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CASE NO.:

Appeal (civil) 8585 of 2002

PETITIONER:

Sushil Kumar

RESPONDENT:

Rakesh Kumar

DATE OF JUDGMENT: 16/10/2003

BENCH:

CJI & S.B. Sinha.

JUDGMENT:

J U D G M E N T

S.B. SINHA, J :

This appeal under Section 116-A of the Representation of People

Act, 1951 arises out of a judgment and order dated 7.8.2002 passed by

the High Court of Patna in Election Petiton No.3 of 2002 whereby and

whereunder the election petition filed by the appellant herein was

dismissed.

THE FACTUAL BACKGROUND :

The parties hereto together with other candidates filed their

respective nomination papers for election to the Bihar Legislative

Assembly from 181 Parbatta Constituency.

The last date for filing the nomination papers was 31.1.2000

whereas the scrutiny thereof was to be done on 1.2.2000. The candidature

could be withdrawn by 3.2.2000. The date of polling was 17.2.2000 and

the counting of the ballot papers was to be done on 25.2.2000.

In the said election the respondent succeeded. The election

petition was filed by the appellant herein solely on the ground that the

respondent, at the time of filing his nomination paper being not above

the age of 25 years as mandatorily required under Article 173(b) of the

Constitution of India was not entitled to file his nomination.

ELECTION PETITION :

In his election petition, the appellant, inter alia, contended

that the objection as regard the age of the respondent was made in

writing before the returning officer but the same was rejected without

giving an opportunity of hearing to him, purported to be on the ground

that such objection had been filed in relation to one Rakesh Kumar alias

Samrat Choudhary while the nomination paper had been filed by Rakesh Ku.

According to the appellant, the respondent's date of birth was 1.5.1981

which would appear from a certificate issued by the Bihar Secondary

School Examination Board wherein the respondent appeared as Rakesh Kumar

alias Samrat Morya in the year 1996 as a private candidate from

Kritanand Vidya Mandir High School and was allocated the Roll Code 3218,

Roll No.0019 and he failed therein.

Further contention of the appellant is that the respondent was

appointed as a Minister of the Cabinet rank but having regard to the

complaint made by one Shri P.K. Sinha before the Hon'ble Governor of

Bihar, an inquiry was made and he was found to be below the age of 25

years, as a result whereof the respondent was removed from the Ministry.

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It has further been contended that the respondent was implicated in a

criminal case being Tarapur P.S. Case No.44 of 1995 wherein an

application for bail was filed by him or on his behalf on 20.4.1995

before the Chief Judicial Magistrate, Munger and it had specifically

been stated therein that he, thence, was a school going student being

aged about 15 years.

The appellant further contended that the respondent's elder

brother, Rohit Kumar, who was studying in the Birla Institute of

Technology, was aged 22 years in the year 1999 and, thus, he could not

be aged 25 years on the date of filing of the nomination paper.

WRITTEN STATEMENT :

On the other hand, the respondent in his written statement denied

and disputed the aforementioned contentions of the appellant herein and

in support of his plea that he was much above 25 years of age on the

date of filing of the nomination paper, he relied upon the election

identity card as also the voter register wherein his age was shown to be

24 years in the year 1995. He contended that his date of birth is

16.11.1968 and in support thereof he relied upon his horoscope and the

school admission register of New St. Xaviers School, Boring Road, Patna

as also a transfer certificate issued by Swami Vivekananda Vidyalaya,

Mithapur, Patna wherein it was alleged that he took admission in Class

II in the former school on 12.11.1980 and left the same on 13.11.1983

whereas he was admitted in the latter school on 12.4.1984 and left the

same while studying in Class VII on 31.12.86.

ISSUES BEFORE THE HIGH COURT :

The High Court having regard to the rival contentions raised in

the respective pleadings of the parties framed the following issues :

"i) Whether the election petition is

maintainable in the present form?

ii) Whether the nomination of the sole

respondent was accepted illegally although

he was under qualified as alleged in the

election petition?

iii) Whether the election petition suffers from

statutory defects as contemplated under

the Representation of People Act?

iv) What relief, if any, the election

petitioner is entitled to?"

JUDGMENT OF THE HIGH COURT :

Issues Nos. (i) and (iii) were decided in favour of the appellant.

As regard Issue No.(ii), the parties adduced both oral and documentary

evidences.

For the purpose of analyzing the materials on records, evidences

brought on records were divided by the High Court in the following seven

categories :

i) Order of His Excellency the then Governor of the State of

Bihar and the report of the Chief Electoral Officer, Bihar,

which have been marked as Exhibit-4 and Exhibit-8/A.

ii) The age records of Rohit Kumar son of Sri Shakuni Choudhary

such as Ext.5, Ext.5/1 and Ext.5/2.

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iii) The age recorded of Samrat Chandra Morya son of Shakuni

Chouhdhary as 1.5.1981 in the application form for appearing

in the examination of Secondary School Annual Examination,

1996 as per Ext.6 and Ext.6/1.

iv) Minority mentioned in the bail petition moved for and on

behalf of the respondent Rakesh Kumar, Ext. 2, 2/A and

2/A/1.

v) Horoscope of the same respondent Rakesh Kumar, Ext.6.

vi) Admission Register of the respondent in New St. Xaviers

Junior School, Ext.D and the transfer certificate from

Vivekananda Vidyalaya, Mithapur, Ext.I.

vii) Certified copy of electoral roll for the year 1995, Ext.E

and the identity card of Rakesh Kumar issued by the Election

Commission of India, Ext.F.

The findings of the learned Judge are :

(i) The orders of the Governor on the report of the Chief

Electoral Officer are not binding on the court, as the inquiry was

an administrative in nature and not a statutory one. The Chief

Electoral Officer who made the said inquiry having not been

subjected to cross-examination, the contents of the report cannot

be used in the judicial proceedings and, thus, the same would not

be conclusive on the pointed question of underage of the

respondent.

(ii) Although the statements made in paragraph 18 of the

election petition had not been specifically denied or disputed in

paragraph 15 of the written-statement but keeping in view the fact

that denial had been made that Rohit Kumar was the elder brother

of the respondent as also the evidence contrary thereto had been

adduced the same did not come in aid to the election petitioner to

prove the underage of the respondent.

(iii) Although the respondent was named as Samrat Choudhary,

having regard to the denial that he was known as Samrat Choudhary,

Ext.6 and Ext.6/1 are not relevant.

(iv) The age of the respondent in the bail petition was

mentioned without any instructions from the respondent or his

family members, as alleged by the advocate who had deposed in the

matter. Furthermore, judicial notice of the fact can be taken

that for moving the bail application various grounds are raised

for release of the accused from the custody, and, thus, such plea

cannot be taken seriously for debarring a person as contemplated

under Article 173(b) of the Constitution of India.

(v) Although the horoscope has not been proved by the maker

thereof but as the same was marked without objection, the same can

be taken as a supporting evidence.

(vi) Although no reliance was placed as regard Ext. I; as

regard Ext. D, namely, the Admission Register maintained by New

St. Xaviers Junior School, it was held :

"...Regarding the Admission Register at New St.

Xaviers Junior School, the same has been proved

by Mrs.Reshmi Kumari, D.W.7, who happens to be

the in charge Principal of that school.

Although from the seriality and the other

entries maintained in the register some question

marks are there but on the face of the records

it appears that against the entry no.312 wherein

the name of the respondent was being entered

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with all its particulars including the date of

birth being verified by the father of the

respondent who put his signature acknowledging

the veracity of the particulars being recorded

under that serial number..."

(vii) Although Ext. E and Ext. F are not of much help in

construing the actual date of birth of the respondent but they are

annexed to show that in the year 1995 he became eligible to vote.

SUBMISSIONS :

Mr. S.U. Abbas, learned counsel appearing on behalf of the

appellant would, inter alia, submit that the respondent was having four

names, namely, (i) Rakesh Kumar, (ii) Rakesh Ku, (iii) Samrat Choudhary;

and (iv) Samrat Chandra Maurya. The first three names being admitted,

the finding of the High Court that he was not known as Samrat Choudhary

must be considered in the light of the finding of the Governor of the

State of Bihar wherein in no uncertain terms it was held that the

respondent's father name as also the address, as mentioned in Ext. E

being the same; the High Court committed a manifest error in holding

that his disqualification had not been proved.

Taking us through the bail application Ext.3, the learned counsel

would contend that as therein the following statements had been made

which are not denied :

"4. That the petitioner is school going

student and he is aged about 14 years only,

5. That the petitioner is below 16

years;"

the same was sufficient to prove the underage of the respondent.

As regard the question as to whether Rohit Kumar was the elder

brother of the respondent or not, our attention was drawn to paragraph

18 of the election petition and paragraph 15 of the written statement

and on the basis thereof the learned counsel would submit that as the

respondent gave a vague reply in his written statement which was

accepted by the High Court, it must be held that an admission in that

behalf has been made by the respondent. In support of his contention,

Mr. Abbas placed reliance on Badat and Co. vs. East India Trading Co.

[(1964) 4 SCR 19].

The learned counsel drawing our attention to the Admission

Register maintained by the New St. Xaviers Junior School would contend

that the High Court, despite having observed that there were some

question marks in relation thereto, must be held to have committed a

manifest error in relying thereupon. The learned counsel would urge

that as DW 7, the Vice-Principal of New St. Xaviers Junior School, in

her cross-examination categorically admitted that the maximum age of a

student for taking admission in Class I was five years, it is surprising

how the respondent who read in her school from Class II to Class IV

could have been admitted at an age of more than 12 years. As regard the

transfer certificate issued by Swami Vivekananda Vidyalaya, Mithapur

(Ext.I), Mr. Abbas would submit that the same was issued on 28.7.1999

when the inquiry was pending and, thus, the same could not have been

admitted in evidence.

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As regard horoscope of the respondent (Ext.C), the learned counsel

would urge that without examining the maker thereof, it could not have

been admitted in evidence.

The learned counsel would contend that even there exists

contradictions between the date of birth of the respondent as evidenced

in the school leaving certificate (Ext.I) and voter register and

election identity card (Exts.E and F), insofar as if the former is taken

into consideration, the respondent would have been of 26 years of age as

on 1.1.1995 whereas he would be aged 24 years as per the voter register

and election identity card. The learned counsel would lastly contend

that the respondent having not questioned the findings contained in the

Inquiry Report of the Chief Electoral Officer as also the order of the

Governor of the State of Bihar, must be held to be estopped and

precluded from contending that he was major on the date of filing of the

nomination.

Mr. P.K. Mullick, learned counsel appearing on behalf of the

respondent would, on the other hand, submit that the Governor of the

State of Bihar while passing the order (Ext.4) committed an error of

fact in holding that the father's name as also the residential address

of the respondent were admitted despite the fact that no residential

address was mentioned in the letter of the Secretary, Bihar Secondary

School Examination Board.

The learned counsel would urge that only because the father's name

of the respondent was Shakuni Choudhary, the same by itself could not

have led to the conclusion that he is also known Samrat Choudhary.

Pointing out to the report of the Chief Electoral Officer, it was argued

that the findings recorded therein in this behalf are in favour of the

respondent. According to the learned counsel, the date of birth as

disclosed by the respondent was not accepted by the Chief Electoral

Officer only on the ground that the transfer certificate as also the

horoscope had not been proved by any witness in that behalf but the said

lacuna having filled up by the High Court, the said evidence had rightly

been considered to be admissible. Mr. Mullick would contend that in

terms of Section 146 of the Representation of the People Act, the Chief

Electoral Officer can make an inquiry for the purpose of ascertaining as

to whether a member suffers from disqualification or not but no inquiry

is contemplated for the purpose of unseating the elected member on the

ground that he was unqualified therefor. In that view of the matter,

the learned counsel would contend that the report of the Chief Electoral

Officer and consequently the order of the Governor of the State of Bihar

were inadmissible in evidence. In any event, the maker of the report

having not been examined, no evidentiary value can be attached thereto.

As regard the statements made in the application for grant of bail, Mr.

Mullick would submit that the same being not supported by an affidavit

and further the advocate who had filed the same having deposed as

regards the circumstances under which such application was made, had

rightly been not accepted by the High Court as a proof of age of the

respondent.

As regard the age of Rohit Kumar, Mr. Mullick would urge that DW.9

had asserted that he was younger to the respondent, no credence to the

contention of the appellant had rightly been placed by the High Court.

Drawing our attention to the evidence of DW 3, Md. Ekramul Haque,

it was argued that the said witness had been examined to show that the

respondent was 33 years old as on 17.1.2002. He would further submit

that the horoscope had been proved by a person in whose presence the

same was prepared, and, thus, the same was admissible in evidence.

RELEVANCE OF PRESCRIBED AGE :

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The Constitution of India, the Representation of the People Act

and the rules made thereunder had been enacted to protect the purity of

the election. Article 173 of the Constitution of India underlines a

salutary object. It postulates that a person shall not be qualified to

be chosen to fill a seat in the Legislature of a State unless he is not

less than twenty-five years of age in the case of a seat in the

Legislative Assembly. A person although may become entitled to vote on

attaining majority, the makers of the Constitution deliberately inserted

clause (b) in Article 173 so as to enable the voters to elect a person

who has attained maturity and experience in life. Only a matured and

experienced person can represent the people and take steps which would

be beneficial to the electorates.

Section 36 (2) of the Representation of the People Act, 1951

castes a mandatory duty on the returning officer to examine the

nomination papers and take a decision on all objections which may be

made upon making an inquiry in that behalf, which would include the

question as to whether the requirement of Article 173 has been fulfilled

or not by the candidate. The effect of the aforementioned provision is

that a candidate is not qualified unless he has attained the age

specified in the clause on the date fixed for scrutiny of nominations.

[See Amritlal Ambalal Patel vs. Himatbhai Gomanbhai Patel & Another,

1969 (1) SCR 277].

It is beyond any cavil that in the event a person is elected who

does not fulfill the constitutional requirements, the election would be

void despite the fact that the returning officer has accepted his

nomination paper. [See Durga Shankar Mehta vs. Thakur Raghuraj Singh and

Others, 1955 (1) SCR 267].

Such a question indisputably would fall for consideration in an

election petition where the parties would be entitled to adduce

evidences in support of their respective cases. [See Birad Mal Singhvi

vs. Anand Purohit, 1988 Supp. SCC 604].

PRESENT CONTROVERSY :

The evidence on record as also the judgment of the High Court are

to be scrutinized keeping the aforementioned legal principles in mind.

The date of birth of the respondent, according to the appellant, is

1.5.1981 whereas according to the respondent it is 16.11.1968.

BURDEN OF PROOF :

It is no doubt true that the burden of proof to show that a

candidate who was disqualified as on the date of the nomination would be

on the election petitioner.

It is also true that the initial burden of proof that nomination

paper of an elected candidate has wrongly been accepted is on the

election petitioner.

In terms of Section 103 of the Indian Evidence Act, however, the

burden of proof as to any particular fact lies on that person who wishes

the Court to believe in its existence, unless it is provided by any law

that the proof of that fact shall lie on any particular person.

Furthermore, in relation to certain matters, the fact being within

the special knowledge of the respondent, the burden to prove the same

would be on him in terms of Section 106 of the Indian Evidence Act.

However, the question as to whether the burden to prove a particular

matter is on the plaintiff or the defendant would depend upon the nature

of the dispute. [See Orissa Mining Corporation and another vs. Ananda

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Chandra Prusty, AIR 1997 SC 2274].

The age of a person, in an election petition has to be determined

not only on the basis of the materials placed on records but also upon

taking into consideration the circumstances attending thereto. The

initial burden to prove the allegations made in the election petition

although was upon the election petitioner but for proving the facts

which were within the special knowledge of the respondent, the burden

was upon him in terms of Section 106 of the Evidence Act. It is also

trite that when both parties have adduced evidence, the question of onus

of proof becomes academic [See Union of India and Others vs. Sugauli

Sugar Works (P) Ltd., (1976) 3 SCC 32,(Para 14) and M/s Cox and Kings

(Agents) Ltd. vs. Their Workmen and Others, AIR 1977 SC 1666, (Para

36)]. Furthermore, an admission on the part of a party to the lis shall

be binding on him and in any event a presumption must be made that the

same is taken to be established.

INSTITUTIONAL RECORDS/CERTIFICATES :

Under Section 35 of the Indian Evidence Act, a register maintained

in terms of a statute or by a statutory authority in regular course of

business would be a relevant fact. Had such a vital evidence been

produced, it would have clinched the issue. The respondent did not

choose to do so.

In the aforementioned backdrop the evidences brought on record are

required to be considered. The Admission Register or a Transfer

Certificate issued by a Primary School do not satisfy the requirements

of Section 35 of the Indian Evidence Act. There is no reliable evidence

on record to show that the date of birth was recorded in the school

register on the basis of the statement of any responsible person.

In Brij Mohan Singh vs. Priya Brat Narain Sinha and others [AIR

1965 SC 282], this Court, inter alia, observed that in actual life it

often happens that persons give false age of the boy at the time of his

admission to a school so that later in life he would have an advantage

when seeking public service for which a minimum age for eligibility is

often prescribed.

The entry of date of birth made in school admission register in

terms of Section 35 of the Evidence Act should be considered from that

perspective.

However, in Birad Mal Singhvi (supra), it was held :

"...To render a document admissible under

Section 35, three conditions must be satisfied,

firstly, entry that is relied on must be one in

a public or other official book, register or

record, secondly, it must be an entry stating a

fact in issue or relevant fact, and thirdly, it

must be made by a public servant in discharge of

his official duty, or any other person in

performance of a duty specially enjoined by law.

An entry relating to date of birth made in the

school register is relevant and admissible under

Section 35 of the Act but the entry regarding to

the age of a person in a school register is of

not much evidentiary value to prove the age of

the person in the absence of material on which

the age was recorded..."

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In Chittaranjan Das vs. Durgapore Project Limited & Ors. [99 CWN

897], it was held

"Thus, in absence of the primary material

on the basis whereof the age was recorded, and

particularly in view of the conflicting evidence

available, it is not possible to accept the

contention of Mr. Roy that the date of birth of

the petitioner as recorded in the said

certificate would prevail over the letter of the

Board."

The said principles were reiterated in Coal India Limited vs. Arun

Kumar Sinha & Others [1999 (1) SLR 151].

THE CERTIFCATE ISSUED BY THE BIHAR SCHOOL EXAMINATION BOARD:

The appellant contended that the respondent was also known as

Samrat Choudhary. He appeared in the matriculation examination from

Kritanand Vidya Mandir High School but failed in the year 1996. The

said allegations were denied and disputed by the respondent. The

Secretary of the Bihar School Examination Board, however, in response to

a letter issued by the Assistant Registrar of the High Court stated:

"In reference to the aforesaid matter I have to state that the item No.

12 i.e. Examination application form of the year 1996 is no more

available in the office of the Board, such forms are not kept for over

long period. The only record which is properly be kept in the Board in

Tabulation Register and as per the details mentioned in the Sl. No. 12 &

13 of the Election Petition, on Roll Code 3218, Roll No. 19 of Secondary

School Examination Annual Examination 1996, the following details are

printed in the Tabulation Register of the Board.

Name of the School : K.N.V.M. H.S. KUMARSAR

Name of candidate : SAMRAT CHANDRA MOURA

Father's name : SHAKUNI CHOUDHARY

Date of Birth : 01.05.81 (First May

eighty one)

Result : Fail

Total Marks : 268

Category : private"

It, thus, appears that the Bihar School Examination Boards was

possessed of the election petition or the nature of particulars in

relation to the respondent. The name and address of the respondent, the

school from which he appeared, his Roll Code, Roll No. etc. must have

been duly mentioned therein.

It is pertinent to note that in paragraph 15 of the election

petition, it was categorically stated :

"That it is relevant to state here that

the sole respondent Rakesh Ku is in fact Rakesh

Kumar @ Samrat Choudhary son of Sri Sakuni

Choudhary is the same person who has filed his

nomination paper for the election as member of

Bihar Legislative Assembly from 181 Parbatta

Assembly Constituency and has been declared

elected by the Returning Officer, Gogari, he was

earlier one of the Ministers in the Government

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of Bihar in the reign of Rastriya Janta Dal

Government and was dismissed from the Ministry

of the Bihar Government in October, 1999 on the

sole ground that he was less than 25 years of

his age."

The aforementioned statements had been traversed in paragraph 12

of the written statement which is in the following terms :

"That with regard to statement made in

para 15 of the election petition under reply

that the respondent Rakesh Kumar filed his

nomination in the name of Rakesh Kumar and the

proposal seconded it according to law. And

after scrutiny the nomination paper was found

valid. It is absolutely wrong to say that he

was dismissed from the ministry in October 1999

on the ground of age. The respondent was

appointed minister by the Governor on the advice

of the Chief Minister keeping in view Article

164(3) & (4) of the Constitution of India. And

just 2 or 3 days before completing six months he

submitted his resignation to Chief Minister."

It would, thus, appear that the respondent did not controvert the

allegation that his alias name was Samrat Choudhary but despite the same

he as also his father Shakuni Choudhary in their depositions denied and

disputed that the respondent had an alias name of Samrat Choudhary. The

legal principles contained in Order VIII, Rules 3 and 5, which would be

discerned herein a little later shall apply herein.

Even if it be assumed to be correct that the appellant has not

been able to conclusively show that the respondent was also known as

Samrat Chandra Mourya but the name of the respondent's father is the

same. The said reply had been sent with reference to a letter of the

Assistant Registrar of the High Court pursuant to the order dated

28.2.2001 wherein the address of the respondent must have been

mentioned. Even in the election petition the same address has been

disclosed.

DW 2 in his examination in chief itself admitted that Samrat

Choudhary was the second son of Shakuni Choudhary. The High Court

should not have brushed aside the said statement. It is pertinent to

note that admittedly even his brother had an alias name. The finding of

the High Court in this behalf is contradictory and inconsistent. It may,

therefore, safely be concluded that the respondent was also known as

Samrat Choudhary.

REPORT OF THE CHIEF ELECTORAL OFFICER AND THE ORDER OF THE

GOVERNOR OF THE STATE OF BIHAR :

The report of the Chief Electoral Officer had been marked exhibit

without any objection. A contention could validly be raised that the

said report is not admissible in evidence, but the counsel for both the

parties relied thereupon and placed before us the findings recorded

therein in extenso. The parties cannot be permitted to rely upon a part

of a document and at the same time raise a contention that the same is

inadmissible. The said report is, thus, admissible in evidence,

although it may not have any statutory backing. In any event, having

regard to the pleadings of the parties as also the stand taken before us

the said report can be looked into, inter alia, for the purpose (i) that

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an inquiry had been made as regard the underage of the respondent; (ii)

in said inquiry the respondent was given an opportunity to prove that he

was not below the age of 25 years when he was sworn in as Minister;

(iii) He had been given an opportunity to place all the materials in

support of his case; and (iv) it was found that he did not complete 25

years of age on the date of his having been appointed as a Minister.

The report of the Chief Electoral Officer clearly suggests that

the respondent herein did not cooperate with him in any manner

whatsoever. He made all attempts to delay the proceedings as far as

possible. He despite giving opportunities did not place on record any

affidavit in support of his plea that he had studied in New St. Zaviers

School and Swami Vivekananda Vidyalaya, Mithapur. He even did not deny

that he had an alias name of Samrat Choudhary. Such a conduct on the

part of a Minister of a Government speaks a volume.

The said report was placed before Hon'ble the Governor of Bihar,

who upon considering the materials on records came to the conclusion

that the allegations made by Shri P.K. Sinha, a member of Samta Party,

were correct. He, therefore, advised the Chief Minister to drop the

respondent from his council of ministers.

It may be a matter of co-incidence that at that time, the period

of six months envisaged under Article 164 of the Constitution of India

was coming to an end but the fact remains that he resigned at a point of

time when the Chief Minister was advised to drop him from his council of

ministers. The said report as also the order of the Governor never came

to be questioned by the respondent. It is accepted that at the relevant

time, the matter received the attention of the media wherein inter alia

the alias name of the respondent as Samrat Choudhary was highlighted,

but the respondent did not make any attempt to deny the same. Such a

conduct must be viewed in its proper perspective. A person against whom

an allegation of violation of constitutional provisions has been made

and who has taken Minister's berth without being properly qualified

therefor, expectedly would question the said decision before an

appropriate forum, if not for the sake of the office but for maintaining

his own reputation in the public field. It will, thus, be safe to infer

that he had accepted the said report and the order of the Governor sub-

silentio.

ELECTORAL ROLL AND ELECTION COMMISSION OF IDENTITY CARD :

In both the aforementioned documents the age of the respondent was

stated to 24 years as on 1.1.1995. According to the respondent he was

born in 1968 and, thus, on the said date he would have been more than 24

years of age. Why such an inconsistency crept in has not been

explained. The High Court, however, did not give much importance to the

said fact and proceeded on the basis that these documents go to show

that the respondent was major on that day. It is conceded by Mr.

Mullick, learned counsel appearing on behalf of the respondent that the

date of birth of a voter contained in the voter list and the election

identity card issued by the Election Commission of India is not

conclusive. They are recorded as per the statements made by the person

concerned. Be that it may, it was for the High Court and consequently

for this Court in appeal to consider the said materials on records in

their proper perspective. We may, however, observe that the said

documents do not conclusively show that the respondent was major on that

day.

ANALYSIS OF THE EVIDENCE :

We have examined the admission register of the school. Pagination

of the register had been done by hands. The name of the respondent is

at Sl.No.320. The guardians including that of the respondent purported

to have signed in English. A bare perusal of the said register would

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show that entries have been made by one person with two different pens

in one sitting. It is curious to note that the entries at Sl. Nos. 310

and 311 relate to the same person and in relation to the names of the

two students two pens had been used. Entries 312 and 313 are dated

23.9.1980 whereas entries 315 and 316 are dated 23.9.1990. For all those

students, the same person has signed as guardian, although admissions

were effected on different dates. So far as Entry No.314 is concerned,

the same has been altered from 334. There is an alteration in the date

of admission being 12.11.1980 as against Sl.No.319. The address of the

father of the respondent is shown as Lakhanpur Tarapur, District Munger.

There is no evidence on record that the respondent used to stay with

some relative at Patna as the school is not a residential one. At page

66 of the register alternations have been made as regard date of

admission from 1981 to 1980, although at the top of the page, the figure

'1981' has been written.

The school authorities, thus, must have used some blank space of

the register for the year 1980 at the instance of the respondent. No

credence thereto, thus, can be given. Forgery in this register has been

done in a crude form. As noticed hereinbefore, even the High Court

placed its needle of suspicion in relation to the said document but

still proceeded to rely thereupon which amounts to misdirection in law.

So far as Ext.I is concerned, no witness has taken oath to prove

the entries made therein. The said school is a minority institution

situate in the heart of capital of the State. The residential address

of the respondent had been shown as Lakhanpur Tarapore, District Munger.

For the students who had taken admission in the primary school, it is

expected that the name of the local guardian and his local address, if

any, would be disclosed.

The father of the appellant was a member of the Legislative

Assembly as also Member of Parliament. He had deposed that he had

disclosed the respondent's age while getting him admitted in the New St.

Xaviers Junior School. This, however, has not been corroborated by any

other witness. The school register (Ext.D) and (Ext.I) were, thus,

required to be taken into consideration in their proper perspective by

the High Court, which was not done. The respondent purported to have

read in Class II to Class IV from 12.11.1980 to 13.11.1983 whereas he

allegedly read in Swami Vivekananda School, Mithapur from 12.4.1984 to

31.12.1986 from Class V to Class VII. He attended classes from the

middle of the session. But still he is said to have completed his

studies from Class II to Class IV within three years and V to VII only

in two years 8 months. The respondent as on the date of admission in

Class II would have been aged about 12 years. If the evidence of the

Vice-Principal is to be believed, the same was impermissible inasmuch as

the maximum age for admission in Class I was 5 years. It is difficult

to believe that a boy aged about 15 years would be reading in Class IV

in a Christian School situate in the heart of the State capital.

As the respondent only had special knowledge as to in which school

did he study; he should have disclosed the same. It is relevant to note

that he respondent in his deposition alleged that he started his

education in some school at his native village, but for reasons best

known to him no details thereof or document to prove the same were

brought on record.

In Punit Rai vs. Dinesh Chaudhary [JT 2003 (Supp.1) SC 557], it is

stated :

"...These are the material facts relating to the

plea raised by the appellant that the respondent

is not a Scheduled caste. We don't think if the

respondent means to say that the petitoner

should have stated in the petition that the

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respondent is not born of Deo Kumari Devi said

to be married to Bhagwan Singh in village Adai.

If at all these facts would be in the special

knowledge of respondent, Bhagwan Singh and Deo

Kumari Devi hence not required to be pleaded in

the election petition. It is not possible as

well. In this connection, a reference may be

made to a decision of this Court in Balwan Singh

vs. Lakshmi Nrain and Ors {AIR 1960 SC 770).

This case also relates to election matter and it

was held that facts which are in the special

knowledge of the other party could not be

pleaded by the election petitioner. It was

found that particulars of the arrangement of

hiring or procuring a vehicle would never be in

the knowledge of the petitioner, such facts need

not and cannot be pleaded in the petition."

The respondent instead of disclosing the said facts took recourse

to suppressio veri and suggestio falsi. He produced documents which are

apparently forged and fabricated. He, according to DW 7 could not have

been admitted in New St. Xaviers Junior School being overaged. The High

Court has relied upon the evidence of the father of the respondent but

he is not trustworthy keeping in view the fact that he not only denied

that any inquiry made by the Chief Electoral Officer on the application

filed by Shri P.K. Sinha but even went to the extent denying that the

respondent had in a criminal case filed any application for bail.

He denied with impunity the factum of the complaint made by Shri

P.K. Sinha to the Governor of the State of Bihar as also the inquiry

proceedings conducted in that behalf. When through the media a large

section of people of Bihar came to know about such inquiry and the

result thereof, it is unbelievable that the father of the respondent who

not only was in politics but also was a member of Parliament would be

totally ignorant thereabout. He is, thus, a totally untrustworthy

witness. It is well known that a man may lie but the circumstances do

not.

HOROSCOPE :

The horoscope purported to have been filed by the respondent does

not inspire confidence. It was said to have been prepared at the

instance of one Damodar Pathak. It was purported to have, however, been

written by his brother. DW2 was a by-stander. He had nothing to do

either with the preparation of horoscope or with the writing thereof.

His evidence is, thus, not trustworthy. The horoscope, therefore, could

not have been looked into by the High Court for any purpose whatsoever.

The paper on which the said horoscope has been drawn up does not appear

to be an old one. It is self-serving document. Furthermore, the maker

of the horoscope being dead could not be examined to prove as to what

was the primary evidence of date and time of the birth of the respondent

on the basis whereof the same was prepared.

BAIL APPLICATION :

It is not in dispute that an application for bail was filed in a

case in which the respondent as well as his father were accused. It is

difficult to eschew the contention raised on behalf of the respondent

that the statements made in the bail application were made without any

instruction. How without instruction a lawyer would come to know that

the respondent at the relevant time was reading in a school? The

occurrence took place in April 1995. If the date of birth as disclosed

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by the appellant is correct, the respondent would be about 14 years as

on that date, and, thus, would be below 16 years in the year 1996. He at

that age could have also appeared in the matriculation examination in

the year 1996. The contents of the bail application are suggestive of

the said fact. The High Court, in our opinion, is not correct in

observing that it is a common experience that all such pleas are taken

for the purpose of obtaining bail. No presumption in this behalf can be

raised as such allegations would be subject to judicial scrutiny. Thus,

a person is not expected to take false grounds regarding his age or to

make a statement that he had been reading in a school.

Furthermore, the advocate who had filed the said bail application

stated that the Chief Judicial Magistrate did not accept the contention

that the respondent was less than 16 years of age on the ground that in

the records his date of birth was mentioned as 17 years. Even if the

age of the respondent being 17 years as on the date of commission of the

offence is considered to be correct, he would not still be of the age of

25 years as on the date of filing of the nomination.

In Thiru John etc. vs. The Returning Officer and Others [(1977) 3

SCC 540], the law is stated in the following terms :

"It is well settled that a party's

admission as defined in Sections 17 to 20,

fulfilling the requirements of Section 21,

Evidence Act, is substantive evidence proprio

vigore. An admission, if clearly and

unequivocally made, is the best evidence against

the party making it and though not conclusive,

shifts the onus on to the maker on the principle

that "what a party himself admits to be true may

reasonably be presumed to be so and until the

presumption was rebutted the fact admitted must

be taken to be established"."

Even otherwise making a false statement before the court whether

on affidavit or not is not to be treated lightly. The court acts on the

basis of the statement made by a party to the lis. Whether such defence

has been accepted or not is not of much importance but whether a false

statement to the knowledge of the party has been made or not is. In any

view of the matter, the court must draw an adverse inference in this

behalf against the respondent.

Furthermore, a person should not be permitted to take advantage of

his own wrong. He should either stand by his statement made before a

court of law or should explain the same sufficiently. In absence of any

satisfactory explanation, the court will presume that the statement

before a court is correct and binding on the party on whose behalf the

same has been made.

ROHIT KUMAR @ RAJESH KUMAR :

The contention of the appellant in this behalf assumes

significance in the peculiar facts and circumstances of the case.

The appellant in paragraph 18 of the election petition alleged :

"That it is most significant and relevant to

state here that the elder brother namely Sri

Rajesh Kumar of Sri Rakesh Kumar was and is a

student of B.I.T. Meshra School where he got his

age recorded as 22 years on 28.7.1999. So an

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easy and clear conclusion can be drawn that his

younger brother namely Rakesh Kumar was at least

less than 22 years in the year 1999."

The said statements, as would appear from paragraph 15 of the

written statement, had not been traversed in accordance with law.

Paragraph 15 of the written statement is as under :

"That the statement made in para 18 of the

election petition under reply is not correct.

Merely on imagination Sri Rajesh Kumar has been

mentioned as elder brother. The petitioner has

no knowledge about that and wrong statement has

been made."

In terms of Order VIII, Rule 3, a defendant is required to deny or

dispute the statements made in the plaint categorically, as an evasive

denial would amount to an admission of the allegation made in the plaint

in terms of Order VIII, Rule 5 of the Code of Civil Procedure.

Under Section 58 of the Indian Evidence Act a fact admitted need

not be proved.

In paragraph 15 of the written statement, the respondent has not

specifically contended that the statements made in paragraph 18 of the

election petition are incorrect or how they are so. Merely the said

allegations have been denied as being imagination of the election

petitioner without making a statement of fact that Rohit Kumar is not

the elder brother of the respondent or in fact younger to him. Such an

evasive denial attracts Order VIII, Rule 5 of the Code of Civil

Procedure. The statements made in paragraph 18 of the election petition

must, therefore, be deemed to have been admitted. The Birla Institute

of Technology, Mesra, has produced the Application for Under-graduate

Admission for Rohit Kumar, wherein his date of birth has been shown as

1.3.1979. Even in the inquiry made by the Chief Electoral Officer, the

respondent had not specifically denied the said fact. The Governor of

the State of Bihar in his order (Ext.4) observed :

"Sri Rakesh Kumar has not denied that his elder

brother is a student of Birla Institute of

Technology. Documents furnished by Birla

Institute of Technology about the age of his

elder brother are extremely significant and

relevant to determine Shri Rakesh Kumar's likely

age. The documents furnished by the Institute

reveal that the date of birth of the elder

brother of Sri Rakesh Kumar is 1.3.1979. Hence,

on 19.5.99 Sri Rakesh Kumar's elder brother was

20 years, 2 months and 18 days old. So, it can

be safely and conclusively assumed that on

19.5.99 Sri Rakesh Kumar, when he was sworn in

as a minister, was less than 20 years, and

definitely much less than 25 years, the

qualifying age to become a member of the State

Legislative Assembly."

The High Court, on the other hand, observed :

"...It is true that it has not been specifically

stated in the reply to paragraph 18 of the

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election petition that Rajesh Kumar happens to

be younger brother of Rakesh Kumar but making

him an elder brother has been totally denied.

In that way, it cannot be said that only evasive

reply is there and when this fact could not be

proved by any cogent evidence from the side of

the election petitioner that Rajesh Kumar

happens to be the elder brother of the

respondent Rakesh Kumar rather when contrary

evidence is there from the side of the

respondent then the age group of Rohit Kumar @

Rajesh Kumar does not come in aid to the

election petitoner to prove the underage of

Rakesh Kumar the respondent."

In our opinion, the approach of the High Court was not correct. It

failed to apply the legal principles as contained in Order VIII, Rules 3

and 5 of the Code of Civil Procedure. The High Court had also not

analysed the evidences adduced on behalf of the appellant in this behalf

in details but merely rejected the same summarily stating that the vague

statements had been made by some witnesses. Once it is held that the

statements made in paragraph 18 of the election petition have not been

specifically denied or disputed in the written statement, the

allegations made therein would be deemed to have been admitted, and,

thus, no evidence contrary thereto or inconsistent therewith could have

been permitted to be laid.

In Badat and Co (supra) this Court upon referring to Order VIII,

Rules 3, 4 and 5 of the Code of Civil Procedure, observed :

"These three rules form an integrated code

dealing with the manner in which allegations of

fact in the plaint should be traversed and the

legal consequences flowing from its non-

compliance. The written-statement must deal

specifically with each allegation of fact in the

plaint and when a defendant denies any such

fact, he must not do so evasively, but answer

the point of substance. If his denial of a fact

is not specific but evasive, the said fact shall

be taken to be admitted. In such an event, the

admission itself being proof, no other proof is

necessary. The first paragraph of r. 5 is a re-

production of O. XIX, r. 13, of the English

rules made under the Judicature Acts. But in

mofussil Courts in India, where pleadings were

not precisely drawn, it was found in practice

that if they were strictly construed in terms of

the said provisions, grave injustice would be

done to parties with genuine claims. To do

justice between those parties, for which Courts

are intended, the rigor of r. 5 has been

modified by the introduction of the proviso

thereto. Under that proviso the Court may, in

its discretion, require any fact so admitted to

be proved otherwise than by such admission. In

the matter of mofussil pleadings, Courts,

presumably relying upon the said proviso,

tolerated more laxity in the pleadings in the

interest of justice. But on the Original side of

the Bombay High Court, we are told, the

pleadings are drafted by trained lawyers

bestowing serious thought and with precision. In

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construing such pleadings the proviso can be

invoked only in exceptional circumstances to

prevent obvious injustice to a party or to

relieve him from the results of an accidental

slip or omission, but not to help a party who

designedly made vague denials and thereafter

sought to rely upon them for non-suiting the

plaintiff. The discretion under the proviso must

be exercised by a Court having regard to the

justice of a cause with particular reference to

the nature of the parties, the standard of

drafting obtaining in a locality, and the

traditions and conventions of a Court wherein

such pleadings are filed. In this context the

decision in Tildesley v. Harper will be useful.

There, in an action against a lessee to set

aside the lease granted under a power the

statement of claim stated that the donee of the

power had received from the lessee a certain sum

as a bribe, and stated the circumstances; the

statement of defence denied that that sum had

been given, and denied each circumstance, but

contained no general denial of a bribe having

been given. The Court held, under rules

corresponding to the aforesaid rules of the Code

of Civil Procedure, that the giving of the bribe

was not sufficiently denied and therefore it

must be deemed to have been admitted. Fry J.

posed the question thus : What is the point of

substance in the allegations in the statement of

claim ? and answered it as follows :

"The point of substance is undoubtedly that a

bribe was given by Anderson to Tildesley, and

that point of substance is nowhere met ........

no fair and substantial answer is, in my

opinion, given to the allegation of substance,

namely that there was a bribe. In my opinion it

is of the highest importance that this rule of

pleading should be adhere to strictly, and that

the Court should require the Defendant, when

putting in his statement of defence, and the

Plaintiff, when replying to the allegations of

the Defendant, to state the point of substance,

and not to give formal denials of the

allegations contained in the previous pleadings

without stating the circumstances. As far as I

am concerned, I mean to give the fullest effect

to that rule. I am convinced that it is one of

the highest benefit to suitors in the Court."

It is true that in England the concerned rule is

inflexible and that there is no proviso to it as

is found in the Code of Civil Procedure. But

there is no reason why in Bombay on the original

side of the High Court the same precision in

pleadings shall not be insisted upon except in

exceptional circumstances..."

The pleadings in an election petition must likewise be construed

strictly. The provisions of the Code of Civil Procedure apply to an

election petition. The election petition is not an action at law or a

suit in equity. It is a special proceeding and even withdrawal of an

election petition may not be permitted.

In R.M. Seshadri vs. G. Vasantha Pai and Others [AIR 1969 SC 692],

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it has been held :

"...The policy of election law seems to be that

for the establishment of purity of elections,

investigation into all allegations of

malpractices including corrupt practices at

elections should be thoroughly investigated..."

OTHER EVIDENCE :

Reliance placed on the witness of Md. Ekramul Haque by Mr. Mullick

appears to be misplaced. He stated that the date of birth of the

respondent was entered in the register maintained in the Police Station

on the very next day of his birth. If that be so, the same should have

been produced. Non-production of the said document would again give

rise to drawal of an adverse inference to the effect that had such

documents been produced, the same would have gone against the interest

of the respondent. Such a fact, having regard to the statement of DW 3

in his examination in chief must be held to have been made with the

knowledge of the respondent, but he did not make any attempt to produce

or cause production of the said evidence.

In National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore and

Others [(1988) 1 SCC 626], this Court stated the law thus:

"This Court has consistently emphasized that it

is the duty of the party which is in possession

of a document which would be helpful in doing

justice in the cause to produce the said

document and such party should not be permitted

to take shelter behind the abstract doctrine of

burden of proof."

CONCLUSION :

The election Tribunal while determining an issue of this nature

has to bear in mind that Article 173(b) of the Constitution of India

provides for a disqualification. A person cannot be permitted to occupy

an office for which he is disqualified under the Constitution. The

endeavour of the court shall therefor should be to see that a

disqualified person should not hold the office but should not at the

same time, unseat a person qualified therefor. The court is required to

proceed cautiously in the matter and, thus, while seeing that an

election of the representative of the people is not set aside on flimsy

grounds but would also have a duty to see that the constitutional

mandate is fulfilled.

The upshot of the discussions aforesaid is that the materials on

records taken in their entirety together with the circumstantial

evidence goes to show that the respondent was not above the age of 25

years on the date of filing of the nomination. The findings of the High

Court to the contrary cannot be sustained.

For the reasons aforementioned, the impugned judgment is set

aside. The appeal is allowed and the election of the respondent from

181 Parbatta Assembly Constituency is declared as void. Consequently

the same is set aside. Let the substance of this decision be intimated

to the Election Commission and the Speaker of the Bihar Legislative

Assembly and further a certified copy of the decision be sent to the

Election Commission forthwith. There shall be no order as to costs.

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