MERCYKUTTY AMMAversusKADAVOOR SIVADASAN AND ANR.

                          MERCYKUTTY AMMA                                          A
                                       v.
                  KADA VOOR SIV ADASAN AND ANR.

                           NOVEMBER 6, 2003

                 [V.N. KHARE, CJ. AND S.B. SINHA, J.]                              B


      Election Laws :

      Representation of the People Act, 1951 :
                                                                                   c
       Section 123, 123(3A) and (4)-Corrupt practices-Election petition-
Allegation of publication of defamatory material by agent of the elected
candidate-Held: Such allegations must be proved beyond reasonable doubt
as in criminal trial-Election petitioner is required to plead and prove the
consent of the elected candidate to the alleged corrupt practices-On facts,
election petitioner could not prove that the person was the agent of the elected
                                                                                   D
candidate and that the offending material was printed and published with the'
consent and knowledge of the elected candidate-Hence, allegations ofcorrupt
practices not made out-Order of High Court correct to the said effect.

      Section 99-Corrupt practices-Naming of persons not party to E
proceedings-Mandatory requirement to be complied with-Held: Before a ·
person is named as having indulged in corrupt practice, he must be given
notice and allowed to cross-examine the witnesses examined on ht-half of the
parties to the petition.

      Appellant and Respondent contested the election from a Legislative           p
Assembly Constituency. Respondent was declared elected by the returning
officer. Appellant filed election petition alleging that the respondent had
committed "corrupt practices" within the meaning of Section 123 of the
Representation of People Act, 1951. It was alleged that agent M of the
respondent published defamatory material to prejudice the prospects of
the appellant's election having full knowledge that they were untrue and           G
Convenor v· in the Constituency distributed the same. High Court
dismissed the election petition holding that the appellant having not been
able to prove consent of the first respondent as regards the publication of
the pamphlet by M and V, the same did not meet the requirements of law
                                     313 •                                         H
    314                    SUPREME COURT REPORTS (2003) SUPP. 5 S.C.R.

A   as no sufficient evidence was brought on records to show that any of them
    was authorised to act on behalf of the respondent. Howe\•er, High Court
    without issuing any notice to M, held that the proved circumstances fully
    justified beyond reasonable doubt that the pamphlet was brought out by
    M. Hence the present appeals.

B         Appellant contended that the High Court erred in holding that the
    appellant was unable to prove the corrupt practice on the part of the first
    respondent since he had pleaded and proved that M and V were agents
    of the first respondent; that for arriving at a conclusion as to whether the
    elected candidate had taken recourse to corrupt practices or not, it is not
C   necessary to prove that the publication in question was made by an election
    agent or polling agent or counting agent as it is sufficient to show that
    the same was made by a person who was otherwise an agent of the
    returned candidate; and that the consent of first respondent in relation
    to the said publication must be held to have been proved as the materials
    brought on record clearly show that the publications in question were sent
D   to the Election Commissioner for the purpose ofshowing that the election
    expenses incurred by the first respondent, which had been proved by PW-
    18.

          Respondent contended that the appellant had not been able to
    establish any nexus between the material published and the list containing
E   details of pamphJets, posters and notices printed during the last general
    election by both the rival candidates; and that the manager of the Press,
    having denied that the pamphlet in question, was printed in his Press, the
    appellant cannot be said to have proved that the said matter was printed
    at the instance of the first respondent.

F         Disposing of the appeals, the Court

          HELD : 1. Appellant has not been able to prove that M was the agent
    of the first respondent; and that the offending material was printed and
    published with the knowledge and consent of the first respondent.
    Therefore, High Court was right in coming to its finding to the said effect.
G                                                                    [326-D-E)

         2.1. Allegations of corrupt practices are quasi-criminal charges and
    the proof that would be required in the support thereof would be as in a
    criminal charge. The charges of corrupt practices are to be equated with
    the criminal charges and proof thereof would be not preponderance of
H   probabilities as in civil action but proof beyond reasonable doubt as in
             MERCYKUTTY AMMA v. KADAVOOR SlVADASAN                      315
criminal trials. (324-H; 325-AI                                                A
      Surender Singh v. Hardial Singh and Ors., [198511SCR1059, relied
on.

      2.2. In terms of sub-section (4) of Section 123 of the Representation
of the People Act, 1951 commission of corrupt practices may be by the          B
candidate or his agent or by any other person with the consent of the
candidate or his election agent. An election agent and a polling agent are
to be notified by the candidate, before the statutory authorities. Such
agents are not only known to the appropriate authorities but also to his
opponents and other persons concerned. However, any person who is held
to have acted as an agent in connection with the election with the consent     C
of the candidate, his name is not required to be notified. He must have an
express or implied authority to act on behalf of the candidate. For the
purpose of proving corrupt practices on the part of such agent, there would
not be any material difference between the third category of "agent" or
"any other person" inasmuch as in both the cases consent of the candidate      D
being the material factor, would be required to be pleaded and proved.

      2.3. In the instant case, the appellant was required to prove that
alleged corrupt practices were committed by M and V with the consent
and knowledge of the elected candidate. The first respondent, in his written
statement denied or disputed that a pamphlet has been published defaming       E
the appellant at his instance or with his knowledge or consent. The
appellant sought to prove such consent on the part of the first respondent
vis-a-vis M on the ground that not only the same was printed in the Press
of K but the expenditure incurred by first respondent on the printing and
publishing thereof was intimated to the Election Commission in his election    F
expenditure account. However, the evidence on this aspect is not conclusive
on the question that offending material was printed and published by the
Press of Kor the expenditure therefor was borne by respondent No.I.
                                                                 (323-C-El

      S.N. Balakrishna v. Fernandez, AIR (1969) SC 1201, referred to.          G
     3.1. Section 99 of the Act empowers the High Court to record 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 requirement
to apply the provision is in respect of a person who is not a party to the
proceeding. The proviso appended to Clause (a) of Sub-section 1 of Section     H
    316                   SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.

A   99 mandates that before a person is so named as having indulged in
    corrupt practices he must be given the same opportunity which is given
    to a party to the petition. He has to be given notice to appear before the
    High Court and to show cause why he should not be so named and upon
    his appearance, if any, pursuant to suet: notice he must be given an
    opportunity to cross-examine the witnesses who have already been
B   examined by the High Court and gave evidence against him and further
    giving him an opportunity of calling evidence in his defence and of being
    heard. [325-C-E)

          3.2. Even if M was agent of the first respondent within the meaning
C   of Section 123 of the Act, the High Court was required to comply with
    the mandatory provisions of Section 99. Having regard to the fact that M
    had not been given a notice nor allowed to cross-examine the witnesses
    examined on behalf of the parties on the said issues, he could not have
    been named as having indulged himself in corrupt practices. Hence, the
    High Court committed a manifest illegality in coming to the conclusion
D   that the offending article was published at the instance of M. The said
    observations made against M would stand expunged. [326-B; 326-F-G)

         Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte and Ors.,
    [1996) l SCC 130 and Patangrao Kadam v. Prithviraj Sayajirao Yadav
    Deshmukh and Ors., (2001) 3 SCC 594, relied on.
E
          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4 of 2003.

         From the Judgment and Order dated 29.10.2002 of the Kerala High
    Court in E.P. No. 7 of 2001.

F                                     WITH
          C.A. No. 8648 of 2003.

          Dr. A.M. Singhvi, V.R. Reddy, G. Prakash, Ms. Bina Prakash,
     Ms. Bina Madhavan, S. Udaya Kumar Sagar, Prasanth P., Ms. G. Indira, P.
    "Santhalingam and K.R. Sasiprabhu for the appearing parties.
G
          The Judgment of the Court was delivered by

          S.B. SINHA, J. Leave granted in S.L.P. (C) No. 15350/2003.

         This appeal under Section 116-A of the Representation of People Act,
H   1951, arises out of a Judgment and order dated 29th October, 2002 passed
     MERCYKUTTY AMMA v. KADAVOOR SIVADASAN [S.B. SINHA, J.] 317

by the High Court of Kerala at Ernakulam in Election Petition No. 7 of 2001         A
whereby and whereunder the election petition filed by the appellant herein
was dismissed.

FACTUAL BACKGROUND :

       The parties herein contested the election from 123 Kundara Legislative       B
Assembly Constituency. The respondent got 50,875 votes, whereas the
appellant obtained 46,408 votes. The respondent was declared to be elected
by the returning officer of.the said Constituency on 13th May, 2001. The
appellant in his Election Petition inter-alia contended that the respondent had
taken recourse to "corrupt practices" within the meaning of Section 123 of          C
the Representation of People Act, 1951 insofar as a pamphlet was ·brought
out with an intent to promote feelings of enmity and hatred amongst the
voters belonging to Ezhava caste and communal feelings, which was raised
thereby, became a major factor resulting in the split of votes of the people
of t~e said community. The appellant contended that had such pampl;ilet
being not printed and published, the votes of these aforementioned community        D
would have gone mainly in his favour. The said publication, the appellant
urged, was made by Sh. K.C. Marydasan, an agent of the first respondent
amounting to a corrupt practice within the meaning of Section 123(3A) of the
Act, particularly having regard to the fact that the contents thereof are false
and made with the full knowledge that they were untrue. It was further
alleged that the photographs of the petitioner was published in a bi-weekly         E
publication by name 'Palco Crime Magazine' wherein an article was published
making allegation that the appellant might be responsible for the murder of
one Thankama, a cashew factory worker and the said Thankama had been
upbringing a child aged 11 years as its fostered mother, who was very likely
the illegitimate child of the appellant. It was alleged that the said publication   p
was also made at the instance of the first respondent herein with a view to
defame· the appellant and the same was distributed by Shri Vellimon
Vijayanandan, UDF Convenor, Perinad Mandalam in Kundara Constituency,
segment of the constituency in question.

ISSUES:                                                                             G
     In the light of the pleadings of the parties, the High Court inter alia
framed the following issues:

        "2. Whether K.C. Marydasan and Vellimon Vijayanandan referred to
        in paras 3 & 5 of the E.P. were acting as agents of the !st respondent      H
    318                      SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.

A           when they acted as alleged in the said paras?

            3. Whether the publication of Annexures II and IV were made by
            K.C. Marydasan with the full knowledge and consent of the !st
            respondent?

            4. Whether the publication of Annexures II & IV amounts to corrupt
B
            practice for the purpose of Sections 123(3A) and 123(4) read with
            Section IOO(l)(d)(ii) of the R.P. Act?

            5. Whether the publication of Annexures II and IV were made by.
            the agent and workers of the first respondent with the knowledge and
c           belief of themselves and of the first respondent that the contents
            thereof were false and untrue and with intent to prejudice the prospects
            of the petitioner's election?"

    HIGH COURT JUDGMENT:

D          The High Court in its judgment held that printing and publication of the
    aforementioned pamphlet and article amounted to a corrupt practice within
    the meaning of Section 123(3A) of the Act. It was further held that assuming
    that the publication of Ex.P-2 was made at the instance of or the consent or
    knowledge of the first respondent, there was nothing to show that the contents
    thereof came within the purview of the corrupt practices justifying setting
E   aside of the election on the basis that it promoted feelings of enmity or hatred
    on the part of the voters of Ezhava community against the CPM and its
    candidate.

          Analysing the said ingredients which are required to be proved for the
F purpose of Section 123(4) of the Act, the High Court came to the conclusion
  that the appellant has not been able to prove that the said publication was
  made by Shri Marydasana and Vellimon Vijayanandan as agents of the first
  respondent. The appellant having not been able to prove consent of the first
  respondent as regards the publication of the said pamphlet by Marydasana
  and Vellimon Vijayanandan, the same did not meet the requirements of law
G as no sufficient evidence has been brought on records to show that any of
  them was authorised to act on behalf of the first respondent. The High Court,
  however, without issuing any notice to Marydasan held that the proved
  circumstances, fully justify the conclusion beyond reasonable doubt, that Ex.
  P-2 was brought out by none other than Marydasan.

H         At the trial an application was filed by the first respondent for examining
     MERCYKUTTY AMMA v. KADAVOOR SIVADASAN [S.B. SINHA, J. J 319

the said Shri K.C. Marydasan as a court witness. By an order dated 2.8.2002 A
the said application was disposed of by the High Court observing that it
would be open to the first respondent to examine him but no step was taken
to summon the said witness.

     The High Court despite the same held:
                                                                                   B
       "The proved circumstances also fully justify a conclusion, beyond
       reasonable doubt, that it was brought out by none other than
       Marydasan.

       In the circumstances it is safe to conclude that Exhibit P2 is a Convenor
       pamphlet printed and published by Marydasan himself.. .l, therefore,        C
       find that the petitioner had succeeded in establishing that publication
       of material that can constitute corrupt practice under section 123(4),
       (Subject to proof of consent) was done by the person Marydasan in
       respect of Exhibit P2. Though it is not proved that any corrupt practice
       was committed by him within the meaning of Section 123(3A) of the           D
       Act."

      As regard, Issue No. 5 the High Court observed:

       "Publication of Annexure 2. (Exhibit.P2) by K.C. Marydasan, UDF
       Convenor stands established, but that does not amount to corrupt            E
       practice within the meaning of Section JOO of the Act."

SUBMISSIONS:

      Mr. G. Prakash, learned counsel appearing on behalf of the appellant
would submit that the High Court committed a manifest error in arriving at F
the conclusion that the appellant was not able to prove the corrupt practice
on the part of the first respondent having regard to the fact that he had
pleaded and proved that the aforementioned Marydasan and Vellimon
Vijayanandan were agents of the first respondent herein. The learned counsel
would contend that for the purpose of arriving at a conclusion as to whether G
the elected candidate had taken recourse to corrupt practices or not, it is not
necessary to prove that the publication in question was made by an election
agent or polling agent or counting agent as it is sufficient to show that the
same was made by a person who was otherwise an agent of the returned
candidate. Strong reliance, in this behalf, has been placed on SN. Balakrishna
v. Fernandez, AIR (1969) SC 1201. In any event the learned counsel would H
    320                     SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.

A submit that as the materials brought on records clearly show that the
    publications in question were sent to the Election Commissioner for the purpose
    of showing that the election expenses incurred by the first respondent that
    had been proved by PW-18 (G. Kumaran); the consent of first respondent in
    relation to the said publication must be held to have been proved.
B       Mr. Reddy, learned Senior counsel appearing on behalf of the respondent,
  on the other hand, would submit that the appellant had not been able to
  establish any nexus between the material published and the Ex. P-10, ~hich
  is said to be the list containing details of pamphlets, posters and notices
  printed during the last general election by both the rival candidates. The
C learned counsel had also drawn our attention to the statements made by PW-
  17 (Prasad Nanappan) in this behalf. The learned counsel would urge that the
  said witness being the manager of Karthika Press, having denied that the
  pamphlet in question, was printed in the said Press, the appellant cannot be
  said to have proved the material fact that the said Exhibit was printed at the
D instance of the first respondent herein.
    STATUTORY PROVISIONS:

          The relevant statutory provisions of the Representation of the People
    Act, 1951 read as under:
E          "99. Other orders to be made by the High Court.-{!) At the time of
           making an order under section 98 the High Court shall also make an
           order-

           (a) where any charge is made in the petition of any corrupt practice
p          having been committed at the election, recording-

           (ii) the names of all persons, if any, who have been proved at the trial
           to have been guilty of any corrupt practice and the nature of that
           practice; and

            Provided that a person who is not a party to the petition shall not be
G           named in the order under sub-clause (ii) of clause (a) unless-

           (a) he has been given notice to appear before the High Court and to
           show cause why he should not be so named; and

           (b) if he appears in pursuance of the notice, he has been given an
H          opportunity of cross-examining any witness who has already been
     MERCYKUTTY AMMA v. KADAVOOR SIVADASAN (S.B. SINHA, J.) 321

       "examined by [the High Court] and has given evidence against him,             A
        of calling evidence in his defence and of being heard.

        (2) Jn this section and in section I 00, the expression "agent" has the
        same meaning as in section 123.

        123. Corrupt practices. - The following shall be deemed to be corrupt        B
        practices for the purposes of this Act:-

       (3A) The promotion of, or attempt to promote, feelings of enmity or
       hatred between different classes of the citizens of India on grounds
       of religion, race, caste, community, or language, by a candidate or his
       agent or any other person with the consent of a candidate or his              C
       election agent for the furtherance of the prospects of the election of
       that candidate or for prejudicially affecting the election of any
       candidate.]

       (4) The publication by a candidate or his agent or by any other
       person with the consent of a candidate or his election agent, of any          D
       statement of fact which is false, and which he either believes to be
       false or does not believe to be true, in relation to the personal character
       or conduct of any candidate or in relation to the candidature, or
       withdrawal, of any candidate, being a statement reasonably calculated
       to prejudice the prospects of that candidate's election.
                                                                                     E
       (8) Booth capturing by a candidate or his agent or other person.

       Explanation.-{!) In this section the expression "agent" includes an
       election agent, a polling agent and any person who is held to have
       acted as an agent in connection with the election with the consent of
       the candidate."                                                               F
CORRUPT PRACTICES - WHETHER PROVED:

      Indisputably the burden of proof to prove commission of corrupt
practices by the first respondent was on the appellant.
                                                                                     G
     For proving corrupt practices within the meaning of Section 123(4) of
the Act, he was required to prove the following:

       (i)   Ext. P2 was published by the first respondent or by his 'agent'
             or other person, but with his consent.
       (ii) the statement are false and the first respondent believed them to        H
    322                       SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.

A                be true.
           (iii) the allegations touch upon the personal conduct of the petitioner.
           (iv) the statement are reasonably calculated to prejudice the prospects
                ofthe petitioner's election.

B          The appellant in paragraph 3 of the Election Petition alleged:

           (i)   K.C. Marydasan, general Convener, U.D.F. Election Committee,
                 Kundara, published Annexure A2 (Ex.P2) notice containing
                 defamatory statements about the petitioner, which are false on
                 the face of it, and believing the same to be not true.
c          (ii) This was done with the full knowledge and consent of the first
                respondent."

           In the written statement the first respondent traversed the said allegations
    stating :

D           "It is quite incorrect to contend that but for the publication and
            distribution of Annexures A2 and A4 the petitioner would have secured
            more number of votes. The first respondent has not resorted to any
            corrupt practice."

          The first respondent, however, categorically stated that no defamatory
E   statement was made or published with his knowledge. He further denied and
    disputed the allegation that Marydasan was his election agent or a polling
    agent or agent for any purpose. He further denied and disputed that Ex.P-2
    was published with his knowledge.

           It may further be noticed that no allegation was made in the election
F
    petition that the first respondent had incurred the expenditure as regard the
    printing and publishing of the said exhibit.

        The submission of the learned counsel is that apart from election agent,
  polling agent or counting agent, another types of agents are also contemplated
G within the meaning of Section 123 of the Act. The learned counsel may be
  correct, but as would appear from the discussions made hereinafter the same
  would not make any material difference in law.

        In tenns of sub-section (4) of Section 123 the corrupt practices may be
  committed by (a) the candidate; (b) his agent, that is to say (i) an election
H agent, (ii) a polling agent, (iii) any person who is held to have acted as an
     MERCYKUTTY AMMA v. KADAVOOR SIVADASAN [S.B. SINHA, J.) 323

agent in connection with the election with the consent of the candidate; (c)        A
by any other person with the consent of the candidate or his election agent.

       The categories of agents enumerated in (i) and (ii) of clause (b) are to
be notified by the candidate, before the statutory authorities. Such agents,
thus, are not only known to the appropriate authorities but also to his opponents
and other persons concerned. However, so far as category (iii) is concerned,        B
the name of such agent is not required to be notified. He must have an
express or implied authority to act on behalf of the candidate. For the purpose
of proving corrupt practices on the part of such agent, there would not be any
material difference between the third category of "agent" or "any other person"
inasmuch as in both the cases consent of the candidate being the material           C
factor, would be required to be pleaded and proved. Thus, the appellant was
required to prove that alleged corrupt practices were committed by the
aforementioned Marydasan and Vellimon Vijayanandan with the consent and
knowledge of the elected candidate. The first respondent, as noticed
hereinbefore, herein in his written statement denied or disputed that a pamphlet
has been published defaming the appellant herein at his instance or with his        D
knowledge or consent. The appellant sought to prove such consent on the
part of the first respondent vis-a-vis Marydasan on the ground that not only
the same was printed in Karthika Press but the expenditure incurred by
Respondent No. I on the printing and publishing thereof was intimated to the
Election Commission in his election expenditure account.                            E
      In terms of Section 127A of the Representation of People Act, the
printers are required to produce four copies of each printed material that they
printed and provided during the election period to the candidates or their
representatives. The authorities of the Karthika Press responded to a notice
issued by the said witness. A data was also collected on such disclosures and       p
further materials were collected by the officers of the department on the basis
whereof the list was prepared. It is, however, accepted that the posters and
pamphlets produced by the printers were not exhibited in the notice board of
the Collectorate.

      PWIO upon undertaking a purported comparison of Ex. P2(b) with the            G
entries made in Ex. XI 0, sought to correlate the both on the ground that a
sum of Rs. 4,350 was paid by the first respondent herein to the printer.
However, in cross-examination he stated that it was not easy to correlate
those items of printing with entries in Ex. XI O; the reason being that payments
towards printing charges may not be made in one lump. He categorically              H
                                \
    324                     SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.

A stated:
            "I now see a bill dt. 19.05.2001 issued to the Secretary of the L.D.F.,
            Election Committee, Kundara from the Kollam District Co-operative
            Printing Society (the bill is marked Ext. XII( a). A verification of Ext.
            X10 is not a statement prepared based on bills produced by the
B           candidate and their agent. Actually we collected data from the field
            which is verified by the staff after going to the election offices of the
            candidates as also the various printing presses. Later on when the
            candidate submitted their bills, I cross checked the details with those
            in Ext. XIO.
c           I now see Bill dt. 30.04.2001 issued from the Don Bosco Industries.
            Offset Printers to the Secretary, the LDF Election Committee, Kundara
            on 30.04.2001 for the sum of Rs. 4,250. These are in respect of
            printing two matters. First of these was 1000 posters for which the
            printing charge was Rs. _3000. This is shown as serial No. 7 of Ext.
            XlO. The other item mentioned in the bill dt. 30.04.2001 is shown as
D
            item 6 of Ext. XlO (the bill is marked Ext. Xl(b)."

         It is, therefore, clear that the evidence of the said witness is not
    conclusive on the question that offending material was printed and published
    by Karthika Press or the expenditure therefor was borne by the respondent
E   No. I.

          The Manager of the aforementioned Karthika Press was examined by
    the appellant as PW 17. He categorically stated that Ex. P2(b) was not printed
    in his Press.

p          He furthermore denied the suggestion that the matter printed in his
    Press was Ex. P2(b ). A question was asked to whom as to which pamphlet
    pertaining to the printing shown in Ext. X7(d) and in answer thereto he
    stated:

            "SI. No. 3 of Ext. X7(d) covers printing charges of Ext. P3(a). Item
G           2 shown as Convenor Pamphlet in Ext. X7(c) was a matter printed in
            four pages. I deny the suggestion that it relates to Ext. P2(b) actually
            has six pages."

        Allegations of corrupt practices are quasi-criminal charges and the proof
  that would be required in the support thereof would be as in a criminal
H charge. The charges of corrupt practices are to be equated with the criminal
    MERCYKUTTY AMMA v. KADAVOOR SIVADASAN [S.B. SINHA, J.] 325

charges and proof thereof would be not preponderance of probabilities as in A
civil action but proof beyond reasonable doubt as in a criminal trials. (See ·
Surender Singh v. Hardial Singh and Ors., [ 1985] 1 SCR 1059

     From the materials on record, therefore, in our opinion, it has not been
proved that the offending article was printed and published with the consent
and knowledge of the first respondent herein.                                    B
NON-COMPLIANCE OF SECTION 99:

      Admittedly Shri Marydasan was not issued any notice. He was not
given any opportunity to cross-examine the witnesses examined on behalf of
the appellant or adduce evidence on his own behalf.                              C
      Section 99 of the Act empowers the High Court to record 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 proviso appended to
Clause (a) of sub-section I of Section 99 mandates that before a person is so    D
named, he has to be given notice to appear before the High Court and to
show cause why he should not be so named and upon his appearance, if any,
pursuant to such notice he must be given an opportunity to cross-examine the
witnesses who have already been examined by the High Court and gave
evidence against him and further giving him an opportunity of calling evidence
in his defence and of being heard.                                               E
      The requirement to apply the provisions of Section 99 is in respect of
a person who is not a party to the proceeding. The statute mandates that
before a-person is named as having indulged in corrupt practices he must be
given the same opportunity which is given to a party to the petition. By
reason of such a notice and giving an opportunity to the noticee to cross-       F
examine the witnesses examined on behalf of the parties to the said petition
and examining witnesses on behalf of his defence, he is placed on same
position as that of a party in the petition. (See Dr. Ramesh Yeshwant Prabhoo
v. Prabhakar Kashinath Kunte and Ors., (1996] I SCC 130).

       Naming of a person as having indulged in corrupt practices has serious    G
consequences. A person indulged in corrupt practices whether party to the
petition in terms of Section 82 or subsequently receives a notice in terms of
Section 99 would stand on the same footing having regard to the provisions
contained in Section SA of the Act. Such a person may not be a necessary
party within the meaning of Section 82 of the Act but it is beyond any cavil     H
    326                      SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.

A that no finding could be recorded by naming such a person unless the
    mandatory provisions of Section 99 are complied with. (See Patangrao Kadam
    v. Prithviraj Sayajirao Yadav Deshmukh and Ors., (2001] 3 SCC 594).

          Even ifMarydasan was agent of the first respondent within the meaning
    of Section 123 of the Act, the High Court was required to comply with the
B   aforementioned statutory mandate. It has not been disputed that the provisions
    of Section 99 are mandatory. Marydasan, thus, could not have been named
    as having indulged himself in corrupt practices without complying with the
    mandatory provisions of Section 99 of the Act.

           The High Court, thus, committed a manifest illegality in coming to the
C conclusion that the offending article Ex. P2(b) was published at the instance
    of Marydasan.

    CONCLUSION:

           We, therefore, are of the opinion that the appellant has not been able
D to prove:
            (a) That the said Shri K.C. Marydasan was his agent;
            (b) that the offending material was published with the knowledge
                and consent of the first respondent.
E          We have, therefore, no hesitation in coming to the conclusion that the
    High Court was right in its finding to the said effect. In view of our finding,
    it is not necessary to go into the cross-appeal filed by the first respondent.

           For the reasons aforementioned, we do not find any merit in this appeal,
F which is accordingly dismissed.
        So far as the Appeal filed by Shri K.C. Marydasan is concerned, we are
  of the opinion, that having regard to the fact that he had not been given a
  notice nor was allowed to cross-examine the witnesses examined on behalf
  of the parties on the said issues, the High Court was not correct in making
G any observation against him. The said observations against Shri K.C.
  Marydasan shall stand expunged. Civil Appeal No. 4 of 2003 is dismissed
  and the appeal arising out of Special Leave Petition (C) No.15350 of 2003
  filed by K.C. Marydasan is allowed. No costs.

    N.J.                                                     Appeals disposed of.