WIJAYAXILAKJE, J—Thirunavatcarasu v. H'hurairalnam
1971Present : Wijayatilake, J.
A. THIRUNAVAICAKASU, Petitioner, and K. THURAIRATNAMand 2 others, Respondents
Election Petition No. 5 of 1070—Electoral District No. S2 (Point Pedro)
Parliamentary election—Election petition—Police reports oj ail election meeting—Whether Court can compel issue of certified copies—Evidence Ordinance, ss. 31.133, Ho (J)—Public Documents Ordinance (Cap. hi)—Civil Courts (SpecialProvisions) Act No. 13 of 1001, s. 3—Ceylon (Parliamentary Elections) Orderin Council (Cap. 3S1), s. 7S (J).
In an election petition filed under tho Ceylon (Parliamentary Elections)Order in Council, the petitioner is not entitled to obtain from tho Court udirective to the Inspector-General of X-'olice to furnish him with certified copiesof the police reports of an election- meeting, if the object of tho petitioner’sapplication for the certified copies is to contradict, under section 145 (1) of theEvidence Ordinance, n witness who had mado the reports.
INTERLOCUTORY order in Election Petition No. 5 of 1970—Electoral District No. 82 (Point Pedro).
K. C. Nadarajah, with M. Si-vasilhamparam, H. L. de. Silva, C. MotilalNehru, A. Sivanandan and G. G. Ponnambalam (Jnr.), for the petitioner.
N.Satyendra, for tire 1st respondent.
S. C. Chandrahasan, for the 2nd respondent.
Cur. ctdv. vult.
March 20, 1971. Wijayatilake, J.—
The Proctor for the Petitioner by his motion dated 14th March, 1971,has, inter alia, moved for a directive to the Inspector-General of Police,to furnish him with certified copies of the reports of an election meetingheld in support of the first Respondent at Customs Beach, Velvettituraiheld on 9th May, 1970. In this connection he has drawn my attentionto witness No. 1, S. Pasenthiran, P.C. 2139, in the list of witnesses filedby' the first Respondent. It- would appear that it is this witness who hadmade a report of the proceedings of the meeting held on 9th May', 1970,referred to above.
Learned Counsel for the Petitioner submits that the object of hisapplication is to discredit thi3 witness under Section 145 (1) of theEvidence Ordinance, and that application is therefore made under the
WIJAYATILAKK, J.—Th iruna valarasu v. Thurairalnam
provisions of Public Documents Ordinance (Chapter 15). He furtherrelies on the Civil Courts (Special Provisions) Act, Ho. 43 of 1961 andthe judgment of Basnayakc C.J. in the Ileuahcla Election Petitioncase1, and the order made bj' Siriruane J. in the Attanagalla ElectionPetition Case (Election Petition No. 37 of 1965).
Learned Counsel for the respondent submits that under our ElectionLaw there is no provision to permit copies of Police reports of electionmeetings. He has drawn niv attention as for the procedure in Englandto .Rogers on Elections—Volume II—20th Edition—Page 203, accordingto which there is no power to order inspection and discovery ofdocuments. See also Simonds—Volume 14—Page 2S0. Section 78 (3)of the Ceylon (Parliamentary Elections) Order in .Council provides thatthe Election Judge shall have the same powers, jurisdiction andauthority as are possessed and exercised by the Judge of a District-Court in the trial of a civil action for the purpose of summoning orcompelling the attendance of witnesses at the trial of an electionpetition. Mr. Satyendra further submits that unlike in the AttanagallaElection Petition Case referred to. above, in the instant case, thepetitioner has failed to list the Inspector-General of Police to produce thePolice reports in question. Furthermore, .he submits that the motion isfar too belated as this petition was filed as far back as ISth June, 1970.Counsel for the petitioner relies strongly on the order made bySirimane J. in the Attanagalla Election Petition but he concedes that alist, of witnesses was filed in that case and on the motion to producecertain Police reports the learned Judge granted the application withoutgiving any reasons as apparently there was no objection.
I am unable to agree with the submission made by Counsel that this •motion can be allowed under Section 2 of the Civil Courts (Special Provi-sions) Act, No. 43 of 1961, as in the instant case we are not concerned witha complaint or a statement made to a Police Officer. A report of aspeech at an election meeting would clearly not come into that- category.
In the Hewaheta Election Case Basnayakc, C.J. dealt with theproduction of a Police record under Section 123 of the EvidenceOrdinance. In a more recent case, the Rattota Election Petition 2—69 N.L.R. page 361—H. N. G. Fernando, C.J., held that even the originalrecord of an election meeting was not admissible under Section 35 ofthe Evidence Ordinance in proof of any statement mentioned in thereports. In my view this decision appears to be more in point in thecontext of the present application.
(1964) 66 iV. L. Z. 97.
(1966) 69 2f. L. It. 361.
AVIJAYATIL.AICE, J.—Thirunavokarcsti v. Thurairalnam
T}ie object of the motion being to discredit a w itness under Section145, in any event this application would not arise at this stage. Imight also mention that the first Respondent has noticed the A.S.P.to produce the Meeting report Information Book and it is available inCourt.
I am also inclined to agree ■with Mr. Satyendra that in electionproceedings it is incumbent on the petitioner to take all steps which arewithin his power with expedition to enable the respondent- to meet theallegations set out in the petition and it would be highly unsatisfactoryto wait till the trial commences to take the respondent by surprisewhen no reason whatever has been advanced for the delay.
I would accordingly refuse the motion.
A. THIRUNAVAKARASU, Petitioner, and K. THURAIRATNAM and 2 others, Respondents