# BRU MOHAN SINGH v. PRIYA BRAT NARAIN SINHA AND ORS

- **Citation:** [1965] 3 S.C.R. 861
- **Court:** Supreme Court of India
- **Decided:** 1964-02-05
- **Case number:** Civil Appeal No. 9 of 1964
- **Bench:** P. B. GAJENDRAGADKAll, K. N. Wanchoo, K. C. Das Gupta, J. C. Shah, N. Rajagop.Ala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bru-mohan-singh-v-priya-brat-narain-sinha-and-ors-3468
- **Pages:** 4

## Headnote

Evidence Act (1 of 1872)-S. 35-Entry in official R.ecord maintained by illiterate person by some one else at his request-Admissibility.
· The appellant and respondent were rival candidates for election
to the Bihar Legislative Assembly. The appellant obtained a majority
of votes and was declared elected. This election 'was challenged by
the respondent on the ground that the appellant had not attained
the age of 25 years on the date of filing the nomination papers and
was on that account disqualified under Art. 173 of the Constitution
from being a member of the Assembly; that he held subsisting contracts under the Bihar Government in his individual and personal
capacity and was thus disqualified under s. 7(d) of the Representation of the People Act and that he and his party-men were directly
responsible for publication and distribution of
copies of
l€aflets
entitled qBagula Neta Se Hoshiar"
containing direct insinuafions
and aspersions against the personal character of the respondent, those
being false to the knowledge of the appellant.
The Election Petition was dismissed by the Election Tribunal.
The respondent appealed to the High Court. The High Court came
to the conclusion that the allegation that the appellant held Governpapers and that the appellant was guilty of a corrupt practice in
the appeal and set aside the election of the appellant on the ground
that he was below the age of 25 on the date of filing the nomination
papers and that the appellant was guilty of a corrupt practice in
that he had published the offending leaflets. With certificate of fitness
granted by the High Court the appellant appealed to this Court.
Allowing the appeal:
HELD: (i) The burden of proving that appellant had not attained the age of 25 years on the date of his nomination was on the
respondent and he had failed to prove that and hence the election of
the appellant could not be set aside on that ground.
The entry made in an official record maintained by an illiterato
Chowkidar, by somebody else at his request, does not come within;
Section 35 of the Evidence Act.
(ii) The respondent had not been able to prove the publication
of the leaflets by the appellant or his agent or by any other person
with the consent of the appellant or of his election agent, and hence
the Election Tribunal was right in coming to the conclusion that
the commission of any corrupt practice by appellant under s. 123 ( 4)
had not been proved.
861
862
SUPREME COURT REPORTS
(1965] 3 S.C.R.

## Text

A
B
D
E
F
G
H
BRU MOHAN SINGH
v.
PRIYA BRAT NARAIN SINHA AND ORS.
February 5, 1964
[P. B. GAJENDRAGADKAll, C.J., K. N. WANCHOO, K. C. DAS GUPTA,
J. C. SHAH AND N. RAJAGOP.ALA AYYANGAR, JJ.]
Evidence Act (1 of 1872)-S. 35-Entry in official R.ecord maintained by illiterate person by some one else at his request-Admissibility.
· The appellant and respondent were rival candidates for election
to the Bihar Legislative Assembly. The appellant obtained a majority
of votes and was declared elected. This election 'was challenged by
the respondent on the ground that the appellant had not attained
the age of 25 years on the date of filing the nomination papers and
was on that account disqualified under Art. 173 of the Constitution
from being a member of the Assembly; that he held subsisting contracts under the Bihar Government in his individual and personal
capacity and was thus disqualified under s. 7(d) of the Representation of the People Act and that he and his party-men were directly
responsible for publication and distribution of
copies of
l€aflets
entitled qBagula Neta Se Hoshiar"
containing direct insinuafions
and aspersions against the personal character of the respondent, those
being false to the knowledge of the appellant.
The Election Petition was dismissed by the Election Tribunal.
The respondent appealed to the High Court. The High Court came
to the conclusion that the allegation that the appellant held Governpapers and that the appellant was guilty of a corrupt practice in
the appeal and set aside the election of the appellant on the ground
that he was below the age of 25 on the date of filing the nomination
papers and that the appellant was guilty of a corrupt practice in
that he had published the offending leaflets. With certificate of fitness
granted by the High Court the appellant appealed to this Court.
Allowing the appeal:
HELD: (i) The burden of proving that appellant had not attained the age of 25 years on the date of his nomination was on the
respondent and he had failed to prove that and hence the election of
the appellant could not be set aside on that ground.
The entry made in an official record maintained by an illiterato
Chowkidar, by somebody else at his request, does not come within;
Section 35 of the Evidence Act.
(ii) The respondent had not been able to prove the publication
of the leaflets by the appellant or his agent or by any other person
with the consent of the appellant or of his election agent, and hence
the Election Tribunal was right in coming to the conclusion that
the commission of any corrupt practice by appellant under s. 123 ( 4)
had not been proved.
861
862
SUPREME COURT REPORTS
(1965] 3 S.C.R.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9 of 1964.
A
Appeal from the judgment and order dated September 9, 1964
of the Patna High Court in Election Appeal No. 2 of 1963.
C. B. Agarwala, L.M. Sarma and D. N. Mukherjee, for the
appellant.
B
Sarjoo Prasad and K. K. Sinha, for the respondent No. I.
The Judgment of the Court was delivered by
Dass Gupta, J, The appellant Brij Mohan Singh and the res- o
pondent Priya Brat Narain Sinha were among the candidates who
contested the Aurangabad Constituency seat for the Bihar Legislative Assembly at the General Election held in 1962. The polling
took place on February 21, 1962. The appellant received a majority
of votes and was declared elected. The respondent Priya Brat Babu
who was the sitting member was defeated on April 9, 1962, he filed D
a petition challenging the validity of the appellant's election. He
prayed for ;i declaration that the election of the appellant Brij
Mohan Singh be declared void and that he (Priya, Brat Narain
Sinha) be declared to have been duly elected to the Bihar Legislative Assembly from the Aurangabad Constituency. Among the
grounds on which the appellant's election was challenged were these
E
three:-
([) That the appellant was born on October 15, 1937 and
was thus under 25 years of age on the date of filing the
nomination papers and therefore disqualified under Art.
137 of the Constitution from being a member of the
Bihar Legislative Assembly;
(2) That he held subsisting contracts under the Bihar Government in his individual and personal capacity and
was thus disqualified under s, 7 (d) of the Representation of the People Act;
(3) That the appellant, and with his consent, his party-men
Rameshwar Prasad Singh and others (whose names are
mentioned) were directly responsible for publication
F
G
and distribution of copies of leaflets containing direct
insinuations and aspersions against the respondent's
personal character, these being false to the knowledge
H
of the appellant.
The Election Tribunal held on a consideration of the oral and
documentary evidence produced before it that none of these or
the other grounds on which the validity of the election was challenged had been established. Accordingly, the Tribunal dismissed
the petition.
{
,
r
,
lJIUJ !llOHAN v. PRIYA llRA'l' (Das Gupta, J.}
863
A
On appeal, the High Court of Judicature at Patna set aside
the judgment and order of the Election Tribunal and made an order
setting aside the election of the appellant Brij Mohan Singh to
the Bibar Legislative Assembly. The High Court however retused
the respondent's prayer to be declared duly elected.
B
Against this order of the High Court the present appeal has
been preferred on a certificate grantd by the High Court under
Art. !33(1)(b) of the Constitution.
The only grounds that appear to have bern pressed before the
High Court were the three which we have mentioned above. The
C High Court agreed with the Election Tribunal that the allegation that
the appellant held a contract under the Government in his personal
capacity had not been established. As regards the other two grounds
the High Court disagreed with the Election Tribunal. The High
Court held that the appellant, was below the age of 25 years on
the date of filing the nomination and was therefore not qualified
D
to be a candidate for the Bihar Legislative Assembly. The High
Court also held that the appellant had published a leaflet Ex. 10
containing attacks upon the personal character of the respondent
and was thus guilty of a corrupt practice within the meaning i°f
s. 123(4) of the Representation of the People Act.
As already
E
stated, the High Court set aside the election of the appellant.
\
The findings of the High Court on the question of age and
also on the question of publication of the document Ex. 10 have
been challenged before us. It was also urged that in any case the
pamphlet Ex. IO did not amount to an attack on the personal
1
character of the respondent.
G
!After considering the evidence his Lordship concluded
that it was not proved that the appellant had committed
any corrupt practice or that he was below twenty-five years
on the date of filing of nomination papers. On the question
wh:~er an entr)'. made in an official record maintained by
an dhterate pubhc servant, by some one else at his request
1s relevant under s. 35 of the Evidence Act his Lordship
held: I
On an examination of the physical appearance on the hathB
chitha and the entries made therein, the evidence of the Chowkidar
and the circumstances under which this document was ultimately
produced before the Tribunal we are inclined to agree with the
view of the Election Tribunal that this is a
genuii'.Ie document
which was m'aintained by the Chowkidar in the discharcre of his
•
official duty. If the document had been manufacture:! to ~ssist the
appellant we do not think it likely that the Chowkidar would have
refused to produce it readily when summoned to do so. The fact
864
SUPREME COURT REPORTS
[1965] 3 s.c.a.
that a warrant of arrest had to be executed against him is a convincing circumstance that the Chowkidar was unwilling to produce
it. We are not impressed· by the argument of Mr. Sarjoo Prasad
that the omission of tHe Chowkidar to produce the document in
obedience to the summons and tJie issue of warrant of arrest to
secure its production were all pre-arranged to create an atmosphere
for the acceptance of the document ,as _genuine. The appellant's
lawyers before the Election Tribunal could not possibly have been
sure that the Tribunal would in the last resort issue a warrant of
arrest. It is not likely that they would take such risk so that the
document might not come at all.
A
B
In our opinion, this document is genuine and is the book that 0
was maintained by the Chow.kidar for noting the births in his Baka
during the years 1934 to 1936. The entry therein showing the birth
of a so.n to Sarjoo Singh on October 15, 1935 can however be of
no assistance to the appellant unless this entry is admissible in
evidence under the Evidence Act. If this entry had been made by
the Chowkidar himself this entry would have been relevant under D
s. 35 of the Evidence Act. Admittedly, however, the Chowkidar
himself did not make it. Mr. Agarwal tried to convince us that
when an illiterate public servant is unable to make an entry himself and he gets the entry made by somebody else this should be
treated as an entry made by the public servant. This argument
E
must be rejected. The reason why an entry made by a public serHnt in a public or other official book, register, or record stating
I
a fact in issue or a relevant fact has been made relevant is that
I
when a public servant makes it himself in the discharge of his
official duty, the probability of its being truly and correctly recorded is high. That probability is reduced to a minimum when the
F
public servant himself is illiterate and has to depend on somebody
else to make the entry. We have therefore come to the conclusion
that the High Court is right in holding that the entry made in an
official record maintained by the illiterate Chowkidar, by somebody else at his request does not come within s. 35 of the Evidence
Act. It is not suggested that the entry is admissible in evidence
G
under any other provision of the Evidence Act. The entry in the
/11rh-chitha has therefore to be left out of consideration in coming
tc> a conclusion about the appellant's age.
Appeal allowed.
I,/P(D)5SCr -2,.500 ·-29-4-66--GI!'S
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