S.B.SINHA, J. - (1.) . This appeal under section 116-A of the Representation 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. THE FACTUAL BACKGROUND :
(2.) . The parties hereto together with other candidates filed their respective nomination papers for election to the Bihar Legislative Assembly from 181 Parbatta constituency. 2.1 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 The candidature could be withdrawn by 3.2.2000.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. 2.2 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 nomination paper being not above the age of 25 years as mandatorily required under Article 173(b) of the Constitution of India was not entitled to file his nomination. ELECTION PETITION : . In his election petition, the appellant, inter alia, 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 of hearing to him, purported to be on the ground that such objection had been filed in relation to one Rakesh Kumar alias Samrat Choudhary while 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 Mourya in the year 1996 as a private candidate from Kritanand Vidya Mandir High School and was allocated the roll code 3218, roll no.0019 and he failed therein. 3.1 Further contention of the appellant is that the respondent was appointed as a Minister of the Cabinet rank but having regard to the 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.44 of 1995 wherein an application for bail was filed by him or on his behalf on 20.4.1995 before the chief judicial magistrate, Munger and it had specifically been stated therein that he, thence, was a school going student being aged about 15 years. 3.2 The appellant further contended that the respondent's elder brother, Rohit Kumar, who was studying in the Birla Institute of Technology, was aged 22 years in the year 1999 and, thus, he could not be aged 25 years on the date of filing of the nomination paper, WRITTEN STATEMENT : . On the other hand, the respondent in his written statement denied and 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 16.11.1968 and in support 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 13.11.1983 whereas he was admitted in 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 :
(3.) . The High Court having regard to the rival contentions raised in the respective pleadings of the parties framed the following issues: " i) Whether the election petition is maintainable in the present form? 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?" JUDGMENT OF THE HIGH COURT : . Issue nos. (i) and (iii) were decided in favour of the appellant. As regard issue no.(ii), the parties adduced both oral and documentary evidences. 6.1 For the purpose of analysing the materials on records, evidences 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 exhibit 5, exhibit 5/1 and exhibit 5/2. iii) The age recorded of Samrat Chandra Mourya son of Shakuni Choudhary as 1.5.1981 in the application form for appearing in the examination of Secondary School Annual Examination, 1996 as per exhibit 6 and exhibit 6/1. iv) Minority mentioned in the bail petition moved for and on behalf of the respondent Rakesh Kumar, exhibits 2, 2/A and 2/A/1. v) Horoscope of the same respondent Rakesh Kumar, exhibit 6. vi) Admission register of the respondent in New St. Xaviers Junior School, exhibit D and the transfer certificate from Vivekananda Vidyalaya, Mithapur, exhibit I. vii) Certified copy of electoral roll for the year 1995, exhibit E and the identity card of Rakesh Kumar issued by the Election Commission of India, exhibit F. 6.2 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 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. (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 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, exhibit 6 and exhibit 6/1 are not relevant. (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, thus, such plea cannot be taken seriously for debarring a person as contemplated under Article 173(b) of the Constitution of India. (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 exhibit I; as regard exhibit 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, DW 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 exhibit E and exhibit F are not of much help in construing the actual date of birth of the respondent but they are annexed to show that in the year 1995 he became eligible to vote. ;