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CASE NO.: Appeal (civil) 4105  of 1999

PETITIONER: MAKHAN LAL BANGAL

       Vs.

RESPONDENT: MANAS BHUNIA & ORS.

DATE OF JUDGMENT:       03/01/2000

BENCH: R.C.Lahoti, S.V.Patil

JUDGMENT:

R.C.  Lahoti, J. L.....I.........T.......T.......T.......T.......T.......T..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 legislative seat of No.216,  Sabang Legislative  Assembly  Constituency  in   the  district   of Midnapore,  West Bengal were held in May, 1996.  There  were four  candidates  in the fray.  The appellant secured  60453 votes.   The respondent no.1 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.1.

     On  17.6.1996,  the respondent no.1 filed an  election petition  laying 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.1 was  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.

     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  with  a  direction to comply with the  provisions  of Section  99  of the RPA and thereafter decide  the  election petition   afresh.   The  facts   insofar  as  necessary  to demonstrate  the  need  for  remand   are  stated  in  brief hereinafter.

     The  principal  ground  on which the election  of  the

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appellant  was sought to be set aside was that the result of the  election, insofar as it concerns the returned candidate was  materially  affected by corrupt practices committed  in the  interests of the returned candidate by the agents other than  his  election agent within the meaning of Section  100 (1)(d)  (ii)  of  the RPA.  The  election  petition  alleged commission  of corrupt practices as defined in  sub-sections (2)  (4)  and  (7) of Section 123 of the the RPA.   For  the purpose  of this appeal it would suffice to note the  issues framed by the High Court, the answers given and the findings recorded by the High Court.  Issues

     (1)  Is  the  election petition  maintainable  in  the present form?

     (2)  Is the respondent no.1, his election agent and/or his  election  agents is/are guilty of corrupt practices  as alleged in paragraph 11 and sub-paragraphs thereunder of the election petition?

     (3)  Is the respondent no.1, his election agents,  the Returning  Officer,  Assistant Returning  Officer,  counting Supervisors,  counting  Assistants  acting as agent  of  the respondent  no.1 resorted to corrupt practices as alleged in paragraph 27 and sub-paragraphs thereunder under of the said election petition?

     (4)   Is  the  election   petitioner  entitled  to   a declaration  that  the election of the respondent no.1  from the said 216, Sabang Legislative Assembly Constituency void?

     (5)  Was  the Returning Officer of the  said  Assembly Constituency biased in favour of the respondent no.1?

     (6)   Is  the  election   petitioner  entitled  to   a declaration that the petitioner has been duly elected to the said constituency having received 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?

     Findings

     Issues  settled are answered in the manner  following :-

     Issue No.1 - The election petition is maintainable.

     Issue  No.2 - The respondent no.1, election agent  and agents are guilty of corrupt practices.

     Issue  No.3  -  The  respondent  no.1,  the  Returning Officer,  the  Assistant  Returning  Officer,  the  Counting Supervisor,  Counting  Assistant  acting  as  agent  of  the respondent no.1 and resorted to corrupt practices.

     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

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election is vitiated by corrupt practices since the election is declared void.

     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 my  view,  it  is proved  that  corrupt  practices had  been  committed  under Sections  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 election of 216 Sabang Legislative  Assembly constituency  declaring  the  respondent   no.1  should   be declared void.  (Sic.)

     Considering all aspects of the matter I am of the view that  corrupt  practice  under Sections 123(2),  123(4)  and 123(7)  of the Representation of the People Act, 1951 by the respondent  no.1  and/or his agents has been proved in  this case.   Accordingly it is declared that the election of  the respondent no.1 being the returned candidate from 216-Sabang Legislative Assembly Constituency is void.

     In  addition to the findings arrived at (extracted and reproduced  as  hereinabove from the operative part  of  the judgment  of the High Court), a few 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 the RPA resulting in vitiating the judgment.  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,    Anindya   Kar,   Block Development  Officer and Assistant Returning Officer, Kushal Mitra,  Officer-in-Charge  of Sabang Police Station,  Pradip Das, Joint BDO, Sabang, Hare Krishna Jana, Sabhapati, Sabang Panchayat Samity;  Chitta Bera, election agent of respondent no.1  and  Basudeb Bag.  Addl.  S.P.  Burdwan, all acted  as agents  of  respondent no.1 being the part of  the  election machinery of CPI(M).  It is further proved by admission that the  political  machinery of CPI(M) actively engaged  itself not  only  to  propagate for the respondent  no.1  but  also ensured  win of the respondent no.1 by commission of several corrupt  practices  mentioned  in the petition as  agent  of respondent no.1.

     xxx xxx xxx xxx

     It  is clearly established from his evidence and  also from  several exhibits that the machinery of the CPI(M)  its nemerous  workers, cadres activists and supporters were  all working  for respondent no.1 as his agents and that the said corrupt  practices  committed by CPI(M) workers and  leaders are  no more than the works of the agents of respondent no.1 and  for each such corrupt practice and/or act of the agents of  respondent  no.1  and  as such the  respondent  no.1  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.

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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 has  also  been recorded.   The  applicability of sub-clauses (i) & (ii)  of clause  (a) of sub-section (1) 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 practice.

     I.A.No.3  of 2000 has been filed by Shri Basudeb  Bag, Superintendent  of  Police,  Bankura, West Bengal  and  I.A. No.4  of  2000  has been filed by Shri  Nilanjan  Chatterjee presently   Secretary,   Women    Development   Undertaking, Department  of Social Welfare, Government of West Bengal who was  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 careers  of  the applicants.  Their grievance is that they were not joined as 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 trial of an election petition being  made by  the High Court whereby (a) the 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 candidate  may  be  declared  to  have  been  duly  elected. Section 99 provides as under :-

     99.   Other  orders to be made by the High Court.   - (1)  At  the time of making an order under section  98  [the High Court] shall also make an order -

     [(a)  where any charge is made in the petition of  any corrupt  practice  having  been committed at  the  election, recording-

     (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 of that practice;  and]

     (b)  fixing  the  total amount of  costs  payable  and specifying the persons by and to whom costs shall be paid:

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

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of being heard.

     [(2)  In  this  section  and   in  section  100,   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   Vs. Prabhakar  Kashinath Kunte & Ors., (1996) 1 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  practice  which  has  been  proved  at  the  trial. Proviso to sub-section (1) 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 of a  person who  is  not a party to the petition and is to be  named  so that  he too 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 noticee has to be equated with a party  to the  petition  for this purpose and is to be given the  same opportunity which he would get if he was made a party to the petition. (Para 49)

     Again  in  Manohar  Joshi Vs.  Nitin Bhaurao  Patil  & Anr.,  (1996) 1 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  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  High  Court  to decide  the  election  petition piecemeal  and  to  declare  the election  of  any  returned candidate  to be void at an intermediate stage of the  trial when  any part of the trial remains to be concluded.   (Para 54)

     Sub-section  (1)  of Section 99 begins with the  words At  the  time 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  (1)  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 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 election petition.  (Para 55)

     The  High Court cannot make an order under Section  98

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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 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  the  other  persons alleged to be  guilty  of  that corrupt  practice along with the returned candidate 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 (ii) of clause (a)  of  sub-section (1) of Section 99 clearly provides  for such  proof  being required at the trial which means  the trial  of an election petition mentioned in Section 98,  at the  conclusion of which alone the order contemplated  under Section 98 can be made.  (Para 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 100(1)(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 final order made under Section 98 by  the High Court declaring the election to be void. (Para 60)

     [emphasis supplied]

     In  Chandrakanta  Goyal  Vs.  Sohan Singh  Jodh  Singh Kohli,  (1996)  1 SCC 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 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 Vs.   Dwarkadas  Yashwantrao  Pathrikar, (1996) 1  SCC  394, wherein  this  court  has pointed 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 noticees at one  time while deciding the appeal in the Supreme Court and then  opined  that  in the case such second course  did  not appear to be appropriate one.

     All   the   decisions  of   this  Court  referred   to hereinbefore  are  3-  Judges Bench decisions.   A  2-Judges Bench  has also taken the same view in Dr.  Vimal (Mrs.) Vs. Bhaguji & Ors.  (1996) 9 SCC 351.

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     We  too  are of the opinion that the fatal  defect  as noticed  by  us  in the present case vitiates  the  judgment under  appeal  and an appropriate course, in the  facts  and circumstances  of  the  case,  would 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 of R.P.  Act.  In view of the  above  said  remand,  I.A.  No.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 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 abovesaid, the exercise of 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 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  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  officers and persons in the service of  Government in  committing  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 practices as alleged in  these sub-paragraphs also an omnibus issue no.3, has been framed.

     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

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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.

     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!

     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

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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.  We need say no more about the issues.

     Now  as  to  the recording of  evidence.   During  the hearing  of appeal the learned counsel for the parties  took us through several statements of witnesses and read out many a  passages  while  assailing  or  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 :

     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.   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 was appearing  in the  Court  on  sub-poena  and then  asked  to  produce  the sub-poena  in the Court for perusal of the presiding  judge. 4.   A  host  of  such questions have been  asked,  both  in examination-  in-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 to make comments or offer explanation as to  passages therefrom, overlooking that Section 145 of  the Evidence  Act  permits a witness being cross-examined 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  averments 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.

     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 in less than half of the time  than  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  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 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

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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, 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.

     It  is not necessary to ask each witness whether he is appearing  on  sub-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.

     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

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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 impermissble  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.  In Ram  Chander Vs.   State of Haryana AIR 1981 SC 1036 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   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.