IN RE S. A. WICKREMASINGHE

091-NLR-NLR-V-55-IN-RE-S.-A.-WICKREMASINGHE.pdf

324
In re WicTcremctsinghe
1954Present: Swan J.
Isr BE S. A. WICKREMASINGHEElection Petition No. 18 of 1952, HahmanaIn the Matter oe a Notice on Db. S. A. Wickbemasinghe to show
CAUSE WHY HE SHOULD NOT BE BEPOBTED TO THE GoVEBNOB-Genebal
Ceylon (Parliamentary Elections) Order in Council, 1946, as amended by ParliamentaryElections (Amendment) Act, 1Vo. 19 of 1948—Sections 81 and 82—Point oftime at which election judge becomes functus—“ A t the conclusion of the trial ”—Corrupt or illegal practice—Notice on parties who are to be reported—May begiven after judgment and issue of certificate—Persons who can be reported.
By sections 81 and 82 of the Parliamentary Elections Order in Council, 1946,as amended by Act No. 19 of 1948 :—
“ 81. At the conclusion of the trial of an election petition the election judgeshall determine whether the Member whose return or election is complainedof, or any other and what person, was duly returned or elected, or whether theelection was void, and shall certify suoh determination in writing under hishand.
Such certificate shall be kept in the custody of the Registrar of the SupremeCourt to be dealt with as hereinafter provided.
82. At the conclusion of the trial of an election petition the election judgeshall also make a report under his hand setting out—
Whether any corrupt or illegal practice has or has not been proved tohave been committed by or with the knowledge and consent of any candidateat the election, or by his agent, and the nature of such corrupt or illegal practice,if any ; and
the names and descriptions of all persons, if any, who have been provedat the trial to have been guilty of any corrupt or illegal practice ;
Provided, however, that before any person, not being a party to an electionpetition nor a candidate on behalf of whom the seat is claimed by an electionpetition, is reported by an election judge under this section, the election judgeshall give such person an opportunity of being heard and of giving and callingevidence to show why he should not be so reported.
Such report shall be kept in the custody of the Registrar of the SupremeCourt, to be dealt with as'hereinafter provided .”
Held.; (i) The words “ at the conclusion of the trial” in sections 81 and 82denote a point of time when the trial is finally concluded by tbe delivery of thejudgment. With reference to the issue of the certificate as to the validity of theelection and the making of the report as to corrupt or illegal practice, thewords mean within a reasonable time of the trial being concluded. Whatwould be a reasonable time would depend upon the circumstances of theparticular case.
It is not necessary for the certificate and report to go together. Aperson may be asked and allowed to show cause under the^proviso to section82 after tbe issue of the certificate and prior to the sending of the report. Thejurisdiction of an election judge continues until the election inquiry is over andthe final report is sent.
An election judge Is not entitled to make a report under section 82 (6)in respect of an election offence which was not in issue at the trial, i,e., eitherin the particulars filed by the petitioner or in the recriminatory case of therespondent. A person, therefore, who was only a witness in the ease cannotbe reported.
fr.
SWA2f J.—In re Wickremasinghe
325
L the matter of a notice on a witness to show cause why he shouldnot be reported to the Governor-General under Section 82 (b) of theParliamentary Elections Order in Council.
S. Nadesan, with C. Manohara, for the party noticed.
H. N. G. Fernando, Acting Solicitor General, with Walter Jayawardene,Crown Counsel, as amicus curiae.
Cur. adv. vult.
Janizary 13, 1954. Swaist J.—
At the trial, during the cross-examination of Dr. S. A. Wickremasinghe,learned counsel for the respondent put certain questions to the witnessregarding some statements appearing in his Election Manifesto. Objectionwas taken to these questions by Mr. Nadarasa, who appeared for thepetitioner, on the ground that they were not relevant. Inasmuch as thequestions were put in order to shake the credit of the witness I overruledthe objection. From the answers given by Dr. Wickremasinghe to thosequestions it appeared to me that he had, in a paragraph entitled “ Service -for himself and his Family ”, made and published certain statementsin relation to the personal character and conduct of the respondent,Mr. C. A. Dharmapala, which were false in fact, and which were presumablyintended to affect the result of the election. At the conclusion of thetrial, having determined that the respondent was duly elected, I causednotice to be issued on Dr. Wickremasinghe calling upon him to show causewhy he should not be reported to the Governor-General under section 82 (h)of the Ceylon (Parliamentary Elections) Order in Council, 1946, as amendedby the Parliamentary Elections (Amendment) Act, No. 19 of 1948, forhaving committed the corrupt practice set out in section 58 (1) (d) of theOrder in Council.
On the returnable date, to wit, 27.11.53, Dr. Wickremasinghe appearedand said he had cause to show. Mr. Nadesan on his behalf stated thathis first objection would be that the election court had no jurisdictionto report a person in respect of whom no charges were made in the parti-culars. He also stated that he would lead evidence, and/or make sub-missions, to prove that no election offence had been committed by Dr.Wickremasinghe. In connection with the latter he, wanted to knowwhether I had, in coming to the conclusion that the evidence at the trialafforded prima facie proof of the commission of an election offence, actedon the testimony of the respondent. As I intended calling the case on
12.53 I told Mr. Nadesan that I would give him the desired informationon that day. When the case was called in Chambers on 1.12.53, in viewof the insinuations made in paragraph 3 of the two affidavits tenderedon 27.11.53, I told Mr. Nadesan that he had no right to ask for, nor
326
SWAN J.—In re Wiekremasinghe
-was I obliged to give him the information he desired to have. But Ireferred him to certain passages in the evidence and in the address ofcounsel for the respondent which should have left him in no doubt on thepoint. I particularly did so in order to give him an opportunity ofsatisfying me that the evidence upon -which I acted did not prove, or wasnot sufficient to prove, the commission of an election offence. I wasglad to note that in the course of this inquiry Mr. Nadesan franklyadmitted that he had no right to ask me upon what material I acted.
I shall now deal with the preliminary objection taken by Mr. Nadesan.As developed at the inquiry my want of jurisdiction to report Dr.Wiekremasinghe is urged on two grounds :—
that I had no jurisdiction at the trial to take cognizance of any
corrupt or illegal practice in respect of which no specific chargewas made at the trial;
that as election judge I am now functus and therefore have no
jurisdiction to make a report against Dr. Wiekremasinghe.
I shall deal with the latter point first, but before I dotso I desire to makea few observations on certain matters to which Mr. Nadesan advertedin the course of his very able address. He said that it was not properfor counsel who appeared for the respondent to have put questions toDr. Wiekremasinghe for the ostensible purpose of shaking his credit butwith the ulterior object of exposing the commission of an election offence.If section 82 (b) of the Order in Council imposes on the Election Judgethe duty of reporting any person who has been shown at the trial to havebeen guilty of any corrupt or illegal practice I should think it wasimmaterial how the evidence was obtained, provided it was relevant. If, inpoint of fact, the questions put to Dr. Wiekremasinghe were admissiblein order to show that his evidence was unworthy of credit because he wascapable of saying things which he knew to be untrue, or the truth of whichhe did not investigate before he said them, I do not think it matters withwhat ulterior object the questions were put. As the learned SolicitorGeneral remarked, one might even say that it was the duty of counselto assist the court in the detection of an election offence.
Mr. Nadesan also submitted that to call upon a person who was only awitness in the case, and who was suddenly confronted with certf.in matters,and whose answers might suggest that he was guilty of an election offenceto show cause why he should not be reported, was contrary to the prin-ciples of natural justice. He contended that before a man could be askedto plead he should be charged, or at least know the nature of the offenceof which he was accused, so that he might take stock of the situation andadvise himself, or Seek advice, as to what he should say, and what questionshe should put to the witnesses who might testify against him. If, asI-have already said, it is the duty of the election court to report everyperson who has been shown at the trial to have been guilty of an electionoffence, 'I do not think that the procedure that has been adopted in thiscase could be said to violate any principle of natural justice. Assumingthat I had jurisdiction to take cognizance of any corrupt or illegal practice
SWAJST J.—In re Wichremaainghe
327
brought to light in the course of the trial all I have found is that thereis prima facie proof that Dr. Wickxemasinghe had committed a corruptpractice. With the notice calling upon him to show cause there wasalso served on him a copy of the passage in his Manifesto which containedthe offending statements. When he appeared on notice he was informed :—
that it was open to him to prove that the evidence upon which
I acted, though admitted without objection, was neverthelessinadmissible and irrelevant and could not be acted upon.
that he could show that, even if the evidence was admissible and
relevant, it did not disclose that he had committed a corruptpractice.
that he could lead evidence to prove that the statements upon
which the present charge is based are not false, or that theydo not relate to the personal character and conduct of therespondent, or that they were not made or published for thepurpose of affecting the return of the respondent.
With all these matters left open to the party noticed I cannot see howhe can complain. I certainly do not think any fundamental principle ofjustice has been violated.
I shall now deal with Mr. Nadesan’s contention that I am functus. Hissubmission is that an election judge is functus immediately he sends hiscertificate to the Governor-General under section 81. TTis argument,briefly stated, is that under section 78 I was nominated by the ChiefJustice to try the Hakmana Election Petition. That invested me withjurisdiction. My jurisdiction came to an end when the election trialwas over. That took place when under section 81 I made mydetermination whether the respondent was duly elected or not, and sentmy certificate to the Governor-General.
During the course of this inquiry I intimated to Mr. Nadesan that Ihad on 8.12.53 made an interim report to the Governor-General whichwas lodged with the .Registrar the same day. This, according to Mr.Nadesan, concluded the matter. The circumstance that it was only aninterim report did not make any difference according to him. In facthis argument was that the report under section 82 should be sent alongwith the certificate under section 81.
I shall at this stage reproduce sections 81 and 82 of the Order in Councilas amended:—
81. “At the conclusion of the trial of an election petition the electionjudge shall determine whether the Member whose return or election iscomplained of, or any other and what person, was duly returnedor elected, or whether the election was void, and shall certify suchdetermination in writing under his hand.
Such certificate shall be kept in the custody of the Registrar of theSupreme Court to be dealt with as hereinafter provided.
328
SWAN J*.—In re WicTcremasinghe
82. At tile conclusion of the trial of an election petition the election
judge shall also make a report under his hand setting ou£—
(а)whether any corrupt or illegal practice has or has not been proved
to have been committed by or with the knowledge and consentof any candidate at the election, or by his agefct, and thenature of such corrupt or illegal practice, if any ; and
(б)the names and descriptions of all persons, if any, who have been
proved at the trial to have been guilty of any corrupt orillegal practice ;
Provided, however, that before any person, not being aparty to an election petition nor a candidate on behalf of whomthe seat is claimed by an election petition, is reported by anelection judge under this section, the election judge shall givesuch person an opportunity of being heard and of givingand calling evidence to show why he should not be so reported.
Such report shall be kept in the custody of the Registrarof the Supreme Court, to be dealt with as hereinafterprovided. ”r
Mr. Nadesan’s first point is that the phrase “ at the conclusion of thetrial ” means simultaneously with or immediately after. He drew myattention to the fact that there is no provision in the rules for judgmentto be reserved. The practice in England is for judgment to be deliveredjust after the case is closed. It would be difficult to adopt that practicein Ceylon. The learned Solicitor General said that he was not awareof a single election case in Ceylon where judgment was delivered forthwith.Mr. Nadesan himself admitted that it was well-nigh impossible aftera protracted trial for judgment to be given at the close of the proceedings.
As long as there is nothing in the Order in Council or the rules thatcompels an election judge to deliver judgment forthwith I do not seewhy an election judge should not take time to consider his judgment.In my opinion the trial includes the judgment, and tlie phrase at theconclusion of the trial denotes a point of time when the trial is finallyconcluded by the delivery of judgment.
Mr. Nadesan was prepared to concede this, but the point upon which heinsisted was that the certificate and report must follow simultaneouslywith or immediately after the conclusion of the trial. In my opinionthe words “ at the conclusion of the trial ” in the context and with refer-ence to the issue of the certificate and the making of the report meanwithin a reasonable time of the trial being concluded. What would be areasonable time would depend upon the circumstances®of the particularcase.
The next point he urged was that the certificate and report must gotogether, and. a person must be asked and allowed to show cause beforethe issue of the certificate and the sending of the report. He contendsthat as I have already sent a certificate I cannot now send a report. That,he said, was the practice in England.
SWAIN' J.—In re Wickremasinghe
329
But the words of the English Enactment are not quite the same as ours.Paragraph 13 of Section 11 of the Parliamentary Elections Act 1868 (31and 32 Viet. C 125) states :—
“ At the conclusion of the trial the judge who tried the petitionshall determine whether the member whose return or election is com-plained of, or any and what other person was duly returned or elected,or whether the election was void, and shall forthwith certify in writingsuch determination to the Speaker, and upon such certificate beinggiven such determination shall be final to all intents and purposes.”
And paragraph 14 is :—
“ Where any charge is made in an election petition of any corruptpractice having been committed at the election to which the petitionrefers, the judge shall, in addition to such certificate, and at the sametime report in writing to the Speaker as follows :—
(а)Whether any corrupt practice has or has not been proved to have
been committed by or with the knowledge and consent of anycandidate at such election, and the nature of such corruptpractice;
(б)The names of all persons (if any) who have been proved at the
trial to have been guilty of any corrupt practice ;
Whether corrupt practices have, or whether there is reason tobelieve that corrupt practices have, extensively prevailedat the election to which the petition relates.”
I may here mention that by 42 and 43 Viet. C 75 provision was madefor election petitions to be tried by two judges, and that by the Corruptand Illegal Practices Prevention Act 1883 (46 and 47 Viet. C 51) provisionwas made that before a person, not being a party to an election petitionnor a candidate on whose behalf the seat is claimed, is reported he shouldbe noticed and be given an opportunity of being heard and of callingevidence in his defence to show eause why he should not be reported(see section 38).
The words to be noted in section 11 (14) are ct at the same time Wehave not taken over those words. They might mean at the conclusion ofthe trial or at the time of determination and certification. The use of thewords at the same time may imply that in England there is a narrowerlimitation as to the time. In any event the limitation of time in Ceyloncannot be less than in England.-
The manner in which election cases are heard in England makes itpossible for a judge to certify his determination at the same time. InEngland persons have been called upon to show cause and ha’ve actuallyshown cause before the final judgment. The learned Solicitor Generalhowever cited a number of cases where cause was shown after judgment,and one ease where even notice to show cause was issued after judgment.
330
SWAN T.—In re Wickremasinghe
I sh.aU now refer to the local decisions in which conflicting views havebeen expressed as regards notice on parties to be reported. In Lateefv. Saravanamuttu 1 the question arose incidentally. It arose on a con-sideration of section 79 of the State Council Elections Order in Councilof 1931. That section is substantially the same as section 82 of the presentOrder in Council except that it provided for notice on all persons whowere to be reported and not only “ any person not being a party to anelection nor a candidate on behalf of whom the seat is claimed Inthis case Mrs. Saravanamuttu was returned at a bye-election. At theprevious election her husband Dr. Saravanamuttu had been returned.He was however unseated. The determination that his election was voidwas on 8.3.1932, and the certificate under section 78 (which correspondsto section 81) was entered accordingly. Notice was issued on Dr.Saravanamuttu to show cause why he should not be reported. Afterinquiry he was reported on 22.3.1932. The learned Solicitor General whoappeared for the Attorney General argued inter alia that under section 78the Judge was required at the conclusion of the trial to certify whetherthe election was valid or not, and under section 79 to make a report.This report had to be forwarded at the same time as the certificate, namelyat the conclusion of the trial. Dalton J. in the cour&e of his judgmentsaid :—
“ Article 79 (2) has been adapted from the provisions of 46 and 47Viet. C. 51 section 38. The purport of the provision seems to be thatno one should be reported for any corrupt or illegal practice who hasnot had an opportunity of being heard in his own defence. Therewould appear to be no uncertainty as to the practice followed in Englandas set out in the cases to which the Acting Solicitor General has referred.There is no suggestion there that any further proceeding subsequentto judgment is denoted. The indications are all to the contrary.One might infer that any person entitled to notice duly received suchnotice before judgment . . . On this matter I am in entire agreementwith the argument of Mr. Ilian gako on and have no doubt that underthe provisions of the Order in Council the certificate and report arerequired to be issued at the same time, namely at the conclusion of thetrial. In practice in England in reported cases one finds the certi-ficate and report contained in one document … I concludedhowever .. . that there'was some uncertainty on that occasion as to
what practice should be followed in view of the provisions of Article 79(2) which sets out that before a person is reported … he shouldbe given an opportunity of being heard.”
In Saravanamuttu v. Joseph de Silva 2 judgment was delivered on22.12.1941 declaring the election void. The learned judge thereaftercalled upon Mr. Goonesinghe and two others to show cause why theyshould hot be reported. These proceedings are to be found in the samevolume at pages 243 to 253. Discussing section 78 de KLretser J. said :
“ The''natural conclusion is that both the judgment and the reportare contemporaneous and follow immediately upon the conclusionof the trial, the trial being as in the Civil Procedure Code something1 (1932) 34 N. L. R. 369.2 (1941) 43 N. L. R. 294.
SWAN J.—In re Wickremasinghe
331
different from, the judgment. As far as I have heen able to gatherthis is what happens in England, and Dalton J. supports that viewin Lateef v. Saravanamuttu (supra).
The next point to be noted is that the election judge determineswhether the election was void and his determination is final. Nowhis determination may be based purely on corrupt or illegal practicescommitted by an agent of the candidate. It seems to follow that hisdetermination that an agent has committed an electoral offence isfinal also. It would lead to the most awkward consequences if after acandidate had been unseated his agents were allowed to prove that nooffence had been committed.”
The learned judge however said that he did not agree in every respectwith Dalton J. and pointed out that Dalton J. was not right when hestated that no proceedings are taken in England subsequent to judgment,giving by way of illustration the Cheltenham case 1 and the East Dorsetcase 2.
In Illangaratne v. G. E. de Silva 3 Windham J. took the view thatwhere a person is to be reported he should be noticed and permitted toshow cause before a decision is given as to the validity of the election.In this connection he said :—
“I have no doubt at all on the authorities. In particular I would referto the case of Lateef v. Saravanamuttu … that the finding of the
Election Judge under Article 81 and the report to the Governor-Generalunder Article 82 (1) ought to be made simultaneously. Furthermoresince such a report must be made by the election judge in the easeof any person found to have committed an election offence it wouldbe futile for such a person to be allowed to show cause why he shouldnot be reported at a stage after he had been found guilty of the electionoffence.”
In re James Appuhamy 4 Windham J. nevertheless took the view thatsection 82 (2) was sufficiently wide in its terms to allow a party noticed toshow cause even after the court had given its judgment and issued thecertificate under section 81. He added however :—•
“ Obviously by far the more satisfactory course would be to give anapplicant such an opportunity before judgment for the reasons whichI have in my ruling delivered during the course of the same petition—■Illangaratne v. G. E. de Silva 3 4.”
In re Amarasena 5 Dias J. held that where a person was found guiltyat an election trial of a corrupt practice it was obligatory on the courtto report him but that such a person if not a party to the petition wasentitled to canvass the finding of the Election Judge.»
3{1947) 49 N. L. B. 87.
4{1948) 49 N. L. B. 261.
3 6 O’M. db H. 194.3 6 O’M. <k H. 22.
(1948) 50 N. L. B. 523.
332
SWAJSt J.—In re Wiekremasinghe
In re Fred, de Silva 1 Nagalingam J. issued notice after.he had deliveredjudgment in the election trial. I shall refer to this case later but for thepresent I am citing it as authority in support of the proposition thatnotice to show cause can be issued after judgment.
In my opinion, on the language of sections 81 and 82, it is not necessaryfor the certificate and report to go together. At the conclusion of thetrial the election judge has, in addition to determining whether themember whose return or election is complained of, or any other or whatperson was duly returned or whether the election was void, to do certainother things, namely :—■t
to certify such determination in writing under his hand ;
to make a report under his hand setting out whether any corrupt
or illegal practice has or has not been proved to have beencommitted by or with the knowledge and consent of any candi-date or by his agent, and the nature of such corrupt or illegalpractice, if any, and
to make a report under his hand setting out the names and
descriptions of all persons, if any, who have been proved atthe trial to have been guilty of any corrupt or illegal practice.
If the report is negative then the certificate and report can go together.So also if the person or persons to be reported need not be noticed underthe proviso. But if notice is necessary the report cannot be sent until theparty noticed has been heard and given an opportunity of giving andcalling evidence to show why he should not be reported.
The fears entertained by Mr. Nadesan that the Appellate Court, in theevent of an appeal, might deal with the matter before the report is madeare imaginary and not real. The election judge must send a report.Until he does so the Registrar will not list the appeal for hearing. If theappeal is inadvertently listed for hearing before the report is sent theAppellate Tribunal will on looking into the record realize that the appealis not ripe for hearing and adjourn the matter. In this particular casethe interim report sent on 8.12.53 will make anybody realize thatthe appeal cannot, and should not be heard till my further report issent.
Assuming that I had jurisdiction to take cognizance of the corruptpractice in respect of which I have noticed Dr. Wiekremasinghe to showcause why he should not be reported I hold that1 my jurisdiction aselection judge continues until the inquiry is over and my final reportis sent.
I shall'now consider the other point taken by Mr. Nadesan, namely >whether an election judge can make a report in respect of an electionoffence which was not in issue at the trial, that is either in the particulars
1 (1949) SI N. L. B. So.
SWAN J.—In re Wickremasinghe
333
filed by the petitioner or in the recriminatory case of the respondent.That objection was foreshadowed at the trial bnt I did not then have theadvantage of a calm and dispassionate argument as I have been privileged •to have at this inquiry. Mr. Nadarasa did not seem to be interested orpretended not to be. When I asked him whether Mr. Nadesan wouldcare to address me he said that would be done later, if and when I decidedto call upon Dr. Wickremasinghe to show cause why he should not bereported.
In this inquiry the learned Solicitor General prefaced his reply withthe remark that as only one side was represented he thought thematter should be fully discussed from the other point of view, so that Imight see whether the view taken by Nagalingam J. in re Fred de Silva x,by which I confess I was influenced when I decided to issue notice onDr. Wickremasinghe, was the correct view.
Mr. Nadesan has amply demonstrated by reference to text-books andcase law that in England nobody is reported except with reference to acorrupt or illegal practice that has been in issue at the trial. The learnedSolicitor General concedes that this is so, but has sought to explain whythe position in Ceylon is not the same. He maintains that the jurisdictionof an election judge in Ceylon to report in respect of corrupt and illegalpractices is wider than in England. He bases his argument on the factthat there is nothing in the Order in Council of 1946 corresponding toparagraph 14 of section 11 of the English Statute which limits the reportto corrupt or illegal practices in respect of which a charge has been madein the election petition. If there is a recriminatory case the same condi-tion would apply. He contends that these words were not omitted byaccident but of set purpose. The omission was designedly made so as to gowith or compensate for the omission of paragraph 14 (c) of section 11 andparagraph 15, namely the need to report “ whether corrupt or illegalpractices have, or whether there is reason to believe that they haveextensively prevailed at the election to which the petition relates ” andthe special report to the Speaker “ as to any matter arising in the courseof the trial an account of which in his judgment ought to be submittedto the House of Commons ”. His submission is that we have droppedthe provision for these additional reports and widened the scope of thefirst part of the paragraph. I am unable to agree with this contention.If the Order in Council was, more or less, a copy of the English Statutethen the omission of certain phrases and certain clauses may induce oneto conclude that there was a purpose behind the omission. But the 1946Order in Council is based on the State Council Elections Order in Councilof 1931 which was not copied from any particular English Statute but wasa new piece of Legislation so far as Ceylon was concerned.
If one looks carefully at the various sections of the Orders in Councilof 1931 and 1946 one is unable to find anything that directly says orindirectly suggests that an election judge in Ceylon is vested with greaterpowers in the matter of reporting persons found guilty of election offencesthan the election courts in England. I can see nothing in these Orders
(1949) 51 N. L. R. 55.
334
SWAN” J.—In re Wickremaainghe
in Council which, justifies the conclusion that we have departed from thelaw of England in this respect, and I can see no reason for the allegeddeparture.t'
Let me now examine the present Order in Council which, as I havealready pointed out, is based on the Order in Council of 1931.
Section 78 (1) says that an election petition shall be tried by the ChiefJustice or a Puisne Justice nominated for the purpose by the Chief Justice,and section 78 (2) says that the Chief Justice or the person so nominatedis referred to in the Order as the election judge.
In order to find out what an election judge has to try we have to lookat section 77 which sets out the grounds for avoidance of an election.Section 79 states who may present a petition and section 80 the reliefthat may be claimed.
In order to get the correct angle from which to read and interpretsection 82 (6) one must start with section 77 and then read sections 78, 79,80, 81 and 82 (a). First of all let us consider what is the jurisdiction ofthe Chief Justice or a Puisne Justice nominated by hird in the trial of anelection petition 1 Obviously it is to try the matters in issue. If thesubmission of the learned Solicitor General from the other point of viewis correct the election judge is invested with purely judicial functions inrespect of the corrupt or illegal pra ctices in issue between the parties, butas regards corrupt and illegal practices at the election with inquisitorialfunctions as well. That is the wider jurisdiction to which the learnedSolicitor General referred.
The point taken by Mr. Nadesan was not taken in the case of Fred deSilva1. There the argument turned on the meaning of the words “ anycandidate ” in section 82 (a) and “ any person” in the proviso. Mr. Nadesanconceded that any candidate included both the successful candidate andthe unsuccessful candidate but contended that the limitation was else-where, namely that the election judge could only report persons in respectof corrupt or illegal practices in issue at the trial and proved at the trial.
I have considered this matter very carefully and have come to theconclusion that Mr. Nadesan’s contention is correct. To take any otherview would mean that an election j udge is not free to control the conductof the trial but must allow the admission of evidence that is irrelevantto the immediate issues, because it is his duty to follow up a clue in orderto detect and report on every corrupt and illegal practice that may havebeen committed at the election.■
The notice is discharged. Dr. Wickremasinghe wijl not be reported inspite of the fact that I thought that there was prima facie proof at thetrial that he was guilty of a corrupt practice.
Notice discharged.
(1949) 51 N. L. R. 55.