S. M. T. B. SUBASINGHE, Appellant, and D. G. JAYALATH, Respondent

026-NLR-NLR-V-69-S.-M.-T.-B.-SUBASINGHE-Appellant-and-D.-G.-JAYALATH-Respondent.pdf


Subasinghe v. Jayalalh
121
1966Present: H. N. G. Fernando, S.P.J., Tambiah, J.,and Abeyesundere, J.S. M. T. B. SUBASINGHE, Appellant, and
G. JAYALATH, Respondent
Election Petition Appeal No. 6' of 1966—Katugampola{Electoral District No. 105)
Election petition—-Appeal from order of Election Judge—“ Point of law "—Positionwhen Election Judge makes wrong inference on facts—Corrupt practice—Mairing false statements about personal character of a candidate—Evidence—Police reports of election meetings—Admissibility—Judge's power to putquestions—Evidence Ordinance, ss.35,157,159 (1),161, 165—Undue influence —Requisite intention—Requirement, in election offences, of proof beyondreasonable doubt—Register of electors—Effect of appearance of a person's nameon it—“ Elector "—Residence qualification of an elector—Incapacity of ElectionJudge to question it-—“ Disqualification for election as a Member"—Distinction in Constitution between circumstances of disqualification andcircumstances of qualification—Ceylon (Constitution) Order in Council, 1946(Cap. 379), ss. 3, 12, 13, 14 (1) (a)-(b), 24— Ceylon (Parliamentary Elections)Order in Council, 1946 (Cap. 381), ss. 4 (1) (a) (c), 4A, 16, 18, 19, 20, 38,56, 58 (7) (d), 77 (e), 85 (2).
When a conclusion drawn by an Election Judge from the relevant factais not supported by legal evidence or is not rationally possible, it is liable to beset aside in appeal. Wrongful inference on facts is a question of law that canbe canvassed in an election petition appeal.
It was alleged that the corrupt practice of making a false statement of factin relation to the personal character or conduct of the opposing candidatehad been committed by an agent of the appellant at an election meeting heldon 18th March 1905. The only witness on whose evidence the petitionerrelied was a Police Constable who had attended the meeting and made certainnotes of the speech in question. The Constable was unable to give evidencefrom memory and, in terms of section 159 (1) of the Evidence Ordinance, waspermitted by the Election Judge to refresh his memory from a report PI whichhad been submitted by him to the Inspector in charge of his station. Thereport was a compilation from the notes made at the election meeting of 18thMarch and was permitted to be used in evidence because the Election Judgewrongly inferred that it had been prepared by the Constable on or before 19thMarch. The evidence, however, showed that it was highly probable that thereport PI was prepared unusually late, a day or two before the 29th March.
Held, that the finding of the Election Judge as to the date of the preparationof tho report PI was not based on legal evidence and should, therefore, be setaside. Inasmuch as the report was not made “ at the time of the transaction ”,it was not admissible in evidence under either section 159 (1) or section 157of the Evidence Ordinance. Nor was it admissible under section 35 of theEvidence Ordinance.
In order to constitute the offence of undue influence under section 56of the Parliamentary Elections Order in Council, the use or the threat of foroeor violenoe must have been made with the requisite intention set out in theSeotion. Where the relevant evidence does not establish beyond reasonable
LXIX—6*H 621—WI4.(l/87)
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H. N. G. FERNANDO, S.P.J.—Subasinghc v. Jayalath
doubt the existence of such an intention, an adverse finding of the ElectionJudge will be set aside in appeal if the conclusion drawn by him from therelevant facts was not rationally possible. In this context, if the conclusionis to be drawn from circumstantial evidence, the ordinary principles relatingto circumstantial evidence must apply.
Section 12 of the Constitution Order in Council, read with the definitionof the term “ elector ” in section 3, would read thus : “ Subject to the provisionsof this Order, a person who is quulified to be a person entitled to vote at anelection shall be qualified to be elected or appointed to either Chamber.’'
The provision in section 77 (e) of the Parliamentary Elections Order inCouncil that the election of a candidate as a Member of Parliament shall bedeclared to be void on an election petition if the candidate was at the time ofhis election a person disqualified for election as a Member does not permit theElection Judge to inquire whether the candidate, despite the fact that his namewas on the register of electors, possessed the residence qualification set out insection 4 (1) (c). Once the name of a person is on the register for any electoraldistrict for the time being in operation ho has an indisputable right to vote atany election which may bo hold during that time of a Member for that doctoraldistrict, subject only to one exception which is in the proviso to section 38.Section 77 (e) of the Parliamentary Elections Order in Council, while it confersjurisdiction on an Election Judge to determine that a candidate was disqualifiedfor election on the ground that he was so disqualified by section 13 of theConstitution, does not authorise an Election Judge to decide a question ofqualification dependent upon section 12 of the Constitution.
ElECTION Petition Appeal No. 8 of 1966—Katugampola (ElectoralDistrict No. 105).*
8. Nadesan, Q.C., with E. R. S. R. Coomaraswamy, Desmond Fernandoand Suriya Wickremasinghe, for the Respondent-Appellant.
Izzadeen Mohamed, with S. C. Crossette-Thambiah and M. Soma-aunderam, for the Petitioner-Respondent.
Cur. adv. vuU.
October 14, 1966. H. N. G. Fernando, S.P.J.—
The Appellant was elected the Member of Parliament for the ElectoralDistrict of Katugampola at the General Election held in March 1965as a candidate of the Sri Lanka Freedom Party. In an Election
* The following order was made on September 22, 1966, when a preliminaryobjection was taken by Counsel for the petitioner-respondent in regard to theconstitution of the Appeal Court:—
“ Counsel for the Respondent in this appeal has informed us that his clientdoes not desire Justice Abeyesundere to be a- member of the Bench hearing this' appeal. The ground is that Justice Abeyesundere's brother was formerly marriedto the sister, now deceased without issue, of the Appellant in this case. J usticeAbeyesundere remains satisfied that he is not personally interested in the appeal,and he has informed the Chief Justice accordingly. We will hear the appeal.” ■
H. N. G. FERNANDO, S.P.J.—Subasinght v. Jayalalh
128
Petition filed by the Respondent, the Election Judge determined that theelection was void on three grounds :—
that the corrupt practice of making a false statement of fact in
relation to the personal character or conduct of the opposing
candidate had been committed by an Agent of the Appellant;
that corrupt practices of undue influence had been committed by
five persons who were Agents of the Appellant;
that the Appellant was at the time of his election a person
disqualified for election as a Member.
The false statement of fact involved in ground (1) set out above wasalleged to have boon made at an Election meeting held on 18th March1965. The only evidence led by the petitioner at the trial as to the contentof the alleged statement was the evidence of Police Constable Wijeratne,who had in the course of duty attended the meeting in pursuance ofinstructions that he should make notes inter alia of any statementsaffecting the character or conduct of a candidate at an election. TheConstable stated at the trial that he had made notes of events at themeeting on 18th March 1965 and that it had been his practice afterattending such a meeting to prepare a report compiled from the notesmade at the meeting and to submit the report made in duplicate to theInspector in charge of his station. This report, he said, would ordinarilybe prepared on the day on which the particular meeting was held or onthe next day. At this stage of the trial one of the duplicate copies of areport purporting to have been made by the Constable Wijeratne wasin the hands of the trial Judge who himself, despite objection byappellant’s counsel, caused the Constable formally to produce thereport which was then marked PI.
Upon being further questioned by the petitioner’s counsel, ConstableWijeratne made it plain that he was either unwilling or else unable togive evidence from memory as to the content of the statement allegodto have been made at the meeting of 18th March by an Agent of theappellant ; and it was only after he had read his report PI, whichapparently he had read aloud in Court, that Wijeratne stated his abilityto recollect the content of the alleged statement. It is perfectly clearfrom the proceedings and from the judgment of the Election Judge thatPI was in terms of Section 159 (1) of the Evidence Ordinance used atthe trial to refresh Wijeratne’s memory and that the Judge ordered itsproduction in pursuance of Section 161 of the Evidence Ordinance.In that part of the judgment which gives consideration to the report PI,Section 159 (1) is reproduced with underlining as follows :—
“ A witness may, while under examination, refresh his memoryby referring to any writing made by himself at the time of the trans-action concerning which he is questioned or so soon afterwards thatthe Court considers it likely that the transaction was at that time fresh
in his memory. ”
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H. N. G. FERNANDO, S.P.J.—Subaging he v. JayalcUh
The trial Judge then proceeded to hold that the report PI had beenprepared by Wijeratno on 19th March 1965, at the latest, thus makingit quite clear that a report preparod on 19th March relating to a speechalleged to have been made on the 18th was a writing made so soon afterthe time of the transaction that the Court coasidered it likely that thetransaction was then fresh in the memory of the witness. Accordinglythe question whether the report had in fact been prepared by Wijeratneon or before 19th March was one of prime importance and affects thecorrectness of the course followed at the trial of permitting the witnessto read the report before giving direct testimony as to tho contents ofthe speech. I have indicated already Constable Wijeratne’s inabilityor unwillingness to give that testimony without refreshing his memory.
Constable Wijeratne had not dated the report PI. The report itsolfbears an endorsement made by the Inspector in charge of tho stationforwarding tho report to A.S.P., Kuliapitiya. This endorsement isdated 29th March and a note made in tho latter’s office shows that itwas received thoro on 30th March. In this connection it is convenientto set out certain questions which wore put to Constable Wijeratne bythe Court, with the answers thereto :—
Court: “ Q. When did you make this report ?
A. My Lord, as a practice I always write the date under mysignature anywhere, but in this instance, the date is notwritten by me and it had happened probably due toan oversight.”
Court : “ Q. Did you prepare that report on the 18th or soon thereafter ?
A. After preparation of the report I put the signature buton this there is no date written by me.
Q.You told us earlier you can't say whether you prepared ifon the 18th itself or on the 19th ?
A. I am unable to say.
Q. You already told us you prepared it either on that dayif you have time or the first thing the next day ?
A. Yes.”
It will be seen that Wijeratne did not answer the Court’s first ques.tionand twice deliberately declined to answer the Court’s questions whetherhe prepared the report on the 18th or on the 19th of March. It was notWijeratne’s case that ho preparod PI on 19th March at the latest. Itwas therefore only an inference which led the Judge so to hold. Thisinference was drawn presumably from Wijoratne’s evidence that it washis practice to prepare a report either on the day of a meeting or on thenext day, and the Judge apparently presumed that the practice had beenfollowed in tho case of Pi.
There wore produced also four other reports of election meetingswhich had been prepared by Constable Wijeratne. All these reportshad been duly dated by him and in each case it was established that he
H. N. G. FERNANDO, S.P.J.—Subasinjke v. Jnyalath
125
had prepared his report either on the first or second day after the meetingin question. It was also further established that each of these reportshad been forwarded by the Inspector within a day or two of his receivingthe report from the Constable. In consequence each of those reportsreached the Special Branch of the C.I.B. within four or five days afterthe particular meeting.
It will be seen that the circumstances affecting the report PI differfrom those affecting the other four reports in two respects, namelythat the report bore no date and that it left the hand of the Inspectoronly on the 29th March, ono week after the General Election.
Prima fac>e tho date of the endorsement by the Inspector would raisethe reasonable inference that the Inspector had received PI shortlybefore that date. (I have shown above that it was apparently theInspector’s practice to forward the reports to the C.I.D. soon after hereceived them from Constable Wijeratne.) The date of the endorsementof PI rendered it highly probable that PI must have been prepared a dayor two before 29th March. At the lowest, it cast doubt on the theorythat PI had been prepared on 19th March, and unless that doubt wasresolved, the petitioner was not entitled to a finding that tho report hadin fact been prepared on the 19th. There was in fact nothing in theevidence to resolve that doubt.
Although the Inspector in charge of the station was called at thetrial by the petitioner, he was not questioned for the purpose of elicitingany explanation as to the date on which he received the report PI.His evidence therefore did not in any way support the theory that thereport must have been prepared on the 19th March, nor did tho petitionerelicit from him any explanation of the unusual circumstance that thisparticular report was forwarded by him only fifteen days after theparticular meeting, and not as in the other established instances, withinfour or five days after a meeting. The judgment of tho learned Judgedoes not advert to this unusual circumstance or to the lack of anyexplanation concerning it.
I am compelled to the conclusion that tho finding of the Election J udgeas to the date of the preparation of PI was not based on legal evidonce.Constable Wijeratne d d not state that he had prepared it on that date,and the inforen e properly arising frem the date of the endorsement,namely that the report had in fact been, prepared shortly before 29thMarch, was not rebutted by relevant evidence. The roport was in factadmitted and used to refresh Wijeratne’s memory because of that finding ;the finding being erroneous in law, it follows that Section Io9 (1) didnot apply, and that in law the report was improperly admitted and usedat tho trial. But for this, Constable Wijeratne could not have refreshedhis memory and then given direct testimony as to the statement allegedto have leen made on ISth March by an agent of the appellant. Thatdirect testimony itself was therefore improperly admitted, and was notlegal evidence upon which to base a finding that an agent of the appellant
2*H 521 (1/67)
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H. N. G. FERNANDO, S.P.J.—Subaainghe v. Jayalath
did make the false statement attributed to him. I am conscious that•our jurisdiction in this appeal is limited by the fact that the appellanthas a right of appeal to this Court only on a question of law. The scopeof the powers of the Court in dealing with such an appeal has beenconsidered in two recent judgments on a cognate matter, namely incases stated on questions of law under the Income Tax Ordinance. Bothjudgments cite with eulogy the analysis of Gajendragadkar, J., in acase in the Supreme Court of India (Cf. Mahawithana's Case1 and RamIswara v. Commissioner of Inland Revenue2). For present purposes itis sufficient for mo to cite only a few sentencos'from the judgments :—
“ It may also be open to the party to challenge a conclusion of factdrawn by the tribunal on the ground that it is not supported by anylegal evidence; or that the impugned conclusion drawn from therelevant facts is not rationally possible ; and if such a plea is establishedthe Court may consider whether the conclusion in question is notperverse and should not therefore be set aside.”
The matters to which I have already referred should suffice to explainmy reasons for the opinion that wo should set aside the finding that afalso statement was made by an agent of the appollant at the meetingheld on 18t.h March 1965.
I pass now to the second ground upon which the election of the appellantwas held to bo void. The five instances of undue influence which thelearned Election Judgo held to be established consisted of the makinguse of or the threat to make use of force or violence by agents of thecand:date. The learned Judgo rightly directed himself that in order toconstitute the offence of undue influence under Section 56 of the Parlia-mentary Elections Order in Council the use or the threat of force orviolor.ee must have been made with a particular intention ; namely" in order to induce or compel a person to vote or refrain from voting ”.and he held in each case that the evidence established such an intention.This latter finding has been clrallenged in appeal on the ground that therelevant evidence in each case docs not establish the existence of suchan intention in the mind of the person using or tlireatening the use offorce or violence. In considering this challenge, it is best to reproduce,here the evidence available :—
la) One Ukkuwa testified that he was a supporter of the UnitedNational Party. He stated that on the night of the 19th Marchat road junction some people were having a music party onthe verandah of a closed boutique. The witness had gonethere with one Puncha to search for a car required to takePuncha’s child to the hospital. One Adhikari (alleged to bethe appellant's agent) flashed his torch, saw Ukkuwa and said” Ukkuwa I want to meet you all”, so saying ho assaulted
‘ [1962) 64 N. L. R. 217 at 222.
2 [1962) 65 N. L. R. 393 at 395.
H. N. G. FERNANDO, S.P.J.—Svbaainghe v. Jayalalh
127
Ukkuwa four or five times with hands. Ukkuwa then said toAdhikari that he had come in search of a car and Adhikariretorted “ you U. N. P. followers have no cars here don’t comein search of cars here if you come in search of care we willkill you
One Manelhamy testified that he was organising a U. N. P. meeting
to be held on 12th March 1965 on the land of one JamesAppuhamy. While preparation was being made for themeeting, one Kiribanda Appuhamy (alleged to be an agent ofthe appellant) came there and said “ that he would not allowus to hold the meeting and that he would stone the placeHe also used indecent language. As a consequence peoplewho had come to the meeting left the place.
It is not clear from the evidence whether or not the meetingwas abandoned in consequence of the alleged incident.
One Shelton Abeysekera, a dealer in Motor spare-parts, carried
on his business in a building belonging to a relation of theappellant. On 16th March one Victor came to Abeysekeraand told him that Jayatileko (an alleged agent of the Appellant)wanted to see him. He accompanied Victor and met Jayatilekewho told him that he wanted to buy some bulbs for a car.Jayatileke then accompanied him to the shop. There Jayatileketold him " being under the roof of Mr. Subasinghe are youworking for the U. N. P.” Abeysekera then asked “did youget me down for the purpose of putting this question or toget some bulbs Then Jayatileko dealt a blow on his backand he fell down and struck a plank.
One Guncsekcra stated that while a S. L. B. P. meeting was taking
place near his home he heard the noise of a car and somedisturbance. When he went up he saw a car stopped and somepeople attacking the car. The Police then arrived at thescene and Gunesokera turned back to return to his home. Atthat stage one Podiratne and others (alleged to be the agentsof the appellant) assaulted Gunesekera with hands saying “youare the U.N.P. dogs it is your car that knocked down our child”.
One J. A. Gunasena stated that he too was assaulted on the same
occasion by Podiratne and another. Before assaulting himPodiratne said “ I have been wanting to meet you”.
It will be seen that the evidence relative to each of these instancesdoes not include any testimony that force or violence, or the threatthereof, was accompanied by any words calculated to induce or compelthe subject by the force violence or threat to vote in favour of a candidateor to refrain from voting in favour of a candidate ; so that the findingsof the Election Judge, that the necessary element of intention waspresent, was nnlv an inference he drew from conduct and from statements
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H. N. G. FERNANDO, S.P.J.—Subasinghe v. Jayalath
accompanying the conduct. When an inference is to be drawn in thatway as to the presence of an intention which needs to be proved beyond areasonable doubt the ordinary principles relating to circumstantialevidence must apply. So that in this context, the inference may onlybe drawn if it is an irresistible inference arising upon the evidence andif no other reasonable inference is possible. Let me consider from thisaspect the evidence relative to the five alleged instances of undueinfluence.
Instance (a):—In the case of the alleged threat and assault by oneAdhikari on Ukkuwa, the complainants themselves hadstated in their complaints to the Police that they thoughtthat the assaults and threats took place because they weresupporters of the U. N. P. The person assaulted was apparentlyknown to be a person who worked for the U. N. P., andthe assault could be reasonably referable to that fact. Butwas it in any way reasonable to impute to the assailant anintention that the assaults and threats on his part could havethe effect of inducing or compelling a known U. N. P. workereven to refrain from voting for the U. N. P. candidate ?
Ukkuwa himself did not claim to have had any impressionthat the assault on him was designed to prevent him fromvoting for the U. N. P. candidate. The threat directly madewas that he would not be allowed to find a car at the placeat which he had come to search for one.
Instance (b).-—Manelhamy’s evidence of a threat that the U. N. P.supporters would not be allowed to hold a meeting andthat the place would be stoned, establishes no more thanthat on that occasion Kiribanda Appuhamy used threats toprevent a meeting being held. A threat of such a kind isnot within the ambit of Section 56. Appuhamy clearly hadan intention to prevent the meeting being held and thatintention clearly arose from the words used in the threats.Manelhamy did not himself claim that he was deterred fromvoting in consequence or even that he thought the threathad been made with that object.
Instance (c):—In this case the assault on Abeysekera was quiteclearly connected writh the fact that Abeysekera worked forthe U. N. P. despite his occupation of a building owned by arelation of the appellant. If there was any clear inferenceto be drawn in this case it was in tho stated circumstancesthat Jayatileke desired to prevent Abeyasekera fromcontinuing to work for the U. N. P.; else there was the lesserinference that Jayatileke v/as angered by the fact thatAbeysekera w'as working for the U. N. P. There w'as nothingupon w’hich to base the graver inference that Jayatilekedesired or even thought that he could prevent Abeysekerafrom exercising his vote freely.
H. N. G. FERNANDO, S.P.J.—Subaainghe v. Jayolath
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Instances (d) and (e) :—Those two cases best illustrate the failureof the trial Judgo to direct himself correctly in regard to thisquestion of intention. It is manifest that these two assaultstook placo because tho appollant’ssupportorswere angered bythe fact that % vehicle thought to have been used for t he U. N. P.side had knocked dawn a child. The assaults wero of courseunjustifiable, and it may even have been that advantagewas taken of the accident to give vent to feelings rousedby election rivalry. But the inference that the assaults worein actual or pretended retaliation for tho accident to thechild is unusually strong. Tho failure of the trial Judge todraw that inference shows that, bocause of some misconceptionor inadvertence, ho failed to apply t.ho relevant rules governingcircumstantial evidence in considering whether tho requisiteintention to induce or compel persons to voto or refrain fromvoting has been established in these five casos.
The judgmont of the Election Judge contains no indication thathe gave thought to tho inference which (as I have shown) prima facie andreasonably arose from the proved facts in each of these cases, or to theneed to consider and reject such inferences on propor grounds beforedeciding to draw his inference that the intention to interfere with freevoting had boon proved. Counsel who appeared for the petitioner-respondent at tho trial and the appeal could not refer to any fact orconsideration which might justify tho docision of the trial Judge, andI am satisfied that (in torms of tho dictum of Gajendragadkar, J., alreadycited) “ the conclusion drawn by the Election Judge from the relevantfacts was not rationally possible ”.
I here rely also on opinions expressed in the House of Lords in a casestated on a question of law on an income tax appeal (Edwards v.Bair slow l) :—
Lord Simonds :—“ For it is universally conceded that, though it isa pure finding of fact, it may be set aside on grounds whichhave been stated in various ways but are, I think, fairlysummarised by saying that the court should take that courseif it appears that the commissioners have acted without anyevidence or upon a view of the facts which could not reasonablybe entertained. It is for this reason that I thought it rightto set out the whole of the facts as they were found by thecommissioners in this case. For, having set them out andhaving read and re-read them with every desire to supportthe determination if it can reasonably bo supported, I findmyself quite unable to do so. The primary facts, as theyare sometimes called, do not, in my opinion, justify theinference or conclusion which the commissioners have drawn :iiot only do they not justify it but they lead irresistibly
» (1956) A. C. 14.
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H. N. G. FERNANDO, S.P.J.—Subaainghe v. Jayalath
to the opposite inference or conclusion. It is therefore a casein which, whether it be said of the commissioners that theirfinding is perverse or that they have misdirected themselvesin law by a misunderstanding of the statutory language orotherwise, their determination cannot stand.”
Lord Radcliffe:—“ But without any such misconception enteringex facie, it may be that the facts found are such that no personacting judicially and properly instructed as to the relevantlaw could have come to the determination under appeal.In those circumstances, too, the court must intervene. Ithad no option but to assume that there has been some miscon-ception of the law and that this has been responsible for thedetermination. So there, too, there had been error in pointof law.”
For these reasons, I am compelled to set aside the finding that thefive instances of violence and threats did constitute offences of undueinfluence defined in Section 56.
The third ground of avoidance—disqualification of the appellant isthe only ground on which Mr. Izzadoen Mohained seriously contendedthat the determination of the Election Judge should be affirmed. Therelevant matters require some explanation.
The register of electors which was duly in operation in March 1965was that certified under Section 20 of the Parliamentary ElectionsOrder in Council in 1964. That register (P14) contains the name of theappellant as a registerd elector.
The revision which preceded the certification of P14 had to commenceon or before 1st June 1963 (Section 16). Under Section 4 (1) (a), aperson was not qualified to have his name entered or retained on thatregister if “ he had not for a continuous period of six months preceding1st June 1963, resided in the electoral district of ” Katugampola. Thelearned Election Judge found on the evidence that the appellant, whoheld at that time the office of Ceylon’s Ambassador to the U. S. S. R.,had not been resident in the electoral district during the period stipulatedin Section 4 (l)(c), and had therefore not been qualified to have hisname retained in P14, although in fact the name was therein retained.The Judge on these facts determined that the appellant “ was at thetime of his election disqualified for election as a Member of Parliament ”(Section 77 (e)). The reasoning upon which the determination wasbased 'will appear in my discussion of the relevant statutory provisions.
Section 12 of the Constitution states that “ subject to the provisionsof this Order, a person who is qualified to be an elector shall be qualifiedto be elected or appointed to either Chamber ”. The term “ elector ”is defined in Section 3 of the Constitution, and when that definition is(as it must be) incorporated in Section 12, Section 12 would read thus :—Subject to the provisions of this Order, a person who is qualified to be a
person entitled to vote at an election shall be qualified to be elected or
appointed to either Chamber.
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131
In the opinion of the trial Judge Section 12 requires not only thequalification that a person is entitled to vote at an election. Had thatbeen the only requirement, the appellant was qualified for election as aMember, for he undoubtedly was entitled to vote at the election byreason of his name being on the register P14. But Section 12, in thatopinion, requires something different, namely that a person is qualified,to be entitled to vole at an election. This requirement means that, inorder to be qualified for election as a member, a person must actuallypossess the various qualifications set out in Section 4 of the ParliamentaryElections Order in Council. Since the appellant did not have theresidence qualification required by Section 4 (1) (c), he did not actuallypossess all the requisite qualifications, and therefore he was not qualifiedunder Section 12 of the Constitution.
If the provisions of law thus far mentioned were the only onesapplicable, I would with respect go the whole way with the ElectionJudge. But there are other relevant provisions and considerationswhich can lead to the different conclusion, namely that the intentionof the law was that the question which arises under Section 12 of theConstitution has to be determined by reference to the certified register,and not otherwise.
I must note firstly that when the definition of “ elector ” in Section 3of the Constitution gave the word the meaning “ a person who is entitledto vote at an election of a Member ”, the Section loft for determinationby reference to some other law the question whether a person is anelector. In fact, at the time of the enactment of the Constitution Ordcr-in-Council, 1946, i.e. on 17th May 1946, there was not in existence alaw declaring which persons are entitled to vote at an election of a .Member. The relevant law, which was the Parliamentary ElectionaOrder-in-Council, was enacted only on 26th September 1946. It wasnot possible therefore for Section 3 of the Constitution to mentionexpressly in the definition of “ elector ” the particular Section of thelaw which was in mind when the definition referred to “ persons entitledto vote ”.
But in fact the Parliamentary Elections Order-in-Council does notexpressly specify the qualifications which entitle persons to vote atParliamentary elections. Section 4 of this Order-in-Council insteadof providing that persons are or are not qualified to vote, in fact providesthat “ no person shall be qualified ” to have his name entered or retained inany Register of Electors ” if he does not possess certain qualifications.It is only by implication therefore that Section 4 (1) (c) can be regardedas a provision of law specifying the matter of residence as being a votingqualification. Consideration of Section 4 itself shows that the lawwhich was contemplated in the Constitution’s definition of “ elector ”was not in fact enacted in the terms which had been earlier contemplated.The point I here make is of no great significance by itself but it gainssignificance by matters to which I shall later refer.
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Having in Section 4 and subsequently in Subsection 4A introducedin 1953 declared the qualifications for a person to have his name on aregister of electors, the Elections Order proceeds to lay down somewhatelaborate machinery for the preparation and the revision of electoralregisters, and I will refer only to the machinery foi revision.
Revision has to commence beforo June each yoar with a notificationby the Commissioner of Parliamentary'’ Elections stating that the revisionhas commenced and informing every qualified person how ho mayascertain “ whether his name is in such register, and if not, how ho maysecure its insertion therein ” (Section 10 (1) ). For the purpose of revisingtho register the revising officer may make house to house or other inquiryand may call for information from householders and occupiers of land.It is an offence not to give any such information or to suppress anysuch information. Section 18 requires the registering officer to preparetwo lists having reference to tho existing register. List A will containtho names of persons in the register w’ho are dead, or have bocomedisqualified : List B will contain the names of persons who appear tobe newly qualified. Hence the public are informed that the officerproposos to retain on the register all names other than those to bo excludedthrough List A.
Section 19 inter alia (Cf. Subsection 2) enables objection to be madeto the retention in tho register of any name and also enables claimsand objections to be made in regard either to list A or list B. Section 19incorporates Sections 15 (B), 15 (C) and 15 (E) to render them applicableto such claims and objections, and there is thus provision not only forinquiry into claims and objections by the registering officer but also toappeals to tho revising officer.
Section 20 provides for the certification of the register after completionof the revision.
Tho noxt important provision is Section 38 which provides as follows :—
“ The register of electors in operation in accordance with this Orderat the time of any election of a Member to represent tho electoraldistrict to which the register relates shall be conclusive evidence fortho purpose of determining whether a person is or is not entitled tovote at such election”
It is not disputed that the purposo of the machinery for registeringqualified persons as electors is to bring into operation a register whichfinally and conclusively determines whether or not a person is entitledto vote at the particular Parliamentary Election. ' Once tho name of theperson is on the register for any electoral district for the time being inoperation he has an indisputable right to vote at any election whichmay be held during that time of a Member for that electoral district,subject only to one exception which is in the proviso to Section 38 : underthis proviso a person is rendered incapable of voting if he has beenconvicted of a corrupt practice or illegal practice or has been reportedby an Election Judge or has been guilty of any of certain other offences.
H. N. G. FERNANDO, S.P.J.—Subaainghe v. Jayalalh
133
The loomed Election Judge rightly concedes that' Section 38 isconclusive of a registered elector's right to vote (subject to the exceptionabove mentioned). But ho takes the view that Section 38 has thisconclusive effect only in regard to presiding officers and not in regardto Eloction Judges. With respoct, this viow is not supported by any-thing in the Elections Order. On the contrary Section 85 (2) exprosslyprohibits an Election Judgo from striking off a vote at a scrutiny “ byroason only of the voter not having been qualified to have his name onthe register of electors ”.
In considering what is the qualification required by Soction 12 of theConstitution, the learned Eloction Judge made the followingobservations :—
If a porson has not the qualifications to be a voter then he doesnot have the right to vote. Therefore, even if his name appears ontho Register of Electors, if he was disqualified from having it so enteredho has not tho right to vote—has not the title to vote
In effect the Judge holds that tho appellant (because he did not havetho residence qualification) ‘'does not have the right'to vote, has not thetitle to vote ”. But Section 38 quite distinctly says that tho certifiedregister is conclusive evidonce that a person, whose name is retainedon a certified register, is entitled to vote. So even if the Judgo rightlythought that entitled connotes both a qualification and a right, Section 38conclusively eliminates the possibility of controversy by declaring thatthe register “ is conclusive evidence for the purpose of determiningwhether a person is or is not entitled to vote
It is true that the direct object of the Elections Order was to determinewith finality for tho purposes of any Parliamentary election the personswho are entitled to vote at that election. But that final determinationis reachod only after completion of a strict procedure under which theregistering authorities are enabled to consider and test tho questionwhether any particular individual is entitled to have his name retainedor entered in a revised register. If, as I have earlier stated, Section 4by implication declares which persons are qualified to vote, then thoregistering authorities, in deciding under the procedure to retain thoname or insert a new name in the register, do decide whether the personsbearing those names are indeed qualified to vote. Taking the case ofthe appellant in this context, it is a fair presumption that his namewas duly retained on the register which was in operation at the relevanttime. Since therefore it can be presumed that the registering authoritiesdecided under the statutory procedure that he did possess the requisiteresidential qualification, tho question is whether the legislature intendedthat the matter of his qualification already considered and decidedunder the registration procedure can again be re-opened in an electionpetition.
134
H. N. G. FEHNANDO. H.V.J.—Subaainghe v. Jayalolh
Although the matter is not free from doubt I much prefer the viewthat when a statute provides machinery for the conclusive determinationof a particular question, in this case the question whether the appellantwas entitled to vote, then for all purposes the determination will beconclusive.
I pass now to what I regard as the most important considerationsaffecting the correctness of the finding of the Election Judge. I notethat learned Crown Counsel who appeared at the trial as Amicus Curiaeat the request of the Court relied upon these same considerations andargued that the Election Judge should not declare the appellant to bedisqualified. It is unfortunate that the learned trial Judge did notdiscuss learned Crown Counsel’s argument, and that we are thus deprivedof the benefit of knowing the Judge’s reason for rejecting that argument.
The jurisdiction of an Election Judge to declare an election void iscontained in Section 77 of the Order and the relevant provision isparagraph (e) of that Section, the ground of avoidance being “ that thecandidate was at the time of his election a person disqualified for electionas a Member ”. Now, it is not the Elections Order, but it is the Consti-tution, that specifies the conditions of disqualification for Parliament,and I must now refer to them. There is firstly Section 12 of the Consti-tution which bears the marginal heading “ disqualification tor membershipof Senate or House of Representatives In each of its first threeSubsections Section 13 declares that persons described therein “ shall bedisqualified for being elected”. In regard to members of Parlia-
ment (i.e. of the House of Representatives) Section 24 provides that theseat of a member shall become vacant, inter alia, “if he becomes subjectto any of the disqualifications mentioned in Section 13 of this OrderThere is also Section 14 (1) (6) which renders a person liable to a penaltyif he sits or votes in the House of Representatives after his seat hasbecome vacant or if he has become disqualified.
My reference to the above provisions of the Constitution leads to theconclusion that, when paragraph (e) of Section 77 of the Elections Orderreferred to the question of a candidate being disqualified for election asa Member, that paragraph had in mind all those cases in which theConstitution itself declared persons to be disqualified. But did thatparagraph intend also to refer to cases dealt with in the Constitution,not as matters of disqualification, but as matters of non-qualification ?Section 12 deals with matters of the latter type and its marginal headingis not disqualification but “ qualification ” for membership. A distinctionthus made in the Constitution between circumstances of disqualificationand circumstances of qualification should not I think be ignored. Thisdistinction is maintained in Section 14 (1). That Subsection containsnot only the reference to disqualification in its paragraph (6), but alsoa reference in its paragraph (a) to the case of a person who was notqualified for election at the time of his election.
H. N. G. FERNANDO, S.P.f.—Subasinjhc r. Jayalcdh
135
The argument of Crown Counsel can only be appreciated in the lightof the distinction prima facie appearing in the Constitution betweendisqualification on the one hand, and qualification or lack of qualificationon the other hand. The argument in brief would be that whileparagraph (e) of Section 77 does confer on an Election Judge jurisdictionto determine that a candidate was disqualified for election on the groundthat ho is so disqualified by Section 13 of the Constitution, paragraph (e)does not confer jurisdiction to determine that a candidate was notqualified for other reasons. The other reason in the present case wouldbo that the appellant was not qualified in terms of Soction 12. SinceSoction 12 is not a disqualifying Section but only a qualifying Section,the question whether its provisions were complied with in the case ofthe appellant was not ono dotcrminablo in the exorcise of jurisdictionconferred on an Election Judge by Soction 77 (e) of the Elections Order.Upon the considerations to which I have referred and which are basedupon tho terms of various provisions in the Constitution itself, I holdthat paragraph (e) of Section 77 does not authorise an Election Judgeto decido a question of qualification dependent upon Section 12 of thoConstitution.
In the present case tho conclusion which I roach gives no cause foralarm. When a person’s name is on a certified register of electors, myconclusion only means that therefore his qualification to vote and to bea Member had been conclusively determined by the certified register.But if he happens to be disqualified under Section 13 of the Constitution,an Election Judge can declare his election void.
I realise, however, another possible consequence of my conclusion,namely that, even if a person’s name does not appear on any electoralregister, it may not be competent for an Election Judge under Section77 (e) to declaro his election void on the ground that the appropriateregister did not contain his name. But the possibility that such asituation may in fact arise is extremely remote. And if such a possibility,which I believe has hitherto never arisen, does arise, Section 14 (1) (a)of the Constitution already provides a remedy. If that remedy isconsidered insufficient, it is for Parliament to provide a fuller remedy.
We indicated after the argument that this appeal would be allowed,and that a formal order would be made later. Having now set out myreasons, I proceed to the formal order.
The determination of the Election Judge, that the election of theappellant was void, is reversed, and it is decided by this Court thatSubasinghe Mudiyanselage Tikiri Banda Subasinghe was duly electedas Member for Electoral District No. 105 Katugampola. The appellantwill be entitled to costs in both Courts. The report/reports made bythe Election Judge under Section 82 of the Order-in-Council will not betransmitted to the Governor-General.
15-Volume LX1X
1S6
TAMBIAH, J.—Subasinghe v. Jayalalh
Tambiah, J.—
I am in agreement with the views and conclusions reached l>y mybrother H. N. G. Fernando J. In view of the importance of the pointsraised in appeal I would like to add my own observations.
The loarned Election Judgo has misdirected himself in holding thateven if a person’s namo is found in tho Parliamentary Electors’ Register,certified for the year in which the oloction is hold, ho is disqualified frombeing a voter by roason of the fact that he doos not have tho necessaryresidential qualifications sot out in section 4 (1) (c) of the Ceylon (Parlia-mentary Elections) Order in Council, 1940 (which is hereinafter calledtho Elections Order in Council). Consequently, ho has takon tho viewthat tho respondent was not qualified to sit in Parliament.
The Ceylon (Constitution) Order in Council (which is hereinafterreferred to as tho Constitution) defines the word “ elector ” as a person“ entitled to vote at an oloction of a Member” (vide section 3 of Cap. 379).Tho Elections Ordor in Council contains elaborate provisions for thepreparation of registers of electors for each electoral area. Provision ismade for the preparation of tho first register after the Elections Orderin Council came into force, tho annual revision of registers and tho certi-fication of the registers for a particular yoar. Any person whoso nameappears in tho register is ontitled to object to tho inclusion of a name inthe registor. A person whose name has been omitted is also entitled tomake an application to have his name included or restored in the registor.From the decision of the officers, who are entrusted with the preparationof registers, and who are also given the power to include or exclude aname from tho register, an appeal is given to a revising officer. Afterthis elaborate procedure has been exhausted, finality is given to theregister. Once the register is certified by the proper officer, section 38of the Elections Order in Council enacts that “ the register shall beconclusive evidence for the purpose of determining whether a person isor is not ontitled to vote ” at the parliamentary olection for any particularelectoral area. The proviso to soction 38, however, set3 out porsons whoare incapable of voting at an election, although their names may appearin tho registor. It is clear therefore that any person, whoso name isin the register and who is not incapacitated by the disabilities sot out inthe proviso to section 38, is qualified to vote at a parliamentary olection.It may be noted that non-residence for a period of six months, whichis a disqualification for a person’s name to be entered on the registor,is not set out as an incapacity in the proviso to section 38 to enable aperson to vote once his name is in the register. The resulting positionis that although a person may not have the residential qualificationnecessary to have his namo entered in the register, yet, if his nameappears in it, and he does not suffer any of the incapacities set out in theproviso to section 38 of the Elections Order in Council, he is qualifiedto vote at a parliamentary election.
TAMBIAH, J.—Sub axing hr, r. Jayalath
137
The provisions governing the qualifications of persons who are entitledto be elected to Parliament are sot out in section 12 of the Constitutionwhich enacts : “ Subject to the provisions of this Order, a person whois qualified to be an elector shall be qualified to bo elected or appointedto either chamber.” The disqualifications for membership of the Houseof Representatives aro set out in section 13 of tho Constitution.
Therefore once the name of a person is in the register for a particularyear in which the election is held, he is qualified to be olected to Parliamentprovided ho does not suffer any of the incapacities set out in the provisoto section 38 of the Elections Order in Council and any of the disqualifi-cations enumerated in section 13 of the Constitution. The appellant’sname is in the register for the year in which he was elected and he doesnot suffer any of the incapacities set out in the proviso to section 38 ofthe Elections Order in Council or has any of the disqualifications setout in section 13 of the Constitution. Therefore the appellant is aperson qualified to sit in Parliament.
This canon of construction receives confirmation by a considerationof the provisions of section 85 of the Elections Order in Council whichdoes not enable an Election Judge, on a scrutiny, to strike out the votesof persons who do not have the necessary qualifications to have theirnames entered on the register. Despite the lack of residential qualifi-cation to enable a person to be included in the register of electors for aparticular year in which elections take place, an Election Judge isprecluded from striking out tho vote of such a person on a scrutiny.In other words an Election Judge is not given jurisdiction to set asidean election of a Member of Parliament on this ground.
Counsel for the respondent relied on the caso of Flintkam v. Roxborough(vide The Law Times Reports, Vol. LIV, p.797) in support of the propo-sition that if a statute states that a person is “entitled to vote” itcannot bo construed to mean that he is “ qualified to vote ”. Theprovisions of the English Municipal Corporations Act of I8S2 (45 & 46Viet. c. 50), which the Judgos wove called upon to construo in that case,wero entirely different from the provisions of the Ceylon Constitutionand the Elections Order in Council. In that caso the court had toconstrue the relevant, provisions of the Municipal Corporations Act of18S2 which does not have the elaborate provisions of the Ceylon ElectionsOrder in Council relating to preparation, revision and certification ofregisters. Further the English Act contains no provisions similar tosection 38 of the Order in Council which enacts that if a person’s nameis found in the Electoral Register of a particular year it is conclusiveevidence that he is entitled to vote at a Parliamentary Election. Indeed,one of the submissions made by Counsel in that case was that since theEnglish Act did not make the register conclusive evidence of a personentitled to vote, the court was free to give an interpretation to thosewords.
138
TAMBIAH, J.—Sttbasinghe v. Jayalath
On. a proper construction of the English Municipal Corporations Actof 1882, a person’s name has to be on two rolls, referred to as rolls A & B.Although a person’s name may be on register A still he is qualified tovote only if his name is also on register B. In coming to the conclusionthat a person entitled to vote is not the same as a person qualified tovote within the meaning of the provisions of the Municipal CorporationsAct of 1882, the Judgos had to bear this distinction in mind and woreconstrained to give that construction. This clearly appears from thedictum of Mathew J. In referring to these phrases he said (vide Flinthamv. Roxborough, The Law Times Reports, Vol. LIV, page 797 at 799) :
"It is difficult off hand to say that they do not, generally speaking,
mean the same thingTo discover the meaning of ‘qualified
to vote ’ sections 9 and 11 of the Act must be read together. Section 9applies to the qualifications to bo put on the burgess roll; section 11to the qualifications to be entitled to become a town councillor ; and,apart from subsection 3 of section 11, which is taken practically fromthe Act of 1880 (43 Viet. c. 17), the qualification to be a councillor is ftmuch heavier one than that which entitles a person to be a burgessmerely.”
Thus, it becomes clear that under the English Municipal CorporationsAct a person entitled to vote is not necessarily qualified to vote.
The scheme of our statutory legislation is entirely different from theEnglish statute. It is a cardinal rulo of interpretation that in construingstatutes when tho meaning of the words are clear, effect must bo givento them. Tho Elections Order in Council envisages finality to be reachedwhen a register is prepared and certified for a particular year. Aftercertification, if a person's name appears in the register, it is conclusiveevidence that he is entitled to vote, unless he was disqualified by anyof the incapacities set out in the proviso to section 3S of the ElectionsOrder in Council.
When one fact is said to be conclusive evidence by the proof of anotherfact, it is clear law that on the proof of the latter fact no evidence cane beled to contradict tho former fact. Therefore once it is proved that theappellant’s name is in the electoral register, which was certified for theyear 19G5, tho learned Election Judge could not have allowed any evi-dence to be led to show that his name should not have been included inthe register of voters by reason of the fact that he had not resided in theelectoral district to which the register relates, for a continuous periodof six months in the eighteen months immediately prior to the first dayof June in that year. In the disqualifications set out in section 13 of theConstitution, nowhere is it stated that non-residence for a continuousperiod of six months prior to June in that year, as required by section4 (1) (c) of the Elections Order in Council, disentitles a person to be inParliament .This is the plain ground relied on by Counsel for the petitioner-
J'AMBIAH J.—Subasinghe v. Jayalath
1S9
respondent to sustain the order of the learned Election Judge. Forthe reasons stated, the order of the Election Judge on this matter cannotbe sustained.
V
On the charges of corrupt practice by the; commission of the offenceof undue influence, which the learned Judge thought were proved, I amin agreement with my brother H. N. G. Fernando, J. and I hold thatthe requisite intention set out in section 56 of the Elections Order inCouncil has not been proved in this case. The evidence led on thesecharges does not show' that the petitioner-respondent has proved beyondreasonable doubt that the acts complained of were done “ in order toinduce or compel such person to vote or refrain from voting, or on accountof such person having voted or refrained from voting at any election,”or the other matters set out in section 56 of the Elections Order in Councilwere committed.
In dealing with an election case where the facts are to be foundinferentially from the circumstantial evidence the rules governing theacceptance of circumstantial evidence in criminal cases should be followed.In a criminal case if two reasonable inferences are possible, one consistentwith the innocence of the accused and the other consistent with hisguilt then a Judge must draw only the inference which is consistent withthe innocence of the accused. This principle should apply mutatismutandis in election cases whore the standard of proof is the same asin criminal cases. Tho benefit of any'reasonable doubt must be givonto the person whose election is sought to be sot aside. Applyingthese principles it cannot he said that, tire charges of corrupt practiceof undue influence have been proved beyond reasonable doubt. Wrongfulinference on facts is a question of law that can be canvassed in this court.The learned Election Judge has misdirected himself in holding that thecharges of corrupt practice have been proved although the requisiteintention has not been established in this case.
The learned Election Judge has also erred in admitting PI in evidencePI was alleged to be a report by constable Wijeratne, of a meeting heldon 1 Stir March 1065. This document contains the alleged false statementwhich is said to have been made by one Jayatilleke, tho alleged agent ofthe appellant. The learned Election Judge has accepted the evidenceof this constable and held that the false statement contained in PI wasmade by Jayatilleke, the alleged agent of the appellant. This is oneof tho grounds on which the appellant has been unseated. In admittingthis document the learned Election Judge has held, without an iota ofevidence, that PI was sent by the constable on the 18th or 19th of March1965. When the Judge repeatedly asked the question as to when thereport was sent, the constable gave no direct answer, but became evasive.It is curious that this document which bears no date has an endorsementby the Inspector of Police who received it on the 29th of March, 1965,
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TAMBIAH, J.—Subasinghe v. Jayalath
whereas the reports of other meetings sent by tho same constable containendorsements by the Inspector showing that almost a day or two afterthe meetings the reports reached the hands of the Inspector.
The election was held on the 25th of March, 1965 and the results wereknown by the 26th. It is curious that PI is not only undated but wasreceived by the Inspector on the 29th of March 1965, that is to say,after the results of the election were announced. Such a documentcould easily be fabricated. Taking all the circumstances into considera-tion PI is not a document which is admissible under section 157 of theEvidence Ordinance. In order that it may become admissible underthis section “ tho document must have been written at or about the timethe fact took place ”, Had the learned Election Judge not misdirectedhimself by holding that this document was sent on the 18th or 19th ofMarch 1965, he could not have reasonably held that it is admissibleunder section 157 of the Evidence Ordinance. Had this document beenrejected, constable Wijeratne would not have been in a position to giveoral evidence since he admitted that without reference to that documenthe would not bo in a position to give evidence of the Bpeech made byMr. Jayatilleke.
It was not contended either in the Election Court or in this Court thatthis document is admissible under section 35 of the Evidence Ordinance.Section 35 of the Evidence Ordinance enacts : “ An entry in anypublic or official book, register, or record, stating a fact in issue or arelevant fact made by a public servant in the discharge of his officialduty ” is a relevant fact. In Ilangaratne v. de Silva 1 it was held thatreports of speeches taken from notes made by police officers in thedischarge of their official duties are admissible under this section. Butin order that they may become admissible that report must be arecord made by a public servant in the discharge of his official duties.On the facts proved in this case the petitioner has not shown thatPI was a report made by a public servant in the discharge of hisduties. In my view PI is a belated report. Taking all the surroundingcircumstances no circumspect Judge can reasonably hold that it wasthe official record made by a public servant in the discharge of his duties.If reports of this type are admitted in evidence, any designing individualcould bribe a constable and induce him to send a false report of an allegedspeech which was never made and unseat a person who has been sentto Parliament by the electorate. Belated reports do not come under
1 [1948) 49 N. L. B. 169.
TAMBIAH, J.—Subannght v. Jayalath
141
the provisions of this section (vide Doe v. Bray 1; Sarkar on Evidence,10th Edition, p. 392).
Counsel for the petitioner respondent did not make an applicationto send this case for retrial on the issue as to whether a false statementalleged to contain in PI was made by Jayatilleke, the alleged agent ofthe appellant. Even if such an application has been made, I do notthink that it is fit case to bo sent for retrial, particularly after the pinchof the case has been ascertained. Such a course will enable gaps to befilled in by fabricated evidence. The burden was on the petitioner toprove his case beyond reasonable doubt and he has failed to do so andthe benefit of the doubt should be given to the appellant. Therefore,the petitioner has failed to prove the alleged false statement containedin document PI, which is a gist of the evidence given by police constableWijeratne.
These are the three grounds on which the learned Election Judgeunseated the appellant. For the reasons given the judgment of theelarned Election Judge cannot be upheld.
Counsel for the appellant also urged that there had been no fairtrial in this case. He stated that the learned Judge had put a large numberof questions and showed bias or prejudice in favour of the petitioner atevery stage of the proceedings. Although Counsel for the appellantprepared a document containing statistics of the number of questionsput by Counsel on both sides and the learned Election Judge to eachof the witnesses, he has not attempted to show that the learned Judgewas biased in favour of the petitioner.
Section 165 of the Evidence Ordinance gives ample latitude to aJudge to put any questions, at any time, and in any form, whetherrelevant or irrelevant to a witness. He may order the production ofany document or things “ in order to discover or obtain proper proof ofrelevant facts ”. The fact that he is allowed to put irrelevant questionsshows that his powers are not confined to put relevant questions.Section 167 of the Evidence Ordinance enacts :
“ The improper admission or rejection of evidence shall not beground of itself for a new trial or reversal of any decisions in any case,if it shall appear to the court before which such objection is raisedthat, independently of the evidence objected to and admitted, therewas sufficient evidence to justify the decision, or that, if the rejectedevidence had been received, it ought not to have varied the decision.”
» 8 B. d.- C. 830.
TAMBIAH, J.—Subaringhe v. Jayalath
U3.The power of a Judge to ask questions from witnesses is circumscribedby well known rules. The limits within which a Judge may question awitness in the course of a trial are set out in various commentaries anddecisions of courts. In interpreting the provisions of the Indian EvidenceAct which corresponds to section 165 of the Evidence Ordinance. Sarkarin his well known commentary on the law of Evidence says : " Althoughthe section appears to give the Judge somewhat wider latitude thansimilar powers of the English law, the provisions of this section are insubstantial agreement with that law.” The purposes for which a Judgemay ask questions from a witness are set out succinctly by Denning L. J.in Jones v. National Coal Board,1. He said:“ The Judge’s part in
all this is to hearken to the evidence, only himself asking questions ofwitnesses when it is necessary to clear up any point that had beenoverlooked or left obscure; to see that the advocates behavedthemselves seemingly and keep the rules laid dawn by law ; to excludeirrelevancies and discharge repetitions ; to make by wise interventionthat he follows the points that advocates are making and can assesstheir worth; and at the end to make up his mind where the truthlies. If he goes beyond this he drops the mantle of a judge and assumesthe role of an advocate ; and the change does not bocome him well.’’Lord Bacon spoke right when he said : “ Patience and gravity of hearingis an essential part of justice ; and an overspeaking Judge is no well tunedcymbal.” Such are our standards. They are set so high that we cannothope to attain them all the time. In the very pursuit of justice ourkeenness may outrun our sureness and we may trip and fall.
Counsel for the appellant has not shown in his submissions that thelearned Election Judge had overstepped the limits of judicial discretionset out by Lord Denning and has tripped and fallen. Counsel for theappellant admitted that the learned Election Judge put various questionsto the witnesses to ascertain the truth and was therefore actuated by tl ebest of motives.
In view of the misdirections of the learned Judge in admitting PI andacting on the evidence of Police Constable Wijeratne. his strictures onthe appellant were not justified. For these reasons we allowed the appealand I agree with the order made by my brother H. N. G. Fernando, J.
Abeyesundere, J.—I agree.
Appeal allowed.
1 (1957) 2 A. E. R. 159.