Holding

The Supreme Court held that the High Court's judgment is void for non‑compliance with Section 99 of the Representation of the People Act, 1951 and must be set aside, with the case remanded for fresh determination after issuing the requisite notices.

Summary

The respondent, a defeated candidate, filed an election petition challenging the election of the appellant to the West Bengal Legislative Assembly on grounds of corrupt practices under Sections 123(2), (4) and (7) of the Representation of the People Act, 1951. The Calcutta High Court found several persons guilty of such practices and declared the election void, but failed to issue notices to those persons as mandated by Section 99(1)(a)(i) and (ii) of the Act. It also framed only a single sweeping issue instead of separate issues for each alleged corrupt practice and recorded evidence in a question‑answer format, contrary to procedural requirements. The Supreme Court held that the High Court's judgment was vitiated by the non‑compliance with Section 99, which is a mandatory condition for declaring an election void. Consequently, the Court set aside the High Court's order and remanded the matter to the High Court to rehear the petition after complying with Section 99. The appeal was allowed and the case was sent back for fresh determination.

Issues considered

Whether the High Court's judgment is vitiated for failing to issue notice to persons found guilty of corrupt practices as required under Section 99(1)(a)(i) and (ii) of the Representation of the People Act, 1951.
Whether the improper framing of issues and the manner of recording evidence affect the validity of the High Court's decision.
Whether the appeal under Section 116‑A of the Representation of the People Act, 1951 is maintainable.

Legislation cited

Code of Civil Procedure, 1908s. Order 14
Indian Evidence Act, 1872s. 138, s. 145, s. 146, s. 148, s. 150, s. 151, s. 152
Representation of the People Act, 1951s. 100, s. 123(2), s. 123(4), s. 123(7), s. 9(1), s. 98, s. 99

Subjects

election petitioncorrupt practicesRepresentation of the People ActSection 99 notice requirementframing of issuesevidence recordingappellate jurisdictionvoid election

Judgment

MAKHAN LAL BANGAL A
v.
- --'. MANAS BHUNIA AND ORS.

JANUARY 3, 2001
-!

[DR. A.S. ANAND, C.J., R.C. LAHOTI AND SHIVARAJ V. PATIL, JJ.] B

Election laws:

Representation of the People Act, 1951:
c
Sec/ion 9(1)-Non-compliance with-Effecl of-Relllrned candidale's
election declared void by High Courl on !he ground of commission of corrupl
practices--Certain persons were held guilly of commission of corrupl
practices--But no notices were issued to these persons-Held: High Court's
judgment vitialed-Case remanded to High Court for a decision afresh after D
compliance wilh S.99(1).

Code of Civil Procedure, 1908:
I

Order 14-/ssues-Framing of-Electi011 petilion-A//~galion of many
corrupt practices-However, one sweeping issue was framed-Held: Each E
one of the corrupt practices should hcro'e been framed as an issue-Failure
to do so has resulled in ul/er confi1sion throughout the /rial and alsu in the
judgmenl of the High Court-Practice and Procedure.

Evidence Act, 1872:
F
Section 145-Witness-Previous statemenl of-Cross-examination as
10-Held: Is restrictt!d to prei·ious statement made by the witness and not by
a 1hird parl}~A witness cannul be confrollled with the contents ofa document
to •~hich he is not a party.

Section 138-Witness-Oral examination of-Recording of evidence- G
Held: Has to he generally in a narrutil'e form-However, the Judge can direc/
a parlicular queslion or group of q11es1ions to be recorded in question-
answef form.

Sections 146, 148, 150, 151 and 152-Court's power to disallow H
17
18 SUPREME COURT REPORTS [2001] I S.C.R.

A questions-Scope of-Held: improper and impermissible questions are to be
avoided-Examination of witnesses not to be protracted-Judges should not
act as silent spectators but must exercise effective control over court
proceedings.

The respondent (defeated candidate) filed an election petition before the
B High Court challenging the election of the appellant (returned candidate) to
the State Legislative Assembly on the ground of commission of corrupt
practices as defined in Section 123(2), (4) and (7) of the Representation of >--.
The People Act, 1951. The appellant and two other candidates who had
contested the election were only arrayed as the respondents in the election
C petition filed before the High Court.

The High Court held certain persons guilty of commission of corrupt
practices. But no notice as provided under Section 99(1 )(a)(i) and (ii) of the
Act was issued to these persons. Although there were many instances of ·~
corrupt practices only one sweeping issue was framed. The witnesses were
D cross-examined as to the contents of the election petition and the evidence
was recorded in question-answer form and not in narrative form. The High
Court allowed the election petition and set aside the election of the appellant
declaring the same to be void. Hence this appeal.

Allowing the appeal, the Court
E
HELD : 1.1. The High Court has clearly recorded a finding of corrupt
practices having been committed at the election. The names of persons who
have been proved at the trial to have been guilty of commission of the alleged
corrupt practices and the nature of such practices have also been recorded.
The applicability of Section 99(1 )(a)(i) and {ii) of the Representation of the
F People Act, 1951 is clearly attracted. The High Court did not issue any
notice to any person found and named in its judgment as having committed
corrupt pt actices. (23-H; 24-A-BI

1.2. The fatal tlefect of not issuing notice to the persons who were
G found guilty of commission of corrupt practices vitiates the High Court's
judgment and an appropriate course, in the fact and circumstances of the
case, would be to set aside the High Court's judgment and remand the case
to the High Court for deciding he election petition afresh after compliance
with the provisions of Section 99 of the R.P. Act. 127-HI

H Dr. Ramesh Yashwant Prabhoo v. Prabhaskar Kashinath Kunte, (19961
'M.L. BANGAL v. MANAS BHUNIA 19
A
--
'
1 SCC 130; Manohar Josh v." Nitin Bhaurao Patil, 119961 1 SCC 169;
Chandrakanta Goyal v. Sohan Singh Jodh Singh Kohli, 119961 1 SCC 378
and Moreshwar Save v. Dwarkadas Yashwantrao Pathrikar, 119961 1 SCC
394, relied on.

Dr. Vimal (Mrs.) v. Bhaguji, (1996) 9 SCC 35, affirmed.
B
2.1. An election petition is like a civil trial. The stage of framing the
issues is an important one inasmuch
,. as on that day the scope of the trial is
determined by laying the path on which the trial shall proceed excluding
diversions and departures therefrom. The date fixed for settlement of issues
is, therefore, a date fixed for hearing. The real dispute between the parties C
is determined, the area of conflict is narrowed and the concave mirror held
by the court reflecting the pleadings of the parties pinpoints into issues, the
disputes on which the two sides differ. The correct decision of civil list
largely depends on correct framing of issues, correctly determining the real
points in controversy, which need to be decided. 128-G-H; 29-AI
D
2.2. In the present case, each one of the corrupt practices alleged by
the petitioner and denied by the defendant, should have formed the subject
matter of a distinct issue sufficiently expressive of the material proposition
of fact and of law arising from the pleadings. Failure to do so has re§ulted
./4/. in an utter confusion prevailing throughout the trial and also in the judgment
of the High Court.129-GI E
3.1. Curtailing delays are essential to expeditious disposal of the ease.
Speedy disposal is the cry of the day. Courts cannot act as silent spectators
when evidence is being recorded. Judges must have full control over the file
and effectively conduct proceedings keeping in vil'w that no litigant has any F
such right as to waste the precious time of the court. (31-F(

3.2. The oral examination of the witnesses, though conducted in
question-answer form by the counsel, is generally recorded in narrative by
the presiding judges. The court has power to regulate the manner of recording
evidence. Inspite of the manner of recording evidence being in narrative the G
presiding judge can wherever necessary direct a particular question or
group of questions to be recorded in question-answer form. (31-GI

4.1. Section 145 of the Evidence Act, 1872 permits a witness being
cross-examined as to previous statement made by him and not by a third
person. A witness cannot be confronted or asked to explain the contents of H
20 SUPREME COURT REPORTS (2001] l S.C.R.

A or averments made in writing or document to which he is not a party.
(31-BI

4.2. A Judge presiding over the trial of an election petition, and any
--
trial for that matter, needs to effectively control examination, cross-
examination and re-examination of the witnesses so as to exclude such
B question being put to the witnesses as the law does not permit and to relieve
the witnesses from the need of answering such questions which they are not
bound to answer. Power to disallow question should be effectively exercised
by reference to Sections 146, 148, 150, 151and152 of the Evidence Act by
excluding improper and impermissible questions. The examination of the
C witnesses should not be protracted and the witness should not feel harassed.
The cross-examiner must not be allowed to bully or take unfair advantage
of the witness. 132-H; ~3-AI

Ram Chander v. State of Haryana, AIR 119811SC1036, relied on.

D CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4105 of
1999.

From the Judgment and order dated 7.4.99 of the Calcutta High Court
in E.P.No. 3 of 1996.

E Tapas Ray, G.L. Sanghi, Bhaskar P.Gupra, Rana Mukherjee, Ms. Sumita
Mukherjee, A. Ganguli, G.S. Chatterjee, Jayanta Kumar Das, Prateek Jalan,
Raja Chatterjee and Satish Vig. for the appearing parties.

The Judgment of the Court was delivered by

F R.C. LAHOTI, J. This appeal under Section 116-A of the Representation
of the People Act, 1951 (hereinafter 'the RPA', for short) has been preferred
by a candidate who won at the election but has lost in the election petition.

Elections for the iegislative seat of No. 216, Sabang Legislative Assembly
Constituency in the district of Midnapore, West Bengal were held in May,
G 1996. There were four candidates in the fray. The appellant secured 60453
votes. The respondent no. I secured 59628 votes. The other two candidates
received 594 and 453 votes respectively. On 12.5.1996 the appellant was
declared elected by a margin of 825 votes over his nearest rival, the respondent
no. I.

H On 17.6.1996, the respondent no.I filed an election petition laying
r-

M.L. BANGAL v. MANAS BHUNIA [R.C. LAHOTI, J.) 21

-- -\ challenge to the election of the appellant and seeking a declaration that the
result of the election was void. A declaration that the respondent no. I was
A

duly elected was also sought for. On trial the High Court has allowed the
election petition and set aside the election of the appellant declaring the same
to be void. No other direction has been made. The appellant and two other
candidates who had contested the election were only arrayed as the
respondents in the election petition filed before the High Court .
B
../
It is not necessary to set out the pleadings, evidence and other details
of the case in view of our having formed an opinion that the judgment under
appeal suffers from a serious lacuna going to the root of the matter and
therefore deserves to be set aside followed by a remand to the High Court c
with a direction to comply with the provisions of Section 99 of the RPA and
thereafter decide the election petition afresh. The fact insofar as necessary
j... to demonstrate the need for remand are stated in brief hereinafter.

The principal ground on which the election of the appellant was sought
to be set aside was that the result of the election, insofar as it concerns the D
returned candidate was materially affected by corrupt practices committed in
the interests of the returned candidate by the agent other than his election
agent within the meaning of Section I 00(1 )(d) (ii) of the RPA. The election
,...-4(_
petition alleged commission of corrupt practices as defined in sub-sections
(2) (4) and (7) of Section 123 of the RPA. For the purpose of this appeal it
would suffice to note the issues framed by the High Court, the answers given
E
- and the findings recorded by the High Court.

ISSUES
\
J ~-
(I) Is the election petition maintainable in the present form?
F
(2) Is the respondent no. I, his election agent and/or his election
agent is/are guilty of corrupt practices as alleged in paragraph
11 and sub-paragraphs thereunder of the election petition?
(3) ls the respondent no. I, his election agents, the Returning Officer,
Assistant returning Officer, counting Supervisors, counting G
Assistants acting as agent of the respondent no. I resorted to
corrupt practices as alleged in paragraph 27 and sub-paragraphs
thereunder of the said election petition?
(4) Is the election petitioner entitled to a declaration that the election
of the respondent no. I from the said 216, Sabang Legislative H
22 SUPREME COURT REPORTS [200 I] I S.C.R.

A Assembly Constituency void?
(5) Was the Returning Officer of the said Assembly Constituency
biased in favour of the respondent no. I?
(6) ls the election petitioner entitled to a declaration that the petitioner
had been duly elected to the said constituency having received
B majority of valid votes?
(7) Is the election petitioner entitled to recounting of votes under
the supervision of this court as prayed for in the petition?
(8) What relief, if any, the election petitioner is entitled to?
c Findings

"Issues settled are answered in the manner following:-

Issue "lo.-1 The election petition is maintainable.

D Issue No. 2-The respondent no. I, election agent and agents are
guilty of corrupt practices.

Issue No. 3-The respondent no. I, the Returning Officer, the Assistant
Returning Officer, the Counting Supervisor, Counting Assistant
acting as agent of the respondent no. I and resorted to corrupt
practices.
E
I am not, however, inclined to declare the petitioner as elected or
secured majority of votes. There is no question of recounting in the
instant case inasmuch as the election is vitiated by corrupt practices
since the election is declared void. •"--
F
So far Issue Nos. 2 and 3 are concerned, they are decided in the
affirmative. I am of the view that the petitioner cannot be declared as
elected.

For all the aforesaid reasons, in view, it is proved that corrupt
G practices had been committed under Section 123(2), 123(4) and 123(7)
of the Representation of the People Act, 1951 by the returned candidate
and/or his agents and the e!ection of216 Sabang Legislative Assembly
constituency declaring the respondent no. I should be declared void.
(Sic)

H Considering all aspects of the matter I am of the view that corrupt
M.L. BAN GAL v. MANAS BHUNIA [R.C. LAHOTI, J.] 23

pract:ce under Section 123(2), 123(4) and 123(7) of the Representation A
of the People Act, 1951 by the respondent no. I and/or his agents has
been proved in this case. Accordingly it is declared that the election
of the respondent no. I being the returned candidate from 216-Sabang
Legislative Assembly constituency is void."

In addition to the findings arrived at (extracted and reproduced as B
hereinabove from the operative part of the judgment of the High Court), a few
_....v other findings from the body of the judgment, not all but only a few by way
of illustration, are extracted and reproduced, so as to demonstrate how, in the
light of its own findings, the High Court has failed in discharging its statutory
obligation cast by Section 99 of the RPA resulting in vitiating the judgment. C
Those findings are:

" .......... it can be safely concluded from a careful reading of the written
statement that (a) Hem Bhattacharya, Dipak Sarkar, Debasis Bose,
Nilanjan Chatterjee, Returning officer, Aniandya kar, Block Development
Officer and Assistant Returning Officer, Kushal Mitra, Officer -in- D
charge of Sabang Police Station, Pradip Das, Joint BOO, Sabang, Hare
Krishna Jana, Sabhapati, Sabang Panchayat Samity; Chitta Bera,
election agent of respondent no.1 and Basudep Bag. Addi. S.P.
Burdwan, all acted as agents of respondent no. I being the part of the
election machinery of CPl(M). It is further proved by admission that E
the political machinery of CPl(M) actively engaged itself not only to
propagate for the respondent no. I but also ensured win of the
respondent no. I by commission of several corrupt practices mentioned
in the petition as agent of respondent no. I."

xxx xxx xxx
F
It is clearly established from his evidence and also from several
exhibits that the machinery of the CPI(M) its nuemerous workers,
cadres activists and supporters were all working for respondent no. I
as his agents and that the said corrupt practices committed by CPI(M)
workers and leaders are no more than the works of the agent of G
respondent no. I and for each such corrupt practice and/or act of the
agents of respondent no. I and as such the respondent no. I is
vicariously liable and is guilty of corrupt practices."

Thus, the high Court has clearly recorded a finding of corrupt practices
having been committed at the election. The names of person who have been H
24 SUPREME COURT REPORTS [2001] 1 S.C.R.

· A proved at the trial to have been guilty of com1iiission of the alleged corrupt
practices and the nature of such practices has also been recorded. The
applicability of sub-clauses (i) & (ii) of clause (a) of sub-section (I) of Section
99 (quoted supra) is clearly attracted. The High Court did not issue any notice
to any person found and named in its judgment as having committed corrupt
B practice.

I.A.No. 3 of2000 has been tiled by Shri Basudeb Bag, Superintendent
of Police, Bankura, West Bengal and I.A. No. 4 of2000 has been filed by Shri
Nilanjan Chatterjee presently Secretary, Women Development Undertaking,
Department of Social Welfare, Government of West Bengal who was
C appointed as returning officer for the election in question by the Election
Commission of India. Both the officers have sought for being impleaded as
party-respondents or as intervenors in the appeal so as to lay challenge to
the findings recorded and adverse remarks and observations made in the
judgment under appeal which if not expunged may adversely affect service
carriers of the applicants. Their grievance is that they were not joined as
D parties to the election petition, they had no opportunity of hearing as they
were never put on notice by the High Court and they have been condemned
unheard.

Section 98 of the RPA provides for an order at the conclusion of the
.J-- - ,
trial of an election petition being made by the High Court whereby (a) the
E election petition may be dismissed. (b) the election of all or any of the
returned candidates may be declared to be void, (c) in addition to the preceding
relief, the election petitioner or any other candidated may be declared to have
been duly elected. Section 99 provides as under :-

"99. Other orders to be made by the High Court.-(!) At the time
F of making an order under Section 98 [the High Court] shall also make
ari order-
[(a) where any charge is make in the petition of any corrupt
practice having been committed at the election, recording-
G (i) a finding whether any corrupt practice has or has not been
proved to have been committed at the election, and the nature
of that corrupt practice; and
(ii) the names of all persons, if any, who have been proved at the
trial to have been guilty of any corrupt practice and the nature
H of that practice; and]
M.L. BANGAL v. MANAS BHUNIA (R..C. LAHOTI, J.] 25

- (b) fixing the total amount of costs payable and specify the
persons by and to whom, costs shall be paid;

Provided that [a person who is not a party to the petition shall
A

not be named] in the order under sub-clause (ii) of clause (a) unless-

(a) he as been given notice to appear before [the High Court] and B
to show cause why he should not be so named; and

(b) if he appears in pursuance of the notice, he has been given an
opportunity of cross-examining any witness who has already
been examined by [the High Court] and has given evidence
against him, of calling evidence in his defence and of being C
heard.
[(2) In this section and in Section I 00, the expression "agent" has the
same meaning as in Section 123.]"

The ambit and scope of Sections 98 and 99 of the Act was considered
in Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte & Ors., D
[ 1996] I SCC 130, wherein this court held :-

"While deciding the election petition at the conclusion of the trial and
making an order under Section 98 disposing of the election petition
in one of the ways specified therein, the High Court under Section 99
is required to record the names of all persons guilty of any corrupt E
practice which has been proved at the trial. Proviso to sub-section {I)
then prescribes that a person who is not a party to the petition shall
not be so named unless the condition specified in the proviso is
fulfilled. The requirement of the proviso is only in respect ofa person
who is not a party to the petition and is to be named so that he too F
~-- has the same opportunity which was available to a party to the
petition ....... The opportunity which a party to the petition had at the

- trial to defend against the allegation of corrupt practice is to be given
by such a notice to that person of defending himself if he was not
already a party to the petition. In other words the notice has to be
equated with a party to the petition for this purpose and is to be given G
the same opportunity which he would get if he was made a party to
the petition." (Para 49).
Again in Manohar Joshi v. Nitin Bhaurav Patil & Anr., [1996] I SCC ' ;
169, this court laid down the procedure which should be followed by the High
Courts while disposing of such an election petition pointing out the fatal H
4
'

26 SUPREME COURT REPORTS [2001) 1 S.C.R.

A effect, which non-compliance would have, on the judgment of the High Court
declaring void an election of the returned candidate. It was held:-

"Section 98 contemplates the making of an order thereunder in the
,,.. -
decision of the High Court rendered "at the conclusion of the trial of
an election petition" ...... There is nothing in Section 98 to permit the
B High Court to decide the election petition piecemeal and to declare
the election of any returned candidated to be void at an intermediate
stage of the trial when any part of the trial remains to be concluded,
(Para 54)

Sub-section (I) of Section 99 begins with the words "At the time
c of making an order under Section 98 the High Court shall also make
an order" of the kind mentioned in clauses (a) and (b) therein ...... There
can be no doubt that the order which can be made under sub-section
(I) of Section 99 has, therefore, to be made only at the conclusion
of the trial of an election petition in the decision of the High Court
made by an order disposing of the election petition in one of the
D
modes prescribed in clauses (a), (b) and (c) of Section 98. This alone
is sufficient to indicate that the requirement of Section 99 is to be
completed during the trial of the election petition and the final
order under Section 99 has to be made in the decision of the High
.>"- ·'-
Court rendered under Section 98 at the conclusion of the trial of the
E election petition. (Para 55)

The High Court cannot make an order under Section 98 recording a
finding of proof of corrupt practice against the returned candidate alone and
on that basis declare the election of the returned candidate to be void and
then proceed to comply with the requirement of Section 99 in the manner
F stated therein with a view to decide at a later stage whether any other person
also is guilty of that corrupt practice for the purpose of naming him then
under Section 99 of the R.P. Act. The High Court has no option in the matter
-
to decide whether it will proceed under Section 99 against other persons
alleged to be guilty of that corrupt practice along with the returned candidate
..
G inasmuch as the requirement of Section 99 is mandatory since the finding
recorded by the High Court requires it to name all persons proved at the trial
to have been guilty of the corrupt practice. The expression "the names of all
persons, if any, who have been proved at the trial to have been guilty of any
corrupt practice" in sub-clause (i) of clause (a) of sub-section (I) of Section
99 clearly provides for such proof being required "at the trial" which means
H "the trial of an election petition" mentioned in Section 98, at the conclusion
M.L. BANGAL v. MANAS BHUNIA [R.C. LAHOTI, J.] 27
of which a/One the order contemplated under Section 98 can be ·made. (Para A
57).

Therefore, the election of the appellant in the present case could
not be declared void by making an order under Section 98 on the ground
contained in Section IOO(l)(b) of the R.P. Act without prior compliance of
Section 99. Absence of notice under Section 99 of the R.P. Act vitiates the B
final order made under Section 98 by the High Court declaring the election
to be void." (Para 60)
[Emphasis supplied]

In Chandrakanta Goyal v. Sohan Singh Jodh Sing Koh ii, [ 1996] I SCC C
378, this court again emphasised the procedure to be followed by the Supreme
Court when non-compliance by the High Court with Section 99 was brought
+.. to its notice in appeal, in these words:-

"Ordinarily in such a situation after setting aside the impugned
judgment the matter is to be remitted to the High Court for deciding D
the election petition afresh after complying with the requirements of
Section 99 of the Act by giving notice to the makers of the speeches
and holding the requisite enquiry."

The same view has been reiterated in Moreshwar Save v. Dwarkadas
Yashwantrao Pathrikar, [ 1996] I sec 394, wherein this court has pointed E
out an alternative to be followed by the Supreme Court avoiding the necessity
to remand by deferring the decision in appeal and in the meantime issuing
notice under Section 99 to those persons and after the requisite enquiry by
the High Court, its finding in respect of those persons being called for,
deciding the case against the candidate and the notices at one time while
deciding the appeal in the Supreme Court and then opined that in the case F
such second course did not appear to be appropriate one.

All the decisions of this Court referred to hereinbefore are 3 judges
Bench decisions. A2- judges Bench has also take.n the same view in Dr. Vimal
(Mrs.) v. Bhaguji & Ors., [1996] 9 sec 351. G

We too are of the opinion that the fatal defect as noticed by us in the
present case vitiates the judgment under appeal and in appropriate course,
in the facts and circumstances of the case wou Id be to set aside the judgment
under appeal and remand the case to the High Court for deciding the election
petition afresh after compliance with the provisions of Section 99 ofR.P. Act. H
28

-
SUPREME COURT REPORTS [2001] I S.C.R.

A In view of'the above said remand, I.A. Nos. 3 and 4 are rendered redundant.
The applicants in the two applications seeking intervention before us shall
obviously be now noticed by the High Court and they would have a right of
hearing in accordance with Section 99 of the RPA before the High Court.

Accordingly the appeal is allowed. The judgment under appeal is set
B aside. The election petition is remanded to the High Court for deciding
afresh after compliance with Section 99 of the RPA and in accordance with
law. No order as to costs in this appeal.

With the inevitable remand in the terms as above said, the exercise of
C appellate jurisdiction of ours under Section 116-A of the RPA comes to an
end. There are a few aspects of the case which have caused us concern and
before parting with the case we would like to place on record our views in
that regard. The manner in which the election petition has been tried defeats
the very purpose of entrusting jurisdiction to try an election petition to the
High Court by Representation of People (Amendment) Act, 1966. Out of
D severals, we propose to deal with only two aspects: (i) framing of issues, and
(ii) recording of evidence.

In para 11, sub-paragraphs (a) to (q) (in all 17 sub-paragraphs) of the
election petition there are about 11 corrupt practices, all of serious nature, ~ ,
alleged by the petitioner. On all these corrupt practices, one sweeping issue
E was framed- issue No.2, reproduced in the earlier part of this judgment. So
is the case with regard to the incidents alleged in sub-paragraphs (i) to (xii)
of para 27 of the election petition whereon the petitioner sought to build up
a case of corrupt practice having been committed by the appellant by obtaining
or procuring or abetting or attempting to obtain or procure the Services from
the Gazetted officer and persons in the service of Government in committing
F · corrupt practice by improper reception of invalid votes and, refusal or rejection
of valid votes materially affecting the result of election. As regards various
-
instances of corrupt practice as alleged in these sub-paragraphs also an
•
omnibus issue no.3, has been framed.

G An election petition is like a civil trial. The stage of framing the issues
is an important one inasmuch as on that day the scope of the trial is determined
by laying the path on which the trial shall proceed excluding diversions and
departures therefrom. The date fixed for settlement of issues is, therefore, a
date fixed for hearing. The real dispute between the parties is determined, the
area of conflict is narrowed and the concave mirror held by the court reflecting
H the pleadings of the parties pinpoints into issues the disputes on which the
M.L. BANGAL v. MANAS BHUNIA (R.C. LAHOTI, J.) 29
two sides differ. The correct decision of civil lis largely depends on correct A
framing of issues, correctly determining the real points in controversy which
-\ need to be decided. The scheme of Order XIV of the Code of Civil Procedure
dealing with settlement of issues shows that an issue arises when a material
proposition of fact or law is affinned by one party and denied by the other.
Each material proposition affirmed by one party and denied by other should
form the subject of distinct issue. An obligation is cast on the court to read
B
the plaint/petition and the written statement/counter, if any, and then determine
with the assistance of the learned counsel for the parties, the material
propositions of fact or of law on which the parties are at variance. The issues
shall be framed and recorded on which the decision of the case shall depend.
The parties and their counsel are bound to assist the court in the process of c
framing of issues. Duty of the counsel does not belittle the primary obligation
cast on the court. It is for the Presiding Judge to exert himself so as to frame
sufficiently expressive issues. An omission to frame proper issues may be a
~. ground for remanding the case for retrial subject to prejudice having been
shown to have resulted by the omission. The petition may be disposed of at
the first hearing if it appears that the parties are not at issue on any material D
question of law or o,f fact and the court may at once pronounce the judgment.
If the parties are at issue on some questions of law or of fact, the suit or
petition shall be fixed for trial calling upon the parties to adduce evidence on
issues of fact. The evidence shall be confined t_o issues and the pleadings .
.· - A
No evidence on controversies not covered by issues and the pleadings, shall E
normally be admitted, for each party leads evidence in support of issues the
burden of proving which lies on him. The object of an issue is to tie down
the evidence and arguments and decision to a particular question so that
there may be no doubt on what the dispute is. The judgment, then proceeding
issue-wise would be able to tell precisely how the dispute was decided.
.....,._ F
In the case at hand, each one of the corrupt practices alleged by the
petitioner and denied by the defendant, should have formed the subject
matter of a distinct issue sufficiently expressive of the material proposition of

- fact and of law arising from the pleadings. Failure to do so has resulted in
an utter confusion prevailing throughout the trial and also in the judgment
G
of the High Court as was demonstrated by the learned counsel for the
appellant during the hearing of the appeal attacking the findings arrived at
-i- by High Court. On some of the points in dispute the High Court has observed
that no proof of the said fact (alleged in the petition) was necessary so far
as the petitioner is concerned because there was no specific denial of the
allegations made or as there was no answer by the defendant to the allegations H
30 SUPREME COURT REPORTS [200 I] I S.C.R.

A· of the petitioner on points of substance. The coniradiction with which the
trial and the judgment suffer is writ large. If a material proposition of fact or
law alleged in the petition was not denied or was not specifically denied in
the written statement within the meaning of Rule 5 of order 8 of C.P.C. and
such tenor of the written statement had persuaded the learned designated
B Election Judge in forming an opinion (belatedly while writing the judgment)
that there was an admission by necessary implication for want of denial or
specific denial then there was no need of framing an issue and there was no
need for recording of evidence on those issues. Valuable time of the court
would have been saved from being wasted in recording evidence on such
averments in pleadings as were not in issue for want of traverse, if it was so!
c
However, in the facts of the present case, we are of the opinion that the
defective framing of the issues though material, has not vitiated the trial
inasmuch as we are satisfied that the parties have gone to the trial with fu II
knowledge of the allegations and counter allegations made in the pleadings.
D None of the parties has complained of prejudice. None had made a prayer to
the High Court, before going for trial, for amending or striking c!own any of
the issues. We need say no more about the issues.

Now as the recording of evidence. During the hearing of appeal the
learned counsel for the parties took us through several statements of witnesses ..-.. _.
E and read out many a passages while assailing for supporting the findings
arrived at by the learned Designated Election Judge. A few aspects as to the
examination of the witnesses and the manner of recording statements need
to be adverted to. The record of evidence shows:

F 1. The statements of the witnesses are recorded not in narrative but in
question-answer form. During the course of hearing in appeal we asked the
learned counsel for the parties about this feature. We were told that such is
the practice prevalent on the Original Side of the Calcutta High Court.

2. The witnesses are named but not numbered.
G
3. Some of the witnesses are asked a few preliminary questions the
relevance whereof we have not been able to appreciate. Many a witness has
been asked whether he has appearing in the Court on sub-poena and then
asked to produce the sub-poena in the Court for perusal of the presiding
H judge.
M.L. BANGAL v. MANAS BHUNIA [R.C. LAHOTI, .I.] 31
4. A host of such questions have been asked, both in examination-in- A.
chief and in cross-examination, as are not permitted by the provisions of the
Evidence Act. To wit, witnesses (other than the parties) have been confronted
with the contents of the election petition or the written statement and asked
•
J
to make comments or offer explanation as to passages therefrom, overlooking
that Section 145 of the Evidence Act permits a witness being cross-examinded B
as to previous statement made by him and not by a third person. How can
a witness be confronted or asked to explain the contents of or avem1ents
made in writing or document to which he is not a party? Same or similar
questions have been allowed to be asked again and again. At places the
witnesses have been 'grilled' and compelled to answer embarrassing questions.
c
The statements of 18 witnesses examined by the parties have been
placed before us in 18 volumes some of which run into about a hundred or
even hundreds of pages each. We are told that 120 days were consumed in
recording the evidence. The learned counsel were agreeable that if only the
conducting of examination -in-chief and cross-examination would have been
effectively controlled, the recording of evidence could have been concluded D
in less than half of the time what has been consumed and the bulk of the
evidence could have been reduced to one-third or one-fourth of what it is.
The reason behind giving such a long rope in examining and cross examining
the witnesses, surprisingly enough what we were told is that in the trial of
an election petition, the atmosphere is surcharged, conducting counsel get E
over-zealous and it is not considered advisable by the Court to interrupt the
conducting of examination and cross-examination of the witnesses by the
counsel. We are not amused at all, Curtailing delays is essential to expeditious
disposal of the case. Speedy disposal is the cry of the day. Courts cannot
act as silent spectators when evidence is being recorded. Judges must have
full control over the file and effectively conduct proceedings keeping in view F
that no litigant has any such right as to waste the precious time of the court.

In almost all the courts in the country holding trials in civil and criminal
cases, the oral examination of the witnesses though conducted in question-
answer form by the counsel, is generally recorded in narrative by the presiding G
judges. The court has power to regulate the manner of recording evidence.
In spite of the manner of recording evidence being in narrative the presiding
judge can wherever necessary direct a particular question or group of questions
to be recorded in question-answer form. Wherever necessary a note as to
demeanour of a witness can always be made by the presiding judge before
whom the witness is being examined and such note on demeanour made in H
32 SUPREME COURT REPORTS [200 I] I S.C.R.

A the presence of the witness and counsel for both the parties would be more
useful to the trial court itself while hearing arguments of the counsel for the
parties at the end of the trial and also for the appellate court rather than a
mere record of the statement in question-answer form. Incidentally and
interestingly, it may be noticed that when the Code of Criminal Procedure,
1973 was enacted, repealing the 1898 Code, Section 276 was introduced
B providing for evidence to be ordinarily taken down in the form of question
and answer but vesting a discretion in the presiding judge to record the
evidence in the form of a narrative. Within three years the Law C~mmission
of the India found this system causing delay in trial and hence not workable
and on its recommendation, by the Code of Criminal Procedure (Amendment)
C Act (45 of 1978), Section 276 was amended so as to provide that in trial before
courts of session evidence shall ordinarily be taken down in the form of a
narrative but the presiding judge may in his discretion taken down or cause
to be taken down any P,art of such evidence in the form of question and
answer. Thus recording of evidence in narrative form is the rule. Such mode
of recording evidence is statutorily provided for session trials where life and
D liberty of persons is at stake. We fail to understand why the recording of
evidence in narrative cannot be a mode to be followed in the trial of election
petitions. Assigning serial numbers to the witnesses on their depositions
such as PW! (and so on) for petitioners' witnesses and RWI and DWI (and
so on) for the respondents' or defendants' witnesses would provide a
E convenient mode of referring to the witnesses during the course of hearing
and while writing the judgment. We hope Calcutta High Court would consider
suitably amending its rules or practice as applicable to Original Side and/or
to trial of election petitions.

It is not necessary to ask each witness whether he is appeari~g on sub-
F poena and to have the sub-poena produced for the perusal of the Court.
Whether a witness is on sub-poena or not is a matter of record known to the
parties, the court and the witness. If a doubt or dispute may arise reference
can be had to the record. Such questions, asked in routine, add only to the
length of the deposition and are avoidable.
G
An election petition is not a dispute between the petitioner and
respondent merely; the fate of the constituency is on trial. A Judge presiding
over the trial of an election petition, and any trial for the matter of that,
needs to effectively control examination, cross-examination and re-
examination of the witnesses so as to exclude such questions being put to
H the witnesses as the law does not permit and to relieve the witnesses from
I'

M.L. BANGAL v. MANAS BHUNJA [R.C. LAHOTI, J.] 33

the need of answering such questions which they are not bound to answer. A
t Power to disallow questions should be effectively exercised by reference to
' Sections 146, 148, 150, 151 and 152 of the Evidence Act by excluding
improper and impermissible questions. The examination of the witnesses
shou Id not be protracted and the witness should not feel harassed. The cross
examiner must not be allowed to bully or take unfair advantage of the
witness. Though the trials in India are adversarial, the power vesting in the B
court to ask any question to a witness at any time in the interest of justice
gives the trial a little touch 4f its being inquisitorial. Witnesses attend the
court to discharge the sacreo duty of rendering aid to justice. They are
entitled to be treated with respect and it is the judge who has to see that they
feel confident in the court. In Ram Chander v. Slate of Haryana, AIR ( 1981) C
SC I 036 this Court observed, " ........... to be an effective instrument in
dispensing justice, the presiding judge must cease to be a spectator and a
mere recording machine. He must become a participant in the--trial by
evincing intelligent active interest... ............. ". An alert judge actively
participating in court proceedings with a firm grip on oars enables the trial
smoothly negotiating on shorter routes avoiding prolixity and expeditiously D
attaining the destination of just decision. The interest of the counsel for the
parties in conducting the trial in such a way as to gain success for their
respective clients is understandable but the obligation of the presiding judge
to hold the proceedings so as to achieve the dual objective - search for
truth and delivering justice expeditiously-cannot be subdued. Howsoever E
sensitive the subject matter of trial may be; the court room is no place of
play for passions, emotions and surcharged enthusiasm.

Appeal allowed.
v.s.s.