G. Mehrotra, J.
1. This is an appeal under Section 116A of the Representation of People Act, 1951, (hereinafter called the Act) against the judgment of the Election Tribunal, Nowgong. The appellant Biresh Misra (hereinafter called the appellant), a voter of Silchar West Constituency stood as a candidate for the election for the Assam Legislative Assembly from Lumding constituency as the nominee of the Communist Party of India. The respondent No. 1--Ram Nath Sarma (hereinafter called the respondent) was a candidate nominated by the Indian National Congress to contest for the aforesaid constituency.
The respondent is also the Chairman of the Local Board of Nowgong and the other respondents were also the candidates for the said constituency. Abdul Mosabir contested as an independent candidate and the other respondents represented various other parties. Lumding constituency is also included as a part in the Loksabha constituency of the district of Nowgong and Sri Liladhar Kataki was the congress candidate for the Loksabha seat. In the Lumding constituency the total number of votes polled was 21,738.
The appellant polled 4063 votes and the respondent polled 11,259 votes. Abdul Mosabir got 2,089 votes. It is not necessary to. give the number of votes received by the other respondents. The polling took place on the 6th of March, 1957 and the counting was done on the 7th March. The respondent was declared duly elected on the same day. The appellant challenged the election of the respondent by means of a petition, inter alia, on the grounds that the respondent committed corrupt practice through his party men.
Allegations of bribery, undue influence and procuring and obtaining assistance of government servants and using government property for the furtherance of the respondent's election and also for submitting false return by suppressing expenses incurred by him have also been made. The Tribunal held against the appellant on all the points and in the present appeal the points taken by the appellant before the Tribunal have been reiterated.
The first ground on which the validity of the election has been challenged is set out in para 8(1) of the petition and it is as follows :--
"The respondent No. 1--Ram Nath Sarma and his agents carried on a virulent campaign throughout the length and breadth of the constituency in the line that any voter belonging to the minority communities of Muslims and Hindu Refugees of Pakistan not casting his or her vote in favour of the respondent No. 1, would be driven out of the Indian Union to Pakistan. On the 18th of February, 1957 Sri Chandra Dhar Goswami the President of the Lanka Mouza Congress Committee held two election meetings at Lanka and Odalani in support of the respondent No. 1. In these meetings the said Sri Chandra Dhar Goswami in course of his speeches warned the voters of the minority communities that if they voted against the Congress party candidate in the election, they would be driven out of Assam and the Indian Union and sent to Pakistan. The respondent being a very influential man engaged the Gaoburas, Mouzadars of different Mouzas and other Revenue officers and began to interfere with the free exercise of the electoral right of the voters belonging to the minority communities".
In this paragraph, it is further set out that on the 25th February, 1957 some persons belonging to the minority community including 12 village headmen and the election agents of the respondent widely circulated a leaflet throughout the Lumding constituency under their signatures, in which it was given out that a meeting had been held on the 23rd of February, 1957 at village Islamnagar of the Influential Muslims and in that meeting it had been declared that not voting for the congress would mean high treason against the State.
The main ground, therefore, set out in the aforesaid paragraph is one of corrupt practice by exercising undue influence on the voters. There are three material facts on which the corrupt practice of undue influence has been pleaded. Firstly, it is said that the respondent held two meetings--one at Lanka and the other at Odalani in which threat was given to the minority communities.
Secondly it is said that the publication of the leaflet containing the resolution passed in the ear lier meeting of the representatives of the minority communities constitutes corrupt practice, and third ly that undue influence was exercised by the Gaonburas and Mouzadars of different villages. The allegations in this paragraph have been denied by the respondent, in his written statement in the fol lowing terms :--
"It is true that Sri Chandradhar Goswami held election meetings at Lanka and Odalani mouzas in support of this respondent but it is absolutely false to say that he (Shri Goswami) in course of his speeches in any of the meetings warned the voters of the minority communities that if they voted against the Congress party candidate they would be driven out of Assam and Union of India and sent to Pakistan."
2. The questions which therefore arise in connection with this point are (1) whether the petitioner has succeeded in proving the alleged version of the speech made by Sri Chandradhar Goswami and the other speakers in the two meetings held at Lanka and Odalani and (2) if, the speeches were actually made will constitute undue influence as defined in Section 123(2) of the Act. Section 123(2) of the Act provides as follows :--
"(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person, with the free exercise of any electoral right :--
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who-
(i) threatens any candidate, or any elector, or any person in whom a candidate or an elector is interested, with injury of any land including social ostracism and excommunication or expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause.
(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause."
(To prove the actual speeches made at the meeting of Odalani, the petitioner has produced witnesses. After analysing the depositions of the witnesses, his Lordship concluded :)
We have considered the evidence of these witnesses and we have no reason to differ from the estimate of their testimony by the Tribunal. The appellant, therefore failed to establish that at the two meetings held at Odalani and Lanka bazar Sri Chandra Dhar Goswami who admittedly worked for the respondent made any speech in which he threatened the Muslim minorities or the refugees that their annual pattas will be cancelled in case they failed to vote for the congress. That he delivered a speech at the meeting is not denied but as the appellant has failed to prove the contents ot the speech, it cannot be held that any corrupt practice was committed by the respondent in this respect.
3. The next allegation is that in a leaflet under the signatures of a number of persons which is marked as Ex. 10, a resolution passed by the members of the minority community was published and the contents of that leaflet amounts to a corrupt practice as defined in Section 123(2) of the Act. On the 23rd February, 1957 at village Islamnagar a meeting of the prominent people of the minority community was held in which it was decided to support the congress candidate, and in pursuance of the resolution of that meeting the leaflet Ex. 10 was published. The material portion of the pamphlet is as follows -
"So to the Muslim community and as a matter of that to all minority communities it is the humble appeal that in the ensuring general election all should try utmost for the success of the congress and that gentlemen assembled there emphatically declared that not to vote for congress would amount to high treason."
4. There is some mistake in the translation. The correct translation will be as follows:--as not to vote for Congress will be like committing betrayal of the country'. No objection has been taken to the earlier part of this document. Tt is admitted that the language used in the major part of this publication is dignified and proper. The objection is taken only to the insinuation at the end that failure to vote for the Congress will amount to betrayal of the country.
Apart from the fact that the signatories to this pamphlet were not proved to be the workers of the respondent and thus the publication of the leaflet cannot be regarded as the work of the agents of the respondent, we do not think that the publication of this pamphlet by itself will constitute undue influence within the meaning of Section 123(2) of the Act. We have already referred to the contents of the document and in our opinion it contains only an expression of opinion.
The language of the publication is not such as is likely to interfere with the free exercise of the right of voting. It only states that the failure to vote for the Congress will be like an act of betrayal of the country. Even if it is said that the failure to vote for a particular candidate will be like committing an offence, that by itself will not constitute any threat or interference with the exercise of free right of voting.
It was contended by the learned counsel for me appellant that in the modern society, there cannot be a greater accusation than saying that an act will amount to high treason. We do not think that the document even goes to the extent of suggesting that any person by not voting for Congress candidate would be committing an offence of high treason so as to give the remotest apprehension of conviction for any offence under the Indian Penal Code and consequent punishment.
It is only an expression of opinion of the signatories to the document. In this view of the matter, even if it is held that the signatories to tins document were the workers of the respondent, the respondent cannot be held guilty of corrupt practice. The respondent had denied that any of the signatories were his election agents. It is admitted that some of the signatories were later appointed polling agents of the respondent, but it is denied that the pamphlet was issued by him or any of the agents of the respondent.
5. Coming to the evidence about the printing of the leaflet, three thousand copies were printed in the Bihlangani Press of Nowgong. P. W. 5--Mahesh Chandra Dev Goswami is the Manager and proprietor of the Bihlangani Press in which the pamphlet was printed. He states that he printed three thousand copies of the leaflet from the manuscript Ex. 11 on the 25th February, 1957. He however says that he did not know the man who brought the manuscript. The man brought a pencil written paper from which Ex. 11 was transcribed and the pencil copy was taken away by the man.
It was signed as Nagendra Sarkar by that man. But his name at his instance was cut out from Ex. 10. There is no evidence to prove that this document was published and printed at the instance of the respondent or anyone of his agents. In the absence of any such evidence the mere fact that later on some of the signatories acted as his polling agents is not by itself enough to establish the consent of the respondent to the act of publication. We do not therefore think that there is any substance in the contention of the appellant that the publication of this leaflet constitutes a corrupt practice. (About the distribution of this leaflet his Lordship considered evidence and concluded:) On a careful consideration, therefore, of the evidence of these witnesses we are constrained to hold that neither the publication of the leaflet with the consent, implied or expressed of the respondent, has been established, nor has its distribution been established. The contents of the leaflet also do not amount to any threat so as to constitute undue influence within the meaning of Section 123(2) of the Act.
6. The next contention is that the respondent committed corrupt practices by obtaining or procuring the assistance of persons in the service of the Government. Section 123(7) provides as follows:
"The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or. by any other person, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, from any person in the service of the Government and belonging to any of the following classes, namely:--
(a) gazetted officers;
(b) stipendiary judges and magistrates;
(c) members of the armed forces of the Union; (d) members of the police forces;
(e) excise officers;
(f) revenue officers including village accountant such as patwaris, lekhpals, talatis, karnams and the like but excluding other village officers; and
(g) such other class of persons in the service of the Government as may be prescribed."
7. On the 4th March, 1957 Sri B.R. Medhi, the then Chief Minister of the State of Assam in company of the respondent and Sri Manmath Nath Banerjee, Assistant Traffic Superintendent, N.E. Railway, Lumding, a Police Officer, the Sub-divisional Officer, Nowgong the Personal Assistant to the Chief Minister, travelled from Lanka to Lumding in a Railway trolley with the main purpose of addressing an election meeting.
The meeting was addressed by the Chief Minister and the respondent at Lumding at about 6-30 p.m. This act constitutes a corrupt practice as defined under Section 123(7) of the Act. This allegation is to be found in para 8(iii)(a) of the petition. In para 16 of the written statement filed by the respondent, the allegations contained in para 8(iii)(a) have been denied.
It is asserted that the Chief Minister went on official duty after purchasing 1st class ticket from Lanka to Lumding and never utilised the Government property in furtherance of the election propaganda of the respondent. That the Chief Minister travelled on a railway trolley from Lanka to Lumding is not contested. It is also not disputed that the respondent also travelled on that date on the same trolley.
8. Three questions therefore have got to be considered before the petitioner can get the election set aside on this ground. It is first to be seen if the respondent obtained or procured or attempted to obtain or procure any assistance from any person in the service of the Government and that secondly the assistance was for the furtherance of the prospects of the candidate's election. It is further to be considered whether the assistance, if at all, procured through the Chief Minister can be said to be an assistance procured through the agent? of the respondent.
The appellant's contention is that Sri Man-math Nath Banerjee who brought the trolley for the use of the Chief Minister is a Gazetted Officer and the Chief Minister took the assistance of the said Gazetted Officer inasmuch as he procured the use of the trolley and that he addressed a meeting organised in connection with the election of the respondent; the assistance was thus procured in furtherance of the prospects of the respondent's election.
It was also urged in this connection that under the railway rules, even the Chief Minister and at any rate the respondent was not entiled to use the railway trolley and therefore when Sri Manmath Nath Banerjee permitted the respondent to travel with the Chief Minister on that trolley, he assisted the respondent in furtherance of his election prospects. The assistance of Sri Manmath Nath Banerjee was thus obtained by the respondent himself.
The appellant has examined Sri M.C. Chakravarty, the Station Master of Lumding who is P. W. 1 and has stated that on the 4th March, 1957 a trolley was brought from Lanka to Lumding to cany the Chief Minister with his party consisting of the Superintendent of Police, the Sub-divisional Officer, Nowgong and the Assistant Superintendent --Sri Manmath Nath Banerjee who is a gazetted officer. Under the railway rules all the persons executed life bonds separately and their fares were realized.
According to him under the railway rules, there is no provision even to allow the Railway Minister of the Union to use the trolley, but it can be used by some official such as by a Magistrate, a Police Officer and medical officers in the case of emergency. He further states that the respondent also travelled by the same trolley with the Chief Minister and purchased the tickets for all.
He was however not in a position to state whether the fare was paid by the respondent from his own pocket or he collected the same from all the passengers and paid it to the Station Master. The other two witnesses on this point are P. W. 2--Sunir Dutta Roy and P. W. 3--Sri Adity'a Gopal Ludh. They have stated that on the 4th March, 1957, the Chief Minister went in a trolley from Lanka to Lumding. It is also to be noted that the appellant moved the Tribunal to examine the Chief Minister on commission; but as the fact that he travelled on that date on a trolley was not denied, the Tribunal rejected the prayer.
In order to prove that the Chief Minister went on that date to Lumding in furtherance of the prospects of the respondent's election, the petitioner has relied upon a notice--Ex. 21 announcing a Congress meeting on that date in the afternoon. In the notice, it was mentioned that a huge election meeting will be held where the Chief Minister will speak and Sri Bijoy Chandra Bhagwati would also address the gathering.
P. W. 24--Sachindra Math Das states that he is a press reporter of Hindusthan Standard and Amritbazar Patrika and in the meeting held at Lumding on 4-3-57 after 4-30 p.m. the witness took the photograph when the Chief Minister along with the respondent arrived in a trolley at the Lumding railway station platform with a borrowed camera. After arrival the Chief Minister, according to this witness, left in a jeep for the meeting and delivered a speech there. In his speech, the Chief Minister explained the Congress policy and criticised the Communists.
He admits that a welcome address was given to the Chief Minister and that he is a supporter of the Communist party. The contention of the respondent is that it was only a public meeting and the Chief Minister went there on his official duty and his visit therefore was not in furtherance of the election prospects of the respondent and no corrupt practice was committed thereby. It is also contended that the evidence does not establish that the assistance was procured by the respondent of the Government officer.
9. The words obtaining or procuring or abetting or attempting to obtain or procure any assistance necessarily implies some efforts on the part of the candidate or his agent. Mere passive receipt of assistance is not contemplated by the section. The Assistant Traffic Superintendent Sri Manmathnath Banerjee has not been produced and there is thus no evidence to show that the respondent made any efforts to obtain the assistance of Sri Manrnathnath Banerjee by getting the trolley from him.
The only fact which has been established is that on that date the respondent travelled along with the Chief Minister on the trolley. But that by itself does not establish that the respondent procured assistance of the Government servant. Reference may be made in this connection to the case of Moti Lal v. Mangla Prasad, AIR 1958 All 794. Similar view was taken in this case that the word 'obtain' in Section 123 has been used in the sense ok the meaning which connotes purpose or effort behind the action of the candidate.
The word in the sub-section has not been used in the sense of a mere passive receipt of assistance. Section 123(7) no doubt contempla.es the procuring of assistance by the candidate, his agent or by any other person. But it is not contended that the assistance even procured by the Chief Minister will amount to assistance procured by any other person and thus the respondent would be liable for corrupt practice. There would have been two objections to this contention.
Firstly that the petitioner has not established that the Chief Minister procured the assistance of the Government employee and secondly that the assistance procured by a third person may constitute a corrupt practice, but before the election can be set aside on the ground under Section 100 of the Act, the assistance has to be procured with the consent of the candidate.
10. The next ground is that the assistance was taken from Gaoburas and Mouzadars which also constitutes a corrupt practice within the meaning of Section 123(7). So far as the contention that Gaoburas helped the respondent and carried out the propaganda on his behalf, it is sufficient to point out that Gaoburas are not the class of Government officers enumerated in Sub-section (7) of Section 123.
Clause (f) of Section 123(7) enumerates the revenue officers including the village officers which are expressly mentioned therein and the other village officers have been expressly excluded from the perview of that sub-section. The next point urged is that Mouzadars helped the respondent. The allegation on this point is contained in paragraph 8(1) of the petition in the following terms:
"The respondent No. 1 being a very influential man, engaged the Gaoburas and Mouzadars of different mouzas and other revenue officers and began to interfere with the free exercise of the electoral right of the voters."
Further in paragraph 8(3)(b) it is asserted that the Lumding constituency is composed of five mouzas and each of these mouzas is in charge of a mouzadar.
Sri Puspendra Bora, mouzadar of Hojai, actively canvassed the electorate of the Lumding constituency for voting in favour of the respondent No. 1 and was the Joint Secretary of the Hojai Congress Election Committee. The mouzadar of Lanka mouza--Sri Jibar Burman was a member of the Congress Election Committee formed at Lanka to conduct the election of the respondent. The mouzadar Sri Nilkanta Bora of Kaki mouza and Sri Baliram Bey assisted the respondent.
In reply to these allegations the respondent in para 16 of his written statement has denied these allegations and has asserted that Puspendra Boara, Mouzadar of Hojai town never canvassed the electorate of Lumding constituency in favour of the respondent and further denied that Sri Jiban Ram Bora, Mouzadar of Lumding Mouza actively assisted the respondent in furtherance of his election prospects. The assertion about the assistance by Sri Nilkanta Bora, mouzadar of Kaki mouza and Sri Baliram Bey of Lanka is also denied.
The Tribunal on consideration of the evidence has come to the conclusion that the appellant failed to prove that these Mouzadars canvassed for the respondent and the finding has been assailed in appeal. It was also contended that even if the appellant failed to prove that Mouzadars actually canvassed for the respondent, they were members of the Congress-Election Committee and the very fact that they were the members of the election committee amounts to giving assistance to the respondent.
11. We have been taken through the evidence of the P. Ws. on this point and we are satisfied that the decision of the Tribunal on this point is correct that the appellant has failed to prove that Nilkanta Bora, Jiban Ram Bora, Baliram Bey and Puspendra Bora, Mouzadars canvassed for the respondent. None of the witnesses have deposed in what manner they saw these mouzadars actively canvassing for the respondent
The evidence only goes to the extent of stating that these mouzadars were seen in some of the meetings held by the respondents and on occasions moving with the respondents, but that by itself will not establish the fact that they actively canvassed for the respondent. Sri Nagendra Nath Dey,' P. W. 14 has in his cross-examination admitted that he did not see the other P. Ws canvassing, but only saw them going in a jeep with the respondent.
None of the witnesses have stated that they saw any of these mouzadars canvassing for votes in their presence for the respondent. As regards the fact that some of these mouzadars were members of the Congress Election Committee, the fact has only been stated by the petitioner-appellant in his deposition and has been denied by the respondent. The fact therefore has not been satisfactorily established by the evidence on the record. In view of this finding, it is not necessary to examine the question whether the mouzadars can be regarded as Revenue Officers in the service of the Government or not.
12. The most important point which has been urged by the appellant is that the respondent committed corrupt practice inasmuch as he incurred an expenditure in contravention of Section 77 of the Act. Section 123(6) lays down that the incurring or authorising of expenditure in contravention of Section 77 is a corrupt practice. Section 77 of the Act lays down that every candidate at an election shall either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof, both dates inclusive.
Clause (2) of the said section then provides that the account shall contain such particulars as may bo prescribed and Clause (3) provides that the total of the said expenditure shall not exceed such amount as may be prescribed. Rule 131 of the Rules of the Election Petition 1956 lays down the particulars of account of election expenses to be maintained and Rule 135 provides the maximum expense permissible under Sub-section (3) of Section 77 in each state.
The first contention of the appellant is that in the account kept by the respondent, certain expenses incurred by the respondent in connection with the election have not been shown. In the account submitted to the Returning Officer, these expenses have not been shown either and thus there has been a contravention of Clause (1) of Section
In this connection, it is further urged that even though these expenses may not have been actually incurred by the candidate himself, they will be deemed to have been authorised by him inasmuch as they have been spent by the persons who were the agents of the respondent as defined under Section 123(7) explanation and the failure to maintain a correct account in authorising of expenditure in contravention of Section 77 and this amounts to corrupt practice.
The next contention is that if the expenses which are not shown in the account submitted before the Returning Officer are regarded as authorised expenses, the total amount will exceed the maximum limit prescribed under Section 77(3) and thus there was a contravention of Section 77(3) and Section 123(6) is attracted. Two other sections which may be relevant are the Sections 99(2) which provides that in this section and under Section 100 expression 'agent' has the same meaning as under Section 123.
The explanation to Section 123(7) which defines an agent is in the following terms:
"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."
Section 100(1)(b) provides that if the Tribunal is of opinion that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent, the election will be declared void.
Reading all these sections together, it is clear that if the corrupt practice is committed by any other person, it is to be with the consent of the returned candidate. The corrupt practice if committed by an agent as defined in explanation to Section 123 will not be sufficient for setting aside the election unless it is done with the consent of the returned candidate. The obligation to maintain the proper account under Section 77 is on the candidate or his election agent and therefore if any other person fails to maintain the account, it will not constitute a corrupt practice within the meaning of Section 123(6).
The third class of cases where an election can be set aside clearly on the corrupt practice being done by any person with the consent of the returned candidate will not be applicable in a case of corrupt practice of this nature. The appellant has therefore argued that the failure to keep a record of the accounts incurred by the others who were the agents of the respondents amounts to a failure to keep a correct record of the accounts authorised by the candidate and it is a contravention of Section 77 by the candidate himself and thus Section 100(2) Part II is attracted.
13. It is also contended by the counsel for the appellant that the respondent was bound under Section 77 of the Act to mention in his accounts the reasonable approximate hire charge of the vehicles used by him and given to him by his friends. Before we deal with the evidence produced in this connection by the parties, dt is necessary to dispose of certain legal aspects of the matter. Section 77 of the Act only enjoins upon the candidate or- his agent to keep an account of the expenses incurred or authorised by him. An expenditure not made by him need not be mentioned in the account.
One cannot be said to incur an expense unless he actually spends the money. The expenditure also cannot be said to have been authorised unless any pecuniary liability is incurred by a person. Any vehicle therefore lent gratuitously to a candidate by his friends does not involve incurring of any pecuniary liability by the candidate. In cases, therefore, where the vehicles are lent by friends gratuitously, it cannot be said that any expenditure was incurred or authorised by the candidate. It was argued that if such an interpretation is put on the language or Section 77, candidates, who have friends and relations would have unfair advantage over a poor rival.
But the language of the statute being plain, these reasons will not alter the meaning of the words. As observed by the Supreme Court in the case of Rananjaya Singh v. Baijnath Singh, AIR 1954 SC 749,
"the spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the sections of the Act and tie rules made thereunder. If all that can be said of these statutory provisions is that construed according to the ordinary, grammatical and natural meaning of their language they work injustice by placing the poorer candidates at a disadvantage the appeal must be to Parliament and not to this Court."
14. The view which we are taking of Section 77 is also supported by a decision of Rajasthan High Court in the case of Sheopatsingh v. Narishchandra, AIR 1958 Raj 324. In our judgment therefore, it was not necessary for the respondent to show in his account the reasonable rent of the vehicles lent to him by his friends without charging from him. It is not necessary to refer to decisions of certain Tribunals cited by the counsel on this point.
15. The next point which is to be considered is whether Section 123(6) of the Act makes the failure to keep a correct account itself a corrupt practice or it only contempltates the cases where the expenses incurred exceed the maximum limit authorised under Section 77(3) of the Act. It is no doubt that Section 77 makes it obligatory on the candidate to keep a correct account and failure to do so may amount to contravention of Section 77(1); but from the language of Section 123(6), it is clear that every contravention of Section 77 has not been made a corrupt practice.
Section 123(6) which we have already quoted only makes the incurring or authorising of expenses in contravention of Section 77 a corrupt practice. The failure to keep a correct account cannot be said to be incurring or authorising of arty expenditure and thus all that Section 123(6) contemplates is the incurring of expenditure exceeding the limit prescribed under Section 77(3). If the intention of the Legislature was to make every contravention of Section 77 a corrupt practice, it could have used a clearer word.
Before the amendment of the Act by the amend ing Act of 1956, Section 124(4) provided the making of any return which was false in any material particulars a minor corrupt practice. This provision has since been deleted. The contravention therefore in our opinion of Section 77 (1) and (2) does not come within the definition of a corrupt practice. This view has also been taken by the Rajasthan High Court in the case referred to above.
It was observed in that case with which we are in complete agreement as follows:
"Under Section 123(6), it is only the incurring or authorising of expenditure in contravention of Section 77 of the Act which amounts to a corrupt practice. The non-maintenance of true accounts has not been laid down as a corrupt practice. An entry is made in the account book only after an expenditure is incurred or authorised. The corrupt practice consists of incurring or authorising of expenditure in contravention of Section 77. As only Sub-section (3) of Section 77 deals with the incurring or authorising of expenditure, it is only when the total expenditure exceeds this prescribed amount that it can be said that it has been incurred or authorised in contravention of Section 77."
To the same effect is the decision of the Allahabad High Court in the case of Ram Abhilakh Tewari v. Election Tribunal, Gonda AIR 1958 All 663, wherein it was held that
"under Section 123(6) of the Representation of the People Act, the corrupt practice consists in incurring or authorising expenditure in contravention of Section 77 which can only happen if a candidate incurs or authorises expenditure an excess of the maximum amount allowable under the rules framed under Section 77(3). Where there was no suggestion at all. that the expenditure, which was incurred by the returned candidate exceeded the prescribed limit, mere statement to the effect that he did not comply with the requirements of Section 77 and the'Rules made thereunder and that the return which he had filed did not show the correct account of the expenditure incurred and authorised by him as it contained fictitious and concocted entries cannot be held to amount to a corrupt practice under Section 123(6)."
The evidence therefore is to be examined in the light of these observations. The allegations with regard to this aspect of the matter are contained in para 8(iv) of the petition.
16. In the petition it is stated that the return of the election expenses submitted by the respondent shews an expense of Rs. 3468/4/3; but the respondent spent much larger amount and if the correct amount is shown, the maximum of RS. 5000/-will be exceeded. The maximum for the State of Assam for a single member constituency is however Rs. 6000/-. In the return, the respondent has shown having hired only one jeep car No. ASN-3694 for Rs. 200/-; but from the petrol account, it will appear that he used a number of other vehicles whose numbers are mentioned in paragraph 8(iv)(a) of the petition.
According to the appellant, the hire of these vehicles will amount to Rs. 1500/-. According to the appellant, the respondent further suppressed the fact of using vehicle No. ASN-937 and ASJ-2590 and has further suppressed the use of the vehicle No. ASN-2247 and ASN-724. These vehicles were not hired by the respondent. They were, according to the respondent, lent to him by his friends. The contention however of the appellant is that the reasonable hire of these vehicles should have been shown in the return.
The Tribunal has accepted the contention of the appellant that the respondent should have shown in his return, the reasonable hire of the vehicles used by him, though lent by his friends; but it has held that the estimated hire will not exceed Rs. 200/-and therefore even if that is added to the expenses shown in the return, the total will not exceed the maximum. As we have already discussed above, in our opinion, under the present law, it is not incumbent on the candidate to show in his election expenses return, the amount of reasonable hire of the vehicles given to him gratuitously by his friends.
We are also however of opinion that the appellant has not succeeded in establishing the fact that the amount of hire will be more than Rs. 200/-. As regards the use of the Local Board Car No. ASN-937, the respondent has produced Hafizuddin Ahmed --R.W. No. 3 Vice-Chairman of the Local Board and P. W. 51 Chakrapani Das, the surveyor of the Nowgong local board who have stated that these vehicles used in the Lumding area during the election time for the work of the Board. The appellant therefore has failed to prove that the other vehicles were used by the respondent and that he used the Local Board vehicle for the purpose of the furtherance of the election.
17. The next item of expense which the respondent is said to have omitted is mentioned in para 8(iv)(b) of the petititon. The appellant states that the respondent in his return has shown an expense of Rs. 395/12/- for petrol and mobile oil whereas he has consumed about 600 gallons of petrol and mobile oil worth Rs. 1700/-. For this he relied upon the accounts cf various shops dealing in petrol and mobile oil.
No evidence has been produced by the appellant to show that the accounts of various petrol dealers actually related to the petrol consumed during the election by the respondent. The mere fact that there is some petrol account of the respondent with various shops will not establish the fact that the petrol worth more than the amount actually shown in the return was consumed by the respondent in furtherance of his election. Moreover, the actual amount not having been shown and even if the estimate of 1300 is accepted, the total will not exceed the maximum of Rs. 6000/-.
18. The next item is the sewing charges of the volunteers" uniform. In the account, the respondent has shown the price of the cloth purchased by him for making caps and uniforms, but in the return he has not shown the sewing charges. The respondent has denied that sewing charges were paid by him. The appellant's contention is that even if the expenses were incurred by the Congress Committee, they should have been shown in the account submitted by the respondent.
The appellant has examined three witnesses P.Ws.21, 22 and 23 to prove that seme amount was spent towards the making of caps and uniforms. On perusal of these statements, it is not clear that the respondent paid the sewing charges: The next item is the small item of Rs. 2/13/-, the amount which the respondent spent as his fare and stamp duty on life bond while travelling in the railway trolley from Lanka to Lurnding.
The respondent has contended that he did not go to Lumding in furtherance of his election, but even if that is not accepted, the addition of this amount will not. make any substantial difference and the total will not exceed the maximum. There are a number of other items mentioned in the petition, but no evidence has been laid to substantiate the allegation that these expenses were incurred or authorised by the respondent and that the amount if added to the expenses already shown, the total will exceed the maximum.
The main item is one of the expenses incurred on account of cost for papers and printing charges of the letter-heads and the voters' slips and other posters printed by the respondent. An expense of Rs. 150/- has only been shown in the return towards the pasting of some of these posters and the amount If calculated properly will exceed, according to the appellant, Rs. 1000/-. The respondent has denied that the printing charges of these posters were paid by him or these expenses were authoriseo by him.
It is not alleged that he paid all these amounts from his own pocket. The appellant has however argued that the Congress Committee who issued these posters and got the voters' slip printed were the agents of the respondent and any expense incurred by them should be regarded as having been authorised by the respondent and thus should have been shown in the return. P. W.-17, Rupram Sut--the Secretary of the Election Committee of Now-gong Congress Committee has deposed that he published Exs. 14, 15, 22 and 13.
That a number of leaflets and posters were printed and distributed in the different parts of the constituency is not denied. But as we have already discharged, the question of contravention of Section 77 which has been made a corrupt practice will only arise if the expense has been authorised by the candidate himself.
Though having regard to the explanation to Section 123(7), the meaning of the word 'agent' may be wider in the election law, but as we have already pointed out before the election of the returned candidate can be set aside under Section 100, it has got to be established that the corrupt practice was committed by the consent of the returned candidate, in cases where the corrupt practice has been done through a third party.
The account has to be kept by the candidate himself or by his election agent and the corrupt practice if any arising by failure to keep proper accounts cannot be done by a third party. The main argument therefore which has to be examined is how far it can be said that because the respondent was set up by the Congress, the expenses incurred by the Congress Committee will be deemed to be an expense authorised by the respondent.
We do not think that the proposition so broadly stated can be accepted. From the circumstances of the present case therefore, it cannot be said that because the respondent was set up bv the Congress Party, expenses for every poster and leaflets printed and published by the Congress Organisation relating to the respondent will be regarded as an expense authorised by him. Moreover, it has not been established that the total of the expenses will exceed Rs. 6000/- if the expenses towards printing are to be taken into account.
Sri Rupram Sut--p. W. 29 has stated that the District Election Committee has not yet settled up the account of all the expenses they incurred. The appellant therefore, in our opinion, has failed to prove that even if the printing expenses are added to the accounts submitted by the respondent, the total will exceed Rs, 6000/-. The appellant therefore has failed to substantiate his contention and the election cannot be set aside on that ground.
19. The other ground on which the election is ought to be set aside is the corrupt practice of bribery as defined under Section 123 of the Act. In the petition, it is stated that the respondent in his position as the Chairman of the Local Board of Now-gong, on the eve of the election sanctioned the construction of wells and tube-wells and granted financial helps to the primary schools. In village Formabeel In Lanka Mouza, a tube-well was constructed in March, 1957.
In village Kapilpar, near the house of Manir Ali Gaobura, a tube-well was set up immediately after the election, but the assurance of which was given earlier. In the same village, a sum of Rs. 600/-was granted for the construction of a primary school. A tank was also sanctioned for the same village, the excavation of which was started on the eve of the polling date. In Kachari Basti in the village Puran-alusinga, 15 days before the polling, a well was dug. In Nepali Basti in the village Rangmahala also a well was dug.
In Jugijan Mouza, in a meeting, the respondent promised a sum of Rs. 200/- for the focal school and on the eve of the election, the respondent further started settling the Local Board huts for the year 1957-58 with the people who could influence the voters in favour of him. These allegations are denied by the respondent. His assertion is that they were all acts done in performance of his duty as the Chairman of the District Local Board with the consent of the members and for the benefit of the general public; the sanctions were granted properly and within the scope of his authority, they cannot therefore be regarded as illegal gratifications within the meaning of Section 123 of the Act.
The appellant has examined P. W. 12 Md. Mastakim Ali who says about the construction of a tank in the vicinity of a mosque. His testimony also cannot be relied upon. P. W.39--Arif Ali says that the respondent promised a sum of Rs. 1200/- tor a tank to the Mosque, but the work was started before the election and was completed subsequently. He has however admitted that he canvassed for Samsuddin.
P.W. 51--Chakrapani Das, the Surveyor of the Local Board says that in village Kapilpar a sum of Rs. 1000/- was granted for digging a tank near a mosque, but the sanction was made on the recommendation of the Public Workers Sub Committee and passed by the Board on 30-3-1957. P.W. 33--Wajid Ali and P. W. 41--Nripendra Chandra Deb both stated that at Kapilpar, 7 or 10 days before the election, the respondent promised two wells to secure votes. P. W. 51--Chakrapani Das, whose evidence we have already referred to stated that between February and March no tube-well was dug.
The first well at Kapilpar was unsuccessful and it was again dug in 1957. It was again unsuccessful. The Board has dug another well in Rong Mahala in Nepali Basti between February and March, 1957. He has however admitted that the sites were selected by the public workers* sub-committee and were approved by the District Board. From this evidence, it appears that in the normal course of the business of the Board, the Board sanctioned the construction of these wells and the public workers' sub-committee made the selection of the sites and it cannot, therefore, be said that there was any illegal gratification offered by the respondent to the voters so as to constitute an offence of bribery. The appellant has totally failed to substantiate his case on this point.
20. After having given our careful consideration to the points raised by the appellant's counsel in our opinion, there is no substance in any of the points. We accordingly see no force in this appeal and it is dismissed with costs : hearing fee Rs. 300/-
H. Deka, J.