it was incurred not by him, but by one
Parmanand Patel without the knowledge and consent of Mishra,
and that in any event the amount was not paid within the
period prescribed by S. 77 of the Representation of the
People Act, 1951. Counsel also contended that out of the
amount deposited, Rs. 500/- being. " refundable" to the
person depositing it, it was never treated as appropriated
by the Madhya Pradesh Congress Committee.
Exhibit A-2 are the Rules of the Madhya Pradesh Congress
Committee, which have a bearing on the contentions raised by
counsel. The Rules prescribe the procedure for selection of
Congress candidates approved by the Working Committee. Rule
8 deals with the observance of discipline and under the head
"Application or Declaration of Consent", it is provided,
insofar as it is material :
"1. A person may offer himself as a candidate
for election to the Parliament or the State
Legislature by filling up the prescribed
Application Form or his name may be proposed
by some one else but in all cases, each name
shall have to be recommended by five members
of the concerned D.C.C...........
The person concerned shall have to declare
that he agrees to stand and shall have to fill
up the Consent Form.
2. Along with the application, the intending
candidate shall contribute Rs. 200/- only.
This amount will not be refunded.
5. In addition to the application money, each
person concerned shall have to deposit Rs.
500/- in the case of State Legislature.....
7. Deposits, in all cases will be earmarked
for the constituencies of the persons
concerned. In case he is not selected, the
deposit will be refunded."
Appended to these Rules is the form of application and
declaration of consent.
Rs. 700/- were paid into the office of the Congress
Committee, on March 25, 1963. Notice of election was
published on March 27, 1963. The High Court has held that
Rs. 200/- out of Rs. 700/-being application money must be
deemed to have been expended on March 25, 1963, and cannot
be regarded as expenditure within the period prescribed by
S. 77. The High Court further held that
22
the amount of Rs. 500/- which was made as deposit was
treated on April 1, 1963, as the money belonging to the
Madhya Pradesh Congress Committee over which the person
depositing had no interest,
in Receipt No. 113 dated March 25, 1963, it is stated that
the amount was received from Mishra "through Ram Krishna
Shrivas". Mishra in his statement admitted that he knew the
procedure or applying for the "Congress ticket", but he
claimed that he had not approached the District Congress
Committee to give him the "Congress ticket", since he was
"absolutely certain" that the High Command of the Congress
wanted him and would give him a ticket; that on March 30 or
31, 1963 he was called by the Congress President and was
told that he had been granted the "Congress ticket" by the
Parliamentary Board to contest the bye-election from Kasdol
Constituency; and that thereafter he declared himself to be
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a candidate. He denied that he had authorised Parmanand
Patel to pay into the office of the Congress Committee Rs.
700/- as application fee and deposit money. He also denied
that he had any information regarding payment of the amount.
According to Mishra, it was for the first time in November
or December 1965 that he came to learn on enquiry from
Parmanand Patel that the latter had deposited the money with
the Congress Committee.
Mishra however failed to produce his books of account. He
stated that one Laxmishankar was in charge of the election
office at Kasdol and that Laxmishankar maintained the
accounts of his election expenses. He further stated that
whenever he gave money to Laxmishankar the latter had
entered the money in his accounts. Even these accounts have
not been produced on the pretext that Laxmishankar had only
given him the vouchers and the accounts were contained only
in loose "sheets of paper under different heads". Even those
sheets of paper were not produced.The Rules of the Congress
Committee required that a candidate desiring to stand for
election to the State Assembly on the "Congress ticket"
shall pay an application fee of Rs. 200/- and deposit of Rs.
5001/-. Mishra was cognizant of those Rules, but he says
that the local ad hoc Committee was inmical to him and that
he was at the relevant time in Delhi and it was the
President of the Congress who informed him that his
candidature was accepted by the Parliamentary Board and that
he was’ permitted to, contest the bye-election from the
Kasdol Constituency. However, Ramnarayan Purohit says that
the Ad hoc Committee which was in charge of the election
affairs in Madhya Pradesh considered the names of Mishra and
one Kanhaiyalal for the "Congress ticket" in the bye-
’election and after taking votes it was found that Mishra
received nine votes and Kanhaiyalal received eleven votes,
23
and thereafter the Ad hoc Committee sent both the names to
the Central Parliamentary Board with the recommendation that
the candidature of Kanhaiyalal be approved. This meeting,
it was said, was held on March 26, 1963. It is true that
Ramnarayan Purohit has stated that Ramkrishna Shrivas at the
time of paying the amount of Rs. 700/- did not hand over any
application of Mishra. We are unable to accept that an
application-as required by the Rules was not submitted, and
still the name of Mishra was considered by the Congress
Committee. If the amount of Rs. 700/- was only tendered
without an application, Ramnarayan would have enquired why
the application was not submitted. The counter-foil of the
receipt maintained in the Madhya Pradesh, Congress Committee
for Rs. 700/- showed that the amount was received from
Mishra, that in all the books of account maintained in the
Madhya Pradesh Congress Committee the amount was also
entered as paid by Mishra and the bare denial of Mishra that
he had not paid Rs. 700/- cannot be accepted as correct.
The application has apparently been withheld. The
application could be denied, but not the receipt of money,
for they had gone into the accounts.
Even assuming the at there was no application, if it, be
believed that Rs. 700/- were paid by Mishra it could only be
subject to the, terms and conditions of the rules of the
Congress Committee. It is pertinent to note that Mishra has
admitted that the Ad hoc Congress Committee did not approve
of his candidature. He said that on coming to know of it he
went to Delhi and he was informed by the Congress President
that the Parliamentary Board had accepted his candidature.
If his candidature was considered by the Ad hoc Congress
Committee, he must have been put to an enquiry as to how the
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Congress Committee could consider his name without any
application and without any deposit as required by the
Rules. Mishra was a member of the Congress Party for a
longtime : he was once a Chief Minister and leader of the
Congress party in the Assembly. He was familiar with the
rules of the Congress Committee as he had "secured the
Congress ticket" previously on several occasions. It was
the case of Mishra that the amount had been paid by
Parmanand Patel. Parmanand Patel was actively working for
Mishra during the course of the election. Mishra had
informed the High Court that he desired to examine Parmanand
Patel, but he ultimately did not examine him. We agree with
the High Court that even if the ad hoc Congress Committee
was not favourable to the candidature of Mishra it was
unlikely that he would anticipate the decision and would
very imprudently not even comply with the requirement
relating to the deposit of Rs. 700/- With the Madhya Pradesh
Congress Committee and there by "give a handle to the ad hoc
Committee not to consider his name’. It is reasonable to
infer in-
24
the circumstances that Mishra tried to secure the
recommendation of the Ad hoc Congress Committee and for that
purpose he deposited the money required by the Rules,
notwithstanding any apprehension he may have felt that the
Congress Committee may decide against him, and when he found
that the local Committee had decided against him, he
approached the Parliamentary Board and secured their
approval to his candidature. We are therefore, of the view,
having regard to all the circumstances, that the amount of
Rs. 700/- was deposited by Mishra through his agent on March
25, 1963, and ’his denial that the amount was deposited by
him is untrue.
Under s. 77 of the Representation of the People Act, 1951, a
separate and correct account of all expenditure in
connection with the election incurred or authorised by a
candidate or by his election agent between the date of
publication of the notification calling the election and the
date of declaration of the result thereof has to be kept by
the candidate. The date of notification for calling the
election was March 27, 1963 and the amount of Rs. 700/-was
paid on March 25, 1963. Relying upon this circumstance that
the amount of Rs. 700/- was deposited on March 25, 1963, it
was contended that even if it be deemed to have been paid
by. Mishra, the expenditure did not fall within the period
prescribed by S. 77 of the Act and was on that account not
liable to be included in the statement of expenditure
incurred in connection with the election. But Rs. 500/- out
of Rs. 700/- were intended to be for deposit : they could,
under the relevant rules, be allocated only after the
candidate was approved. The meeting of the Ad hoc Congress
Committee was held on March 26, 1963, and Mishra’s name was
turned down. The Parliamentary Board, however, approved his
candidature on March 30 or 31, 1963. It was only after the
ticket was given to Mishra that the amount of Rs. 500/-may
be deemed to be appropriated under the rules. If his candi-
dature was not approved, the amount of Rs. 500/- was under
the rules liable to be refunded : if the candidature was
approved it was not liable to be refunded, and it would be
used for the constituency. The amount of Rs. 500/-
deposited by Mishra must therefore, be deemed to have been
appropriated on April 1, 1963 by the Madhya Pradesh Congress
Committee and was incurred within the period prescribed by
s. 77 of the Act.
It was urged, however, that granting that under the Rules
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the amount of Rs. 500/- paid under Receipt No. 113 dated
March 25, 1963, was not refundable, it was still treated by
the Congress Committee in its accounts. as refundable.
Reliance in this connection was placed upon’ Ext. A-9 which
catalogued the amounts received from different candidates
and included the name of Mishra from whom an amount of Rs.
500/- was received as deposit.
25
Reliance was also placed upon Ext. A-6 & 7 the balance-
sheet of the Madhya Pradesh Congress Committee, Bhopal,
dated December 27, 1963. Under the head "Liabilities" in
the balance-sheet an amount of Rs. 25,075/- is shown as
election deposit from candidates. It was urged that the
amount of Rs. 500/- which was included in the total amount
of Rs. 25,075/- was treated even in December 1963 as lying
in deposit and not appropriated to the account of the Madhya
Pradesh Congress Committee. This argument cannot be
accepted. Exhibit A-9 on which reliance was placed is
merely a list of the amounts received. The balancesheet was
tendered in evidence, but the auditors were not examined.
Again a balance-sheet is, only a statement of the sources
from which the money has been received. ’No rational
explanation has been even furnished why the Committee did
not appropriate the amount to the Congress Committee funds.
In our judgment, the High Court was right in holding that
the amount of Rs. 500/- paid by Mishra was "expenditure
incurred" on April 1, 1963, and was liable to be included in
the statement, of expenditure incurred for the purpose of
the election.
The other item relates to Rs. 510-25 for purchasing cloth
for use in preparing banners for election propaganda. In
the return of election expenses under the entry dated April
27, 1963, an amount of Rs. 370/- is shown as paid to
Bhartiya Chitra Mandir for "painting charges", being,
Voucher No. 39. An amount of Rs. 200/- was also shown as
paid on April 18, 1963, to the same firm under Voucher No.
28, as "advance against painting charges". Voucher No. 28
dated April 18, 1963, expressly recites that the amount was
received from B. K. Tiwari Reading Voucher Nos. 28 & 39 and
the entries made in the return of election expenses together
it appears that it was the claim of Mishra that Rs. 430/--
were spent for cloth and painting charges at the rate of Rs.
5/- for ninety-six banners. Bhaskar Kathote of the Bhartiya
Chitra. Mandir was examined as a witness on behalf of
Sharma. He said that he had charged Rs. 5/- per banner for
painting only, and cloth was supplied to him by Mishra. The
witness said that he was paid Rs. 200/- as advance on April
18, 1963, when the order was placed with him and the balance
of Rs. 370/- was paid to him on April 27, 1963 by Basant
Kumar Tiwari. He also stated that he had handed over the
receipt for that amount to Basant Kumar Tiwari and also the
voucher for Rs. 370/-. According to this witness the
banners supplied were of three sizes-(i) 18’ X 3’; (ii) 12’
X 2 1/4; and (iii) 9’ X 2 1/4’. Of these, 40 banners were
of type (i); 20 banners of type (ii), and 42 banners of type
(iii), and that he was supplied 375 yards of cloth for the
banners. The witness produced for scrutiny before the
Tribunal his cash book and the ledger for the year 1963-64
and he pointed out the entries from April 18, 1963 to April
27, 1963 which showed that L11Sup.Cl/70-3
26
only 9 yards of crop was purchased by him for Rs. 12-37 on
April 18, 1963. In Voucher No. 39 the entries are as
follows :
"96 cloth banners painting including
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cost of cloth @ 5.00 ch. ....430-00
10 Boards of 6" X 4’’ each....@ 6.00 .... 60-00
Stitching charges. ....20-00
Framing charges. ...10-00
... 570-00
Advance ...200-00
Balance. ...370-00
Bhaskar Kathote explained that he was asked to give a
voucher containing the words ,including cost of cloth ",
even though the cloth was supplied to him by Mishra This
statement is-supported by a carbon copy of the bill dated
April 27, 1963 Ext. P-160. This carbon copy is in a bound
book, leaves of which bear numbers in serial order and dates
in chronological sequence. The book is, in our judgment, a
reliable piece of evidence. In Bill No. 3006 dated April
27, 1963 cloth is not mentioned. In that Bill Bhaskar
Kathote only charged for painting. The witness has deposed
that,the carbon copy of Bill No. 3 006 is in his handwriting
and is signed by him. The entries in the bill show that 96
banners Rs. 5/- each and 10 boards @ Rs. 6/- each, stitching
charges Rs. 20/- and framing charges Rs. 10/-, total Rs.
570/-, less Rs. 200/-, balance Rs. 370/-. On the left hand
margin at the top the words "including cost of cloth have
been written. This entry is made in pencil it supports, the
case of, Bhaskar Kathote that he had written’ the words
including cost of cloth" at the instance of B. K. Tiwari
when he was asked to supply a voucher. The fact that in
Voucher. No. 39 the entry was for "96 cloth banners
painting including cost of cloth @ Rs. 5.00 each", it would
be impossible to believe that on April 27, 1963 a
businessman could have supplied 96 banners "duly painted" by
him at the, rate of Rs. 5/- per banner including the cost of
cloth. Kathote has deposed that on April 22, 1963, he had
supplied banners "painted" by him at, the rate of Rs. 5/ to
another customer. He produced a carbon copy in respect of
that bill showing that he had charges that customer only for
painting the banners and not for cloth. it may be noticed
that at an average 4 yards of cloth was needed for each
banner. Even the cheapest cloth used for banners would cost
more than a rupee per yard : no reason has been suggested
why Kathote should be willing to charge merely Rs. 5/- for
cloth and "painting charges" inclusive, whereas he had
charged other customers at the rate of Rs. 5/- for "painting
only". There is not much doubt, having regard to the
evidence of the witnesses examined in the case, that the
banners displayed at the time of election in support of
Mishra’s cndidature were 18 feet long approximately.
27
The testimony of Keshrichand a wholesale dealer in cloth may
be considered at this stage. The witness stated that Basant
Kumar Tiwari had purchased from his shop at Raipur coarse
cloth about the time of the election and Tiwari had paid the
price in cash. The witness produced a cash memo for Rs.
510-25 dated April 13, 1963, for supplying 370 metres of
cloth which was made out in the name of B. K. Tiwari. The
witness stated that the cloth was taken by Tiwari at the
time of the mid-term poll in 1967, and that Tiwari had told
him that he Tiwari was "taking the cloth for the election of
Mishra". The witness was examined in considerable detail,
but nothing was elicited which throws any doubt on the truth
of his statement. The High Court was impressed by the
testimony of this witness. There is considerable evidence
onthe record to show that B. K. Tiwari was the agent of
Mishra.It appears that even the return of election
expenses along withthe vouchers was filed by B. K. Tiwari.
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Mr. Sen urged that B.K. Tiwari was acting for and on
behalf of several candidates, andhe may have purchased the
cloth for some other candidate. But the testimony of
Keshrichand and the quantity of cloth utilised for "painting
the banners" leave no room for doubt that the cloth was
utilised for painting banners to be utilized in the election
campaign of Mishra.
We agree with the High Court that Mishra had spent Rs. 510-
25 and that he has not disclosed it in the return of his
election expenses. There is no reason to believe that B. K.
Tiwari incurred the expenditure on behalf of Mishra but did
not charge it to Mishra. Tiwari though he was present in
Court during the time when Keshrichand was examined was not
put in the witness box. Having regard to the circumstances
that Mishra has not chosen to produce his accounts from
which the statement of election expenses under s. 78 was
filed and having failed to show the sources of the large
quantity of cloth for "painting" the banners, we are
satisfied that the cloth purchased by B. K. Tiwari from
Keshrichand’s shop was utilised for the purpose of painting
the banners.
With regard to two other items of Rs. 108-74 and Rs. 96/-
respectively for the price of two bags of rice paid to
Annapurna Rice Mills and cost of cards and letter papers
paid to Mahakoshal Press, no argument has been advanced
before us,
The High Court was of the view that on taking proper
accounts of the expenditure incurred and allowing certain
items which were included in the statement of account but
which were not liable to be included, it was proved that
Mishra had spent an amount of Rs. 7,249-72 which exceeded
the amount permissible under s. 77 of the Act, and Mishra
having incurred or authorized expenditure in contravention
of s. 77 of the Act he was guilty of a corrupt prac-
28
tice under S. 123 (6) of the Act and the election of Mishra
was clearly void under S. 1 00 ( 1 ) (b) of the Act. We
agree with the opinion of the High Court.
It is however necessary, before we finally decided this
appeal, to deal with the application which is made by the
respondents who were on their own application impleaded in
this appeal. Mr. Chagla counsel for those respondents
contends that the Court was bound to name Shyamacharan
Shukla, printer, publisher, proprietor and keeper of
Mahakoshal Pressa Hindi daily-under S. 99 of the
Representation of the People Act, 1951. Section 99(1) of
the Act, as it then stood, provided :
"(1) At the time of making an order under
section 98 the Tribunal shall also make an
order-
(a) where any charge is made in the petition
of any corrupt practice having been committed
at the election, recording-
(i) a finding whether any corrupt practice has
or has not been proved to have been committed
by, or with the consent of, any candidate or
his agent at the election, and the nature of
that corrupt practice. and
(ii) the names of all persons, if any, who
have. been proved at the trial to have been
guilty of any corrupt practice and the nature
of that practice; and
(b)................................
Provided that a person who is not a party to
the petition shall not be named in the order
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under sub-clause,(ii)of clause (a) unless-
(a) he has been given notice to appear before
the Tribunal and to show cause why he should
not be so named; and
(b) if he appears in pursuance of the notice
he has been given an opportunity of cross-
examining any witness who has already been
examined by the Tribunal and has given
evidence against him, of calling evidence in
his defence and of being heard."
The High Court recorded in paragraph 199 (4) & (5) of their
judgment their conclusion as follows :
"(4) It is proved that the Mahakoshal a Hindi daily,
published from Raipur, and Shyamacharan Shukla,
29
who was its proprietor, publisher, printer and
keeper of the Press, were both agents of the
respondent within the meaning of section 123
of the Act.
(5) It is proved that three false statements
(Annexures 1, 11, 111) were published in the
Mahakoshal, issues of the 12th and 26th April
and 4th May, 1963, in relation to-the personal
character and conduct of the petitioner; that
all the three were false; and that the respon-
dent did not believe any of them to be true.
It is held that they were statements of the
fact and that they were reasonably calculated
to prejudice the election prospects of the
petitioner.
At the hearing an application was made before the High Court
that a proceeding should be drawn up under S. 99 of the Act
against Shyamacharan, Shukla and a notice should be issued
to him why he should not be named as having committed
corrupt practice under s. 123 (4) of the Act. The High
Court observed that the three statements (Annexures I, II &
III) were published in the Mahakoshal of which Shyamacharan
Shukla was the proprietor, publisher, printer and keeper.
The High Court further observed that Shyamacharan Shukla was
the agent of Mishra within the meaning of s. 123 (4) but
Shyamacharan Shukla was not and could not be made a party to
the election petition. But the High Court was of the view
that when the appeal was placed for hearing in April 1968,
Mishra had raised certain preliminary objections and Sharma
had also urged those preliminary contentions all of which
were decided by the order dated May 4, 1968, and it was the,
duty of Sharma on that occasion to satisfy the High Court,
prima facie, that Shyamacharan Shukla had committed a
corrupt practice under S. 123 (4) of the Act so that notice
could be issued to him ’and opportunity to which he was
entitled under S. 99 of the Act may have been made available
to him. But that was not done and in the opinion of the
Court for avoiding further delay the application should be
rejected.
We are unable to agree with the view so propounded by the
High Court. Under s. 99 of the Act the Court has no
discretion in the matter, if the Court was of the view that
any person who is proved at the trial to have been guilty of
any corrupt practice, not to name that person. It is true
that preliminary objections were argued at an earlier stage,
but Sharma could not before the appeal was heard ask the
Court to issue a notice under S. 99 of the Act on the
footing that his case which was rejected by the Tribunal
will be accepted. The duty under the Act is cast upon the
Court or the Tribunal, and on the ground that the party has
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not applied
30
for a notice, the High Court could not avoid the obligation
imposed by statute to take proceeding under s., 99, against
the person proved at the trial to have been guilty of
corrupt practice and to name him. We fail also to
appreciate the ground on which the High Court has referred
to delay been an "outweighing factor". Shyamacharan Shukla
was however not a party to the proceeding and before he
could be named a notice must go to him under S. 99 of the
Act.
We direct that, the proceeding be remanded to the High Court
and the High Court do give notice to Shyamacharan Shukla
under s. 99 of the Representation of the People Act, 1951 to
appear and to show cause why he should not be named for
committing corrupt practices. If Shyamacharan Shukla
appears in pursuance of the show cause notice he will be
entitled to an opportunity of crossexamining witnesses who
have already been examined by the Tribunal and has given
evidence against him and he will be entitled to give
evidence in his defence and of being heard. The High Court
to report to this Court within three months from the date on
which the papers are received by it. Stay of operation of
tax order of the High Court granted by this Court is
discharged.
R.K.P.S. Appeal dismissed and proceedings remanded.
31