134-NLR-NLR-V-50-ALUWIHARE-PEtitioner-and-NANAYAKKARA-Respondent.pdf
BA6NAYAKE J.—Alawihare v. Nanayakkara
529
1948Present,: Basnayake J.
AETJWIHARE, Petitioner, and, NANAYAKKABA, Respondent
In nnc Matter of an Election Petition presented by BernardHerbert Aluwihakb of No. 8, Melbourne Avenue, Bambala-fitiya, to have the Election of Vitanage Ttjrgin Nanayakkatuto represent the Electoral District of Matale (No. 20)DECLARED VOID. PETITION No. 14 OF 1947.
Election petition—Burden of proof—Standard of criminal case required—
Two motives existing—Legitimate one to be preferred—Treating—-j:Providing refreshment—Purpose of influencing votes—Name and
address of printer—Printing Presses Ordinance—Mens rea—Elections
Order in Council—Section 58 (1) (e).
Held (i) The standard of proof required of a petitioner at an electioninquiry must be higher than required in a civil ease and not lower thanthat required in the case of a criminal charge. Where, therefore, twomotives exist, one being pure and the other corrupt, that which is infavour of innocence should be preferred.
On a charge of treating, the providing of drink or refreshmentdoes not come within the ambit of the law unless the giver gives corruptlyto any person for the purpose of corruptly influencing him to vote orrefrain from voting.
Section 58 (1) (c) of the Elections Order in Council should beread in conjunction with the Printing Presses Ordinance. The namerequired by the section is therefore the true name in full and the addressmeans the number of the premises where the press is, the name ornumber of the street and the name of the place where the street issituate.
It is not necessary that mens rea should be proved in a chargeunder section 58 (1) (c). Perera v. Jayewardene (1948) 49 N. L. B. 241dissented from.
To establish a charge of distributing a handbill there must beevidence that the parson against whom the offence is alleged dividedor dealt out copies of it amongst a number of persons.
T
A HIS was an election petition presented against the return of therespondent as member for the electoral district of Matale.
S. Nadesan, with A. H. C. de Silva, T. B. Dissarmyake, George Samara-wickreme and M. A. M. Hussein, for the petitioner.
C. S. B. Kumarakulasinghe, with N. M. de Silva,T. W. Rajaratnam, for the respondent.
A. B. Perera and
Cur. adv. wit.
November 29, 1948. Basnayake J.—
On October 11, 1947, the petitioner, Bernard Herbert Aluwihare,presented a petition to the Supreme Court under section 79 of the Ceylon(Parliamentary Elections) Order in Council, 1946 (hereinafter referredto as the Elections Order), wherein he asks that the election of therespondent, Vitanage Turgin Nanayakkara, at a poll held on September 20)
23—L.
1——J. N. A 91232-1,044 (0/49)
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BASNAYAKB J.—AXuunhare v. Nanayakkara
1947, to represent the electoral district oi Matale in Parliament be setaside on the following grounds set out in paragraphs 4, 5, 6, 7 and 8 ofthe petition :—
“ that the respondent, himself, his agents and others on hisbehalf with his knowledge or consent before and during the saidelection committed the corrupt practice of bribery.
“ that the respondent was guilty of the offence of treating inthat he himself, his agents and others on his behalf with his knowledgeor consent directly or indirectly gave or provided or caused to begiven or provided meat, drink, refreshment and provisions to votersand other persons for the purpose of corruptly influencing voters tovote for the respondent at the said election.
“ that the corrupt practice of abetting the commission of theoffence of personation was committed by the respondent or withhis knowledge or consent or by agents of the respondent.
“that the respondent or his agents or others on his behalfwith his knowledge or consent made or published before and duringthe said election for the purpose of affecting the return of 33. H. Alu-wihare the petitioner, a candidate at the said election, false statementsof fact in relation to the personal character or conduct of the saidB. H. Aluwihare.
“ that the respondent or his agents or others on his behalf withhis knowledge or consent distributed handbills, placards or postersreferring to the said election which did not bear upon its face the namesand addresses of its printer and publisher and thereby committed acorrupt practice under Article 58 (1) (d) [sic] of the Ceylon (Parlia-mentary Elections) Order in Council.”
By his petition dated November 11, 1947, the petitioner moved undersection 83 (2) of the Elections Order for leave to amend his petition bythe addition of the following two further grounds :—
“ 5a. Your petitioner further states that the respondent whowas his own election agent is guilty of an illegal practice in that hehas made a false return and declaration respecting election expenseswhereby his return as a member has been and is null and void.
“ 5b. Your petitioner further states that an illegal practice wascommitted by the respondent, his agents or other persons on hisbehalf with his knowledge or consent in that not being the electionagent of the respondent they made payment of expenditure incurredon account of and in respect of the conduct or management of thesaid election of the respondent in contravention of Article 62 of theCeylon (Parliamentary Elections) Order in Council, 1946.”
This application was allowed by my brother Nagalingam on November12, 1947.
On October 31,1947, the respondent, under rule 5 of the ParliamentaryElection Petition Buies, 1946, made application for the following parti-culars :—
“1. The names of all persons alleged in paragraph (4) of thepetition who were bribed and by whom and through whom they were
BASNAYAJtE J.—A.luvrihare v. Nanayakkara
631
bribed with the address and electoral number, if on the register, theoccupation of each person bribing or bribed, the time or times where,when and the place or places where each act of bribery is alleged tohave been committed, and the nature, amount and value of the bribe.
“ 2. The names of all persons alleged in paragraph (6) to havebeen treated or influenced or sought to have been influenced and bywhom or through whom with the address and number, if any, on theelectoral register of each and if not on the register the occupation andaddress of each of the same respectively, the times or time when andthe place or places where each act of treating is alleged to have beencommitted, the nature, amount and value thereof.,
“ 3. The respects in which the Respondent by himself or his Agentscontravened the regulations regarding the corrupt practice of person-ation alleged in paragraph (6) of the Petition giving the names andaddresses of all persons who committed personation and how andin what way the Respondent by himself or his Agents abetted thecommission of the offence of personation, the name, address and numberon the register of each voter personated and the names, addresses,occupations and electoral number of any of the Agents abetting thesaid offence of personation, and the place or places where each actof personation is alleged to have taken place and the nature and characterthereof and the polling station or polling stations at which the allegedoffence was committed:
“ 4.(a) The dates and times when and places where the false
statements of fact alleged in paragraph (7) of the petition were made ;the names, addresses and occupations of the Agents of the Respondentand electoral number if any of the Agents, and of the other personson Respondent’s behalf who made and published the false statementsof fact alleged in paragraph (7) of the petition.
(6) The manner or mode in which the false statements of factalleged in paragraph (7) were made and published, stating whetherthey were oral or in writing, and if in writing the name of the writeror printer ; the number of publications with the names of personsmaking each separate publication and if in writing the contents thereof.
In what manner and to what extent was the return of the peti-tioner affected or sought to be affected by the publication of the falsestatements alleged in paragraph (7) of the Petition.
“ 5.(a) The dates and times when and the places where every
handbill, placard or poster alleged in paragraph (8) of the Petitionwere distributed; the names, addresses and occupations of the Agentsand electoral number if any of the Agents of the Respondent andof the other persons on Respondent’s behalf who distributed thehandbills, placards or posters alleged in paragraph (8) of the petition.
(6) The manner Qr mode in which the handbills, placards or postersalleged in paragraph (8) of the petition were distributed ; the numberof such handbills, placards or posters and the contents of each andeveryone of such handbills, placards or posters alleged in paragraph (8)of the Petition.
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BASNAYAKE J.—Aluwihare v. Nanaya1tka.ro,
(c) The respects in which the Respondent by himself or his Agentsor others on his behalf contravened Articles 58 (1) (d) alleged in para-graph (8) of the Petition.
“6. In regard to all charges set out in the petition particulars ofall documents relied on by the Petitioner.”
On November 20, 1947, the application for particulars came up forconsideration by my brother Nagalingam and the parties came to anagreement the record of which reads :
“ It is agreed between parties that the following particulars shouldbe furnished :
Particulars called for paragraph (1).
Paragraph (2) except the amount and value of the treating.
Paragraph (3).
Paragraph (4a) except “ Times ”.
Paragraph (46) except the particulars required in the last
sentence of the paragraph.
Paragraph (5a) except the dates and times.
Particulars called for in paragraphs (4c), (56), (5c) and 6 will not befurnished.”
The Court ordered that the particulars which the petitioner agreedto furnish should be supplied “ 10 days before the date of trial exclusiveof the date of filing of the particulars and the date of trial and of allSundays.”
A further application for the following particulars in regard to charges5A and 5B of the amended petition was made on September 14, 1948.
”1. In what respect or respects the return of election expensesfiled by the Respondent is false.
” 2. The respect or respects in which the Respondent by himselfor his agents or other persons on his behalf with his knowledge orconsent contravened article 62 of the Ceylon (Parliamentary Elections)Order in Council, giving the names and addresses of all persons whocontravened the aforesaid article 62 and the names and addresses ofthe persons to whom payment was made on account of and in respectof the conduct or management of the said election and the dates,times and places of the alleged act of payment.”
This application came up for consideration before me on September 17,1948, and the petitioner was ordered to furnish all the particulars thenin his possession. He agreed to do so and took time till September 20,1948, the date fixed for the trial of the petition, on which date certainparticulars were furnished.
Before I proceed to deal with the specific grounds on which it is soughtto have the election set aside, I shall consider the question of the onus ofproof and the standard of proof in regard to charges made in an electionpetition. Section 77 of the Elections Order states that the election ofa candidate as a Member shall be declared to' be void on an electionpetition on any of the grounds specified therein which may be provedto the satisfaction of the election judge. It is clear therefore that the sectionimposes the onus of proof on the petitioner, who must establish each of
BASNAYATCE J.—Aluwihare v. Nanay akfcara
533
the grounds on which he relies. Where a petitioner succeeds in provingany of the grounds specified in section 77 of the Elections Order the res-pondent’s election is declared void, and in a case where a corrupt or illegalpractice is proved to have been committed by the respondent’s agentswith his knowledge and consent and certified by the election.judge therespondent is subject to the same incapacity that results in a convictionof an offence falling vrnder the category of corrupt or illegal practice.A successful election petition carries with it severe penalties not onlyto the respondent himself but also to other persons who have been provedat the trial to have been guilty of any corrupt or illegal practice. Thestandard of proof required of a petitioner must therefore be higherthan that required in a civil case, where a party must prove his caseby a preponderance of evidence, and not lower than that required inthe case of a criminal charge, viz., proof beyond reasonable doubt. Ina wide range of cases which are strictly not criminal the standard ofproof is the same as for a criminal case. In the case of State of NewYork v. Philli-ps 1, the Privy Council held that, in an action for damagesfor conspiracy to defraud, proof beyond reasonable doubt was required.In the case of Churchman v. Churchman 2, Lord Merriman expressed theopinion : “ The same strict proof is required in the case of a matrimonialoffence as is required in connection with criminal offences properly socalled.” The trend of judicial opinion is that where allegations ofoffences statutory or otherwise which carry with them severe penaltiesare made in proceedings which are strictly not criminal, the standard ofproof of those allegations is the same as in a criminal case. This isa principle which in my view should be applied to proceedings on anelection petition. A petitioner should therefore prove the charges hemakes beyond reasonable doubt. A similar view appears to have beentaken in the ca e of K. Y. Krishnaswami Nayakar v. A. RamaswamiMudaliyar and C. Muthiah Mudaliyar 3 and the Londonderry Case 4.
Bribery.—I now come to the charges. The first is the charge of bribery.Although particulars of thirteen acts of bribery had been furnished thepetitioner’s counsel in his opening address indicated that he wouldconfine himself to only three of them. But evidence was offered onlyin regard to one of the alleged offences of bribery. The particularsfurnished in regard to that act are as follows :—
“ A contribution of Rupees Three Hundred and Thirty three andcents seventy to the fares and expenses of the travel to see the Buddhistrelics in Colombo being part of a sum paid by Mr. Nanayakkara onaccount of the Railway fares in respect of the said journey—a nettcontribution of cents 40 to the expenses of each person.”
The allegation is that the act of bribery was committed by the re-spondent on March 28, 1947, at the Office of the General Manager, CeylonGovernment Railway, and on April 4, 1947, at about 6 a.m. at MataleRailway Station by giving railway tickets.
The evidence on this charge is that the respondent interviewed theRailway Accountant, one Babapulle, and made arrangements for a
(1939) 3 D. L. R. 433.3 Hammond’s Election Cases, 307 at 310.
(1945) 2 AU E. R. 190.* 1 O’M. and H. 274 at 279.
!•J. X. A 91232 (9749)
534
BASIN'AY ATCE J.—A.luwihare- v. Nanayakkara
special train to convey Buddhist pilgrims from Matale to Colombo andback to enable them to worship the Sanchi relies. On March 28, 1947, therespondent paid at the Railway Accountant’s Office at Colombo, a sumof Rs. 3,917-50, the value of 625 tickets, being the minimum requiredfor a special train. A special train with accommodation for about 1,000third-class passengers was accordingly arranged by the Railway. Itwas stipulated that any passengers over and above the minimum of 625will have to be paid for attherateof Rs.4*90perpassenger. In consequenceof the large number of pilgrims wishing to take advantage of the specialtrain, a further sum of Rs. 2,741*55 was paid in at the booking office atthe Matale Station for tickets over and above the minimum number.The train was fitted with equipment for broadcasting, the microphonebeing in the Guard’s van. Pirith, bana, and talks on moral subjects,were through this medium conveyed to the passengers. The respondenthimself travelled in the train and made himself generally useful bothduring the journey and after the train reached Colombo. The trainwas extremely overcrowded when it left Matale and till it reached Kandythe pilgrims were greatly inconvenienced. At Kandy the respondentpersuaded the railway officials there to add two railway carriages.
The pilgrims were not exclusively from the respondent’s electorate,nor were they confined to those who supported the respondent. Prior toentraining the majority of the pilgrims assembled at Vijaya College, ofwhich institution the respondent was Principal.
In connexion with the pilgrimage a hand bill (R2) giving useful infor-mation to those wanting to take advantage of the opportunity of goingby the special train was published on March 29, 1947, under the names ofN. G. Fonseka, M. B. W. Ellepola, and G. Arlis de Silva. It gives thedate and time of departure of the pilgrim train, viz., 7 p.m. from Mataleon April 4, 1947. It also states the hours during which the relic chamberwould be open for the benefit of the pilgrims from Matale, viz., from4 a.m. to 8 a.m. on April 5, 1947. It also provides information as tothe fare each pilgrim has to pay, viz., Rs. 5*75 each. The pilgrims wereasked to bring young coconuts, oranges, &c., to be served as refreshmentsat Colombo to pilgrims from elsewhere, and they were also advised tobring refreshments for their own use. At the same time they wereinformed that the Maha Bodhi Society would also supply food and teaat reasonable rates. The notice also stated that there would be specialreservation in the train for bhikkhus. The pilgrims were required tomake their reservations by 4 p.m. on April 3, 1947. Accommodationwas not guaranteed to those who failed to book in time. All paymentshad to be made to one V. P. H. Appuhamy and a receipt obtained therefor.
Apart from K. Navaratnam, the official from the General Manager’sOffice, who spoke to the fact that it was the respondent who made thearrangements for the special train and made the initial minimum payment,a fact which is admitted by the respondent himself, the following witnesseswere called in support of the charge :—
TJkku Banda Senanayake,
Yapa Mudiyanselage Abeykoon,
Selliah Pakiasothy, and
Wilson Hendeniya.
RASWAYAKE J.—AXuwihara v. Nanayakhara
535
Ukku Banda Senanayake, who supported the petitioner at the election,said that he was one of the pilgrims in the pilgrim train. He paidRs. 5 *75 as his fare, and made use of the opportunity of seeing the relics.He stated that he was obliged to no one for it as he paid for the journey.The witness Abeykoon also travelled by the same train paying theprescribed fare. He was also a supporter of the petitioner. Hendeniya,the other witness, was also a pilgrim. He too was a supporter of thepetitioner, and like the others paid his fare. It was also sought to estab-lish by the evidence of these witnesses that the respondent made useof the occasion for election propaganda on his behalf. Senanayakegave no evidence on the point beyond saying that he heard songs throughthe sound amplifiers. But Abeykoon said that he heard someonerepeatedly say “ Mr. Nanayakkara had taken lot of trouble in makingthis arrangement and when the occasion arises to be grateful to him.”According to this witness “ It was a case of repetition of the good workdone by Mr. Nanayakkara.” Apart from that he says he heard music.Hendeniya says he heard the following statement made by the respondent:“ Such services were not rendered for Matale poor people. ExceptMr. Nanayakkara, teacher at Vijaya College, no one has done such athing. Today or later on if I ask for a favour from you with regard topolitical matters, you must render that help to me.” In cross-examina-tion he said that apart from this statement which was repeated a numberof times, he heard baila songs at which he was annoyed, but he waspowerless to do anything about it. Pirith, he said, was chanted onlyfor a short time.
Selliah Pakiasothy, the radio technician, supplied and fitted, and wasresponsible for the working of, the sound equipment in the train for afee of Rs. 200. He says that the respondent speaking through themicrophone first referred to the difficulty of accommodating the peoplein the different compartments, and promised to give them extra compart-ments at the Kandy Railway Station. He also says that one Ellepola,a teacher at Vijaya College, also spoke through the microphone, andrepeatedly said : “ Mr. Nanayakkara was trying his level best to makethis arrangement for the public of Matale to see the Sanchi Relics con-veniently and there was no other who did such a thing in Matale, andthat if at any time Mr. Nanayakkara required their services they shouldhelp him in return.” This witness, who was in the best position to knowwhat was going on at the microphone, says that pirith was broadcastthrough records, that bana was preached, and that there was a talkagainst beef-eating. This witness and his father were both supportersof the petitioner. In fact Pakiasothy was one of his polling agents.
The petitioner also relied on a copy of a statement of account of theexpenses, collections and disbursements in connexion with the pilgrimagewhich was attached to document P3. This statement hears the namesof M. B. W. Ellepola, N. G. Fonseka, and G. A. Arlis de Silva. It showsthat 1,100 tickets at Rs. 5-75 each were sold by V. P. H. Appuhamy andthat 57 full tickets and 37 half tickets were sold at the station, and thata sum of Rs. 333 '70 had been overspent. It also indicates that therespondent had advanced Rs. 4,000 and had been repaid Rs. 3,696 • 30,leaving a balance of Rs. 333 • 70 still due to the respondent. It appears
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BASNAYA3LE J.—A-lwioihoure v. 2sf a, nay ahkara
from the document R4 produced by the respondent that the figure ofRs. 333'70 in P3 should really he Rs. 303-70, a fact which was notseriously contested hy the petitioner.
The respondent admits the part he played in arranging the pilgrimtrain but denies that he made any contribution towards the fare of anypilgrim whatsoever. He says that Rs. 250 of the balance shown as dueto him was met by subscription among the members of the committeeset up to organize the pilgrimage and the remainder was written offhy him as irrecoverable. It should he noted that although the actualtrain fare was Rs. 4-90 the pilgrims were charged Rs. 5.75, the extraamount being for incidental expenses. The pilgrims therefore had topay for all the benefits they enjoyed.
It was contended on behalf of the petitioner that these facts coupledwith the fact that the respondent had on September 5, 1946, announcedin the Ceylon Daily News his candidature for the Matale electoral district,amount to the corrupt practice of bribery within the scope of that expres-sion as used in section 57 of the Elections Order.
The charge is that the respondent contributed 40 cents towards thefare of each pilgrim. It is not clear how this figure is arrived at. Ifthe amount shown in the published statement as the balance due tothe respondent in connexion with the pilgrimage is divided by thenumber of pilgrims a much lower figure is the result. Apart from thatthere is no accurate record of those who actually travelled in that train.The rush was so great that some who paid their fares could not getaccommodation while others who had not, forced themselves in.
There can be no doubt that when the respondent went to the troubleof arranging the special train for pilgrims, he was not unmindful of thefact that it would make him popular among the Buddhist inhabitantsof the district. It appears from the respondent’s evidence that for sometime past he had been taking a leading part in such Buddhist religiousactivities as would win him public favour and popularity. In 1941 hearranged for the sacred crystal to be taken to Matale. In 1943 he tooka prominent part in arranging for a sessions of the Buddhist Congress tobe held at Matale. In 1946 he organized an almsgiving for 1,700 bhik-kus and the next big undertaking was the pilgrim train.
The respondent’s previous activities show that the part played byhim in arranging the pilgrim train was not anything unusual in his case.He had for several years, in his capacity as Principal of the leadingBuddhist School in Matale, played a leading role in the Buddhist activi-ties of the place. Even if he did so with an eye to popularity it cannotbe said that these activites including the arrangement of the pilgrimtrain bring him within the ambit of section 57 of the Elections Order.I think Baron Bramwell’s remarks in the Windsor case 1 truly expressthe position of persons such as the respondent.
“ But there is no harm in it if a man has a legitimate motive fordoing a thing, although in addition to that he has a motive which,if it stood alone, would be an illegitimate one. He is not to refrainfrom doing that which he might legitimately have done on account1 2 O’M. and H. 88 at 90.
BASNAYAKK J.—Aluurihare o. Nanayakkara.
537
of the exstence of this motive, which by itself would have been anillegitimate motive. If the Respondent had not been an intendingcandidate for the borough, and yet had done as he has done in respectof these gifts, there would have been nothing illegal in what he did,and the fact that he did intend to represent Windsor and thought goodwould be done to him and that he would gain popularity by this doesnot make that corrupt which otherwise would not be corrupt at all.”
In the Boston case1 Justice Grove expressed very muoh the samesentiments in slightly different language. He says :
“ We know, for instance, that persons looking forward to be candi-dates for Parliament are generally pretty liberal to the charities inthe district, and such liberality, so far as I am aware, has never beenheld to vitiate the election ; I suppose upon the grounds that suchpersons do not select voters, as contradistinguished from non-voters,as the object of their charity, that the object itself is good, and thatalthough the donors may, in so bestowing their charity, look to theirpersonal interests and personal ambition, still a man is not to beinjured in an object of personal ambition merely because he does good,which perhaps without that stimulus he might not have been inducedto do.”
I am not unmindful of the fact that Baron Pollock says in the Salisbury'case 2 that he is not prepared to go so far as Lord Bramwell in the Windsor-case (supra). Baron Pollock says :
“ I should rather prefer, myself, to say we must take the wholeof the evidence into consideration, and consider whether the govern-ing principle in the mind of the man who gave away such gifts was,that he was doing something with a view to corrupt the voters, orwhether he was doing something which was a mere act of kindness andcharity.”
Earlier in my judgment I expressed the opinion that in the trial•of an election petition the standard of proof required is the same as ina criminal case. In this view of the matter, if two motives exist, onebeing pure and the other corrupt, that which is in favour of innocenceshould be preferred. It is a principle of criminal law that any reasonabledoubt is resolved in favour of the accused person ; so, in the trial of anelection petition, any similar doubt should be resolved not in favourof the petitioner but in favour of the respondent.
Although a variety of acts are enumerated in section 57 of the ElectionsOrder as falling within the ambit of the offence of bribery, the evidenceoffered by the petitioner does not bring the respondent within any oneof the paragraphs (a) to (i) of that section. The judicial opinions Ihave quoted, especially the concluding remarks of Lord Bramwell,are I think applicable to the instant case. I hold therefore that the chargeof bribery is not proved.
Treating.—The next charge I have to consider is the charge of treating.The particulars furnished by the petitioner specify four instances oftreating. Learned counsel for the petitioner indicated in his openingaddress that he would confine himself to two of them, viz., the treatingat Juanis Baas’s house at Selagama and the treating at the Ambalamai 2 O'M. and BT. 161 at 163.a 4 O'M. & H. 21 at 28.
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J3ASNAYATCF, J.—A.Vuwihare v. Nanayakkara
at Ambanpola. In the course of the proceedings he sought to amend theparticulars in regard to the charge of treating at the Ambalama atAmbanpola by the substitution of “ Udasgiriya ” for “ AmbanpolaI refused leave to amend as in my view the proposal amounted to thesubstitution of a new charge. Evidence was therefore offered only onthe charge of treating at Juanis Baas’ s house at Selagama.
The particulars relating to the charge are, in the language of thestatement of particulars :
“ Treating with refreshments, arrack, aerated waters and breadon September 18, 1947, by V. T. Nanayakkara and J. E. Gunasena atthe house of Juanis Baas alias Juanis Appu, at Selagama.”
The following witnesses were called in support of the charge :Galapitagedera Kira alias G. K. Karunaratne,
Dematagahagedera Horatala, andArumadurayalagedera Bandiya.
Their evidence is to the effect that there was a meeting at the house ofone Juanis Baas at a village called Selagama. The gathering includedlabourers of Selagama Estate and some of the villagers of Selagama.Arrack was served to those who took liquor, and aerated water to others.Some of them say that bread and sardines were also served. The wit-nesses themselves enjoyed the hospitality of Juanis Baas. The allegationis that food and drinks were served by Comelis and Abraham, the twosons of Juanis Baas, and two others. The respondent was present andaddressed the gathering. There is no evidence whatsoever that eitherJ. E. Gunasena or the respondent was in any way responsible for thetreating. The respondent and Comelis deny that any refreshmentswhatsoever were served. Juanis Baas is a man of 82 and it is not allegedthat he was the respondent’s agent or that he took any part in the election.His house appears to have been selected as the venue for the meetingas it was situated at a spot which was convenient for both the villagers ofSelagama and the labourers of Selagama Estate.
Comelis disclaims any responsibility for the meeting. He thinks itwas his brother Abraham who brought it about. Among the 150 to 200persons who attended the meeting there were present besides the witnessesand the respondent, J. E. Gunasena who presided, Juanis Baas, Sirisenathe conductor of Selagama Estate, Ariyaratne the clerk of the estate, andone Adikanakapulle. Now, the petitioner has failed to place the evidenceof persons like Sirisena, Ariyaratne and Adikanakapulle whose evidencewould undoubtedly have helped the petitioner if the story of Karunaratne,Horatala and Bandiya were true. As the evidence stands we have on oneside the evidence of Karunaratne and the two witnesses and on theother the evidence of Comelis and the respondent. In weighing theevidence of the petitioner’s witnesses one cannot overlook the fact thatthey are closely related. In this state of the evidence there is no groundon which I can prefer the evidence given on behalf of the petitioner tothat given by the respondent and Comelis. I hold therefore that ithas not been established to my satisfaction that food and drink wereserved on the occasion in question at the house of Juanis Baas.
Even if refreshments were served by Juanis Baas at his own house,that fact by itself does not constitute the offence of treating under section
BASNAYABLE J.—Aluwihare v. Nanay akkara
539
55 of the Elections Order. In a charge of treating it is not sufficient toshow that eating and drinking took place under the eyes of the candi-date but in the words of Justice Willes “ it must be shown that theeating and drinking was supplied at the expense or upon the creditof the candidate, either by his authority or by the authority of one ormore of his agents in order to influence voters ” x. Or in the wordsof Justice Vaughan Williams in the Rochester case 3 :—
" If people are called together for the purpose of exciting theirpolitical enthusiasm, and if the so-called treating is a mere incident ofsuch a gathering, it is not an offence within the Act. It does not makeit corrupt treating that a roof or warmth is provided for the meeting,nor is it necessarily corrupt treating if the persons attending the meetingare provided with some sort of refreshment. But if they are gatheredtogether merely to gratify their appetites and so to influence theirvotes, then it is treating within the Act.”
The English cases I have cited show that the providing of drink orrefreshment does not come within the ambit of the law unless the givergives corruptly to any person for the purpose of corruptly influencinga person to vote or refrain from voting at an election.
The language and content of section 55 of the Elections Order are inthe main the same as the provisions of the corresponding English Actin force at the time Justice Willes and Justice Vaughan Williams decidedthe cases I have cited. Like the English section, our section, which isin certain respects wider than section 1 of the Corrupt and Illegal PracticesPrevention Act, 1883, 46 and 47 Viet, c 51, penalises not only the personwho corruptly gives or provides refreshment but also every electorwho corruptly accepts drink or refreshment. For that reason the evidenceof ’witnesses who say they were corruptly treated should be receivedwith the caution with which the evidence of those who confess theywere participating in an offence is generally regarded.
Both on the law and on the facts I hold that the charge of treating has notbeen 'proved.
Personation.—In regard to the charge of personation, although learnedcounsel for petitioner indicated in his opening address that he wouldlead evidence in respect of two instances of personation, he did not do so.The charge of personation must therefore be dismissed.
Publication of false statements—I shall now consider the charge ofpublication of false statements for the purpose of affecting the returnof the petitioner. In this instance too, although particulars of fouracts were given, learned counsel for the petitioner offered evidence inregard to only one of them. In the words of the statement filed by thepetitioner the particulars relating to the act in respect of which evidencewas led are as follows :
“ The Eatudeniya pamphlet by an anonymous writer publishedby K. E. James Appuhamy between 4th and 8th February, 1947, anddistributed in Matale Town, MataJe Medasiya and TJdasiya Pattus,particularly in the villages of Bandarapola, Katudeniya, Warapitiyaand Ukkuwala.”
1 Lichfield case (1869), 1 O'M. and JET. 22 at 26.
* 4 O'M. and S. 156 at 157.
540
BASNAYAJCE J.—Aluwihare v. Nanayakhara
The Katudeniya pamphlet is a document in Sinhalese. The false state-ments complained of according to the translation in the statement ofparticulars are as follows :
“ (a) What was the relief given to Matale South out of the Rs. 250,000entrusted to Mr. Aluwihare for relief in this district ?
(6) For how many of the educated youths of poor families in thisarea has he obtained employment ? Are there not four D. It. O’sfrom the Aluwihare family 1 (Meaning thereby that the petitionerneglected the unemployed youth of the constituency of Matale Southbut obtained employment for members of his own family.)”
The witnesses called in support of the charge are H. M. SamarakoneBanda, a student, Maangoda Dhammananda Thero, and M. B. Kulatunge,The evidence of the first named is that the pamphlet was distributed byone K. X). James Appuhamy (hereinafter referred to as James Appuhamy,who was a supporter of the respondent. He says that about three orfour days before February 9, 1947, when he was returning from school,James Appuhamy, who was passing in a car, slowed down his car anddropped a copy of the pamphlet (P4) on the road near Waiiyapola Estate.He picked it up and later gave it to Dhammananda Thero. James Appu-hamy denies that he ever distributed pamphlets either from a car orotherwise. I think I should also mention here that there is no evidenceas to the position of Waiiyapola Estate in relation to the places mentionedin the statement of particulars as being the places of publication of theKatudeniya pamphlet.
M.B. Kulatunge states that one day in February, 1947, on his way toTJkuwela he saw James Appuhamy hand to each of two persons namedRatnayake and Kalu Banda a copy of the pamphlet (P4), and that oninquiring from Ratnayake what it was, he handed him a copy and askedhim to read it. He read it, returned it to Ratnayake, and went hisway. Neither Ratnayake nor Kalu Banda was called to support thiswitness.
The above, in brief, is the evidence on which the petitioner seeks toprove that James Appuhamy published the Katudeniya pamphletbefore the election for the purpose of affecting his return. If Kulatungeand Samarakone Banda are speaking the truth, the acts of James Appu-hamy amount to publishing. For every person who gives or lends acopy of an offensive publication publishes itx. But section 58 (1) (d)of the Elections Order only penalises the publication of “ any false state-ment of fact in relation to the personal character or conduct ” of a candi-date. Before a person can be found guilty of an offence under thatsection there must be evidence that the statements of fact publishedare false in relation to the personal character or conduct of a candidate.There is no such evidence before me. The petitioner has not givenevidence and stated that the statements he complains of in the Katu-deniya pamphlet (P4) are false, nor has he called any other evidence toestablish the falsity of the statements therein.
Now in regard to the act of publication itself I find it difficult to preferthe evidence of Samarakone Banda to that of James Appuhamy.
1 B. v. Mary Carlile, {1819) 3 B. and Aid. 167 at 169 ; 106 E. B. 624.
BASNAYABCE J.—Alitioihare v. Nanayalekara
541
Samarakone Banda’s account of the dropping of a solitary pamphlet fromthe car seems strange. If the object was to disseminate the informationin the pamphlet one is surprised at James Appuhamy’s parsimony indropping just one leaflet in the hope that the lone wayfarer SamarakoneBanda might pick it up. Samarakone Banda did not impress me asa reliable witness, whereas James Appuhamy did. In the absence ofother evidence to support Samarakone Banda I prefer to believe JamesAppuhamy.
Now in regard to the other incident narrated by Kulatunge, theretoo it is a case of word against word. Although learned counsel announcedin his opening address that he meant to lead the evidence of Ratnayakeand KLalu Banda, the persons to whom pamphlets were given, he didnot do so. In the absence of any satisfactory explanation of the failureto call them the presumption is that had they been called their evidencewould have been unfavourable to the petitioner. That presumptionaffects Kulatunge’s evidence adversely and renders it unacceptable asagainst James Appuhamy’s denial. There is a further circumstance infavour of the respondent, and that is the absence of any evidence thatJames Appuhamy was an agent of the respondent.
I therefore hold that the charge of publishing false statements of fact inrelation to the personal character and conduct of the petitioner for the purposeof affecting his return is not proved.
Distribution of handbills without name and address of printer and pub-lisher thereon.—The last charge I have to consider is the one in which it isalleged that “ the respondent or his agent or others on Ms behalf withhis knowledge or consent distributed handbills, placards or postersreferring to the election wMch did not bear upon its face the names andaddresses of its printer and publisher ” and thereby committed a corruptpractice under section 58 (1) (c) of the Elections Order. I have assumedthat the petitioner’s reference in Ms petition to section 58 (1) (d) undertMs charge is an error for section 58 (1) (c). Here too, although parti-culars of three acts of distribution relating to three different pampMetswere originally given the evidence was confined to two of them. Theyare :
(а)Katudeniya pampMet (P4) distributed by K. D. James Appuhamy.
(б)A pampMet (P3) entitled “ An answer to c To the Electors of
Matale District ’ ” distributed by M. B. W. Ellepola.
Before I discuss the evidence I think it will be helpful if I examine thelaw relating to the charge. Section 58 (1) (c) reads :
“ Every person who—
prints, publishes, distributes or posts up or causes to be printed,published, distributed or posted up any advertisement,handbill, placard or poster wMch refers to any election andwMch does not bear upon its face the names and addressesof its printer and publisher ; ”
542
BASNAYAKE J.—Aluwihare v. Nanayakkara
First, in regard to the words “ bear upon its face the names and addressesof its printer and publisher What is the name of the printer ? Is itthe full name (forenames and surname) of the individual or legal personwho owns the press, or will his business name suffice % An examinationof our legislation in my view affords some guidance in the solution ofthese questions. The Printing Presses Ordinance (section 4 (1)) requiresthat ct every book or paper printed within this Island shall have printedlegibly on it the true name in full of the printer and (if the book or paperbe published) of the publisher and the place of publication ”. ThatOrdinance also penalises (section 4 (2) ) a person who prints or publishesany book or paper otherwise than in conformity with section 4 (1). Itgoes further, and even penalises a person who distributes or assists indistributing any book or paper whereon the particulars required by section4 (1) have not been duly printed. The Ordinance extends (section 7)the scope of the word “ book ” to include any volume, part or divisionof a volume, or any collection of printed sheets of paper or similar materialbound together, and of the word “ paper ” to include any printed sheetof paper or similar material or any unbound collection of printed sheetsof paper or similar material. Now the expressions “ book ” and “ paper ”in the Ordinance are in my view wide enough to embrace the kinds ofdocuments enumerated in section 58 (1) (c). The implied requirementof that section that the documents enumerated therein should bear thenames and addresses of the printer and publisher is therefore not newto our law. What section 58 (1) (c) of the Elections Order does is todeclare that the printing, publication, distribution, &c., of documentswhich do not contain these particulars is a corrupt practice. Thatsection should be construed consistently and in conformity with thePrinting Presses Ordinance. Section 58 (1) (c) cannot be regarded asauthorising what the Printing Presses Ordinance prohibits. The parti-culars required under the Elections Order cannot therefore be less thanthose required under the Ordinance. Although section 58 (1) (c) usesthe word “ name ” alone and not the words “ true name in full ” asin the Printing Presses Ordinance, the word “ name ” should be con-strued as meaning the “ true name in full ” in order to reconcile the twoenactments. The word “ name ” when used by itself has been construedin some of the English statutes 1 as capable of including business or tradeor partnership names. The name of the printer for the purposes ofsection 58 (1) (c) should therefore be the printer’s true name in fulland similarly the name of the publisher should be his true name in full.The expression “ true name ” means the name of baptism or registrationand the surname “ unless they have been over-ridden by the use of othernames assumed and generally accredited”2. In the case of a pressowned by an individual or individuals it is therefore not sufficient togive the business name of the owner. Similarly, in the case of a publisher
1 Graves v. Ashford, (1867) L. R. 2 C. P. 410 at 421.
Smith and Jago v. Brown, (1831) 1 Cr. and J. 542 ; 148 E. R- 1538.
Newton v. Cowie, (1827) 4 Bing. 234 ; 130 E. R. 759.
Rock v. Lazarus, (1872) L. R. 15 Eq. 104.
Edwards v. Pharmaceutical Society, (1910) 2 K. B. 766.
Cameron v. Tyler, (1899) 2 Q. B. 94.
* Sullivan v. Sullivan (otherwise Oldacre), (1818) 2 Bag. Con. 238 at 254: 161E. R. 728.
BASNA.YAKE J.—Aluwihare v. Nanayakkara
643
who has a business name, his individual name must he given. Wherethere is more than one person who owns a press the names of all theowners must be given and likewise in the case of a business owned bymore than one publisher. If the printer is a legal person, his corporatename should be given.
So much for the name. How should the address be given ? Againwe may turn to the Printing Presses Ordinance which requires anyperson who possesses a press for the publication of books or papers tofurnish a true and precise description of the place where the press issituate. Now the address which the printer should put on any paperprinted by him is that same description of the place where the press issituate. The address required is not in my view the place where theprinter resides. To satisfy the requirements of the section he must givethe number of the premises where the press is, the name or number of thestreet and the name of the place where the street is situate. Similarlythe publisher should give a true and precise description of the placefrom where he conducts his business of publisher. In a case where thepublisher resides at a place different from his place of business he neednot give the address of his residence. Where the printer and publisherare one and the same person, it should be so stated and the name andaddress given if both printing and publication are carried on at the sameaddress. Otherwise the address at which publication is made shouldbe separately stated.
The next question I wish to address my mind to is whether the merefact of printing, publishing, distributing, &c., of a handbill which doesnot contain the required particulars is an offence whatever may havebeen the mental state of the person who committed the act. My brotherWindham held in the ease of Per era v. Jayewardena 1 that mens rea wasnecessary to constitute an offence under section 58 (1) (c). With respect,I find myself unable to agree with my brother’s view. In the case ofM/uPhnsamy v. David2 I have discussed the place of mens rea in thecriminal jurisprudence of this country. I have in that case followedthe decision of Weerakoon v. Ranhamy3, a decision of four judges,wherein it has been held that “ for the doctrine of mens rea as it exists inour law, we must look exclusively to sections 69 and 72 of our own PenalCode.” The principles of English criminal law which to a certainextent had, before the enactment of the Penal Code, been importedinto the jurisprudence of Ceylon were abolished by that Code 4.
My brother has cited a number of English cases on personation insupport of his view that mens rea must be proved in a charge undersection 58 (1) (c). The offence of personation under section 54 of theElections Order, like all other offences under our law, is committed if theact of the person committing it comes within the ambit of the section whichmakes it an offence, unless the offender can bring himself within one ofthe general exceptions of the Penal Code. A person charged under
1 (1948) 49 N. L. R. 241.
» (1948) SO N. L. R. 423.
(1921) 23 AT. L. R. 33 at 42.
1 Kachcheri Mudaliyar v. Ufohomad-u, (1920) 21 N. L. R. 369.
544:
J3ASNAYAKE J. —•Alu.iuihare v. Nanayakkara
section 58 (1) (c) can equally avail himself of the same exceptions. Thegravity of the punishment is no reason for imposing a requirement whichthe Legislature has not thought fit to impose. Recent legislation,especially in Britain, contains numerous examples of statutory offencesnot requiring mens rea hut carrying grave penalties. The cases showthat the severity of the punishments has not influenced the Courts toconstrue such statutes as requiring mens rea where the language of thestatute itself does not specify a particular intention or knowledge. Thefollowing quotation from the case of JR. v. Isaac Sorshy 1 illustrates thepresent tendency not to regard mens rea as implicit in statutes creatingoffences even in England where mens rea is a part of the commonlaw :
" Passing next to counts 3 and 4, upon which all three appellantswere convicted, counsel for Sorsky was bold enough to contend thatthe person supplying in these circumstances could not be convictedof an offence against the Order unless there was proof of a mens reaon his part and that a charge of conspiracy to supply contrary tothe Order therefore involved knowledge by the accused thatthe amount of the quota of the supplier had been or would beexceeded.
“ The all sufficient answer to that argument is to be found in thewording of the Orders in question which makes it abundantly plainthat the supply of controlled goods contrary to the Order is an offenceirrespective of any knowledge or state of mind of the supplier. Ifauthority is required in support of that proposition it will be foundin the judgment of this court in JR. v. Clayton (1943, unreported).That case is also an authority for the proposition that conspiracy tocontravene the terms of these Orders does not require proof of thatknowledge on the part of the accused indicated by the expressionmens rea. To the same effect is JR. v. Jacobs and Others (1944) K. B.417 ; (1944) 1 All E. R. 485, in which it was contended for the appellants(who had been convicted of conspiring to contravene the provisionsof the Price of Goods Act, 1939, by selling price controlled goods ata price in excess of the permitted price) that the conviction was wrongin that there was no evidence that the vendors' were aware that thepermitted price had been exceeded. That argument Was rejected bythis court, it being pointed out in the judgment that a criminalconspiracy consists in the agreement to do an unlawful act withoutreference to the knowledge on the part of the accused of itsillegality.”
In the instant case learned counsel for both the petitioner and therespondent agree that for an offence under section 58 (1) (c) no mens reais necessary.
The documents P3 and P4 clearly do not satisfy the requirementsof section 58 (1) (c). The question I have to consider is whether thesedocuments were “ distributed ” by the persons named in the particulars.
* {1944) 2 AU E. R. 333 at 336.
BASNAYA K.TS J.—AZu-wihare v. Nanayalckara
545
The word “ distribute ” means to divide or deal out amongst a number.The context does not indicate that the word “ distribute ” is used in anysense other than its ordinary meaning. To establish a charge of distri-buting a handbill there must therefore be evidence that the personagainst whom the offence is alleged divided or dealt out copies of itamongst a number of persons.
The only witness who speaks to the distribution of P3 is one Din girlBanda. He says that on one occasion the respondent and one Eliepolacame to canvass bis vote and that on that occasion when he indicatedhis inclination to support the petitioner Eliepola handed him a copy ofP3 and said “You can read this and see. Do not count any differences-you have now. Give your vote for Mr. Nanayakkara. ” The respondentdenies that he ever went either with Eliepola or alone to canvass thewitness’s vote. Even if this witness is speaking the truth, as I saidbefore, the handing of a handbill or pamphlet on a solitary occasion doesnot amount to distributing the pamphlet. Apart from that this witness’scross-examination revealed that he was not the type of person on whoseevidence reliance can be placed. He was once a Buddhist priest, thena police constable. On his own admission he appears to be a litigiousperson who has been a party to a number of eases both in the Courtsand in the Village Tribunal. He has been disbelieved by the DistrictCourt of Handy and fined in the Village Tribunal. I am thereforeunable to accept his evidence. The respondent says there was no suchincident, and I prefer to believe him. X hold that the charge of"distribution of P3 is not proved.
The evidence of distribution in regard to P4, the Katudeniya pamphlet,,falls into two groups, viz., (a) the dropping by James Appuhamy of apamphlet from a motor car on the road near Wariyapola Estate some-where in February, 1947, in the presence of Samarakone Banda, and(6) the handing by James Appuhamy of two pamphlets to Ratnayakeand Kalu Banda in the presence of one Kulatunge. I have in discussingthe charge under section 58 (1) (d) explained why I am not prepared toact on the evidence of the witnesses who testify to the acts referred toabove. Apart from the unreliability of the witnesses, the acts alleged arein my opinion insufficient to establish the charge of distribution of"pamphlets.
I hold that the. charge of distribution of the Katudeniya ‘pamphlet is notproved.
This brings me to the end of the charges all of which I hold havenot been proved. I determine that the respondent whose election iscomplained of was duly elected.
The petition is dismissed. The petitioner will pay to the respondentthe actual expenses incurred by him in this trial as taxed by theRegistrar.
Petition dismissed.