1. A question was raised before both the counsels by this Court and their respective views were sought on the following question :

2. “At what stage of trial, notices are to be issued to the persons, who have been proved at the trial guilty of any corrupt practice and who are to be named under section 99(1)(a)(II) of the Representation of People Act, 1951".

3. Learned senior counsel appearing for the petitioner referred judgment of Hon’ble the Supreme Court in the case of Dwarka Prasad Mishra v. Kamal Narayan Sharma and another, reported in 1970 JLJ 685 (SC)=1970 MPLJ 872. In this case, for Shyamacharan Shukla, who was then printer, proprietor, publisher and keeper of the Mahakoshal Press, a Hindi daily was sought to be named under section 99 of the Representation of the People Act (hereinafter referred to as the ‘Act’). Hon’ble the Supreme Court made following observations in paragraphs 36 to 38 of the judgment :

“36. It is however necessary, before we finally decide this appeal, to deal with the application which is made by the respondents who were on their own application impleaded in this appeal Mr. Chagla counsel for those respondents contends that the Court was bound to name Shyamacharan Shukla, printer, publisher, proprietor and keeper of Mahakoshal Press-a Hindi daily-under section 99 of the Representation of the People Act, 1951. Section 99 (1) of the Act, as it then stood, provided :

(1) At the time of making an order under section 98 the Tribunal shall also make an order --

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

(i) a finding whether any corrupt practice has or has not been proved to have been committed by, or with the consent of, any candidate or his agent at the election, and the nature of that corrupt practice; and

(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

(b) .... .... ....

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

(a) he has been given notice to appear before the Tribunal 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 opportunity of cross-examining any witness who has already been examined by the Tribunal and has given evidence against him, of calling evidence in his defence and of being heard.”

The High Court recorded in paragraph 199(4) and (5) of their judgment their conclusion as follows :

“(4) It is proved that the Mahakoshal a Hindi daily, published from Raipur, and Shyamacharan Shukla, who was its proprietor, publisher, printer and keeper of the Press, were both agents of the respondent within the meaning of section 123 of the Act.

(5) It is proved that three false statements (Annexures 1, 11, 111) were published in the Mahakoshal, issues of the 12th and 26th April and 4th May, 1963, in relation to the personal character and conduct of the petitioner; that all the three were false; and that the respondent did not believe any of them to be true. It is held that they were statements of the fact and that they were reasonably calculated to prejudice the election prospects of the petitioner.

At the hearing an application was made before the High Court that a proceeding should be drawn up under section 99 of the Act against Shyamacharan, Shukla and a notice should be issued to him why he should not be named as having committed corrupt practice under section 123(4) of the Act. The High Court observed that the three statements (Annexures I, II and III) were published in the Mahakoshal of which Shyamacharan Shukla was the proprietor, publisher, printer and keeper. The High Court further observed that Shyamacharan Shukla was the agent of Mishra within the meaning of section 123(4) but Shyamacharan Shukla was not and could not be made a party to the election petition. But