Jharkhand High Court
Krishna Nand Tripathi vs Alok Chaurasiya on 18 August, 2023
Election Petition No. 02 of 2020
IN THE HIGH COURT OF JHARKHAND AT RANCHI
E.P. No. 02 of 2020
Krishna Nand Tripathi, aged about -48 years, S/o Jag Narain Tripathi, r/o
Village- Semar Tand, Tola Redma, P.O. & P.S.- Daltonganj, Dist. Palamu,
State Jharkhand
..... Petitioner
Versus
Alok Chaurasiya, S/o late Anil Kumar Chaurasya, r/o Village- Purab Tola,
Majhigama, P.O.- Pathara, P.S. Chainpur, Dist. Palamu
..... Respondent
For the Petitioner : Mr. Salman Khurshid, Sr. Advocate
: Mr. Mahesh Tewari, Advocate
: Ms. Azra Rehman, Advocate
: Mr. Abhishek Kr. Dubey, Advocate
: Mr. Ankur Anand, Advocate
For the Respondent : Mr. V.P. Singh, Sr. Advocate
: Mr. Arun Kumar, Advocate
: Mrs. Bandana Kr. Sinha, Advocate
: Mr. B.R. Rochan, Advocate
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
C.A.V. on 19.05.2023 Pronounced on :18.08.2023
Anil Kumar Choudhary, J.:-
1. Heard the parties.
2. This Election Petition has been filed by the Petitioner under
Section 80, 80(A) and 81 of the Representation of the People Act, 1951
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Election Petition No. 02 of 2020
whereby and where under the Petitioner seeks to challenge the
election of sole Respondent namely Alok Chaurasia, who has been
declared elected as a member of the Jharkhand Assembly from 76,
Daltonganj Assembly Constituency, Election of which was held on
30th November, 2019 and the results of the said Election were
declared on 23rd December, 2019.
Pleadings of the petitioner
3. The case of the Petitioner in brief is that the election to 76
Daltonganj Assembly Constituency was held on 30.11.2019. The
result of the said election was declared on 23.12.2009. The
notification for the election was issued by the Returning Officer
being the S.D.O., Sadar, Medininagar, Palamau on 06.11.2019. The
last date for filing nomination papers was 13.11.2019. In accordance
with the said election program, the Petitioner, the Respondent and
other candidates filed the nomination papers before the Returning
Officer. During the scrutiny of the nomination papers, the Returning
Officer accepted the nomination papers of 15 candidates to be valid.
Consequent upon that, the Returning Officer published the names of
the contesting candidates in prescribed form and allotted symbols to
them.
4. At the time of scrutiny of nomination papers, the Election
Petitioner raised an objection through his election agent before the
Returning Officer, to the effect that the Respondent namely Alok
Chaurasia was disqualified to contest the election, as he was
underage, as his age was below 25 years and under Article 173 (b) of
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Election Petition No. 02 of 2020
the Constitution of India for a candidate to contest the election of the
Member of the Legislative Assembly, the minimum age required,
each 25 years. It is next submitted by the Petitioner that the
nomination paper of the sole Respondent was illegally accepted by
the Returning Officer rejecting the objections raised by the Petitioner
through the election agent namely Madan Tiwari.
5. It is specifically pleaded by the Petitioner that the sole
Respondent was born on 15 February, 1995. The Petitioner next
pleaded that the sole Respondent was admitted in Class IX, in the
year 2008 at Giriwar High School, Medininagar, Palamau and the
date of birth recorded in the school register was 15.02.1995.
6. The Petitioner, then pleaded that in the year 2009 the
Respondent registered with Jharkhand Academic Council for Matric
Board Examination and at the time of such registration, the
Respondent entered his date of birth as 15.02.1995. Accordingly, the
said date of birth was mentioned in the Annual Secondary
Examination 2010, Registration Card issued by the Jharkhand
Academic Council. The Registration Card contained note- III, to the
effect that the mistake, if any, should be corrected within a period of
15 days from the date of receipt of the said Registration Card. But no
correction of the said date of birth of the Respondent was made
within the stipulated period of 15 days. Thereafter, the Respondent
was issued Admission Card for the Annual Secondary Examination-
2010, which is the Class X Board Examination, by the Jharkhand
Academic Council mentioning the date of birth of the Respondent as
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Election Petition No. 02 of 2020
15.02.1995. The Respondent appeared in the said examination with
the said Admission Card. In the Marks Statement of 2010 Annual
Secondary Examination of the Respondent also his date of birth has
been mentioned as 15.02.1995.
7. In the year 2010, the Respondent was admitted in I.Sc. at
G.L.A college, Medininagar, Palamau and his date of birth was filled
as 15.02.1995. The relevant form was countersigned by the father of
the Respondent namely Anil Chaurasia under oath. The Character
Certificate, School Leaving Certificate, counter foil of School Leaving
Certificate of the Respondent issued by the Headmaster of Giriwar
High School, Medininagar, Palamau also indicated the date of birth
of the Respondent to be 15.02.1995.
8. The Respondent did not have any Voter's Identity Card nor
his name was appearing in the voter's list in the year 2009, as by the
year 2009 the age of the Respondent was below 18 years.
9. The father of the Respondent namely Anil Chaurasia died on
16.06.2012 and on that day the age of the Respondent was 17 years.
During his life time Anil Chaurasia contested Assembly Elections, 4
times from the Daltonganj assembly constituency, the last of such
elections being 2009.
10. In order to contest the assembly elections in the year 2014, in
place of his father and to defeat the constitutional mandate of the
minimum age of 25 years for contesting an election of Member of
Legislative Assembly, the Respondent applied for change of his date
of birth before the Jharkhand Academic Council by the application
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Election Petition No. 02 of 2020
dated 28.08.2012. In support of his application the Respondent
annexed following two documents:-
i) Copy of his voter's identity card having EPIC number
KGV1703202;
ii) An unsigned affidavit allegedly sworn in by his mother.
11. The Petitioner asserted that the voter's identity card, the copy
of which was submitted by the Respondent along with his said
application dated 28.08.2012 was a forged one because the said EPIC
number KGV1703202 belongs to Salendra Kumar Chaurasia. To
substantiate his contention that the EPIC number KGV1703202 is a
forged one, the Petitioner further pleaded that the EPIC number of
the Respondent, as mentioned in the voter's list of 2014 is
KGV7930001 and a person cannot have 2 different EPIC numbers.
12. The Jharkhand Academic Council did not change the date of
birth of this Respondent on the basis of his application dated
28.08.2012. But on its own Jharkhand Academic Council called for
the school records from Giriwar High School, after a period of 8
months. Thereafter Jharkhand Academic Council changed the date of
birth of the Respondent on the basis of certified copy of school
register of Giriwar High School, Medininagar as also the Transfer
Certificate issued by A.A. High School, Guriadamar, Lesliganj,
Palamau; from 15.02.1995 to 15.02.1988. The Petitioner asserted that
such change of date of birth by the Jharkhand Academic Council is
illegal, arbitrary and against the settled principles of law.
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Election Petition No. 02 of 2020
13. The Petitioner further asserted that the school register of
Giriwar High School, Medininagar pertaining to the admission of the
Respondent has been tampered with and the Transfer Certificate
issued by the A.A. High School, Guriadamar, Lesliganj, Palamau
showing the date of birth of the Respondent to be 15.02.1988, has
been created afterwards. The date of birth of the Respondent in the
documents relating to the Jharkhand Academic Council was
subsequently changed from 15.02.1995 to 15.02.1988.
14. The date of birth of the Respondent in the School leaving
certificate and the counter foil thereof as also in the Character
Certificate, issued from Giriwar High School, Medininagar, still
contains the date of birth of the Respondent as 15.02.1995. The
Admission Form submitted at G.L.A. College, Lesliganj, Palamau
filled in by the Respondent which was duly signed by his father, also
contains his date of birth to be 15.02.1995.
15. The name of the Respondent was enrolled in the voter's list
for the 1st time in the year 2014 on the basis of his oral declaration to
the effect that his age is 25 years. But in his nomination paper for the
said election of Member of Legislative Assembly on 13.11.2019, the
Respondent filled his age as 29 years, although as per the voter list of
the year 2014, the age of the Respondent ought to have been more
than 30 years and as per his alleged date of birth i.e., 15.02.1988, his
age ought to have been more than 31 years. The Petitioner contended
that the Respondent has sworn in false affidavit by mentioning his
wrong age.
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Election Petition No. 02 of 2020
16. The Petitioner next pleaded that the S.D.O, Sadar,
Medininagar-cum- Returning Officer rejected the objections raised by
the election agent of the Petitioner regarding the Respondent being
underage on the ground that in the passing certificate of Secondary
Examination of the Respondent, his date of birth has been mentioned
as 15.02.1988 and in the part No. 86 of electoral roll 2019, the age of
the Respondent has been mentioned as 29 years, hence the
Respondent is more than of the qualifying age; thereby ignoring the
School Leaving Certificate of the Respondent, produced by the
election agent of the Petitioner, where the age of the Respondent was
mentioned as 15.02.1995.
17. The Petitioner asserted that the order dated 21.11.2019,
passed by the Returning Officer is illegal, arbitrary, malafide,
unreasonable and unsustainable, therefore, the election of the
Respondent is fit to be declared void under section 100 (1) (d) (i), 100
(1) (d) (iv) and 100 (1) (a) of the Representation of the People Act,
1951, as prayed for by the Petitioner and as already indicated above,
in the foregoing paragraphs of this judgment.
Pleadings of the Respondent
18. The written statement has been filed by the Respondent on
17.12.2021 in which the Respondents challenged the maintainability
of the election petition on the following technical grounds:-
i) the petition has been filed beyond the period of limitation.
ii) The Election Petitioner has not presented the Election
Petitioner personally, in the court.
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Election Petition No. 02 of 2020
iii) No correct and authenticated copy of the election petition has
been served upon the Respondent.
iv) The copy of the election petition served upon the Respondent
is not containing the endorsement "The copy of the election
petition is attested to be true copy of the original election
petition".
v) The copy of the election petition served upon the Respondent
was not containing the signature of the Election Petitioner
on any of the pages either of the election petition or on
affidavits or on enclosures/annexures attached with the
election petition, as required under section 83 (1) (c) of the
Representation of the People Act, 1951.
vi) Though all the 15 annexures to the election petition are
required to be supported with the affidavit and verification
separately under section 83 (2) of the Representation of the
People Act, 1951, but the same having not done; there is
violation of section 81 (3) of the Representation of the People
Act, 1951.
vii) There is no material on record to show that the election
petition of the election petitioner has accompanied sufficient
number of copy/copies of election petition duly attested by
him, as required under Section 81(3) of the Representation of
the People Act, 1951.
viii) The election petition is barred by the principle of res judicata;
as the cause of action and the issues raised in this election
petition are mostly and substantially the same as was raised
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Election Petition No. 02 of 2020
in Election Petition No.11 of 2015, which was between the
present Election Petitioner and the present, Respondent of
this petition and the said Election Petition No.11 of 2015 has
already been heard and finally decided against the Election
Petitioner, by this court on 20.12.2019, more so because the
facts pleaded in paragraphs 9 to 29 of the present election
petition are substantially the same as pleaded and raised in
Election Petition No.11 of 2015.
ix) The right to challenge the corrections made in the date of
birth of the Respondent accrued much prior to the start of the
"Election Process," and much prior to issuance of election
notification. Hence such dispute of date of birth do not come
within the meaning of "Election Dispute" rather the said
dispute being a "Common Law Dispute" such dispute is
beyond the scope of Election Petition and Election Trial.
x) The present election petition has mainly raised the issue and
dispute about the correction of date of birth of the Respondent
which was ordered to be corrected on 08.02.2014 and finally
having been corrected on 12.02.2014 by a competent and
statutory authority being Jharkhand Academic Council much
prior to the issuance of election notification on 06.11.2019.
On this ground also, the issues are beyond the scope of
election petition.
xi) Since the relief of declaring the date of birth of the respondent
to be incorrect comes under the "Common Law Dispute"; the
same cannot be adjudicated as an "Election Dispute".
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Election Petition No. 02 of 2020
xii) Since, in an election petition, disputes relating to any
incident or facts which took place between the period from the
date of issuance of notification for election, till the
announcement of the result of such election; hence this
election petition in which a cause of action anterior to the
issuance of notification is challenged, the same cannot be
adjudicated in this election petition.
xiii) The Petitioner having not stated or given "Concise
Statement of Material Facts
" as required under section 83
(1) (a) of the Representation of the People Act, 1951 and
further as the Election Petitioner has made and stated vague,
false, incorrect, distorted and wrong facts, besides not
making any clear pleading and having submitted false
statements, hence, the Petitioner is liable to be dismissed on
that score also.
xiv) In the absence of any cause of action having been stated in
the election petition; the election petition is not maintainable.
xv) The affidavits and verifications of the election petition are not
in accordance with facts and law.
19. Besides the objection on the maintainability of the election
petition, the Respondent further denied all the statements made in
the election petition except the ones which were specifically admitted
in the written statement. The Respondent next pleaded that the
Petitioner has suppressed the material facts of earlier filed Election
Petition No. 11 of 2015, raising mostly and substantially the same
issues about the age and date of birth of the Respondent and the said
Election Petition No. 02 of 2020
election petition was heard and decided finally against the Election
Petitioner.
20. The Respondent next pleaded that though it is the case of the
Petitioner that objection about the case of the Respondent was raised
before the Returning Officer at the time of scrutiny of nomination
papers which, according to the Petitioner took place on 14.11.2019,
but such pleading of the Petitioner is not in consonance with the
documents filed by him in shape of annexure-10 to the election
petition, which shows that the objection petition was filed on
19.11.2019; i.e., after the scrutiny and acceptance of the nomination
papers of the candidates, including the Respondent. Further, in the
said annexure-10 the date of birth of the Respondent has been
mentioned as 15.02.1985, according to which the age of the
Respondent was more than 34 years at the time of the election in
question.
21. The Respondent asserted that his date of birth is 15th of
February, 1988 and not 15th of February, 1995 as claimed by the
Election Petitioner. Hence, the Respondent was qualified to contest
the election in question. The Respondent next asserted that his date
of birth was recorded in the school register of Giriwar High School,
Medininagar as 15 February, 1988 and not 15 February, 1995 as
claimed by the Election Petitioner.
22. The Respondent also pleaded that since the source from
which the Petitioner got the Annexures-1 to 6/1 has not been
disclosed and the same are not supported by separate affidavit and
Election Petition No. 02 of 2020
verification, hence those documents should not be taken into
consideration by this court.
23. As the explanation to the discrepancy in the date of birth and
wrong recording of the same in some of his educational documents;
the Respondent pleaded that he comes from a poor family and was a
resident of a backward and remote village. His early education took
place in villages. On 16.05.2007, his uncle and guardian namely Sri
Sunil Chaurasia, got the Respondent admitted in A.A. High School,
Guriadamar, Lesliganj, Palamau in Class VIII. At the time of such
admission, the "Admission-cum- Declaration Form" of the
Respondent was submitted in the said school mentioning his date of
birth as 15.02.1988. The Respondent was a student of Class VIII B.
While the Respondent was the student of Class IX in the said A.A.
High School, Guriadamar, Lesliganj, Palamau, he took transfer
certificate from the said school on 15.04.2008 and got admitted in
Giriwar High School, Medininagar, which school was taken over by
the government. In all the school admission register and transfer
certificate the date of birth of the Respondent was recorded as
15.02.1988. But at the time of registration for Secondary Examination,
due to inadvertence, the Respondent filled his date of birth as
15.02.1995. The Respondent realised his mistake at the time of filling
the form for Board's Examination but as at the time, there was no
sufficient time to get the date of birth corrected and the Respondent
was also not fully aware about the procedure to get his date of birth
corrected; therefore, the Respondent finding no alternative filled the
Election Petition No. 02 of 2020
form for the Board's Examination with the wrong date of birth. After
publication of the result of the Board's Examination, School leaving
certificate was issued by the Giriwar High School, Medininagar
containing his incorrect date of birth to be 15.02.1995 and as the
Respondent took admission in GLA college on the basis of the said
school leaving certificate; so the incorrect date of birth of the
Respondent was also entered in the Admission Register of GLA
college. Because of the serious illness of his father which ultimately
resulted in his death, the Petitioner could not immediately get his
date of birth corrected.
24. Later on, after coming to know about the procedure for
correction of the date of birth in his certificates; the Respondent,
deposited the required fee in the bank in the account of Jharkhand
Academic Council, which is the statutory competent authority for
such correction and submitted an application form to the Jharkhand
Academic Council through the Giriwar High School, Medininagar.
Such application of the Respondent was received by the Jharkhand
Academic Council on 28.08.2012. The Jharkhand Academic Council,
after calling for the various documents/admission registers from
previous schools and after making detailed enquiry in the matter,
ordered for correction of the date of birth of the Respondent in his
certificates on 08.02.2014. Accordingly, the date of birth in all the
relevant certificates were corrected on 12.02.2014, much before the
start of the election process. Thus, there is no merit in the contention
of the Petitioner that the Respondent applied for correction of date of
Election Petition No. 02 of 2020
birth in order to defeat the constitutional mandate of attaining the
age of 25 years at the time of election as Member of Legislative
Assembly as provided for in article 173 (b) of the Constitution of
India. The Respondent then pleaded that he never applied for change
of his date of birth, rather he applied for correction of his date of
birth, which was inadvertently, wrongly mentioned in his certificates
and documents. The Respondent denied the allegation of submitting
application for correction of his date of birth based on forged
documents. The Respondent next pleaded that there is no document
as annexure -7/3 in the election petition as pleaded in paragraph-24
of the election petition.
25. The Respondent next pleaded that his application for
correction of his date of birth was forwarded by the Headmaster of
the Giriwar High School, Medininagar in the month of August, 2012
to the Jharkhand Academic Council. The Respondent, deposited the
required fee of 400 in the bank account of Jharkhand Academic
Council. The application for correction of the date of birth of the
Respondent was received by the Jharkhand Academic Council on
28.08.2012. The Jharkhand Academic Council conducted thorough
enquiry by calling for the reports and documents from previous
schools of the Respondent. Under the certification/verification of the
District Education Officer and only thereafter such thorough
exercise, the correction in the date of birth of the Respondent was
made on 12.02.2014.
Election Petition No. 02 of 2020
26. The Respondent then pleaded that as the statement/evidence
of the High Officers of the Jharkhand Academic Council in Election
Petition No.11 of 2015 has remained unchallenged by the Election
Petitioner either by filing any petition in the said case or by making
any suggestion to those witnesses at the time of their deposition in
the said case, hence, now the Election Petitioner cannot and should
not be permitted to re-agitate the said issue.
27. The Respondent denied the contention of the Election
Petitioner that the Transfer Certificate issued by the A.A. High
School, Guriadamar, Lesliganj, Palamau was a tampered document.
The Respondent asserted that the said Transfer Certificate is a real,
valid and genuine document. The Respondent then asserted that
correction of his date of birth has been made in all relevant
documents and denied the contention of the Election Petitioner that
in some of the documents, correction of date of birth of the
Respondent has not yet been made.
28. The Respondent further pleaded that the own document of
the Election Petitioner being the Annexure-10 of this Election
Petitioner shows the age of the Respondent to be more than 34 years
on the date of the relevant election so in view of this admission of the
Election Petitioner, this petition on the ground that the Respondent
did not attain the age of 25 years on the date of election is
misconceived and is liable to be dismissed.
29. Lastly, it was pleaded by the Respondent that the Election
Petitioner is not entitled to any relief claimed by him against the
Election Petition No. 02 of 2020
Respondent in the present election petition, hence the Election
Petition being without any merit is fit to be rejected with
compensatory cost to be awarded the Respondent.
Issues
30. On the basis of rival pleadings, following issues have been
settled by this Court vide order dated 09.02.2022:-
(i) Whether the election petition as framed and filed is
maintainable?
(ii) Whether the election petition is barred by limitation?
(iii) Whether the election petition is fit to be rejected for no
correct and authenticated copy of the election petition being
served upon the Respondent?
(iv) Whether the election petition is barred by principle of res
judicata?
(v) Whether the issue of date of birth of this Respondent is
beyond the scope of an election petition/ dispute/trial as the
same had admittedly taken place earlier to the date of
notification for election?
(vi) Whether the Petitioner has no locus standi to file the
election petition?
(vii) Whether the date of birth of the Respondent is 15.02.1995
or 15.02.1988?
(viii) Whether the date of birth of the Respondent in the school
register of Giriwar High School was recorded as 15.02.1995
or 15.02.1988?
(ix) Whether the early education of the Respondent was in
villages?
(x) Whether at the time of the admission of the Respondent in
A.A. High School, Guria Damar, Lesliganj, Palamau in
Class-VIII in the admission-cum-declaration form
submitted to the school, the uncle and guardian of the
Election Petition No. 02 of 2020
Respondent namely Sri Sunil Chaurasia disclosed his date
of birth to be 15.02.1988?
(xi) Whether the Respondent while being the student of Class-
IX of A.A. High School, Guria Damar, Lesliganj, Palamau
took transfer certificate from the said school on 15.04.2008
and took admission in Government taken over Giriwar
High School, Daltonganj and in all above school admission
register and/ or transfer certificate his date of birth was
correctly recorded as 15.02.1988?
(xii) Whether the Respondent was not able to get his date of birth
as 15.02.1995 mentioned in the school leaving certificate
issued by the Giriwar High School corrected due to serious
illness of his father who later on died?
(xiii) Whether the Respondent submitted an application for
correction of his date of birth and after making detailed
enquiry, the Jharkhand Academic Council has corrected all
the relevant certificates of the Respondent on 12.02.2014?
(xiv) Whether the transfer certificate issued by the A.A. High
School, Guria Damar, Lesliganj, Palamau to the
Respondent is a tampered document?
(xv) Whether the Respondent was issued admission card for
annual secondary examination 2010 for Class-X Board
Examination by Jharkhand Academic Council mentioning
his date of birth as 15.02.1995 which was also signed by the
Headmaster, Giriwar High School, Daltonganj and whether
the marks statement of 2010 Annual Secondary
Examination of the Respondent dated 10.05.2010 shows
that the date of birth of the Respondent is 15.02.1995?
(xvi) Whether the Respondent was admitted in I.Sc. in G.L.A.
College, Medininagar and his date of birth was filled up as
15.02.1995 in the Admission Form and the Character
Certificate issued by the Headmaster of Giriwar Higher
Secondary School, Medininagar, Palamau also indicates the
date of birth of the Respondent is 15.02.1995?
Election Petition No. 02 of 2020
(xvii) Whether the Respondent was not having any Voter ID
Card in the year 2009 and his name was not existing in the
voter list issued by the Election Commission of India in the
year 2009 as he was less than 18 years of age and as such
not eligible to vote in the Assembly Election 2009?
(xviii) Whether the Voter ID Card submitted by the Respondent
before the Jharkhand Academic Council for correction of his
date of birth upon verification was found to have been
issued in the name of Shailendra Kumar Chaurasiya?
(xix) Whether the Respondent initiated for the change of his date
of birth by fraudulent means and by committing forgery?
(xx) Whether the Jharkhand Academic Council did not change
the date of birth of the Respondent on the basis of the
application dated 28.08.2012?
(xxi) Whether the school register of Giriwar High School
pertaining to admission of the Respondent has been
tampered with?
(xxii) Whether the election of the Respondent as a Member of
Jharkhand Assembly is fit to be declared void as he was not
qualified to be a member of 76 Daltonganj Assembly
Constituency under Section 100 (1) (a) of the
Representation of People Act, 1951?
(xxiii) Whether the Respondent was below the age in terms of the
Article 173 of the Constitution of India, 1950 on the date of
scrutiny of his nomination paper for election to 76
Daltonganj Assembly Constituency?
(xxiv) To what other relief or reliefs the Petitioner is entitled to?
Evidence of Petitioner
31. In support of its case the Election Petitioner examined the
following witnesses:-
(i) P.W.1- Nand Gopal Tripathy (Cultivator) examined on
07.03.2022. He has stated about obtaining the certified
Election Petition No. 02 of 2020
copy of the documents regarding the date of birth of the
Respondent which were marked exhibit 1 & 2, from the
Jharkhand Academic Council and exhibit 3 & 4. From the
District Election Officer-cum-Deputy Commissioner,
Palamu under the Right to Information Act.
In his cross-examination he has stated that he is the
younger brother of the Petitioner; living jointly with him.
He denied the suggestion that he did not produce exhibit
1 to 4 in his deposition as a witness in Election Petition
No. 11 of 2015.
(ii) P.W.2- Dhruv Kumar Pandey (P.A. of Krishna Nand
Tripathy) examined on 29.03.2022. He deposed that his
examination in chief has been filed in the shape of an
affidavit. On being shown the extract of the admission
register of Giriwar High School, Medininagar, which was
marked Ext. X for identification, the PW 2 has stated that
he had received the said document from Giriwar High
School, Medininagar but he does not know the name of
the person who gave the same to him.
In his cross-examination, he denied this suggestion
that he has come to court for deposing falsehood.
(iii) P.W.3- Krishna Nand Tripathy (Petitioner) examined on
05.4.2022. He deposed that the Respondent was below 25
years of age at the time of the filing of the nomination
papers. The returning officer did not pay any heed to the
objections raised by the election agent of the Election
Petitioner on the date of scrutiny of the nomination paper.
The Respondent registered for his Class X Board
Examination from Giriwar High School, Medininagar in
the year 2009. In the Admission Card issued by Jharkhand
Academic Council for the Annual Secondary
Examination-2010, the date of birth of the Respondent has
been mentioned as 15.02.1995. After finding the details
Election Petition No. 02 of 2020
entered in the Admission Card and Registration Slip
issued by the Jharkhand Academic Council wherein the
date of birth of the Respondent was mentioned as
15.02.1995, the Respondent appeared for the Board
Examination in the year 2010. He also supported the
averments made in his election petition. The evidence
given by Shri Kashi Prasad as principal of A.A. High
School, Guriadamar, Lesliganj, Palamau was falsified by
the certificate given under the RTI Act. All the education
certificates of the Respondent issued by the Giriwar High
School, Medininagar and Tabulation Register of
Jharkhand Academic Council was having the date of birth
of the Respondent as 15.02.1995. Since the voter list of the
year 2009 of 76, Daltonganj constituency did not contain
the name of the Respondent so from that it is apparent,
that the Respondent had not attained the age of 18 years
in the year 2009. He further deposed about the contents of
several documents in his examination in chief filed in
shape of an affidavit. It is then stated that the change of
date of birth of the Respondent from 15.02.1995 to
15.02.1988 has been made in an illegal manner to achieve
the object of reaching the age of 25 years for contesting
the assembly elections after the death of his father in the
month of June 2012. There is no provision in law, rules or
regulations for alteration of date of birth after so many
years and thereby enhancing the age of the candidate by 7
years. Neither the father nor the mother of the
Respondent ever applied for the change of his date of
birth. Since there was doubt in the minds of the
Respondent and his mother that the candidature of the
Respondent may be rejected as he has not attained the age
of 25 years, hence, the mother of the Respondent also filed
the nomination papers from 76, Daltonganj assembly
Election Petition No. 02 of 2020
constituency in the year 2014. In her nomination paper,
the mother of the Respondent has shown her age to be 41
years on 05.11.2014 which implies that at the time of birth
of the Respondent on 15.02.1988, the age of his mother
was 17. In the year 2014, when the Respondent was
declared successful from 76, Daltonganj assembly
constituency, he was aged 19 years. On being proved by
the P.W. 3, the Judgment of the Hon'ble Supreme Court of
India has been marked Exhibit 5.
In his cross-examination the P.W. 3 has stated that
the grounds taken by him in this election petition was
also taken by him in election petition number 11 of 2015.
Apart from this petition and election petition No. 11 of
2015, the P.W. 3 has not filed any other election petition.
He agreed with the suggestion of the Respondent that in
election petition number 11 of 2015 P.W. 6 and P.W. 8
who are respectively the Secretary and Deputy Secretary
of the Jharkhand Academic Council stated that there was
some error in the date of birth of the Respondent which
was corrected from 15.02.1995 to 15.02.1988. The secretary
and the Deputy Secretary, in that case, produced some
files but he does not remember the details. The P.W. 3 did
not file any objection to the entry of the Respondent in the
voter list of the year 2014. The P.W. 3 further stated that
he also filed election petition number 02 of 2015. The P.W.
3 volunteered that since the said election petition was not
presented personally to the Registrar General of this
Court, hence, the Petitioner was given liberty by the court
to withdraw the same and file the same in accordance
with law. He denied the suggestion that he deposed by
saying that he filed only two elections petitions. On being
confronted, he accepted the certified copy of the orders of
election petition no. 02 of 2015, which were marked
Election Petition No. 02 of 2020
exhibit A and A/1.
(iv) P.W.4- Niraj Kumar Dwivedi (I/c Headmaster of Giriwar
+2 High School, Palamau at Daltonganj) examined on
10.05.2022. On looking at the documents marked as X/1,
X/2 and X/3 the witness did not identify the same. In his
cross-examination he has stated that he does not know
what happened in his school in respect of administration
matters prior to 03.09.2021. He does not have any
knowledge about the issue of any transfer certificate from
their school prior to 03.09.2021.
(v) P.W.5- Irkan John Khalkho (Principal G.L.A. College,
Medininagar, Palamau) examined on 07.06.2022. He
identified the signature of the Public Information Officer
of his college on the information furnished by his college
which was marked Exhibit 7. He was neither the principal
nor posted in the college, when the information was
given. He identified the signature of the teacher of his
college on the Admission Form submitted by the
Respondent at the time of admission in Class XI which
was marked Exhibit 8. The School leaving certificate and
character certificate respectively of the Respondent, on
being identified by the witness was marked X/5 and X/6
respectively for identification. In his cross-examination,
he identified the signature of the then principal on the
character certificate issued in the name of Respondent by
his college, which has been marked Exhibit B. He cannot
say who was the information Officer in his college in the
year 2014. He had never worked with the person whose
signature has been marked Exhibit 7 nor had seen the
signature earlier. He also never met the said person before
joining the college. He was not working with the teacher
whose signature has been marked Exhibit 8 in 2010 or
Election Petition No. 02 of 2020
before that. He did not bring any document from his
college to be produced in court.
To a question from court, the witness stated that the
person whose signature has been marked Exhibit 7,
retired about a year ago, and the person whose signature
has been marked Exhibit 8 is still in service.
(vi) P.W.6- Mahip Kumar Singh (Secretary Jharkhand
Academic Council, Ranchi) examined on 19.07.2022. He
identified the application dated 28.08.2012, filed by the
Respondent addressed to the Secretary, Jharkhand
Academic Council, which was marked Exhibit 9. Two
annexures being the voter ID card and one affidavit of the
mother of the Respondent of the said application was
marked Exhibit 9/1 and 9/2. The fee receipt of the
application for the correction of date of birth has been
marked Exhibit 10. The Tabulation Register issued by the
Jharkhand Academic Council in the year 2010 and with
respect to Giriwar High School, Medininagar being public
document was marked Exhibit 11. The registration slip of
the Respondent was marked Exhibit 12. The Admission
Card of the Annual Secondary Examination 2010, issued
in the name of the Respondent was marked Exhibit 13. He
also proved the Exhibit 14 and 14/1 and 14/2. In his
cross-examination, this witness has stated that he joined
the Jharkhand Academic Council as Secretary on 11
September 2018. On being confronted he identified
Exhibit C. The correction in the marksheet is made in
pursuance of the order of the Jharkhand Academic
Council. After that necessary correction is made in the
relevant documents of the student concerned. The
correction of the certificate is made even after 15 days of
the issue of the registration slip. As per the procedure
which is in practice in the Jharkhand Academic Council,
Election Petition No. 02 of 2020
for correction of the date of birth, the admission register
of the school concerned is called for. The photo copy of
the admission register duly signed by the Headmaster
and the District Education Officer is called for and on the
basis of the same necessary correction is made.
It is pertinent to mention here that though it is the
specific case of the Petitioner that the correction of the
date of birth of the Respondent was made in an illegal
manner by the Jharkhand Academic Council but not a
single question regarding the procedure in correction of
the date of birth of the Respondent was put to this witness
by the Petitioner.
(vii) P.W.7- Koushal Kishore Dubey (Businessman) examined
on 08.08.2022. He identified Exhibit 7 to be the documents
he received in response to his application for information
under the Right to Information Act. He also proved the
Exhibit 15 by which the sought information from the
principal A.A.High School, Guriadamar, Lesliganj,
Palamau and the answer which has been marked Exhibit
16.
In his cross-examination he has stated that he was
the PA to the Petitioner and earlier he was getting salary
but now he is not getting salary. He sought the
information under the instruction of the Petitioner.
(viii) P.W.8- Chandrabali Choubey (Retired Headmaster,
Giriwar High School, Medininagar, Palamau examined on
15.09.2022. He proved the Exhibit 17.
In his cross-examination he has stated that he was
the in-charge, Headmaster in the year 2015. He was not
involved in the admission process any school in the year
2009.
Besides the oral testimony, the petitioner also proved proved the
following documents:-
Election Petition No. 02 of 2020
(i) Ext.1- C.C of letter no. JAC/RTI//832/15-117/16 Ranchi
dt. 12.02.2016 of Deputy Secretary-cum-PIO, JAC, Ranchi
addressed to Shri Nandgopal Tripathi. (proved on
07.03.2022)
(ii) Ext. 2- C.C of letter no. JAC/RTI//976/16-235/16 Ranchi
Dt. 17.03.2016 of Deputy Secretary-cum-PIO, JAC, Ranchi
addressed to Shri Nandgopal Tripathi. (proved on
07.03.2022)
(iii) Ext.3- C.C of letter bearing memo no. 202/Nirwa, dated
02.05.2016 of PIO cum Deputy Election Officer, Palamau
addressed to Shri Nand Gopal Tripathi. (proved on
07.03.2022)
(iv) Ext.4- C.C of letter bearing letter no. 203/Nirwa, dated
02.05.2016 of PIO cum Deputy Election Officer, Palamau
addressed to Shri Nand Gopal Tripathi. (Reg. supply of
C.C of Voter list, 2009, of Bhag Sankhya 226, Booth no. 226
of Madhya Vidhyala, Manjhigao of 76, Assembly
Constitution, Daltonganj & Voter card bearing
KGV1703202). (proved on 07.03.2022)
(v) Ext.5- C.C of Order dated 10.08.2021 passed by the
Hon'ble Supreme Court of India in Civil Appeal No.
191/2020. (proved on 05.04.2022)
(vi) Ext.6- Signature of Head Master, I/c (Chandrabali
Choubey) in the C.C of Transfer Certificate issued by the
Headmaster I/c, Rajyakrit Giriwar +2, High School,
Medninagar, Palamau at Daltonganj. (proved on
10.05.2022)
(vii) Ext.7- Signature of Amal Kr. Pandey, in Letter no. GLA-G-
248/15 dt. 02.01.2015 of PIO, G.L.A College to Kaushal
Kishore Dubey under RTI. (proved on 07.06.2022)
(viii) Ext.8- Signature of S.K Mishra marked in the photocopy
I.Sc. Admission Form submitted by Alok Chourasia of
GLA no. 3089. (proved on 07.06.2022)
Election Petition No. 02 of 2020
(ix) Ext.9- Application dt.28.08.2012 of Alok Chaurasia
regarding correction in his D.O.B to Secretary, JAC,
Ranchi. (proved 19.07.2022)
(x) Ext. 9/1- Copy of Voter I.D of the Applicant namely Alok
Chaurasiya bearing NO. KGB1703202. (proved on
19.07.2022)
(xi) Ext.9/2- Affidavit of mother of Alok Chourasiya namely
Usha Kumari dt. 27.08.2012. (proved on 19.07.2022)
(xii) Ext.10- Fee Receipt of Rs. 400/- dt. 28.08.2012 deposited in
Bank of India, Namkum Branch, Ranchi. (proved on
19.07.2022)
(xiii) Ext.11- Certified copy of Tabulation Register issued by
Jharkhand Academic Council, 2010 with respect to
Giriwar High School, Daltonganj for matriculation exam.
(proved on 19.07.2022)
(xiv) Ext.11/1- Part of Certified copy of Tabulation Register of
JAC, Ranchi of Giriwar High School, Daltonganj- 2010.
(proved on 19.07.2022)
(xv) Ext.12- Secondary Examination Registration Slip for year
2009, JAC, Ranchi of Alok Chaurasiya. (proved on
19.07.2022)
(xvi) Ext.13- Secondary Examination Admission Card bearing
Reg. No. 31044-13854-09, JAC, Ranchi of Alok Chourasiya.
(proved on 19.07.2022)
(xvii) Ext.14- Mark Statement of Annual Secondary
Examination 2010 of Alok Chourasia bearing Reg. No.
31044-13854-09 of JAC, Ranchi dt. 10.05.2010. (proved on
19.07.2022)
(xviii) Ext.14/1- Provisional Certificate issued by JAC, Ranchi to
Alok Chourasiya bearing Reg. No. 31044-13854-09 dt.
10.05.2010. (proved on 19.07.2022)
Election Petition No. 02 of 2020
(xix) Ext.14/2- Annual Secondary Examination 2010 Passing
Certificate of Alok Chaurasiya of Annual Secondary
Examination, 2010 dt. 02.09.2010. (proved on 19.07.2022)
(xx) Ext.15- Letter dt. 03.02.2017 of K.K Dubey addressed to
Principal I/c, Adiwasi Awasiya Ucch Vidhyala,
Guriadamar, Daltonganj. (proved on 08.08.2022)
(xxi) Ext.16-Signauture on Letter dt. 06.02.2017 of Principal I/c
Prem Prakash Singh, Adiwasi Awasiya Ucch Vidhayala,
Guriadamar to K.K Dubey, Daltonganj. (proved on
08.08.2022)
(xxii) Ext.17- Letter beating no. 177(b) dated 04.01.2016 of
Chandrabali Choubey, Head Master I/c, Rajya Krit,
Giriwar +2, Uccha Vidhyala, Medininagar, Palamu.
(proved on 15.09.2022)
(xxiii) Ext.18- The of Signature of Alok Chourasia in the
photocopy of I.Sc. Admission Form of GLA no. 3089.
(proved on 30.11.2022)
(xxiv) Ext.19- The Signature of the S.D.O -Medininagar in the
letter of the same containing the photocopy of the
Nomination Paper. (proved on 15.12.2022)
(xxv) Ext.20- Letter dated 12.03.2018 send by Ramdip Ram to
the ld. Registrar General, High Court of Jharkhand,
Ranchi. (proved on 21.12.2022)
(xxvi) Ext.21- Transfer Certificates from serial 640 to 712 issued
by A.A High School, Guriadamar. (proved on 21.12.2022)
(xxvii) Ext.22-Signatures of the Kashi Prasad in the copy of
Admission Register, A.A High School, Guriadamar,
Lesliganj. (proved on 21.12.2022)
Evidence of Respondent
32. On the other hand, the Respondent examined the following
witnesses:-
Election Petition No. 02 of 2020
(i) D.W.1- Ram Law Prasad (Agriculturist) examined on
14.11.2022. He deposed about the election of the Respondent
in the 2019 Assembly Election from Daltonganj Assembly
Constituency. He also participated in the scrutiny of
nomination papers which took place on 14th November 2019.
No objection was raised by anyone at the time of the scrutiny
of the nomination papers, regarding the nomination papers
filed by the Respondent. The Respondent is the nephew of
DW 1. The date of birth of the Respondent is 15th February
1988.
In his cross examination he denied the suggestion that
the date of birth of the Respondent is 15.02 .1995.
(ii) D.W.2- Bhishm Prasad Chourasiya examined on 21.11.2022.
He deposed that the father of the Respondent was this
paternal uncle. The DW 2 was present at the time of birth of
the Respondent in his house at Majhigawan. The Respondent
was born on 15th February 1988 on the day of ShivRatri. The
father of the Respondent because of his remaining busy with
his social work used to devote less time in the education of
his children.
In his cross-examination, he denied the suggestion that
he has given a false date of birth of the Respondent in
paragraph 3 of his examination in chief.
It is pertinent to mention here that in the cross-
examination of the DW 2, the Petitioner even did not say as
to what was the exact date of birth of the Respondent,
according to the Petitioner.
(iii) D.W.3- Sachchida Nand Pandey, aged about 65 years,
examined on 28.11.2022. He has deposed that he has been
doing the "Puja Path" in the house of the Respondent. On the
birth of the Respondent, on being called by the Grandfather
of the Respondent to fix the auspicious time for Bath and the
6th day celebration; he prepared the "Tipni" and saw the
Election Petition No. 02 of 2020
auspicious time. The Respondent was born on the 13th day of
that "Krushna Pakhya" of the month of Falgun in Sambat
2044 at 7.10 p.m. which, according to the English calendar his
15 February 1988. He prepared the horoscope of the
Respondent at the time of birth of the Respondent. He
proved the horoscope of the Respondent which has been
marked Exhibit D.
In his cross-examination he has stated that the date of
birth of the Respondent has been entered in the horoscope; as
per the instruction received from his grandfather. He denied
the suggestion that the horoscope is a forged one.
It is pertinent to mention that in the cross-examination
of the D.W. 3, the Petitioner has not challenged the testimony
that the DW 3 prepared the horoscope of the Respondent.
The testimony in the examination in chief of the DW 3 that
the Respondent was born on 15.02.1988 has remained
unchallenged. The Petitioner also did not challenge the
testimony of the D.W. 3 to the effect that he prepared the
"Tipni" and fixed the auspicious time for the bath and the 6th
Day ceremony. So in the absence of any cross-examination on
this important aspect of the deposition of the D.W. 3 filed in
the shape of an affidavit, this unchallenged portion of his
testimony is to be accepted.
(iv) D.W.4- Ashesh Chourasia (Farmer) examined on 29.11.2022.
He deposed that he is the brother-in-law (SALA) of the
paternal uncle of the Respondent. The Respondent was born
on or 15 February 1988 on the day of Shivratri. The D.W. 4 for
attended the 6th day ceremony, which was held in the month
of February; on receiving the invitation. The Respondent is
the eldest son of his father, Anil Chaurasia.
In his cross-examination he denied the suggestion that
he is adducing false evidence in collusion with the
Respondent.
Election Petition No. 02 of 2020
It is pertinent to mention here that the testimony of the
DW 4 in his examination in chief to the effect that the
Respondent was born on 15 February 1988 has remained
unchallenged. Hence, in the absence of any cross-
examination on this important aspect of the testimony of the
DW 4, this part of the testimony of the DW 4 is to be treated
as true.
(v) D.W.5- Sunil Chaurasiya (Farmer) examined on 30.11.2022.
He has deposed that he is the brother of the father of the
Respondent. The Respondent is the eldest son of his father's
namely Anil Chaurasia. Since Anil Chaurasia used to remain
busy with politics, hence, the DW 5 took the Respondent for
his admission in school. The DW 5 got the Respondent
admitted in A.A. High School, Guriadamar, Lesliganj,
Palamau by submitting an Admission Form on 16.05.2007.
On the basis of the said admission form, the Respondent was
admitted in Class VIII B. The date of birth of the Respondent
is 15.02.1988 and the said date of birth was mentioned in the
admission form. The DW 5 identified his signature at 3 places
in the Admission Form which have been marked exhibit E,
E/1 and E/2.
In his cross-examination he has stated that the time of
admission; the age of the Respondent was 19 years, 3 months.
He denied the suggestion that the date of birth of the
Respondent which 15.02.1995 and not 15.02.1988.
(vi) D.W.6- Surjeet Kumar Singh (Addl. Collector, Palamau)
examined on 15.12.2022. He deposed that in 2019 Assembly
Election, he served as the Returning Officer of 76, Daltonganj
Assembly Constituency. At the time of the scrutiny of the
nomination papers of the Respondent, no one raised any
objection. After the completion of scrutiny at 3.00 PM; one
objection was received regarding the age of the Respondent
at 5.25 PM. The Respondent was declared elected.
Election Petition No. 02 of 2020
In his cross-examination, he stated that after receiving
the objection, the Respondent was asked to produce
documents in support of his age. Jharkhand Academic
Council Certificate and Mark sheet was produced by the
Respondent, on 21.11.2019. He denied the suggestion that the
Respondent had not attained the qualifying age for filing
nomination papers.
(vii) D.W.7- Rajani Kant Verma (Retired District Education
Officer, Ranchi) examined on 19.12.2022. He deposed that he
was posted as the Secretary, Jharkhand Academic Council,
Ranchi from 2016 to 2018. He does not remember the process
being adopted by the Jharkhand Academic Council for
rectification and correction of date of birth of any candidate.
On being proved by him; the certified copy of his deposition
in E.P.No.11/2015 has been marked Exhibit G. He also
proved the documents marked Exhibits- H, I, J & K. In his
cross-examination, on being shown. He stated that both
Exhibit 12 and Ext. I appear to be same.
(viii) D.W.8- Kashi Prasad (Retired Head Master and Secretary
Adiwasi Awasiya High School, Guriya Damar, P.S. Lesliganj,
Palamau) examined on 21.12.2022. He has deposed that in the
year 2007, he was working as the Headmaster of the A.A.
High School, Guriadamar, Lesliganj, Palamau. Looking at
exhibit E, the D.W. 8 stated the Admission Form is of
16.05.2007 with regard to the Respondent. The date of birth of
the Respondent has been mentioned as 15.02.1988. The school
Admission Form on being identified by him was marked
exhibit L. The school admission registers of the A.A. High
School, Guriadamar, Lesliganj, Palamau for the year 2007
was opened on 26.04.2007. On the same day, the D.W. 8
certified on the 1st page of the said register which was
marked exhibit M. The name of the Respondent has been
made in the school admission register at page number 6 in
Election Petition No. 02 of 2020
serial number 86 and his date of birth is mentioned as
15.02.1988. The page 6 of the school admission register was
marked exhibit N. The DW 8 also proved the attendance
register of the A.A. High School, Guriadamar, Lesliganj,
Palamau of Class VIIIB of the year 2007, the attendance sheet
of which started from 26 April 2007 to 15 March 2008. The
name of the Respondent has been mentioned with his Roll
No. 85 at page number 6 and the 1st attendance of the
Respondent was recorded on 16th of May 2007. The last
attendance of the Respondent was recorded on 15th March
2008 at page no.25. The said attendance register was marked
exhibit O. The transfer certificate of the Respondent where
his date of birth has been mentioned as 15.02.1988; on being
proved by the D.W. 8. It was marked exhibit Q.
In his cross-examination the DW 8 has stated that he
joined the A.A. High School, Guriadamar, Lesliganj, Palamau
on 02.01.1983 on the post of Headmaster and retired from the
said school on 26.11.2017. He further stated that Prem
Prakash never worked as in charge, Headmaster in the said
A.A. High School, Guriadamar, Lesliganj, Palamau. The
District Education Officer called for the register from the year
2005 to 2012, in connection with filing of an application
under the Right to Information Act. He denied the
suggestion that exhibit L was created after the year 2012 to
change the date of birth of his land from 15.02.1995 to
15.02.1988 to help him. He also denied the suggestion that
exhibit M and O are forged documents.
(ix) D.W.9- Alok Chaurasiya is the Respondent himself. He was
examined on 17.02.2023. He corroborated the averments
made in his written statement. He specifically stated that his
date of birth is 15.02.1988. Smt. Raja Kunwar worked as the
village nurse at the time of the birth of the Respondent. She
was examined as a witness in E.P.11 of 2015 but as now she
Election Petition No. 02 of 2020
has become very old and he is facing difficulty in walking
hence she could not come to depose as a witness in this case.
His initial education took place in his house because of lack
of provision of education in the village. His father used to
remain busy in politics. Hence his admission in school was
made belatedly. As his father was ill and because of lack of
knowledge regarding the procedure to rectify the date of
birth in the certificates, the D.W. 9 could not immediately
rectify his incorrect date of birth. In the month of August
2012, through the Giriwar High School, Medininagar; he
applied for correction of his date of birth to the Jharkhand
Academic Council. The Jharkhand Academic Council after
enquiry and investigation and on the basis of the documents
of the schools certified by the District Education Officer,
Daltonganj passed the order for correction in February 2014.
After the said order, the Respondent, deposited all the
necessary certificates, in which his date of birth were
wrongly mentioned with the Jharkhand Academic Council
and after cancelling the earlier certificates, new certificates
have been issued in favour of the Respondent mentioning his
date of birth to be 15.02.1988. In his horoscope also his date of
birth has been mentioned as 15.02.1988. His name was
entered in the voter's list as per the provisions of the
Registration of Electoral Rules, 1960. Before entering his
name in the voter's list, the competent authority published
the draft of the same but as no one raised any objection, only
after that the competent authority included the name of the
Respondent in the voter's list before starting of the election
process for the 2014, since he was residing outside the
village/house and he could not get his name included in the
voter's list. He also proved the documents which have been
marked with S, T, U, V, W, X & Y.
In his cross-examination, the D.W. 9 has stated that he
Election Petition No. 02 of 2020
was in his house till he attained the age of 17 years. His date
of birth is 15.02.1988. He went to school for the 1st time in the
year 2007. On 16-05-2007 within the radius of 2 km from his
house four government schools having the facility of
imparting education up to Class VI out of which 2 schools
having the facility to impart education up to Class VIII were
situated. By mistake, he mentioned his date of birth in the
registration form for appearing in Jharkhand Academic
Council examination as 15.02.1995. He filled up a form for his
admission into Giriwar High School, Medininagar wherein
he mentioned his correct date of birth as 15.02.1988. He
further stated that Exhibit 8 is not his signature and Exhibit
18 does not contain the signature of his father. Exhibit 8 and
Exhibit 18 do not contain his signature. Before the year 2012,
he never submitted an application for correction of his date
of birth; as he was busy looking after his ailing father. His
father died on 16.06.2012. His mother never submitted a
nomination paper for election as Member of Legislative
Assembly prior to 2014. The signature of his mother is not
appearing in Exhibit 9/2. Exhibit 9/1 is his Voter Identity
Card. He annexed Exhibit 10 with Exhibit 9. He could not
identify the Exhibit 6. His mother also submitted a
nomination paper in the year 2014 to contest the assembly
election but later on she withdrew her candidature. Some of
the supporters of his father were in favour of the candidature
of his mother. But some of the supporters were in favour of
his candidature for the election of the year 2014; hence he and
his mother both submitted their nomination papers but later
on the supporters got united and decided that only the
Respondent will contest the said assembly election, therefore,
his mother, withdrew her candidature. Before 2009, he was
residing at Ranchi and Daltonganj. He denied the suggestion
that he was below the age of 25 years in the year 2014 and in
Election Petition No. 02 of 2020
the year 2019. In paragraph 74 of his cross-examination; he
admitted the suggestion of the Petitioner, that all his
Classmates were having their date of birth between 1994-
1996, but his year of birth is 1988. He denied the suggestion
that his original date of birth in 15.02.1995 and on the basis of
forged documents, he got his date of birth corrected as
15.02.1988.
The further examination in chief of the DW 9 was
recorded on recall, wherein he identified the documents with
have already been marked as Exhibit I, J, K, H. In his cross-
examination after that he stated that in the exhibits, I, J, K,
and H, his date of birth has been corrected.
33. Besides the oral testimony of the witnesses the Respondent
also proved the following documents:-
(i) Ext.A- C.C of Order No. 1 dated 20.01.2015 of E.P No.
02/2015. (proved on 05.04.2022)
(ii) Ext.A/1- C.C of Order No. 02 dated 06.02.2015 of E.P
No. 02/2015. (proved on 05.04.2022)
(iii) Ext.B- The signature of the then Principal Sri DC
Dubey in the Character Certificate issued by GLA
College, Medininagar. (with objection). (proved on
07.06.2022)
(iv) Ext.C- Seal of JAC, Ranchi dt. 28.01.2014 at page 8 of
Order sheet maintained by Returning Officer. (proved
on 19.07.2022)
(v) Ext.D- Horoscope of Alok Choursiya. (proved on
28.11.2022)
(vi) Ext. E, E/1 and E/2- Admission Form submitted on
16.05.2007 in the Guriadamar School Lesliganj,
Palamau. (The witness identifies his signature)
(proved on 30.11.2022)
Election Petition No. 02 of 2020
(vii) Ext.F- Application dated 28.08.2012 of Alok Chaurasia
regarding correction in his D.O.B to Secretary, JAC,
Ranchi. (proved on 19.12.2022)
(viii) Ext. G- Certified copy of deposition of Rajnikant
Verma in EP No. 11/15. (proved on 20.12.2022)
(ix) Ext.H- Certificate of issued by JAC, Ranchi in favour
of Alok Chourasia regarding passing of 10th Class
Examination. (proved on 20.12.2022)
(x) Ext.I- Registration Slip issued in the name of Alok
Chourasia issued by JAC, Ranchi. (proved on
20.12.2022)
(xi) Ext.J- Admit Card issued in the name of Alok
Chourasia issued by JAC, Ranchi. (proved on
20.12.2022)
(xii) Ext.K- Mark Sheet issued in the name of Alok
Chourasia of Annual Secondary Examination - 2010
issued by JAC, showing dt. 10.05.2010. (proved on
20.12.2022)
(xiii) Ext.L- Admission Form dated 16.05.2007 of A.A High
School, Guriadamar, Lesliganj, Palamu of Alok
Chourasia. (proved on 21.12.2022)
(xiv) Ext.M- School Admission Register of A.A High School
of 2007. (with objection) (proved on 21.12.2022)
(xv) Ext.N- Page 6 of Admission Register of A.A High
School, Guriadamar, Lesliganj. (proved on 21.12.2022)
(xvi) Ext.O- Attendance Register of A.A High School,
Guriadamar, Lesliganj.( with objection). (proved on
21.12.2022)
(xvii) Ext.P & Ext.P/1- Page 6 & 25 marked with objection.
(proved on 21.12.2022)
(xviii) Ext.Q- Transfer Certificate of Alok Chourasia
dt.15.04.2008 issued by Kashi Prasad, the then
Headmaster. (proved on 21.12.2022)
Election Petition No. 02 of 2020
(xix) Ext.R- Certified copy of deposition of Kashi Prasad in
EP 11 of 2015. (proved on 21.12.2022)
(xx) Ext.S- Certified copy of order dated 06.02.2015 in E.P.
No. 2 of 2015 (proved on 17.02.2023)
(xxi) Ext.T- Certified copy of petition along with order
nos.1 to 5 in E.P. No. 10 of 2015.(proved on 17.02.2023)
(xxii) Ext.U- Certified copy of order dated 14.10.2015 in
W.P.(C) No. 2190 of 2015. (proved on 17.02.2023)
(xxiii) Ext.V- Certified copy of petition in E.P. No. 11 of 2015.
(proved on 17.02.2023)
(xxiv) Ext.W- Certified copy of Title page of petition of E.P.
No.11 of 2015 along with order dated 20.12.2019
(proved on 17.02.2023)
(xxv) Ext.X- Certified copy of deposition of Eugine Minj,
the then Deputy Secretary, JAC, Ranchi of E.P. No. 11
of 2015. (proved of 17.02.2023)
(xxvi) Ext.Y- Certified copy of affidavit and deposition of
Raja Kunwar in E.P. No. 11 of 2015 (proved on
17.02.2023)
34. The following documents which could not be proved by
either of the parties have been marked for the purpose of
identification only:-
(i) X- C.C of letter bearing no. 177 (B) dated 04/01/2016
of Headmaster I/c, Giriwar Inter School,
Medininagar, Palamu addressed to Dhruv Narayan
Pandey under RTI. (marked on 29.03.2022)
(ii) Y- Certified copy of Voter list -2014. (marked on
05.04.2022)
(iii) X/1- C.C of Guard file containing T.C documents
from Sl. No. 638 to 725, in 61 ps. (marked on
10.05.2022)
Election Petition No. 02 of 2020
(iv) X/2- C.C of School leaving certificate issued ot Alok
Chaurasia bearing Sl. No. 490 in bundle of school
leaving certificate. (marked on 10.05.2022)
(v) X/3- C.C of Transfer Certificate issued by Adivasi
Awasiya Uccha Vidhyalaya, Guria Damar, Lesliganj,
Palamau dated 15.04.2008 bearing letter no. 60.
(marked on 10.05.2022)
(vi) X/4- Copy of admission registers of Giriwar High
School. (marked on 10.05.2022)
(vii) X/5- Certified copy of SLC of Rajya Krit Girwar Inter
Level High School, Mediningar, Palmau submitted to
GLA College (at the time of Admission). (marked on
07.06.2022)
(viii) X/6- Cancelled Certified copy of SLC of Rajya Krit
Girwar Inter Level High School, Mediningar, Palmau.
(marked on 07.06.2022)
(ix) X/7- Order sheet dated 01.09.2012 on 27.08.2016.
(marked on 19.07.2022)
(x) X/8- Signature of Deputy Secretary of JAC supplied
under RTI. (marked on 19.07.2022)
(xi) X/9- Copy of Admission Register -2007-08 of Adivasi
Awasiya High School, Guriadamar, Lesliganj,
Palamu. (marked on 15.09.2022)
(xii) X/10- Copy of Guard file Adivasi Awasiya High
School, Guriadamar, Lesliganj, Palamu. (marked on
15.09.2022)
(xiii) X/11- Attested copy of Transfer Certificate bearing
letter no. 60 of A.A Ucha Vidyala, Guriadamar,
Lesliganj issued by Head Master I/c, Rajya Krit,
Giriwar +2, Uccha Vidhyala, Medininagar, Palamu .
(marked on 15.09.2022)
Election Petition No. 02 of 2020
(xiv) X/12- Admission Register - 2007-08. (Entry of Sl. NO.
707) of Adivasi Awasiya High School, Guriadamar,
Lesliganj, Palamu. (marked on 15.09.2022)
(xv) X/13/A to X/13/A7- Note sheet of file no.
JAC/Palamu Kosang/19494/12 from 3108.2012 from
page 1 to 8. (marked on 20.12.2022)
(xvi) X/14- Letter dated 08.03.2018 addressed to Head
Master I/c, A.A High School, Guriadamar to the
Registrar, Civil Courts, Palamau. (marked on
21.12.2022)
Arguments on behalf of Petitioner
35. Mr. Salman Khurshid, the learned counsel for the Petitioner
submits that the election petition has been filed with the sole ground
that the Respondent did not attain the age of 25 years at the time of
his election as Member of Legislative Assembly, as mandated under
article 173 (b) of the Constitution of India and through the evidence
put forth by the Election Petitioner, it has been established that in
fact the Respondent did not attain the age of 25 years on the date of
the election as Member of Legislative Assembly, hence the election of
the Respondent is a fit to be declared void under section 100 (1) (d)
(i) and (iv) of the Representation of the People Act, 1951.
36. Mr. Khurshid the learned senior counsel next submitted that
the result of 76, Daltonganj Assembly Constituency of the year 2019,
was declared on 23.12.2019 and this election petition has been filed
before this court on 29.01.2020, well within the period of 45 days as
provided for under section 81 (1) of the Representation of Peoples
Act,1951. Therefore, this election petition is not barred by limitation.
Election Petition No. 02 of 2020
37. In respect of the contention of the Respondent that the
election petition is fit to be rejected for no correct and authenticated
copy of the election petition having been served upon the
Respondent, it is submitted by the learned senior counsel for the
Election Petitioner that the copy of the election petition has been
served upon the Respondent and such copy of the Election Petitioner
was filed along with the election petition in compliance with section
81 (3) of the Representation of the People Act, 1951. It is next
submitted that neither any such defect was pointed out by the
registry of this Court nor the Respondent has proved that such
contention of non-service of correct and authenticated copy of the
election petition upon the Respondent, hence this contention of the
Respondent has no merit. Relying upon the judgment of the Hon'ble
Supreme Court of India in the case of Murarka Radhey Shyam Ram
Kumar Vs. Roop Singh Rathore and Others reported in AIR 1964
SC 1545, paragraph 8 and 11 of which reads as under:
"8. Xxxxxxx It seems clear to us that the reading
the relevant sections in Part VI of the Act, it is impossible to
accept the contention that a defect in verification, which is to
be made in the manner laid down in the Court of Civil
Procedure, 1908, for the verification of pleadings as required
by clause (c) of subsection (1) of section 83 is fatal to the
maintainability of the petition".
11. We are of the view that the word "copy" in
subsection (3) of section 83 does not mean an absolutely the
exact copy, but remains that the copy shall be so true that
nobody can by any possibility misunderstand it (see Stroud's
judicial Dictionary, third edition, volume 4, page 3098). In
view of the matter, it is unnecessary to go into the further
question whether any part of subsection (3) of section 81 he is
merely directory xxxxX"
Election Petition No. 02 of 2020
It is submitted by the learned senior counsel that even if
assuming for the sake of argument that there is some minor
discrepancy in the copy of the Election Petition supplied to the
Respondent, the same shall not be fatal for this election petition. In
respect of the contention that the Petitioner, failed to plead the cause
of action in the election petition, the learned senior counsel relied
upon the judgment of the Hon'ble Supreme Court of India in the case
of Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy and Others
reported in (2012) 7 SCC 788.
38. In respect of the contention of the Respondent that this
election petition is barred by the principle of res judicata, it is
submitted by the learned senior counsel for the Election Petitioner
that in view of the order dated 10.08.2021 passed by the Hon'ble
Supreme Court of India in the case of Krishna Nand Tripathy Vs.
Alok Chaurasiya passed in Civil Appeal No. 191 of 2020 in
connection with the Election Petition No. 11 of 2015, a copy of which
has been marked Exhibit 5 which reads as follows:
"We intend to dispose of this appeal as infructous
leaving all questions of fact and law open, to be decided in the
fresh election petition. In respect of subsequent elections,
which petition be decided on its own merits and in accordance
with law.
In other words, independent evidence will have to be
produced in the subsequent election petition and that will have
to be analysed and considered on its own merits, independent
of the finding of fact recorded in the impugned judgment.
As the appellant has filed another election petition
against the Respondent pertaining to subsequent elections, we
request the High Court to dispose of the same expeditiously
and more so, keeping in mind the statutory mandate to dispose
Election Petition No. 02 of 2020
of an election petition within six months.
All contention available to the parties are left open.
The appeal is disposed of accordingly.
Pending applications, if any, stand disposed of."
Hence, this election petition is not barred by the principle of res
judicata.
In respect of the contention of the Respondent, that the issue of
date of birth of the Respondent is beyond the scope of election
petition, it is submitted by the learned senior counsel, by relying
upon the judgment of the Hon'ble Supreme Court of India in the case
of P.H. Paul Manoj Pandian v. P. Veldurai reported in (2011) 5 SCC
214 paragraph 57 of which reads as under :
"57. Normally, the Superintending Engineer
would be competent to terminate the contracts when breach of
the terms and conditions is committed by a contractor.
However, in the present case the Court finds that the contracts
were to be brought to an abrupt end because the Respondent
was intending to contest the election. Such an eventuality was
never contemplated under the contracts and the contracts
entered into by the Respondent with the Government could
have been terminated only as per the terms and conditions
stipulated in the Government Order dated 16-11-1951.
Therefore, neither the Divisional Engineer had the authority to
terminate the contracts nor had the Superintending Engineer
any authority to terminate the contracts. Thus, the action of
the Superintending Engineer in ratifying the cancellation of
the contracts made by the Divisional Engineer is of no
consequence."
that in that case also the Hon'ble Supreme Court of India
considered the validity of termination of the Government contract. It
is next submitted by the learned senior counsel for the Petitioner that
the law is well settled that if the Constitution of India provides for a
disqualification or disability, then whether that disqualification is
Election Petition No. 02 of 2020
attracted or not is a question for the court to decide, hence such a
question can be looked into an election petition. In support of his
contention, the learned senior counsel relied upon the judgment of
Patna High Court in the case of Pramod Singh Chandravanshi Vs.
Som Prakash Singh reported in AIR 2014 Pat 156. In the case of P.H.
Paul Manoj Pandian Vs. Mr. P.Veldurai (supra) as also in the case
of Sushil Kumar Vs. Rakesh Kumar reported in (2003) 8 SCC 673.
39. So far as the contention of the Respondent that the Petitioner
has no locus standi to file election petition, it is submitted by the
learned senior counsel for the Petitioner that undisputedly, the
Petitioner himself was a candidate and also an elector from the 76,
Daltonganj Assembly Constituency in the year 2019 and as such, as
per the provisions of section 8 (1) of the Representation of the People
Act, 1951 the Petitioner has locus standi to file the present election
petition. Hence, it is submitted that there is no merit in this
contention of the Respondent.
40. In respect of issue whether the date of birth of the
Respondent is 15.02.1995 or 15.02.1988; it is submitted by the learned
senior counsel for the Petitioner, since undisputedly, in all the
educational certificates of Respondent, his date of birth was recorded
as 15.02.1995 and the Respondent himself filed his registration form
mentioning his date of birth as 15.02.1995, his name was included in
the voter's list for the 1st time in the year 2014 when he was 26 years
of age and not before that. During the period of 2008-2012, the
Respondent did not take any step to correct his date of birth and the
Election Petition No. 02 of 2020
mother of the Respondent did not come to court to depose as a
witness; in order to declare the date of birth of the Respondent to be
15.02.1988 and not 15.02.1995.
41. In respect of the issue whether the date of birth of the
Respondent in the school register of Giriwar High School,
Medininagar was recorded as 15.02.1995 or 15.02.1988, it is submitted
by the learned senior counsel for the Petitioner that it is undisputed
by the Respondent that initially in all his educational certificates, his
date of birth was mentioned as 15.02.1995; and if in the school
records the date of the Respondent would have been mentioned as
15.02.1988, the same must have been reflected in the school leaving
certificate and the character certificate. But in those two documents
the date of birth has been mentioned as 15.02.1995 which goes to
show that the date of birth of the Respondent was mentioned in the
school register as 15.02.1995. Further the witness Chandrabali
Choubey in his examination in chief has clearly stated that there is
tampering in school admission register marked exhibit W also goes
to show that the date of birth mentioned in the school register was
15.02.1995.
42. So far as the issue as to whether the early education of the
Respondent was in villages, is concerned, it is submitted by the
learned senior counsel for the Respondent that it is quite strange that
when his brothers and sisters went to school, the Respondent did his
early education from the villages and did not go to school. It is then
submitted by the learned senior counsel that in the absence of any
Election Petition No. 02 of 2020
explanation as to how the Respondents studied up to Class VIII, it
can safely be said that the Respondent tried to suppress the details of
early schooling in order to suppress his date of birth recorded in the
previous records.
43. In respect of the issue as to whether at the time of the
admission of the Respondent in A.A. High School, Guriadamar,
Lesliganj, Palamau, in Class VIII in the admission- cum- declaration
form, submitted to the school, the uncle and guardian of the
Respondent namely Shri Sunil Chaurasia, disclosed the date of birth
of the Respondent to be 15.02.1988, it is submitted by the learned
senior counsel for the Petitioner that since at the relevant time, both
the father and mother of the Respondent were alive; it cannot be
treated that the said Sri Sunil Chaurasia, was the guardian of the
Respondent. There is no document in the record to suggest that the
said Sunil Chaurasia was the guardian of the Respondent. Moreover,
as by that date the Respondent was aged more than 18 years; as per
his claim, there was no requirement of any guardian. It is then
submitted that from the said circumstances, it becomes crystal clear
that the said admission-cum-declaration form was created after the
death of the father of the Respondent, to facilitate the change in the
date of birth of the Respondent. It is then submitted that the manners
in which the school records were tampered with, as is evident from
the deposition of the DW 8, none of the documents of the school
could be relied upon.
Election Petition No. 02 of 2020
44. In respect of the issue, whether the Respondent while he was
the student of Class IX of the A.A. High School, Guriadamar,
Lesliganj, Palamau, took transfer certificate from the said school on
15.04.2008 and took admission in Government taken over Giriwar
High School, Medininagar and in all the above school admission
register and transfer certificate, the date of birth of the Respondent
was correctly recorded as 15.02.1988, is concerned, it is submitted by
the learned senior counsel for the Petitioner that the entire conduct
and affairs of the A.A. High School, Guriadamar, Lesliganj, Palamau
was suspicious as during the trial of the case, it transpired that as
none of the documents of the school have any authenticity. The letter
received under the Right to Information Act (Exhibit 16) having been
issued by the officiating Headmaster, the veracity of the statement of
the D.W. 8 of remaining the Headmaster till 26.11.2017 becomes
doubtful. The DW 8 in his deposition, having said that the admission
register and the attendance register of the year 2007-08 were seized
by the District Education Officer, but never returned to the school,
goes to show that the said documents were forged documents.
Exhibit 20-which is the letter written to the Registrar General of this
Court by the then Principal of the A.A. High School, Guriadamar,
Lesliganj, Palamau, stating therein that the said registers were not in
the school and was in the custody of the Secretary who was re-
examined as DW 7, goes to show that the said documents were
tampered documents and manufactured registers. The DW 8,
admitted his signatures which have been marked exhibits 22 to
Election Petition No. 02 of 2020
22/LXXII-which were the signatures on a copy of yet another
admission register in which the date of birth of the Respondent has
been tampered with, leaves no doubt that there is no authenticity of
such documents of both the schools produced in this case. The seal in
the transfer certificate of the Respondent (S.No.60) is different than
the other transfer certificates. The ink is different. The reason for
leaving the school is different. The year in the transfer certificate has
been written '08' in case of the Respondent while in case of others;
the year has been written as 2008. Further the student studying in the
Class is also different. It is then submitted that on 15.04.2008, 67,
transfer certificates were issued from the school, hence, there is no
reason as to why the transfer certificate of the Respondent would be
different. It is then submitted that the transfer certificate marked
Exhibit 6, issued in the name of the Respondent and which bears the
date of birth as 15.02.1995 and the same is similar to the other
transfer certificates issued. It is further submitted that there is no
explanation furnished by the Respondent as to if the application
form, admission register, attendance register, as also the transfer
certificate of the A.A. High School, Guriadamar, Lesliganj, Palamau,
contained the date of birth of the Respondent as 15.02.1988, then why
the date of birth has been mentioned as 15.02.1995 in all subsequent
documents. Hence, it is submitted that from the evidence available in
the record, it cannot be said that the school admission registers or
transfer certificate of the Respondent contained the correct date of
birth as 15.02.1988.
Election Petition No. 02 of 2020
45. In respect of the issue whether the Respondent was not able
to get his date of birth as 15.02.1995, as mentioned in the School
Leaving Certificate issued by the Giriwar High School, Medininagar,
corrected, due to serious illness of his father, who later on died, is
concerned, it is submitted by the learned senior counsel for the
Petitioner that none of the witnesses of the Respondent has stated
anything about the serious illness of the father of the Respondent
and since the father of the Respondent contested the assembly
election held in the year 2009; as such, it could not be said that he
was ill, considering the age of the father being 50 years in the year
2009.
46. In respect of the issue whether the Respondent submitted
any application for correction of his date of birth and after making a
detailed enquiry the Jharkhand Academic Council has corrected all
the relevant certificates of the Respondent on 12.02.2014 is
concerned, it is submitted by the learned senior counsel for the
Petitioner that Exhibit-1 shows that no enquiry was made rather on
the basis of certified copy of 3 pages of admission register change in
date of birth was made by the order of the chairman of Jharkhand
Academic Council and the D.E.O. or D.S.E. did not make any
recommendation for such change. It is next submitted that the
Respondent in his application dated 17.08.2012 did not mention that
in any of his school records, his date of birth is 15.02.1988. It is then
submitted that Jharkhand Academic Council adopted a process
Election Petition No. 02 of 2020
completely against the law by suo moto taking steps for correction of
the date of birth of the Respondent in an illegal manner.
47. In respect of issue, whether the transfer certificate issued by
the A.A. High School, Guriadamar, Lesliganj, Palamau to the
Respondent is a tampered document, is concerned, it is submitted by
the learned senior counsel for the Petitioner that since the said
document is the odd one out from the 67 transfer certificates from the
Exhibit 21 series, the reason for leaving the school, manner of writing
the year of issue of the certificate, seal and ink in this transfer
certificate is different and the deposition of PW 8 to the effect that
there were transfer certificates issued in the name of the Respondent
out of which the one containing the date of birth as 15.02.1995 is
missing, clearly goes to show that the transfer certificate issued in the
name of the Respondent was a tampered one.
48. In respect of the issue, whether the voter ID card submitted
by the Respondent before the Jharkhand Academic Council for
correction of his date of birth upon verification was found to have
been issued in the name of Shailendra Kumar Chaurasia, is
concerned, it is submitted by the learned senior counsel for the
Petitioner that as the voter identity card was issued to the
Respondent in the year 2014, so obviously the voter identity card of
the year 2009, could not be that of the Respondent, more so, as the
name of the Respondent was not existing in the voter's list of the
year 2009. Hence, the voters identity card for change of date of birth
Election Petition No. 02 of 2020
submitted along with the application of the Respondent is a forged
one.
49. In respect of the issue, whether the Respondent initiated for
the change of his date of birth by fraudulent means and by forgery, it
is submitted by the learned senior counsel for the Petitioner that
annexing a copy of a non-existing voters identity card and an
unsigned affidavit to the application for correction of the date of
birth by the Respondent even though the application dated
17.08.2012 contains any averment to the effect that the said
application is accompanied by an affidavit goes to show that the
Respondent initiated the change of his date on the basis of forgery.
50. In respect of the issue, whether the school register of Giriwar
High School, Medininagar pertaining to admission of the
Respondent has been tampered with, is concerned, it is submitted by
the learned senior counsel for the Petitioner that the PW 8, in his
examination in chief has stated that there is tampering in the school
admission register and the deposition of PW 8 in this case, as well as
in Election Petition no.11 of 2015, goes to show that the said school
register was a tampered one.
51. It is lastly submitted by the learned senior counsel for the
Petitioner that the evidence in the record, goes to show, that the date
of birth of the Respondent was 15.02.1995, and accordingly, the
Respondent was less than 25 years of age on the date of nomination,
scrutiny and declaration of result of 76, Daltonganj Assembly
Constituency, held in the year 2000 and hence, it is submitted that
Election Petition No. 02 of 2020
the election of the Respondent as a member of Jharkhand Legislative
Assembly is fit to be declared void as he was not qualified to be a
member of 76, Daltonganj Assembly Constituency under section 100
(1) (a) of the Representation of the People Act, 1951.
52. Mr. V. P. Singh, the learned senior counsel for the
Respondent, on the other hand vehemently oppose the prayer for
declaring election of the Respondent as a member of Jharkhand
Legislative Assembly on the ground that he was not qualified to be a
member of 76, Daltonganj Assembly Constituency under section 100
(1) (a) of the Representation of the People Act, 1951.
53. Mr. Singh submitted that this election petition is barred by
the principle of res judicata as the principal issues regarding the date
of birth of the Respondent being 15.02.1995 or 15.02.1988 has already
been finally decided by this court in Election Petition no. 11 of 2015.
It is then submitted by the learned senior counsel for the Respondent
that the dispute of date of birth of a person is a common law dispute
and the same cannot be raised in an Election Petition, which confers
upon the court a limited jurisdiction, in view of the provisions of the
Representation of the People Act, 1951. It is then submitted by Mr.
Singh that in any case, the dispute of date of birth being a common
law dispute, the standard of pleading and proof as is required for a
common law dispute is applicable, in a case where the date of birth
of any person is questioned. It is then submitted by the learned
senior counsel for the Respondent that when any party to any
proceeding of civil nature raises the plea of fraud, then it is a settled
Election Petition No. 02 of 2020
principle of law, that such person has to plead the details and
particulars of the fraud alleged and even the date of the same as is
required under Order VI Rule 4 of the Code of Civil Procedure.
54. It is then submitted by Mr. Singh that the approach of the
Petitioner in this petition is more or less of beating up the bush. It is
then submitted that there is no any proof, put forth by the Petitioner
as to what was the date of birth of the Respondent and on what basis
the Petitioner is contending that, the date of birth of the Respondent
was any date other than 15.02.1988. It is next submitted that though
the Petitioner has mentioned in the petition that the date of birth of
the Respondent is 15.02.1995, but such pleading is a vague one. There
is no pleading as to where the Respondent was born and how come
the Petitioner came to know about the date of birth of the
Respondent. It is then submitted that this being a proceeding of civil
nature, where the Petitioner only has a vague case regarding the date
of birth of the Respondent and has made a negative pleading that the
date of birth of the Respondent was not 15.02.1988, so the burden
was obviously heavy upon the Petitioner to establish 15.02.1995 to be
the date of birth of the Respondent; which the Petitioner has
miserably failed to discharge. It is next submitted by the learned
senior counsel for the Respondent, that the falsity of the case of the
Petitioner is laid bare from the fact that even the Petitioner has not
dared to say on oath that the date of birth of the Respondent is
15.02.1995; as, the Petitioner himself knows pretty well that such
contention of the Petitioner is out and out false, hence, the Petitioner
Election Petition No. 02 of 2020
avoided supporting his own case on oath to save himself from the
consequences of adducing false evidence and this false case has been
foisted to harass the Respondent only. On the other hand, it is the
specific case of the Respondent that his date of birth is 15.02.1988.
The Respondent has specifically pleaded the same and proved the
same by cogent evidence. The Respondent has examined the persons
who have testified about the birth of him on 15.02.1988. The
testimony of D.W. 2 and D.W. 3 including the Pandit being D.W. 3
who prepared the horoscope of the Respondent at or about the time
of the birth of the Respondent has remained unchallenged in their
cross-examination and hence the same is to be accepted as the truth.
Though some denial suggestion was given to some of the witnesses
of the Respondent that the date of birth of the Respondent was not
15.02.1988, but nothing has been elicited in their cross-examination to
demolish in their testimonies in their examination in chief and mere
denial suggestion in the cross-examination of such witnesses will
certainly not discredit their testimony. It is next submitted that in
view of this overwhelming evidence of unimpeachable nature, put
forth by the Respondent both Oral and Documentary being Ext. D,
not only established the case of the Respondent in the scale of
preponderance of probability, which is required in a proceeding of
civil nature like an election petition; but even establishes the case of
the Respondent beyond any reasonable doubt. It is submitted by Mr
Singh that as the Respondent has succeeded in establishing his date
of birth to be 15.02.1988; so, assuming for the sake of argument,
Election Petition No. 02 of 2020
though not admitting, that at the time of admission of the
Respondent in some school or other, his date of birth has been
erroneously mentioned which was later on, erroneously rectified in
an illegal manner, still such erroneous acts even if established, cannot
change the date of birth of the Respondent to be 15.02.1988. As the
Respondent has succeeded in establishing his date of birth to be
15.02 .1988, so, certainly the Respondent was not less than 25 years of
age on the date of filing of the nomination and on subsequent dates
relating to his election as the Member of Legislative Assembly from
76, Daltonganj Assembly Constituency in the year 2019. Hence this
election petition being without any merit is liable to be dismissed on
this score alone.
55. It is next submitted by Mr Singh that the Petitioner has
miserably failed to adduce any evidence in respect of any of the
material issues in this case. It is submitted that the Petitioner, though
contended that the Respondent has tampered with the admission
register and other documents of Giriwar High School, Medininagar
but he cunningly avoided proving the concerned registers and
documents said to have been forged or tampered with. Relying upon
the judgment of the Hon'ble Supreme Court of India in the case of
Ram Singh and others Vs. Col. Ram Singh reported in 1985 Supp
SCC 611, it is submitted by the learned senior counsel that in that
case it has been held by the Hon'ble Supreme Court of India, of
course, relating to corrupt practice as per section 123 (2) of the
Representation of the People Act, 1951 that even though the election
Election Petition No. 02 of 2020
petition is a civil proceeding, but the standard of proof required is
that of a criminal case. It is submitted by Mr. Singh that the standard
of proof required to establish fraud and forgery, as well as the
allegation of tampering any document which also amounts to
forgery; is the proof of the facts beyond reasonable doubt and the
Petitioner has miserably failed to put forth any cogent evidence in
this respect, let alone proving the said allegations, beyond the
reasonable doubt. It is further submitted that in that case the Hon'ble
Supreme Court of India has also held that when two views are
possible, the one favorable to the returned candidate be preferred.
56. It is then submitted by Mr. Singh that the Petitioner has not
adduced any evidence whatsoever to support his contention that the
early education of the Respondent was not in villages. Similarly,
Petitioner has failed to adduce any evidence whatsoever in support
of his contention that the Jharkhand Academic Council has adopted
illegal means for changing the date of birth of the Respondent
from15.02.1995 to15.02.1988. It is also submitted by Mr. Singh that
the Petitioner has not questioned the prolonged illness of the father
of the Respondent ultimately leading to his death as the same was
the truth, even to the knowledge of the Petitioner himself and he has
not dared to make any false statement on oath. It is submitted by the
learned senior counsel for the Respondent that the Petitioner was
knowing pretty well that the voters ID card of Shailendra Kumar
Chaurasia was never submitted by the Respondent along with his
application for correction of his date of birth, hence, the Petitioner
Election Petition No. 02 of 2020
also not dared to make any false statement, in this respect either
himself or through any of his witnesses. It is lastly submitted by Mr.
Singh that this election petition filed by the Petitioner being a
frivolous one, the same be dismissed with exemplary costs.
Findings
57. Having heard the submissions made at the bar and after
going through the materials in the record, it will be appropriate to
first take up the issue number (iv) as to whether the election petition
is barred by principle of res judicata? Now coming to the facts of the
case, no doubt the issues involved in this Election Petitioner are
directly and substantially issues in the earlier election petition being
Election Petitioner Number 11 of 2015. Had there been no order of
the Hon'ble Supreme Court of India in the case of Krishna Nand
Tripathy Vs. Alok Chaurasiya passed in Civil Appeal No. 191 of
2020 dated 10.08.2021, certainly this election petition would have
been barred by the principle of res judicata. But in view of the said
order dated 10.08.2021, as already mentioned in paragraph-38 of this
judgment, this Court has no hesitation in holding that this election
petition is not barred by the principle of res judicata. The issue
number (iv) is answered accordingly, in the negative.
58. So far as the issue number (v) as to whether the date of birth
of the Respondent is beyond the scope of an election
petition/disputes/trial is the same as has admittedly taken place
earlier to the date of notification for election is concerned, the
Election Petitioner in this election petition has challenged the election
Election Petition No. 02 of 2020
of the Respondent on the ground that the Respondent was aged less
than 25 years on the date of his filing of nomination, and election as
the Member of Legislative Assembly from the 76, Daltonganj
Assembly Constituency. There is no quarrel that in case, it is found
that the Respondent was of less than 25 years on the date of this
filing of nomination paper as well as election; as the Member of
Legislative Assembly, his election will be fit to be declared as void.
To determine whether the Respondent was less than 25 years or not
on the date of filing the said nomination as well as election the date
of birth of the Respondent is the determining factor. In view of the
judgment of the Hon'ble Supreme Court of India as discussed above,
this court has no hesitation in holding that a common-law dispute
can be adjudicated in an election petition, if the lis involved in the
election petition requires adjudication of such common law dispute.
Under such circumstances this court has no hesitation in holding that
the date of birth of the Respondent is not beyond the scope of an
election petition/disputes/trial even though, the same had taken
place earlier to the date of notification for election. The issue number
(v) is answered accordingly, in the negative.
59. Now coming to the Issue No. (vi) as to whether the Petitioner
has locus standi to file the election petition, is concerned,
undisputedly, the Petitioner himself as a candidate is also an elector
from the 76, Daltonganj Assembly Constituency in the year 2019.
Hence, in view of section 8 (1) of the Representation of the People
Election Petition No. 02 of 2020
Act, 1951, the Petitioner has locus standi to file the present election
petition. Thus, the issue number (vi) is also answered in the negative.
60. So far as the issue number (vii) as to whether the date of birth
of the Respondent is 15.02.1995 or 15.02.1988 is concerned, now
coming to the facts of the case, as rightly submitted by the learned
senior counsel for the Respondent, the Petitioner has not even dared
to say on oath that the date of birth of the Respondent is 15.02.1995.
There is absolutely no evidence in the record put forth by the
Petitioner in this case to the effect that the date of birth of the
Respondent is 15.02.1995. On the other hand, as has rightly been
submitted by the learned senior counsel for the Respondent, the
Respondent has led cogent evidence to the effect that the date of
birth of the Respondent is 15.02.1988. DW 3 and the DW 4, as already
indicated above in this judgment, have not even been cross examined
in respect of their testimony in their respective examination in chief
that the date of birth of the Respondent is 15.02.1988.
It is settled principle of law that if a party wishes to raise any
doubt as regards the correctness of the statement of a witness, the
said witness must be given an opportunity to explain his statement
by drawing his attention to that part of it, which has been objected to
by the other party, as being untrue and without this, it is not possible
to impeach his credibility.
The Hon'ble Supreme Court in the case of Laxmibai (Dead) Thr.
LRs. & Anr. vs. Bhagwantbuva (Dead) Thr. LRs. & Ors. reported in
AIR 2013 (SC) 1204 in para-31 in this respect held as under:-
Election Petition No. 02 of 2020
"31. Furthermore, there cannot be any dispute
with respect to the settled legal proposition, that if a party
wishes to raise any doubt as regards the correctness of the
statement of a witness, the said witness must be given an
opportunity to explain his statement by drawing his attention
to that part of it, which has been objected to by the other party,
as being untrue. Without this, it is not possible to impeach his
credibility. Such a law has been advanced in view of the
statutory provisions enshrined in Section 138 of the Evidence
Act, 1872, which enable the opposite party to cross-examine a
witness as regards information tendered in evidence by him
during his initial examination in chief, and the scope of this
provision stands enlarged by Section 146 of the Evidence Act,
which permits a witness to be questioned, inter-alia, in order
to test his veracity. Thereafter, the unchallenged part of his
evidence is to be relied upon, for the reason that it is
impossible for the witness to explain or elaborate upon any
doubts as regards the same, in the absence of questions put to
him with respect to the circumstances which indicate that the
version of events provided by him, is not fit to be believed, and
the witness himself, is unworthy of credit. Thus, if a party
intends to impeach a witness, he must provide adequate
opportunity to the witness in the witness box, to give a full
and proper explanation. The same is essential to ensure fair
play and fairness in dealing with witnesses. (See: Khem Chand
v. State of Himachal Pradesh, AIR 1994 SC 226 : (1993 AIR
SCW 3675); State of U.P. v. Nahar Singh (dead) & Ors., AIR
1998 SC 1328 : (1998 AIR SCW 1200); Rajinder Pershad
(Dead) by L.Rs. v. Darshana Devi (Smt.), AIR 2001 SC 3207
: (2001 AIR SCW 3042); and Sunil Kumar & Anr. v. State of
Rajasthan, AIR 2005 SC 1096) : (2005 AIR SCW 589)."
(Emphasis given by me)
Thus, the testimony of D.W. 3 and D.W. 4 are to be treated as
true. Nothing has been elicited in the cross-examination of the D.W.
2, D.W. 3, D.W. 4 or D.W. 5 to discredit or discard their testimony.
The oral testimony of the witnesses of the Respondent has been
supported by the documentary evidence in shape of his horoscope
which has been marked Exhibit-D. On the other hand, there is
absolutely no evidence put forth by the Petitioner either oral or
Election Petition No. 02 of 2020
documentary to the effect that the Respondent was born on
15.02.1995. Thus, weighing the evidence of the rival parties of this
case in the scale of preponderance of probability, this Court is of the
considered view that the evidence in the record is sufficient to
establish the fact that the date of birth of the Respondent is
15.02.1988 and the Petitioner has miserably failed to establish his case
that the date of birth of the Respondent is 15.02.1995. The issue
number (vii) is answered accordingly, in favour of the Respondent.
61. Let me now take up the issue number (i), as to whether the
election petition as framed and filed is maintainable, is concerned, it
was contended by the Respondent that the Election Petitioner does
not appear to have been presented personally by the Election
Petitioner. After carefully going through the materials in the record,
this Court finds that there is no material in the record to suggest that
the Petitioner personally did not present the election petition, rather
the evidence in the record is to the contrary. Though, in so many
words, the cause of action has not been mentioned specifically but in
the facts of the case, this court is of the considered view that it will be
too technical an approach to dismiss this election petition merely
because the cause of action has not been specifically mentioned.
Therefore, this court do not find any justification to hold that the
Election Petitioner as framed and filed, is not maintainable. Hence,
these number (i) is answered in the negative.
62. So far as the issue number (ii) is concerned, the result of 76,
Daltonganj Assembly Constituency of the year 2019, was declared on
Election Petition No. 02 of 2020
23.12.2019 and this election petition has been filed before this court
on 29.01.2020, that is well within the period of 45 days as provided
for under section 81 (1) of the Representation of the People Act, 1951.
Hence this court has no hesitation in holding that this election
petition is not barred by limitation. The issue number (ii) is thus
answered in the negative.
63. Now coming to the issue number (iii), as to whether the
election petition is fit to be rejected as no correct and authenticated
copy of the election petition being served upon the Respondent is
concerned, in view of the principle of law settled in the case of
Murarka Radhe Shyam Kumar versus Roop Singh Rathore and
others (supra), this Court, considering the fact that the Respondent
appeared in this case suo moto; and this court never directed the
Petitioner to serve any correct and authenticated copy of the election
petition at any time and as there is no cogent evidence in the record
by the Respondent to the effect that the correct and authenticated
copy of election petition was never served upon the Respondent, this
Court is of the considered view that it will not be proper to reject this
election petition on the mere technical ground for non-service of the
correct and authenticated copy of the election petition upon the
Respondent. Thus, the issue number (iii) is answered in the negative.
64. Now coming to the issue number (viii) as to whether the date
of birth of the Respondent in the school register of Giriwar High
School, Medininagar was recorded as 15.02.1995 or 15.02.1988 is
concerned, it is pertinent to mention here that the said School
Election Petition No. 02 of 2020
admission register has not been brought into evidence by proving
the same nor the same has been marked exhibit. A copy of the same
has been marked X/4 for the purpose of identification only. The said
admission register having not been brought on record to be read in
evidence, this Court cannot give any definite finding regarding the
issue number (viii). The issue number (viii) is answered accordingly.
65. So far as the issue number (ix) as to whether the early
education of the Respondent was in villages is concerned, the DW 9
being the Respondent himself has categorically stated in his
deposition in this case that his early education was in the village and
he was admitted to school belatedly. In his cross-examination,
nothing has been asked to challenge this portion of his testimony.
There is no contra- evidence adduced by the Petitioner. The
Petitioner contended that a presumption was drawn that the
Respondent did not have his early education in his village from the
failure on the part of the Respondent to put forth in evidence as to
how he studied upto Class VIII. But for the failure of the Petitioner to
challenge the testimony of the Respondent; who himself was
examined as DW 9 that he had his early education formally in the
village and was admitted to school belatedly, this Court has no
hesitation in holding that the evidence in the record establishes that
the Respondent has his early education in the village. Thus, the issue
number (ix) is answered in the affirmative.
66. So far as the issue number (x) as to whether at the time of
admission of the Respondent in A.A. High School, Guriadamar,
Election Petition No. 02 of 2020
Lesliganj, Palamau in Class VIII in the admission-cum-declaration
form submitted to the school, the uncle and guardian of the
Respondent namely Shri Sunil Chaurasia disclosed his date of birth
to be 15.02.1988 is concerned, the DW 5 Shri Sunil Chaurasia has
categorically stated that the father of the Respondent namely Anil
Chaurasia used to remain busy with politics, hence, the DW 5 took
the Respondent for his admission in A.A. High School, Guriadamar,
Lesliganj, Palamau and in the admission-cum-declaration form, the
date of birth of the Respondent was mentioned as 15.02.1988. The
DW 5 identified the signature in 3 places in the admission forms
which have been marked exhibit E, E/1 and E/2. No question has
been put to the DW 5 in his cross-examination to challenge these
portions of his testimony. Nothing has been elicited in the cross-
examination to discard or disbelieve his testimony. The Petitioner
has not adduced any evidence whatsoever in this respect. Under
such circumstances, this Court has no hesitation in holding that the
evidence in record is sufficient to establish that at the time of
admission of the Respondent in A.A. High School, Guriadamar,
Lesliganj, Palamau in Class VIII in the admission-cum-declaration
form submitted to the school, Shri Sunil Chaurasia disclosed the date
of birth of the Respondent to be 15.02.1988. But Shri Sunil Chaurasia
was not the own uncle of the Respondent nor he was the legal
guardian of the Respondent rather he was an associate of the father
of the Respondent whom the Respondent referred as uncle by village
relationship. The issue number (x) is answered accordingly.
Election Petition No. 02 of 2020
67. So far as the issue number(xi) as to whether the Respondent
as the student of Class IX of A.A. High School, Guriadamar,
Lesliganj, Palamau took transfer certificate from the said the school
on 15.04.2008 and took admission in Government taken over school
Giriwar High School, Medininagar and in all the school admission
register and/or transfer certificate his date of birth was correctly
recorded as 15.02.1988 is concerned, there is no dispute from the side
of the Petitioner that the Respondent took transfer from A.A. High
School, Guriadamar, Lesliganj, Palamau on 15.04.2008 and took
admission in Giriwar High School, Medininagar hence the same is
answered to be true. So far as the other part of the issue regarding
whether in the school admission register and/or transfer certificate
his date of birth was correctly recorded as 15.02.1988 is concerned,
the Respondent has produced documents to establish the same. The
Petitioner contended that as there is no explanation as to why the
date of birth has been mentioned as 15.02.1995 in all subsequent
documents, hence a presumption be drawn that the school admission
register and the transfer certificate of the Respondent did not contain
the correct date of birth Respondent to be 15.02.1988. But in the
absence of any evidence in the record put forth by the Petitioner in
respect of this issue nor as any question in this respect, having been
asked by the Petitioner in the cross-examination of any of the
relevant witnesses of the Respondent; certainly, the veracity of the
contents of any document cannot be disbelieved on the basis of
surmises and presumptions. Thus, this Court is of the considered
Election Petition No. 02 of 2020
opinion that there is no force in the submission of the Petitioner that
the evidence in the record is sufficient to establish that in all the
school admission register and/or transfer certificate his date of birth
was correctly recorded as 15.02.1988. Thus, the issue number (xi) is
answered in the affirmative.
68. So far as the issue number (xii) as to whether the Respondent
was not able to get his date of birth as 15.02.1995, mentioned in the
School leaving certificate issued by the Giriwar High School,
Medininagar, corrected, due to serious illness of his father who later
on, died is concerned, the DW 9 being the Respondent himself has
categorically stated about the illness of his father and his death. He
has further deposed that because of the same, he could not
immediately rectify his incorrect date of birth mentioned in the
School leaving certificate. This portion of the testimony of the DW 9
remains unchallenged in his cross-examination. Hence, the same is to
be treated as true. There is no contra evidence put forth by the
Petitioner in respect of this issue. Under such circumstances, this
Court has no hesitation in holding that the evidence in the record is
sufficient to establish that the Respondent was not able to get his
date of birth as 15.02.1995, mentioned in the school leaving certificate
issued by the Giriwar High School, Medininagar, corrected due to
illness of his father, who later on, died. Thus, the issue number (xii) is
answered in the affirmative.
69. Let me now take up the issues number (xiii), (xix) and (xx)
together as they are intertwined. Issue number (xiii) is as to whether
Election Petition No. 02 of 2020
the Respondent submitted an application for correction of his date of
birth and after making detailed enquiry, the Jharkhand Academic
Council has corrected all the relevant certificates of the Respondent
on 12.02.2014. Issue number (xix) is as to whether the Respondent
initiated the change of his date of birth by fraudulent means and by
committing forgery, whereas the issue number (xx) is as to whether
the Jharkhand Academic Council did not change the date of birth of
the Respondent on the basis of the application dated 28.08.2012. Out
of the witnesses examined on behalf of the Petitioner, the PW 6 who
was the secretary of the Jharkhand Academic Council is the only
witness who could have stated about the contention of the Petitioner
that the correction of the date of birth of the Respondent was made in
an illegal manner by the Jharkhand Academic Council. But it is
pertinent to mention here that, as already indicated above in the
foregoing paragraphs of this judgment itself not a single question
regarding the process in the correction of the date of birth of the
Respondent was put to this witness by the Petitioner for the reasons
best known to him. The fact remains undisputed that the Respondent
submitted an application is for correction of his date of birth dated
28.08.2012 and his date of birth was corrected as 15.02.1988, in all his
relevant educational certificates on 12.02.2014. Thus, the issue
number (xiii) is answered by holding that the Respondent submitted
an application for correction of his date of birth and the Jharkhand
Academic Council has corrected all the relevant certificates of the
Respondent on 12.02.2014 but no evidence in the record prove to the
Election Petition No. 02 of 2020
nature of the enquiry conducted by the Jharkhand Academic Council
for effecting the said change in date of birth of the Respondent in all
his relevant educational certificates.
70.So far as the issue number (xix) is concerned, it is a settled
principle of law that even in a proceeding of civil nature, though
otherwise the standard of proof required is preponderance of
probability, but if forgery and fraud is pleaded by a party then the
particulars of the same, including the date when such fraud and
forgery was committed is to be pleaded as is required under Order
VI Rule 4 of the Code of Civil Procedure and the standard of proof
will be beyond reasonable doubt, so far as the fraud and forgery is
concerned. Now coming to the facts of the case, the Petitioner has
neither pleaded the detailed particulars of fraud or forgery nor
brought any evidence in the record to establish any fraud or forgery,
having been committed by the Respondent; in initiating the change
of his date of birth. Under such circumstances this court holds that
the Petitioner has failed to establish that the Respondent initiated the
change of his date of birth by fraudulent means and by committing
forgery. Thus, the issue number (xix) is answered in the negative.
71. Now coming to the issue number (xx); as already
discussed above, there is no evidence in the record put forth by the
Petitioner in this respect. The Respondent has categorically stated
that change the date of birth of him was on the basis of the
application dated 28.08.2012, but he disowned the annexures to the
said application being the photo copy of an Election Photo Identity
Election Petition No. 02 of 2020
Card and an unsigned affidavit purported to be that of his mother,
which were produced in court, having been submitted by him, along
with his said application. There is no reason to disbelieve this portion
of the testimony of the DW 9-who is the Respondent himself. Thus,
the issue number (xx) is answered by holding that the Jharkhand
Academic Council changed the date of birth of the Respondent on
the basis of the application dated 28.08.2012.
72. So far as the issue number (xiv) as to whether transfer
certificate issued by the A.A. High School, Guriadamar, Lesliganj,
Palamau to the Respondent is a tampered document, is concerned,
the same has been marked exhibit Q by the DW 8. Nothing has been
elicited in the cross-examination of the DW 8 by the Petitioner to
show that the exhibit, Q, which is the said transfer certificate issued
by the A.A. High School, Guriadamar, Lesliganj, Palamau is a
tampered document. Though at the time of hearing of argument, the
learned senior counsel for the Petitioner submitted that because of
one shortcoming or the other, in the said exhibit Q, the same is a
tampered document, but it is pertinent to mention here that this
transfer certificate having been proved by the witness in a trial, if at
all there were any shortcoming in such document, which could have
established the said document is a tampered one as per the
Petitioner, the Petitioner ought to have drawn the attention of the
DW 8 by way of his cross examination regarding such shortcomings
but having not done that and having not put any questions
regarding the same to the witness concerned, being the DW 8,
Election Petition No. 02 of 2020
certainly it is not open for the Petitioner to raise such shortcomings
of the document for the 1st time during the hearing of the argument
of this case.
Secondly, as already discussed above, the plea like, forgery and
tampering of document; which also amounts to creating a false
document, which is an ingredient of forgery, are required to be
pleaded specifically by mentioning the manner of tampering.
Further, the degree of proof in respect of the plea of tampering, even
in a civil proceeding, is beyond the reasonable doubt and not
preponderance of probability. Now coming to the facts of the case,
the Petitioner has not adduced any evidence whatsoever to suggest
that exhibit Q was a tampered document. None from the side of the
Petitioner have dared to say on oath that the transfer certificate
issued to the Respondent by the A.A.High School, Guriadamar,
Lesliganj, Palamau is a tampered document; this Court has no
hesitation in holding that the Petitioner has failed to establish that
the transfer certificate issued by the A.A. High School, Guriadamar,
Lesliganj, Palamau to the Respondent is a tampered document. Thus,
the issue number (xiv) is answered in the negative.
73. So far as the issue number (xv) as to whether the Respondent
was issued admission card for annual secondary examination 2010
for Class X Board Examination by the Jharkhand Academic Council
mentioning his date of birth as 15.02.1995, which was also signed by
the Headmaster, Giriwar High School, Medininagar and whether the
marks statement of 2010 Annual Secondary Examination of the
Election Petition No. 02 of 2020
Respondent dated 10.05.2010 shows that the date of birth of the
Respondent is 15.02.1995 is concerned, it is not disputed by either of
the parties that at the time of issuance of such documents the date of
birth mentioned was 15.02.1995 but later on the same has been
changed to 15.02.1988. So, this issue is answered in the affirmative.
74. So far as the issue number (xvi) as to whether the
Respondent was admitted in I.Sc. in G.L.A college, Medininagar and
his date of birth was filled up as 15.02.1995, and the Admission Form
and the character certificate issued by the Headmaster, Giriwar High
School, Medininagar also indicates the date of birth of the
Respondent is 15.02.1995, is concerned, the same is not disputed by
the Respondent, but the Respondent explains under what
circumstances the same has been done. Hence, the issue number (xvi)
is answered in the affirmative.
75. So far as the issue number (xvii) as to whether the
Respondent was not having any voter ID card in the year 2009 and
his name was not existing in the voters list issued by the Election
Commission of India in the year 2009 as he was less than 18 years of
age at that time and as such not eligible to vote in the assembly
election 2009 is concerned, it is not disputed by the Respondent that
his name was not existing in the voter list of 2009 and he was not
having any voter ID card issued by the Election Commission of
India. So, this portion of the issue is answered in the affirmative. So
far as the 2nd portion of the issue as to whether his name was not
existing in the voter list of the year 2009, as by 2009, he did not attain
Election Petition No. 02 of 2020
the age of 18 years is concerned, the Respondent who was examined
as DW 9 has furnished the explanation as to why his name was not
existing in the voter list of the year 2009 by saying that as he was
residing at Ranchi and Palamu during that period, and not in his
village, hence his name was not existing in voter list of his village.
This portion of the testimony of the DW 9 could not be demolished
or discredited in any manner by the Petitioner in the cross-
examination of the DW 9. There is no plausible reason, as to why this
portion of the testimony of the DW 9 is not to be accepted, more so
because as has already been held by this court that the Respondent
has succeeded in establishing that his date of birth is 15.02.1988. The
Petitioner has also not adduced any evidence whatsoever in respect
of this issue. Hence, the 2nd portion of the issue is answered in the
negative, by holding that the name of the Respondent was not
existing in the voter list in the year 2009, because he did not attain
the age of 18 years, by that year but because he was staying outside
his village at Ranchi and Daltonganj, hence his name is not existing
in the voter's list of the year 2009 and obviously in the absence of his
name in the voter list, the question of the Respondent being issued
with voter's ID card by the Election Commission of India, does not
arise. Thus, issue no. (xvii) is answered by holding that the
Respondent was not having any voter ID card in the year 2009 and
his name was not appearing in the voter's list but the reason for the
same is that because he was residing outside his village and not that
he did not attain the age of 18 years by then.
Election Petition No. 02 of 2020
76. So far as the issue number (xviii) as to whether the voter ID
card, submitted by the Respondent before the Jharkhand Academic
Council for correction of his date of birth upon verification was
found to have been issued in the name of Shailendra Kumar
Chaurasia, is concerned, the Respondent was examined as D.W. 9, in
his deposition has categorically stated that his application for
correction of his date of birth did not accompany any voter's identity
card. Nothing can be elicited by the Petitioner in his cross-
examination, to discredit or disbelieve this portion of the testimony
of the D.W. 9. None of the witnesses of the Petitioner, including the
Petitioner himself who was examined as P.W. 3, has stated anything
to suggest that the Respondent submitted the voter identity card of
Shailendra Kumar Chaurasia along with his application for
correction of his date of birth or that upon verification the voter's
identity card, submitted by the Respondent was found to be of
Shailendra Kumar Chaurasia. Hence, this issue is answered in the
negative.
77. The issue number (xxii) as to whether the election of the
Respondent as a Member of Jharkhand Assembly is fit to be declared
void as he was not qualified to be a member of 76, Daltonganj
Assembly Constituency under Section 100 (1) (a) of the
Representation of the People Act, 1951, issue number (xxiii) as to
whether the Respondent was below the age in terms of the Article
173 of the Constitution of India, 1950 on the date of scrutiny of his
nomination paper for election to 76 Daltonganj Assembly
Election Petition No. 02 of 2020
Constituency and issue number (xxiv) as to what other relief or
reliefs the Petitioner is entitled to; are taken up together as they are
intertwined. As this court has already held in answer to the issue
number (vii) that the date of birth of the Respondent is 15.02.1988,
thus obviously he attained the age of 25 years, by the time of filing of
the nomination as well as declaration of result for the assembly
election of the year 2019; hence this court has no hesitation in
holding that there is no justification for declaring the election of the
Respondent as a Member of Jharkhand Assembly void on the ground
that he was not qualified to be a member of 76, Daltonganj Assembly
Constituency under Section 100 (1) (a) of the Representation of the
People Act, 1951. Thus, the issue number (xxii) and issue number
(xxiii) are answered in the negative. In view of the findings of issue
number (xxii) and issue number (xxiii) in the negative, this Court
holds that the Petitioner is not entitled to any other relief as well. The
issue number (xxiv) is answered accordingly.
78. In view of the discussions made above and the answer to the
issues settled as already discussed above, this election petition being
without any merit, is dismissed on contest but under the
circumstances without any costs.
79. In view of the dismissal of this election petition, the pending
interlocutory applications, if any, are dismissed being infructuous.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 18th day of August, 2023
AFR/ Sonu-Gunjan
