WINDHAM J.—In re James Appuhamy.
1948Present : Windham J.
In re JAMES APPUHAMY,
In the matter of a notice issued on W. L. James Appuhamy to
SHOW CAUSE WHY HE SHOULD NOT BE REPORTED TO HlS ECCELLENCY
the Governor-General under Section 82 (2) of theCeylon (Parliamentary Elections) Order inCouncil, 1946.
Election Petition Nos. 4 and 5 (Kandy) of 1947
Election petition—Witness found guilty of corrupt practice—Opportunity of callingevidence—Report to Governor-Oeneral—Sections 81 and 82 (2)—Ceylon (Parlia-mentary Elections) Order in Council, 1946.
A person who has, in the course of an inquiry into an election petition, beenfound guilty of a corrupt practice is entitled to call evidence to show why heshould not be reported under section 82 (2) of the Order in Council. Thisevidence may be called even after the Court has given its judgment andcertificate under section 81.
Saravanamuttu v. de Silva (1942) 43 N. L. R. 243, dissented from.
/^RJDER made concerning a person on whom notice was issuedto show cause why he should not be reported under Section 82 (2)- of the Cejdon (Parliamentary Elections) Order in Council, 1946.
G. Wick^e-.nanayake, for W. L. James Appuhamy.
Alan Rose, K. C., Attorney-General, with M. Tiruchelvatn, Crown
Counsel, as amicus curiae on notice.
Cur. adv. vult.
April 23, 1948. Windham J.—
The applicant, W. L. James Appuhamy, was found to havecommitted a corrupt practice by the judgment of this Court datedFebruary 24, 1948, in the Kandy Election Petition, namely that uponAugust 11, 1947, , he, being an agent of George E. de Silva, acandidate for election, paid a bribe to one D. S. Abeyesekere withthe object of inducing him to procure the return of the said
1 (1909) A. C. 253, at 258.8 (1918) 20 N. L. R. 411.
3 (1917) 19 N. L. R. 403.
WINDHAM J.—In re James Appuhamy.
George E. de Silva. The applicant, who was not a party to the petition,gave evidence during the trial, but he was not before the deliveryof the judgment given an opportunity of calling evidence to showwhy he should not be reported, as provided for by section 82 (2) ofthe Ceylon (Parliamentary Elections) Order in Council, 1946. Hehas accordingly been given such an opportunity now, and has calledsuch evidence.
The Attorney-General, who has kindly given the Court theassistance of his views on the matter, does not dispute the contentionof Counsel for the applicant, namely, that section 82 (2) of the Ceylon(Parliamentary Elections) Order in Council, 1946, is sufficiently widein its terms to allow of the applicant’s calling evidence to show whyhe should not be reported, even after the Court has given its judgmentand certificate under Section 81. Obviously, by far the moresatisfactory course would be to give an applicant such an opportunitybefore judgment, for the reasons which I gave in my ruling deliveredduring the course of this same petition (Ilangaratne v. G. E. deSilva1), in considering the application of another person against whoma corrupt practice was alleged, namely, Mr. Fred de Silva. And ina case where an election had been declared void solely on the groundof a corrupt practice having been committed by the applicant, it wouldcertainly be most illogical, and most unsatisfactory to the respondentin the petition, to allow the applicant, after the declaration, to callevidence to show that he had not committed the corrupt practice. Inthe present case, however, the election was declared void on othergrounds also, and accordingly the course that has been adopted,though still illogical, does not affect the respondent in the petitionnor the validity of the election; and the illogicality is preferable tothe injustice which would result to the applicant if he were againdeprived of the opportunity of exercising his rights under section82 (2). To this extent I would qualify my earlier observations in theruling to which I have referred, and would respectfully dissent fromsuch similar observations as were made by de Kretser J. inSaravanamuttu v. Joseph de Silva2.
I now turn to the merits of this application. The applicant, whogave evidence in the petition denying the act of bribery allegedagainst him, has now called two witnesses, both Buddhist priests,who have testified that, during the whole of the evening when theact of bribery was alleged to have taken place at the house of
S. Abeysekere, namely, upon August II, 1947, they were chanting apirith in the applicant’s house, in the presence of the applicant, inconnection with two of the latter’s children who were lying ill there.One of these witnesses produced his diary, containing an entry underthe date, August 11, 1947, corroborating that upon that date he andhis fellow priests had chanted a pirith at the applicant’s house. Anunsatisfactory feature of the applicant’s having been enabled to callthese witnesses after the close of the election petition has been thatthere was no respondent or other party interested to cross-examinethem—a circumstance distinctly fortunate for the applicant. In the1 (1947) 49 N. L. R. 87.* (1942) 43 N. L. R. 243.
BASNAYAKE J.—Fernando v. Nesadurai.
result, I am unable to say that I disbelieve their unchallengedevidence, which affords the applicant the alibi which he seeks. Inbrief, while upon all the evidence adduced in the election petitionI was satisfied beyond a reasonable doubt that the applicant hadcommitted the act of bribery complained of, I cannot, in the light ofthe further evidence adduced in this application, hold that I amsatisfied. The applicant has accordingly shown sufficient cause, undersection 82 (2) of the Ceylon (Parliamentary Elections) Order inCouncil, 1946, why he should not be reported to the Governor-General under section 81 (1), and he will not therefore be reported.
Witness not to be reported.
In re JAMES APPUHAMY