13 March 1970
Supreme Court


Case number: Appeal (civil) 1738 of 1969






DATE OF JUDGMENT: 13/03/1970


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



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



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



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



             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



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



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



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



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



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;



             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



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



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



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



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



    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.



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



             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



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