Brij Mohan Singh Vs. Priya Brat Narain
Sinha & Ors  INSC 28 (5 February 1964)
05/02/1964 GUPTA, K.C. DAS GUPTA, K.C. DAS
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
AYYANGAR, N. RAJAGOPALA
CITATION: 1965 AIR 282 1965 SCR (3) 861
R 1970 SC 326 (11,12) R 1983 SC 684 (53) RF
1988 SC1796 (16)
Evidence Act (1 of 1872)--S. 35--Entry in
official Record maintained by illiterate person by some one else at his
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 Govern papers
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
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 or 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
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.
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 someone 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 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.