Brij Mohan Singh vs Priya Brat Narain Sinha And Ors

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 9 of 1964

Decision Date: 5 February 1964

Coram: K.C. Das Gupta, P.B. Gajendragadkar, K.N. Wanchoo, J.C. Shah, N. Rajagopala Ayyangar

On 5 February 1964 the Supreme Court of India delivered a judgment in the election dispute between Brij Mohan Singh and Priya Brat Narain Sinha with other respondents. The judgment was authored by Justice K.C. Das Gupta and the bench was composed of Justices K.C. Das Gupta, P.B. Gajendragadkar, K.N. Wanchoo, J.C. Shah and N. Rajagopala Ayyangar. The case is reported in 1965 AIR 282 and in the Supreme Court Reporter at 1965 SCR (3) 861, and it has subsequently been cited in later Supreme Court reports. The matter concerned an election to the Bihar Legislative Assembly and involved the application of Article 173 of the Constitution, section 7(d) of the Representation of the People Act and section 35 of the Evidence Act of 1872, which deals with the admissibility of an entry in an official record made by an illiterate person at the request of another.

The factual backdrop was that both the appellant and the respondent contested the Aurangabad constituency in the 1962 general election for the Bihar Legislative Assembly. The polling took place on 21 February 1962 and Brij Mohan Singh obtained a majority of the votes and was declared elected, defeating the sitting member, Priya Brat Narain Sinha, who thereafter filed an election petition on 9 April 1962. The petition alleged three grounds for disqualification: first, that the appellant was under twenty‑five years of age on the date he filed his nomination papers, which would render him ineligible under Article 173; second, that he held contracts with the Bihar Government in his personal capacity, constituting disqualification under section 7(d) of the Representation of the People Act; and third, that he and his party workers were directly responsible for publishing and distributing leaflets titled “Bagula Neta Se Hoshiar”, which contained false and defamatory insinuations about the respondent’s character, thereby constituting a corrupt practice under section 123(4). The Election Tribunal dismissed the petition, but the High Court of Patna reversed that decision, finding the appellant guilty of the corrupt practice and concluding that he was under the required age, and consequently set aside his election. The appellant obtained a certificate of fitness from the High Court and appealed to this Court.

The Supreme Court, after hearing the appeal, allowed it and set out its reasoning. Firstly, the Court held that the onus of proving that the appellant had not attained the age of twenty‑five on the date of filing his nomination lay with the respondent, and the respondent failed to discharge that burden; consequently, the election could not be nullified on the age ground. Secondly, the Court examined the entry made in an official record by an illiterate chowkidar at the request of another person and determined that such an entry did not fall within the ambit of section 35 of the Evidence Act, and therefore could not be admitted as proof. Thirdly, the Court found that the respondent was unable to establish that the appellant, his agents, or any other person, with the appellant’s consent, had published the contested leaflets; as a result, the Election Tribunal’s conclusion that no corrupt practice under section 123(4) had been proved was affirmed. In sum, the Court dismissed the respondent’s allegations and restored the appellant’s election.

In this appeal, the Court observed that the Election Tribunal was correct in concluding that the appellant had not been shown to have committed any corrupt practice under section 123(4) of the Representation of the People Act, because the evidence offered by the respondent failed to establish the publication of the leaflets, either by the appellant himself, by his agents, or by any other person acting with his consent; consequently, the Tribunal was entitled to reject the allegation of a corrupt practice. The appeal before this Court was designated as Civil Appeal No 9 of 1964 and it arose from the judgment and order dated 9 September 1964 of the Patna High Court in Election Appeal No 2 of 1963. Counsel for the appellant and counsel for the respondent were instructed, and the judgment was delivered by Justice Dass Gupta. The matter concerned the contest for the Aurangabad Constituency seat in the Bihar Legislative Assembly during the General Election of 1962. The polling for that election was held on 21 February 1962, and the appellant, Brij Mohan Singh, obtained a majority of the votes and was therefore declared elected. The respondent, Priya Brat Narain Sinha, who was the incumbent member, was defeated on 9 April 1962 and consequently filed a petition seeking to set aside the appellant’s election. In his petition the respondent asked that the election of Brij Mohan Singh be declared void and that he himself be declared duly elected to the Assembly. The petition was based on three specific grounds. First, it was alleged that the appellant had been born on 15 October 1937 and was therefore under twenty‑five years of age at the time the nomination papers were filed, which would render him disqualified under Article 137 of the Constitution. Second, it was claimed that the appellant held contracts with the Bihar Government in his personal capacity, a circumstance that would attract disqualification under section 7(d) of the Representation of the People Act. Third, it was asserted that the appellant, with his consent, and his party‑men including Rameshwar Prasad Singh and others whose names were mentioned in the petition, were directly responsible for the publication and distribution of leaflets that contained false insinuations and attacks on the personal character of the respondent, and that the appellant knew those allegations to be false. The Election Tribunal examined the oral testimony and documentary material presented before it and found that none of these allegations, nor any other grounds raised, had been substantiated; accordingly, it dismissed the petition. The Patna High Court, however, set aside the Tribunal’s decision and issued an order nullifying the appointment of Brij Mohan Singh to the Assembly, while refusing to declare the respondent as the duly elected member. The present appeal was filed against that order under a certificate granted by the High Court pursuant to Article 133(1)(b) of the Constitution. The only matters that were argued before the High Court were the three grounds enumerated above, and the High Court concurred with the Election Tribunal on those points.

The Court observed that the claim that the appellant possessed a government contract in his personal capacity had not been proven. Regarding the remaining two grounds, the High Court had taken a different view from the Election Tribunal. The High Court concluded that the appellant was under twenty‑five years of age at the time he filed his nomination, and consequently he did not satisfy the age qualification required to stand for election to the Bihar Legislative Assembly. The High Court further held that the appellant had circulated a leaflet identified as Exhibit 10, which contained allegations attacking the personal character of the respondent. In the Court’s view, this publication amounted to a corrupt practice as defined in section 123(4) of the Representation of the People Act. On that basis, the High Court set aside the appellant’s election. Both the finding on the appellant’s age and the finding on the alleged corrupt practice arising from the publication of Exhibit 10 were subsequently questioned before the present Court. It was also contended that, even if the leaflet had been published, its contents did not constitute an attack on the respondent’s personal character.

After reviewing the evidence, the Court concluded that the appellant had not been shown to have committed any corrupt practice and that there was no proof that he was under twenty‑five years of age when he filed his nomination papers. The Court also examined the issue of whether an entry made in an official record kept by an illiterate public servant, but entered by another person at the servant’s request, could be admitted under section 35 of the Indian Evidence Act. The Court examined the physical characteristics of the document called the “hathchitha,” considered the testimony of the Chowkidar who maintained the record, and evaluated the circumstances under which the document was eventually produced before the Tribunal. The Court found that the document was genuine and was kept by the Chowkidar in the performance of his official duties. The Court reasoned that if the document had been fabricated to assist the appellant, it was unlikely that the Chowkidar would have willingly produced it when summoned. The fact that a warrant of arrest had to be issued against the Chowkidar indicated his reluctance to present the document, which supported its authenticity. The Court was not persuaded by the argument that the Chowkidar’s failure to produce the document and the subsequent arrest warrant were part of a pre‑arranged scheme to have the document accepted as genuine. The Court noted that the appellant’s counsel before the Election Tribunal could not have foreseen that the Tribunal would ultimately issue a warrant of arrest, making it improbable that they would have taken such a risk. Accordingly, the Court held that the document was authentic and constituted the register maintained by the Chowkidar for recording births in his area during the years 1934 to 1936.

The record contains an entry that notes the birth of a son to Sarjoo Singh on 15 October 1935, but that entry cannot assist the appellant unless it is admissible as evidence under the Evidence Act. If the Chowkidar himself had made the entry, the entry would have fallen within the scope of section 35 of the Evidence Act and would therefore have been relevant. However, the Chowkidar did not make the entry himself, and this fact is admitted by the parties in the proceedings. Counsel for the appellant argued that when an illiterate public servant cannot record an entry himself and obtains assistance, the resulting entry should be treated as if made by the public servant himself. The Court rejected this submission, holding that the argument fails to meet the evidentiary requirements prescribed in the Act. The rationale for admitting an entry made by a public servant in an official book is that when the servant records the fact in discharge of his duty, the likelihood of accurate recording is high. When the public servant is illiterate and must rely on another person to make the entry, that probability of correctness falls to a minimum. Consequently, the Court agreed with the High Court that the entry in the official record was maintained by the illiterate Chowkidar but was entered by another person at his request. Because of this, the entry does not come within section 35 of the Evidence Act. No provision other than section 35 provides a basis for admitting a document that was not prepared by the public servant himself. The judgment makes no suggestion that the entry might be admissible under any other provision of the Evidence Act. Therefore, the entry in the hath‑chitha must be excluded from consideration when determining the appellant’s age. The appeal is consequently allowed, and the order reflects that conclusion. The case citation L/P(D)5SCI-2,500-29-4-66---GIPS is reproduced as part of the record.