Holding

The election of the respondent is void because he was not above 25 years of age on the date of filing his nomination, and the High Court’s finding to the contrary cannot be sustained.

Summary

The appellant challenged the election of the respondent to the Bihar Legislative Assembly on the ground that the respondent was under 25 years of age at the time of filing his nomination, violating Article 173(b) of the Constitution and Section 36(2) of the Representation of the People Act. The High Court dismissed the petition, holding the respondent’s age documents credible. On appeal, the Supreme Court examined the entire evidential record, including school registers, a bail application, a horoscope, and the report of the Chief Electoral Officer, and applied the burden‑of‑proof rules under the Indian Evidence Act. It held that the respondent failed to disclose facts within his special knowledge, that evasive denials in his written statement amounted to admissions, and that the school documents were not admissible under Section 35. Consequently, the Court found the respondent was indeed under‑aged, declared his election void, and set aside the High Court judgment.

Issues considered

Whether the election petition is maintainable under the Representation of the People Act.
Whether the respondent’s nomination was illegal because he was below the constitutional minimum age of 25 years.
Whether the election petition suffers from statutory defects as contemplated under the Representation of the People Act.
What relief, if any, is appropriate – setting aside the election or upholding it.
The allocation of the burden of proof in an election petition concerning age qualification.
The admissibility of school admission registers, transfer certificates, horoscope and bail application as evidence of age.
The effect of an evasive denial in the respondent’s written statement under Order VIII, Rules 3 and 5 of the Code of Civil Procedure.

Legislation cited

Code of Civil Procedures. Order VIII Rule 3, s. Order VIII Rule 5
Constitution of Indias. Article 173(b)
Indian Evidence Act, 1872s. 103, s. 106, s. 35, s. 58, s. 65
Representation of the People Act, 1951s. 146, s. 36(2), s. 83

Subjects

Election lawMinimum age qualificationArticle 173(b)Representation of the People ActBurden of proofElection petitionAdmissibility of evidenceEvasive denialCode of Civil Procedure

Judgment

A SUSHIL KUMAR
v.
RAKESH KUMAR

OCTOBER 16, 2003
B
[V.N. KHARE, CJ. AND S.B. SINHA, J.]

Constitution of India-Article I73(b)-Minimum age-Importance
of-Nomination of a candidate objected to on the ground of his being
under-aged-Duty of returning officer-Mandatory duty of the returning
C officer to make inquiry in respect of all objections raised-Election of an
under-aged candidate-Validity of-Held, election would be void even
though the nomination paper had been accepted-Representation of the
People Act-Section 36 (2).

D Indian Evidence Act, I872-Section I06-Burden of proof-Facts
especially within knowledge-Burden is on the person who has such
knowledge-Election petition-Age of a returned candidate-Should be
determined not only on the basis of the material placed but also
circumstances attending thereto-Certain facts which could show that the
E elected candidate was not below the prescribed age within the special
knowledge of the candidate-Elected candidate fails to disclose those
facts-Held, the candidate failed to discharge his burden-C.onstitution of
India-Article I73 (b).

F Indian Evidence Act, I 872-Section 35-Entry in public record-
Requirements of-Held, school admission register or transfer certificate do
not satisfy requirement of

Indian Evidence Act, I 872-Section 8-Conduct ofa party-Relevance
of-Elected candidate had filed a bail application in another case stating
G his age to be around I 4-Election challenged on the ground that, he was
below prescribed age-C.andidate claiming that age in bail application
was mentioned without his instruction and was not on affidavit....:....ifeld, in
absence ofany satisfactory explanation, court would presume the contents
ofapplication to be true-Representation ofthe People Act, 1951-Section
H 87.
802
SUSHIL KUMAR v. RAKESH KUMAR 803

Code of Civil Procedure-Order VIII Rules 3 and 5-Written A
Statement-Evasive denial-Effect of-Held, amounts to admission-Facts
so admitted need not be proved-Evidence contrary thereto cannot be
allowed to be /aid-Indian Evidence Act, 1872-Seetion 58.

Indian Evidence Act, I872-Section 65-Proof of document- B
Secondary evidence-Validity of-Witness claiming that the date of birth
of a person had been registered in the police register on the next day of
his birth-Register not produced-Held, an adverse inference can be
drawn that had the document been produced, the same would have gone
against the party.
c
Representation of the People Act, I95I-Sections 83-Election
petition-Pleadings-Interpretation of-Held, should be strictly construed

The appellant and the respondent filed nomination papers for
election to the Bihar Legislative Assembly. The last date for filing D
nomination paper was 31.1.2000 whereas the date of scrutiny of
nomination paper was 1.2.2000. Before the returning officer, the
appellant raised an objection that as the respondent was less than 25
years of age and therefore, not competent to contest elections in view
of· provisions of Article 173(b) of the Constitution of India. The
objection of the appellant was rejected by the returning officer. E
In the election, the respondent was declared elected.

The appellant filed an election petition before the High Court
challenging the election of the respondent on the ground that at the F
time of filing of nomination paper the respondent was not above the
age of 25 years as required under Article 173 (b) of the Constitution
of India. As per the appellant the date of birth of the respondent was
1.5.1981. To substantiate his case, the appellant contended :-

1. That the respondent was the son of one Shri Sakuni Choudhary G
and was variously known as Rakesh Ku alias Rakesh Kumar alias
Samrat Choudhary alias Samrat Chandra Mourya.

2. That the respondent had appeared in the secondary school
examination as Samrat Mourya son ofShakuni Choudhary in the year H
804 SUPREME COURT REPORTS (2003] SUPP. 4 S.C.R.

A 1996 and the certificate issued by the Bihar Secondary School
Examination Board stated his date of birth to be 1.5.1981.

3. That the respondent had been appointed as a Cabinet Minister
but on a complaint, the Governor of Bihar had directed an inquiry to
B be made in respect of the date of birth of the respondent. The inquiry
was conducted by the Chief Electoral Officer. Aft~r giving a hearing
to the respondent, he came to a finding that the respondent was below
25 years of age on the date of filing of the nomination paper. On the
basis of the report of the Chief Electoral Officer, the Governor had
C recommended that the respondent should be removed from the Ministry
and ultimately the respondent was so removed.

4. That in a criminal case in which the respondent had been
implicated, the respondent had filed a bail application stating his age
D to be about 14 years and also stating that he is a school going student.

5. That the elder brother of the respondent, Rajesh Kumar, as per
the record of the institution in which he was studying, was aged 22
years in the year 1999 and being younger, the respondent could not
have been more than 25 years of age on the date of filing of the
E nomination paper.

To the petition of the appellant, the respondent filed his written
statement in which he denied the allegations of the appellant. However,
the r~spondent did not specifically deny his alias names. In reply to the
F allegation that the elder brother of the respondent was aged! 22 years
in 1999, the respondent stated that Rajesh Kumar has been mentioned
as the elder brother of the respondent merely on imagination and that
the appellant had no knowledge about that and a wrong statement had
been made. In respect of the Governor's recommendation, the
G respondent contended that he had resigned from the post of Minister
few days before the completion of six months in view of the provision
of Article 164(4) of the Constitution of India. The respondent further
contended that the age mentioned in the bail application filed by him
was so mentioned without his instructio!l by his advocate. The court
H ultimately did not accept the contention of the respondent in respect
SUSHIL KUMAR v. RAKESH KUMAR 805

of his age. A
The respondent contended that his date of birth was 16.11.1968.
He produced his election identity card and the voters' list wherein his
age was shown to be 24 as on 1.1.1995. He also produced the school
admission register and transfer certificate issued by two schools in B
which he had allegedly studied to prove his date of birth. The
respondent also produced his horoscope. The respondent also examined
one 'E' who stated that the date of birth of the respondent was entere<l
in the register maintained in Police Station on the very next date of
his birth. The register was, however, not produced by the said witness. C

The High Court dismissed the petition of the appellant.

Allowing the appeal against the order of the High Court, the
Court
D
HELD : 1. The materials on record 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. [836-E) E
Relevance of the Prescribed Age

2.1. The Constitution of India, the Representation of the People
Act, 1951 and the rules made thereunder had been enacted to protect
the purity of the election. Article 173 of the Constitution of India F
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 G
inserted clause (b) in Article 173 so as to enable the voters to elect a
person who has attained majority and experience in life. Only a
matured and experienced person can represent the people and take
steps which would be beneficial to the electorates. [819-E-G)
H
806 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A 2.2. Section 36(2) of the Representation of the People Act, 1951
casts a mandatory duty on the returning officer to examine f:he
nomination papers and take a decision of 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 of the Constitution
B. of India has been fulfilled by the candidate or not. The effect of the
aforementioned provision is that a candidate is not qualified unless he
has attained the age specified in Article l 73(b) of the Constitution of
India on the date fixed for scrutiny of nominations. [819-H, 820-A)

Amritlal Ambalal Patel v. Himatbhai Gomanbhai Patel & Anr.,
C (1969) 1 SCR 277, referred to.
2.3. It is beyond any cavil that in the event a person is elected who
does not fulfil the constitutional requirements, the election would be
void despite the fact that the returning officer has accepted his
D nomination paper. Such a question indisputably would fall for
consideration in an election petition where the parties would be entitled
to produce evidence as in support of their respective cases. [820-B-D)

Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors., (19551
1 SCR 267 and Birad Mal Singhvi v. Anand Purohit, (1988) Supp. SCC
E 604, referred to.

2.4. The election Tribunal while determining and 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
F occupy an office for which he is disqualified under the Constitution.
The endeavour of the court shall therefore shoul<I 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
G election of the representative of the people is not set aside on flimsy
grounds but would also have a duty to see that "the c_onstitutioi?al
mandate is fulfilled. (836-C-D)

Burden of Proof

H 3.1. It is no doubt true the burden of proof to show that candidate
SUSHIL KUMAR v. RAKESH KUMAR 807
who was disqualified as on the date of the nomination would be on the A
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, 1872 the burden of proof as to any particular fact lies
on that person who wishes the court to believe in its existence, unless B
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 t~e 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 C
upon the nature of the dispute. (820-F-H, 821-A-B)

. Orissa Mining Corporation and Anr. v. Anand Chandra Prusty, AIR
(1997) SC 2274, referred to.
D
3.2. 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 E
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. Furthermore, and admission on the part of the party to the tis
shall be binding on him and in any event a presumption must be made
that the same is taken to be established. (821-C-E) F
Union of India and Ors. v. Sugauli Sugar Works (P) Ltd., [1976] 3
SCC 32 and Mis. Cox and Kings (Agents) Ltd. v. Their Workmen and Ors.,
AIR (1977) SC 1666, referred to.

School Admission Register and Transfer Certificate
G

4.1. 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 H
808 ~Uf>REME COURT REPORTS [2003) SUPP. 4 S.C.R.
A of the statement of any responsible person. [821-G-H]
Brij Mohan Singh v. Pri);a Brat Narain Sinha and Ors., AIR (Jl965)
SC 282; Birad Mal Singhvi v. Anand Purohit, [1988) Supp. SCC 604;
Chittaranjan Das v. Durgapore'Project Limited & Ors., 99 CWN 897 and
B Coal India Limited V; Arun Kumar Sinha & Ors., (1999] 1 SLR 151,
referred to. ·

4.2. The.High Court placed its needle ofsuspicion in relation to the
school admission register but sti.IJ proceeded to rely thereupon which
amounts to ~isdirection in law. Forgery in the school admission register
C has been done in a crude form. The school authorities must have used
some black space of the register for the year 1980 at the instance of the
respondent. No credence thereto can be given. [827-F, 827-E]

4.3. As the respondent only had special knowledge as to in which
D school did he study; he should have disclosed the same. The respondent
instead of disclosing the said facts took recourse to suppressio veri and
suggestio falsi. He produced documents which ·were apparently forged
and fabricated. [828-D, 829-A)

Punit Rai v. Dinesh Chaudhary, JT (2003) Supp. 1 SC 557, relied
E upon.
Whether Rajesh Kumar was the Elder Brother of the Respondent

5.1. (n terms of Order VIII Rule 3 of the Code of Civil Procedure,
F a defendant is r_"._qii'ired to deny or d~spute 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. U oder Section 58 of the Indian Evidence Act a
fact admitt~d need not be proved. Once it is held that the statements
made in tire election petition have not been specifically denied or dispute
G in the written statement, the allegations made therein would be deemed
to have been admitted. No evidence contrary thereto or inconsistent
therewith could have been permitted to be laid. [831-H, 832-A, 833-C)

Badat and Co. v. East India Trading Co., (1964] 4 SCR 19, .referred
H to.
SUSHIL KUMAR v. RAKESH KUMAR 809
5.2. In the written statement, in reply to contention of the A
appellant that the elder brother of the respondent was aged 22 years
as on 28.1.1999, the respondent has not specifically contended that the
statement made in 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 the B
alleged person was 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 the election
petition in this respect must, therefore, be deemed to have been
admitted. [832-A-C)
c
5.3. 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 D
statements had been made by some witnesses. [833-B-C)

5.4. The pleadings in an election petition must 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 E
petition may not be permitted. [835-C)

R.M Seshadri v. G. Vasantha Pai and Ors., AIR (1969) SC 692,
referred to.

Atlas Name of the Respondent
F

6. The respondent did not controvert the allegation that his alias
name was Samrat Choudhary. The legal principles contained in Order
VIII Rules 3 and 5 of the Code of Civil Procedure shall apply here.
The name of the respondent's father is the same, i.e. Shakuni Choudhary. G
DW 2 in his examination in chief itself admitted that Sam rat Choudhary
was the second son of Shakuni Choudhary. It may safely be concluded
that the respondent was also known as Sam rat Choudhary. The finding
of the High Court in this behalf is contradictory and inconsistent.
[824-E-F, 825-A-BJ H
810 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A Report of the Chief Electnral Officer and the Order of the Governor

7.1. The report of the Chief Electoral Officer had been marked
exhibit without any objection. The counsel for both the parties relied
thereupon and placed the findings recorded therein in extenso. The
parties cannot be permitted to rely upon a part of a document and at
B 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. (825-:C-D]

7.2. The report of the Chief Electoral Officer as also the order of
C the Governor never came to be questioned by the respondent. A person
against whom an allegation of violation of constitutional provision has
been made and who has taken Minister's berth without being prope1rly
qualified therefor, expectedly would question the said decision before
an approp~iate forum, if not for. the sake of 'the office but for
maintaining his own reputation in the public field. It will, thus, be safe
D to infer that the respondent accepted the report of the Chief Electoral
Officer and the order of. the Governor sub-silentio. [825-F, 826-B-D]

Electoral Roll and Identity Card

8. The electoral roll and the identity card issued ~y the Election
E Commission do not conclusively show that the respondent was major
in 1995. In both the documents the age of the respondent was stated
to be 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
F explained. (826-E-H)

Horoscope

9. The horoscope purported to have been filed by the respondent
does not inspire confidence. The horoscope, therefore, could not have
G been looked 'into by the High Court for any purpose whatsoever.
(829-E-F]

Bail Application

10.l. It is difficult to believe the contention raise on behalf of the
H r.espondent that the statements made in the bail application were made
SUSHIL KUMAR v. RAKESH KUMAR 811
without any instruction. The High Court is not correct in observing A
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. [830-A-CJ

10.2. Making a false statement before the Court whether on B
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 C
this behalf against the respondent. (830-H, 831-A)

10.3. 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 D
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. (831-B-CJ

ThiruJohn etc. v. The Returning Officer and Ors., [1977) 3 SCC 540,
referred to. E

Evidence of 'E'

11. Reliance placed on the witness of 'E' appears to be misplaced.
The register maintained in the Police Station should have been F
produced. Non-production of the said document would give rise to
drawal of adverse inference to the effect that had such document been
produced, the same would have gone· against the interest of the
respondent. (835-F-G)
G
National Insurance Co. Ltd., New Delhi v. Jugal Kishore and Ors.,
[1988) 1 sec 626, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8585 of
woo. H
812 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A From the Judgment and Order dated 7.8.2002 of the Patna High Court
in E.P. No. 3 of 2000.

Saiyad Uruj Abbas, Md. Akram and Sudhir Nandrajog for the
Appellant.

B Pranab Kumar Mullick for the Respondent.

The Judgment of the Court was delivered by

S.B. SINHA, J: This appeal under Section 116-A of the Representation
C of People Act, 1951 arises out of a judgment and order dated 7.8.2002
passed by the High Court of Patna in Election Petition No.3 of 2002
whereby and whereunder the election petition filed by the appellant herein
was dismissed.

D 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.

E 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.

F 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 nomin.ation paper being not above the age of 25
years as mandatorily required under Article l 73(b) of the Constitution of
India was not entitled to file his nomination.

G ELECTION PETITION:
In his election petition, the appellant, inter a/ia, 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
H of hearing to him, purported to be on the ground that such objection had
SUSHIL KUMAR r. RAKESH KUMAR (SINHA, J.] 813

been filed in relation to one Rakesh Kumar alias Samrat Choudhary while A
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 B
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 C
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.44of1995 wherein an application
for bail was filed by him or on his behalf on 20.4.1995 before the Chief D
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 E
aged 22 years in the year 1999 and, thus, he could not be aged 25 years
on the date of filing of i:he nomination paper.

WRITTEN STATEMENT :

On the other hand, the respondent in his written statement denied and F
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.l l.1968 anJ in support G
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.l l.1983 whereas he·was admitted in H
814 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A 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 :

B 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 fonn?

c 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
D People Act?

iv) What relief, if any, the election petitioner is entitled
to?"

E 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.

F 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,
G 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.

H iii) The age recorded of Samrat Chandra Morya son of Shakuni
SUSHIL KUMAR v. RAKESH KUMAR [SINHA, J.] 815
Choudhary as 1.5 .1981 in the application fonn for appearing A
in the examination of Secondary School Annual Examination,
1996 as per Ext.6 and Ext.611.

iv) Minority mentioned in the bail petition moved for and on
behalf of the respondent Rakesh Kumar, Ext. 2, 2/A and B
2/A/l.

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
c
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. D

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 E
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.
F
(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 G
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. H
816 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A (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,
B thus, such plea cannot be taken seriously for debarring a person ~
contemplated under Article l 73(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.
c
(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
D
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
E 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... "

F (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 annex7d to show that
in the year 1995 he became eligible to vote.

SUBMISSIONS :

G Mr. S.U. Abbas, learned counsel appearing on behalf of the appellant
would, inter alia, submit that the respondent was having four !lames,
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
H must 6e considered in the light of the finding of the Governor of the State
SUSHIL KUMAR v. R~KESH KUMAR [SINHA, J.] 817

of Bihar wherein in no uncertain.tenns it was held that the respondent's A
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 B
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,
c
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 D
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 E
on Badat and Co. v. 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 F
in relation thereto, must be held to have committed a manifest error in
relying thereupon. The learned counsel would urge that as OW 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 G
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. H
818 SUPREl'vtE COURT REPORTS (2003] SUPP. 4 S.C.R.
A As regard horoscope of the respondent (Ext.C), the learned couns(~I
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
. B 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
C 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.

D 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
E 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.
F 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 disdosed by 1he
respondent was not accepted by the Chief Electoral Officer only on the
ground that the transfer certificate as also the horoscope had not been
G 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 ofthe People Act, the Chief Electoral Officer can make
an inquiry for the purpose of ascertaining as to whether a member suffers
H from disqualification or not but no inquiry is contemplated for the purpose

~
I
SUSHIL KUMAR v. RAKESH KUMAR [SINHA, J.] 819

of unseating the elected member on the ground that he was unqualified A
therefor. In that vie·.v 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 B
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 u11der which such
application was made, had rightly been not accepted by the High Court as
a proof of age of the respondent.
c
As regard the age ofRohit 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 ofDW 3, Md. Ekramul Haque, D
it was argued that the said witness had been examined to show that the
respondent was 33 years old as on 17. l.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 : E
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 F
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 G
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 H
820 SUPREME COURT REPORTS (2003] SUPP. 4 S.C.R.
A .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 aforementi~ned 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 Amritl~l Ambalal Patel v.
B. Himatbhai Gomanbhai Patel & Another, (1969] I 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 v. Thakur Raghuraj Singh and Others, (1955]
C I 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 v. Anand
D Purohit, (1988] Supp. sec 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
E 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 : ·

p 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 ~lected candidate has wrongly been accepted is on the election
G petitioner.

In terms of Section I 03 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
H the proof of that fact shall lie on any particular person.
SUSHIL KUMAR v. RAKESH KUMAR [SINHA, J.] 821

Furthermore, in relation to certain matters, the fact being within the A
special knowledge of the respondent, the burden to prove the same would
be on him in tenns 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 v. Ananda Chandra Prusty, B
AIR (1997) SO 2274.

The age of a person, in an election petition has to be detennined not
only on the basis of the materials placed on records but also upon taking
into consideration the circumstances attending thereto. The initial burden C
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 D
[See Union of India and Others v. Sugauli Sugar Works (P) Ltd., [1976]
3 SCC 32, (Para 14) and Mis Cox and Kings (Agents) Ltd. v. Their
Workmen and Others, AIR (1977) SC 1666, (Para 36)]. Furthennore, 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. E

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 F
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 G
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. H
822 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A In Brij Mohan Singh v. 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.
B 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 :
c
" ... To render a document admissible under Section 35, three
conditions must be satisfied, firstly, entry that is relied on rnust
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
D
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
ofthe Act but the ent1y regarding to the age ofa person in a school
register is of not much evidentiary value to prove the age of the
E person in the absence ofmaterial on which the age was recorded..."

In Chittaranjan Das v. Durgapore Project Limited & Ors., [99 CWN
897], it was held

"Thus, in absence of the primary material on the basis
F
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."
G
The said principles were reiterated in Coal India Limited v. Arun
Kumar Sinha & Others, (1999) l SLR 151.

THE CERTIFICATE ISSUED BY THE BIHAR SCHOOL EXAMINATION
H BOARD:
SUSHIL KUMAR v. RAKESH KUMAR [SINHA, J.] '823

The appellant contended that the respondent was also known as A
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: B
"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 C
mentioned in the SI. 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.
D
Name of th.e School K.N.V.M. H.S. KUMARSAR
Name of candidate SAMRAT CHANDRA MOURYA
Father's name SHAKUNICHOUDHARY
Date of Birth 01.05.81 (First May eighty one) E
Result Fail
Total Marks 268
Category private"
F
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.
G
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 H
1..•

824 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A Sri Shakuni _Cho~dhary is the same person who has filed his
nomination paper for the election as member of Bihar Legislative
Assembly from l. 81 Parbatta Assembly Constituency and has been
declared elected by the Returning Officer, Gogari, he was ~arlier
one of the Ministers in the Government of Bihar in the reign of
Rastriya Janta Dal Government and was dismissed from the
B
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 :
c
"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 o; ~
E 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 Choucipary but despite the same
F he as also his father Shakuni Choudhary in their depositions denied and
disputed that the respondent had an alias name ofSamrat Choudhary. The
legal principles contained in Order VIII, Rules 3 and 5, which would be
discerned herein a little later shall apply h~rein.

Even if it be assumed to be correct that the appellant has not been·
G able to conclusively show that the respondent was also known as Samrat
Chandra Mourya but the name of the responde~t'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
H petition the same address has.been disclosed. •
SUSHIL KUMAR v. RAKESH KUMAR [SINHA, J.] 825

DW 2 in his examination in chief itself admitted tha1' Samrat A
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 B
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 C
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 D
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 purpo!:e (i) that an inquiry had been made as regard the
underage of the respondent; (ii) in said inquiry the respondent was given E
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.
F
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 Schcol and Swami Vivekananda G
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 H
826 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A 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
B 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
C 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,
D 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
E 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
F 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
pr9ceeded on the basis that these documents go to show that the respondent
was major on that day. It is conceded by Mr. f'1ullick, 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
G Election Commission of India is not conclusive. They are recorded as per
the statements made by the persoo 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 docu~ents · do not conclusively show that the
H respondent was major on that day.
SUSHIL KUMAR v. RAKESH KUMAR (SINHA, J.] 827

ANALYSIS OF THE EVIDENCE : A
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 SI. No. 320. The guardians including that of the respondent purported
to have signed in English. A bare perusal of the said register would show B
that entries have been made by one person with two different pens in one
sitting. It is curious to note that the entries at SI. 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 C
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 SI. 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 D
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 E
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.
F
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 G
·, 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 H
828 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A 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
B 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
C 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
D 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 v. Dinesh Chaudhary, JT (2003) Supp.I SC 557, it js
E 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
F
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
G in Ba/wan Singh v. Lakshmi Nrain and Ors, AIR (1960) SC 770.
This case also relates to election matter and it was held that facts
which are iri 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
H be in the knowledge of the petitioner, such facts need not and
SUSHIL KUMAR v. RAKESH KUMAR [SINHA, J.] 829

cannot be pleaded in the petition." A
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 averaged. The High B
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.
c
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 D
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:
E
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, F
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 G
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 fiJed in a case in H
830 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A 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 appl.ication 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
B in April 1995. If the date of birth as disclosed by the appellant is co1Tect,
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
C 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.

D Furthennore, 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
E is cons-idered 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. v. The Returning Officer and Others, [1977] 3
sec 540, the law is stated in the following terms :
F "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
G admits to be true may reasonably be pre~umed to be so and until
the presumption was rebutted the fact admitted must be taken to
be established"."

Even otherwise making a fa\se statement before the court whether on
H affidavit or not is not to be treated lightly. The court acts on the basis of
SUSHIL KUMAR v. RAKESH KUMAR [SINHA, J.) 831

the statement made by a party to the !is. Whether such defence has been A
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
respond.ent.

Furthermore, a person should not be permitted to take advantage of B
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. C
ROHJT KUMAR @ RAJESH KUMAR :

The contention of the appellant in this behalf assumes significance
in the peculiar facts and circumstances of the case.
D
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 ofB.I.T. Meshra School where he got his age recorded E
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 F
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 G
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. H
832 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A 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 contencted that the statements made in paragraph 18 of the
election petition are incorrect or how they are so. Merely the said
B allegations have been denied as being imagination of the election petitioner
without making a statement of fact that Roh it 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
c been admitted. The Birla Institute of Technology, Mesra, has produced
r:
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)
D observed: ,

"Sri Rakesh Kumar has not denied that his elder brother is a
student ofBirla 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
E 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 l.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
F 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 :

G " .. .It is true that it has not been specifically stated in the reply to
paragraph 18 of the election petition that Rajesh-Kumar haJ?pens
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
H by any cogent evidence from the side of the election petitioner
SUSHIL KUMAR v. RAKESH KU°MAR [SINHA, J.] 833
., that Rajesh Kumar happens to be the elder brother of the
. respondent Rakesh Kumar rather when contrary evidence is there
A
from the side of the respondent then the age group ofRohit Kumar
@ Rajesh Kumar does not come in aid to the election petitioner
to pro»'e the underage of Rakesh Kumar the respondent."
B
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 C
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.
D
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 E
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 F
admission itself being proof, no other proof is necessary. The first
paragraph ofr. 5 is a re-production of 0. 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 G
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 H
834 SUPREME COURT REPORTS (2003] SUPP. 4 S.C.R.

A 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
B
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
c 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
D 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
E 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 :
F
"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 I-
to the allegation of substance, namely that there was a bribe. In
G 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
(\H allegations contained in the previous pleadings without stating the
SUSHIL KUMAR v. RAKESH KUMAR [SINHA, J.] 835
circumstances. As far as I am concerned, I mean to give the fullest A
effect to that rule. I am convinced that it is one ~f 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. B
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 C
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 v. G. Vasantha Pai and Others, AIR (1969) SC 692, D
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 ... " E
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 F
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 G
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 v. Jugal Kishore and H
836 SUPREME COURT REPORTS (2003] SUPP. 4 S.C.R.
A Others, (1988] 1 sec 626, this Court stated the law thus:

"This Court has consistently emphasized that it is the duty of the
party which is in p()ssession of a do.:ument 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
B abstract doctrine of burden of proof."

CONCLUSION:

The election Tribunal while determining an issue of this natiire has
C to bear in mind that Article l 73(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
D 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
E 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.

F 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
ComMissioll'and the Speaker of the Bihar Legislative Assembly and further
G a certified copy of the decision be sent to the Election Commission
forthwith. There shall be no order as to costs.

B.K.M. Appeal allowed.