# D. P. MISHRA v. KAMAL NARAYAN SHARMA AND ANR

- **Citation:** [1971] 1 S.C.R. 8
- **Court:** Supreme Court of India
- **Decided:** 1970-03-13
- **Bench:** J. C. Shah, K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/d-p-mishra-v-kamal-narayan-sharma-and-anr-5297
- **Pages:** 23

## Headnote

Representation of the
People Act,
1951-Corrupt
Practice-S,
I23(b)-fncurring of expenses beyond permissible limit-S. 123(4)-
·f'alse staten1erlf.\ ahout rival candidt<te held proved but benefit of doubt
given by High Court-Duty of HiRh Court to co1ne to judicial conclusion
S. 99-Duty tu nanie·person proved guilty of corrupt practice-S. 116AAppeal to High c·ourt-Lin1itation-Li111itfltion Act ss. 4 and 12 applicability of Limitc.tion Act, Article l lf>.~"Under the Code of Civil Procedure",
nieaning-A111en{/111ent of petition-S. 90(5)-Application to a1nend adding to the particular.~· of expenditure-If new plea of corrupt practice.
The first respondent challenged the appellant's election on the ground
that he had committed various corrupt practices at the election held in
June, j'963.
The Election Tribunal negatived the allegations of corrupt
practices and di>missed the petition. The High Court allowed an appeal
under S. 116A of the Representation of the People Act, 1951 and declared
the appellant's election void under s. 100(1) (b) of the Act.
The Court
held it was proved that the appellant had incurred or authorised expendi ..
ture in excess of the permissible limit in s. 77 of the Act, and he was,
therefore, guilty of a corrupt practice within the meaning of s. 123(6).
The order of the election Tribunal wa~ delivered on December 28,
1966. The certified copy of the order was supplied to the respondent on
April 27, 1967. The High Court was closed for the summer recess between
May 7, 1967, and June 29. 1967 and the memorandum of lppcal was
lodged in the office of the Registrar of the High Court on July !, 1967.
During the examination of one of the witnesses before the Tribunal
it appeared from the statements made by him that the appellant had
spent a large amount of money for purchasing cloth for banners used for
the purpose of elections, and that amount was not disclosed in the statement of expenditure.
The respondent applied to the Tribunal to amend
the petition, but the Tribunal rejected the applications.
In the appeal
before the High Court the respondent repeated his request for Jeave to
amend the petition.
The High Court granted the application observing
that the application was merely intended to amplify the particulars of the
corrupt practice which had already been alleged in the election petition.
Jn respect of an allegation of a corrupt practice under s. J 23 ( 4) the
High Court had held that it w•s proved that S. who was the agent of
the appellant printed _and published statement~ of facts which v.1ere false
in relation to the personal character and Conduct of the re9pondent and
that the appellant did not believe any of them to "be true; and those statements were reasonably
calculatel~ to prejudice the election prospects of
the respondent. The High Court observed that S might have in his own
enthusiasm published the false statements and. therefore, the Court gave
the "benefit of doubt" to the appellant "with much hesitation".
The
I-Iigh Court also rejected an application mnde at the hearing that a proccedinii should be drawn under s. 99 of the Act against S and a notice
should~ be issued to him to show cause why he should not "be named as
having committed ccirrupt practice under s. 123 ( 4) of the Act.
In aooeal to this Court it \vas contended : (i) the anoeal to the
High Court was barred by limitation and the High Court had no power
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D. P. MISHRA v, .!'. N. SHARMA (Shah, J.)
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to entertain and decide the appeal; (ii) the High tour1 was not justified
in allowing the particulars of the corrupt practices set up in the petition to
be modified and to allow the petition to be amended at the stage of the
hearing of the appeal or in recording evidence in support of the fresh
corrupt practices so set up; and (iii) that the evidence did not justify the
finding that any corrupt practice was committed by the appellant as found
by the High Court.
HELD: (i) The right to appeal against the order of a Tri

## Text

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D. P. MISHRA
V.
KAMAL NARAYAN SHARMA AND ANR.
March 13, 1970
[J. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.j
Representation of the
People Act,
1951-Corrupt
Practice-S,
I23(b)-fncurring of expenses beyond permissible limit-S. 123(4)-
·f'alse staten1erlf.\ ahout rival candidt<te held proved but benefit of doubt
given by High Court-Duty of HiRh Court to co1ne to judicial conclusion
S. 99-Duty tu nanie·person proved guilty of corrupt practice-S. 116AAppeal to High c·ourt-Lin1itation-Li111itfltion Act ss. 4 and 12 applicability of Limitc.tion Act, Article l lf>.~"Under the Code of Civil Procedure",
nieaning-A111en{/111ent of petition-S. 90(5)-Application to a1nend adding to the particular.~· of expenditure-If new plea of corrupt practice.
The first respondent challenged the appellant's election on the ground
that he had committed various corrupt practices at the election held in
June, j'963.
The Election Tribunal negatived the allegations of corrupt
practices and di>missed the petition. The High Court allowed an appeal
under S. 116A of the Representation of the People Act, 1951 and declared
the appellant's election void under s. 100(1) (b) of the Act.
The Court
held it was proved that the appellant had incurred or authorised expendi ..
ture in excess of the permissible limit in s. 77 of the Act, and he was,
therefore, guilty of a corrupt practice within the meaning of s. 123(6).
The order of the election Tribunal wa~ delivered on December 28,
1966. The certified copy of the order was supplied to the respondent on
April 27, 1967. The High Court was closed for the summer recess between
May 7, 1967, and June 29. 1967 and the memorandum of lppcal was
lodged in the office of the Registrar of the High Court on July !, 1967.
During the examination of one of the witnesses before the Tribunal
it appeared from the statements made by him that the appellant had
spent a large amount of money for purchasing cloth for banners used for
the purpose of elections, and that amount was not disclosed in the statement of expenditure.
The respondent applied to the Tribunal to amend
the petition, but the Tribunal rejected the applications.
In the appeal
before the High Court the respondent repeated his request for Jeave to
amend the petition.
The High Court granted the application observing
that the application was merely intended to amplify the particulars of the
corrupt practice which had already been alleged in the election petition.
Jn respect of an allegation of a corrupt practice under s. J 23 ( 4) the
High Court had held that it w•s proved that S. who was the agent of
the appellant printed _and published statement~ of facts which v.1ere false
in relation to the personal character and Conduct of the re9pondent and
that the appellant did not believe any of them to "be true; and those statements were reasonably
calculatel~ to prejudice the election prospects of
the respondent. The High Court observed that S might have in his own
enthusiasm published the false statements and. therefore, the Court gave
the "benefit of doubt" to the appellant "with much hesitation".
The
I-Iigh Court also rejected an application mnde at the hearing that a proccedinii should be drawn under s. 99 of the Act against S and a notice
should~ be issued to him to show cause why he should not "be named as
having committed ccirrupt practice under s. 123 ( 4) of the Act.
In aooeal to this Court it \vas contended : (i) the anoeal to the
High Court was barred by limitation and the High Court had no power
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D. P. MISHRA v, .!'. N. SHARMA (Shah, J.)
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to entertain and decide the appeal; (ii) the High tour1 was not justified
in allowing the particulars of the corrupt practices set up in the petition to
be modified and to allow the petition to be amended at the stage of the
hearing of the appeal or in recording evidence in support of the fresh
corrupt practices so set up; and (iii) that the evidence did not justify the
finding that any corrupt practice was committed by the appellant as found
by the High Court.
HELD: (i) The right to appeal against the order of a Tribunal is
conferred by s. ll 6A of the Act.
The Act plrovides a special period of
limitation different from the period of limitation prescribed by article 116
of the Limitation Act, 1963, for an appeal to the High Court under the
Code of Civil Procedure from any decree or order. But the expression
"under the Code of Civil Procedure· in article 116 of the Limitation Act
1963 means an appeal governed by the Code of Civil Procedure, and
by s. 116(A) (2) of the Representation of the People Act the procedure
with respect to an appeal from an order of the Tribunal.
By virtue of
s. 29(2) of Limitation Act, s. 4 and 12 thereof apply and if the appeal is
filed on the date on which the court reopens after the recess it will be regarded as within time if the period of limitation a'fter taking into account
the time of obtaining a certified copy had expired during the course of the
recess.
There is no provision in the Representation of the Peoples Act,
which exclude; application of s. 4 of the Limitation Act. Therefore, the
appeal filed by the respondent before the High Court must in law be deemed to be filed within the period of limitation prescribed by s. 116(A)(3)
of the Act. [12D, 13AJ
Vidyacharan Shukla v. Khubclwnd Baghel & Ors. [1964] 6 S.C.R. 129,
referred to.
(ii) The High Court. was right ir. granting the amendment..
Under
Cl. (5) of s. 90 the Tribunal had no power to allow any amendment of
the petition so as to supply or introduce particulars of a corrupt practice
not alleged in the petition.
But the particulars of a corrupt practice
alleged in the petition may in appropriate cases be permitted to be introduced by amendment. By adding to the pafticulars of expenditure_ incurred
which obviously could not be within the knowledge of the election petitioner, no nevv plea of corrupt practice was set up by the respondent. The
particulars were of the election expenses.
By seeking to amend the
petition the respondent did not add a ne\\' groUnd of corrupt practict
not C.isclosed in the petition.
He
onh'
furnished
particulars
of the
corrupt practice already set out in the petition. [18 B-E]
(iii) The High Court was right in holding that it was
proved that
the appellant had spent an amount which exceeded the amount permissible
under s. 77 of the Act and the appellant having incurred or authorised
expenditure in contravention of s. 77 \Vas guilty of the corrupt practice
under Section 123 ( 6) of the Act, and that the election of the appellant
was. therefore. void under Section 110 (b) of the Act. [27 HJ
(iv) In respect of the corrupt practice under s. 123(4) the High Court
first held that the appellant had consented to the publication of the statements in the three annexures and then proceeded· somewhat inconsistently
to give the "benefit of doubt" to the appellant "with much hesitation".
The method adopted by the High Court cannot be endorsed. In an election petition a corrupt practice may be proved only by evidence which
establishes the case beyond reasonable doubt. But, in giving the benefit
of cloubt the court has to reach a judicial conclusion, it cannot vacillate.
[15 HJ
Under s. 99 of the Act, the court has no discretion in the matter if
the court is of the view that any person who is proved at the trial to have·
Ll lSupC!-2
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SUPREME COURT REPORTS
[1971] l S.C.R.
'1een guilty of any corrupt practice, not to name that person.
The du.Ly
under the Act is cast upon the court er Tribunal and on the ground that
a party to the petition has not applied for a not:ce, the High Court cannot
avoid the obligation imposed hy statute to take proceedings under s. 99
against the person proved at the trial to have been guilty of corrupt prac~
tice and to name him.
[The
court remanded the proceedings directing
the High Court to give notice to 'S' under s. 99 of the Act]. [29 G]
C1v1L APPELLATE JURISDICTIO"' : Civil Appeal No. 1738 of
1969.
Appeal by special leave from the judgment and order dated
March 12, 1969 of the
Madhya Pradesh High Court in First
Appeal No. 49 of 1967.
·
A. K. Sen, S. N. Mishra, S. K. Mukherjee', A. T. M. Sampm,
S. R. Agarwal and E. C. Agrawala, for the appellant.
M. C. Chagla. Rameshwar Nath, for the interveners.
The Judgment of the Court was delivered by
Shah, J.-At an election held in June 1963
for electing a
member from the Kasdol Constituency in the State of Madhya
Pradesh, D. P. Mishra who stood as a candidate on "the Congress
ticket" was declared elected.
The rival candidate Kamal Narayan
Sharma filed a petition for setting aside the election of Mishra
on the grounds that the latter had committed '.;Orrupt practices at
the election in that he offered to bribe Sharma, by offering through
his agent Dr. Ausaf Hussain to pay Sharma a sum of Rs. 50.000/-
as inducement for withdrawing from the contest and thereby committed a corrupt practice defined in s. 123 ( 1) of the Representation o,f the People Act, 1951; that Mishra published on April 12,
1963, April 26, 1963 and May 4, 1963 in a Hindi newspapei:
"Mahakoshal" edited, published and printed by Shyamacharan
Shukla (who was engaged an authorised agent by Mishra to conduct election campaign on his beha,lf) statements of facts which
were false and which they1 believed to be false or did not believe
to be true, in relation to the personal character arid conduct of
Sharma and in relation to Sharma's canc:lidature, such statements
being reasonabl~ calculated to prejudice the prospects of' Sharma's
election and thereby committed corrupt practice defined· in
s. 123 ( 4) of the Representation of the Peoplf: Act, 1951; th'at
Mishra through his agents and workers hired or procured on payment er otherwise motor-vehicles and bullock-carts for convJying
electors to the polling stations in the constituency and thereby committed a corrupt practice defined in·s. 123(5) of the Representation of the People Act. 1951; and that he incurred and authorised,
in contravention of s. 77 of the Reprei;entation of the People Act,
1951, expenditure in excess of the amount prescribed, ?.nd thereby
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D. P. MISHRA V. K. N. SHARMA (Shah, J.)
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committed a corrupt practice as defined in s. 12 3 ( 6)
of
the
Representation of the People Act, 1951. Mishra denied the alle-
-gatiqns in support of the plea of corrupt practices alleged ta be
committed by him.
The Election Tribunal negatived the allegations of corrupt practices anti by order dated December 28, 1966
dismissed the petition.
In aD. appeal under s. 116A of the Representation of the People
Act, 1951, against the order passed by the Tribunal, the High
Court of Madhya Pradesh set aside the order and declared that
the election of Mishra "was void under s. 100,(1) ('b) of the Representation of the People Act, 1951," for, it was proved that Misb.ra
had
~ncurred or authorised expenditure of an amount of Rs.
7,249-72 whicb. was in excess of the permissible limit, and tile
expenditure being in contravention of s. 77 of the Act, Mishra was
guilty of a corrupt practice at the election within the meaning of
s. 123 ( 6) of the' Act.
Against tb.e order passed by the Higb.
Court, this appeal has been preferred with special leave.
Counsel for Mishra contended that-( 1) the appeal to the High
Court was barred by the law of limitation and accordingly the High
Court had no power to entertain and decide· the appeal; (2) the
High Court was not justified in allowing the particular~ of the
corrupt practices set up in the petition to be modified and to allow
the petition to be amended at the stage of the hearing of the appeal
and in recording evidence ~n support of the fresh corrupt practices
so set up; and ( 3) that the evidence does not justify the finding that
any corrupt practice was committed by Mishra as found by the
High Court.
The judgment of the Election Tribunal was delivered on
December 28, 1966.
A certified copy of the judgment of the
Tribunal was supplied to the\ appellant Sharma on: April 27 1967.
Tue High Court was closed for the \mmmerrecess between May ·7,
1967 and June 30, 1967 and the memorandum of appeal was
lodged in th~ office of the Registrar of the High Court on July 1,
~ 967.
Secllon 11_6A o'. the Repres~ntation of the People Act, as
it then stood, provided, msofar as it is relevant :
.".( 1) An appeal s~aJI lie from every order made by
a T nbunal under secttoμ 98 or section 99 to the High
Court of the State in wqich the Tribunal is situated.
(~) The High Court shall, ~ubject to the provisions
of this Act, have the same powers,
jurisdiction and
authority, and follow the same proced.ure, with respect
to an appeal ander this Chapter as if the appeal were
an appeal from an original ~ecree passed by a civil court
12
SUPREME COURT REPOR"
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(1971] l S.CR.
situated· within the local limits of its civil
appellat~
A
jurisdiction :
Provided that where the High Court consists of more
than tw() judges every appeal under this Chapter shalt
be heard by a bench of not less than two judges.
\
(3) Every appeal under this Chapter shall be pr-:-
ferred within a period of thirty days from the date of
the order of the Tribunal under section 98 or section
99:
Provided that the Higic Court may
entertain
:ii:
appeal after the expiry of the said period of thirty day<
if it is satisfied that th~ appellant had sufficient cal'"'
for not preferring the appe1.1 ,,·!thin such period. ,.
The right to appeal against the .mi.o:· of a Tribunal is confen·~J oy
s. 116A of the Act.
The Act provides a special periori of limita·
tion different from the period of limitation prescribed by Art. l ! lj
of the Limitation Act, 1963, for an appeal to the High Court undet
the Code of Civil Procedure from any decree or order.
But the
expression "under the Code of Civil Procedure"' in Art. 116 o.f the
Limitation Act means an appeal governed by the Code of Civil
Procedure. and bys. 116A (2) the procedure with respect to an
appeal fn1m an order of the Tribunal.
By virtue of s. 2912) of
the Limitation Act. ss. 4 & 12 thereof -apply and if the appeal is
filed on the dak on which the Court re-opens after the recess it
will be regarde<l as within time if the period of limi•ation, after
ta!cing into account the time requisite fo~ obtaining a certified
copy, had expired <luring the course of the recess.
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Section 29 of the Limitation Act,
1963, by sub-s.
(2)
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~rovides :
'·Where any special or !veal law prescribes for any
suit, appeal or application a period of !imitation different
from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were
·the period prescribed by the Schedule all.d for the purG
pose of determining any period of limitation prescribed
for any suit, appeal or application by any special or
local law, the provisions contained in sections 4 to 24
(inclusive) shall apply only in so far as, and to the extent
to which, they are not eimressly excluded by such special
or local law."
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Comp..1ting the time taken for supplying the certified copies, the
per;od of limitation expired during the summer recess, and the
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D. P. MISHRA v. K. N. SllARMA (Shah, J.)
13
memorandum of appeal was lodged in Court on July 1, 1967.
There is no provision in the Representation of tho People Act,
1951, which excludes the application of s. 4 Of the Limit.ation Act.
In Vidyacharan Shukla v. Khubchand Baghel & Ors.(1 ) this
Court held that the exc1usion of time provided by s. 12 of the
B
Limitation Act, 1908, is permissible in computing the period of
limitation for filing an appeal in the High Court under the Representation of the People Act, 1951. The Court in that case was
interpreting s. 29(2) of the Limitation Act, 1908. It was held
that in the absence of any express provision to the contrary in the
special statute, the provisions of the Indian Limitation Act, 1908,
c
contained in s. 4 and ss. 9 to 18 & 22 shall apply to the extent to
which they were not expressly excluded by any special or local
Jaw.
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The appeal filed by Shanna must in law be deemed to be filed
within the period of limitation prescribed bys. 116A (3) of the
Representation of the People Act, 1951.
We are also unable to agree with the learned counsel for Mishra
that the High Court erred in allowing the amendment of the petition.
In paragraph-7 of the petition as originally filed it was
averred:
"(a) The respondent r 1)--(D. P. Mishra)-incurred
and authorised expenditure in contravention of
s. 77 of the Representation of the People Act,
1951, ·11nd thereby committed the corrupt practice as defined under s. 123 ( 6) of the Representation of the People Act, 1951.
(b)(i) The respondent (1)-(D. P. Mishra)-in his
election expenses has give,11 a return of expenses totalling upto about Rs. 6,300/-.
He has
deliberately not shown many items of expenditure incurred or authorised by him in connection
with his election which if included would make
the total expenditure_ much beyond the permissible limits."
In
~ls.
(bl.(!i),
(b)(iii):
~b)(iv), __ (b)(v),
(b)(vi),
(b)(vu), (b)(vm), (b)(1x), (c)(1), (c)(u), (c)(iii), (c)(iv)
a1:1d ( c) ( ':') o~ paragrap_h-7 were set out various items of expen'
d1ture which, It Whs claimed, were incurred or authorised by
Mishra in connection with his election.
The petition was allowed to be amended by order of the High
Court on May 4, 1968, and certai,n particulars of expenditure
(I} [1964] 6 S.C.R. 129.
14
SUPREME COURT -REPORTS·
[1971 J 1 S.C.R.
incurred by Mishra were incorporated in the petition. The circum-
~t·a~'ces in which the High Cour1 permitted the amendment may
'te ;et out.
Oil November.•30, 1965, one Bhaskar Kathote was
examined before the Tribunal as a witness for Sharma and from
rf-e ;iatements ni.ade by -hini' it appeared that Mishra had spent a
large ,amount of money for purchasing cloth for banners used for
the pmpose of elections, and that amount was not disclosed in the
statement of expenditure.
An· application to amend the petition
by? incorporating the parl'icu!ars was made'on December IJ., 1965
teiore the Tribunal.
The Tribunal rejected the application on
'the ground'1hat it "was very much belated".
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On December 6, 1965, 'Shanna submiHed another appficatiort
te:·,,re the Tribunal for amendment of the petition alleging, inter
"'''"'· that on ,:I.larch 25, 1963, Mishra )lad paid into the office of
th .i\ladhya Pradesh Congress Committee Rs. 700/- in connection
,._.;11-i his election, by paying Rs. 200/- as application fee
and
dqcsit amount of Rs. 500/-,.and that this item of expenditure was
i;2ble to be included in the return of election expense,; filed by
Jl.fa:'Jra with the Returning Officer under s. 78 of the Representatic1 of the PebP,!e Act, 1951, and if that item be included the
tc-121 expenditure incurred by Mishra
exceeded the maximum
ar;J'.Imt of exp,nditure permitted for an Assembly Constituency
i:1 Jl,ladhya- Pradesh under r. 90(2) of the Conduct of Election
Roles; 1961: and on that account there was
contravention of
'sub-s. (3) of s. ??·of the, Representation of the People Act, 1951,
a::J :i corrupt practice falling within the terms of s. 123 (6) of the
Act.
The Tribunal rejected. that -application.
In the view of the
Tribunal the introduction of allegations made in the application
ii' i:-!lroduced '\)ould amount to adding fresh instances of corrupt
yr~ctices falling within s• 123(6) of the R~presentation of the
Pec~le Act, and ·that in any event the- applicatioh for amendment
WJs ·'not only very much belated but the circumstances in which
it ;vos made' led to an inference-tbat it was also·ma/a fide."
'
Jn appeal ,before the High c;::ourt Sharma \JY his application
elated April 28, 1968, repeated his request for leave to -amend the
petition in the.1)1anner set out j,n his application dated December 1,
J 965 and De,cember 6, 1965.
The High Court granted the applibtirn observing that the. application was merely_ intended to
amr;]ify the particulars of the corrupt practices which had already
tee;i made in the election petition and that items (d) to (i) were
n::t ne.w items of expell!diture, but they were sought to be introduced
1c £'low that Mishra had incu!fed and
authorised
expenditure
in e~cess of the permissible limit of Rs. 7,000/-: In the view of
the High Court since the niatetial was already on the' record- it
wculd be unjust to ignore it on the ground of omission of the
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details in the petition, and that delay by itself was no grou.nd for
refusing kave to supply particulars;
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Additional issues were then raised, and statements of Ramnm ayana Purohit and Mishra were thereafter recorded.
The High
Court held on a review of the evidence :hat an attempt was made
but without thr. consent of Mishrr, to bribe Sharma by offering
him Rs. 50,000;-
~n consideration for his withdrawal from the
contest; that it was proved that Shyamacharan Shukla, Parmanand
Pate!, Laxmishankar Bhatt, Basant Kumar Tiwari, Chakrapani
Shukla, Wasudeo Chandrakar, Bhaskar Singh, Rohini Kumar
Bajpai, Jaideo Satpati and N. N. Seel were the agents of Mishra;
that it was proved that electors were conveyed to some of the polling stations in motor-vehicles but it \"as not proved that any vehicle
wa; hired or procured for this purpose with Mishra's consent;.
that it was proved that Mahakoshal, a Hindi Daily, published from
Raipur, and Shyamacharan Shukla who was the proprietor, publisher, printer and keeper of the Press, were the agents of Mishra
"'ithin the meaning of s. 123 of the Act;
that it was proved
thm three statements (Annexures I, II & III) were published in the
"MGhakoshal" issues of April 12, April 26 and May 4, 1963, in
relation to the personal character and cqnduct of Sharma, that all
the 'tatements were false, and that Mishra did not believe any of
them to be true and those statements were reasonably calculated
tc prejudice the election prospects of Sharma, but in the view of
the High Court Mishra had incurred or authorized expenditure
within the meaning oi s. 77 of the Act which totalled Rs. 7,249-72,
and since the amount exceeded the permissible limit, Mishra was
guilty of corrupt practice under s. 123(6) of the Act.
The High
Court, however, declined to issue a notice to Shyamacharan Shukla
under s. 99 of the Act calling upon him to show cause why he
s!wuld not be named for committing corrupt 2ractices as defi:ned
ms. 123(4) of the Act.
The arguments in this appeal are restricted to the corrupt practice which the High Court found Mishra had committed by incurring expl)nditure in excess of the permissible limit of Rs. 7,000/-
fcr the Assembly Constituency:
We may observe that in the course of their judgment the learned
Judges of the High Court recorded their conclusion that acts which
wct:ld amount to corrupt practices, were in fact committed but
it was not proved that those acts were done with the conse~t of
Mishra.
in respect of the corrupt practice under s. 123 ( 4), the
High Court first held that Mishra had cons.ented to the publication
of the statements in the three annexures; al'd then proceeded some-
16
SUPREME COURT REPORTS
[l 971 J l S.C.R.
what inconsistently to "give the benefit of doubt" to Mishra. In
the course of the judgment, the High Court observed':
"The statements, annexures r, 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."
Thereafter in paragraph-83 of the judgment the High Court observed that direct evidence of consent can rarely be expected and
in the abs1;1nce of direct evidence. the question of cousent has to
be determined in the light of circumstantial evidence, each case
being decided on its own facts: The Court then proceeded to set
out the considerations which would guide the Court in dealing with
the question whether the false statements published in the newspaper supporting the candidature of the publishing candidate was
with his consent and recapitulated the evidence in support of the
case in relation to the three statements-Annexures I, II & III.
After referring to the admission made by Mishra that Shyamacharan Shukla had worked for him, and the evidence that Shyamacharan Shukla was personally associated with Mishra ~n hi> campaign and had extensively toured with Mishra, the High Court
recorded its finding in paragraph-96 :
"In ultimate analysis, the question of consent is one
of fact and it is to be decided in each case on its facts
and circumstances. Circumstances in their entirety have
to be kept in view.
It is the overall picture of the case
which presents itself. and not isolated facts, which wil!
guide the Court to reach the conclusion.
In the present
case, the cumulative effect of the respondent's closeness
with the Mahakoshal and personal
association
with
Shyamacharan Shukla for days together and the setting
in which the false statem()'lts were published one after
another, and the respondent not contradicting nor dissociating himsel.' 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."
The Court then observed that the second editor may have in his
own enthu~iasm published those false statements and therefore they
gave the "benefit of doubt" to Mishra. with "much hesitation".
We are unable to endorse the method adopted by the High
Court. If we had disagreed with the view of the High Court on the
finding relating to the perpetrating corrupt practice by Mishra falling under s. 123(6) of the Representation of the People Act, 1951,
it might have been tllecessary for us to consider this question more
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folly.
In an election petition a corrupt practice may be proved
only by evidence which establishes the case beyond reasonable
doubt. · But in giving the benefit of doubt the Co1,1rt has to reach a
judicial ·conclusion : it cannot vacillate.
The High Court has
pointed out that there was strong llj.'l.d clear evidence justifying the
conclusion that Mishra )lad consented to those publicati9!1S.
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the High Court to give Mishra "the benefit of doubt".
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We may now consider the questions whether the High Court
was right ~n allowing the amendment of the petition, and whether
the evidence establishes that corrupt _practice within the meaning
<,Jf s. 123 ( 6) read with s. 77 of the Act was committed by Mishra.
In our judgment, the High Court was right in granting the amendment.
In paragraph-? els. (a) and (b)(i) of the election petition
as originally filed Sharma averred that Mishra had incurred and
authorised expenditure exceeding the permissible limit of
Rs. 7,000/- fixed under the rules framed under the Representation
of the People Act, 1951. Mishra in his statement of election expenses had disclosed that he had spent Rs. 6,324-14.
By adding
to the particulars of expenditure incurred which obviously could
not be within the knowledge of the election petitioner, no •new
plea of corrupt practice was set up by Sharma.
The particulars
were of the election expenses.
By seeking to amend the petition
Sharma did not add new grounds of corrupt practice not disclosed
h the petition : he only funnished particulars of the corrupt practice
alrea<iy set out in paragraph 7(a) and 7(b)(i) of the petition.
Section 83 (l)(b) .of the Representation ol.' the People Act, 1951,
as it stood in 1963, provided:
"(1) An election petition-
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the ,names of the par.ties alleged to
have committed such corrupt practice and the date and
place of the commission of each such practice : "
By s. 90 ( 5) it was provided :
"The Tribunal may, upon such terms as to costs and
otherwise as it may deem fit. allow the particulars of any
corrupt practice alleged in the petition to be amended
or amplified in such manner as may in its opinion be
necessary for einsuring a fair a1.d effective trial of the
petition. but shall not allow any amendmen! of th~ ;:>etition which will have the effect of introducing particulars
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[l 971] l S.C.R,
of a corrupt practice not previously
alleged
in
the
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petition."
The words of cl. ( 5) of s. 90 are clear.
The Tribunal had no
power to allow any amendment of the petitior. so as to supply or
intrcduce particulars of a corrupt practice
not alleged in
the
petition.
But the particulars of the corrupt practice alleged in the
petition may in appropriate cases be permitted to be introduced
by amendment.
In the present case by the amendment particulars
of the cO!'rupt practice set out in paragraph-7 els. (a) and (b){i)
previously alleged in the petition were introduced, and not particulars of a corrupt practice inot previously set up in the petition.
Srarma obviously could not have knowledge or information about
the matters which from their very nature were within the special
knowledge of Mishra.
As soon as he came to learn about the
additional particulars of the corrupt practice he applied to the
Tribunal for leave to amend the petition.
The Tribunal rejected
the first application for amendment on the gro~nd that there was
delay in filing the. application, and the second application on the
ground that it was delayed and was also ma/a fide.
We do not
think the Tribunal was right in holdi1ng that there was undue
delay which would justify rejection of the application for amendment, and there are no circumstances from which
it
may be
inferred that the application dated December 6, I 965 was ma/a
fide.
We hold that the High Court was right in allowing the
amendments to be made.
Mr. Sen appearing on behalf of Mishra contended that in allowing an application for amendment five yea rs after the date on
which the original petition was filed and allowing evidence to be
recorded, the High Court has gravely erred.
But Sharma did
111ake an application for amendment during the trial of proceediing
bcfcre the Tribunal.
The Tribunal was, in our judgment, in
grave error in rejecting the application. It was not the fault of
Sharma that evidence of the particulars could not be recorded at
an earlier stage.
The oral evidtlnce as recorded on
behalf of
Sharma was only formal, and only explanatory of the evidence
already on the record.
The evidence relating to the incurring or authoriLing of expenditure in respect of the items held proved by the High Court fells
under two heads : Rs. 700/- paid to the Madhya Pradesh Congres·,
Committee, Bhopal, on March 25, 1963, for Stf\nding
on
the
"Cor.0ress ticket"; and Rs. 510-25 om April 13, 1963, spent for
purchasing cloth for preparing banners.
Section 77 of the Act, as it then stood, provided :
"( 1) Every candidate at an election· shall, either
by himself or by his election agent, keep a separate and
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D. P •. !SHRA V. KN, SHARMA (Shah, J.)
correct accouii,t of all expenditure in connection with the
election incurred or authorised by him or by his election
agent between the date of publication of the notification
calling the election and the date of declaration of the
result thereof, both dates inclusive.
( 2) The account shall contain such particulars, as
may be prescribed.
(3) The otal of the said expenditure shall not exceed such amount as may be prescribed."
Section 78 of the Act provided :
"Every contesting candidate at an election shall,
witl).in
thirty
days from the date of election of the
returned candidate or, if
there
are more than one
returned candidate at the election 3(nd the dates of their
elections are different, the later of those two dates, lodge
with the returning officer an account of his
election
expenses wr.ich shall be a true copy of the account kept
by him or by his election agent under section 77."
Section 100 (1 )( b) provided :
"Subject to the provisioins oi sub-section (2), if the
Tribunal is of opinion-
(b) that apy corrupt practice has been committed by
a returned candidate or his election agent or by
any other person with the consent of the returned
candidate Or his election agent;
the Tribunal shall declare the election of the returned
candidate to be void."
·
19·
Under cl. (6) of s. 123 the incurring or authorising of expenditure
in contravention of s. 77 was a corrupt practice.
Rule 131 framed under the Representation of the People Act,
1951, then in force, provided :
"(l) The account of election expenses to b,e kept
by a candidate or his election agent under section 77
shall c~ntain the following particulars in respect of each
item cf expenditure from day to day, namely :-
(a) the date on which the expenditure was incurret:
ur authorized.
( b) the nature of the expenditure (as for example
travelling, postage or printing and the like) ;
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SUPREME COURT REPORTS
( c) the amount of the expenditure-
( i) the amount paid;
(ii) the amount outstanding;
(d) the date of paym~t;
( e) the name and address of the payee;
L 1971] I S.C.R.
( f) the serial number of vouchers, in case of amount
paid;
(g) the serial number of bills, if any,
in case '"
amount outstanding;
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(h) the name and address of the persons to whom
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the amount outstanding is payable.
(2) A voucher shall be obtai,ned for every item of
expenditure unless from the nature of the case, such as
postage, travel by rail and the like, it is not practicable
to obtain a voucher.
( 3) All vouchers
shall be lodged along with the
account of election expenses, arrnnged according to the
date of payment and serially numbered by the candidate
or his electio11 age'1t and such serial numbers shall be
entered in the account under item (f) of sub-rule (1).
(4)
"
Mishra did not produce any account required to be maintained
under s. 77 of the Act : he merely relied upon the statement headed
"Account of election expenses-Election to Legislative Assembly
Coostituency, Kasdol" filed under s. 78 of the Act.
This statement showed in respect of different items the date of incurring
expenditure, nature of expenditure, the date of payment, amount
outstanding, date of vouchers, name and address of payee if paid,
serial number of voucher, serial number of bill, and the·!llame and
address of the person to whom outstanding. . The Act requires the
candidate at an election to keep a correct account of all expenditure.
Section 78 enjoins a duty upon the candidate to file a true
copy of the account kept by him.
It appears from Ext. A-1, Receipt No. 113, issued by the
Madhya Pradesh Cqngress CoillJllittee, Bhopal that on March 25,
1963. Mishra paid Rs. 700/- to the Madhya Pradesh Congress
CoillJllittee, Bhopal.
The Permanent Secretary o.f the Congress
Co=ittee acknowledged receipt of the amount ot Rs. 700 /- from
Mishra in connection with the bye-election to the State Legislative
Assembly from Kasdol Constituency.
Out of that amount
Rs. 200/- were appropriated as application fee, and Rs. 500/-
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D. P. MISHRA I'. K. N. s.HARMA (Shah, J.)
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for deposit.
This amount was however not included in the state-·
ment filed U!1der s. 7 8 of the Act.
Mr. Sen contended that the payment was not liable to be dis-·
closed in the statement of account filed by Mishra under s. 78 of
the Act because it was incurred not by him, but by one Parmanand
Patel without the kalowledge and consent of Mishra, and that in
any event the amount was not paid within the period prescribed
by s. 77 of the Representation of the People Act, 1951. Counsel
also contended that out of the amount deposited, Rs. 500/- being
"refundable" to the person depositing it, it was never treated as
appropriated by the Madhya Pradesh Congress Committee.
Exhibit A-2 are the Rules of the Madhya Pradesh Congress
Committee, which havte a bearimg on the contentions raised by
counsel.
The Rules prescribe the procedure for
selection of
Congress candidates approved by the Working Co=ittee. Rule
8 deals with the observance of discipline and under the head
"Application or Declaration of Consent", it is provided, insofar
as it is material :
"l. A person may offer hinrself as a candidate for
election to the Parliamtmt or the State Legislature by
filling up the prescribed Application Form or his name
may be proposed by some one else but in all cases, each
name shall have to be recommended bv five members of
the concerned D.C.C.
·
The person concerned shall have to declare that he
agree~ to stand and shall have to fill up the Consent
Form.
2. Along with the applicatiqn, the intending candidate shall contribute Rs. 200/- only.
This
amount will not be refunded.
5. In addition to the application money, each person
concerned shali have to deposit Rs. 500/- in the case
of State Legislature
7. Deposits, in all cases will be earmarked for the
constituencies of the persons CQllcerned. In case he is
not selected, the deposit will be refunded."
Appended to these Rules is the form of application and declaration:
of consent.
·
Rs. 700/- were paid into the office of the Congress Committee
on March 25, 1963.
Notice of election was published on March
27, 1963~ The High Court has held that Rs. 200/- out of Rs. 700/-
being appliGation IDQlley must be deemed to have been expended
on March 25, 1963, and cannot be regarded as expenditure within
the period prescribed by s. 77.
The High Court further held that
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SUPREME COURT REPORTS
(1971] I S.C.R.
the amount of Rs. 500/- which was made as deposit was treated
on April I. 1963, as the money belonging to the Madhya Pradesh
Congress Committee over which the person depositing had no
interest,
In Receipt No. 113 dated March 25, 1963, it is stated that
the amount was received from Mishra "through Ram Krishna
Shrivas".
Mishra in his statement admitted that he knew the
procedure for applying for the "Congress ticket"", but he claimed
that he had not approached the District Congress Committee to
give him the "Congress ticket", since he was "absolutely certain"
that the High Command of the Congress wanted him and would
give him a ticket; that on March 30 or 31, 1963 he was called
by the Congress President and was told that he had bP,en granted
the "Congress ticket" by the Parliamentary Board to contest the
bye-election from Kasdol Constituency; and that thereafter he
declared himself to be a candidate.
He denied that he )lad authorised Parmanand Patel to pay into the office of the Congress
Committee Rs. 700/- as application fee and deposit money.
He
also denied that he had <my information regarding payment of the
amount.
According to Mishra, it was for the first time in November or December 1965 that he came to learn on enquiry from
Parmanand Patel that the latter had deposited the money with
the Congress Committee.
Mishra however failed to produce his books of accuunt.
He
stated that one Laxmishankar was in charge of the election office
at Kasdol and that Laxmishankar maintained the accounts of his
election expenses.
He further stated that whenever he
gave
money to Laxmishankar the latter had entered the money in his
accounts.
Even these accounts have not been produced on the
pretext that Laxmishankar had only give,n him the vouchers aud
the accounts were contained only in loose "sheets of paper under
different heads".
Even those sheets of paper were not produced.
The Rules of the Congress Committee required that a candidate
desiring to stand for election to the State
Ass~mbly on the
"Congress ticket" shall pay a..n ap!ication fee of Rs. 200/ • and
deposit of Rs. 500/·.
Mishra was cognizant of those Rules, but
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he says that the local ad hoc Committee was inmical to him and . G
that he was at the relevant time in Delhi.