SUSHIL KUMAR versus RAKESH KUMAR

Citation: [2003] SUPP. 4 S.C.R. 802 · Decided: 16-10-2003 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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 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 nominati

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