Full Judgment Text
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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could be withdrawn by 3.2.2000.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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