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PETITIONER: BRIJ MOHAN SINGH

       Vs.

RESPONDENT: PRIYA BRAT NARAIN SINHA AND ORS.

DATE OF JUDGMENT: 05/02/1964

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. SHAH, J.C. AYYANGAR, N. RAJAGOPALA

CITATION:  1965 AIR  282            1965 SCR  (3) 861  CITATOR INFO :  R          1970 SC 326  (11,12)  R          1983 SC 684  (53)  RF         1988 SC1796  (16)

ACT:     Evidence  Act  (1  of 1872)--S.  35--Entry  in  official Record  maintained by illiterate person by some one else  at his request--Admissibility.

HEADNOTE:     The  appellant and respondent were rival candidates  for election  to the Bihar Legislative Assembly.  The  appellant obtained a majority of votes and was declared elected.  This election was challenged by the respondent on the ground that the  appellant had not attained the age of 25 years  on  the date of filing the nomination papers and was on that account disqualified under Art. 173 of the Constitution from being a member  of the Assembly; that he held  subsisting  contracts under  the Bihar Government in his individual  and  personal capacity  and  was thus disqualified under s.  7(d)  of  the Representation of the People Act and that he and his  party- men   were   directly  responsible   for   publication   and distribution of  copies  of  leaflets entitled "Bagula  Neta Se Hoshiar"  containing  direct  insinuations and aspersions against  the  personal character of  the  respondent,  those being false to the knowledge of the appellant.     The  Election  Petition was dismissed  by  the  Election Tribunal.  The  respondent appealed to the High  Court.  The High  Court came to the conclusion that the allegation  that the appellant held Governpapers and that the appellant  was. gulty  of  a  corrupt practice in the appeal and  set  aside the  election  of the appellant on the ground  that  he  was below  the age of 25 on the date of filling  the  nomination papers  and  that  the appellant was guilty  of.  a  corrupt practice  in that he had published the  offending  leaflets. With  certificate’ of fitness granted by the High Court  the appellant appealed to  this  Court. Allowing the appeal:     HELD:  (i) The burden of proving that appellant had  not attained  the age of 25 years on the date of has  nomination

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was  on the respondent and he had failed to prove  that  and hence  the election of the appellant could not be set  aside on that ground.      The  entry made in an official record maintained by  an illiterate Chowkidar, by somebody else at his request,  does not come within Section 35 of the Evidence Act.      (ii)  The  respondent had not been able  to  prove  the publication of the leaflets by the appellant or has agent or by any other person with the consent of the appellant o.r of his  election  agent, and hence the  Election  Tribunal  was right in coming to the conclusion that the commission of any corrupt  practice by appellant under s. 123(4) had not  been proved. 862

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9 of 1964.     Appeal  from the judgment and order dated  September  9, 1964  of  the Patna High Court in Election Appeal No.  2  of 1963.     C.B.  Agarwala, L.M. Sarma and D.N. Mukherjee,  for  the appellant. Sarjoo Prasad and K.K. Sinha, for the respondent No. 1. The Judgment of the Court was delivered by     Dass  Gupta, J. The appellant Brij Mohan Singh  and  the resportdent   Priya  Brat  Narain  Sinha  were   among   the candidates  who contested the Aurangabad  Constituency  seat for  the Bihar Legislative Assembly at the General  Election held  in 1962. The polling took place on February 21,  1962. The appellant received a majority of votes and was  declared elected. The respondent Priya Brat Babu who was the  sitting member  was defeated on April 9, 1962, he filed  a  petition challenging  the  validity of the appellant’s  election.  He prayed for a declaration that the election of the  appellant Brij  Mohan Singh be declared void and that he (Priya   Brat Narain  Sinha) be declared to have been duly elected to  the Bihar    Legislative    Assembly   from    the    Aurangabad Constituency.   Among the grounds on which  the  appellant’s election was challenged were these three :--                   (1) That the appellant was born on October               15, 1937 and was thus under 25 years of age on               the  date of filing the nomination papers  and               therefore  disqualified under Art. 137 of  the               Constitution from being a member of the  Bihar               Legislative Assembly;                   (2)  That  he  held  subsisting  contracts               under  the Bihar Government in his  individual               and    personal   capacity   and   was    thus               disqualified    under   s.   7(d)    of    the               Representation of the People Act;                   (3)  That  the  appellant,  and  with  his               consent, his party-men Rameshwar Prasad  Singh               and  others (whose names are  mentioned)  were               directly   responsible  for  publication   and               distribution of copies of leaflets  containing               direct  insinuations  and  aspersions  against               the   respondent’s personal  character,  these               being false to the knowledge of the appellant.     The  Election  Tribunal held on a consideration  of  the oral  and documentary evidence produced before it that  none of  these or the other grounds on which the validity of  the election  was challenged had been established.  Accordingly, the Tribunal dismissed the petition.

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863     On  appeal,  the High Court of Judicature at  Patna  set aside  the judgment and order of the Election  Tribunal  and made  an order setting aside the election of  the  appellant Brij   Mohan  Singh to the Bihar Legislative  Assembly.  The High  Court  however refused the respondent’s prayer  to  be declared duly elected.     Against this order of the High Court the present  appeal has  been  preferred on a certificate granted  by  the  High Court under Art. 133(1)(b) of the Constitution.     The only grounds that appear to have been pressed before the High Court were the three which we have mentioned above. The  High Court agreed with the Election Tribunal  that  the allegation  that  the appellant held a  contract  under  the Government   in   his  personal  capacity   had   not   been established. As regards the other two grounds the High Court disagreed  with the Election Tribunal. The High  Court  held that the appellant was below the age of 25 years on the date of filing the nomination and was therefore not qualified  to be a candidate for the Bihar Legislative Assembly.  The High Court  also held that the appellant had published a  leaflet Ex. 10 containing attacks upon the personal character of the respondent and was thus guilty of a corrupt practice  within the   meaning  of  s. 123(4) of the  Representation  of  the People   Act.  As  already stated, the High Court set  aside the election of the appellant.     The  findings of the High Court on the question  of  age and also on the question of publication of the document  Ex. 10 have been challenged before us. It was also urged that in any case the pamphlet Ex. 10 did not amount to an attack  on the  personal character of the respondent.        [After   considering   the  evidence   his   Lordship concluded  that  it was not proved that  the  appellant  had committed any corrupt practice or that he was below  twenty- five  years on the date of filing of nomination  papers.  On the  question  whether an entry made in an  official  record maintained by an illiterate public servant, by some one else at  his request is relevant under s. 35 of the Evidence  Act his Lordship held:]     On  an  examination of the physical  appearance  on  the hathchitha and the entries made therein, the evidence of the Chowkidar  and the circumstances under which  this  document was ultimately produced before the Tribunal we are  inclined to agree with the view of the Election Tribunal that this is a  genuine document which was maintained by the Chowkidar in the discharge of his official duty. If the document had been manufactured  to  assist the appellant we do  not  think  it likely  that the Chowkidar would have refused to produce  it readily when summoned to do so. The fact 864 that a warrant of arrest had to be executed against him is a convincing circumstance that the Chowkidar was unwilling  to produce  it.  We are not impressed by the  argument  of  Mr. Sarjoo Prasad that the omission of the Chowkidar to  produce the  document in obedience to the summons and the  issue  of warrant  of  arrest to secure its production were  all  pre- arranged  to create an atmosphere for the acceptance of  the document  as  genuine. The appellant’s  lawyers  before  the Election Tribunal could not possibly have been sure that the Tribunal  would  in  the last resort  issue  a:  warrant  of arrest.  It is not likely that they would take such risk  so that’ the document might not come at all.     In our opinion, this document is genuine and is the book that  was maintained by the Chowkidar for noting the  births in  his  Ilaka  during the years 1934  to  1936.  The  entry

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therein  showing  the  birth of a son  to  Sarjoo  Singh  on October  15,  1935 can however be of’ no assistance  to  the appellant  unless this entry is admissible in evidence under the  Evidence  Act.  If  this entry had  been  made  by  the Chowkidar himself this entry would have been relevant  under s.  35  of  the  Evidence  Act.  Admittedly,  however,   the Chowkidar  himself  did not make it. Mr.  Agarwal  tried  to convince us that when an illiterate public servant is unable to  make  an  entry himself and he gets the  entry  made  by somebody else this should be treated as an entry made by the public servant.  This  argument must be rejected. The reason why  an entry made by a public servant in a public or  other official  book, register, or record stating a fact in  issue or  a relevant fact has been  made relevant is that  when  a public   servant  makes it himself in the discharge  of  his official  duty,  the  probability of  its  being  truly  and correctly recorded is high. That probability is reduced to a minimum  when the public servant himself is  illiterate  and has  to depend on somebody else to make the entry.  We  have therefore  come  to the conclusion that the  High  Court  is right  in holding that the entry made in an official  record maintained by the illiterate  Chowkidar, by somebody else at his request does not come within s. 35 of the Evidence  Act. It is not suggested that the entry is admissible in evidence under any other provision of the Evidence Act. The entry  in the   hath-chitha   has  therefore  to  be   left   out   of consideration   in   coming  to  a  conclusion   about   the appellant’s age.                                      Appeal allowed. L/P(D)5SCI-2,500-29-4-66---GIPS