JUDGMENT Shiv Dayal, J. 1. 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 (hereinafter called the former election petition) filed by Bhanwarlal Nahta. In consequence thereof, in January 1963, by election took place in which Kishore Singh was returned. Bhanwarlal Nahta who had contested the bye-election, again filed an election petition, allowing which the bye election has been declared void on the ground of corrupt practices having been committed by Kishoresingh himself, by this election agent 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 Kishoresingh (hereinafter called the appellant) has preferred this appeal under section 116-A of the Representation of the People Act, 1951, (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. 2. 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: (1) 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. 3. 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. ¼Hkaojyky ukgVk us cSad esa yk[kksa :i;ksa dk xcu fd;k gSA½ (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. ¼Hkaojyky ukgVk us cSad esa yk[kksa :i;ksa dk xcu fd;k gSA½ (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. ¼Hkaojyky ukgVk us esjs yM+dksa dks vius eqa’kh ds gkFk iku esa tgj nsdj ejok Mkyk gSA½ (The petitioner is an Advocate). (3) Surajmal, above named, in a public meeting held at Dhundharka on 15 December 1963 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: ^^Hkaojyky ukgVk ljdkjh deZpkjh gehn iVokjh ls viuk izpkj djok jgk gS tks yksxksa dks ?ksal nsdj ukgVk dks oksV fnykus dh dksf’k’k dj jgk gS ijarq vki yksx Mjs ugha ge gehn iVokjh dk nks fnu esa iRrk dVok nsaxs vki ukgVk dks tks bl izdkj xyr dke djrk gS mls oksV ugha nsosaA^^ (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 any Suryapal Singh set up as candidates, by bribing them in order to deprive the Jan Sangh (meaning the appellant) of votes: ^^ukgVk us dkW&vkijsfVo cSad dk yk[kksa :i;ksa dk xcu fd;k gS vkSj vius iki dks nckus ds fy;s gj frdM+e yxkdj fo/kku lHkk dk esEcj cuuk pkgrk gSA blfy;s tula?k ds oksV dkVus ds fy;s mlus ukjk;uflag o lw;Zikyflag dks iSlk nsdj pquko esa [kM+k djok;kA^^ 4. 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 reasonably calculated to prejudicially affect the prospects of the petitioner's election. The question is whether those statements were actually made. 5. 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 reasonably calculated to prejudicially affect the prospects of the petitioner's election. The question is whether those statements were actually made. 5. 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 ejection 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 Vs. Jaswant Singh 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 pre-pondrance 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 Vs. 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 ground of cases in which a charge of fraud or fraudulent statement has been made in the course of civil Proceeding............;" 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 Vs. Pratap Singh AIR 1965 SC 183 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. 6. Gujarbardia-(i) The allegation in the petition was that the appellant himself, in the course of election propeganda, 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 15-A (iv) of his written statement, he pleaded that he "Does not remember to have gone to Gujarbardia 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 Gujarbardia 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 Sangh 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 had been cited as a witness but since he had been disbelieved in the former election petition, he 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. 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. Petitioner 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's 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 Baburam Vs. Smt. Prasanni AIR 1965 SC 1179 at page 1183 omission to cross-examine a witness (Jhandu) was mentioned, while believing him. See also (Punjabrao Vs. Meshram AIR 1959 SC 93 at p. 97) 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. 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, Mohansingh and Kishore 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 Kishoresinghi was the last speaker. But Girdharilal had stated that first spoke Mohansingh, then Surajmal and then Kishore Singh. 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, yara stated that the speakers were Mohansingh, Surajmal and Kishoresingh; 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. 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 (Gujarbardia, Surajmal Rindawala said that the petitioner had got his (Surajmars) 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 far 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 Gujarbardia on 8 November 1963, nor was he or Mohansingh present in any such meeting, nor did Surajmal Porwal deliver any speech. In cross-examinations 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 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 he did not work for anybody. As he had stated that in the general elections of 1957 and 1962 be had-worked for the petitioner, be was asked in cross-examination which villages and when he visited during the electioneering campaign of 1957. He replied that be 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 be had been doing so since 1962, and that in 1963 be had gone to Bhopal with a deputation against him. He says that his village Rinda is only three miles from Gujarbardia. The Tribunal bas 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 misstatement in the judgment). We have carefully perused his entire deposition. He says that on 8 November 1968 no meeting was held in his village. He says that the adult school was closed for 11 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, 1904. He knows Surajmal Rindawala. He was bold enough to add that the latter did not go to Gujarbadia Surajmal says 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 knows Surajmal Rindawala. He was bold enough to add that the latter did not go to Gujarbadia Surajmal says 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. But 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 be did not remember the dates of his visits, no 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 Panchayat. 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, he 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 Gujarbardh, 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 Kishorisingh 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 findings. It is true that date, on the notification for holding a by election was published by the Election Commission, fixing 4-5-1963 as the date for polling but in the mean time, 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 find 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 31-12-1963 for polling. The meeting at Gujarbardia was held on 8-1-1963. 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 flied. 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 Vs. Mannuswami AIR 1955 SC 775 . 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 Vs. Mannuswami AIR 1955 SC 775 . 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 Gujabardia, he held himself out as a candidate for the bye-election, From his conduct, it must be inferred that he hold then clearly and unambiguously declared to the outside world his intention to stand as a candidate Shri G.P. Singh candidly and fairly conceded this position. It was not argued before us that the petitioner was not a 'candidate' on 8 November 1963. 7. Dhundharka :-(i) Surajmal Porwa1 made another speech to the same effect at Dhundharka on 15 December 1963. In proof of this contention, the petitioner examined Bhawanishankar (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 fined a mention and in that of Khemraj, both "Munshi" and "Pan" are omitted. In our opinion, this discrepancy 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 Punjabrao Vs. D.P. Meshram AIR 1965 SC 1179 at p. 1180 :- "We have been taken through the evidence of these 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 and 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 falls under the second category but as the statement was 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]. 8. Badwan:-(i) In the written statement, the appellant denied that he or Mohansingh went to Badwah on 25-12-1963 or made the 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 Vakil 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 propagnda "done by Hamid" ¼gehn iVokjh ls dkaxzsl dk izpkj djok jgk gSA½ In other words, contradiction is being pointed out between 'canvassing for the Congress' & 'canvassing for Nahla'. In our opinion, the argument in devoid of substance Nahta had teen 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. Sometime people even refer to a candidate by referring to the election symbol. 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. Sometime 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 the Jan Sangh candidate. We would recall herewith benefit their Lordships observations in Mohansingh Vs Bhanwarlal 1964 JLJ 513 = AIR 1964 SC 1360: 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 back ground 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, reasonable lead only to one inference. (See: Sheopal Singh Vs. Ram Pratap AIR 1965 SC 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 Hamidkhan 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. 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. 1 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, under Section 123 (7) of the Act, obtaining or pro-curing 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. Inderlal Vs. Lal Singh AIR 1962 SC 1156 . We uphold the Tribunal's finding that the commission of the corrupt practice at Badwan, as alleged by the petitioner, was established. 9. 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 Mohansingh. Bhagirath (P.W.41) is a member of the Hindu Mahasabha. He says that he had been to Laduna to canvass in favour of Suryapalsingh, the Mahasabha candidate. He attended a meeting sponsored by the Jan Sangh. The meeting was held at about 8 a.m. The speakers were Saklecha, Mohansingh and Ramchandra Basher Saklecha and Mohansingh stated that Bhanwarlal had embezzled lacs of rupees of the Bank and that he had set up "Hindu Mahasabha and Samajwadi candidates" to snatch Jan Sangh votes in the bye-election. Although truth was not pleaded in defence, this witness appears to have been cross-examined in that regard. Although truth was not pleaded in defence, this witness appears to have been cross-examined in that regard. He said that it was wrong that Suryapalsingh had been set up to snatch Jan Sangh votes; Bhanwarlal Nahta had not given any donation or contribution in connection with Suryapalsingh's election; he, nor anybody else, approached the petitioner for such contribution. There is nothing in his cross-examination for which his evidence could be rejected. (ii) Meerbux (P.W.50) corroborates Bhagirath (P.W.41). He further states that loudspeaker was taken from him on hire by the appellant on 16-12-1963 and was returned to him on 21-1-1964. He was paid Rs. 196 as the hire. Another loud-speaker was taken from him on hire by Ramchandra Basher and he was paid for it vide receipt (Ex. P-135). That receipt is for Rs. 5 which were paid to Meerbux as hire of the loud-speaker for that meeting. It is shown in the return of the election expenses of the appellant. (iii) Both Saklccha (D.W.23) and Mohansingh (D.W.18) denied having addressed any such meeting or having made that statement Saklecha further sought to show that his presence in Laduna on 29 December 1963 was physically impossible as on 30 December, he was present at Jabalpur where he attended a meeting of the Delimitation Commission. The Tribunal repelled this argument when it found that the timings and connections of railway trains made it possible for a person to be at Laduna on a particular day and at Jabalpur on the following day. Shri R.S. Dabir vehemently attacked the veracity of Saklecha. The first ground of attack was that in view of the decision of the Tribunal on issue No. 1, it was a lie when he said that the appellant Kishoresingh on 20-12-1963 agreed to contest the election. This argument must be rejected in view of what we have already said. Secondly, it was pointed out that the witness spoke a flagrant lie when he said that there was no office of the Jan Sangh at Mandsaur. ¼eUnlkSj esa tula?k dk nrj gh ugha gS½ . (Paragraph 20 of the deposition); while, Surajmal (D. W. 3) admits that there was a Jan Sangh office at Mandsaur Shri G.P. Singh endeavoured to reconcile the two by making a distinction between District Jan Sangh Office and City Jan Sangh Office. ¼eUnlkSj esa tula?k dk nrj gh ugha gS½ . (Paragraph 20 of the deposition); while, Surajmal (D. W. 3) admits that there was a Jan Sangh office at Mandsaur Shri G.P. Singh endeavoured to reconcile the two by making a distinction between District Jan Sangh Office and City Jan Sangh Office. It is difficult to accept the explanation which is now advanced because that did not come from the mouth of Saklecha, who is an intelligent witness, and who was the last witness examined before the Tribunal. Moreover, in paragraph 22 of his statement, Saklecha himself makes a mention of District Jansangh Office at Mandsaur when he says that no list of the persons removed from membership would be found there and that there is no list of members either. ¼ftyk tula?k nrj eUnlkSj esa lnL;rk ls fudkys x;s yksxksa ds uke ugha feysaxs ogka ij lnL; lwph Hkh ugha gSA½ . It is only to be mentioned that in the course of hearing of this appeal, Shri Dabir brought it to the notice of this Court in writing that Shri Saklecha had remained present in this Court and had been instructing the learned counsel for the appellant. It was emphesized that while the Vidhan Sabha was in session, the witness, although he is the leader of the opposition, chose to attend the hearing of the appeal in preference to his participation in the Assembly Session. The endeavour was to show the extent of the witness's zeal and that it was as if he identified himself with the appellant. To us, it is patent enough that this Court is not concerned whether a person attends the Assembly or a proceeding in this Court; it is entirely his own lockout. But, with regard to its impaction the value of his evidence we are bound to say that Saklecha being the election agent of the appellant, and, as he says, it was he who had persuaded the appellant to accept the candidature on behalf of the Jan Sangh, his presence in the Court when the appeal was being argued does not adversely affect his credibility as a witness. (iv) Going back to the merits of the issue, on a re-appreciation of the evidence adduced by both parties, we are quite clear in our mind that Bhagirath (P.W.41) and Meerbux (P.W.50) must be believed and the evidence of the appellant's witnesses must be rejected. The appellant’s case that no meeting at all was held at Laduna on 29 December was demolished by Ex. P-135 and his own return of election expenses. This is an additional circumstance which lands weight to the petitioner's case. It appears that in the course of the trial before the Tribunal, the appellant endeavoured to take a turn; he sought to prove that a meeting was, in fact, held at Laduna on 29 December, but it was held on the evening, not on the morning, (See Sunderlal D.W.5) but this was obviously an after-thought. That stand was not taken in the written statement (See: Paragraph 15-A (X) and there was no suggestion in the cross-examination of Bhagirath or Meerbux that the meeting was held on the evening; not on the morning. In conclusion, we uphold the finding recorded by the Tribunal on issue No. 14 (a). 10. 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. ^^Hkaojyky ukgVk >wBh xokfg;ka rS;kj djus esa ekfgj gSA^^ (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 : ^^1 yk[k 60 gtkj ds yxHkx o Hkz”Vkpkj ds ekeys f’kdk;fr;ksa us lkeus yk;s dkaxzsl ds utkjs %& tkudkjh lw=ksa ls Kkr gqvk] irk pyk gS fd dkaxzslh ps;jeSu odhy Hkaojyky ukgVk ds Hkz”Vkpkjksa ds ckcr lekpkj ls turk dks voxr fd;k rFkk f’kdk;rksa ij tkap gsrq Jh fMIVh jftLVªkj egksn; Jh lsBhth vk;s vkSj Hkz”Vkpkj ds ekeys lqusA turk esa odhy Hkaojyky ukgVk ds f’kdk;rksa ds ifj.kke tkuus dh Hkkjh mRlqdrk gSaA^^ (8) Surajmal Chhingawat stated before a large number of person on 3 January 1964 at Malia that Bnanwarlal Nahla had embezzled lacs of rupees of the Bank and had killed by poison the son of poor Surajmal Rindawala : ^^Hkaojyky ukgVk us cSad ds yk[kksa :i;ksa dk xcu fd;k gS vkSj cspkjs lqjtey fjUMkokys ds yM+ds dks tgj fnykdj ekj Mkyk gSA^^ (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 Nahata 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 Suryapal 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 ^^Hkaojyky ukgVk us cSad esa yk[kksa :i;ksa dk xcu fd;k gS vkSj mlds cki us Hkh 3 yk[k :i;ksa dk ljdkjh yksg o pn~njsa CySd esa csp fn;k gS ftlls vc Hkkxs Hkkxs fQj jgs gSaA ukgVk us ukjk;.kflag dks o lw;Zikyflag dks iSls nsdj tula?k ds mEehnokj Jh fd’kksjflag ds oksV dkVus dks [kM+k djok;k gSA^^ The Tribunal has found these issues in favour of the respondent. The contention before us wi1h regard to each of these corrupt practices is that it was not made at all and, secondly, consent as required under section 123 (4) is not proved. The contention before us wi1h regard to each of these corrupt practices is that it was not made at all and, secondly, consent as required under section 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. 11. 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 Umashanker 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, Umashankar Trivedi (DW 7) and Sunderlal (DW 5) were examined. The Tribunal, while deciding the issue in the affirmative, observed:- "No doubt, Shree Narayansingh is 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 sated as a candidate in the bye election U.S. Trivedi is a 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. He is also the person who persuaded the respondent to sated as a candidate in the bye election U.S. Trivedi is a 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 ad mission of Narayan Singh (PW 65) that in the former election petition also he was a witness for the petitioner and the further admission that be 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 right 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 (DW 5) or Trivedi (DW 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 Punjabrao Vs. Dr. Meshram AIR 1965 SC 1179 It was the duty of the Tribunal to weight evidence of both the parties on the basis of what intrinsically appeared in the depositions, (ii) Narayansingh (PW 65) says that he would not be able to repeat what was uttered by Trivedi and by Joshi, another speaker whatever portions be could recollect, he had stated in examination-in-chief. Some five or six sentences were read out to him from a book and he was asked to repeat. He expressed his inability and said that he would only be able to give a gist. He is a legal practitioner. He is the President of the Municipality on Congress ticket. He says he did not attend any public meeting sponsored by the Congress party from 4-1-1964 to 13-l-1964. (iii) Bhairusingh (PW-71) says that the audience was about 500 strong. In cross-examination, he says that he will not be able to reproduce the words which were uttered by the three speakers Jagannathrao Joshi was introduced by the Chairman of the meeting, that is, Ramchandra Basher. He says that the only thing which he remembers about that introduction is the name of Jagannathrao Joshi, but he does not remember anything else. He then admits that he is unable to give even the substance of Joshi's speech. He says that the only thing which he remembers about that introduction is the name of Jagannathrao Joshi, but he does not remember anything else. He then admits that he is unable to give even the substance of Joshi's speech. (iv) The petitioner produced one Kanhaiyalal (PW 4), who says that he attended the public meeting of the 11th January organised by the Jan Sangh and, in that meeting, Barrister Trivedi said in his speech that Bhanwarlal Nahta was an expert in preparing evidence. This witness is an Advocate and was at that time carrying on election propaganda for the Socialist candid He. A specific date, that is, 11th January, was given by him. This means that he went to the length of saying something which was not alleged in the election petition; there was no allegation that Trivedi uttered such words on the 11th January. (v) Umashankar Trivedi (DW 7), on the other hand, says that he did make a public speech at Sitamau on 4 January, 1964, but he did not say that Bhanwarlal Nahta was an expert in preparing false evidence; that he addressed another meeting at Sitamau on 11th January 1964, when also he did not utter any such words. In cross-examination, he states that he said many things against Bhanwarlal Nahta and fully remembers all of them. But then, the cross-examination was not pursued further. The witness was not asked, in order to test his memory, what other things he spoke about the petitioner. Similarly, it appears that in order to test his memory, he was asked whether he recollected what he had spoken in the meeting of the 11th He replied that he remembered most of his speech; in that meeting he did not even take the name of Bhanwarlal Nahta. (vi) Sunderlal (DW 5) says that he organised four election meetings at Sitamau on the 4th, 6th, 9th and 11th January 1964. On the 4th, he himself, Jagannathrao Joshi and Umashankar Trivedi addressed the meeting Trivedi did not say in the course of his speech that Nahta was an expert in preparing false evidence; nor did he make any other personal imputation against the petitioner. In cross examination, he says that he remembers what Barrister Trivedi said in his speech, although he could not reproduce the entire speech word by word. In cross examination, he says that he remembers what Barrister Trivedi said in his speech, although he could not reproduce the entire speech word by word. (vii) We have narrated the substance of the evidence produced by the parties, which speaks for itself. The petitioner produced two witnesses one a legal practitioner and the other a student-both respectable. The returned candidate produced two witnesses-one an Advocate and the other a merchant-again, both respectable. The petitioner himself did not attend that meeting. In his deposition he said that it was Narayansingh who had given him information and that his other witnesses for that incident were Bhairusingh, Bhanwarlal Khanti and Shri Sharif Akhatar Vakil's clerk. The latter two were not examined for the reasons best known to the petitioner. Except Trivedi, not one of the other three witnesses could say that he remembered the words uttered by him (Trivedi). As already said, cross-examination of Trivedi was not pursued as to the text of his speech. It is not as if be denies to have addressed the election meeting at Sitamau on the 4th January. He emphatically and in particular says that he did not utter those words which are ascribed to him. He also says, generally, that he did not make any personal imputation against the petitioner. 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 or 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 AIR 1965 SC 183 . (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). 12. Mandsaur.-(i) Relying on the evidence of Govindram (PW 60), who is a Hotel-keeper near the place where the board was placed, Jagdish Mandowara (PW 64), as also Ramchandra (PW 9) who took a photograph of the board, and also on comparison of the handwriting with Ex. P-130, and Ex. 12. Mandsaur.-(i) Relying on the evidence of Govindram (PW 60), who is a Hotel-keeper near the place where the board was placed, Jagdish Mandowara (PW 64), as also Ramchandra (PW 9) who took a photograph of the board, and also on comparison of the handwriting with Ex. P-130, and Ex. P-140, and rejecting the evidence of Surajmal Chhingawat (DW 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 appellants an opportunity to further cross-examine the petition, and that the Tribunal erred in 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 been produced, but its non-production cannot be said to be a deliberate 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 in-conspicuous, where somebody must have read it, and that suffices to prove publication within the meaning of S. 123 (4). 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 in-conspicuous, where somebody must have read it, and that suffices to prove publication within the meaning of S. 123 (4). There is definite evidence of Ramlal (P.W. 61) and Kesharlal (P.W.63), who belong to village Sunthe 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 one in relation to the personal character or conduct of the petitioner and this was endeavoured to be demonstrated by dissenting 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 aware 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. 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 a glance registers in the mind an impression of "corruption", "Bhanwarlal Nahta", "one lac sixty thousand" "complaints", "enquiry" and the cumulative effect is 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. 13. Malia-The Tribunal has found, on the evidence of Shambhoogir (P.W. 20). Kaluram (P.W. 21) and Rama (P.W. 36), that before a large gathering at village Malia, Surajmal Chhingawat stated that the petitioner had made defalcation of lacs of rupees of Bank and had got the son of Surajmal Porwal killed by poison. We do not find any reason whatever for reaching a different conclusion. Learned counsel for the appellant took us through the evidence of these witnesses. Nothing was brought out in their cross-examination to shake their credibility. All the three witnesses are from Malia. In rebuttal, only Surajmal Chhingawat was examined. His bare denial was rightly rejected by the Tribunal, when there was positive and cogent evidence of three witnesses Surajmal Chhingawat, it may be recalled, is the Secretary of Jan Sangh party, Mandsaur city. We uphold the finding of the Tribunal on issue No. 8-A. 14. Araia, Ranayara and Nahargarh-(i) At these three places, different meetings were organised by the Jan Sangh party on 24-12-63, 8-1-64 and 11-1-64 respectively. In all these meetings, Khumansingh, alias Shivaji, a member of the Jan Sangh party, stated that Bhanwarlal had committed embezzlement of lacs of rupees and that he had set up Narayansingh and Suryapal Singh, by giving them moneys, for snatching votes which would otherwise have gone to Kishoresingh. These two statements have been found by the Tribunal to have been made by Khumansingh at all the three meetings. (That portion of the statement which concerns the petitioner's father is irrelevant). These two statements have been found by the Tribunal to have been made by Khumansingh at all the three meetings. (That portion of the statement which concerns the petitioner's father is irrelevant). Satyanarayan (P.W. 7) whose name was also included in the list of witnesses filed by the appellant; Ishwarlal (P.W.8) and Jujharsingh (P.W.47) were produced about Arnia meeting Amritram (P.W.53), Fakirchand (P.W.55), Bhawanishankar (P.W. 57) and Shankarlal (P.W.58) for Ranayara: and the petitioner himself (P.W.2) and Satyanarayan (P.W.68) regarding Nahargarh. Having perused all the depositions we agree with the Tribunal in that the allegations about the false statements made by Khumansingh at the Arnia and Ranayara meetings are fully proved. (ii) But not so about the alleged speech at Nahargarh Satyanarayan (P.W. 68) says that he made a short note of the speech and reported to Nahta on the same day; Nahta was not present in that meeting. This demolishes the statement of the petitioner when he says that he was himself present in the meeting. But, he could not give out the name of the person who was presiding over the meeting. He says that it was dark Rajmal, Moti Lal, Shambhusingh, Shafiq Ahmed and Satyanarayan Choubey were standing near him. Except Satyanarayan, the otter persons were not produced in evidence. The possible argument that Satyanarayan might not have noticed the presence of the petitioner cannot be accepted because, according to Satyanarayan the met Nahta the same day and reported to him about the proceedings of the meeting. If Nahta had been present, he would have said so to Satyanarayan. This means that both Satyanarayan and Nahta cannot be believed simultaneously. The evidence is, therefore shaky and benefit of the doubt must go to the returned candidate as regards Khumansingh's alleged speech at Nahargarh. (iii) We uphold the finding of the Tribunal on issue No. 10 (a) as regards Khumansingh's speeches at Arnia and Ranayara, but set aside its finding as regards Nahargarh. 15. (i) It remains to consider which of the corrupt practices No. (2), (3), (7), (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. 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 find 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, to do 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 under section 123 (4) of the Act, may be express or implied. (e) 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 he 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 Vs. Harishchandra AIR 1958 Raj 324 which was upheld in Sheopalsingh Vs. Harishchandra AIR 1960 SC 1217 ; Badrinarayan Singh Vs. Kamdeoprashad Singh 11 ELR 64; Sudhir Laxman Hendre Vs. S.A. Dange 17 ELR 373 Nani Gopal Swami Vs. A. Hamid Choudhari 19 ELR 175; Jagdevsingh Vs. (iii) A few cases may be cited in support of our view Sheopatsingh Vs. Harishchandra AIR 1958 Raj 324 which was upheld in Sheopalsingh Vs. Harishchandra AIR 1960 SC 1217 ; Badrinarayan Singh Vs. Kamdeoprashad Singh 11 ELR 64; Sudhir Laxman Hendre Vs. S.A. Dange 17 ELR 373 Nani Gopal Swami Vs. A. Hamid Choudhari 19 ELR 175; Jagdevsingh Vs. Pratapsingh AIR 1965 SC 183 and Khagendranath Vs. Umeshchandra AIR 1958 Assam 183, which was upheld in Saratchandra Vs. Khagendranath AIR 1961 SC 334 . In the Assam case, it was found that the voters were carried by mechanically propelled vehicles to the palling booths by B.K., who was in charge of the electioneering campaign on behalf of the Congress party, and B.R., 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. (iv) 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 (10), nor those committed by Surajmal Porwal at Gujarbardia (2) and Dhundharka (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. 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 Suryapal Singh by bribing them, in order to snatch Jan Sangh votes. That being so, if those 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 the had got Surajmal Prowal's son killed by poison) were repeated on several occasions, evinces the implied consent required by section 123 (4) of the Act. In Sheopatsingh AIR 1960 SC 1217 , 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 all that was established was a stray 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 Nahargarb 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. 16. 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 Narayan Singh (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 ejected. 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 inferred 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. 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. But 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 rot 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 inspite of the corrupt practices only 100 or 200 or not even one voter changed his mind. When a corrupt practice is found proved under section 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 wert cast in favour of the Socialist and the Mahasabha 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 Jamuna Prasad Vs. Lachhi Ram AIR 1954 SC 686 , the Supreme Court upheld the declaration that the election of the returned candidate was void but set aside the further declaration that another candidate was duly elected. In that case the difference in votes between them was 919. In Jamuna Prasad Vs. Lachhi Ram AIR 1954 SC 686 , the Supreme Court upheld the declaration that the election of the returned candidate was void but set 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 Nahta. 17. (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 under section 99 of the Act. He prayed that that should now be done by this Court. (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 under section 116-A of the Act in respect of an order under section 99 is available only to the person who is named under that section, because it is only then that is 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 under section 99 is made in 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 Vs. 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 Vs. Brahma Prakash AIR 1962 Punj 129 Amjad Ali Vs. B.C. Barua 13 ELR 285 and Prapatsingh Kairon Vs. S. Kartarsingh 17 ELR 236. But even at that stage, such person can not be made a "party" to the election petition. The Bombay High Court in Parshottamlal Vs. Lalubhai 14 ELR 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 ejection petition, any of the following three situations may arise. (A) The Tribunal does not act under section 99; (B) the Tribunal after giving him notice and holding an enquiry, makes an order recording his name and (C) after holding such enquiry, the Tribunal decides not to name him. It is in contestable that in situation (B), right of appeal is conferred under section 116-A on the person 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 under section 116-A. 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 here because they have not been given opportunities to show cause, why they should not be named under section 99 of the Act?" Thus, as the present case falls under (3), an appeal does not lie. The preliminary objection prevails. 18. However, in our opinion, that is not the end of the matter. By virtue of sub-section (2) of section 116-A of the Act, the High Court is invested with all powers of the Tribunal. The preliminary objection prevails. 18. However, in our opinion, that is not the end of the matter. By virtue of sub-section (2) of section 116-A 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 under section 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 under section 99 (1) (a) (ii), after following the procedure laid down in the proviso. But, if no such appeal is before the High Court, it can not start an independent proceeding to act under section 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 under section 99 of the Act, the election petitioner should move toe High Court as soon after it becomes seized of an appeal under section 116-A 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 99, 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. 19. (i) In spite of that abandonment, we have considered whether we should suo motu act under section 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 or the Legislature of any State for a period of six years (vide S. 140 of the Act). 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 or the Legislature of any State for a period of six years (vide S. 140 of the Act). S. 99 (1) (a) (ii) requires the Tribunal to make all 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 under 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 (3) 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 enquires 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 clear 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 under section 98, a subsequent order is not contemplated. When read along with section 98, they make it absolutely clear 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 under section 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 evidence 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. 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 given 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 ejection 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 under section 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 53; then the persons so noticed will have the right to produce evidence in their defence and the number of these witnesses cannot be predicted. Therefore, apart from the other debatable aspects, the fulfillment of the requirements 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. 20. In the result, Kishore Singh's appeal (F. A. 1/65) and Bhanwarlal Nahta's appeal (F.A. 13/65) are both dismissed. Having regard to the peculiar circumstances of this case, we decline to act suo motu at this late stage. 20. 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 costs as incurred in this Court.