Sushil
Kumar Vs. Rakesh Kumar [2003] Insc 526 (16 October 2003)
Cji
& S.B. Sinha.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 The candidature could be withdrawn by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.
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?"
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.
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 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.
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:
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 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..."
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 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
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 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 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 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 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 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 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], 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.
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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