Kishore Singh vs Bhanwarlal and Others

Shiv Dayal J.

In the general elections of 1962, Mohansingh had been returned to the Madhya Pradesh Vidhan Sabha from Sitamau Assembly Constituency, That election was invalidated on an election petition (herein-after called the former election petition filed by Bhanwarlal Nahta. In consequence thereof, in January 1963, bye-election took place in which Kishore- singh was returned. Bhanwarlal Nahta, who had contested the bye-election, again Bled an election petition, allowing which the bye-elect ion has been declared void on the ground of corrupt practices having been committed by Kishore Singh himself, by his election agent and also, with their consent, by his agents. The Election Tribunal, Ratlam, by its order, dated 7-12-1964, has declared the election of the returned candidate void. Kishore singh (here-inafter called the Appellant) has preferred this appeal u/s 116A of the Representation of the People Act, 1051, (hereinafter called the Act), Bhanwarlal Nahta (hereinafter called the Petitioner) has also filed an appeal from that order (It is First Appeal No. 13 of 1965). Narayansingh and Suryapalsingh, being the other candidates at the election, are pro forma respondents. Both the appeals are being disposed of together.

Out of a number of corrupt practices, alleged to have been committed by the Appellant and his agents, it has been found that the following nine statements of facts in relation to the personal character or conduct of the Petitioner were published by the Appellant and his agents and those statements were made with a view to prejudicially affect the election prospects of the Petitioner. Those statements may conveniently be divided into two categories:(i) false statements allegedly made by the Appellant or his election agent, and (ii) false statements allegedly made by persons other than the Appellant or his election agents, but allegedly with their consent.

In the first category are the following statements:--

(1) The Appellant in the course of his speech at a public meeting held at GUJAR BARDIA on 8.9.63 stated that the Petitioner had embezzled lakhs of rupees of the Bank.

(2) Surajmal Porwal (also described as Surajmal Rindawala) at the same public meeting at GURTABARDIA and in the presence of the Appellant stated that the Petitioner had got his (Surajmal''s) son killed, through his (petitioner''s) clerk, by administering poison in a betel leaf,

(The Petitioner is an Advocate).

(3) Surajmal, above named in a public meeting held at BHUNDHARKA on 15 December 1983 made the aforesaid statement about his son having been got killed by the Petitioner.

(4) The Appellant and Mohansingh stated before a large number of persons at BADWAN on 25 December 1963 that the Petitioner was, in his election campaign, taking assistance of Hamid Patwari, a Government servant, who was exercising pressure while canvassing for the Petitioner:

(5) Virendra Kumar Sakhlecha (election agent of the Appellant) and Mohansingh, an agent of the Appellant, in a public meeting at LADUNA on 29 December 1963, stated (a) that the Petitioner had embezzled lacs of rupees of the Co-operative Bank, and (b) that the Petitioner had got Narayan Singh and Suryapalsingh set up as candidates, by bribing them in order to deprive the Jan Sangh (meaning the Appellant) of votes:

The falsity of these statements is not challenged before us. Nor is it contended that they were not in relation to the personal character or conduct of Bhanwarlal Nahta; nor is it argued that they cannot be held to be reason ably calculated to prejudicially affect the prospects of the Petitioner''s election. The question is whether those statements were actually made.

While dealing with an election petition, it has always to be borne in mind that, as a sound principle of natural justice, the success of a candidate who has won at an election must not be lightly interfered with. But, at the same time, one of the essentials of the election law is to safeguard the purity of the election process and to see that people do not get elected by flagrant breaches of that law or by corrupt practices." [see: Jagannath v. Jaswantsingh and others 9 ELR 231]. Any attempt to procure success by unfair and foul means must be ruthlessly suppressed. Corrupt practices employed must be sternly put down and suitably dealt with by enforcing the law of elections. However, although an election petition is to be tried in accordance with the procedure applicable to civil suits, the standard of proof for making out a corrupt practice is that as required in criminal cases. The rule applicable is not that of prepondrance of probability but it is the rule of beyond reasonable doubt which is applicable to prove corrupt practices. There should be no reasonable doubt, the benefit of doubt will go to the returned candidate against whom the charge of corrupt practice is made. In Hornal v. Neuberger Products Ltd. (1957) 1 QBD 252 four main groups of cases are catalogued, where the rule of a higher standard of proof "beyond reasonable doubt" is applicable. They are:

(1) Cases where there was a specific charge of crime..;

(2) Matrimonial proceedings...;

(3) The "third party" cases, namely, those where an allegation of crime is made not against a party to the proceedings but against some third party and

(4) The residuary group of cases in which a charge of fraud or fraudulent statement has been made in the course of civil proceedings...;

Now, proof of corrupt practice, and in case it is committed by a person other than the candidate or his election agent, further proof of consent of the candidate or his election agent, must be added to the above list. Their Lordships have laid down in Jagdev Singh Sidhanti Vs. Pratap Singh Daulta, . that heavy burden lies upon the applicant to establish: (i) the commission of acts which the law regards as corrupt; and (ii) the responsibility of the successful candidate, directly or through his agents, or with his consent, for its practice not by mere preponderance of probability, but by cogent and reliable evidence beyond any reasonable doubt." It is with this approach that the evidence must be examined.

GUJARBARDIA

(i) The allegation in the petition was that the Appellant himself, in the course of election propaganda, addressed a public meeting at GUJARBARDIA on 8-11-1963, in which he stated that the Petitioner had embezzled lacs of rupees. It was not the Appellant''s defence that he did address that meeting but did not make that statement. In paragraph 18-A (iv) of his written statement, he pleaded that he "does not remember to have gone to Gujar Bardia on 8-11-63 and there could not be any occasion for him to hold any public meeting The Tribunal framed issue No. 7 (a) and recorded a finding in the affirmative. Learned Counsel for the Appellant has taken us through the evidence of Girdharilal, Pyara and Udairam, who were examined by the Petitioner to prove that issue.

(ii) Girdharilal (P.W. 51) is a teacher in Gujar Bardia School. He says that he was going to the evening school, but on his way he found that a public meeting sponsored by the Jan Singh was in progress. He stopped to listen to the speeches. Kishoresingh, in his speech, said that Nahta had committed defalcation of lacs of rupees of the Bank. It is argued for the Appellant that this witness is interested in the Petitioner inasmuch as he is a friend of one Devichand, and was produced as a witness in his stead. The latter bad been cited as a witness but since he had been disbelieved in the former election petition, be was given up. Now, firstly it is not admissible whether Devichand was believed or disbelieved in the former case. Secondly, the identity of that Devi Singh is not established. Although the name of one Devichand does appear in the list of witnesses filed by the Petitioner in the present case, it is not known for what purpose he was cited. Petition does not say that he had been cited for this issue; nor was he asked about it nor about his identity. Girdharilal does not say that Devichand was present in that meeting. The second ground of attack against Girdharilal is that this was the only meeting, during the election campaign, which he attended. We are unable to appreciate this criticism. A person cannot be disbelieved merely because he happened to attend only one meeting organised in connection with an electioneering campaign. It was argued that his statement should be disbelieved because he admits to have reached the school at 8.30 P.M., while the school hours were from 8 P.M. We do not see how that can be a ground for disbelieving the witness. That he did not reach the school punctually might be a ground for his superior authorities to take disciplinary action against him, but that does not falsify his statement that he did attend the meeting. The witness says in cross-examination that he had to stop there because the road was blocked. We do not find anything in the statement of Girdharilal for which he could be disbelieved. He is a teacher; he had no interest to depose against the Appellant; there was no cross-examination about the statement which the witness attributed to the Appellant. Where a witness is not cross-examined on a point, his testimony must be believed, unless something so patent or glaring is shown as would render him unworthy of credit. In Sri Baru Ram Vs. Prasanni and Others, at p 97, omission to cross-examine a witness (Jhandu) was mentioned, while believing him. See also Punjab Rao Vs. D.P. Meshram and Others, at p. 1183. (Kishan Shende''s evidence).

(iii) Pyara (P.W. 59) corroborates Girdharilal. According to this witness also, the Appellant stated in his speech that the petitioner had embezzled lacs of rupees of the Bank. The criticism advanced for the Appellant against this witness is that he had not been summoned through the Court and that this was the only meeting which he attended. In our opinion, these are no grounds for disbelieving him. There is no cross-examination worth the name about the objectionable statement.

(iv) Udairam (P.W. 62) also states to have attended that meeting and to have heard the Appellant saying in his speech that Nahta had embezzled lacs of rupees of the Bank. With regard to this witness, it is pointed out that the sequence in which he says Surajmal, Mohan singh and Kish ore Singh addressed the meeting does not agree with the sequence stated by Girdharilal. According to Udairam, Surajmal spoke first; he was followed by Mohansingh, and Kishoresingh was the Jast speaker. But Girdharilal had stated that first spoke Mohansingh, then Surajmal and then Kishoresingh. We do not attach any importance to this discrepancy. Udairam might have committed a mistake in giving out the sequence of the speakers. At any rate, Pyara stated that the speakers were Mohansingh, Surajmal and Kishore-singh: when he was specifically cross examined on this point, he said that the first to speak was Mohansingh, who was followed by Surajmal. Thus, on the point of sequence also, Pyara corroborates Girdharilal. He is chowkidar of the village and there was no suggestion of the witness being interested in the Petitioner. He says that the road was blocked when the meeting was in progress In this also he corroborates Girdharilal.

(v) It was an argument for the Appellant that these witnesses were not examined on the same day and that this was studious. Girdharilal was examined on the 23rd October, while Pyara and Udairam were examined on the 24th. Doubtless, propriety demands that witnesses relating to a particular incident should be examined on one and the same day in order to avoid the criticism that possibly the evidence of one witness was made known to others for defeating the purpose of cross-examination. But, in the present case, it is apparent enough that both the parties did not care to observe that rule of propriety. Neither party arranged their witnesses in such order as to produce the witnesses on a particular incident at a stretch- The Appellant also did the same. Moreover, it was open to the Appellant to invite particular attention of the Tribunal to this aspect and solicit appropriate directions. That was not done. Nothing has been shown to us to infer any sinister motive behind the non-observance of that rule. Above all, it cannot be legitimately argued in the appellate Court that it should merely, on that ground, reverse a finding of the Tribunal on the appreciation of evidence.

(vi) The aforesaid witnesses, Girdharilal (P.W. 51), Pyara (P.W. 59), and Udairam (P.W. 62) further proved that at the same time at GUJAR-BARDIA, Surajmal Rindawala said that the Petitioner had got his (Surajmal''s) son killed through his clerk by administration of poison in betel leaf. [Really speaking, this corrupt practice (No. 2) falls in the second category but as the witnesses of both the parties for Nos. (1) and (2) are common, we have turned to it just now. The aspect of consent will be dealt with at the appropriate place.].

(vii) In rebuttal, four witnesses were examined. Kishore Singh, Appellant (D.W. 2) stated that no meeting was held in GUJARBARDTA on 8 November 1963, nor was he or Mohansingh present in any such meeting, nor did Surajmal Porwal deliver any speech. In cross-examination he emphasized that after the election petition was filed, he went to the villages to enquire what speeches had been delivered in the meetings sponsored by the Jan Sangh, but, since in GUJARBARDIA no meeting at all was held, he did not make any enquiry. He admits that paragraphs 1 to 16 of the written statement were verified as true to his knowledge In cross-examination, he states that it is difficult to say what places he visited and when, in the course of the campaign. He is contradicted by Ramchandra (D.W. 17) inasmuch as the latter says that a meeting at GUJARBARDIA was in fact held by the Jan Sangh, although he gives the date as 10 January 1964.

(viii) Surajmal Porwal (D.W. 4) also flatly denied to have at all gone to GUJARBARDIA during the campaign. He went to the length of saying that in this bye-election be did not work for anybody. As he had stated that in the general elections of 1957 and 1962 he had worked for the Petitioner, he was asked in cross-examination which villages and when he visited during the electioneering campaign of 1957. He replied that he did not remember. Similar question was put about 1962 election; the same was his reply. This witness admitted in cross-examination that he had made certain complaints against the Petitioner to Shri Ganeshram Anant; a Minister, to the Registrar and Deputy Registrar, Co-operative Bank; and to the Chief Minister, that he had been doing so since 1962, and that in 1963 he had gone to Bhopal with a deputation against him. He says that his village Rinda is only three miles from Gumarbardia. The Tribunal has disbelieved this witness and has stamped him as a liar. Mohansingh (D.W. 18) also stated that he did not go to Gujarbardia on 8 November 1963, nor did he address any meeting. He had been returned in the general election from this constituency, but his election was declared void on the former election petition. It was at his instance that the Appellant was set up as a candidate against Nahta in the bye-election. The Tribunal, after discussing the evidence, disbelieved him.

(x) Ramchandra (D.W. 17) belongs to GUJARBARDIA. (The Election Tribunal overlooked his evidence and made a mis-statement in the judgment). We have carefully perused his entire deposition. He says that on 8 November 1963, no meeting was held in his village. He says that the adult school was closed for 1 1/2 years. His veracity is completely shaken in cross-examination. He admits that a meeting was, in fact, addressed by the Jan Sangh at GUJARBARDIA but it was on 10 January 1964, He knows Surajmal Rindawala. He was bold enough to add that the latter did not go to GUJARBARDIA. Surajmal Bays that he goes to Rinda from the side of GUJARBARDIA. Ramchandra, himself had to admit in cross-examination that he does not keep a watch on visitors to his village. He had further to admit that the way to Rinda is through GUJARBARDIA. Now, the distance between GUJARBARDIA and Rinda being only three miles, it is impossible to believe that Surajmal did not go to GUJARBARDIA at all. The witness spoke another lie when he said that he was not interested in the bye-election and he did not participate in the propaganda for anybody. Bat later on, he had to admit that on his house a Jan Sangh board was displayed even upto the date that his deposition was recorded. He then admitted that even before 10 January 1964, election propaganda had been going on in GUJARBARDIA, but he did not remember who had visited the place in the months of October, November and December in connection with the campaign. Since the witness gave an exact date (10-1-1964) on which meeting of the Jan Sangh was held and denied that any meeting was held on another specific date (8-11-1963), his veracity was tested by putting his memory to test. He was asked whether meetings sponsored by the Congress were held in his village. He replied in the affirmative; but had to say that he did not remember the dates. He said that the Petitioner did go to his village in connection with the bye-election, but he did not remember the dates of his visits, nor was even able to say whether the petitioner visited the village on the occasion of Dassehra or not. When cross-examined regarding the closure of the adult school, he admitted that he was neither a student, nor a teacher, nor a member of the Panchavat. No further comment is necessary to hold that this witness is wholly unreliable.

(xi) The Tribunal emphatically found it conclusively established that a meeting was addressed at GUJARBARDIA on 8-11-1963 by Mohan Singh, Kishoresingh and Surajmal in which those false statements (No 1 and No. 2) were made, having ourselves gone through the entire evidence, we uphold those findings. We must add that remarkably the Appellant came forward with a bold statement that no meeting was at all held at GUJARBARDIA. In this statement, be was contradicted by his own witness, Ramchandra (P.W. 17), who said that a meeting was in fact held at GUJARBARDIA, although on a different date. If a meeting was in fact held at GUJARBARDIA, on 8-11-1963 as we have found it was--it lends strong support to the finding of the Tribunal, as in a criminal case when the plea of alibi is found to be false. It goes a long way to show that the Appellant had no respect for truth. The bare denial on their part as regards Kishoresingh and Surajmal having made those statements cannot be believed on its face value and in preference to the positive and unshaken evidence of the Petitioner''s witnesses Girdharilal, Pyara and Udairam.

(xii) For the application of section 123 (4) of the Act, the Appellant and the Petitioner must have been "candidates" on 8 November 1963. The Tribunal held that the Appellant was a candidate as back as from 29 March 1963. In our opinion, there is no warrant for that finding. It is true that on that date, a notification for holding a bye-election was published by the Election Commission, fixing 4-5-1963 as the date for polling but in the meantime, on 1-4-1963, the Supreme Court passed an order of stay. On 4-4-1963, the Election Commission cancelled that notification. Therefore, the nomination paper filed by the Appellant automatically became wiped off. A fresh notification was issued on 12-12-1963 appointing 19-12-1963 for filing nomination papers, 21-12-1963 for scrutiny of nomination papers and 21-12-1963 for polling. The meeting at GUJARBARDIA was held on 8-11-1963. Still we hold that the Appellant was a "candidate" within the meaning of section 123(4) of the Act on 8 November 1963. By virtue of section 79 (b) of the Act a person is deemed to have been a candidate as from the time when, with the election in prospect, he begins to hold himself out as a prospective candidate, and not merely from the date when his nomination paper is filed. Some stress was laid in the written statement [paragraph 15-A (iv) ] and evidence was also led to show that it was on 20 December 1963 that the Jan Sangh party decided to set up the Appellant as its candidate but that again is not the determining factor. [See: S. Khader Sheriff Vs. Munnuswami Gounder and Others, ]. In the present case, the former election petition was finally decided by the Supreme Court on 3 October 1963. Since then the election was in prospect. It is undeniable that if the Appellant addressed the meeting at GUJARBARDIA, he held himself out as a candidate for the bye- election. From his conduct, it must be inferred that he had then dearly and unambiguously declared to the outside world his intention to stand as a candidate. Shri G.P. Singh candidly and fairly conceded this position. 16 was not argued before us that the Petitioner was not a ''candidate'' on 8 November 1903.

DHUNDHARKA:--

(i) Surajraal Porwal made another speech to the same effect at Dhundharka on 15 December 1963. In proof of this contention, the Petitioner examined Bhawanishanker (P.W. 24), Khemraj (P.W. 28), Mangilal (P.W. 30) and Bagdiram (P.W. 38). The Tribunal found the issue in favour of the Petitioner. It is argued for the Appellant that there is discrepancy in these statements when, according to Bhawanishanker (P.W. 24) and Bagdiram (P.W. 38), Surajmal said that Nahta had got his son killed through his munshi by administration of poison with pan (betel-leaf). In the deposition of Mangilal (P.W. 30), the word ''munshi'' does not find a mention and in that of Khemraj, both "munshi" and "pan" are omitted. In our opinion, this diserepancy does not detract their credibility, as Khemraj or Mangilal was not asked any question about the omission which is now relied on, in cross- examination. However, every discrepancy does not make evidence unreliable. The following remarks occur in Punjab Rao Vs. D.P. Meshram and Others, at p. 1180:--

We have been taken through the evidence of those witnesses and though there may be some contradictions on minor points on the whole their evidence is consistent and has a ring of truth in it. Moreover, the Tribunal which heard arid saw the witnesses depose has believed in their veracity.

(ii) We have perused the deposition of the above named witnesses as also those of the Appellant (D.W. 2) and Surajmal (D.W. 4). It is note worthy that Khemraj is a member of the Jan Sangh. There is no reason as to why he would give false evidence against the Appellant who was set up by his party. Mangilal also is a member of the Jan Sangh party. Bagdiram (P.W. 38) is sirpanch of the village and there is nothing to discredit his evidence. We are satisfied that the statements of the Petitioner''s witnesses have a ring of truth. We uphold the finding reached by the Tribunal on appreciation of evidence, [This corrupt practice too fills under the second category but as the statement at as practically the same as Surajmal had made at GUJARBARDIA, we thought it appropriate to deal with it immediately after No. (2). We shall discuss the point of consent later on.].

BADWAN:--

(i) In the written statement, the Appellant denied that he or Mohan-singh went to Bad wan on 25-12-1963 or made statement, as alleged in the petition. It was also contended that the allegation did not fall within the purview of corrupt practices. Again, in respect of this statement, justification or truth was not pleaded. Laxman (P.W. 37) proves the objectionable statement of the Appellant and Mohansingh. They said that Nahta was getting Congress propaganda being done through Hamid Patwari; that prior to this statement, the inhabitants of the village were inclined to vote for Nahta but thereafter they decided otherwise. There was no cross-examination at all of this witness. When the evidence of a witness is unchallenged, it has to be accepted as truthful unless it is intrinsically defective or unreliable. However, it is urged for the Appellant that even if Laxman is believed, the charge is not proved; for, according to him, the statement was that the Petitioner was getting Congress propaganda "done by Hamid"

In other words, contradiction is being pointed out between "canvassing for the Congress" and "canvassing for Nahta". In our opinion, the argument is devoid of substance. Nahta had been set up by the Congress. A statement made on the eve of the election to vote for the Congress or to canvass for the Congress necessarily refers to the candidate set up by the Congress. This is a matter of common experience and a matter of common parlance. Sometimes people even refer to a candidate by referring to the election symbol, For instance, when a witness says that he would vote for ''Deepak'', it means that he would vote for Jan Sangh candidate. We would recall here with benefit their Lordships'' observations in Mohan Singh Vs. Bhanwarlal and Others, :

In considering whether a publication amounts to a corrupt practice within the meaning of section 123 (4) , the Tribunal would be entitled to take into account matters of common knowledge among the electorate and read the publication in that background for one of the ingredients of the particular corrupt practice is the tendency of the statement in the public to be reasonably, calculated to prejudice the prospects of the candidate''s election.

What is more, there is no ambiguity in the statement when it is read as a whole. The words, in the context of the well-known facts, reasonably lead only to one inference. [See: Sheopal Singh v. Ram Pratap A I R 1956 S C 677]. The witness first makes a reference to the arrival of Mohansingh and Kishoresingh in his village "in connection with the bye-election"; then, he adds that they had come 15 or 20 days "before the polling" and then he describes the statements made by them. He further describes the effect of that statement on the Petitioner''s prospects. Therefore, in the context, "Congress" necessarily means the Petitioner, and no other meaning can be attributed to it. The testimony of Laxman (P.W. 37) went unchallenged. He is Patel of the village. The Tribunal has believed him; and so do we.

(ii) There is circumstantial evidence to support the statement of Laxman (P.W. 37). V.K. Saklecha, the Appellant''s election agent, and the above-mentioned Mohansingh, had made a complaint, dated 16-12-1963 (Ex. P. 108), to the Sub-Divisional officer, Mandsaur, that Abdul Hamid Khan was exercising undue influence to vote for the Petitioner and this was reported to them by the inhabitants of Badwan. Abdul Hamid (P.W. 22) denied that he did any work for the Petitioner. Shri Jamna Prasad, Tahsildar (P.W. 3) says that he enquired into the complaint (Ex.P-108) but found nothing proved against the Patwari (vide Report Ex. P-109). He says that the complaint (Ex.P-108) was signed by Mohansingh also with whose signature and also the signature of Saklecha, he is acquainted. There is no cross-examination on this point.

(iii) In rebuttal, Kishoresingh and Mohansingh came forward with a bare denial. In our opinion, the Tribunal was right in placing reliance on the evidence of Laxman (P.W. 37) and deciding issue No. I in favour of the Petitioner.

(iv) As regards the second part of the contention that it did not amount to a corrupt practice, suffice to say that, u/s 123 (7) of the Act, obtaining or procuring by a candidate any assistance for the furtherance of the prospects of that candidate''s election, from any person in the service of the Government is corrupt practice (Patwari is a revenue officer) within the meaning of Clause (f) of that sub-section. That being so, the statements of Kishoresingh and Mohansingh amounted to an allegation that the petitioner was committing a corrupt practice, which was clearly and unequivocally in relation to his personal character. Such statement falls within the mischief of Section 123 (4) . See: Inder Lal Vs. Lal Singh, . We uphold the Tribunal''s finding that the commission of the corrupt practice at Badwan, as alleged by the Petitioner, was established.

LADUNA:--

(i) The corrupt practice committed at Laduna on 29-12-1963 is ascribed to Virendra Kumar Saklecha, the election agent of the Appellant, and Mohan singh. Bhagirath (P.W. 41) is a member of the Hindu Mahasabha.

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[After discussing the evidence in regard to the meeting at Laduna and up-holding the finding recorded by the Tribunal on issue No. 14 (a), the judgment proceeds--]

SECOND CATEGORY.

In the second category fall the following statements which the Tribunal has found to have been made and are within the mischief of section 123 (4) of the Act:--

(6) Shri Umashankar Trivedi, in the course of his speech at a public meeting at SITAMAU on 4 January 1964, stated that Bhanwarlal Nahta was an expert in fabricating false evidence.

(7) on 28 October 1963, Surajmal Chhingawat, Secretary of the Jan- Sangh party displayed the following statement on the publicity board, which was placed by the Jan Sangh at MANDSAUR in the main market near the post office at a junction of three roads:

(8) Surajmal Chhingawat stated before a large number of persons on 3 January 1964 at MALIA that Bhanwarlal Nahta had embezzled lacs of rupees of the Bank and had killed by poison the son of poor Surajmal Rinda-wala:

(9) Khumansingh alias Shivaji, in the course of his speeches at public meetings at the places and on the dates mentioned below stated that Bhanwarlal Nahta had embezzled lacs of rupees of the Bank; that his father had also sold Government steel and sheets in black market for Rs. 3,00,000 and was trying to escape; and that Nahta had set up Narayan Singh and Surya- pal Singh, by giving them moneys, for snatching votes of the Jan Sangh candidate.

Arniya

24.12.1963

Ranayara

8.1.1964

Nahargarh

11.1.1964

The Tribunal has found these issues in favour of the respondent. The contention before us with regard to each of these corrupt practices is that it was not made at all and, secondly, consent as required u/s 123 (4) is not proved. Truth has not been pleaded in defence, nor has it been urged that any of them was not prejudicial to the Petitioner''s prospects in the election. In the case of Mandsaur (No. 7), it is contended that it did not amount to an imputation in relation to the personal character or conduct of the respondent.

SITAMAU

(i) It was alleged in the election petition that on 4 January 1964, Shri Umashankar Trivedi, while addressing a public meeting at Sitamau in the course of the electioneering campaign in support of the Appellant, made a statement that Bhanwarlal Nahta was an expert in preparing false evidence. While denying that allegation it was said in the written statement that the allegation had been falsely made with the ulterior motive to deprive the Appellant of utilising his (Barrister Umashankar Trivedi''s) services as counsel in the present case. Narayansingh (P.W. 65) and Bhairusingh (P.W. 71) were examined by the respondent to prove issue No. 9 (a). In rebuttal, Uma-shankar Trivedi (D.W. 7) and Sunderlal (D.W. 5) were examined. The Tribunal, while deciding the issue in the affirmative, observed:

No doubt, Shri Narayansingh as a Congress man but that alone would not make his testimony unreliable.

The Tribunal further ignored as inconsequential the difference in the wording of the speech attributed to Trivedi in the petition and as described by the Petitioner''s witnesses (Narayansingh and Bhairusingh). It also said that slight exaggeration in the evidence would not show that the contention was incorrect. In the next breath, the Tribunal, referring to the evidence of Sunderlal Patwa and Umashankar Trivedi, observed as follows:

Sunderlal was deputed by the respondent to look after his interest in the area round about Sitamau during the bye-election and, therefore, obviously he is an interested person in the respondent. He is also the person who persuaded the respondent to stand as a candidate in the bye-election. U. S. Trivedi is an M.P. from Jan Sangh party from the Mandsaur constituency which includes Sitamau constituency. He is therefore also very much interested in the respondent. I am not inclined to believe their testimony.

The Tribunal does not mention in its judgment the admission of Narayansingh (P.W. 65) that in the former election petition also he was a witness for the Petitioner and the further admission that he was carrying on electioneering campaign for the Congress candidate in Sitamau constituency. As stated by the Petitioner, it was Narayansingh who informed him of the objectionable statement. It is light that Narayansingh cannot be disbelieved just because he was an active worker for the Congress candidate in the bye-election. But then the evidence of Sunderlal (D.W. 5) or Trivedi (D. W, 7) could also not be discarded just because they belonged to the Appellant''s party, which is opposed to the Petitioner''s party. [See observations in Punjab Rao Vs. D.P. Meshram and Others, ]. It was the duty of the Tribunal to weigh evidence of both the parties on the basis of what intrinsically appeared in the depositions.

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[After discussing the evidence of both sides on the point, the judgment proceeds--]

We do not find any good reason to disbelieve Shri Trivedi. Even if it could be said-to put it at the highest-that the evidence of one side equally balanced with that of the other, the benefit has to be given to the Appellant because it is not the preponderance-of- probability -rule, but it is the beyond reasonable-doubt-rule, which is applicable to prove a corrupt practice. [ Jagdev Singh Sidhanti Vs. Pratap Singh Daulta, ].

(viii) Having carefully perused the evidence of the witnesses, we must say that the evidence of Narayansingh and Bhairusingh does not inspire confidence. We disbelieve their evidence and set aside the finding reached by the Tribunal on issue No. 9 (a).

MANDSAUR.

(i) Belying on the evidence of Govindram (P.W. 60), who is a Hotel-keeper near the place where the board was placed, Jagdish Mandowara (P.W 64), as also Ramchandra (P.W. 9) who took a photograph of the bhard, and also on comparision of the handwriting with Ex.P-130 and Ex. P-140, and rejecting the evidence of Surajmal Chhingawat (D. W. 3), the Tribunal found that the board was written by Surajmal Chhingawat and the charge was proved.

(ii) Initially, in the election petition, the date of the commission of this corrupt practice was given as 26-10-1963, but by leave of the Tribunal, it was corrected as 28-10-1963. Before us, an argument was ventured for the Appellant that the Petitioner having in the cross-examination that he had no evidence about the 26th, cross-examination was stopped, but, after the amendment of the petition, the Tribunal was bound to give the Appellant an opportunity to further cross-examine the Petitioner, and that the Tribunal erred is refusing that opportunity. The objection appeared to us as merely technical in the sense that in the photograph (Ex, P-5) itself, the date "28-10-1963" is visible, so that the Appellant was not taken by surprise or it was not as if he was not aware of the clerical error which had crept in the election petition. However, Shri G.P. Singh stated that he would not ask for further cross-examination of any other witness, As Shri Dabir readily offered to put his client in the witness-box forthwith, we allowed the Appellant to further cross-examine the Petitioner.

(iii) Much stress was laid on the non-production of the negative of the photograph (Ex. P-5). It was suggested that this was deliberately done to conceal the background and the place where the board was kept. There is no weight in this argument. Although it would have been better if the negative had also been produced, but its non-production cannot be said to be a deleberate suppression of material evidence. If, from the material on record, it is found that the board was written by Surajmal Chhingawat, he being the Secretary of the Jan Sangh party, it must necessarily have been exhibited at some place, whether conspicuous or inconspicuous, where somebody must have read it, and that suffices to prove publication within the meaning of section 123 (4) . There is definite evidence of Ramlal (P.W. 61) and Kesharlal (P.W.63), who belong to village Sunthi and village Udapura respectively both within the relevant constituency--to have read the board. Surajmal Chhingawat (D.W. 3) himself admitted that a board used to be written in the Jan Sangh office at Mandsaur and thereafter it used to be exhibited at the cross-roads.

(iv) Thus, the only question to be proved under this issue (No. 12) was whether the objectionable statement was in the handwriting of Surajmal Chhingawat. It is unnecessary to repeat the reasons which the Tribunal has given in its judgment for believing the Petitioner''s evidence and rejecting the evidence of Surajmal Chhingawat (D, W. 3).

(v) It was then maintained for the Appellant that the statement could not be read as are in relation to the personal character or conduct of the Petitioner and this was endeavoured to be demonstrated by dissecting that statement. The argument is that it is composed of the following constituents, none of which can be said to be such an imputation.

(a) Cases relating to corruption of Rs. 1,60,000 complaints brought to light-ill doings of Congress (this is the heading).

(b) It is learnt from reliable source that explanation has been called from Congressite Chairman, Vakil Bhanwarlal Nahta.

(c) Let it be recalled that in the past the Jan Sangh made the public award of the corrupt practices of the said Vakil Bhanwarlal Nahta and the Deputy Registrar, Shri Sethi, came to enquire into the complaints and hear the cases of corruption.

(d) The public is very keen to learn of the result of the complaints against Vakil Bhanwarlal Nahta.

It is contended that the heading relates to misdeeds of the Congress not the Petitioner; calling of explanation is no reflection on personal character; (c) portion is just a matter of information, but not an insinuation; and the last portion merely expresses inquisitiveness. In our opinion, this approach is wholly incorrect. The statement must be read as a whole. A passer-by whose attention was attracted by the board, was not expected to make an analysis of the statement. The whole thing at glance registers in the mind an impression of "corruption", "Bhanwarlal Nahta '', "one lac sixty thousand", "complaints", "enquiry", and the cumulative effect in no mistakable terms is an imputation on the Petitioner''s personal character.

(vi) Thus, in conclusion, we affirm the finding of the Tribunal on issue No. 12.

* * *

[After upholding the finding on issues No. 8-A and in respect of the meetings at Malia, Arnia and Ranayara and setting aside the finding on issue No. 10-A as regards Nahargarh in paragraphs 13 and 14, (he judgment proceeds--]

(i) It remains to consider which of the corrupt practices No 3. (2) (3), (1), (8) and (9) were committed with the consent of the Appellant or his election agent. Practically the entire case-law from 1951 upto date was referred to us by Shri G.P. Singh and Shri R.S. Dabir who ably discussed the ratio decidendi of each case and its background. On a closer examination of the debate before us, we filed that substantial controversy between the learned Counsel is not so much about the requirements of the law as it relates to their application to the present case. We do not propose to burden this judgment with the legislative history of the relevant provisions.

(ii) It is now 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 a candidate or an 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 is 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) of the Act, may be express or implied, To prove consent, direct evidence is not always necessary and in fact it may hardly be available, except in those conceivably extreme cases where a candidate gives in writing to a worker that be should do that thing. No written document is necessary. Consent can be implied or inferred from acts and conduct of the candidate or from other facts and circumstances. It is a matter of fact in every case, (f) Whether the consent proved is express or Implied, the higher standard of proof-beyond reasonable doubt-is required.

(iii) A few cases may be cited in support of our view. Sheopatsingh v, Harishchandra A I R 1958 Raj. 324, which was upheld in Sheopat Singh Vs. Harish Chandra and Another, ; Brijnandan Roy and Others Vs. Jadunandan Singh and Others, ; Sudhir Laxman Hendre Vs. Shripat Amrit Dange and Others, ; Nani Gopal Swami v. A. Hamid Choudhari A I R 1959 Ass 200 : 19 E L R 175; Jagdev Singh Sidhanti Vs. Pratap Singh Daulta, and Khagendranath v. Umeshchandra A I R 1958 Ass 183, which was upheld in Sarat Chandra Rabha and Others Vs. Khagendranath Nath and Others, . In the Assam case, it was found that the voters were carried by mechanically propelled vehicles to the polling booths by B.K., who was in charge of the electioneering campaign on behalf of the Congress party, and B.K., who was President of the Primary Congress Committee and the successful candidates had both contested the election as nominees of the Congress party. It was held by the High Court that although B.K. and B.R. were deemed to be "agents", there was no proof that this was done with the consent, express or implied, of the successful candidates, and that such consent could not be inferred and the circumstances did not convincingly lead to an inference of consent. The Supreme Court took the matter as concluded, as it was a question of fact and not a mixed question of law and fact.

(vi) The Petitioner adduced no iota of evidence to prove express consent of the Appellant or his election agent in the commission of the corrupt practices at Mandsaur (7), Malia (8), Arnia (9), or Ranayara (9); nor those committed by Surajmal Porwal at Gujarbardia (2) and Dbundbarka (3) Surajmal Chhingawat, being the Secretary of the Jan Sangh party at Mandsaur, and Sitamau being in Mandsaur district, and the Appellant having been set up by the Jan Sangh party, it is undoubted that Surajmal Chhingawat was an agent of the Appellant. Similarly, Khumansingh was also an agent of the Appellant. That, without more, would not prove the consent as required by section 123 (4) of the Act. But, (A) Surajmal Porwal, in the presence of the Appellant at Gujarbardia, published the false statement that the Petitioner had got his son killed by poison. From the presence of the Appellant, his implied consent must necessarily be inferred and, (B) we have already held, while dealing with corrupt practice (1), that the Appellant himself made an imputation against the Petitioner that the latter had embezzled lacs of rupees of the bank. So also, (C) while dealing with corrupt practice No. (5), we have held that V. K. Saklecha, the Appellant''s election agent, said that the Petitioner had set up Narayansingh and Sunyapal Singh by bribing them, in order to snatch Jan Sangh votes. That being so, if these statements (A), (B), (C), (as marked above), were also made by the Appellant''s agents at other places, implied consent of the Appellant or his election agent can safely be inferred. That the statements (the Petitioner had embezzled lacs of rupees of the Bank and that he had got Surajmal Forwal''s son killed by poison) were repeated on several occasions, evinces the implied consent required by Section 123 (4) of the Act. In Sheopat Singh Vs. Harish Chandra and Another, , several incidents were established that mechanically propelled vehicles had been used for transporting voters to the polling booths. It was argued before the Supreme Court that it was an error to infer consent on the part of the successful candidate from the mere fact that he had knowledge of the acts. It was argued that consent to an act implied that it was given before it was done. The knowledge of an act means that it was after the act was done, so that knowledge could not be equated with consent. Dealing with this contention, their Lordships observed:--

There would have been force in this argument if alt that was established was a trey act or even a number of them committed to 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 the Appellant must have consented to them. This is an inference which the learned Judges were entitled to draw.

For reasons stated above, we hold that corrupt practices Nos. (2), (3), (7), (8), and (9) (excluding Nahargarh) were committed with the implied consent of the Appellant or his election agent.

(v) We must also say at once that if we had reversed the findings of the Tribunal on corrupt practices Nos, (1), (2) and (5), those on corrupt practices Nos (3), (7), (8) and (9) would have fallen ipso facto. It must be mentioned that if we had believed corrupt practice No. (9) with regard to Nahargarh also proved, we would have further held that it was committed with the implied consent of the Appellant and his election agent. But, even if we had held that Umashankar Trivedi made the alleged speech at Sitamau, we would have held that neither express nor implied consent of either the Appellant or his election agent was proved.

The Petitioner has also filed an appeal to claim a declaration that he has been duly elected. There were four candidates at the election. Votes obtained by them were as follows:

Kishore Singh (Jan Sangh).... 15532

Bhanwarlal Nahta (Congress).... 15110

Narayansingh (Socialist)....749

Suryapal Singh (Hindu Mahasabha)....308

It is urged by Shri Dabir that having regard to the large number of corrupt practices committed by the Jan Sangh candidate and the difference between the votes of the returned candidate and the Petitioner being only 433, the only conclusion to be drawn is that if those corrupt practices had not been committed the Petitioner was bound to be elected. Learned Counsel lays a great deal of stress on the fact that the other two candidates could obtain only a negligible number of votes in comparison to those cast in favour of the Appellant and the Petitioner. And, it is strenuously argued that the only candidate who suffered because of those corrupt practices was obviously the Petitioner and the only candidate who got undue advantage was the Appellant. Having given a considered thought to this contention, we have formed the view that the declaration as sought by the petitioner cannot be made, and was rightly not made by the Tribunal. Although it is undeniable that if any candidate suffered because of the corrupt practices which we have found proved, it was the Petitioner alone. Bui it cannot be further said that the only candidate who got the benefit was the Appellant, and not the other two or either of them. What is more, it is not possible to make a-surmise as to the number of votes affected by those corrupt practices. May be that because of the corrupt practices a thousand voters decided not to vote for the Petitioner, but it may also be that in spite of the corrupt practices only 100 or 200 pr not even one voter changed his mind. When a corrupt practice is found proved u/s 123 (4) of the Act, it is only held that the statement was reasonably calculated to prejudice the prospects of that candidate''s election. From that finding it does not follow that his prospects were in fact adversely affected. Above all, assuming that the Petitioner did lose some or many votes it is not possible to make an estimate of the number of votes affected. And, unless we jump to the conclusion that the Petitioner must have got at least 423 votes more, out of those which were cast in favour of the Socialist and the Maha-sabha candidates, or that the Petitioner must have obtained at least 212 votes out of those cast for the Appellant, we cannot declare the Petitioner elected. There is nothing in the law, nor is there any material on record, to warrant such a conclusion. In Jumuna Prasad Mukhariya and Others Vs. Lachhi Ram and Others, , the Supreme Court upheld the declaration that the election of the returned candidate was void but Bet aside the further declaration that another candidate was duly elected. In that case the difference in votes between them was 919. Their Lordships said that they could only presume that the voting between them was close, but, from that, to jump to the conclusion that the returned candidate got more votes simply because of the corrupt practice and if that corrupt practice had not been there, the other candidate undoubtedly would have obtained a majority of valid votes, was "pure speculation". We would, therefore, refuse the declaration sought in favour of Bhanwarlal Nahata.

(i) In the appeal filed by the Petitioner it was a grievance that, having found that Khumansingh Shivaji, Umashankar Trivedi and V. K, Saklecha committed corrupt practices, the Tribunal should have noticed them and named them u/s 99 of the Act. He prayed that that should now be done by this Conrt.

(ii) A preliminary objection was raised by Shri G.P. Singh that the Petitioner had no right of appeal on that point; the right of appeal conferred u/s 116A of the Act in respect of an order under Election 9d is available only to the person who is named under that section, because it is only then that it can be said that an order under that section has been made. As we read Section 99, it seems to us that the stage of drawing up a proceeding under that section against a person, who is not a party to the election petition, comes when the Tribunal reaches a tentative finding that a corrupt practice has been committed by him. It is obvious enough that such person cannot be joined as a party to the election petition (see Section 82 of the Act), even if a prayer for action u/s 99 is made id the election petition itself. It is only on the conclusion of the trial that the occasion for issuing notice to such person and giving him opportunities under the Proviso to Section 99 arises. There is no provision in the law for a notice to be issued to such person before the conclusion of the trial. This is also the view taken in Ram Phal Raghu Nath Sahai Vs. Braham Parkash and Others, ; Amjad Ali v. B.C. Barua A I R 1958 Ass 17 : 13 ELR 285 and Sardar Partap Singh Vs. S. Kartar Singh Chadha and Others, . But even at that stage, such person cannot be made a "party" to the election petition. The Bombay High Court in Parahottamlal v. Lalubhai 14 E L R 402, has taken the view that notwithstanding the word "shall'' in Section 99 (1) , no obligation is cast on the Tribunal to name any person, if, in the light of the circumstances, the Tribunal thinks that that course is not advisable; and that an enquiry has to be held only if the Tribunal is of the view that such a person should be named, but not otherwise. It seems to us that with reference to a person, who is not a party to the election petition, any of the following three situations may arise. (A) The Tribunal does not act u/s 99; (B) the Tribunal after giving his notice and holding an enquiry, nukes an order recording his name and (C) after holding such enquiry, the Tribunal decides not to name him It is incontestable that in situation (B), right of appeal is conferred u/s 116A on the parson so named. But in (A), since there is just an omission to hold an enquiry and it cannot be said that an order has been made, no appeal will lie u/s 116A. Here, the Tribunal just mentioned that, besides the Appellant, there were some others who were responsible for committing corrupt practices in the election, and then said:

I do not name them her because they have not been given opportunities to show cause why they should not be named u/s 99 of the Act.

Thus, as the preset case falls under (A), an appeal does not lie. The preliminary objection prevails.

However, in our opinion, that is not the end of the matter. By virtue of sub-section (2) of section 116A of the Act the High Court is invested with all powers of the Tribunal. It is quite clear to us that where an appeal is filed from an order u/s 98 of the Act by any party to the election petition against another, and the High Court is seized of the appeal, it can as well exercise the powers of the Tribunal u/s 99 (1) (a) (ii) , after following the procedure laid down in the proviso. But if no such appeal is before the High Court, it cannot start an independent proceeding to act u/s 99 (1) . At this very juncture, we must add, in view of what we are going to say presently, that in a case where the Tribunal declares an election void and also finds that some person, other than the parties to the election petition, had committed a corrupt practice, but takes no action against him u/s 99 of the Act, the election Petitioner should move the High Court as soon after it becomes seized of an appeal u/s 116A as possible, to proceed under that section. In the present case, at first Shri Dabir prayed that we should issue notices under the proviso to Section 69, but, before the hearing concluded, he abandoned that prayer. It was apparent that the learned Counsel did so because it would have caused postponement of the decision of the appeal.

(i) In spite of that abandonment, we have considered whether we should suo motu act u/s 99, because the exercise of that power is not dependent upon the Tribunal or the appellate Court being moved by a party. Purity of election and secrecy of ballot are cherished aims of our election law. Penalties are provided for those who are found guilty of corrupt practices. A corrupt practice committed by any person, whether a party to the election petition or not, entails disqualification for membership of the Parliament and of the Legislature of any State for a period of six years (vide section 140 of the Act). section 99 (1) (a) (ii) requires the Tribunal to make an order recording the names of all persons, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice. The significance of that section is that there must be a specific order recording the name of such person to be made after compliance with the proviso, if applicable, before he incurs a disqualification u/s 140. It is not sufficient that his name occurs in the body of the judgment where evidence of a corrupt practice is discussed or a finding thereon is arrived at. Before so naming a person, who is a party to the election petition, no fresh notice is required to be given to him. But in the case of any other person, he must be given notice to show cause why he should not be so named and must also be afforded three opportunities, that is (1) to cross-examine any witness, who has already given evidence against him; (2) a further opportunity of calling evidence in his defence; and of being heard. Since the naming order entails a serious penalty of disqualification for six years, it is only in accord with principles of natural justice that such other person must be given notice and also the aforesaid opportunities because he did not have them in the main trial of the election petition. If, as a corollary of the celebrated doctrine ''audi alteram partem'', the proviso requires such notice and opportunities to be given before an order is passed, there can be no grudge against it.

(ii) But, then, the opening words of Section 99 (1) step in. When read along with section 98, they make it absolutely dear that even in the case of a person who is not a party to the election petition, the Tribunal can make the naming order only simultaneously with its final decision u/s 98, a subsequent order is not contemplated. To put it differently, a separate proceeding for the compliance with the requirements of the proviso is not permissible. The intention of the law is visibly this: (1) It would be fundamentally wrong in principle that such person should be called upon to show cause and be allowed to adduce t vide ace in his defence and to be heard, after a definite finding has already been given by the Tribunal as regards the corrupt practice alleged to have been committed by him; (2) The finding even in the main election petition on those allegations of corrupt practices, for which such person is also responsible, should be given only after the affected parties have been heard on the conclusion of the proceeding under the proviso. However, the aforesaid mandatory limitation exposes the following aspects; (1) The right to cross-examine witnesses who are recalled under the proviso is conferred to such person alone, but not to any party to the election petition. But persons, who commit corrupt practices for the promotion of election prospects of a candidate, with his consent or that of his election agent, are necessarily his men. Therefore, it is not at all difficult to see that a party to the election petition may avail himself of this opportunity and introduce, by the agency of such person, new and fresh material (which may not have been pleaded by such party) through the medium of further cross-examination and defence evidence. This entry of new material on the record, by the back-door, may cause prejudice to the other party on whom it may spring a surprise and who has no opportunity to rebut. (2) As the notice required by the proviso can be gives only on the conclusion of the trial, but before the final order is passed, and after arriving at a tentative or provisional finding, and some time is bound to be taken before the mandatory requirements of the proviso are satisfied, the final decision of the election petition has necessarily to be delayed, when the law desires that an election petition and also an appeal from it must be disposed of expeditiously. But the Court is not concerned with the wisdom of the Legislature; it must follow the law as it stands.

(iii) In the present case the position we are confronted with, at this stage, is this. If we proceed to act u/s 99 (1) (a) (ii), we would issue notices under proviso (a) to as many as five persons; the number of witnesses who gave evidence against them, and who may be recalled for cross examination, is roughly 23; then the persons so noticed will have the right to produce evidence in their defence and the number of this witnesses cannot be predicted. Therefore, apart from the other debatable aspect, the fulfilment of the require moots under Proviso (b) will considerably detain the disposal of these appeals. On the other hand, if we do not proceed to act under the proviso, they escape without being called upon to show cause why they should not be named. In the present situation of this case, avoiding any further delay should be the outweighing factor. The election of 1962 was set aside and the bye election of 1964 has also been declared void. In our opinion, any further delay in holding the second bye-election, will not be just and proper. 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. Having regard to the peculiar circumstances of this case, we decline to act suo motu at this late stage.

In the result, Kishore Singh''s appeal (F.A. 1 /65) and Bhanwarlal Nahta''s appeal (F.A. 13 /65) are both dismissed. Parties shall bear their own coats as incurred in this Court.