E. L. SENANAYAKE, Appellant and G. B. DE SILVA and 2 others, Respondents

075-NLR-NLR-V-75-E.-L.-SENANAYAKE-Appellant-and-G.-B.-DE-SILVA-and-2-others-Respondents.pdf


Senanayake v. De Silva
409
1972 Present': G. P. A. Silva, S.P.J., Samerawlekrame, J.,and Weeramantry, J.L. SENANAYAKE, Appellant, and Q. B. DE SILVA and 2 others,
Respondents
Election Petition Appeals Nos. 6-8 of 1971—Kandy
Parliamentary election—Election petition—Allegations of corrupt or illegal practicesParticulars which petitioner is required to file—Expiry of period prescribedfor filing the main petition—Amendment or amplification of particulars thereafter—Allegations of fresh instances of corrupt or illegal practices cannot.be permittedat that stage—Illegal practice of conveying voters to the poll—Quantum of evidence—Meaning of term “ voter ”—Power of Court to question a witness—Inherentlimitations on it—Evidence Ordinance, e. 1G5—Election offences—Burden ofproof—Criminal Procedure Code, ee. 181,182—Ceylon (Parliamentary Elections)Order in Council, 1946 (Cap. 381), as amended by Act No. 9 of 1970, ss. 8 (1),39 (4), 56 (1), 56 (4), 67, 67 (3), 77 (c), 80A (1) (b), 80B (c) (d), 800, 83 (2),83 (3).
In an eleotion petition, the petitioner, who was the unsuccessful candidateat an election held in May 1970, challenged the validity of the eleotion of thesucoessful.candidate (1st respondent) on the ground that the 1st respondent. committed the oorrupt practice of undue influence in contravention ofsubseotions (4) and (l).of section 66 of the Ceylon (Parliamentary Eleotions)Order in Council. When the petition was originally filed itcontained only one charge, namely, the charge under section 60 (4). It waaonly after the expiry of the period during whioh an eleotion petition couldbe filed, that the charge under section 60 (1) was added with the leaveof the Eleotion Judge, despite objection raised by the 1st respondent. HieEleotion Judge allowed the application for amendment because he was ofopinion that the facts alleged in the oharge under section 66 (4) constituted aoorrupt practice not only under section 60 (4) but also under section 60 (1).At the end of the hearing of the petition the 1st respondent was found guiltyonly on the additional charge introduced by way of amendment.
There were also two charges against the 2nd and 3rd respondents as agentsof the 1st respondent of having committed the illegal praotioe of using and/oremploying vehicles during polling day for the purpose of conveying votersto and/or from the poll in contravention of seotion 07 (3) of the Ceylon(Parliamentary Eleotions) Order in Counoil as amended by Act No. 9 of 1070.These charges too were held by the Eleotion Judge to have been proved.
In the present appeal preferred by the 1st respondent from the determinationof the Election Judge—
Held, that the Election Judge had no power to allow the application forthe amendment of the eleotion petition by the addition of a corrupt or illegalpraotioe not already specified previously in the petition. There are essentialdifferences between the elements that go to prove an oSenoe under section60 (4) of the Parliamentary Elections Order in Counoil and those that amrequirod to prove an ofienoe under section 60 (1). Seotion 80C of the Order inCouncil, as amended by Act No. 9 of 1970, must be interpreted in the lightof the limitations prescribed in section 83 (2). The word “.amendment ” insection 83 (2) lias a meaning very different from that of the word “ amendment ”in section 80C. Section 80C (1) permits the Election Judge to allowthe amendment or amplification of particulars, after the expiry of the period
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Senanayake v. De Silva
prescribed for filing an election petition, within a very limited area only. The'limits within which such amendments can take place may be summarisedcthus:—
the amendment must relate to a corrupt or illegal practice alreadyspecified in the petition,
. the amendment must bo necessary in the opinion of the Court farensuring a fair and effective trial of the petition, and
even if the amendment proposed complies with these two require-ments the Court shall not allow such amendment if it will result in theintroduction of particulare of any corrupt or illegal practice notpreviously alleged in the petition.
The third limitation is the most important of the throe because, while thefirst and second leave some latitude to Court, the third does not.
Held further, (i) that, in regard to a charge of conveying voters to or fromthe poll in contravention of section 67 (3) (a) of the Parliamentary ElectionsOrder in Council (as amended by Act No. 9 of 1970), a person intending tovote can reasonably be described as a voter without doing any violence tothe definition of “ voter ” in the interpretation section 3 (1). In such a caseit is not necessary to prove that the names of the persons conveyed are on theelectoral register.
that the power conferred on the Court by section 165 of the EvidenceOrdinance to put questions to a witness is subject to inherent limitations.In the present case, the questioning by the Court of a material witness calledby the 2nd respondent was not such an exercise of the powers of the Courtas are permitted by section 165 of the Evidence Ordinance.
that a petitioner undertaking to prove a charge in an election petitionhas to discharge the same burden that a prosecutor has in a criminal case.When the evidence is circumstantial, if the proved circumstances do not excludethe hypothesis that the offence may well have been committed by someoneother than the respondent, even though one inference from the circumstancesis that the respondent himself committed the offence, the Court hasno alternative but to* give the respondent the benefit of such doubt.Accordingly, this rule of evidence is applicable where the oharge against aperson, that he used or employed a vehicle for conveying a voter to the pollin contravention of section 67 (3) of the Parliamentary Elections Order inCouncil, is based on circumstantial evidence.
ElECTION Petition Appeals Nos. 6-8 of 1971, Kandy.
Ranganalhan, Q.C., with P. Navaratnarajah, Q.C., Mark Fernando,
W.P. Qunatilake, K. Kanag-Iavoaran and M. Stvarajasingham, forthe respondents-appell&nts in Appeals 6, 7 and 8 and for the 2nd and 3rdrespondents in Appeals 6, 7 and 8.
K. Shinya, with Nimal Senanayake, S. B. Sangakkara, NihalSingaravelu,. Vif ay a Wiclcremaratne and Lai Wijenayake, for the petitioner-respondent in all the Appeals.
Our. adv. mill.
ORDER OF COURT—Senanayahe v. De Silva
411
March 6, 1972. Order of the Court—
This is an appeal from the determination of an Election Judge inan election petition filed in respect of the Parliamentary GeneralElection held in May, 1970, for the Kandy Electoral District. Thepetitioner in the case, who is also the 1st respondent to the appeal, wasthe unsuccessful candidate G. B. de Silva, hereinafter referred to asthe petitioner. The successful candidate, who was the lBt respondentin the case, is the appellant, hereinafter referred to as such. The 2ndand 3rd respondents in the case are also the 2nd and 3rd respondentsto the appeal.
There were at the trial four charges, two against the appellant ofhaving committed the corrupt practice of undue influence as definedin Section 66 (4) and 65 (1) in that he, being the Minister of Health andas such, an employer and/or the virtual employer and/or in a positionto give directions to and in relation to the employment of employeesin the Department of Health of the Government of Ceylon, at a meetingof such employees held at the Conference Room of the Kandy Hospitalon or about the 23rd May, 1970, indicated to those present that if theyvoted against him and he lost his seat, nevertheless the United NationalParty would still be returned to power and they (the hospital employees)there present would have to take the consequences including the lossof work for all casual employees and the transfer of permanent employees.The petition averred that the making of the said statement /or statementsby the 1st respondent also constituted within the meaning of Section56 (1) of the said Order-in-Council, a threat to inflict temporal injury,damage, harm or Iobs upon or against the employees there present inorder to induce them to vote or refrain from voting or constituted withinthe meaning of the said Section 56 (1), duress which impeded or preventedthe free exercise of the franchise of the said electors. There were alsotwo charges against the 2nd and 3rd respondents as agents ofthe appellant of having committed the illegal practice of using and/oremploying vehicles during polling day for the purpose of conveyingvoters to and/or from the poll aB Bet out in Section 67 (3) of the Ceylon(Parliamentary Elections) Order-in-Council 1946 as amended by ActNo. 9 of 1970. –
We should add that when the petition was originally filed it containedonly one charge against the appellant himself, namely, a charge underSection 66 (4), and that it was on the 25th July, after the expiry of theperiod during which an election petition could be filed againstthe appellant, that the petitioner moved to amend the petition by addinga charge under Section 56 (1). The motion to add this chargewas strenuously opposed by counsel for the appellant. The learnedElection Judge however accepted the submission of counsel for thepetitioner that the foots stated in the charge under Section 56 (4) constituteda corrupt practice not only under Section 56 (4) but also under Section■66 (1) and took the view that the amendment was necessary to ensure
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ORDER OF COURT—Senanayake t>. Dc Silva
a fair and effective trial of the petition. In the result the petition ■whichoriginally contained three charges went to trial on four charges.
" It is important to note that in respect of the only charge against theappellant with which the petitioner came to Court the learned ElectionJudge found the appellant not guilty but that he found him guilty onthe additional charge introduced by way of amendment.
We shall first of all deal with the submissions of the appellant thatthe learned Election Judge erred in law in allowing the amendmentwhich resulted in the addition of a charge to the original petition.
The provisions regarding any amendment relating to petitions arecontained in Section 83 (2) and Section 80C of the Order-in*Council.
Section 83 (2) enables an eleotion petition presented in due time, forthe questioning of the return or the election upon an allegation of acorrupt or illegal practice, to be amended with the leave of the Courtvriihin the time within which an election petition questioning the return orthe election upon that ground may he presented. Sub-section 3 of courseis in the nature of an exception, but we are not concerned with thatin the instant case.
It will be noted that even under Section 83 (2), where a petitionerseeks to amend a petition within the time limit for presentation of apetition, two limitations are imposed by the section itself. It is in thefirst place confined to a petition questioning the return or the electionupon an allegation of a corrupt or illegal practice and, secondly, anamendment can be effected only with the leave of a Judge of the SupremeCourt. This seems to us to indicate the finality which the legislatureattached to the filing of a petition and the possibility of a court refusingto allow an amendment even in the limited number of cases where anamendment can be applied for. It also shows that where the challengeis based on allegations other than a corrupt or illegal practice, a petitioneris not entitled to apply to court for an amendment even though, if hehad not already filed the petition, he could have, without any applicationto court, filed one with unlimited allegations or grounds. This meansthat when a petitioner filoB a petition he imposes on himself a voluntarybar against making any further allegations against the candidate. Thisbar is absolute in the case of a petition based on grounds other than acorrupt or illegal practice and qualified when it is based on an allegationof a corrupt or illegal practice, for, the leave of a Judge of the SupremeCourt is required for amendment.
It is in the light of the limitations prescribed in Section 83 (2) thatone has to interpret the provisions of Section 80C. It seems to us thatthe word “ amendment ” referred to in Section 83 (2) has a meaningvery different from that pf the word “ amendment ” referred to in Section80C. Seotion 83 (2) speaks of an amendment to a petition which canbe effected within the time within which an election petition can bepresented. Being still within the time when a petition could have
ORDER OP COURT—Senanayake v. De Silva
413
been presented it is not unreasonable to think that a court can andwill ordinarily allow an amendment by the addition of allegations ofcorrupt or illegal practices not previously made. For, if the petitionerhad not presented the petition too early within the prescribed time,he could still have hied it with the additional allegations which he appliesto include by way of amendment and there is no strong reason for acourt to stand in the way of any such additional allegations which thepetitioner could have made if only he did not rush to court. It shouldalso be observed that Section 83 (2) refers to an amendment with theleave of a Judge of the Supreme Court, which suggests that the stagecontemplated is one before the trial commences, for if it is after thecommencement of the trial the presiding Judge will be an ElectionJudge. Section 80C (1) on the other hand gives the power to an ElectionJudge to allow the particulars of any corrupt or illegal practice specifiedin an election petition to be amended or amplified in such manner asmay be necessary to ensure a fair or effective trial. It is clear from thesewords that the section does not give the Election Judge the power toallow an amendment or amplification of a corrupt or illegal practicenot specified in the petition. To our minds, the words in the first partof the section are by themselves sufficient to exclude an additionalallegation not specified in the petition even without the words ‘‘ heshall not allow such amendment or amplification if it will result in theintroduction of particulars of any corrupt or illegal practice not previouslyalleged in the petition ”. The concluding words which reiterate thenecessity to confine the further particulars to an illegal practice alreadyspecified can therefore be interpreted to be a repetition intended to.lay further emphasis on the prohibition and to place the matter beyonddoubt.
A striking contrast between the words of section 83 (2) and those ofsection 80C is that while the former speaks of amendment of a petition,the latter speaks of the amendment or amplification of the particularsof any corrupt or illegal practice specified in an election petition. Implicitin thiB language is the neoessary inference that section 83 (2) refers tothe amendment of a petition by the addition of fresh allegations, ifallowed by court, while section 80C refers to the amendment oramplification of the particulars of a specific corrupt or illegal practicealready alleged. This implication, so far as section 80C is concerned,is further strengthened and confirmed by the laBt few words that suchamendment or amplification should not result in the introduction ofparticulars of any corrupt or illegal practice not previously alleged inthe petition. The conclusion one can draw on a reading of these twosections is that the only opportunity a petitioner has to amend a petitionby the addition, variation or substitution of an allegation or charge isthe one contemplated by section 83 (2), which opportunity willbe available only if an application therefor is made before the date ofexpiry for presenting a petition. . Once the date of expiry has passed,the only amendment that the law allows is an amendment of particularsof a corrupt or illegal praotice already specified in the petition.
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ORDER OF COURT—Senanayake «>. De Silva
CounBel for the petitioner has been at pains to persuade us that thecorrupt or illegal practice specified in an election petition referred toin Section 80C, is a corrupt or illegal practice in the broad sense, referredto in Section 77 (c) of the Order-in-Council and set out in a petition asa ground for avoidance of an election such as bribery, treating or undueinfluence, and not a particular instance of any of those offences. Hisfurther contention which was a necessary corollary to this first contentionwas that by way of amendment or amplification of particulars undersection 80C (1) the Election Judge may allow a petitioner to furnishfurther particulars of any number of fresh instances of the corrupt orillegal practice or practices alleged in the petition.
Several reasons militate against the acceptance of this submissionand if it is accepted, the resulting position will be to completely defeatthe very object which the new amendments to the Order-in-Councilintroduced by Act 9 of 1970 intended to achieve in this regard. Inthe first place, the very section which empowers the court to allowamendment or amplification permits such amendment or amplificationonly of the particulars and not amendment or amplification of allegations.Secondly, according to the section, such amendment or amplificationcan only relate to an illegal practice specified in the petition. Thirdly,the language of the section shows that the object which the sectionintends to achieve is to afford a fair trial and the limitation imposedby the last few words of the section makes it abundantly clear thatthe fair trial contemplated is one which benefits the respondent to thepetition and not the petitioner. For, these words impose a prohibitionon the court not to allow an amendment which will introduce particularsof a corrupt practice not previously alleged in the petition. Thisprohibition is manifestly one which operates to the advantage of arespondent who has to meet the allegations of corrupt or illegal practicesand never to the advantage of a petitioner. One of the main objects ofthe 1970 amendment by introducing section 80B (c) and (d) and repealingRule 5 of the Third Schedule regarding particulars was that the petitionitself must contain the complete case which the respondent or respondentsare called upon to meet. If after the respondent or respondents, asthe case may be, get ready for the trial on the allegations made in thepetition, they can be confronted with a series of fresh allegations atthe trial, introduced in the guise of amendment or amplification ofparticulars, such a course will not merely reintroduce but heighten themischief that the 1970 amendment set out to eradicate. If this courtagrees to the interpretation contended for by Mr. Shinya, it will notmerely be legislating but also deliberately repealing the latest amendmentintroduced by Parliament and arrogating to itself a function whichit does not possess.
We shall now examine the further implications of the acceptance ofMr. Shinya’s contention on the amendments contained in Act No. 9 of1970. Section 80B requires in sub-section (c) that the petition should
ORDER OF COURT—Senanayake v. De Silva
41ft
contain a concise statement of the material facts on which the petitionerrelies. This requirement is equally applicable, whatever allegationsor charges may be contained in the petition. Where, however, accordingto this concise statement, there is an allegation of any corrupt orillegal practice, subsection (d) requires the petition to set forth (a)full particulars of the corrupt or illegal practice alleged, (6) as lull astatement as possible of the names of parties alleged to have committedsuch corrupt or illegal practice, and (c) the date and place ofthe commission of such practice. In order to further ensure that thoallegations specified by the above particulars have a basis of truthsub-section (d) imposes a further duty on the petitioner to furnish byhimself or by an appropriate party an affidavit in support of such corruptor illegal practice. If Mr. Shinya is correct in his contention that acorrupt or illegal practice should be given the wide meaning such as“ bribery ” or “ treating ” in section 80C (1) and not the narrow meaningof a specific act of bribery or treating it seems to us that there will be aviolent conflict between section 80B (c) and 80B (d) on the one handand 80C (1) on the other. For, when a petitioner has complied withsection 80B (c) and (d) he would already have specified the corrupt orillegal practice which he alleges with so much particularity and furtheridentified it by {means of an affidavit that there is no further possibilityof interpreting it broadly as an act of bribery, treating, undue influenceor such other corrupt practice, simpliciter, for the purposes of section80C. The particular corrupt practice is thus stated and affirmed toand fixed with certainty when complying with section 80B. It mustbe remembered that a petitioner has to comply with section 80B and
long before the stage contemplated in section 80C (1) when an ElectionJudge sits in judgment to allow or disallow an application for amendmentor amplification of particulars. If the petitioner does not comply with80B (c) and (d) he faces the hazard of his petition being not consideredan election petition and being dismissed for such non-compliance, sothat it is only an election petition which is in accordance with the law,that is to say, which has complied with section 80B (c) and (d) whichcan proceed to the next stage when the question of amendmentor amplification of particulars under 80C (1) can arise. Theseconsiderations too confirm us in the view that any corrupt or illegalpractice can only mean any particular instance of such an act in thiscontext. Yet another impact on the meaning of the words corruptor illegal practice in section 80C arises from section 80A (1) (6). Underthis provision a petitioner Bhall join as respondents to his petition anyother candidate or person against whom allegations of any corrupt orillegal practice are made in the petition. There respondents mustsurely mean the respondents against whom any specifio allegation ismade. If for instance A, B and C are alleged to have committed actsof bribery in relation to the election they will figure as respondents tothe petition. If in amending or amplifying particulars under80C allegations of bribery are sought to be made against X, Y and Zan Election Judge cannot allow the amendment without violating the
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ORDER OF COURT—Senanayake v. De Silva
requirements of 80A (1) (6). For, there is no provision in the Act toadd a respondent in these circumstances.
Not only would section 80B (c) and (d) be inconsistent with Section80C (1) on the basis of acceptance of Mr. Shinya’s contention, but theopposite contention would make the two sections consistent and workable.For, a petition which has complied with 80B (c) and (d) may still quiteoften be deficient in particulars bo as to warrant a respondent to desireand apply for further particulars, in regard to a corrupt or illegal practicealready specified. Supposing, for instance, a petition alleges interalia that X as an agent of Y, the successful candidate, gave a bribe ofRs. 60/- at Galle on the 20th May, 1970 to one Perera. This allegationmay be considered by the petitioner and accepted by a court as a sufficientbona fide compliance with the provisions of section 80B (c) and (d).The respondent may however wish to have further particulars of theexact place at Galle where the bribe is alleged to have been given, thefull name of the person to whom it was given and in what circumstancesit was given and such further particulars would indeed appear to benecessary in order to ensure for the respondent a fair trial. It willthus be seen how the amendment or amplification of particulars maybe legitimately desired and ordered by court in respect of a corruptact which was previously specified. It is also possible that a respondent,without applying for further particulars, moves for a dismissal of thepetition on the ground of the deficiency of particulars and non-compliancewith 80B (c) and (d). The petitioner may then offer to furnish moreparticulars or to amend them and the court acting under 80C (1) mayallow more particulars to be given. Both these situations would ariseon the basis of some particular corrupt or illegal practice being allegedin the petition. It is unthinkable however that a court, after thecommencement of the trial, can or null make an order allowing thepetitioner to give particulars of various instances of corrupt practiceswhich he did not allege in the petition. Apart from the unfairness ofsuoh a trial to a respondent contrary to section 80C (1) those corruptpractices will be corrupt practices in respect of which persons againstwhom the allegations are made have not been joined as respondentsin terms of section 80A (1) (b) and the names of parties who committedthe corrupt practice, the date of such commission, the place of suchcommission nor any other particulars had been given in the petitionas required by section 80B (c) and (d). On a careful construction ofthe relevant sections alone, therefore, Mr. Shinya’s contention willbe in direct conflict with the provisions of sections 80A, 80B and 800.
The implications of the new sections 80B and 80C in regard to whatan Election Petition should contain and the Bcope of a Court’s powerto allow on amendment or amplification of the particulars set out inthe petition have been dealt with in some recent cases. The view takenin regard to furnishing of particulars under Rule 5 of the old law inearlier decisions too has a bearing on this question. We shall thereforeexamine some of those decisions which would help to clarify the position
ORDER OF COURT—Senanayake v. De Silva.417
as it exists today. Prior to the amendments brought about by ActNo. 9 of 1970, Rule 4 (1) (6) required the facts and grounds relied onby the petitioner to sustain the prayer to be stated in the petition. InTillakawardena v. Obeyesekere 1 33 N. L. R. 65 and P. P. Wickremasuriyav. P. H. William de Silva2 67 N. L. R. 538 it was held that the statementof something more than the ground in the petition was sufficient becausedetails could be ascertained by the respondent by applying for particularsunder Rule 5. In the latter ease, one of the paragraphs in the petitionBet out the following facts :—“.. the respondent by himself
or his agents and/or other persons acting with his knowledge or consent,made or published before or during the said election, false statements' of facts in relation to the personal character or conduct of the petitioner,for the purpose of affecting his return at the said election. ” Theobjection was taken that since the petition did not set out the facts asrequired by Rule 4 (1) (b) of the 3rd Schedule to the Order-in-Council,the action must be dismissed. It was held by Tambiah J. thatthe requirements of Rule 4 (1) (b) of the 3rd Schedule had been compliedwith and that if the respondent required further particulars he wasentitled to make his application for particulars in terms of Rule 5. ActNo. 9 of 1970 repealed Rule 4 (1) as well as Rule 5 and introduced section80B as well as 80A and 80C which I have already referred to earlier.Section 80B (c) states that a petition “ shall contain a concise statementof the material facts on which the petitioner relies ”, These wordswould appear more or less to take the place of the words in the old Rule4 (1) (b) “ shall briefly state the facts and grounds relied on to sustainthe prayer ”. The scope of the words in section 80B (c) arosefor consideration in the case of Wijewardena v. Senanayake3 74 N. L. R.97. In dealing with the meaning to be attached to the words in section80B (c) the following observation was made by His Lordship the ChiefJustice:—
“ In a case in which a petitioner relies on the commission of a corruptor illegal practice by the successful candidate or his agent, paragraph{d) of s. 80 expressly specifies the facts which the petitioner muststate with regard to the commission of the alleged corrupt or illegalpractice. But this specification of what are material facts in thatclass'of case does not in my opinion relieve the petitioner of the dutyto specify material facts in a case in which he seeks to avoid an electionon a different ground. For instance, a petitioner cannot merelystate that the successful candidate was disqualified for election, forsuch a statement would specify only the ground for the avoidanceof the election, but not any fact on which he relies to establish thatground ; in this example, if the material fact is that the respondent wasat the time of his election a public officer or. a government contractor,or was not a citizen of Ceylon, or was the subject of some disqualifyingconviction, s. 80B (c) requires that fact at least to be stated. Soalso, in tho case of a charge of general intimidation, a petitioner must
{1931) 33 N. L. R. 65. 1 {1965) 67 N. L. R. 538.» {1971) 74 N. L. R. 97•
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ORDER OF COURT—Senanayake v. Dt Silva
specify at the least the nature of the alleged intimidation ; whetherJit consisted of actual violence, or of threats of violence, or of some'other kind of intimidation, and when and where such intimidationis alleged to have occurred. A petitioner cannot be permitted merelyto specify a ground of general intimidation in an election petitionwith the hope that he can substantiate it with evidence subsequentlysecured. ”
He went on to say further that he agreed with the trial Judge in thatcase that the amendment of 1970, which repealed Rule 5 and requireda concise statement of material facts to be made in the petition wereintended to secure that the respondent will know from the petitionitself what facts the petitioner proposes to prove in order to avoid theelection and will thus have a proper opportunity to prepare for the trial.Those observations fortify us in the view we have expressed above aboutthe content and fullness which the law requires the petition to haveafter the 1970 amendment.
The principle that a petitioner should not be allowed an amendmentwhich has the character of a separate charge of which there was nonotice to the respondent from the petition finds considerable supportfrom the passage from Halsbury’s Laws of England (Simonds Edition)Vol. 14, page 258 as well as from some cases cited to ub by the learnedcounsel for the petitioner. In the above passage from Halsbury’BLaws of England it is stated :—“ The High Court has no jurisdictionto allow an amendment of a petition after the time prescribed by theStatute by the introduction of a fresh substantive charge ; nor to convertan ofFenoe under one statutory provision into an offence committedagainst- another related provision, although the facts might supportthe latter .” We shall have occasion to refer to the principle enunciatedin this passage again when we deal with the specific amendment whichthe learned Election Judge allowed in this case and the submissionsmade by the learned counsel for the petitioner before us in supportof the correctness of that amendment. In Maude v. Lowley1 (1874)9 C.P. 165 (also 29 Law Times Reports 924), the Court was called upon toconsider a similar question where the law provided in section 7 of theCorrupt Practices (Municipal Elections) Act 35 and 36 Viet C. 60, asfollows:—“ No person who is included in a register for a borough orward thereof as a burgess or citizen Bhall be retained or employed forpayment or reward by or on behalf of a candidate at an election forsuch borough or ward thereof as a canvasser for the purposes of theelection. ” The petition alleged that the respondent had employedpersons who were on the register of burgesses for the North Ward. Anamendment was allowed containing the additional words “ and in otherwards of the said borough ”. Lord Coleridge C.J. indicated that section7 referred to two different offences, the employment of voters livingwithin the ward, and the employment of voters living without the ward
i
(1874) 9 O. P. 165 ; 29 L.T. 924.
ORDER OF COURT—Sena nay aJa v. De Silva419
and that as the original petition specified one of the offences and, asamended, it specified both of the offenceB in the 7th section, the Courthad no jurisdiction to allow the amendment. In Manchester, 4 O’M & B121 the charge in the petition pointed to illegal hiring for the purpose ofconveyance of voters. Such illegal hiring was an offence under section14 if committed by the candidate or his Election Agent but this wasnot alleged. It was an illegal practice under section 7 if an Agent wasguilty of entering into a contract for hiring. As the petitioner pointedat an offence under Eection 14 and not one under section 7 it was heldby Cave J. that it would be wrong to allow a virtual amendment ofthe petition at that stage. In Beligammana v. Ratwatte1 38 C.L.W. 29where the particulars furnished in respect of the alleged commissionof a corrupt practice on a specified date related to a period before suchdate it was ordered by the Court to be struck out. It was also held byBaBnayake J. that an application to amend an election petition by addinga fresh charge long after it was filed should not be allowed. In MultiahChettiar v. Qanesan2 A.I.R. 1958 Madras 187 at 194 Ayyangar J. said“ In the first place the election petition did not contain any generalstatement which could cover contracts other than the one Bpeoifiedin it. We doubt whether an allegation in general terms, such as the'one suggested by learned counsel for the respondent, would have satisfiedthe requirement of section 83 (1) which requires that an election petitionshould state ‘ the material facts ’ on which the petitioner relied forthe relief that he Bought. The following observations of Mr. BaronPollock on the Lancaster Division Election Case (5 O’M & H page 39)appear to be apt and in point in their application to the instant case.The Court was there dealing with fresh instances of corrupt practioasought to be brought in by way of particulars furnished in respect ofthe charges already made. The learned Baron said “ the present petitionhad been drawn up in a general form and no one had a right to gainan indirect advantage by reason of it being so drawn …. it would
have been dealing extremely harshly if time and advantage wero givento the petitioners by reason of the general form in which the petitionhad been drawn. That was not the intention of the Act, and theymust see that they did nothing contrary to it. The intention of theAct was, as shown by section 40, to limit the time within which chargeecould be made. The additional particulars must be struck out. "
In Bajpai v. Teriloki Singh3, A.I.R. 1957, S.C. 444 it was held thatnew instances of a corrupt practice alleged in the petition maybe Introduced by an amendment of particulars. Section 83 (1) of theRepresentation of the People Act of India which corresponds to ourSection 80B (c) reads :—“ 83 (1). An election petition shall contain aconcise statement of the material facts on which the petitioner relies. …” It was held upon the English authorities and consideration*
that were before our Court in Thilakawardena v. Obeyesekera and
* A. I. R. 1958 Madras 181 at 194.
• A.I.R. 1957 S. O. 444.
1 88 O. L. W. 29.
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ORDER OF COURT—Stnanaynke r. De Silva
Vickremasuriya v. William de Silva (supra) in interpreting Rule 4 (1)(6) which required facts and grounds to be stated, that section 83 (1)was satisfied if the grounds on which the election is sought to be setaside alone are stated. Section 83 (3) of the Indian Act which givesthe power to the Court to allow amendment of particulars is wordeddifferently from our section 80C (1) and permits it to order further andbetter particulars in regard to any matter. Any matter was interpretedto “ comprehend the grounds on which the election is sought to be setaside In the course of the judgment it was stated “ And even whenthere is no list filed, as in the present case, it would be competent to theTribunal to allow an amendment giving for the first time instances ofcorrupt practice, provided such corrupt practice has been made a groundof attack in the petition This is not possible under our provisionsand may be due to the fact that the particulars are not part of the petitionbut in a list to be attached to it. It was also held that the general powerto allow amendments of pleadings under the Civil Procedure Code,namely, Order 6, Rule 17, applied. In Wijeyewardena v. Senanayake(supra) at page 101 the learned Chief Justice said “ On this point also,Counsel for the petitioner stressed the fact that the phraseology ofs. 80B is very similar to that of the corresponding Indian Section, andargued that we should follow Indian decisions. The answer to thisargument is that the history of the Indian law on thiB matter is differentfrom the history of our law, and that to apply Indian decisions wouldbe to ignore the intention of the Legislature in amending our Law in1970 ”. In the case of Jayasena v. Ilangaratne1, 73 N. L. R. 35, at 41,Sirimane J. observed “ I would like to say a word here aboutthe particulars which a party is required to file in election cases. Theymust be accurate and precise so as to leave the other party in no doubtas to the charges he has to meet. The particulars, in an election petition,take the place of a charge sheet or an indictment in a criminal case.A petitioner should not, in my view, be permitted to rely at the end ofthe case on some item of evidence elicited, e.g., in the cross-examinationof a witness, to put forward a case based on a charge different from thatset out in the particulars
In this connection it is important to bear in mind that sections 181and 182 of the Criminal Procedure Code in regard to alternate offenceshave no application to election petition proceedings and it is not opento a petitioner to make one allegation in the hope of securing throughthe Court a finding of guilty against the respondent in respect of a relatedallegation though not the one originally made. It must be noted thateven under the Criminal Procedure Code the general rule is that forevery distinct offence of which any person is accused there shall bo aseparate charge and it is because of the existence of the special provisionsof sections 181 and 182 that a person may be found guilty of a cognateor minor offence although he is charged with another. Such a provisionis absent in Election Law and there is therefore no warrant for a
(m^ 7.1 V. L. R. 35 at 41.
ORDER OF COURT—Senanuyate v. De Silva
421
Court to find a respondent guilty of an election offence which has notbeen alleged in the original petition, even though it may contain some ofthe identical ingredients, but not all, of the offence which waB originallyalleged in the petition. Even in regard to the pi ^visions of the CriminalProcedure Code, sections 181 and 182, our Courts have been inclinedto take a very strict view. This is illustrated in the case of The King v.Piyasena *, 44 N.L.R. 58 at 60 in which Soertsz J. said “ This section,however, postulates a case in which a doubt arises from the nature ofthe fact or series of facts and not from a failure to appreciate the valueof unambiguous facts or from an inaccurate view of the position in lawarising from these facts Similarly, in the case of The Queen v. Vellasamyand four others 8, 63 N. L. R. 265, it was held by Basnayake C.J. thata person who is indicted on a charge of murder cannot be acquitted ofmurder and, at the same time, without due amendment of the indictmentand being afforded an opportunity of answering the charge, be convictedunder section 198 of the Penal Code of causing disappearance of evidenceof the commission of murder or culpable homicide not amounting tomurder, and that such a conviction is not covered by the provisionsof section 182 of the Criminal Procedure Code. This being the viewtaken by our Courts even with the presence of express provision in theCriminal Procedure Code for convicting an accused of certain offencesof which he is not charged when he faces his trial, that provision couldnot by analogy assist a petitioner at an election petition trial to havethe respondent found guilty of an election offence which has not beenalleged in the original petition even though the two offences may bealike.
It will thus be seeq that the passage in Halsbury’s Laws of Englandquoted above as well as the decisions in the above cases with the oneexception of Bajpai v. Triloki Singh point unmistakably in one direction,namely, that the petitioner cannot be allowed through the mediumof amendment of particulars or furnishing of particulars, to makeallegations of fresh instances of corrupt or illegal practices not alreadyset out in the petition. So far as our law is concerned these decisionswill apply even with greater force after the far reaching amendmentsbrought about by Act No. 9 of 1970. In regard to the decision in Bajpaiv. Triloki Singh, on which counsel for the petitioner strongly relied,not only is it outweighed by the preponderance of authority againstthe principle laid down therein but its applicability has to be consideredhaving regard to the differences in the law itself. In the first place,while the Indian Courts have interpreted “ material factB ” in section83 (1) of the Representation of the People Act to mean the groundson which that election is sought to be set aside, we have now taken theview, after considering the Indian provisions, that stating the groundalone is not a compliance with the requirement in Section 80B (c) forthe petition to contain “ a concise statement of the material facts onwhich the petitioner relies ”. Secondly, the amendment of 1970 has 1
1 (1942) 44 N. L. S. 58 at 60.
» (I960) 63 N. L. R. 265.
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ORDER OF COURT—Senanayake v. De Silva
done away with Rules 4 and 5, the consequence being that in Ceylon apetition has to contain the complete case against the respondent andthere is no scope for subsequent addition of allegations by way ofamendment after the expiry of the date for filing a petition. Thirdly,tho list to be attached to a petition containing the particulars, whichcan be considered to be subordinate to the petition itself and which canbe subsequently amended has no place in our law.
The only reasonable view which we can take therefore is that section80C (1) permits the Election Judge to allow the amendment of particularsin a petition within a very limited area. If one analyses this section thelimits within which such amendments can take place may be summarisedin the following way :—
the amendment must relate to a corrupt or illegal practice alreadyspecified in the petition,
the amendment must be necessary in the opinion of the Courtfor ensuring a fair and effective trial of the petition, and
even if the amendment proposed complies with these tworequirements the Court shall not allow such amendment if itwill result in the introduction of particulars of any corrupt orillegal practice not previously alleged in the petition.
It seems to us that the third limitation is the most important of thethree because, while the first and second leave some latitude to Court,the third does not. This is confirmed by the very language of the sectionbecause, while even the permitting of any amendment at all isdiscretionary, the words used being “ may allow ”, the prohibition notto allow an amendment which results in a new allegation of a corruptpractice is imperative. All the words are suggestive of a provisionwhich does not prejudice a respondent to the petition and the indicationfrom the last limitation is that on no account should the new particularsresult in the respondent being surprised by a fresh allegation.
The Order-in-Council contains various grounds for setting aside anelection after a trial of an election petition. The genus of a corruptpractice which can form the ground for setting aside an election embracesseveral species each of which substantially differs from the other. Eachspecies of a corrupt practice again contains various categories or limbsdiffering considerably in detail each of which can by itself constitute aground for invalidating an election. Thus the broad genus of corruptpractices includes a large variety of election offences such as personation,treating, undue influence, bribery, making or publishing a false statementregarding the character of a candidate for the purpose of affecting thereturn of a candidate and making or publishing a false statement of thewithdrawal of a candidate for t^ie purpose of promoting or procuringthe election of another candidate. Each of these species is sub-divided,in the case of undue influence, into four categories under section 56and, in the case of bribery, into nine categories under section 57. Eachof these categories being a sufficient ground for setting aside an election
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what the particular corrupt practice is on which a petitioner relies toset aside the election of a candidate and of which notice is given to thatcandidate before the final date for filing an election petition dependson the particulars of the corrupt practice’ as specified in the petition.As we have pointed out earlier, these particulars may often be insufficientfor the purpose of giving tho candidate a clear picture of what the chargeis that he has to meet and it is for that reason that section 80C (1) permitsan amendment or amplification of particulars. This necessity fiowBfrom the wording of section 80B {b) itself which -requires a petitionerto set forth full particulars of any corrupt or illegal practice that healleges but specifically mentions only—
(а)the names of parties alleged to have committed such corrupt orillegal practice, and
(б)the date and place of the commission of such practice.
There may in fact be many other particulars not stated in the petitionwhich are necessary for the respondent in order to meet the allegationsadequately. Numerous instances can be given of insufficient particularssupplied in terms of section 80B (d) but it seems hardly necessary todo so here.
Mr. Ranganathan submitted that there were several flggpnt.ialdifferences between the elements required to found an allegation undersection 50 (1) and those required to establish an allegation under section56 (4). He analysed these. differences as follows :—
* Section 56 (4) was not present in the original Order-in-Counoil
while section 56 (1) was.
Section 56 (4) was introduced by a special amendment of 1964and it is important to.note that it did not replace section 56 (1)but was introduced in addition to it, implying thereby that theoffence defined by section 56 (4) is distinct from that definedunder section 56 (1).
The first essential element in section 56 (4) is the relationshipof employer and employee between the person issuing the threatand the one who is threatened whereas under section 66 (1) nosuch relationship is required.
Section 56 (4) refers to a case where the employer threatens toterminate an employee whereas under section 56 (1) the threatcan originate from any person who has no relationship to theperson threatened.
The threat under section 56 (4) is confined to termination ofemployment or the denial of any benefit which the employeehas enjoyed or is enjoying or will in the ordinary course enjoywhereas under section 56 (1) the threat can extend to any temporalor spiritual injury, damage, harm or loss upon or against theperson threatened.
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ORDER OF COURT—Senanayake v. De Silva
Under section 66 (4) the threat is made by the person himselfdirectly whereas under section 56 (1) the threat can be issueddirectly or indirectly, by himself or by any other person.
Duress which impeded or prevented the free exercise ofthe franchise is not an element in section 56 (4) while it is one insection 66 (1).
This analysis shows that there are essential differences in the elementsthat go to prove an offence under section 66 (4) and those that are requiredto prove an offence under section 56 (1). It also shows that the appellantwho came into Court prepared to meet the allegation under section 56 (4)received a surprise when he had also to meet an allegation under section66 (1). In order to absolve himself from an allegation under section56 (4) he need only have satisfied the Court that he had no contract ofemployment with the person or persons alleged to have been threatenednor that he was the latter’s employer in any sense of the term, whilethat defence would have been wholly inadequate to meet the chargeunder section 56 (1). The difference in the ingredients between thetwo offences and the surprise we refer to were amply proved by the result,namely, that the Election Judge found him not guilty of the originalcharge under section 56 (4) but found him guilty of the amended chargeunder section 56 (1).
Mr. Shinya endeavoured to meet this argument of Mr. Ranganathanby submitting that it was the same incident based on the identicalfacts that was alleged in the amended charge and that, because thesame facts constituted the corrupt practice of undue influence underboth sections 56 (1) and 56 (4), the Election Judge was right in law inallowing the amendment. If at all there was an amendment,he submitted, it was an amendment not by the addition of freshparticulars but by the subtraction of some particulars. It seems tous that Mr. Shinya would have been in a stronger position to makethis submission had his application to the Election Judge only resultedin a substitution of section 56 (1) in place of section 56 (4) and not anaddition thereto. Secondly, Mr. Shinya’s submission does not meetthe argument of Mr. Ranganathan that the defence to the allegationunder section 56 (4) would not have availed the first respondent inrespect of the allegation under section 56 (1). Quite apart from theseconsiderations, the conclusion we reached earlier in regard to the scopeand meaning of the amendment or amplification of particulars referredto in section 80C (1) does not enable us to agree with the submissionof Mr. Shinya. Independently of the construction of the section too,as we have pointed out earlier, the weight of authority from judicialdecisions in this country as well as India and England, is entirely infavour of the view put forward by Mr. _Ranganathan. We thereforethink that there is substance in his contention that the learned ElectionJudge was in error in allowing the said amendment. Indeed we feelthat he may not have fallen into this error if he had the benefit ofthe argument which was so ably and lucidly presented before us by
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Mr. Ranganathan. Whilo this conclades the matter so far as «ue twoallegations against the first respondent are concerned, in deferenceto the exhaustive submissions made by counsel for the respondentthat, on the evidence available, the finding of the Election Judge wasnot rationally possible, we would wish to make a few observations onthat aspect.
Four witnesses were called by the petitioner in support of the firstallegation against the first respondent apart from the petitioner, namely,Aron Singho, David, Mrs. de Silva and Noor. Several criticisms weremade by counsel for the respondents, on the learned Election Judge’sapproach to this evidence. He. submitted that the testimony thesewitnesses gave in the evidence in chief was whittled down considerablyin cross-examination almost to the extent of it being withdrawn andhe complained that the learned Election Judge acted solely on the evidencein chief without taking into consideration the serious inroads madeinto this evidence in their cross-examination and that he wastherefore guilty of a serious misdirection. He brought to our noticea large number of passages in the evidence of the witnesses to illustratethe criticism he made. In order to contain thi3 judgment withinreasonable proportions we shall not enumerate theso passages. Sufficeit to say that this contention had substance at least, so far as one or twowitnesses were concerned. However, this seems to us to be the provinceof the judge of facts against whose finding there is ordinarily no appealto this Court. Nor can we say in the instant case that the misdirectionis of such a serious nature as to characterise the finding as one whichis not rationally possible on the evidence. Even if the occasion arosetherefore we would have been slow to set aside his finding.
The second criticism was that the learned Election Judge’s findingwas influenced largely by the centents of two documents which werewrongly admitted. One of these was the letter P2 dated 24.5.70 sentby the petitioner to the Medical Superintendent, Government Hospital,Kandy, complaining against his allowing the use of the ConferenceRoom in the hospital to the first respondent to address a meeting of'the hospital staff, minor, clerical, nurses and others and requesting thathe too, the other candidate for the Kandy Electorate, be allowed thesame facility to enable him to address a meeting of the hospital staff.As we do not consider the criticism directed at the other document P3to have much substance, it is sufficient if we deal with the submissionsregarding P2. In the complaint made by the petitioner to the MedicalSuperintendent the suggestion was implicit that the MedicalSuperintendent had allowed the facility of holding a political meetingto the first respondent and that lie thereby placed the petitioner at anunfair disadvantage. The letter also contained the followingparagraph:—
“ You presided at this meeting. Mr. Tilak Ratnayake, a member
of the Hospital Committee, addressed this meeting. . Mr. E. L.
Senanayake, the Minister of Health, also addressed this meeting and
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ORDER OF COURT'—Senanayake v. D» Silva
made certain , promises and also indicated to those present theconsequences that would flow if the Hospital employees in the KandyElectorate did not vote for him. The employees were also directedto attend the meeting by you on pain of disciplinary aotion.”
Counsel for the respondents agreed that the letter was admissible tosupport the petitioner’s evidence that he sent a letter complaining of apolitical meeting being held in the hospital premises but contended thatit was irrelevant for the purpose of corroborating the testimony of thewitnesses as regards a threat issued by the first respondent. Hiscontention was based on the further submission that the links in thechain of evidence, which was led to show that the source of the informationconveyed to the petitioner was a listener in the audience which thefirst respondent addressed on the 23rd May, were broken ondthat therefore the contents of the letter in the passage quoted was hearsay.The contents of the speech being hearsay—the writer himself not havingattended the meeting—he contended that the Election Judge was inerror in making use of them to corroborate the oral testimony of thewitnesses that threats were uttered by the first respondent. One ofthe broken links referred to was that witness Noor having said at acertain stage that he conveyed to the petitioner the contents of the firstrespondent’s speech on the 23rd before the letter P2 was written, latersaid he did so on the 24th evening after the letter was written. WitnessNoor himself not having attended the meeting, the other broken linkreferred to was that there was no specific evidence that anyone in theaudience at the hospital meeting conveyed such a thing to Noor. W©think that if the learned trial Judge accepted without hesitation th©evidence of the petitioner, Noor having seen him both on the 23rd and24th to inform him of the meeting, the trial Judge’s finding that Noormust have conveyed the information to the petitioner before he wroteP2 is not an unreasonable one, particularly because the intrinsic evidencein the letter supports the petitioner that he had heard of some sort ofthreats or com pulsion, before he wrote P2. Yet another criticism madeby counsel of P2 was that it contained at least three untrue or incorrectstatements, namely, that the Medical Superintendent compelled thehospital employees to attend the meeting under threat of disciplinaryaction, that he presided at the meeting and that nurses attended themeeting and for that reason that no weight should have been attachedby the Election Judge to the rest of the contents. It is correct thatthe three matters referred to are either unsupported or contradictedby the evidence but there was in our view some justification for theElection Judge to consider P2 as lending some support to the allegedthreat by the first respondent. We also agree with the Election Judgethat, the petitioner being an experienced Proctor, he would have beenrestrained in making allegations in the letter for several reasons, eventhough he did make his point that the speech of the first respondentreferred to the consequences which would flow if the hospital employee©did not vote for the first respondent.
ORDER OF COURT—Stnanayahe n. De Silva
427
The final criticism made by Mr. Ranganathan was that, even assuming(hat the alleged words were uttered, a threat is not the necessaryconstruction that a Court should give to those words. Here we must say(hat the trial Judge was in a serious difficulty. He had before him veryreliable evidence, which was not seriously contradicted by the firstrespondent, that the latter did address a meeting at the hospital whetherby accident or by arrangement. He felt fully justified in consideringthe action of the first respondent, as the. Minister of Health at the time,in addressing this political meeting at the hospital as being improper.Even with this background of impropriety, had there been a conflictingversion in regard to the sequence of the words or the context in whichthey were uttered, he would have had some material on which he maywell have taken the view that the words did not amount to a threat.Unfortunately, the first respondent and his witness said that therewas no reference at all to the subject of permanent andtemporary employees, which version the Election Judge did not findit . possible to accept. In these circumstances, in construing the wordsas a threat the learned Judge may well have thought that there wasgood reason for the first respondent and his witness to dissociatethemselves entirely from the words attributed to the first respondent.This is of course a question of fact which this Court cannot reverse.Had the correct allegation been therefore made against the firstrespondent in the first instance this Court would not have been entitledto interfere with the finding of fact by the Election Judge.
Passing now to the charge against the 2nd respondent, it becomesnecessary to refer preliminarily to a submission of learned counsel for theappellant to the effect that section 67 (3) deals only with the conveyanceof voters to or from the poll and that voters in this context mean personswho are entitled to vote at an election. It is submitted on this basisthat there must be proof that the persons so conveyed were in factentitled to vote and that the petitioner has failed to prove in regard■ to this charge that the persons alleged to have been conveyed werevoters as thus understood.
This submission is based on the contention that the word “ voters ”in , section 67 (3) (a) cannot be given the meaning contained inthe interpretation clause wherein a voter is defined as “ a person who,whether his name does or does not appear in a register of electors, appliesto vote, or votes, at an election ”. This meaning it is said cannot begiven to the word “ voters ” in section 67 (3) (a) for the reason that avoter acquires the character of a voter in terms of this definition onlywhen he applies to vote or votes and that till he does so he is a future. voter or an intending voter but not a voter within the definition. Sinceon this basis it is submitted that the meaning in the interpretationdanse is inapplicable to the word “ voters " in section 67 (3) (a), it issubmitted that the word should be givenita dictionary meaning, which
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ORDER OF COURT—Senanayake v. De va
is that a voter is a person who is entitled to vote. Consequently it issubmitted that this charge should fail in the absence of proof that thepersons conveyed were on the electoral register.
This argument does not commend itself to us. Much of the difficultyit involves seems to arise from the very restricted meaning placed uponthe words in the definition by Counsel for the respondent. A personuho applies to vote or votes does not necessarily mean one who is inthe very act of applying to vote or of voting. In the context of section67 (3) (a) the word “ voter ” clearly refers both to one who intends tovote and to one who has already voted. To hold otherwise would beto make the section unworkable and render it nugatory, for there couldthen never be an offence of conveying a voter to or from the polls. Onewould either be conveying a future voter to the polls or a past voterfrom the polls but never a person who is in the act of applying to voteor of voting. Such, an interpretation must be avoided if a reasonableresult can bo achieved without doing violence to the language of thesection or of the interpretation clause, and in our view such aninterpretation is reasonably possible. There are numerous sectionsin the Order-in-Council itself which can bear no meaning whatever ifsuch a restricted view is taken of the interpretation clause. For examplesection 39 (4) which gives the presiding officer power to regulate thenumber of voters admitted to vote at a polling station can bear no meaningif a person becomes a voter only in the act of applying to vote or of voting.In this context as in so many others in the Ordinance a person intendingto vote can reasonably be described as a voter without doing any violenceto the Interpretation Clause.
We do not think therefore that the Interpretation Clause ought tobe so narrowly construed, and the need to look elsewhere for the meaningof the word “voter” as used in section 67 (3) (a) does not thereforeariso.
Since the appellant’s contention on this legal question fails it becomesnecessary to pass on to the learned Judge’s findings on the charge itself.
The charge in question is that the 2nd respondent as an agent of the1st respondent and/or with his knowledge or consent at Asgiriya usedmotor car number 1 Sri 710 for the purpose of conveying voters to and/orfrom the polls in violation of section 67 (3) of the Order-in-Council.The principal witnesses called by tho petitioner on this count were aPolice Officer (one Van Rooyen) and two other witnesses named Henry,and Kodagoda. For the respondents the principal witness wasRev. P. Chandananda Thero, Deputy High Priest of the Asgiriya Chapter.This witness waB called by the respondents in order to prove that atthe time when the car was alleged to have been used for the purpose ofconveying voters, namely, on the morning of polling day, the car was infact garaged in the premises of the Asgriya Temple, and his evidence,if accepted, provided a complete answer to the charge.
ORDER OF COURT—Senanayake v. De Silva
429
There has been strong complaint on behalf of the respondents in regardto the maimer in which the Court approached the evidence of this witness,and secondly, in regard to the extent of the questioning of the witness byCourt and the use made of the answers to such questioning. In ordexto examine this complaint it becomes necessary to outline the stagesin the trial leading up to the presentation of this charge.
It would appear from the proceedings that, although in the petitionthe charge had been made that this car had been used for the conveyanceof voters, no particulars in regard to this had been set out in the petition.The petition merely states that car number 1 Sri 710 was used by the2nd respondent acting as agent of the 1st respondent and/or with hisknowledge or consent at Asgiriya for the conveyance of voters to and/orfrom the polls.
At the commencement of the trial on 1st September 1970 learnedCounsel for the respondents stated that, before learned counsel for thepetitioner opened his case, he would like to make an application relatingto this item of the petition. He asked for particulars firstly whetherthe charge made against the 2nd respondent was whether he had conveyedvoters to and from the poll. He wanted to know further the time atwhich this incident was alleged by the petitioner to have taken place.He also requested particulars in regard to the other charge of conveyingvoters.
To this learned counsel for the petitioner replied that he had not yetexamined the witnesses in question and that, as there was still time forthat charge to come up, he would hear the witnesses and give thoseparticulars the following day. He stated also that he relied on onetransaction only in regard to each of these charges.
In the course of his submissions on this application it may be notedthat counsel for the respondents observed :“If the time of the incident
is mentioned it may be open to the respondents or any one of them tosay ‘ well you say that my car was at such and Buch a place. No.
I can say that my car was somewhere else in Colombo. That is myapplication
After this discussion the Court in its order recorded the fact that .learned counsel for the petitioner undertook to furnish the requiredparticulars the following day. Moreover, immediately beforethe commencement of the evidence, learned counsel 'for the petitionersreiterated that the particulars asked for would be given the followingday.
The trial proceeded on the 2nd and 3rd of September butthese particulars were not furnished and, on the 4th of September learnedcounsel for the respondents wanted to know the number of occasionson which car number I Sri 710 was alleged to have gone to the pollingstation. He was told that it went several times—roughly 10 to 12
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ORDER OF COURT—Senanayake v. De Silva
times—but that the petitioner was relying on one instance and that hewould confine himself to one charge and “ all the rest would be shornoff It will be noted that still no time was mentioned as the time of thealleged conveyance.
It was only on the 12th of September that the time of the allegedconveyance was first stated. This was in the course of the evidenceof Kodagoda, one of the witnesses on this charge, and he stated thathe first saw this ear that day between 8.45 and 9 a.m.
This was the last date of the presentation of the petitioner’s evidenceand the case for the petitioner was closed that same day. That sameday during the cross-examination of this witness, counsel forthe respondents put to him the suggestion that the car was in the garageof the Asgiriya Temple from about 8.46 or 9 a.m. till about 1.30 in theafternoon.
The case for the respondents opened on 17th September and duringthe morning session, before the tea interval that day, an applicationwas made on behalf of the respondents to file a further list of witnesses-containing the name of the priest, Rev. P. Chandananda Thero.
The purpose of this list was to prove that the car was in the templegarage at the time material to-the charge, as now particularised. Itis correct that counsel for the respondents when questioned as to whythis name was being listed at this stage stated that it was dueto inadvertence that it was not put on the original list. Yet againstthe background which I have adverted to, of the time being mentionedfor the first time on the date on which the petitioner’s case was closed,there were extenuating circumstances in. favour of the respondentswhen they sought to list tliis witness at this stage. Moreover it is clearalso that the version that the car was in the temple premises at thattime was not an after-thought for there was cross-examination uponthis basis the very same day on which the time was first mentioned.
It would no doubt have been more satisfactory for the petitioner tohave listed this witness out of an abundance of caution at the verycommencement of the trial, but the circumstances adverted to wouldsufficiently indicate that the special importance of this witness clearlyemerged only after specific evidence of the time of the alleged conveyanceof the voter transpired. Moreover, when the learned Judge allowedthis list (which in fact contained only the priest’s name) he made theremark that “ the weight that will be attached to their evidence is nil ”.
This remark made by the learned Judge has been the subject of seriouscomplaint by counsel for the appellant. This remark of course is notto be literally understood as being an indication by Court that whateverthe witness said would be totally discounted, but it was nevertheless astrong expression by the Court when made in regard to the testimony
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ORDER OF COURT—Senanayake v. D» Silva
of a witness who had not yet been heard. Such a remark would nodoubt lend added strength to any justifiable complaint against the learnedJudge’s approach .to the evidence of the witness.
It is correct that on 6th September 1970, as Mr. Shinya pointed out,learned junior counsel for the respondents had in a letter to the Registrarindicated that counsel for the respondents would not raise objectionsto the petition on grounds of inadequacy of security. Apart howeverfrom questions of adequacy of security or of pleading, the petitionerswere under a clear duty to furnish to the respondents at least at thevery commencement of the trial the time of the transport alleged. Hadthis been done, the petitioner’s comment of belatedness regarding thefiling of the list containing the name of the monk would have had muchmore to commend it. .
When eventually the monk was called and stated that the car hadbeen in the garage of the temple from about 8.30 or 9 in the morningtill 1.30 in the afternoon that day, he was severely cross-examined andit was put to him that his evidence that the car was in the garageduring that period was false. He resolutely repudiated this positionand maintained throughout the cross-examination that the car couldnot have been removed from the garage without his knowledge.
After the evidence in chief, cross-examination and re-examinationof this witness had been concluded and the witness had as yet madeno concessions regarding the possibility of the car being removedfrom the temple premises without his knowledge, the Court addresseda series of questions to this witness, worded in emphatic language andquite plainly indicating to the witness that in the Court’s view theremust surely exist the possibility that the car might have been removedwithout the witness’ knowledge.
Although the witness in answer to earlier questions by Court statedthat he had no duties to perform that morning, he was ashed : “ WhatI want to know from you is, is it possible that Mr. Ratnayake wouldhave taken the car out from the garage without your knowledge when,you were attending to other duties or when you were going out, andthereafter come back, leave the car and go away ? .” The witnesssaid that this was not possible having regard to the position of the garagoin relation to the temple. The next quesion by Court, which consistedof a series of question rolled together, was :“ You will agree that you
have to go for your meal, you have to go for your toilet, in which casait may have been possible for the car to be taken 1 You werenot watching it right through, there was no reason why you shouldwatch that car right through that morning, or the garage ? ”. Tothis the witness replied that if it was necessary, or if he wanted to do ithe could have done it. Again the Court asked him : “ What I wantto ask you is that it may be possible for you not to have noticed thisgarage or the car during this entire period ? You may quite justifiably
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ORDER OF COURT—Senanayake v. De Silva
think that the car was there from the time it was put into the garageuntil it was taken out ? You may quite honestly believe so ? ” towhich he answered :“ I so believe it It is clear from this questioning
and the answers given that the witness was seeking to re-assert thatit was not possible for the car to be taken out without his knowledgebut that when the Court questioned him in the form “ you will agree…. and the Court’s view was thus put to him the witness said“ Tf it was necessary he could have done it Upon a review of thisquestioning one is left in serious doubt as to whether the witness mayhave made even the slight concession he did but for the fact that hewas questioned in such a manner as to indicate to him that it was clearlythe Court’s view that a continuous observation of the car throughoutthe morning was impossible. Even witnesses who are able to standtheir ground in the face of the severest cross-examination at the handsof opposing counsel, are, in view of the deference with which they treatthe court, inclined to treat with the greatest regard suggestions of thisnature when they come from Court and are couched in compellinglanguage, and it is a rare witness who will steadily maintain his versionin the face of such questioning by the Court. In any event whateverconcession the witness made in answer to these questions was a reluctantconcession, as the Court itself has observed elsewhere in thiscase. Moreover, even the Court at that stage did not consider that thewitness had changed his position, for the Court observed, when counselfor the respondents sought to ask a question after this examination byCourt, that “ he has explained it to the best of his recollection, as faras I can understand his evidence the car was not taken out from thegarage from 8.30 to 1.30 . . . .
We shall now address our mind to the cirticisms made by counselin regard to the questioning of this witness by the Court. While thewidest powers in regard to examination of witnesses are undoubtedlyconferred on the Court by section 165 of the.Evidence Ordinance, thesepowers are not without certain limitations. There are certain unfortunatecircumstances in the particular facts of this case which in our view bringthis case within the scope of these limitations. That such limitationsexist is well settled both here and abroad—vide The Queen v. David Perera1(1962) 66 N.L.R. 553 at 556-7 ; The Queen v. Mendis Appu2 (1960)GO C.L.W. 11 ; and Sunil Chandra Royv. The Slate 3 (1954) A.I.R. Calcutta305 at p. 317. One of the well-recognised limitations of the powersof the Court under this section is that the Court “ must not questionthe witness in the spirit of beating him down or encouraging him to givean answer—vide Monir, Evidence, 4th Ed. Vol. II, p. 949 ; Sunil ChandraRoy v. The State 4 (1954, A.I.R. Calcutta 305). While in the present casethere would perhaps be room for saying that the questioning is notquite of this nature, the additional circumstances to which we shall referremove any uncertainty on the question whether this was not’a case
‘ {1962) 66 N. L. R. 663 at 666-667.»{1954) A. 1. R. Calcutta 305 at 317.
’ (I960) 00 C. L. W. 11.‘{1954) A. I. R. Calcutta 306.
(JRDEK Ot' COURT —Senanayake v. De Silva
433
in which the limitations inherent in section 165 came into play, andwhether it was a case in which the powers granted by section 165 wereproperly applied.
In the first place, athough the view of the Court immediately afterthe cross-exaniination was "as far as I can understand his evidencethe car was not taken out from the garage from 8.30 to 1.30”, this is notthe view expressed by Court in the judgment itself in regard to the effectof this evidence. On the contrary the learned Judge in his judgmenthas stated that although the witness " in examination in chief waspositive that the 2nd respondent’s car was in the garage adjoining theresiding quarters from 8.30 or 9 a.m. until 1.30 p.m. • . . .”,
the witness in answer to court “ reluctantly conceded that if the 2ndrespondent wanted to take the car out of the garage he could have doneso as he was not watching the car or the garage during the entire period. ”This fact, set out prominently in the Court’s examination of the evidenceof the monk, had at the stage of the judgment a great influence uponthe mind of the judge in causing him to disbelieve his evidence. Thisis all the more unfortunate because if it had indeed been the view ofthe learned Judge that the monk had made this concession and thatit so seriously affected his evidence, there has been much prejudiceto the case of the respondents when immediately after the questioningby Court counsel for the respondents suggested a question no doubtto clear up this matter but refrained from persisting in it in view ofthe Court’s observation at that time :—“asfar as I can understand hisevidence the car was not taken out from the garage from 8.30 to 1.30.’'
In any event although answers to such questions so strongly put bythe Court may well be used as the basis of the Court’s assessment ofthe witness in question one would hesitate to consider such a coursepermissible where the questions-which counsel for the respondent soughtto put consequent on the Court’s questioning, which could well havehad the effect of clearing up the entire matter, w'ere abandoned in view7of an observation of Court which eventually turned out to be reversedin the judgment.
Moreover it will be remembered in the present case that the concessionswhich the witness made were concessions under the pressure of a viewexpressed by Court in terms suggesting that that w'as the.only reasonableview, namely that the car could possibly have been taken without thewitness being aware of it. It is remarkable however that although thisview lias been so strongly put to the witness in the course of the Court’squestions to him, the Court has in its judgment expressed a diametricallyopposite view, for the Court has observed : “ If in fact the car wasremoved from the garage during the morning session it is unlikely thatthe reverend priest would not have been aware of the fact." As thatindeed turns out to be the view eventually taken by the Court itselfupon this matter, one can well see that the answer to the question“ you will agree that you have to go for your meal, you have to go
434
ORDER OF COURT—Senanayake v. De. Silva
for your toilet, in which case it may have been possible for the car to-be taken ? You were not watohing it right through, there was noreason why you should watch the car right through that morning orthe garage 1 ” was quite understandably given by the witness withreluctance. In the result then an answer obtained from a witnessin consequence of a view strongly put to him as representing the Judge’sview has unjustifiably, as it turns out, been taken as a principal basiBfor disbelieving the witness. Moreover the basis so strongly put tothe witness in the Judge’s examination of him and to which the witnessreluctantly agreed has turned out to be a view quite opposite to thatwhich the Judge eventually formed. Counsel for the respondentcomplained, with justification, that if that was the view of the Court,it was unfair to the witness, the Anunayake Thero, to almost compelhim to agree to a proposition which the learned Judge himself did notbelieve to be a possibility.
One other matter in this connection is that the answer “I sobelieve it ” to another multiple question “ What I want to ask youis that it may be possible for you not to have noticed this garageor the car during this entire period ? You may quite justifiably thinkthat the car was there from the time it was put into the garage untilit was taken out ? You may quite honestly believe so ? ” seems tohave been misunderstood by the Judge, for when the witness said “ Iso believe it ” he was answering the latter parts of this multiple questionand not in that answer conceding that it may have been possible forhim not to have noticed the car or the garage during the entire period.In the judgment however the learned Judge has observed that the witnessadmitted that he may have believed the car to be inside the garagewhen in fact it was not there. This again is an unwarranted assertionfor which there is no evidence.
Before leaving this matter it is useful also to observe that althoughthere were circumstances to which we have already referred indicatingthat the time of this alleged act of transport was in faot mentioned onlyon the date of the closing of the petitioner’s case and that the positionwas promptly put to the witness that the car was in fact in the templegarage that morning, the learned Judge has expressed the view thatthe defence of the 2nd respondent was built up as the case proceeded.The expression of this view despite the presence of these circumstanceshas strengthened the criticism of counsel, in regard to the remark ofthe Eleotion Judge at the time of allowing summons on the AnunayakeThero, that the weight of his evidence will be nil. All these reasonstaken cumulatively would appear to indicate that although the questionsaddressed to the witness by the learned Judge might taken by themselvesbe considered to fall within the wide ambit of the Court’s powers undersection 165 still in the present case the questioning by the Courtis not such an exercise of the powers of Court as is permitted bysection 165.
435
ORDER OF COURT—Senanayake v. De Silva
As the unfavourable view taken by the learned Judge of the evidenceof the Priest formed, in our opinion, on wrong and incorrect grounds,has been a material element in his finding in respect of this charge,that finding cannot be allowed to stand.
We pass now to the charge against the 3rd respondent which allegesthat the 3rd respondent acting as agent of the 1st respondent and/orwith his knowledge or consent used motor car number CN-1836 onpolling day for the purpose of conveying voters.
The petitioner’s case on this count was confined to an allegationthat the 3rd respondent transported a voter known as Jean Jesuri tothe Anniewatte Polling Booth in this car. The evidence would indicatethat the 3rd respondent was seen in this car when the voter Jean Jesurialighted from the car near the polling booth and went into the booth.It is common ground that the car was not driven by the 3rd respondent.The 3rd respondent’s version on this question is that he had been tothe house of a friend of his in Anniewatte, and that on his way homefrom this house ho had met one Jemsi who gave him a lift in his car.The car stopped near the polling booth in order to enable a passengerin this car to alight but he denied that he had anything to do with theconveyance of that passenger to the polls.
The learned Judge has for cogent reasons held the evidence of thiswitness to bo unsatisfactory. He has held further that the presenceof the 3rd respondent in the car at the relevant time was not innocent. -He has further held that it has been established beyond doubt that avoter was conveyed in this car and also that the presence of the 3rdrespondent, a strong supporter of the 1st respondent, in the car, cannotbe explained on any other basis than that he conveyed a voter to thepoll. The learned Judge’s decision to reject the evidence of the 3rd .respondent is a finding of fact with which we do not wish to interfereeven though we may not agree with some of the reasons. There remainshowever the further vital question whether the rejection of the testimonyof the 3rd respondent necessarily proves the charge against him.
We are here confronted at once with the degree of proof necessaryto prove a charge under Election Law. The view that has beenconsistently taken in our Courts following also the English practiceis that charges in election petitions must be established beyond reasonabledoubt. In the case of Ilangaratne v. O. E. de Silva1, 49 N.L.R. 169,Windham J. held that only those ohargea in respect of which the evidencesatisfied the Court beyond reasonable doubt could be considered tobe proved. In regard to certain other charges he observed:—“ Theseconsiderations make it highly probable that the threat (to see thata voter would be out of an estate if he did not work for the respondent)was made. Nevertheless, viewing the conflicting evidence as a whole,
1 (1948) 49 N. Id, R. 169.
430
ORDER OF COURT—Senan'tyake v. Dc Silvu
I am not satisfied beyond a reasonable doubt as to where the truthlay. In these circumstances I cannot hold the charge to be proved.The same considerations apply in the case of the next incident wherethe evidence consisted of the sole testimony of the witness AugustinePeiris against the denial of the respondent In the case of Aluviharev. Nanayakkara i, 50 N.L.R. 529 Basnayake J. held that the standardof proof required of a petition at an election inquiry must be higherthan required in a civil case and not lower than that required in thecase of a criminal charge. In the Warrington case2, 1 O'M & H.42 Baron Martin in giving judgment for the respondent stated :—“ Iadhere to what Mr. Justice Willes said at Lichfield, that a Judge to upsetan election ought to be satisfied beyond all doubt that the election wasvoid and that the return of a member is a serious matter and not to belightly set aside ”. All these decisions were referred to in the case ofthe Badulla Election Petition Premasinghe v. B. A. H. Bandara3, 69
N.L.R. 155 in which it was held by G. P. A. Silva, J. in dismissing thepetition that, in an election petition, a charge of making a false statementof fact in relation to the personal character and conduct of a candidatemust be proved beyond reasonable doubt ; that such a charge is alsoa corrupt practice falling into the same category as bribery, treating,undue influence, etc., which are enumerated in Section 58 of theParliamentary Elections Order-in-Council and that there is no justificationto make a distinction in the onus of proof in respect of these differentcorrupt practices. In dealing with the question of agency he stated :“ As I have indicated before, the fact of agency may be established bycircumstantial evidence and there is no requirement to prove an expressappointment. This view has often been taken by the English Courtsand I see no reason to doubt the correctness of it. A Court has, however,to be careful to satisfy itself that the adverse inferences drawn againsta respondent in the matter of agency arc the only inferences which canreasonably be drawn from the circumstances proved before it decidesthat a disputed person is an agent.”
The principle laid down in these cases makes it clear that a petitionerundertaking to prove a charge in an election petition has to dischargethe same burden that a prosecutor has in a criminal case. When theevidence against the respondent is direct, the testimony of the witnessesmust carry conviction to the trial Judge. When the evidence iscircumstantial, not only must the Judge be satisfied beyond reasonabledoubt that the evidence of the witnesses is true but he must also besatisfied that the inference he draws from the totality of the circumstancesadduced compel him to draw only one conclusion, namely, that therespondent concerned committed the election offence complained of.If he has either a reasonable doubt as to the truth of the testimony of awitness relied on by the petitioner to prove the charge or even afterbeing satisfied of the truth of that testimony, if he is able to draw theinference that the respondent may or may not have committed the* t!948) r,0 N. L. R. 529.* 1 O'M. <k U. 42.
■ * 0906) 09 N. L. R. 155.
ORDER OK COURT—Senanayake v. De Silva
437
offence, or, in other words, that it is equally possible that the respondentor anyone else may have committed the offence, applying the sametest as in a criminal charge, it will be obligatory on the Court to findthat the charge is not proved. To express the principle in anotherway, if the proved circumstances do not exclude the hypothesis that,the offence may well have been committed by someone other than therespondent, even, though one inference from the circumstances is thatthe respondent himself committed the offence, the Court has no alternativebut to give the respondent the benefit of such doubt and to find himnot guilty.
With these principles in mind we shall examine whether,.as a matterof law, the learned Election Judge was justified in this case in comingto the following conclusion :—“ The circumstantial evidence in my viewestablishes beyond reasonable doubt that Jcmsi or whoever was thedriver of the car w as acting on the instructions of the 3rd respondent inconveying Jean Jesuri to the polls. The charge against the 3rdrespondent has been proved .” The items of evidence as accepted bythe learned Judge on which the conclusion whether the 3rd respondentwas guilty of the charge or not had to be decided were :—
That the 3rd respondent was a strong supporter of tho successfulcandidate
That he was found in car No. CN-1836 in which Jean Jesuri was. conveyed to the polling station
That Jean Jesuri was a voter
That the 3rd respondent evaded the Police
That when he finally made a statement to the Police, he didnot mention the name of the driver of the car that transportedthe voter but referred to him as a friend
That the Judge disbelieved his evidence in Court in regard tothe circumstances in which he stated that he happened to bein this car at the time.
The charge against the 3rd respondent was that in ^contravention ofSection 67 (3) of the Ceylon (Parliamentary Elections) Order-in-Councilof 1946 as amended by Act No. 9 of 1970, acting, as an agent of the 1strespondent he used or employed motor car No. CN-1863 to convey avoter to the poll. In order to establish the charge that ho usedor employed the vehicle in question to convey a voter to the poll, apartfrom his being present in the car at the time, which no doubt is a highlyrelevant item of evidence, it must be proved that he had some controlof the car .or that the driver was acting under his instructions at thetime. To give a few illustrations, the clearest case would be if thecar in which a voter, was conveyed was driven by the person who ischarged with the offence. An equally strong case would be if the ownerof the car was seated in the car when it was driven to the polling stationwith a voter and he is charged , with the offence. A third case would
438
ORDER OF COURT—Senanayake v. Dt Silva
be where the owner, even though not present in the car happened to bea strong supporter of a candidate and the driver who conveyed a voteris proved to have been employed by the owner and the latter, when facedwith the charge offers no explanation or offers an explanation which iafalse. A similar strong case would be made out when a supporter of acandidate is in the car driven by someone else and the latter has noconnection whatsoever with the car. This last illustration brings usvery close to the case before us which confronts us with the point ofdeparture from guilt to innocence or at least from guilt to the presenceof a reasonable doubt as to guilt. The circumstances which give riseto this position are :—
The car does not belong to the 3rd respondent
The car was not driven by the 3rd respondent
No connection has been established between the 3rd respondentand the driver, whoever the driver may have been
3rd respondent’s evidence that Jemsi drove the car not beingcontradicted by any evidence to the contrary that it was notJemsi who drove the car
Jesuri was the voter who was conveyed
Independently of the 3rd respondent’s evidence the followingfacts were established in addition
Jesuri’s name appeared in the voters’ list as a voter in the samehousehold as Jemsi
The Police traced the owner of the car and on a statement madeby this registered owner the Police questioned Jemsi
Jemsi is the brother-in-law of the owner of the car.
The Court, having to decide the case against the 3rd respondent oncircumstantial evidence, was now confronted on the one side with thecase of the petitioner which raised a strong suspicion or even a primafacie case against the 3rd respondent that, being a strong supporter■greatly interested in securing a victory for his candidate, was found ina car which admittedly transported a voter, beset however with thedifficulty that no connection was established between the 3rd respondentand the owner or the 3rd respondent and the driver, whoever the lattermay be. On the other side was present the circumstance that the carbelonged to one Hashim, whose brother-in-law was Jemsi, who livedin the same household as Jesuri, the voter, and who was traced as aresult of a statement made to the Police by the owner of the car. IfJemsi was in fact the driver, why then, one at least of the reasonableprobabilities from the evidence would be that he conveyed the femalevoter Jesuri who was a member of the household to the polling stationand that he was driving the car belonging to his brother-in-law, eithergenerally or at least specially on this day. It is more likely that hewas generally driving the car—we do not know whether as driver orvirtual owner or in terms of any other arrangement—because the Police
ORDER OF COURT—Senanayalct v. De Silva
4 38-
questioned the owner Hashim some considerable time after the day ofthe poll and, even at that time, the police were led to Jemsi as a resultof Hoshim’s statement. We cannot of course.speculate on the statementmade to the Police by Hashim but it is perhaps legitimate for us to assumethat, after a complaint was made to the police of an illegal conveyanceof a voter on election day, the police would have been interested to knowfrom the registered owner whether he drove the car or, if he did not,who drove it. The question then arises, in a case based on circumstantialevidence, whether the Court, in satisfying itself whether the totalityof the circumstances relied on by the petitioner point to the irresistibleconclusion of the guilt of the 3rd respondent, when confronted withthe other set of circumstances (briefly, that the voter was conveyedin a car belonging to one Hashim who, quite independently of the3rd respondent, directed the Police to Jemsi who happened to live inthe same household as the voter Jesuri) could come to the conclusionin law that these circumstances were consistent only with the 3rdrespondent having used the car to convey a voter and inconsistent withthe reasonable hypothesis that Jemsi may well have used hisbrother-in-law’s car to transport a householder in his own house to thepoll. The further question would arise whether it was not possiblein those circumstances or even probable that Jemsi would not havedriven his brother-in-law’s car to take a householder of the same housein which he lived to the poll rather than that the 3rd respondent wouldhave borrowed or hired the car from Hashim and engaged a driver,whose identity or connection with the 3rd respondent the petitionerhas not even suggested, to take voter Jesuri to the poll. Here we arenot even taking into consideration the evidence of the 3rd respondentthat Jemsi was the driver on which evidence, it must be noted, theJudge made no specific adjudication, his words being “ Jemsi or whoeverwas the driver of the car ”. It is not for us to make such adjudicationbut we must say that the fact that Jemsi was traced by the Police,not as a result of a statement by the 3rd respondent, but as a resultof a statement made by Hashim and that Jemsi lived in the samehousehold as Jesuri are both independent circumstances that supportthe evidence of the 3rd respondent that Jemsi it was who drove thecar which conveyed the voter. Had these independent items ofcorroboration been considered by the learned Judge in their properperspective attaching to them the significance that was due, we feel-that he may have been compelled to accept the evidence of the 3rdrespondent that Jemsi drove the car even after rejecting the rest ofhis evidence because that item of evidence received corroboration whilethe rest of his evidence did not and it was not contradicted byany evidence of the petitioner to the contrary. Unfortunately, thisaspect, which is so vital a matter for decision in the circumstances oithis case has escaped the consideration of the learned Judge and hedoes not appear to have thought it necessary to arrive at a definitefinding as to whether Jemsi drove the car or not or even to addresshis mind to the question of the reasonable probability or otherwise of
440 ■
O-KD KR OJ?' COURT—Senanuyake v. De Silva
Jemsi having driven the car. That he did not appreciate the importanceof this is indicated by the expression “ Jemsi or whoever was the driverof the car” in dealing with this matter in the judgment. For, if Jemsidrove the car the reasonable possibility is inescapable that the car wasnot used or employed by the 3rd respondent but by Jemsi himself totransport a member of his household, and. on the analysis of the evidencewhich we have pointed to, that probability cannot be excluded. Inother words, in the set of circumstances before Court one conclusionemerges if Jemsi drove the car and another if someone else drove thecar and the responsibility of the 3rd respondent would very' muchdepend on a conclusive finding whether it was Jemsi or not Jemsiwho drove the car. The rest of the learned Judge’s finding on this chargeis therefore vitiated by the failure to make an adjudication on thisdecisive factor.
Yet another way of testing whether the circumstances deposed toin the case led to a reasonable hypothesis that Jemsi drove the car wouldbe to ask oneself the question whether, if Jemsi was prosecuted in acriminal Court for the corrupt practice of using a car for the conveyanceof the voter, there would be at least a prima facie case against him.What, in that event, would have been the items of evidence againsthim ? The prosecution would place the following evidence :—
Dodanwela to speak to Jemsi driving car No. CN-1836 to thepolling booth and dropping the voter Jesuri
G. B. de Silva to speak to Jesuri having been transported in thesafd car whose driver he could not identify', the purpose of hisevidence being to support Dodanwela that the car used wasthat bearing No. CN-1836 and that Jesuri was the persontransported
Police evidence that the owner of the ear was traced from theregistration number and that, on a statement made by him thepolice questioned Jemsi
Production of the voters’ list to show that Jemsi lived in thesame house as Jesuri.
We think that the first two items of evidence would have establishedthe conveyance of a voter by the name of Jesuri and that the first itemof evidence stating that Jemsi drove the car, receiving circumstantialsupport from the third and fourth item, would have established a primafacie case calling upon the accused Jemsi for an explanation. If thatbe so, these same circumstances established in the instant case witha different object, namely, to prove beyond reasonable doubt that thecar was used by the 3rd respondent must necessarily fail because thepetitioner’s case cannot surmount the reasonable possibility of anotherhypothesis, namely, that the car was used by Jemsi to transport Jesuri.In order to come within the principle of having to exclude everyreasonable hypothesis of innocence in a case based upon circumstantial
ORDER OF COURT—Senanayake t Dt Silva
441
evidence, it. is not necessary for an accused person to show that thecircumstances giving rise to the hypothesis of innocence will go as faras to establish a prima facie case of that hypothesis. It is only necessaryto show that such reasonable hypothesis cannot be excluded. A fortiori,if it can be shown that the circumstances go that far, there is no questionof finding an accused person guilty in a case based on those verycircumstances. In the present case therefore, if we follow the principlereferred to above which, as we have stated earlier, would apply to theproof of charges in election cases, wc have no alternative but to disagreewith the decision of the learned Election Judge in respect of the chargeagainst the 3rd respondent on a matter.of law.
Had there been evidence of other circumstances such as that the3rd respondent had been seen in this car on other trips or that the 3rdrespondent had hired out this car or borrowed this car from its owneron that day, or even that the 3rd respondent had been seen in the carbefore he was seen with the voter, there could perhaps have been roomfor an argument that the driver must be inferred to have been actingunder the direction or on the instructions of the 3rd'respondent. Todraw this inference in the absence of such circumstances . merely fromthe fact that the 3rd respondent was an agent of the candidate wouldthus appear to ignore the legal requisites for the proof , of this seriouselection offence. Even more is this the case where the provedcircumstances open up the possibility of a reasonable inference thatthe car was not under the direction and control of the 3rd respondent.In our view the important implications flowing from the possibility ofthe driver'being himself a member of the voter’s household compellinglycalled for their consideration by the learned Election Judge.
It may also be noted that the learned Judge has made a point of thefact , that the respondents have failed to call Jemsi as a witness. Itwould appear that in making this observation the learned Judge wasmisplacing the burden, of proof, for the burden lay upon the petitionerto establish that the use of the car for the conveyance of the voter tothe poll was by the 3rd respondent. One of the facts necessary toestablish this was that the driver was under the control or acting underthe instructions of the 3rd respondent. Counsel for the 3rd respondent(as well as for the 1st respondent) at the trial had clearly indicated inthe cross-examination of the petitioner and also in a statement to Courtthat his position was that Jemsi was the driver and that Jemsi transportedhis sister-in-law Jesuri who was a member of the same household asJemsi to the poll. The charge against the 3rd respondent being basedon circumstantial evidence, the petitioner should have realised at thisstage that in order to establish the charge he had to place evidence beforeCourt sufficient to exclude any reasonable hypothesis of innocence ofthe 3rd respondent and that, if the 3rd respondent established, or evencreated in the mind of the Judge a reasonable doubt, that Jemsi mayhave driven the car, the reasonable possibility that Jemsi conveyed,the voter in his household to the polling station could not be eliminated.
Volume LXXV
•442
ORDER OF OOURT^iSenarvayafce p, Da Silva
Thus it was the petitioner’s duty to prove the charge by showing that,in addition to the fact of Dodanwela being in the car, the driver wasone under Dodanwela’s control or aoting under his instructions, Inorder to establish this essential element, therefore, it was the petitionerwho had to place evidence that Jcmoi was not the driver. The burdenwas therefore on the petitioner to call Jemsi or to establish the fact byother means as he himself could not say in his evidence whether it wasJemsi or anyono else who drove the oar. Moreover, the petitionerwould have had no difficulty in calling Jemsi because, if that was thetruth, Jemsi had only to deny that he drove the car. In any eventthe 3rd respondent could scarcely have been expected to call Jemsi ifJemsi was the driver as his evidence would have incriminated him whenhe admitted that he committed the illegal act of conveying a voter tothe poll. There is thus, in addition to the erroneous decision in regardto the proof of the charge against the 3rd respondent, an error in law inmisplacing the burden of proof in arriving at the decision that the chargewas proved.
For the reasons stated above the learned Election Judge’s findingIn respect of the charge against the 3rd respondent too must be setaside.
We accordingly reverse the determination of the Election Judge andhold that Edward Lionel Senanayake was duly elected and returnedas the Member for the Kandy Electoral District at the General Electionheld on the 27th of May, 1070.
The Petitioner-Respondent will pay to the 1st Respondent-Appellanthis costs of appeal.
The 2nd and 3rd Respondents gave evidence which was unacceptableto the Election Judge and have not assisted the Court. We are thereforenot disposed to grant, them any costs.
In view of the Election Judge’s conclusions on the facts relating tothe charge against the 1st Respondent and our own observations thereonit oannot be said that the petitioner came into Court in the first instancewithout any probable grounds. We therefore grant to the 1st Respondentonly half of his taxed costs in respect of the proceedings at the trial.
Sgd. G. P. A. Silva,
Senior Puisne Justice
Sgd. G. T. Samebawiokbamh,Puisne Justice
Sgd. C. G. Wbbbamartby,
Puisne Justice.
Appeals allowed-