163-NLR-NLR-V-48-GUNAWARDENE-Appellant-and-KELAART-A.S.P.Respondent.pdf
522Gunawardene v. Kelaart.
1947Present: Canekeratne J.
GUNAWARDENE, Appellant, and KELAART (A.S.P.), Respondent.
S. C. 1,006—M. C. Colombo South, 11,960
Appeal—Admissibility of affidavit to contradict record.
The Supreme Court will not admit affidavits which seek to contradictthe record kept by the Magistrate.
^^PPEAL from a judgment of the Magistrate, Colombo South.
E. F. N. Gratiaen, K.C. (with him K. C. Nadarajah, Titus Goonetillekeand A. B. Perera), for the accused, appellant.
T. S. Fernando, C.C. (with him H. A. Wijemanne, C.C.), for the Attorney-General.
Cur. adv. vult.
1 [1944) 45 N. L. It. 136.
CANEKERATNE J.—Gunawardene v. Kelaart.
523
October 17, 1947. Canekeratne J.—
This is an appeal by the accused from a conviction under section 486of the Ceylon Penal Code.
On June 8, 1947, the accused who is described as a leader of a partycalled the Sam a Samajist Party came with six others, one of whom wasa man called Hema, another a Perera, near the garage of the SouthWestern Bus Company Ltd.—which I shall refer to as the company—atRatmalana. He got inside an omnibus that was about to be drivenby one Paulis and accosted him with some words which included, accord-ing to a witness, the following, “ You may go but we won’t let you comeback ”. The company had at this time among its drivers a man namedSimon who had been in its employ for four years. He was desirous ofworking- on June 8. I had better let him tell his* account of the meetingwith the accused in his own words as he told it in the court below—
"Accused came up to me along with the other six persons, brotherabout 45,000 servants have struck …. you also must strike.1 replied we cannot strike …. Then the accused said if thebuses nm they will be damaged, the drivers would be assaulted. Ibecame frightened of physical injury as a result of accused’s words.. .. On this day I was not able to get out at that time because
I was frightened by accused’s threats …. I had not intendedto take leave. I took nearly two weeks leave …. I was toofrightened to go out as a result of accused’s threats …. Iapplied for leave in the afternoon of June 8…. Accused did
not say that the bus owner’s owners would be injured. He said thedrivers would be injured.”
The Magistrate finds that these words were used by the accused.
It is useless to try and conceal the fact that an organised body of menworking together can produce results very different from those whichcan be produced by an individual without assistance.
One of the contentions advanced at the argument was that the Magis-trate failed to read out the judgment on July 7, 1947, in accordance withthe provisions of sections 304 and 306 of the Criminal Procedure Code ;to establish this fact Counsel proposed to read the statement made by theaccused in an affidavit dated October 13, 1947. What happened, accord-ing to Counsel, was this—the accused was required to attend to hearjudgment delivered on the morning of July 7, 1947,. that morning hewas asked to present himself at 1.30 p.m., he was informed that afternoonby the Magistrate in Court that he was convicted and sentenced to threemonths’ rigorous imprisonment,' he filed a petition of appeal and waslater released on bail.
Another contention was that there was a discrepancy in the evidencerecorded by the Magistrate compared with what a witness is alleged tohave said in the witness-box. To establish this Counsel proposed toread the statement contained in an affidavit sworn to on October 13,1947, by one of the junior Counsel who appeared at the trial. No notewas made by him or by any other person appearing at the trial of theevidence given by the witness in question. The • deponent, it is stated,saw a copy of the proceedings for the first time on August 13, and thewords used by the witness were present to his mind then. It was also
524
CANEKERATNE J.—Gunawardene v. Kelaart.
stated at the argument that his recollection was supported by whatappeared in a newspaper report. I would prefer the record kept by a-Magistrate to what is taken down by a reporter or shorthand writer.Crown Counsel objected to the reading of those affidavits ; he arguedthat extrinsic evidence is inadmissible to contradict, vary, or add to thematters required by law to be reduced to the form of a document, e.g.,depositions of witnesses and referred in this connection to section 91 ofthe Evidence Ordinance. He further objected to the reading of thesebelated affidavits and referred me to the case of Orathinahamy v.Romanis', where Bonser C.J. said:—“ With the appeal was filed anaffidavit which I have not read and I understand that the affidavit isto the eifect that the record of the evidence taken by the Magistratedoes not give a correct account of the statements of the witnesses, andit is sought to impeach the record, ■ and to prove that certain statementswere made which do not appear ori” the record …. It seems to meto be contrary to all principle to admit such an affidavit, and I certainlywill not be the first to establish such a novelty in appellate proceedings.The prospect is an appalling one, if on every appeal it is open to theappellant to contest the correctness of the record. If such a procedureis to be introduced it must be introduced by some other Judge thanmyself.” There is no reason why I should not follow the dictum ofBonser C.J. I am of opinion that the affidavits are inadmissible and Itherefore reject them. As regards the earlier of the two contentionsit must be remembered that the Magistrate has been officiating as ajudicial officer for a few years and is not one who is new to his work.The presumption is that he did what the law required him to do. Withrespect to the general principle of presuming a regularity of procedurethe true conclusion appears to be that whatever acts are apparentlyregular and proper, they ought not to be defeated by the mere suggestionof a possible irregularity. It is a principle that irregularity will not bepresumed. The presumption of regularity supplied any omission inthe order sheet of the Magistrate. A belated statement made as in thecircumstances of this case is hardly sufficient to displace this presumption.
The main contention in the case was that the words used by theaccused did not amount to a threat, they were used by way of adviceor warning. The Magistrate after a careful consideration of the lawand the evidence has come to the conclusion that when the accusedaddressed the words complained of to Simon he did so with the intentionof intimidating him and preventing him from carrying out his legitimateduties. It is not surprising that the Magistrate came to the conclusionthat the ~words used constituted a definite threat. The action of theaccused in going to the extent of using the words which the Magistratehas held were used places him in a very different position to that occupiedby a person whose duty it is to offer advice to one who needs to be guided.The witness and the accused were apparently strangers. What maybegin as peaceful persuasion may easily become and in disputes of thisnature generally does become peremptory ordering with threats, openor covert, of very unpleasant consequence? to those who are not persuaded.I see no reason to interfere with the conviction.
1 (1900) 1 Broumc, 188.
CANEKERATNE J.—Grand Central Rubber Estates, Ltd. v. Rompi Singho. 525
Mr. Gratiaen urged that the sentence should be altered. The accusedinterfered with the lawful pursuit of his work by the witness Simon andas a consequence of the accused’s act Simon was without work for anumber of days and in all probability deprived of his wages. The actwas not one done by a man impulsively, it was not the act of an illiterateperson. The Magistrate would have taken these into considerationwhen he formed the opinion, “ this is a serious type of offence and a jailsentence is called for ”. The functions of a Court of Appeal are limited.It may have a discretion but it is a judicial discretion regulated accordingto known rules of law, and not the mere whim or caprice of the personto whom it is entrusted on the assumption that he is discreet. Thetrial judge has not proceeded on a wrong principle in imposing a sentenceof three months. I can see no valid ground on' which I can make asubstantial reduction in the sentence. Were I to accede to the suggestionthat relief may be given by taking off a few days from the period of thesentence it would be open to the comment that it is the result of a half-formed thought: it would not be the exercise of a judicial discretionat all.
The appeal is dismissed.
Appeal dismissed.