2001 Supreme(SC) 8

2001(1) Supreme 29
SUPREME COURT OF INDIA
(From Calcutta High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti and Shivaraj V. Patil, JJ.
Makhan Lal Bangal -Appellant
versus
Manas Bhunia & Ors. -Respondents
Civil Appeal No. 4105 of 1999
Decided on 3-1-2001
Counsel for the Parties :
For the Appearing Parties : Tapas Ray, G.L. Sanghi, Bhaskar P. Gupta, Sr. Advocates, Rana Mukherjee, Ms. Sumita Mukherjee, A. Ganguli, G.S. Chatterjee, Jayanta Kumar Das, Prateek Jalan, Raja Chatterjee, and Satish Vig, Advocates.

VERY IMPORTANT POINT
Non-issuance of notice under Section 99(1)(a)(ii) of the Representation of People Act to persons found named in judgment as having committed corrupt practice would vitiate final order of election Court.

Headnote:(i) Representation of People Act, 1951-Sections 98 and 99 r/w Section 123-Election petition alleging corrupt practice-Corrupt practice allegedly committed in the interest of returned candidate by agents other than election agents within meaning of Section 100(1)(d)(ii)-Election Court clearly recorded finding of corrupt practice-Names of persons who have been proved at trial to have been guilty of corrupt practice recorded-Those persons were not arrayed as respondents-Applicability of Section 99(1)(a)(ii)(i) attracted-Election Court did not issue notice to persons found named in judgment as having committed corrupt practice-Fatal defect-Absence of notice under Section 99 vitiated final order-Judgment of election Court set aside for deciding election petition afresh. (Paras 6 to 14)

       (ii) Representation of People Act, 1951-Trial of Election Petition-Framing of issues-Importance of-Separate issues need to be framed on each allegation of corrupt practice-Framing of one sweeping issue not permissible-Judgment must tell precisely how each dispute was decided.

       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 the pleadings of the parties pinpoints into issues the disputes on which the two sides differ. The correct decision of civil lis largely depends on correct 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 affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of a distinct issue. An obligation is cast on the court to read 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 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 question of law or of 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 to issues and the pleadings. No evidence on controversies, not covered by issues and the pleadings, shall 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. (Para 18)

       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 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 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 of the petitioner on points of substance. The contradiction 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 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! (Para 19)

       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 full knowledge of the allegations and counter allegations made in the pleadings. 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 down any of the issues. (Para 20)

       (iii) Representation of People Act, 1951-Trial of election petition-Recording of evidence-In narrative form is rule-Election Court s duty in curtailing delay by effectively controlling examination and cross examination-Power to disallow questions should be effectively exercised by reference to Sections 146, 148, 150, 151 and 152 of the Evidence Act.

       Curtailing delays is essential to expeditious disposal of the cases. 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 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 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 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, 18 repealing the 1898 Code, Section 276 was introduced 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 Commission of India found this system causing delay in trial and hence not workable and on its recommendation, by the Code of Criminal Procedure (Amendment) 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 take down or cause to be taken down any part 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 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 PW1 (and so on) for petitioners witnesses and RW1 or DW1 (and so on) for the respondents or defendants witnesses would provide a 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. (Paras 22 and 23)

       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 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 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 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. Though the trials in India are adversarial, the power vesting in the court to ask any question to a witness at any time in the interest of justice gives the trial a little touch of its being inquisitorial. Witnesses attend the court to discharge the sacred 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. 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 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 sensitive the subject matter of trial may be; the court room is no place of play for passions, emotions and surcharged enthusiasm. (Para 25)