Untwalia, J.

1. This appeal under Section 116-A of the Representation of the People Act, 1951 (Central Act XLIII of 1951) -- hereinafter to be referred to as the Act --is by Shri Chandrashehhar Singh (hereinafter to be referred to as the appellant) against the order dated 21st March, 1959, of the Election Tribunal dismissing the appellants election petition challenging the validity of the election of Shri Sarjoo Prasad Singh (hereinafter to be referred to as the respondent or the 1st respondent) and Shri Medini Paswan (hereinafter to be referred to as the second respondent) to the Bihar Legislative Assembly from the Begusarai Double Member Constituency.

2. The appellant and the respondents along with others were candidates for election to the Bihar Legislative Assembly from the Begusarai Double Member Constituency during the last General Election held from the 25th of February, 1957 to 12th of March, 1957. The appellant was a candidate set up by the Communist Party of India for the General seat, the 1st respondent was set up by the Congress Party for the General seat and the 2nd respondent contested the Reserved seat on behalf of the said Party, The result of the election was announced on the 21st March, 1957 The 1st respondent polled 38637 valid votes, the 2nd respondent got 39519 votes and as against this the appellant got only 37791 votes.

3. The validity of the election was challenged on several grounds. The 11th issue framed by the learned Member of the Tribunal was:

"Can the petitioner raise the validity of electoral roll and has there been any non-compliance of any provision of Article 326 of the Constitution of India and have they materially affected the result of the elections of respondents"

This issue was tried as a preliminary issue and by order dated 19-12-58 the learned Member decided it against the appellant This order had also been challenged in this appeal and the learned advocate for the appellant in the beginning of his argument indicated that He would press his appeal in regard to this issue also but ultimately it was given up and the decision of the Tribunal on the 11th issue has not been assailed before us.

Almost all other issues also have been derided against the appellant by the learned Member of the Tribunal and, out of them, the learned ad- vocate for the appellant has picked up and pressed only a few issues and points for our consideration; the ones which, he thought, were matters of substance to be urged in support of the appeal. I shall, therefore, confine myself in this judgment to the statement of facts and the discussion of points which are relevant in regard to the matters pressed in this appeal.

4. The 4th issue framed by the Tribunal and decided against the appellant --and, which has been pressed for our consideration -- is in the following terms:

"Whether the return of election expenses submitted by respondent No. 1 is false and against the provisions of Section 77 of the Representation of the People Act. 1951"

The facts leading to this issue are stated in paragraph 11(D) of the election petition as also in an amendment petition which was filed later on. Paragraph 11(D) reads as follows :

"That the Respondent No. 1, his agents and supporters with his consent and connivance resorted to corrupt practices to wit:

X X X X

(D) of incurring expenditure without main taining a separate and correct account of the ex penditure in connection with the election incurr ed by him."

The 1st respondents reply to this paragraph in 88th paragraph of his written statement was a denial of the charge and further that the allegation on the face of it was vague and untenable and that it lacked in particulars of objections. Later on, by an amendment petition, the appellant endeavoured to supply the particulars in regard to the alleged inaccuracy of the account.

The two omissions which were pointed out as being there in the return of election expenses are (i) a sum of Rs. 12/- forfeited on account of some wrongly challenged votes on behalf of the first respondent. (It may be stated here that, when a candidate challenges a vote at the poll, he is required to deposit a sum of Rs. 2/- with the Presiding Officer and the said amount is forfeited if the challenge is found to be wrong); and (ii) the security money amounting to Rs. 250/- deposited by the first respondent under Section 34 of the Act.

An additional written statement was filed by the first respondent by way of reply to the amended particulars. In regard to the first item, the stand taken in the additional written statement is that the number of polling booths was large going to the extent of 137 in the whole of the Constituency and the respondent had previously no knowledge about the forfeiture of the sum of Rs. 12/-, It was claimed that it was a bona fide omission in the account.

As respects the amount of security deposit, it is again said that the omission, if any, is bona fide as the security money which was ultimately returned to the respondent was not counted as a part of the expenditure. The respondent believed that it could not be included as such. In any event, the total expenses incurred by this respondent in connection with his election amounted of Rs. 6406.24 nP. and this was much below Rs. 12,000/- ,the maximum amount which a can- didate in a Double Member Constituency could spend. The omission of these two items, therefore, keeps the actual figure of expenses much below the maximum figure.

5. The learned Member of the Tribunal in paragraphs 99 to 101 of his judgment has dealt with this issue. In regard to the non-mention of the security money in the account of expenses, he has held that it cannot be regarded as an election expenditure as the money is deposited by way of security only and is forfeited only when a a candidate polls less than a fixed percentage of votes; otherwise the money is returned and is not part of the expenditure.

I am in full agreement with this view. The first respondent deposited the amount of Rs. 250/-and. although the sum went out of his pocket for the time being, it was returnable to him and was not an expense in the true sense of the term. The amount could not be said to have been expended unless it was forfeited. Under Section 77 of the Act a candidate is required to 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. Sub-section (2) of Section 77 provides that:

"The account shall contain such particulars, as may be prescribed."

and the third sub-section is:

"The total of the said expenditure shall not exceed such amount as may be prescribed."

The words election expenses have been defined in Halsburys Laws of England, 3rd Edn., Vol. 14. p. 176 as expenses incurred whether before, during, or after an election on account of or in respect of the conduct or management of the election, The word expenditure means, according to The Shorter Oxford English Dictionary:

"1. The action or practice of expending; disbursement: consumption.

2. The amount expended from time to time." The word expend, according to the same dictionary, means:

"1. To pay away, lay out, spend (money); esp. for determinate objects ............... 2. To use up (material or force) in any operation; ........"

A deposit of security money cannot be characterised as an amount spent or used up or consumed until the amount is forfeited. In my opinion, therefore, the omission of the amount of Rs. 250/-in the account of expenditure incurred by the first respondent in connection with his election is perfectly justified and does not violate the requirements of the 77th section of the Act.

6. In regard to the first item of omission, namely, the sum of Rs. 12/- forfeited on account of wrong challenging of votes the learned Member of the Tribunal has held that the omission is not intentional and would not be tantamount to commission of any corrupt practice within the meaning of Section 123(6) of the Act. Mr. Umesh Chandra Prasad Sinha, learned advocate for the appellant, vehemently challenged the decision of the Tribunal on this point.

He submitted that, under Sub-section (1) of Section 77, the candidate was required to keep a correct account of all expenditure in connection with his election incurred or authorised by him. Non-inclusion of the sum of Rs. 12/- in such account of the respondent made it an incurring ........of expenditure in contravention of Section 77" and, therefore, it was a corrupt practice within the meaning of Sub-section (6) of Section 123 of the Act. In my opinion, the contention is not sound.

The Representation of the People Act, 1951, was considerably amended by the Representation of the People (Second Amendment) Act, 1956 (Act XXVII of 1956). Previous to the amendment, Ch. I of Part VII of the Act consisted of Sections 123 and 124 and Section 125 was contained in Ch. II of the said Part. Sub-section (7) of Section 123 read as follows: "The following shall be deemed to be corrupt practices for the purposes of this Act:

X X X X X

7. The incurring or authorising by a candidate or his agent of expenditure, or the employment of any person by a candidate or his agent, in contravention of this Act or of any rule made thereunder."

Sub-section (4) of Section 124 provided:

"The following shall also be deemed to be corrupt practices for the purposes of this Act:

X X X X X

(4) The making of any return of election expenses which is false in any material particular, or the making of a declaration verifying any such return."

It would be noticed, therefore, that, according to the law us it stood before the amendment in 1956, the making of any return of election expenses which is false in any material particular was a minor corrupt practice. According to that law, mere omission of an item or two in the return of election expenses was not even a minor corrupt practice but it had to be shown that the return so made was false and false in any material particular.

By the amendment of the Act in 1956 the law in regard to corrupt practices has been consolidated in Section 123 only. Sections 124 and 125 have been deleted. According to the provisions of the Act which are applicable to this case, the incurring or authorising of expenditure in contravention of Section 77 is a corrupt practice.

That is to say, if a candidates election expenditure exceeds the maximum amount in violation of Sub-section (3) of Section 77, he will be guilty of having resorted to a corrupt practice; if the account of expenditure maintained by him does not include very many items of expenses, the total of which, when added to the amount shown, will exceed the maximum, it will be tantamount to commission of corrupt practice.

Mere omission of certain items in the account of expediture in connection with the election is not a corrupt practice of any kind even though it could be shown that the omission was intentional, much less if the omission is bona fide. The mere fact of non-mention of an item of expenditure will not be sufficient to hold that the incurring of the expenditure was in contravention of Section 77 of the Act.

I may, in this connection, make a reference to Rules 131 to 134 of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1956. Rule 131 enumerates the particulars required to be contained in the account of election expenses to be kept by a candidate or his election agent under Section 77 of the Act. Section 78 of the Act requires every contesting candidate at an election to lodge with the Returning Officer an account of his election expenses which shall be true copy of the account kept by him or by his election agent under Section 77 within the time specified therein.

If such account is lodged under this section, the Returning Officer is required under Rule 132 to cause a notice to be affixed to his notice board specifying certain particulars. Rule 133 provides for inspection of the account and the obtaining of copies thereof. Then comes the procedure of report by the Returning Officer as to the lodging of the account of election expenses and the decision of the Election Commission thereon in accordance with Rule 134 which deals with the question as to whether the account has been lodged within the time and in the manner required by the Act and the Rules.

It is, therefore, clear to me that the omission of the item of Rs. 12/- in the account of election expenditure of the respondent Cannot be held to be a corrupt practice within the meaning of subsection (6) of Section 123 of the Act as the said omitted amount, even if added to the amount of Rs. 6406-24 nP will not exceed the maximum amount which could be spent by him in connection with his election. Moreover, I also agree with the finding of the Tribunal that the omission is not deliberate or intentional; it is just a Casual omission due to a bona fide mistake. Reliance was placed on behalf of the appellant on Pyari Mohan Das v. Durga Sankar Das, AIR 1958 Orissa 125, on the following passage at p. 138 (col. 2):

"Even if this argument is taken as correct, I do not think a slight irregularity in the maintenance of accounts as required by Rule 131 would be a corrupt practice for the purpose of Sub-section (6) of Section 123 of the Act. Doubtless if any amount actually expended is not brought into the accounts it would clearly constitute corrupt practice inasmuch as the total amount of expenditure prescribed may be exceeded and thereby Sub-section (3) of section 77 contravened. But every petty irregularity in the manner of maintenance of accounts so long as the correctness of the entries is not in doubt, will not suffice to bring Sub-section (6) of Section 123 of the Act into Operation."

Some former lines of the said passage are against the contention of the appellant and support the view which I have taken above. But the last sentence perhaps tempted the learned advocate for the appellant to cite this decision relying on which he submitted that irregularity in the manner of maintenance of account, if not petty and if deliberate, can Constitute a corrupt practice within the meaning of Sub-section (6) of Section 123 of the Act.

With great respect, I do not subscribe to this view and I need not repeat the reasons which have already been stated. I may, however, add that the law in India in regard to this matter before the amendment of the Statute in 1956 was on the lines of the English Statute, namely, the Representation of the People Act, 1949 (12, 13-14 George 6 Ch. 68). The law as stated in Halsburys Laws of England, 3rd Edn., Vol. 14 at page 196 paragraph 346 is:

"If a candidate or election agent knowingly makes a declaration as to election expenses falsely, he is guilty of corrupt practice."

But the law in India after the amendment of 1956 is different in this regard.

7-9. (His Lordship then dealt with the 7th issue about corrupt practice under Section 123(4) of the Act and held that it was not substantiated. The judgment then proceeds:) The 3rd issue framed by the learned Member of the Tribunal reads as follows:

"Whether respondent No. 1, his agents and supporters with his consent and connivance committed corrupt practices as alleged in paragraphs 11 and 13 of the petition within the meaning of Section 123 of the Representation of the People Act, 1951"

Quite a number of corrupt practices have been alleged before the Tribunal and evidence has been adduced. The learned Member has not accepted the appellants case in regard to any. Only some out of them have been pressed before us to ask us to hold in disagreement with the finding of the Tribunal that the 1st respondent has been guilty of commission of those corrupt practices. I shall therefore, deal with only those of them as have been ultimately pressed before us.

10. Paragraph 11(C) of the election petition reads as follows:

"That the respondent No. 1, his agents and supporters with his consent and connivance resorted to corrupt practices to wit:

X X X X X

(C) of obtaining and procuring assistance for the furtherance of his prospects of the election from Mukhias, extra departmental agents of Post office, Sub-Inspector of Police, and other Government officials."

The full particulars are set out in an annexure marked with letter F. There are 12 such persons mentioned in the said schedule. Serials 1 and 3 to 11 mention the Mukhiyas and Sarpanchas of the Gram Panchayats who are said to have canvassed votes for the respondents and/or acted as their polling agents. That most of them acted as polling agents of the 1st respondent or the 2nd respondent is admitted. The argument which has been advanced before us on the authority of Raghunath Misra v. K. C. Deo Bhanj , is that admittedly the respondent committed corrupt practices within the meaning of Sub-section (7) of Section 123 of the Act.

But this argument could not be pursued when the attention of the learned advocate for the appellant was drawn to the Supreme Court decision in K. C. Deo Bhanj v. Raghunath Misra, : AIR 1959 SC 589 [LQ/SC/1958/171] , where the Orissa decision has been reversed on the question as to whether Sarpanch of a Gram Panchayat belongs to the class of officers enumerated in Clause (F) of Sub-section (7) of Section 123. It has been also held by the Supreme Court at page 595:

"........the mere power of control and supervision of a Gram Panchayat exercising administrative functions would not make the Grama Panchayat or any of its members a person in the service of the Government. Even if it could be said that the Grama Panchayat in the exercise of its administrative functions exercised duties in the nature of governmental duties it would not thereby be said that its Sarpanch was in the service of the Government. So far as the Sarpanch is concerned, he is merely the executive head of the Grama Panchayat which carried out its functions through him. He is not appointed by the Government. He is not paid by the Government. He does not exercise his functions as one in the service of the Government ........."

No provision could be pointed out to us in the Bihar Panchayat Raj Act, 1947, to enable us to hold that the position of a Mukhiya and a Sarpanch under the said Act is different from the one under the Orissa Act. I, therefore, hold that the Mukhiyas and Sarpanches, who acted for the resoondent, were not persons in the service of the Government nor do they belong to any of the classes of officers enumerated in Sub-section (7) of Section 123.

The person named in item 2 of Annexure F was an extra departmental agent of a branch post office, who is said to have acted as a Dolling agent of respondent No. 1 and a counting agent of respondent No. 2. It was conceded before us that, although he is a person in the service of the Government, he does not belong to any of the classes enumerated in Clauses (a) to (g) of Sub-section (7) of Section 123.

11. The last person named in the said schedule (annexure) is Rampratapsingh son of the 1st respondent. At the relevant time, he was in, police service being a Sub-Inspector of Police but he was under suspension. He had taken medical leave and it is alleged that he acted in very many ways in furtherance of the prospects of the first respondents election. I shall have to deal with his case separately, as it is intermingled with the question of other alleged corrupt practices also.

12. In regard to the case of taking assistance from Rampratapsingh, it was contended before us that he was not actually ill at the relevant time of the election but he took medical leave and went home in order to further the prospects of election of the respondent. In my opinion, this matter is of no consequence in this case. That Rampratapsingh was at home during the time of election is admitted. Whether he was actually ill in the sense of being confined to bed or not is not a matter of any importance in this case.

As I shall deal with some of his alleged activities connected with the alleged commission of certain corrupt practices, I shall show that the charges of his having taken part in the election in the way contemplated by Sub-section (7) of Section 123 have not been proved. His mere presence in the village home at that moment cannot be said to be a sufficient ingredient to hold that the respondent is guilty of corrupt practice in having obtained the services of his son, the Sub-Inspector of Police, who, admittedly, was under suspension at the relevant time.

Moreover, having heard the learned advocate for the appellant, I am not prepared to hold that the medical leave which Rampratapsingh took was on utterly false ground and that he was not suffering from any kind of disease or ailment. Before I proceed to deal with some of his alleged specific activities, I would like to dispose of sub-item No. (1) in Annexure F under the heading Manner in which help rendered. Herein it is stated that Rampratapsingh drove "the jeep of S. K. Sinha and Morarji Desai in their election campaign.

Mere driving of the jeep of Dr. S. K. Sinha and Shri Morarji Desai, even if true, cannot be said to be any assistance in the furtherance of the prospects of the respondents election from a person in the service of the Government. Mere driving of the jeep is an act of carrying the leaders who were important members of either State Government or Central Government and the Sub-Inspector of Police, even if he was on leave could be expected, if required, to show this much of courtesy to the important leaders who were members of the Government too.

13. The next item which has been pressed under the question of commission of corrupt practice by the respondent is the allegation made in paragraph 11(A)(i) of the election petition. It is stated therein that respondent No. 1 and other persons interested in his success indulged in threats, intimidation and assaults at several places within the Constituency to prevent, dissuade and hold back the electors from casting their votes.

Particulars of such acts with reference to respective names of persons committing such acts and the date when and the place where such acts are alleged to have been committed are set out in schedule annexed to the petition and marked B. The learned advocate in the beginning indicated that he would press only items 8 and 9 of Annexure B but ultimately he pressed only item No. 9 and fairly conceded that he was not in a position even to attempt to persuade us to take a view different from the one taken by the Tribunal in regard to item No. 8 of Annexure B.

This item alleges that at Bishunpur on 6th March, 1957 Rampratap Singh and others assaulted two Communist workers accompanying the voters, obstructed them and chased many of them. It is, therefore, not necessary for me to mention or discuss the evidence in regard to the said allegation. The 9th item states that Rampratap Singh and others on 7th March, 1957 at village Raichiahi committed brutal assault on male and female voters of Rajapur when they were proceeding towards the booth to cast their votes; that many were injured and were admitted in Begusarai hospital; that others were scared away; and that there was a widespread terror among the voters and about 300 of them were affected and prevented from casting their votes in the booth.

14. The respondents reply in regard to the said allegation is to be found in paragraphs 23 and 24 of the written statement. There is a complete denial of the charge. Mr. K. P. Varma, learned advocate for the respondent submitted that, under Section 83 of the Act:

"An election petition shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice."

In this particular case, he submitted, the names of voters of village Rajapur alleged to have been assaulted, obstructed or scared away have not been mentioned in Annexure B, and, therefore, the allegation is too vague and indefinite and the petition does not set forth full particulars of the corrupt practice alleged. On the other hand, Mr. U. C. P. Sinha contended that it was not necessary to give the names of voters as Clause (b) of Sub-section (1) of Section 83 requires to be given only the names of the parties alleged to have committed such practice and not the names of the voters on whom such practice has been committed.

In my opinion, the contention put forward on behalf of the respondent is sound and that on be half of the appellant is not tenable. The use of the word including in Clause (b) indicates that the names of the parties alleged to have committed the corrupt practice should be deemed to be one of the particulars required to be given but that does not mean that it exhausts the list of the names of parties to be given; it only explains and specifies some of them.

Under Section 123(2) it is provided that, if any can didate or his agent threatens any elector with in jury of any kind, he shall be deemed to have in terfered with the free exercise of the electoral right. The particulars of corrupt practices neces sarily include the names of the electors alleged to have been subjected to such corrupt practices. In my opinion, therefore, the election petition suffers from an incurable infirmity in this regard, and the charge is bad on this ground alone. It has been observed by Das, C. J., sitting with Imam, J., in Chandreshwar Narain v. Basu Prasad, MJC No. 38 of 1954 D/- 12-4-1955 (Pat):

"The allegations were really in the nature of allegation of fraud or undue influence. It is obvious that the expression material facts with regard to such allegations must include the names of the persons who committed the fraud as also the names of the persons who were the subject of the fraud. In other words, it was necessary to ensure a fair and effectual trial of the election petition that the names of the persons who carried the voters in the motor trucks as also the names of the persons who were so carried, should be mentioned; so also the names of the persons who gave the bribes as also the names of the persons who accepted the bribes."

This case has been considered and followed by my learned brother in Singheshwar Prasad Varma v. Kamalnath Tiwari. C. R. No. 119 of 1959 D/-9-4-1959 (Pat), wherein it has been held that;

"............ the election petitioner is required1 to supply full particulars and the word "including" shows that the election petitioner must also Supply and not that he must only supply "the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice."

15. Apart from the fact that the charge has to fail for want of full particulars, I find on allud- ing to evidence that it has not been substantiated either. (His Lordship then discussed the evidence on this charge as well as on the charge of corrupt practice of carrying voters to the polling station. The judgment then concludes as follows:)

16. I have briefly dealt with all the points which were pressed before us in support of this appeal and have not entered into an elaborate discussion of them in this judgment as I am in general agreement with the reasons of and the findings arrived at by the Tribunal. I find no merit in this appeal which is accordingly dismissed with costs; hearing fee Rs. 250/-.

Sahai, J.

17. I agree.