Kamal Narain vs D. P. Mishra and another

Shiv Dayal, J.

This is an appeal u/s 116-A of the Representation of the People Act, 1951, as it stood before the amendment of 1966 (hereinafter called "the Act"), from a decision of the Election Tribunal, Raipur.

After the general elections of 1962, the Casdol Legislative Assembly constituency was called upon to elect a person for the purpose of filling a vacancy in the Madhya Pradesh Legislative Assembly. The appellant (hereinafter also called "the petitioner") was a candidate set up by the Praja Socialist Party; Shri D. P. Mishra, respondent No. 1 (hereinafter called "the respondent") was the Congress Candidate; and one Purushottamdas was an independent candidate. Kanhaiyalal Mishra (respondent No. 2) had also filed his nomination paper as a Congress candidate, but he withdrew his candidature when the respondent''s nomination paper was accepted. Poll was taken on May 4, 1963. The appellant got 4611 votes; the respondent 11528 votes; and Purushottamdas 850. The respondent was declared elected.

By an election petition, the appellant challenged the election of the respondent on various charges of corrupt practice, which may be classified into four heads: (1) Bribery; (2) publication of false statements, (3) hiring or procuring of vehicles for conveyance of electors, and (4) incurring or authorising election expenses in excess of the prescribed limit The election petition was initially dealt with by Shri S. R Vyas, District Judge, Raipur, who constituted the Ejection Tribunal u/s 86 of the Act. From his decision on a preliminary point, the case went up to the Supreme Court and then came back to Raipur for trial on merits. Shri B. K. Choudhari was then specially appointed Election Tribunal for the trial of this election petition. This respondent contested the election petition. The learned Tribunal, by its order dated December 28, 1966, decided all the issues against the election petitioner and dismissed the petition. Aggrieved by that order, the election petitioner preferred this appeal on July 1, 1967.

The respondent raised two preliminary objections : (I) That the appeal was barred by time; and (2) that the appeal became infructuous as, in the meantime, the Assembly, to which the respondent had been returned, had been dissolved and fresh general elections had taken place in February 1967. Both "these preliminary objections were rejected by our order dated May 4, 1968 1970 M P L J 721.

By the same order of May 4, 1968, certain preliminary points raised by the appellant were also disposed of. It was held that the cross-examination of the respondent had been abruptly closed by the Tribunal; that the appellant''s applications for leave to amend the election petition had been wrongly rejected by the Tribunal; and that the Tribunal wrongly refused to admit in evidence three documents. We permitted one witness to be examined by the appellant to prove that the respondent had paid to the Congress Party Rs. 200 as application fee and Rs. 500 as deposit for being given a Congress ticket, Which expenses were not included in the respondent''s return of election expenses. By consent of the parties and as necessitated by the amendment of the election petition, we amended certain issues and framed a few additional issues. The appellant then examined Ramnarayan Purohit (P. W. 93). After that the respondent was recalled. He was further examined in-chief and then further cross-examined. The respondent was given a fresh opportunity to produce such further evidence as he chose to. He filed a list of the following witnesses:-

(1) Ghakrapani Shukla, resident of Baloda Bazar, District Raipur,

(2) Permanand Bhai Patel, Jabalpur,

(3) One Munim of Permanand Bhai Patel, Jabalpur, and

(4) Laxmi Shanker Bhatt, Jabalpur.

But eventually he abandoned them all, and did not examine any.

Then, on August 29, 1968, the appellant made an application for production of three more documents:

(i) A document purporting to be in the handwriting of and signed by Jaideo Satpati, about the expenditure of Rs. 516 not shown in the return of election expenses of the respondent, (ii) A document purporting to be in the handwriting of and signed by Maheshdutt Dube of Sagar, addressed to the respondent about procuring motor vehicles from Jabalpur and Sagar and showing the agency of Permanand Bhai Patel and also expenses of petrol. (iii) A telegram dated May 4, 1963, sent from Jabalpur by "Bidi-wala" (telegraphic address) to Parmanand Bhai Patel C/o Chakrapani Shukla, in order to prove the agency of Parmanand Bhai Patel and of Chakrapani Shukla, and also to prove that motor vehicles were procured by the respondent. Since this application was for production of additional evidence, by our order dated August 31, 1968, the application was kept in abeyance for being considered at the hearing of the appeal. If we allowed these documents to be produced, the appellant would have been further required to produce oral evidence to prove them. However, at the hearing of the appeal that application was not pressed and was impliedly abandoned.

In Jagjit Singh v. Kartar Singh AIR 1956 S C 773, it is held:-

The jurisdiction of the High Court in dealing with an election appeal u/s 116-A of the Act is very wide. It is open to the High Court to reappreciate the evidence and consider the propriety, correctness or legality of the findings recorded by the Tribunal in its order under appeal Naturally, as a Court of appeal, the High Court would not interfere with the findings of fact recorded by the tribunal, which are based merely on appreciation of oral evidence. But this is not to say that the High Court cannot so interfere, if it comes to the conclusion that impugned finding is erroneous and deserves to be reversed.

Let it be mentioned at the outset that Shri Kanhaiyalal Mishra, learned Advocate-General of Uttar Pradesh, who argued before us the respondent''s case, frankly told us that he would support the conclusions reached by the Tribunal, but would not adopt the reasons stated in its order. And, in fact he did not refer to any part of the Tribunal''s order in the course of his arguments.

Bribery

The appellant''s case is that one Dr. Ausaf Hussain of Sagar made an offer of R.S. 50,000 to him at Raipur, as an inducement to withdraw from the election. The appellant, as P. W. 5, states that on the morning of the April 6, 1963, Ausaf Hussain went to his residence at about 5-30 and asked his brothers, Chandra Prakash Sharma, and Vyasnarain Sharma who were studying in his office, to wake him up. When he came into his office and the boys were outside Ausaf Hussain first told him that he and the respondent are both brahmins, but the respondent alone could establish a Brahmin Raj.

*****

[After dealing with the evidence in paragraphs 9 to 17, the judgment proceeds-]

Besides, the attending circumstances do not support the allegation that that person approached the petitioner with the respondent''s consent. On the appellant''s own showing, he was a stranger not only to the petitioner but also to the place generally. Further, he had no notable status. It is almost impossible to believe that the respondent would fix his choice on such a person for such a huge sum as Rs. 50,000. It was not as if the respondent could not find any other person at Raipur for the job. It was not as if he was a person who could exert his influence upon the appellant. Thus, it must be held that the petitioner could not prove that Ausaf Hussain was an agent of the respondent, nor could he prove that Ausaf Hussain offered the bribe to or approached the petitioner. The question of consent of the respondent does not then arise. It seems that some irresponsible person, of his own accord, or at the instance of some other supporter of the respondent, may have approached the petitioner and may have recklessly and irresponsibly thrown out a feeler to assess the strength of the petitioner. No one saw the cash which he supposedly carried in his bag.

For these reasons it must be held as not proved that Dr, Auaaf Hussain offered a bribe to the petitioner with the consent of the respondent.

The appellant''s request that Dr. Ausaf Hussain should be named u/s 99 of the Act must also be consequently rejected at once.. Offer of bribe by a person who is not an agent of a candidate is not a corrupt practice within section 123(1) of the Act unless it is committed with the consent of the candidate.

Vehicles :-

The appellant''s contention is that the respondent and with his consent, his agents and workers, hired or procured on payment or otherwise, motor vehicles for conveying the electors to polling stations in the constituency and this committed the corrupt practice as defined in section 123(5) of the Act. He gave the following particulars:-

Vehicles

Polling Station

Voters

Jeep MPR 2401

Sarkhon No. 3

Voters of village Pandariya

Jeep No. MPR 5191

Bhalukona No. 20

Voters of village Nandi

Jeep No. BYJ 3902

Bhalukona No. 20

Voters of village Hardi

MPL 272

Barely No. 28

Voters of village Nargha and Darri

Jeep No. MPR 5166

Siriadih No. 15

Voters of village Lata

MPJ (I) 1636

Sinodha No. 14

Voters of village Deorikala

10 Bullock-Carts

Sel. No. 24

Voters of village Bhusada, Chandidih and Bhanwarid

MPR 183

Jeep MPL 1541

Jeep No. MPL 220

Amodi No. 25

Voters of Nawapara

Jeep APX 1593

Baloda No. 10

Voters of Semara and Baloda

BYJ 4749

Kadgi No. 12

Voters of village Sarwani, Lakhmmisati

MPL 1839

Amarua

47 voters of village Chandan

MPR 207 (Truck)

PAKRID No. 48

Voters of village Charoda

MPL 977

Pisid No. 33

Voters of village Charched

MHN 1170

Motia No. 26

Voters of Modowa, Turkindih and Kotiodih

The basic ingredients of the corrupt practice under sub-section (5) of section 123 of the Act, are (1) that any vehicle was hired or procured for the conveyance of voters; and (2) that such hiring or procurement was by the candidate himself or by his agent or any other person with his or his election agent''s consent. Thus, the main ingredient consists of hiring or procuring of the vehicle. An election petition must furnish the names of the persons who hired or procured and such other particulars as the petitioner can possibly do. It is necessary to prove that the hiring or procurement was for the specific purpose, that is for conveying the electors to or from any polling station. The actual user of the vehicle hired or procured for carrying electors, is not an ingredient of the corrupt practice under that sub-section. Evidence of such user is, therefore, not quite essential, except in so far as it has a considerable bearing on the question of the purpose of hiring or procurement.

Mere reproduction of the words of a section does not constitute a pleading. The election-petitioner is bound to set out in his petition the acto probanda that is, the facts on which he relies, though not facta probardia, that, is, the evidence or the facts by means of which they are to be proved. In the particulars supplied by the petitioner [para 6 (b) of the petition names of the "agents and workers" of the respondent, who hired or procured vehicles, were not specified. The particulars were, therefore, not sufficient to meet the requirement of the law. That being the position, the respondent ought to have moved the tribunal to strike out paragraph 6 (a) and (b). But this was not done. The tribunal framed issue No. 7 and the parties went to trial. The particulars being insufficient, the Tribunal ought to have adopted the following course: The petition could not be dismissed in limine. The Tribunal was bound to decide whether the petition was defective for want of particulars and if it so held, it should have given an opportunity \\o the petitioner to apply for leave to amend or amplify the particulars of the corrupt practice alleged. In the event of non-compliance with that order, the Tribunal could strike out the charge as being vague. It is an accepted rule that full particulars of a corrupt practice must be insisted upon as of paramount importance in the trial of an election petition. But, if the parties go to trial in spite of the absence of full particulars and evidence is led by them on the plea raised in the petition, the defect is one of procedure and not one of jurisdiction. In that situation, the Tribunal could adjudicate upon the plea even in the absence of particular The appellate Court would be justified in setting aside the judgment of the Tribunal if it is satisfied that material prejudice has resulted by reason of the absence of full particulars. But the appellate Court will give due weight to the omission on the part of the respondent to raise and press his objection about the absence of particulars before going to trial. See Balwansing v. hanetnmmrobt 22 E L R 273; In Bhikaji Keshao Joshi and Another Vs. Brijlal Nandlal Biyani and Others, , '', it was observed :-

There can be no reasonable doubt that the requirement of full particulars is one that has got to be complied with, sufficient fullness and clarification so as to enable the opposite party fairly to meet them and that they must be such as not to turn the enquiry before the Tribunal into a rabling and roving inquisition.

That case was distinguished in Bhagwan Datta Shastri Vs. Ram Ratanji Gupta and Others, where it was urged that in the absence of adequate particulars the Tribunal had no jurisdiction to admit evidence on the plea or to give a finding thereon. Their Lordships said-

"There can be no doubt that the requirement of full particulars is of paramount impprt-anee.in cases of this kind as in cases of the ordinary Courts based on allegations of fraud of undue influence. But unlike the one in the above decision of this Court relied upon, in which the question that arose was as to the validity of an order dismissing the entire ejection petition on the preliminary ground of absence of particulars, the question in (sic) different. This is a case where notwithstanding the absence of particulars, the evidence (sic) allowed to be given and taken. The question in such a case would not be one of absent of jurisdiction but as to whether there has been any material prejudice occasioned by the absence of particulars. It ii in that light that the validity of the objection raised by the appellant in this behalf before us has to be judged. It is, therefore, necessary to scrutinize the nature of the evidence on which this finding had been arrived at and to see whether the appellant had a fair opportunity of meeting it.

In the present case, an issue was framed and the parties went to trial. The petitioner led oral and documentary evidence in respect of each polling station. We shall, therefore, decide the issue on merits despite want of full particulars.

*****

[After dealing with the evidence on this -point in paragraph 24 the judgment proceeds-]

Their Lordships decision in Sheopat Singh Vs. Harish Chandra and Another, ], is not apposite to this case. There it was held that where a candidate after getting knowledge of the act of a corrupt practice on a polling day does not prohibit the repetition of similar acts on the following polling days, it is a reasonable inference to draw that all the acts were not haphazard but by design, and that the candidate must have consented to them.

It was argued that it was an error to infer consent from the mere fact that the appellant had knowledge of the acts. It was further argued that consent to an act implied that it was given before it was done, but knowledge of an act could only mean that it was after the act was done. Therefore, knowledge cannot in itself be equated with consent. Their Lordships said:

There would have been force in this argument, if all that was established was a stray act or even a number of them committed on one day. But here the acts were numerous and extended over a number of days...... From the above facts it is not an unreasonable inference to draw that all the above acts were committed not haphazard but by design and that applicant must have consented to them

In the present case, no material was placed before us to reach that conclusion. As regards the polling stations in group (d), Shri Munshi conceded that there is no evidence to show who hired or procured vehicles for conveying the electors to those polling stations.

A great deal of stress was laid by Shri Munshi on the purchase of a large quantity of petrol by the respondent on the May 3, 1963, when the poll was to be taken on the 4th May. It was argued that this large quantity of petrol could only be meant for consumption in motor vehicles which had been hired or procured for conveying electors to the polling stations. From the return of the respondent''s election expenses and from the books of account of Nawalchand Nathmal of Bhatapara, it was clear that on the 3rd May, that is, the day preceding the poll, 600 litres of petrol for Rs. 534 besides some motor oil and brake oil, were purchased by the respondent (per voucher No. 54, filed with the return). On the respondent''s own showing, he had only one motor vehicle (a jeep). It could not possibly consume 600 litres of petrol within two days. The appellant, therefore, pursuaded to hold that this petrol must have been used in motor vehicles which were hired or procured for conveying electors to the polling stations. Undoubtedly, this creates a very strong suspicion because from the Bhatapara petrol pump, this was the largest quantity of petrol purchased on any particular day by the respondent. But this suspicion is not enough to hold definitely that vehicles were hired or procured for the purpose of conveying electors to the polling stations.

. In Joah Bhai Ckunnibhai Patel v. Anwr Beg A. Mirzal, the Supreme Court has held that section 123(5) requires these things:-(I) Hiring or procuring of a vehicle, (2) by a candidate or his agent, etc., and (3) for the free conveyance of an elector. In addition to proving the hiring or procuring and the carriage of electors to and from the polling station, it must further be proved that the electors used the vehicle free of cost themselves. Their Lordships observed:

''In the instant case, the vehicles were procured, but there was no proof that there was free conveyance of the ladies in these vehicles. It is not impossible of proof because the owner of the car or the driver or the ladies could have been examined to show that the ladies have travelled free in the vehicles. Since this is not proved, the ingredients of the section have not been established

(See Supreme Court Notes of October 15, 1968, page 11. In the present case there is no such evidence,

Accordingly, it must be held as follows :-

(1) It is not proved that the respondent or respondent No. 2 hired or procured any vehicles for the purpose of conveying electors to any polling station, nor it is proved that either of them actually conveyed any voter of Pisid Polling Station, or any other polling station.

(2) It is proved that voters were conveyed in vehicle No. BYJ 4749 to the Polling Station Katanji, but it is not proved that it was Bhuwan Bhaskar Singh who had brought them.

(3) It is proved that Wasudeo Chandrakar and 2 male voters and 7 females and some children were seen together in a jeep between village Lata Siriadih Polling station, which jeep was proceeding towards the Polling Station, but it is not proved that the vehicle in which they were seen together was hired or procured by Wasudeo Chandrakar; nor is it proved that he had brought the voters from the village with the consent of the respondent.

(4) It is proved that voters were conveyed to polling station Amodi from Village Nawapara in vehicles No. MPR 183 and MPL 1541, but it is not proved that it was Rohini Kumar Bajpai who had brought them or that he had any connection with either of them.

(5) It is proved that 59 voters were conveyed in a truck No. MPR, 207 to Pikrid Polling Station but it is not proved that Munnalal Shukla or Jaideo Satpati had conveyed these electors or that they either hired or procured it.

(6) The petitioner could not prove that any vehicle was hired or procured with the respondent''s consent for the purpose of conveying electors.

Therefore, the contention must be rejected. FALSE STATEMENT

The appellant''s next contention is that three false statements (these will hereinafter be called Annexures 1, 2 and 3 as they were called all along during the course of the hearing) in relation to his personal conduct and character were published with the respondent''s consent in the Mahakoshal and they were calculated to prejudice his election prospects. The Mahakoshal a Hindi Daily, was published from Raipur and circulated in the constituency 7. Civil Appeal No. 799 of 1�68 decided on the 19th September 1968 (S. C). during the election period. Shyamacharan Shukla, an active supporter, worker and agent of the respondent, was its owner, printer, publisher and editor The offending statements were published in the Issues dated 12th April �6th April and 4th May, 1963. The appellant attaches much significance to these dates in pointing out the motive and the background with which each of them was published.

Annexure-1-In the issue of the 12th April, the following statement appeared in the Mahakoshal:-

''On the last date for withdrawal, the P S. P. candidate clearly stated that unless he was paid Ps. 15,000 for contesting the election, he would withdraw his candidature According to knowledgeable sources, the P. S. P. candidate fictitiously gave out that he bad already received two offers of Rs. 25,OCO and Rs. 50,000so that if the P. S. P. would 4wf pay him Rs. 15,000 he would withdraw after taking Rs 50,000 from the supporters'' of Miahra..............Thakur Niranjan Singh, the convenor of the P. S. P. election cgmpaigo, somewhat dull. He could not appreciate the Vakil''s bid of bargain and, eventually Thakur Saheb ''accepted the goods'' (agreed to pay) and gave him full authority to spend so that the needful be done.

This statement will hereinafter be called "Annexure 1". The petitioner is an Advocate and was the only P. S. P. candidate. The words "P.S.P. candidate" and "Vakil" in the above passage admittedly refer to him. According to the petitioner, the above statement was published for the purpose of conveying that the petitioner had been promised or had been paid Rs. 15,000 for contesting as a P. S. P. candidate and that the petitioner had bargained for it, by threatening to withdraw his candidature and further that he would stoop so low as to accept Rs. 50,000 from the supporters of his rival candidate in order to withdraw from the contest.

The petitioner says that this statement was published about him. He was the only P. S. P. candidate and the only Vakil (Advocate) contesting from the Kasdol constituency. He says that these allegations were false. It was false that he threatened to withdraw his candidature, if he was not paid Rs. 15,000, or that he would accept Rs. 50,000 from the supporters of the rival candidate. It was false that he fictitiously gave out that he had received offers of Rs. 25,000 and Rs. 50,000. It was also false that Thakur Niranjansingh either gave him or offered to give him Rs. 15,000 and authorised him to spend it. In short, every part of the statement ascribed to him was false. He says that he did not meet Thakur Niranjansingh during the entire election period, that is, between the date of the notification and the taking of poll.

Niranjansingh (P. W. 43) supports the petitioner and says that he did not meet the latter on any days between the 3rd April and the 4th May, and that there was no such talk between him and the petitioner as was reported in the news item (Annexure 1).

The statement (Annexure I) may conveniently be divided into four parte:-

(1) The petitioner, on the last date for withdrawal made a statement threatening to withdraw if he was not paid Rs. 15,000.

(2) The petitioner had made a false statement that he had received two offers of Rs. 25,000 and Rs. 50,000

(3) If the P. S. P. would not give the petitioner Rs. 15,000, he would withdraw, after accepting Rs. 50,000 from the supporters of his rival candidate.

(4) Eventually, Thakur Niranjan Singh agreed to pay and also authorised the petitioner to spend it.

The authorship of the first two parts is ascribed to the petitioner, while that of the fourth to the writer of the news item. The authorship of the third part is ambiguous. It may be construed as a statement by the petitioner; it may also be interpreted as an expression of opinion of the news reporter. It is proved by (he evidence of the petitioner that he never made the statements the authorship of which is attributed to him. The petitioner could only swear to prove a negative fact, and this he did. We do not find anything in his statement for which he should not be believed. No evidence was produced by the respondent to prove the truth of any of these statements. As will be seen while dealing with another point arising in connection with this alleged corrupt practice, the Mahakoshal actively supported the respondent''s candidature and carried on intensive propaganda for him. So also Shyamacharan Shukla was an active supporter of the respondent. The respondent did not produce any correspondent who was the author of the news item to prove the fourth part of the statement, which obviously emanated from him, and also to prove that the first two statements were actually made by the petitioner. In fact, truth was not pleaded in defence. The respondent admitted that there was no other Vakil or P. S. P. candidate at the election concerned. (Deposition dated 9-8-1968). It must, therefore, be held that the statement (Annexure I) related to the petitioner''s personal conduct and character and that it was false.

It was an argument before us that Annexure I cannot be said to be a statement of fact within the meaning of section 123(4) of the Act, but it is a mere expression of opinion. It is not possible to accept this argument in respect of the first part of the statement-the very opening words of the news item "HUA YE KI" (it so happened) incontestably express what actually happened, that is to say, that the petitioner actually made that statement. The making of a statement is a fact and the publication of that fact is a statement of fact which, if found to be false, is within the mischief of the section. The second part is also a statement of fact inasmuch as it tells the reader that a fictitious statement had been made by the petitioner to "knowledgeable sources". The fourth part of the statement is again a statement of fact that Niranjan Singh accepted the "goods" (meaning that he agreed to make payment to the petitioner and authorised him to spend it).

Sub-section (4) requires: (1) there was publication of any statement of fact by a candidate or with his consent; (2) the statement is false '' (3) the candidate believes it to be false, or does not believe it to be true; (4) it relates to the personal character or conduct or another candidate; and (5) the statement is reasonably calculated to prejudice the prospects of the other candidate''s election : Sheopal Singh v. Ramratan AIR 1965 5 C 677 : 678 S C R 175 The third element refers to the belief of the candidate publishing the statement, or, who is in the eye of law responsible for it and not the belief of the person who actually made the false statement. This proposition has been succinctly laid down and fully explained by their Lordships in Kumaranand v. Brij Mohan Sharma A I R l967 S C 808, thus:-

''''The responsibility of the candidate for the publication arises if he publishes the thing himself. He is equally responsible for the publication if it is published by his agent. Thirdly, he is also responsible where the thing is published by any other person but with the consent of the candidate or his election agent. In all the three cases, the responsibility is of the candidate and it is ordinarily the candidate''s belief that matters for this purpose. If the candidate either believes the statement to be false or does not believe it to be true, be would be responsible u/s 121 (4)..........It is the candidate''s belief that matter and not the belief of the person who actually made it with the consent of the candidate". Dr. Jagjit Singh Vs. Giani Kartar Singh and Others, When the first part of Annexure I was put to the respondent in cross-examination, he said:-

I cannot say whether the statement is true or not. I would prefer to say that it is not true.

With regard to the second and the fourth parts of Annexure I, the respondent''s answer is :-

I have absolutely no knowledge about its correctness or otherwise." An argument was constructed by the learned Advocate-General that when a person says that he has no knowledge, it cannot be said that he either believes it to be false or does not believe it to be true. According to him, if a person does not believe a thing to be true, the alternatives are :-

(1) He believes it to be false; or (2) he does not believe it to be true; or (3) he neither knows whether it is true or false. But in our opinion, the third also means that he does not believe it to be true, because, otherwise, I cannot say that he does not know whether it is true or false. To put it differently if one does not believe a thing to be false, he either believes it to be true or does not believe it to be true. The expressions used in section 123(4) of the Act are: "believes to be false" and "does not believe to be true". These are also the expressions used, for instance, in sections 171(g), 191 and 199 of the Penal Code. These expressions are different from "knowing or believing to be false" as employed in sections 197 and 203, Penal Code, or "knowing to be false" in sections 196, 198, 200 and 209.

The next contention advanced for the respondent is that the statement (Annexure I) cannot be said to be reasonably calculated to prejudice the petitioner''s election prospects. The learned Advocate-General construed the statement as to carry an effect on the electors which would raise the prestige of the petitioner either for his cleverness or honesty. The reader would think that there is nothing wrong in a candidate asking his party to finance him and the reader will also be favourably impressed by the petitioner demanding only Rs. 15,000 in'' preference to Rs. 50,000 offered him as a bribe. On this interpretation, it was argued that the statement is not within the mischief of section 123(4), as its effect would be wholesome and would only advance the petitioner''s prospects. We are unable to accept this logic. It is first of all to be remembered that the test is not to evolve a possible or ingenious interpretation. A news item is not a matter for research of contemplation. That meaning must be attached which the news item will convey immediately and plainly at the first glance. We are clearly of the opinion that the effect which the news item (Annexure I) will at once create on the mind of the reader is that the petitioner extorted money from his party under the threat of withdrawing from the candidature. Secondly, the demand of Rs, 15,000 was also exorbitant and, therefore, extortions, because the permissible limit of election expenses under the law was Rs. 7,000. Thirdly, the expression "LATIFA SUNAYA" stamps the petitioner as a person who fabricates stories. All this was bound to, or atleast reasonably calculated to lower the petitioner in the estimation of the electorate and thus prejudice his election prospects.

Shri Munshi laid a great deal of stress on the context in which the statement (Annexure I) was published, (i) In the issue of the 8th April, the Mahakoshal published a report entitled as a report by "Sanjay" with the caption "KAHAN RAJA BHOJ AUR KAHAN GANGU TELI" : (Sanjay figures in the Mahabharat as one invested with the superhuman power of seeing all that was happening at the battle field and relating it to Dhritrashtra. Thus, it means a farsighted person). In that article the respondent was compared favourably with Raja Bhoj and the petitioner with Gangu Teli. The latter was shown to be a dwarf like an oil-man in contrast to the former who was styled a King. Although the aim of this article was to be little the petitioner, it was little realised that it would offend and annoy the Teli voters, whose number was fairly large, and, further they would cast their votes, on the ground of brotherhood, in favour of the petitioner who had been stamped a Teli. (ii) The petitioner''s statement about Dr. Ausaf Hussain''s offer had appeared in three newspapers Nav Bharat, Nai Dunia and Yugdharma on the 10th''April. To neutralise the effect created by these two, this offending statement (Annexure I) was published in the Mahakoshal of the 12th April, imputing to the petitioner that he was out to grap Rs. 15,000 by extending a threat to his party, and conveying to the electorate that the story of the offer of Rs. 50,000 was a myth. And this was quickly followed by a statement (Ex. P-76) issued by the respondent, which was published in the Mahakoshal of the 13th April. Shri Munshi argued that although this statement ostensibly expressed disappropriation of the article "KAHAN RAJA BHOJ AUR KAHAN GANGU TELI", in reality its aim was to pacify the Teli community. In this statement (Ex. P-76) it was suggested that in the legend, it was "Raja Gangeya Deo Telangan" who had fought with Raja Bhoj, and then it became a saying "KAHAN RAJA BHOJ AUR KAHAN GANGEYA TELANGAN", as time passed, the saying depreciated into "KAHAN RAJA BHOJ AUR KAHAN GANGU TELI." The article then goes on to say that in the Sanskrit "Tel" means "Sneh" (affection) so that the Teli community is Very affectionate.''

This background and Shri Munshi''s argument we shall bear in mind when we shall deal with the question whether the statement (Annexure I) was published by the respondent or with his consent, which question remains to be seen. Since the question is common to all the three annexures, it will be convenient to deal with it at one place.

Annexure 2-The second offending statement (Annexure II) was published in the Mahakoshal, issue dated the 26th April. It is a news item with the caption: "NEHRUJI MAHATMA GANDHI KE HATYARE. KAMAL NARAIN PAGLA HO GAY A". (Nehruji murderer of Mahatroa Gandhi ? Kamal Narayan had gone mad). The news is that on the 23rd April, "the, official candidate of the P. S. P." while delivering a speech at Bar village from a cloth shop, uttered: "RASHTRA PITA BAPU KA HATVARA NEHRU HAP'' (Nehru is the murderer of Bapu, the father of the nation).

The petitioner, as P. W. 5, stated that he was always in his sense and it was wrong to say that he has lost his mental equilibrium. It was also wrong to say that he had gone to Bar village on the 23rd April or that he called a meeting or that he began delivering a speech from any cloth shop and "it is also false that I said there that Nehru was the murderer of Bapu, the father of the nation." The petitioner''s statement on oath must be believed as it was, not rebutted, nor was the news item pleaded, nor did the respondent make any endeavour to produce the news correspondent. It must, therefore, be held that statement (Annexure II) is false. The impugned news item is a representation of what the petitioner reportedly uttered at a meeting. When it was put to the respondent in cross-examination, he stated :-

I have absolutely no idea whether the fact published in Annexure II is true or false. I was not present at that meeting.

This means that the respondent did not believe it to be true. (Reasons already stated in connection with Annexure I).

According to the objected statement the petitioner uttered those words factually. Therefore, it cannot be disputed that it is a statement of fact within the meaning of section 123(4).

The argument of the learned Advocate-General is that to call Nehuji the murderer of Mahatma Gandhi would be an expression of opinion and not a statement of fact; it is figurative language meaning that Pandjt Nehru, as Prime Minister of India, did not pursue and translate into action the political philosophy of Mahatma Gandhi. Further, this opinion will relate to speaker''s political conduct. The argument would have deserved some consideration, if Mahatma Gandhi''s assassination had not been a fact, which is unforgettable. The reader''s mind will immediately connect the statement with, it and it will register the plain and apparent meaning and its natural impact.

But what we are really concerned with is not what the petitioner uttered (according to the news item) but whether the statement (Annexure II) published by the Mahakoshal representing to its readers that the petitioner uttered those words, is a statement of fact or not. According to the news item, the, petitioner went to the village and there started his speech with that utterance,. Thus, all this is a statement of fact, which we have found to be false. Further, there can,, be no doubt that the objected statement relates to the persogaj. conduct and character of the petitioner, depicting it as base and mean. In Inder Lal Vs. Lal Singh, , Gajendragadkar J., speaking for the Court, explained the distinction in these words :-

In order that the elections should be free it is necessary that the electorate should be educated on political issues in a fearless manner and so, the Legislature thought that, full and ample scope should be left for free and fearless criticism by candidates against the public and political character of their opponents. But the position with regard to the private or1 personal character of the candidate is very different. Circulation of false statements'' about ''the private or personal character of the candidate during the period preceding elections is likely to work against the freedom of election itself inasmuch as the effect created by false statements cannot be met by denials in proper time and so the constituency has to be protected against the circulation of such false statements which are likely to affect the voting of the electors. That is why it is for the protection of the constituency against acts which would be fatal to the freedom of election that the statute provides for the inclusion of the circulation of false statements concerning the private character of a candidate amongst corrupt practices. Dissemination of false statements about the personal character of a candidate thus constitutes a corrupt practice....................In discussing the distinction between the private character and the public character sometimes reference is made to the man ''beneath the politician and it is said that if a statement of fact affects the man beneath the politician, it touches private character and if it affects the politician, it does not touch his private character.

The same distinction was expressed in Guruji Shrihari v. Vitthalrao C. A. 1778 of 1967 decided on the 19th November 1968 (SC), thus:-

When false allegation of fact pierces the politician and touches the person of the candidate, then section 123(4) is contravened.

It was not contended before us that the impugned statement (Annexure II) was not calculated to prejudice the petitioner''s election prospects.

Shri Munshi pointed out that the setting in which this statement appeared in the Mahakoshal was this: (1) An appeal of Pandit Jawaharlal Nehru to vole for the respondent was widely and profusely circulated through cards and also through the Mahakoshal. Pandit Nehru''s photograph was also printed with his appeal. Being a very respected and beloved leader of the country, his appeal was bound to have great influence on the electorate in favour of the respondent.

To counteract that influence, Gopinath Sharma, a petitioner''s sympathiser, published on the 23rd April a leaflet (Ex. P-135) in which was reproduced the respondent''s letter dated September 9, 1951, addressed to Seth Govinddas, President, Mahakoshal provincial Congress Committee, by which letter the respondent resigned all offices which he held and also the primary membership of the Congress. The following passages are emphasised by Shri Munshi:-

The immediate cause for submitting the resignation is the act of the Prime Minister to turn out Shri Purushottamdas Tandon and to himself became the President and thus an absolute dictator. After the occurrence of this immediate cause, my continuation in the Congress will mean betraying the country. The removal or Rajrishi Tandon is ___murder of democracy. This sin has been committed with the help of Nehruji because of his lust for winning the election This is the limit of degeneration of the Congress. The 8th September 1951 will be regarded as an inauspicious day in the history of India. I regard Pandit Nehru''s politics and influence a curse for India......

At the top of this letter its publisher (Gopinath Sharma) asks ''''How will Mishraji who calls Pandit Nehru a dictator and the murderer of democracy, strengthen his hands". Then he writes that the letter is being published to inform the general public to what extent the Congress candidate, Pandit Dwarka Prasad Mishra, hates the Prime Minister of the country, Pandit Jawaharlal Nehru. At the bottom of the letter, the publisher asks the respondent four questions: (1) By re-entering the Congress are you not betraying the country? (2) Has your re-entry in the Congress and the grant of Congress ticket to you stopped the murder of democracy within the Congress (3) According to your letter the Congress had reached the limit of degeneration in 1961, at what leval it is now, (4) when you regard Pandit Nehru''s politics and influence as a curse for India, why are you seeking votes in his name?"

Another leaflet (Ex. P-157) was published by one Triveni Shankar, another sympathiser of the petitioner. To this leaflet, a letter of Pandit Ravi Shankar Shukla, dated January 16, 1952, addressed to the President, Mahakoshal Provincial Congress Committee, was reproduced. In that letter, Pandit Ravi Shankar Shukla wrote, inter alia, that after leaving the Congress, the Despondent delivered strong speeches against the Congress, in Delhi and several towns of Uttar Pradesh, from the Jan Sangh platform; that the respondent tried to create a new political body, named ''Lok Congress''; and made an effort to set up candidates who would contest election against the Congress candidates from all the 232 Constituencies of Madhya Pradesh ; and that when he did not succeed and foresaw a dark future, he tried to re-enter the Congress but that had become impossible. Pandit Shukla referred to his letter which he had earlier given to the respondent and said that apprehending that it would be exploited, this letter was written to explain the occasion on which and the circumstances in which he had given that letter to the respondent.

In the said leaflet (Ex. P-157), the publisher says that Pandit Ravi Shankar Shukla''s aforesaid letter was published by Sefh Govinddas and he asks whether the respondent, Shymacharan Shukla, Pandit Shankarlal Tiwari, or Pandit Shyam Sunder Mushran will contradict in Writing the view expressed by the late Ravi Shankerji about Pandit Mishra. Mr. Munshi''s contention is that the effect on the electorate of these leaflets Exs. P-157 and P-155 which were published on the 22nd and 23rd April respectively, was going to be tremendously prejudicial to the respondent''s election prospects. Having regard to the degree of esteem and love which the people had for Pandit Jawaharlal Nehru, nothing could counteract that effect unless some statement involving the name of Pandit Nehru and causing hurt to the feeling of the voters, was attributed to the petitioner and published to the electrorate. And, nothing worse could be imagined about Pandit Nehru than that he was the murderer of Bapu. It is with this back ground and in this setting that the statement (Annexure II) was published in the Mahakoshal.

At the end of the trial before the Tribunal, the petitioner produced Shyamlal (P. W. 91), who stated that the respondent himself was the author of the news item (annexure II). Shri Munshi relied on this direct evidence and also the attending circumstances to show that the respondent himself was the author of Annexure II, or, at any rate, it was published with his consent. This point we shall consider at its appropriate place. The learned Advocate-General vehemently criticised the evidence of Shyamlal and stamped it as concocted.

Annexure 3.- The third offending statement (Annexure III) was published in the Mahakoshal daily, in the issue dated the 4th May (Saturday), the very day of the poll. The caption is "Quarrel between Kamal Narayan and Niranjansingh on likelihood of defeat." The impugned statement is this:-

It has been gathered from the Bazar news that initially Kamal Narayan was not willing to contest against Pandit Mishra hut when Thakur Lalit Niranjan Sing offered to pay him Rs: 10,000 for this purpose he agreed. Yesterday when Kamal Narayan demanded payment of that amount. Thafcur Niranjan Singh adopted evasive tactics. It is said that on this Kamal Narayan became so furious that he shed tears and said I have been made to lose from both sides. Defeat is bound to be but the hope with which I had stood has also been drowned.

[The report bears Thursday 2nd May].

The petitioner states that no quarrel took place between him and Thakur Niranjan Singh, that he did not meet Niranjansingh on Thursday or a day before, or on any other day between the date of the notification calling the bye-election and the date of polling. He says it is false that he was not prepared to contest the election against the respondent when in fact he himself had offered to contest the bye-election. It is false that Thakur Niranjansingh offered to pay him Rs. 10,000 and then he agreed to contest the election. Thakur Niranjansingh never offered him any money. It is false that he demanded the said amount from Thakur Niranjansingh and that he had adopted dilatory tactics. He says there was no such incident. It is also false that he became angry and shed tears, or that he said that he had suffered on both counts, meaning that he had lost Rs. 50,000 offered to him by the side of the respondent and also Rs. 10,000 which Thakur Niranjansingh had offered. He says there was no such incident. He did not say that his defeat was certain, or that his hope had been crushed. He says that there was no such talk.

The petitioner''s statement is supported by the evidence of Niranjansingh (P. W. 43). Having read the statement (Annexure III), he stated that it was false, that there was no such talk between him and Kamal Narayan as alleged in the news items, and that there was no such incident as was related in it. He says that he did not meet the petitioner on any day during the election period, that is, between the 3rd April and the 4th May.

No evidence was produced by the respondent in rebuttal. Nor was truth pleaded or argued before us. It must be held that the statement (Annexure III) is false.

The statements that there was a quarrel between the petitioner and Thakur Niranjansingh, that the petitioner demanded payment of money, that the petitioner shed tears, that the petitioner uttered the words quoted, are all of fact. A statement of fact cannot be styled as opinion just because it is pre-fixed by the expressions, such as, "there is a talk" or "it is said" etc.

The statement undoubtedly relates to the petitioner''s personal character. It suggests that the petitioner became a candidate to make money. The allegation of fact, to borrow the language of the Supreme Court "pierced the politician and touched the person of the candidate" and was, therefore, within the mischief of section 123(4).

There cannot be any doubt that the statement was calculated to prejudice the petitioner''s election prospects.

When the statement (Annexure III) was put to the respondent he stated: "I have no knowledge whether this statement is true or false". For reasons already stated, this means that he did not believe it to be true.

We have reached the conclusion in respect of each of the three impugned statements (Annexures 1, 2 and 3) that it is false, that the respondent did not believe them to be true, that it is a statement of fact, that it relates to the personal character or conduct of the petitioner, and that it was reasonably calculated to prejudice the petitioner''s election prospects.

This brings us to the question of the respondent''s liability for the publication of these false statements; The appellant''s first contention is that the respondent himself was the author of the false statements (Annexures II and III). Alternatively, he contends that the false statements were published with the consent of the respondent.

On the first part of his contention, the petitioner produced Shyamlal (P. W. 91) before the Tribunal. He says that during the bye-election;, he had worked for the respondent at his request. During that period, he resided at Kasdol; his house was in between the houses of respondent No. 2 and Parashram Mishra. The latter was admittedly the host of the respondent whenever be visited Kasdol in connection with his election. He says that 8 or 9 days before the date of poll, when the respondent and Shyamacharan Shukla were taking mid-day meals together, the latter told the former that the petitioner had made a tremendous effect on the electors in the jungle area. After, the meals, the respondent prepared a draft and gave it to Shyamacharan Shukla to read, with the direction to publish it in the Mahakoshal of the following day. Shyamacharan Shukla read out that draft. It appeared in the Mahakoshal (Annexure II) and was distributed at Kasdol on the next day.

* * * *

[After discussing the statement of Shyamlal in paras. 63 to 71 the judgment proceeds-]

Having thus discarded the direct evidence of Shyamlal, we must advert to the crucial point whether these false statements were published with the respondent''s consent.

The statements, Annexures I, II and III appeared in the Mahakoshal. Shyamacharan Shukla was its editor. As will be seen the Mahakoshal and Shyamacharan Shukla were both agents of the respondent within the meaning of the election law.

The law in England, as stated in Halsbury (Simonds) Vol. 14, 3rd Edition, page 169, para. 300, is this:-

''A candidate''s liability to have his election avoided under the doctrines of election agency is distinct from, and wider than, his liability under the criminal or civil law of agency. Once the agency is established a candidate is liable to have his election avoided for corrupt or illegal practices committed by his agents even though the act was not authorised by the candidate was expressly forbidden. The reason for this stringent law is that candidates put forward agents to act for them, and if it were permitted that these agents should play foul, and that the candidate should have all the benefit of their foul play without being responsible for it in the way of losing his seat, great mischief would arise. In this respect the relationship between candidate and agent resembles that of master and servant." The same was the law in our country formerly, as would appear from the following statement in Jagat Narain''s Law of Elections and Election Petitions:-

The term agent has a very wide meaning in election law. It is not restricted to ordinary relation of principal and agent. The relation is more like that between master and servant where the former is held responsible for the unauthorised or negligent acts of the latter ___ No exact definition of agency in election law has been given. Blackburn J., pointed out the difficulty of arriving at one, ''All agree that the relation is not the common law one of principal and agent, but that the candidate may be responsible for the acts of one acting on his behalf, though the acts be beyond the scope of the authority, or indeed, in violation of express injunction*...... The substance of the principle of agency is that if a man is employed at an election to get you votes, or if, without being employed, he is authorised to get you votes, or if, although neither employed nor authorised, he does to your knowledge get you votes, and accept what he has done and adopt it, then he becomes a person for whose acts you are responsible in the sense that, if his acts have been of an illegal character, you cannot retain the benefit which those illegal acts have helped to procure for you.

(See pages 253, 255 and 257)

But the above position of the law is now confined in its application to an "election agent" as distinct from "any other agent". In the present case, there was no election agent.

The remaining two categories u/s 123(4) are "agent" and "any other person". Publication of a false statement by any person belonging to either of these two categories, to be a corrupt practice, must be "with the consent of the candidate or his election agent". These words were inserted in that section by the Representation of the People (2nd Amendment) Act, 1956 (17 of 1956).

The predominant aim and object which our law cherishes is that the elections must be free and fair. Purity of elections is the backbone of democracy. The command of the law is that a candidate''s election shall not/be vacated merely because some newspaper, which has been supporting his candidature, published a false statement in relation to another''s personal character or conduct; but a candidate shall not be allowed with impunity to get such false statements published. Our law balances the two situations and endeavours to provide remedy for both the evils. The crux is to be found in the word "consent". If it is proved that such publication was with the consent of the candidate, then in the eye of law, his responsibility is the same as if he himself committed the act.

When in respect of a charge of corrupt practice it is not proved that the candidate himself committed it, then the election can be declared void when either (1) the corrupt practice was committed, with the consent of the candidate, by an agent or by any other person ; or (2) if consent is not proved, then the corrupt practice was committed by an agent of the candidate and the result of the election has been materially affected. The interpretation which the expression "materially affects the result of the election" received in Vashit Narain Sharma Vs. Dev Chandra and Others, , has recently been reiterated in Samant JV. Bal Krishna v. George Femandes Civil Appeals Nos. 805 and 896 of 1968 decided on the 12th February 1969 (S C). Since the appellant was unable to contend before us that there is any evidence on record to satisfy the strict requirement laid down in Vashist Narayan (supra), the question whether the persons who committed corrupt practice were agents of the respondent becomes immaterial in this case. Thus, consent is the crucial point.

In Kishoresingh v. Bkanwarlal 1966 M PLJ 563 : 1967 JL J 206, we held :-

It is clear law that (a) where a corrupt practice of publishing a false statement is committed by a person who is not a candidate or the election agent, the consent of the candidate or his election agent must be established (b) This is so even if such a person is an agent, but not an election agent, so that an election cannot be held to be void merely upon the proof of a corrupt practice by an agent, (c) A political party setting up a candidate, sponsoring his cause and promoting his election may be called an agent, but a candidate it not responsible for what the members of the political party, to which he belongs, do to further the interests of the party as a whole. His responsibility is limited to the acts to which he or his election agent consents, (d) The consent, required u/s 123(4) may be express or implied. (e) To prove consent, direct evidence is not always necessary. Consent can be implied or inferred from acts and conduct of the candidate or from other facts and circumstances. It is a muter of fact in every case, (f) Whether the consent proved is express or implied, the higher standard of proof-''beyond reasonable doubt'' is required.

we relied, among others on Sheopat Singh Vs. Harish Chandra and Another, and Jagdev Singh Sidhanti Vs. Pratap Singh Daulta, , which has been followed in Shri Krishna v. Satnarain Civil Appeal No. 1321 of 1967 decided on the 23rd March 1968 (S C) and in Amarnath v. Lachhmansingh Civil Appeal No. 717 of 1968 decided on the 23rd August 1968 (S C).

In Ramkrishna v. Jaisingh Civil Appeal No. 1949 of 1967 decided on the 23 April 1968 (S C), the question was whether the false statement was published by an agent of the returned candidate with the consent of the returned candidate. The evidence was not direct. The conclusion was reached by the High Court on a reasonable view of all the circumstances of the case. The returned candidate had left the full directions of his election campaign to the agent who had successfully worked for him in the first three general elections. His Lordship, Hidayatullah C.J., speaking for the Court, laid down thus:

In view of the general power which Krishna Prasad Chopra enjoyed in the matter of the returned candidate''s election campaign, he must be held to be his agent for the purposes of section 123(4) because of the explanation already quoted. This general power was sufficient to establish a kind of prior consent, which is rendered very certain by the subsequent conduct of the candidate in not disowning or contradicting the poster or refusing to pay the charge for the printing. The whole action therefore, is an integrated one right from the appointment of Krishna Prasad Chopra, as the all in-all agent to run the election of the appellant, and the knowledge of the poster by the returned candidate between the first appearance of the poster and the poll.

In D. Gopala Reddy v. S. Bai Talpalikar Civil Appeal No, 6 of 1968, decided on the 2nd August 1968 (SC), the Chief Justice spoke for the

Court thus:-

Before we consider the evidence it is necessary to point out that Mr. Ram Reddy in arguing this appeal drew our attention to certain observations of this Court as to the trial of election petitions in which allegations of corrupt practice were made against candidates. These case are Jagdev Singh Siddhanti v. Pratapsmgh Daulta and Mohansingh v. Bhanwarilal tad another. In both these cases it is stated that a charge of corrupt practice is in the nature of a criminal charge and the burden is upon the election petitioner to establish his charge full and to satisfaction of the Court. It is argued by Mr. Ram Reddy that the burden is always on the election petitioner and the evidence must be clear and cogent and direct and should lead to the irresistible inference that the charge as pleaded has been found. In the absence of such clear evidence it is not open to the Court to infer from mere preporderance of probabilities that a corrupt practice was committed. We would add that, in our opinion, the real approach to the problem is this. The acts constituting corrupt practice must be proved and established by direct evidence. In other words, if a particular type of corrupt practice is pleaded and alleged, it must be established by clear and cogent evidence that the corrupt practice did in fact take place. The evidence must be positive and definite. But there is room for another approach regarding the complicity of the candidate or election agent or some person acting with the consent of the candidate or his election agent. This may be inferred from circumstantial evidence also, provided the circumstances point clearly to the individual charged.

In Dr. Chenna Biddy v. Ramchandra Rao Civil Appeal No. 1489 of SC, decided on the 17th December 1968 (SC), their Lordships have made it very clear that although the trial of an election petition on the charge of commission of a corrupt practice partakes of the nature of a criminal trial and that the finding must be based not on the balance or probabilities but on direct and cogent evidence to support it, the inherent difference between the trial of an election petition and a criminal trial must also be noted : -

A candidate charged with such corrupt practice invariably leads evidence to prove his denial; it becomes the duty of the Court to weigh the two versions and come to a conclusion as to whether notwithstanding the denial and the evidence in rebuttal, a reasonable person can form an opinion that on the evidence the charge is satisfactorily established... ... .Inference can, therefore, be drawn against a party who does not call evidence which should be available in support of his version.

In Samant N. Balkrishna v. George Fernandes Civil Appeal Nos 895 ana" 896 of 1968, decided on the 2nd February 1969 (SC), the Chief justice has spoken for the Supreme Court thus :-

The principle of law is settled that consent may be inferred from circumstantial evidence but the circumstances must point unerringly to the conclusion and must not admit of any other explanation- Although the trial of an election petition is made in accordance with the Code of Civil Procedure, it has been laid down that a corrupt practice must be proved in the same way as a criminal charge is proved. In other words, the election petitioner must exclude every hypothesis except that or guilt on the part of the returned candidate or his election agent.

The following principles are clearly deduced from the above dicta : (1) In an election petition, burden lies on the election petitioner to prove his charge of corrupt practice fully and to the satisfaction of the Court. (2) The charge of corrupt practice in an election petition is quasi-criminal in nature. (3) It must be proved by clear and cogent evidence that the corrupt practice did in fact take place. (4) The test is "beyond reasonable doubt", and not "preponderance of probabilities." (S) A charge in a criminal case can be held to be proved not only on the basis of direct evidence but also circumstantial, so also a charge of corrupt practice in an election petition can be proved both by direct and circumstantial evidence. (6) To base a finding on circumstantial evidence, the Court must see that every other reasonable hypothesis is excluded. (7) Doubt or hypothesis must be "reasonable", not "fanciful" or based on "anything may happen." (8) When a corrupt practice is committed by an agent, direct evidence of the candidate''s consent may not be available. Complicity of the candidate may be inferred from circumstantial evidence also provided the circumstances point clearly to the candidate.

We shall judge the case by these standards.

Direct evidence of consent can hardly be expected. When, in the absence of direct evidence, the question of consent has to be determined on circumstantial evidence, each case must be decided on its own facts, fin the discussion to follow, for the sake of convenience, we shall employ the expressions "publishing candidate" and "complaining candidate" for the words "candidate" and "any candidate" respectively as used in section 123(4)1.

When a false statement is published in a newspaper, which supported the candidature of the publishing candidate and the question is whether the publication was with his consent, a variety of considerations will come into play. (1) The first is in what setting it was published; the occasion for1 its publication. (2) The second will be the object in view with which it was published and the prejudice it was calculated to cause to the election prospects of the complaining candidate. (3) The third would be whether the newspaper or its editor or correspondent was an agent of the publishing candidate. The position of a newspaper which has casually supported the candidature of the publishing candidate is different from one which actively and regularly canvassed in favour of the publishing candidate. (4) The fourth will be the frequency of personal contact or communications between the publishing candidate and the editor or correspondent of the newspaper; (5) The fifth would be whether the publishing candidate had knowledge of the publication. This, again, may generally have to be gathered from the attending circumstances, since direct evidence may not be available. In this context, it will be material whether the constituency lies in a big city, where numerous papers published in different languages are circulated, or the constituency consists of small places and the number of newspapers received there is very small. The language of the paper in which a false statement appears will also be relevant. (6) The sixth will be how the publishing candidate reacted to it after its publication whether he believed it to be true, or, in case, he believed it to be false or did not believe it to be true after an enquiry, whether the publishing candidate issued a statement either to contradict the impugned statement or at least to say that he did not associate himself with it. If it was published with his consent, he would not contradict it as that would neutralise its effect. No contradiction would have been necessary, if the newspaper was not actively working for the publishing candidate. (7) Seventhly, in case another false statement had appeared in the newspaper prior to the publication of the impugned statement, it will be material whether after the first publication, the candidate had issued any direction or request to the newspaper not to publish any false statement in relation to the personal character or conduct of the complaining candidate. These, in our view, would be the important considerations which will weigh before the Court. Any one of them singly may not lead to any conclusion. Their cumulative effect will determine the issue. Knowledge cannot be equated with consent. Mere connivance by itself does not amount to consent. The background with which it was published ; personal contact between the editor and the respondent; and the knowledge of the publishing candidate and how he reacted will go a long way to show the existence or absence of his consent, and whether the newspaper published the statement as an agent of the publishing candidate or whether it was purely in the discharge of its normal functions and not as such agent. While dealing with each annexure separately, we have already stated in detail the setting in which it was published. To recapitulate in short, (1) The false statement (Annexure I) appeared two days after the petitioner''s statement regarding Dr. Ausaf Hussain''s offer of Rs 50,000 to him. This annexure was quickly followed by the respondent''s statement explaining "Rajabhoj and Gangu Teli". (2) The background of Annexure II is very significant. Two sympathisers of the petitioner had published on the 22nd and 23 April, the respondent''s letter of 1951 by which he left the Congress and in which he had used strong language against Pandit Nehru and the letter of Pandit Ravi Shankar Shukla of 1952 addressed to Seth Govinddas in which the respondents resignation was recalled. There was mention of his frustration and there was also a mention that his re-entering into the Congress had become impossible. These letters were published in order to counteract the effect and influence of Pandit Nehru''s name being used in canvassing for votes in favour of the respondent. This Annexure II was published to counteract the effect of those two letters. (3) Annexure III was published on the very day when poll was going to be taken. This statement was made to create an impression on the electorate that the petitioner had agreed to contest the election just to gain money. All the three false statements (Annexures I, II and III) aimed uniformly at creating an impact on the mind of the electorate that the petitioner was very base and mean. Nothing worse can be thought of a man who would call Pandit Nehru as the murderer of Mahatma Gandhi. In Sudhir Laxman Hendre Vs. Shripat Amrit Dange and Others, , it is observed:-

A campaign of slander is likely to create prejudice in the minds of the people against him. It cannot be put down as cynycism when it is sometimes said that the bigger the lie the greater aie its chances of being accepted as true. There is tendency in the mind of unwary public to believe the worse about individuals.

In Sudhir Hendre v. Shripat Dange 1964 M P L J 249 : A I R 1964 S C 1366 : 1964 J L J 513, it was observed :-

In ascertaining the true nature of the statement made, the Court will have to take into consideration all the surrounding circumstances, including the occasion when it was published or made, the person publishing it or making it, the audience or readers to whom it is addressed as also the piecautions or care taken by the publisher to verify the truth or otherwise of the statement challenged.

In Mohansingk v. BhawarlaP5, it is laid down that the Tribunal would be entitled to take into account matters of common knowledge among the electorate and read the publication in that background.

* * * *

[After discussing the evidence of distribution of the issues of the paper Mahakoshal and holding it to be satisfactory in para. 87 the Judgment proceeds.]

Mahakoshal was a Hindi daily published from Raipur. The petitioner produced all the issues of the Mahakoshal from the 2nd April to the 5th May. It regularly supported the respondent''s candidature. Shyamacharan Shukla was the proprietor, editor, publisher, printer and keeper of the press (per Ex. P. 120), based on prescribed declaration under the Press Act. Since the contrary was not proved, he must be held to be the editor of the paper. State of Maharashtra v. R. B. Ghoudkari 1968 MPL JU 1 : AIR 1968 S C HO. Learned Advocate-General argued that the paper canvassed for the Congress, as Shyamacharan Shukla was the Vice-President of the District Congress Committee. But, firstly, there is nothing on record to show that the paper belonged to or was managed by the Congress Party so that it was an organ of that party. It belonged to an individual and the paper as such was not tied up with the Congress Party. Shyamacharan Shukla was all in all. Secondly, it has been demonstrated by the petitioner from the issues which are on record that the Mahakoshal lent its support to the respondent and Rani Shyam Kumari only, but not to the other two candidates. Near about the same time four elections were to take place and Congress candidates were contesting all the four. There is sufficient and credible evidence that the newspaper was distributed in Kasdol, Lawan, Sel and several other places in the constituency.

[After discussing the evidence in paras 89 & 90 the judgment proceeds-]

In our opinion, it must be held that Shyamacharan Shukla was in personal association of the respondent throughout during his election campaign.

Apart from Shyamacharan Shukla''s personal association, the respondent admitted that during the election campaign, he read the Mahakoshal among other newspapers. The constituency consisted of small places where very few papers were in circulation. On the basis of Kumaranand v. Birj Mohanlal Sharma (supra), we have already held that the respondent did not believe any of these statements to be true. Truth was not pleaded in respect of any of these three Annexures. No statement was issued by him either to contradict any of these statements or to say that he did not associate himself with any of them.

These false statements (Annexures I, II and III) were published one after another but the respondent did not contradict or repudiate any.

In Sheopatsingh v, Harischandra (supra), it was urged that consent is stronger than connivance, and knowledge cannot in itself be equated with consent. But their Lordships said :-

From the above facts it is not an unreasonable inference to draw that all the above acts were committed not haphazard but by design and the appellant must have consented to them.

Facts of no two cases are exactly the same. Sometimes they may be more or less similar. It is the principle laid down by the Supreme Court, which should be applied. In Samant Balkrishna''s case (supra), their Lordships, after an elaborate discussion, restated the following rule :-

There is no doubt that consent need cot be directly proved and a consistent course of conduct in the canvass of the candidate may raise a presumption of consent. But there are cases and cases.

Then, on a consideration of the entire facts and circumstances of that case, their Lordships held that consent was not proved. Some of the features of that case were: (1) Mr. Atrey had opened a column in his newspaper to support Mr. Fernandez''s candidature. Although 9 articles appeared in the column between December 3, 1966 and February 2, 1967, not a single false statement from this column had been brought to the notice of the Supreme Court. (2) There was not even a suggestion that Mr. Fernandez wrote any article for the Mara the or communicated any fact... Mr. Atrey did not publish any article of Mr. Fernandez, nor did he published any propaganda material. (3) Regard was had to the activities of Mr. Atrey as editor and his own personal hostility to Mr. Patil on the issue of Sampuran Maharashtra Samiti. (4) Many of the news items were published in other papers also. For example, Free Press Journal, Blitz, Writers like Welles Henges had also published similar statements. If they could not be regarded as agents of Mr. Fernandez, the Supreme Court did not see any reason to hold that the Maratha or Mr. Atrey could safely be regarded as agent of Mr. Fernandez, when acting for the newspaper so as to prove his consent to the publication of the defamatory matter. (5) ''If the matter was left entirely in the hands of Mr. Atrey, who acted solely as agent of Mr. Fernandez, something might be said as was done in Ramhrishna''s case."

Some of the features of Ramhriahna ''a case (supra) are akin to the present case; (1) The poster was prepared as a counterblast to the posters issued and published by the supporters of the Jan Sangh. (2) The returned candidate admitted that he had left the conduct of the election to Krishna Prasad Chopra. (3) There was time enough for the returned candidate to have done something to countermand this poster by clearing to the public that he was not responsible for this poster and that they should not put any faith in them. He did nothing of the kind. (4) "In view of the general power which Krishna Prasad Chopra enjoyed in the matter of the returned candidate''s election campaign, he must be held to be his agent for the purpose of section 123(4) because of the explanation already quoted. This general power was sufficient to establish a kind of prior consent which is rendered more certain by the subsequent conduct of the candidate in not disowning or contradicting the poster or refusing to pay the charges for the printing.

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 Mahakoslial 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 dissociating himself from them would have persuaded us to hold that these false statements (Annexures I, II and III) were published with the consent of the respondent.

But in this case also there is room for the same approach as in Samant Balkrishan''s case. On all the three issues of the Mahakoshal there is printed the name of another editor also. He may have in his own enthusiasm published these false statements. (Mr. Alrey did in the Maratha). We would give the benefit of this doubt to the respondent, though not without much hesitation.

Election Expenses:-The limit of permissible expenses was Rs. 7,000. In his return of election expenses (Ex. P-39), the respondent showed an expenditure of Rs. 6,324.14. The petitioner''s contention in the election petition was that the respondent had deliberately omitted to include in his return, many items of expenditure which he had incurred or authorised in connection with his election and that if those items were included in the return of expenses, the amount would exceed Rs. 7,000 in the aggregate. Thus, the respondent contravened the provisions of section 77(3) of the Act, and therefore, committed the corrupt practice defined in section 123(6) of the Act.

* * *

[After discussing items of expenses in paragraphs 99 to 150 the judgment

proceeds-]

The next contention of the appellant is that the respondent paid to the Congress party Rs. 200 as application fee, and made a deposit of Rs. 500 as security for being given a Congress ticket to contest this bye-election but this amount of Rs. 700 is not included in his return of election expenses; that amount must now be added. This plea is contained in paragraph 7 (c) (i) of the election petition.

The appellant examined Ramnarayan Purohit (P. W. 93). He says that he is the permanent Secretary of the Madhya Pradesh Congress Committee, for the last 10 or 11 years. His evidence is:

On 25th March 1963, Ramkrishna Shrivastav paid Rs. 700 to the M. P. Congress Committee on behalf of Shri Dwarka Prasad Mishra, Ra. 200 on account of application fee and Rs. 500 as security deposit, for seeking Congress ticket for the bye-election. This amount was credited in the account and nothing was refunded to the depositor. Shri Dwarka Prasad Mishra was given Congress ticket for the bye-election. The security deposit of Rs. 500 is refunded in case Congress ticket is not given to the candidate. The application fee is not refundable in any case. The entire Rs. 700 goes to the consolidated fund of the Congress Committee. (The receipt is marked Ex A-1). The rules under which this amount of Rs. 700 was paid to the Congress Committee, I produce Ex. A-2. I also produce application form (printed). (It is marked Ex. A-3). This form was in vogue in the bye-election Congress ticket was given to Shri Dwaraka Prasad Mishra after payment of Rs. 700.

The witness further states that the Provincial Ad hoc Committee considered the names of the respondent and respondent No. 2. There was secret ballot. The respondent got 9 votes, while the respondent No. 2 got 11. The Ad hoc Committee sent this result to the Central Parliamentary Board with the recommendation to give Congress ticket to respondent No. 2. The Central Parliamentary Board, however, 6nally decided to give ticket to the respondent.

The witness further says that the receipt (Ex. A-1) bears his signature and also the Accountant''s signature. It was also signed by the auditor who put a seal on it. The witness produced the auditor''s report, dated December 27, 1963 (Ex. A-5) which is accompanied by a statement (Ex. A-6) in which the amount of Rs. 700 is shown, Total election deposits from the candidates is shown as Rs. 25,075, and application fee Rs. 2,800. Ramnarayan Purohit says that the above application fee of Rs. 200 is included in this Rs. 2,800 and the deposit of Rs 500 is included in the above Rs. 25,075, In the auditor''s report, a certain amount has been marked as refundable but that amount does not include the amount deposited by the respondent. This is clear from the following statement of Ramnarayan Purohit;-

A candidate who is given Congress ticket it not entitled to refund. The auditor''s report which has been referred to me about the amount to be refunded is not about the candidates who have been given ticket. That remark is about the amount which was refundable with reference to the general election of 1062, and the amount was refundable to the candidates who were not given Congress tickets.

It must be mentioned here that it was not contended before us, nor was it pleaded in the written statement, that the amount of Rs. 200 or Rs. 500 was not shown in the return for the reason that it was refundable.

Thus, from the records of the Provincial Congress Committee (Counter-foil of the receipt, its account books and the auditor''s report), which were produced and proved by Ramnarayan Purohit (P. W. 93), it is established that the respondent paid Rs. 700 to the Congress party for obtaining party ticket.

The respondent''s reply is three-fold :

(i) The first is that it was not the respondent but it was Parmanand Bhai Patel who paid Rs. 700 on his behalf but without his consent, so that it was not necessary to include this expenditure in his return. He states that it was during the pendency of the election petition before the Tribunal that he came to know of it, and then Parmanand Bhai Patel told him that he had thought it advisable to deposit the amount lest the. Ad hoc Committee might make it an excuse for not giving the respondent ft ticket as his relations with the Ad hoc Committee were not good.

It was an argument for the respondent that since the Ad hoc Committee had within it two groups-Deshlehra and Mushran groups-and since the former group which was in majority was not in favour of the respondent, he would not seek Congress ticket from the Ad hoc Committee so that to deposit Rs. 700 was out of the question. There is no force in this argument. Firstly, the candidate cannot anticipate with certainty what the decision would be. Secondly, it was only prudent and wise to fulfil the pre-requisite condition of depositing Rs. 700 with the Provincial Congress Committee so that his claim would not be lost by default and the Ad hoc Committee would not have the opportunity to say that his name could not be considered on that ground. This was more so because the recommendations of the Ad hoc Committee were not binding on the Central Parliamentary Board which was to finally decide whom to give the ticket. Therefore, notwithstanding any apprehension, it was not only improbable but was prudent and wise to deposit the requisite moneys and not take the risk of losing by default. Ramnarayan Purohit filed the rules which were in vogue at that time and which were applicable to this bye-election. These rules require that every person who seeks a Congress ticket must pay a fee of Rs. 200 and deposit Rs. 500.

The counter-foil of receipt No. 113 shows the amount was received from the respondent and in all the books and records of the Provincial Congress Committee the amount of Rs. 700 is entered as paid by the respondent. As against what is patent and obvious enough from the record of the Provincial Congress Committee there is the denial of the respondent.

Ramnarayan Purohit has, no doubt, said that Ram Krishna Shrivas had told him that the amount of Rs. 700 had been sent by Parmanand Bhai Patel, but, in the first place, this part of his evidence is inadmissible being hearsay. Ramnarayan Purohit cannot say whether Parmanand Bhai Patel at all said anything to Ram Krishna Shrivas or whether Parmanand Bhai Patel had at all given this money to Shrivas or whether Parmanand Bhai Patel had said to Shrivas about having received any request, instruction or authority from the respondent to make the deposit. Secondly, there is no mention of Parmanand Bhai Patel in the records of the Provincial Congress Committee, not even in the receipt Ex. A-1, in connection with this payment. Thirdly, Shri Munshis argument is that Ramnarayan Purohit is a paid employee of the Provincial Congress Committee (designated as its permanent Secretary)and this part of his evidence which goes beyond the records of the Provincial Congress Committee must be disbelieved. Ramnarayan Purohit could not help production of the counter-foil and the account of the Congress office as they are audited, but he suppressed other material. In our opinion, this part of Ramnarayan Purohit''s evidence that Ram Krishna Shrivas had told him that the money had been sent by Parmanand Bhai Patel must be rejected.

It must be emphasized that by our order dated May 4, 1968, the respondent was given a fresh opportunity to produce such oral and documentary evidence as he would desire to. In pursuance of that order, by his application dated July 19, 1968, he desired to examine four witnesses, of whom Shri Parmanand Bhai Patel was one. But eventually after his own evidence before us, he decided not to examine him, and his learned counsel made an application dated August 29, 1968, giving up all the four witnesses. If the sum of Rs. 700 had really been sent through Ram Krishna Shrivas by Shri Parmanand Bhai Patel to the Congress Office, he would have come in the witness-box and would have said so; and, in that case, he would have also said that it was not sent at the request or on authorization by the respondent. That Shri Parmanand Bhai Patel actively worked for the respondent and he went to the constituency during the election is admitted by the respondent. The respondent further admits that he had knowledge of the recommendation of the Ad hoc Committee which was made to the Central Parliamentary Board of the Congress. If he had not deposited the money, this must have put him to enquiry how the Ad hoc Committee could put his name to vote and who paid the prescribed fee and security deposit to the P. C. C. office. For reasons best known to the respondent he gave up Shri Parmanand Bhai Patel and did not examine him. Likewise, in the respondent''s aforesaid list of witnesses of July 19, 1968 "a Munim of Parmanand Bhai Patel" was also included. The name of that Munim was not disclosed. He too was given up.

In Dr. M. Chenna Reddy v. Ramchandra Rao and another (supra), their Lordships have laid down thus:-

This Court has held in a number of cases that the trial of an election petition on the charge of the commission of a corrupt practice partakes of the nature of a criminal trial in that the finding must be based not on the balance of probabilities but on direct and cogent evidence to support it. In this connection the inherent difference between the trial of an election petition and a criminal trial may also be not-xi. At a criminal trial the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his insanity or his acting in self defence to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The trial of an election petition on the charge of commission of corrupt practice is somewhat different. More often than not proof of such corrupt practices depends on the oral testimony of witnesses. The candidate charged with such corrupt practice invariably leads evidence to prove his denial; it becomes the duty of the Court to weigh the two versions and come to a conclusion as to whether notwithstanding the denial and the evidence in rebuttal, a reasonable person can form the opinion that on the evidence the charge is satisfactorily established We cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The petitioner has to give particulars of the corrupt practice with details in default whereof the allegations may be ignored; the petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the CPC to the trial of suits with the aid of the provisions of the Indian Evidence Act Inferences can therefore be drawn against a party who does not call evidence which should be available in support of his version.

Although non-maintenance of account of the election expenses as required by section 77(1) of the Act is not a corrupt practice u/s 123, yet, where true and timely kept accounts are not produced, it will be a strong circumstance against the candidate. The respondent says that his accounts are not available as they have been lost.

(ii) Alternatively, it is urged that even if the respondent paid Rs. 700 to the P. C. C, it was not an "election expense." In our opinion, this contention cannot be accepted. The moneys a candidate pays as fee and deposit are not refundable, if he gets a ticket. The entire money goes to the consolidated fund of the party [per Ramnarayan Purohit (P. W. 93)]. In return, when a party ticket is given to him, he gains the advantage of the goodwill of the party and of its influence on the electorate. The ''deposit'' loses its character and becomes an ''expenditure'' the moment party ticket is given, because then the money belongs to the party and ceases'' to be refundable. Moreover, this point is concluded by the decisions of the Supreme Court in 8. Khadr Sheriff v. (sic) 195 N L J 1 M-A T R 1055 S C 775 : (1955} 2 SCR 469 and (sic) Sagar Joshi v. Surindar Nath Gaidam O. A. No. 853 of 1968 decided on the 13th September 1968 on which we shall rely in connection with the next argument.

(iii) Another alternative argument advanced by the learned Advocate General is that this expenditure was incurred before the date of the notification calling the election, so that it walked out of section 77 fl) of the Act. The pavement of Rs. 700 was made on March 25. 1963 (per Ex. A-1), while the notification calling this bye-election is dated March 27, 1963 (per M. P. Rajpatra Asadharan, dated March 27, 1963 at page 234).

It is true that section 77 P) fixes two termini: the first is the date of publication of the notification calling the election and the last is the date of declaration of the result thereof.

The question is when the above expenditure must be said to have been incurred in the eve of law. It seems to us clear and beyond doubt that the date of incurring an expenditure in connection with an election is not necessarily the date on which the candidate is actually out of pocket. This will be clear from the following illustrations (a) candidate purchases petrol worth Rs. 25,000 between the two material dates and his motor vehicles consume the entire quantity for the purposes of the election between these two dates, but the entire purchase is on credit. He pays the price after the declaration of the result, (b) A candidate having already made up his mind to contest an election, say as an independent candidate, purchases petrol worth Rs. 25,000 before the notification is made and also pays its price before that date and uses the entire quantity for the purpose of his election between the two material dates. In our opinion, it is incontestable that in the first case, the expenditure must be held to have been incurred between the two material dates, notwithstanding the fact that the candidate made the payment after the date of the notification. So also in the second case, it must be said that the expenditure was incurred between the two material dates notwithstanding the fact that the candidate made the payment prior to the date of the notification. To put it differently, the date of payment is not necessarily the date of incurring the expenditure. It must be held to relate back or to relate forward, as the case may be, having regard to the nature of the expenditure. If that were not the law, nothing would be easier than to defeat the provisions of sections 77 and 123(6) by making all payments in advance before the date of the notification, or by with-holding all payments until after the declaration of the result.

In the present case, the amount of Rs. 700 has two components : Rs. 200 application fee and Rs. 500 deposit. Ramnarayan Purohit''s evidence is clear that the application fee of Rs. 200 is not refundable in any case; and the deposit or Rs. 500 is also not refundable if Congress ticket is given. This position is not disputed. It must, therefore, be held that the deposit of Rs. 500 continues to be a "deposit" until a ticket is given to the applicant; but no sooner a ticket is given to him, it loses its character and becomes an "expenditure". Therefore, in the present case, the expenditure of Rs. 500 was incurred on April I, 1963, when the respondent was given Congress ticket.

In the view we take, we are wholly supported by the decision in Vidyasagar Joshi v. Surindernath Gautam (supra). In that case the notification calling the election was made on January 13, 1967. The appellant had made the deposit of Rs. 500 as security and Rs. 200 as application fee with the Congress Party on or before January 2, 1967. Not only that this payment was made before the notification but further the appellant was denied Congress ticket on or about January 10, 1967, that is, before the notification. According to the rules of the Congress Party, the security deposit was refundable to the candidate, if he was not selected. But it was also provided in the same rule that if a candidate contested election against the official Congress candidate, the security deposit would be forfeited. The appellant in that case chose to stand as an independent candidate against the official Congress nominee and incurred the penalty of forfeiture. This was after the date of filing of the nomination papers (20 January 1967j. The appellant had time till January 23, 1967, to withdraw from the contest. If he had done so, the deposit would have presumably been returned to him. But as he became a contesting candidate, the forfeiture of the deposit became a fact. The appellant''s contention was that as the payment of Rs. 700 had been made before the period marked by section 77(1) of the Act, it was not an expenditure within the meaning of that section. Their Lordships rejected this contention. They distinguished their decision in Haji Aziz v. Commissioner income tax (19l2) SC 051, on the ground that "the question there arose under the Income Tax Act and the analogy was not apt" because "not only the prescriptions of the two laws are different, but the underlying principle is different also." They further distinguished an earlier decision of theirs which had turned upon the question when the candidate became a candidate for the application of the rule and section 123(7) of the Representation of the People Act, as it then stood. Their Lordships observed that in that earlier case it was held that the candidate became a candidate when he unequivocally expressed his intention by making the payment, but the "question of candidature is now obviated by prescribing the two termini between which expenditure is to be counted." Their Lordships further rejected the appellant''s contention that such an expenditure cannot be regarded as expenditure in connection with the election because the connection must be the connection of utility and not something which is of no use but rather against the chances of victory. The last mentioned question does not arise in the present case.

On behalf of the respondent it was urged that he was not given Congress ticket by the Provincial Congress Committee, but it was given by the Central Parliamentary Board. In our opinion that makes little difference. The prescribed fee and the deposit made the respondent eligible to a Congress, ticket. It does not matter whether the ticket was given by the Provincial Congress Committee or by the Central Parliamentary Board. In fact the Central Board is the final authority to give a ticket or refuse it. It was an argument for the respondent that the High Command could give the ticket to the respondent even if the prescribed fee and deposit had not been made. But, in our opinion, that does not mean that a payment actually made must be ignored merely because the Central Parliamentary Board had the power to exempt a candidate from such payment.

For these reasons it must be held that the respondent incurred an expenditure of Rs. 500 on April 1, 1963, when Congress ticket was given to him, and in consequence of which the deposit was forfeited to the Congress party.

As regards the application fee of Rs. 200, the position is different. While Ramnarayan Purohit was being cross-examined, we allowed the respondent to get produced through him the report and recommendation of the Ad hoc Committee to the Central Parliamentary Board of the Congress. This document the witness had himself brought from Bhopal, evidently on instructions from the respondent. From that document it appears that it was on March 26, 1963, that the Ad hoc Committee considered the rival claims of the respondent and Kanhaiyalal Mishra (respondent No. 2). Thus the application fee of Rs. 200 was utilized for the purpose of the respondent''s election and became an expenditure on that date. As it was a day prior to the date of the notification, it must be held that that expenditure was not incurred within the accounting period-under section 77 (I) of the Act.

In the result, it must be held that a sum of Rs. 500 must be added to the expenditure shown in the respondent''s return of election expenses.

* * * *

[After discussing some other expenditures, the judgment proceeds-.

Under section 77(1) of the Act, a candidate is required to keep a separate and correct account of all the expenditure in connection with the election incurred or authorised by him It is quite clear from section 158 of the Act that the amount of security deposited u/s 34 is to be returned to the person making it or his legal representative or is to be forfeited to the appropriate authority in accordance with the provisions of that section. Sub-section (2) enacts "except in cases hereinafter mentioned in this Act the deposit shall be returned as soon as practicable after the result of the election is declared." In the case of a successful candidate, there is no question of deposit being forfeited. It therefore, becomes returnable the very next moment after the declaration of the result of the election, that is to say, on the same day on which the result of the election is declared.

The word "expenditure" means "the action or practice of expending disbursement, consumption, amount expended from time to time" (Shorter Oxford Dictionary). And the word "expend" means to pay away, lay out, spend (money), esp. for determinate objects use up (material or force) in any operation." It is thus clear that a deposit of security money cannot be characterised as an amount ''spent'' or ''consumed'' or ''used up'', unless and until it is forfeited. In this view of the matter, the deposit which is made after the first material date u/s 77(1) and becomes compulsorily returnable on or before the second material date under that section, cannot be said to be an ''expenditure incurred'' within the meaning of that section. It becomes an ''expenditure'' only when it is forfeited, but not otherwise. This view was also taken in Chandra Shekhar Singh v. Sarjuprasad Singh 22 E L R 206.

A contrary view was taken by the Election Tribunal, Surat in Katariya Takandas v. Pinto Frederick 18 ELR 403, on which Shri Munshi relied. There it was held that it is an expenditure actually incurred for the election purposes during the period of election and the mere fact that it would be returned to the candidate if elected or under certain conditions, cannot justify non-inclusion of such expenditure in the account to be filed u/s 77 of the Act. Three reasons appear to have been given by the learned Tribunal. As in the case before us, so in that case, that ground was raised for the first time before the Court. We do not see what could come in the way of the Court to hold that an amount included in the return of election expenses was not an expenditure within the meaning of section 77 of the Act, so that its inclusion in the return was based on a misconception. We are clearly of the opinion that where a candidate includes in his return of election expenses, a sum which is not in the eye of law an expenditure, and where no evidence is required to be taken and the matter is purely one of law, the appellate Court can certainly exclude it from consideration in calculating the total amount of election expenses of the candidate for the purposes of section 77, read with section 123(6) of the Act. The second ground stated by the learned Tribunal is that once an expenditure is shown in the accounts lodged by a candidate, it is not open afterwards to say that they were wrongly shown. We are unable to concur in this view. No estoppel is created. The third reason stated by the Tribunal is that it was an expenditure actually incurred for the election purposes during the period of election, and the mere fact that it would be returned to him, cannot justify one to say that it was not an expenditure. Emphasis is laid on the fact that the security is deposited "during the period" specified in section 77(1). In our view, this is not the correct approach. On the day of the declaration of the result, and as soon as the result is declared, it becomes certain whether the amount of deposit is forfeited, and, if not forfeited, it is bound to be refunded. In the former case, the deposit losses its character and at once becomes an expenditure; but, in the latter case, it still remains a deposit and at no time partakes the character of an expenditure. It is true that the moment the result is declared, in practice, the amount deposited is not refunded in cash to the candidate then and there. If it had been, the position would have been beyond argument. The mere fact that it is not practicable to place the money back into the hands of the candidate then and there will not make any difference. We are, therefore, of the opinion that the inclusion of the amount of Rs. 250 in the return of the election expenses was unnecessary and it must now be excluded in calculating the true and correct grand total of the respondent''s expenses.

Petrol.- At this juncture, we shall further recall that an expenditure of Rs. 59.16, for which petrol was purchased from J. Shukla and Co. on May 9, 1963, is entered in the return of election expenses to the respondent There is a corresponding entry in the dealer''s book. There is no doubt that this expenditure was incurred on the 9th May, after the date of the declaration of the result. It is, therefore, not within the relevant period fixed in section 77(1) of the Act. It is not the appellant''s case before us that this petrol was not purchased on the date as shown in the return and in the dealers books, but during the relevant period. It must, therefore, be held that this amount of Rs. 59.16 must be subtracted from the total of the expenditure shown in the respondent''s return of election expenses.

Conclusions.-The conclusions we have reached may now be summed up as follows :-

(1) It is proved that on April 6, 1963, a certain person offered to pay Rs. 50,000 to the petitioner if he would withdraw from the contest, but his identity is not proved. It is not proved that that person was Dr, Ausaf Hussain of Sagar. It is not proved that he was an agent of the respondent. It is not proved that he Offered the (sic) with the consent of the respondent.

(2) It is proved that the following, among others, were agents of the respondent within the meaning of section 123 of the Representation of the People Act, 1951, read with its explanation :-Shyamacharan Shukla, Parmanand Bhai Patel, Laxmishankar Bhatt, Basant Kumar Tiwari, Chakrapani Shukla, Wasudeo Chandrakar, Bhuwan Bhaskar Singh, Rohini Kumar Bajpai, Jaideo Satpati and N. N. Sell.

(3) It is proved that electors were conveyed to some of the polling stations (but not all as alleged by the petitioner) in motor vehicles, but it is not proved that any vehicle was hired or procured for this purpose with the respondent''s consent.

(4) It is proved that the Mahakoshal, a Hindi daily, published from Raipur, and Shyamacharan Shukla, 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 I, II and III) 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 respondent did not believe any of them to be true. It is held that they were statements of fact and that they were reasonably calculated to prejudice the election prospects of the petitioner.

We felt persuaded to hold that they were published with the consent of the respondent within the meaning of section 123(4) of the Act, but we have given benefit of doubt to the respondent.

(6) It is proved that the respondent paid Rs. 200 as application fee and Rs. 500 as security deposit, total Rs. 700, in the office of the provincial Congress Committee, Bhopal, for obtaining Congress ticket to contest this bye-election. We also hold that this sum of Rs. 700 was an ''expenditure'' incurred in connection with the respondent''s election. But we hold that the application fee, Rs. 200, was not election expense within the meaning of section 77 of the Act, as it was incurred before the notification calling the election.

(7) We hold that the following expenditure was (sic) or authorised by the respondent within the meaning of section 77 of the Act, but it was not shown in the return of election expenses:-

(a) Paid to the Congress as security deposit for obtaining party ticket, which amount was forfeited when ticket was given to the respondent (on April 1, 1963)

Rs. 500.00

(b) Price of cloth paid to Keshrichand

Rs. 510.00

(c) Price of two bags of rice, paid to Annapurna Rice Mills

Rs. 108.74

(d) Cost of cards and letter papers, paid to Maha-koshal Press

Rs. 96.00

(e) Clerical error in entering in the return, expenditure of Rs. 60.37, instead of Rs. 80.37

Rs. 20.00

Total . .

Rs. 1234.74

This amount must be added to the total expenditure shown in the return.

(8) Benefit of doubt must go to the respondent in respect of:-

(a) Rs. 633.75 payment to Laxmi Press, Raipur, appearing in

its account books.

(b) Rs. 315.00 payment to a cook and 3 other workers of Lawan.

(9) All other allegations of the appellant in relation to election expenses are not proved.

(10) We hold that the following payments, which the respondent included in the return of his election expenses, were not election expenses within the meaning of section 77 of the Act:-

(a) Security deposited u/s 34 of the Act ..

Rs. 250.00

(b) Petrol purchased from J. Shukla and Co. Raipur on May 9, 1963 (after the declaration of the result)

Rs. 59.16

Total

Rs. 309.16

This amount of Rs. 309.16 must be subtracted from the total expenditure as shown in the respondent''s return of election expenses.

(11) Thus we hold that the account of the respondent''s election expenses correctly comes to this:-

Shown in the return of election expenses Add Rs. 1234.74

Rs. 6324.14

Rs. 1234.74

Subtract Rs. 309.16

Total

Rs. 7558.88

Rs. 309.16

Rs. 7249.72

This being in excess of Rs. 7,000, the permissible limit, it is held that the respondent incurred or authorised expenditure in contravention of section 77 of the Act, and, therefore was guilty of corrupt practice u/s 123(6) of the Act.

(12) It is held that the election of the respondent was void u/s 100(1)(b) of the Act.

It remains to be mentioned that at the conclusion of the hearing of this appeal, a question arose whether proceedings should be drawn up u/s 99 of the Act and notice should be given to Shyamacharan Shukla why he should not be named for having committed corrupt practice as defined in section 123(4) of the Act. Three false statements (Annexures T, IT and III) were published in the Mahakoshal, of which he was the owner, editor, publisher and partner, and that his responsibility was no less even if he was designated the Chief Editor. Shyamacharan Shukla was an agent of the respondent within the meaning of that section. Shyamacharan was not, and could not be, made a party to the election petition and, therefore, not in this appeal. In KiskoresingJi v. Bhanwnrilal 1066 MPL J 563 : 1967 J L J 206, the election of Kishoresingh had been declared void by the election Tribunal. He appealed to this Court. The election petitioner also made a grievance that Khumansingh, Umashankar, Umashankar Trivedi and V. K. Saklecha committed corrupt practices so that the Tribunal should have noticed them and named them u/s 99 of the Act, and that that should be done by the appellate Court. We said in that case that the petitioner should have moved this Court as soon as it became seized of the appeal so that the requirements of the proviso could be complied with before the appeal became ripe for hearing. On the ground of avoiding further delay, proceedings u/s 99 were not drawn up in that case. In the present case, it must be recalled that when this appeal came up for hearing in April 1968, the respondent raised certain preliminary objections and the appellant also argued certain preliminary points, all of which were decided by our order dated May 4, 1968. It was the duty of the appellant on that occasion to satisfy us prima fade that Shvamacharan Shukla had committed a corrupt practice u/s 123(4) of the Act, so that a notice could be issued to him and the opportunities to which he was entitled u/s 99 of the Act could have been made available to him. That was not done. In our opinion, avoiding further delay is again the outweighing factor.

Another question which arose at the conclusion of the hearing was whether Kanhaiyalal Mishra (respondent No. 2) should be named. As he is a party to this appeal, no fresh notice under the proviso to section 99 of the Act is required to be given to him. Shri Pandey, his learned counsel, first contended that the election petition itself was defective in as much, as the affidavit filed with it was not valid and did not fulfil the requirements of the law. This question had been decided by the Supreme Court, but Shri Pandey contended that it is not binding on him. We are unable to accept this argument. As respondent No. 2 was a party before the Supreme Court, that decision is binding on him. He is not entitled to reagitate that question. The second argument advanced by Shri Pandey was that the reasons for naming Shyamacharan Shukla were stronger than for the second respondent. Although that cannot be a ground for absolving the second respondent the corrupt practice which he is alleged to have committed in publication of a false statement (Annexure I) by distributing that particular issue of the Mahakoshal at Lawan. It is no doubt true and fully established that the second respondent was an agent and worker of the respondent. He issued an appeal (Ex. P-37) and he accompanied the respondent and addressed election meetings. But, in our opinion, the evidence of Hariram (P. W. 52) and Bishram Prasad Tiwari (P. W. 82) that the second respondent distributed the issues of the Mahakoshal is of a weak type and not safe to be relied upon for the purpose of naming the second respondent.

We must observe that the false statements (Annexures I, II and III) published in the Mahakoshal must have seriously prejudiced the appellants election prospects. We have given benefit of doubt to the respondent on the question of consent. On this occasion, we desire to express our feeling that whereas the cherished aim of our law is that elections must be free and fair, and whereas the Supreme Court has time and again made observations such as-

A campaign of slander is likely to create prejudice in the mind of the people against him. It cannot be put down as cynicism when it is sometimes said that the bigger the lie the greater is the chance of its being accepted as true. There is unfortunately a tendency in the minds of the unwary public to believe the worse about individuals. Democracy will be a farce if interested persons are allowed to freely indulge in character assassination daring election.

Gurujt Shrihari v. Vithalrao and others (supra) tnderlal v. Lalsingh (supra) yet, in our law there is a loophole for commission of that corrupt practice, and more effectively, and also with impunity, through a newspaper. The law should be more stringent.

We further desire to observe that if incurring or authorising expenditure in excess of the prescribed limit is to be a corrupt practice, as it is now, the provisions regarding maintenance of accounts of election expenses must be more stringent.

We thank Shri Dharmadhikari for making available to us copies of the recent decisions of the Supreme Court in Vidya Sagar Joshi v. Surindernath Gautam (supra); Guruji Shrihari v. Vithalrao (supra); Dr. Chenna Reddy v. Ramchandra Rao (supra); and Samant N. Balhrishna v. George Fernandez (supra) for which we had to wait after the appearance of their short notes, one after another, in the issues dated October 15, 1968; December 15, 1968, January 1, 1969; and March 1, 1969; respectively of the Supreme Court Notes.

The appeal is allowed. It is declared u/s 100 (I) (b) of the Representation of the people Act, 1951, that the election of Shri Dwarka Prasad Mishra to the M. P. Legislative Assembly, in the bye-election of May 1963, from the Kasdol constituency, was void because it has been proved that he incurred or authorised expenditure in contravention of section 77 of the Act and thus he has been guilty of corrupt practice as defined in section 123(6) of the Act, and we record that finding u/s 99 of the Act.

We direct that the parties shall bear their own costs throughout.