# SUSHIL KUMAR v. RAKESH KUMAR - **Citation:** [2003] Supp. 4 S.C.R. 802 - **Court:** Supreme Court of India - **Decided:** 2003-10-16 - **Case number:** Election Petition No.3 of 2002 - **Bench:** V.N. Khare, S.B. Sinha - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sushil-kumar-v-rakesh-kumar-19435 - **Pages:** 35 ## Headnote 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 recordRequirements of-Held, school admission register or transfer certificate do not satisfy requirement of Indian Evidence Act, I 872-Section 8-Conduct of a 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....:....if eld, in absence of any satisfactory explanation, court would presume the contents of application to be true-Representation of the 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. Representation of the People Act, I95I-Sections 83-Election petition-Pleadings-Interpretation of-Held, should be strictly construed c 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 bu ## Text _Characters 0–39,983 of 74,403. This is a partial read: ask again with offset=39983 for what follows._ 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 recordRequirements of-Held, school admission register or transfer certificate do not satisfy requirement of Indian Evidence Act, I 872-Section 8-Conduct of a 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....:....if eld, in absence of any satisfactory explanation, court would presume the contents of application to be true-Representation of the 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. Representation of the People Act, I95I-Sections 83-Election petition-Pleadings-Interpretation of-Held, should be strictly construed c 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. E 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 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 entereREME 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 of suspicion 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) 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 c 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 referred to. ThiruJohn etc. v. The Returning Officer and Ors., [1977) 3 SCC 540, 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) 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 G 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 B in E.P. No. 3 of 2000. Saiyad Uruj Abbas, Md. Akram and Sudhir Nandrajog for the Appellant. 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 : c D "i) Whether the election petition is maintainable in the present fonn? ii) Whether the nomination of the sole respondent was accepted illegally although he was under qualified as alleged in the election petition? iii) Whether the election petition suffers from statutory defects as contemplated under the Representation of People Act? iv) What relief, if any, the election petitioner is entitled to?" 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 G H brought on records were divided by the High Court in the following seven categories : i) Order of His Excellency the then Governor of the State of Bihar and the report of the Chief Electoral Officer, Bihar, which have been marked as Exhibit-4 and Exhibit-8/A. ii) The age records of Rohit Kumar son of Sri Shakuni Choudhary such as Ext.5, Ext.5/1 and Ext.5/2. iii) The age recorded of Samrat Chandra Morya son of Shakuni 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 c Junior School, Ext.D and the transfer certificate from Vivekananda Vidyalaya, Mithapur, Ext.I. vii) Certified copy of electoral roll for the year 1995, Ext.E and the identity card of Rakesh Kumar issued by the Election Commission of India, Ext.F. 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. c D E F (v) Although the horoscope has not been proved by the maker thereof but as the same was marked without objection, the same can be taken as a supporting evidence. (vi) Although no reliance was placed as regard "Ext. I; as regard Ext. D, namely, the Admission Register maintained by New St. Xaviers Junior School, it was held : " ... Regarding the Admission Register at New St. Xaviers Junior School, the same has been proved by Mrs. Reshmi Kumari, D.W.7, who happens to be the in charge Principal of that school., Although from the seriality and the other entries maintained in the register some· question marks are there but .on. the face of the records it appears that against the entry no.312 wherein the name of the respondent was being entered with all its particulars including the date of birth being verified by the father of the respondent who put his signature acknowledging the veracity of the particulars being recorded under that serial number ... " (vii) Although Ext. E and Ext. F are not of much help in construing the actual date. of birth of the respondent but they are 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, 5. That the petitioner is below 16 years;" the same was sufficient to prove the underage of the respondent. c 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 VicePrincipal 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. 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. c 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 G 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 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.