Case Note & Summary
The dispute arose from the election to the Aurangabad constituency of the Bihar Legislative Assembly held in 1962. Brij Mohan Singh, the appellant, was declared elected after receiving a majority of votes. Priya Brat Narain Sinha, the respondent, who was the sitting member and was defeated, filed an election petition challenging the appellant's election on several grounds. The respondent sought a declaration that the appellant's election be void and that he himself be declared duly elected. The grounds included that the appellant was born on 15 October 1937 and hence was under 25 years on the date of filing nomination papers, disqualifying him under Article 173 of the Constitution; that he held subsisting contracts under the Bihar Government, disqualifying him under Section 7(d) of the Representation of the People Act; and that he and his party-men were responsible for publishing and distributing leaflets containing false insults to the respondent's personal character, constituting corrupt practice under Section 123(4). The Election Tribunal dismissed the petition after considering the evidence, holding that none of the grounds had been established. The respondent appealed to the Patna High Court, which set aside the Tribunal's order and declared the appellant's election void on two grounds: that the appellant was below 25 years of age and that he had published a defamatory leaflet. The High Court refused the respondent's prayer to be declared elected. The appellant then appealed to the Supreme Court with a certificate under Article 133(1)(b) of the Constitution. The main legal issues before the Supreme Court were whether the appellant was disqualified by age, whether an entry in a register maintained by an illiterate chowkidar but written by another person was admissible under Section 35 of the Evidence Act, and whether the appellant had committed corrupt practice by publishing the leaflet. The appellant's counsel argued that an entry made by someone else at the request of an illiterate public servant should be treated as an entry by the public servant under Section 35. The respondent's counsel argued that the chowkidar's failure to produce the document and the issue of a warrant of arrest were pre-arranged to create an atmosphere of genuineness. The Supreme Court disagreed with the appellant's argument, holding that the entry could not be treated as made by the chowkidar because the reliability of an official entry depends on the personal act of the public servant; when the public servant is illiterate and relies on another, the probability of correctness is minimal. The Court found the hathchitha genuine but concluded that the entry was inadmissible under Section 35 and no other evidence proved the appellant's underage status. On the corrupt practice ground, the Court found that the respondent had failed to prove publication by the appellant or his agent or with his consent. Accordingly, the Supreme Court allowed the appeal, set aside the High Court's judgment, and restored the Election Tribunal's dismissal of the election petition, thereby upholding the appellant's election.
Headnote
A) Evidence Law - Public Documents - Section 35 Evidence Act, 1872 - Entry in Official Record Maintained by Illiterate Public Servant but Written by Another at His Request - The entry does not come within Section 35 because the high probability of correctness arises only when the public servant makes the entry himself in discharge of official duty; when the public servant is illiterate and depends on someone else to write, that probability is reduced to a minimum. The court examined the physical appearance of the hathchitha, the chowkidar's evidence, and the circumstances of production, and concluded that although the document was genuine and maintained in official duty, the entry showing birth date could not be admitted as evidence of the appellant's age. Held that the entry made by another at the request of an illiterate chowkidar was inadmissible under Section 35. (Paras Not mentioned) B) Election Law - Qualification of Candidate - Article 173 Constitution of India - Age of 25 Years on Date of Filing Nomination - The burden of proving that the appellant had not attained 25 years on the nomination date lay on the respondent. With the inadmissible entry excluded, no other evidence proved the appellant's date of birth as 15 October 1937; therefore, the ground of age disqualification failed. The Supreme Court reversed the High Court's finding that the appellant was underage because the only evidence relied upon was inadmissible. Held that the election could not be set aside on the ground of age. (Paras Not mentioned) C) Election Law - Corrupt Practice - Section 123(4) Representation of the People Act, 1951 - Publication of Defamatory Leaflet - The respondent had to prove that the appellant or his agent or any person with the consent of the appellant or his election agent published the offending leaflets. The court found no such proof; the High Court's conclusion that the appellant had published leaflet Ex. 10 was not supported by evidence. The appellant's contention that the pamphlet did not amount to an attack on personal character also supported the absence of corrupt practice. Held that no corrupt practice under Section 123(4) was established and the High Court's finding was reversed. (Paras Not mentioned)
Issue of Consideration
Whether the appellant was below 25 years of age on the date of filing nomination papers and thus disqualified under Article 173 of the Constitution; whether an entry in an official register maintained by an illiterate chowkidar but written by another at his request was admissible under Section 35 of the Evidence Act; whether the appellant committed corrupt practice under Section 123(4) of the Representation of the People Act by publishing a defamatory leaflet.
Final Decision
Supreme Court allowed the appeal, set aside the judgment and order of Patna High Court, and restored the Election Tribunal's dismissal of the election petition. The appellant's election to Bihar Legislative Assembly was upheld.
Law Points
- Burden of proving age disqualification lies on election petitioner
- entry in official record made by another at request of illiterate public servant not admissible under Section 35 Evidence Act
- publication of corrupt practice leaflet must be proved against candidate or agent
- public document reliability depends on personal entry by public servant
