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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 The candidature  could be withdrawn by 3.2.2000.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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