D. M. WIMALASARA BANDA, Appellant, and M. M. S. B. YALEGAMA, Respondent

074-NLR-NLR-V-69-D.-M.-WIMALASARA-BANDA-Appellant-and-M.-M.-S.-B.-YALEGAMA-Respondent.pdf


Wimalasara Banda v. Yalegama
361
1966 Present: H. N. G. Fernando, C.J., T. S. Fernando, J.,and Sri Skanda Rajah, J.M. WIMALASARA BANDA, Appellant, and M. M. S. B.YALEGAMA, Respondent
Election Petition Appeal No. 10 of 1966—Electoral District No. 36
(Rattota)
Election petition—Meaning of term “ agent ”—Corrupt practice—False statementsmade at an election meeting regarding a candidate—Police reports in proof ofsuch statements—Admissibility in evidence—Evidence Ordinance, ss. 35, 145,155 (c), 159, 160—“Public book, register or record ”—Police Ordinance(Cap. 53), s. 56—Ceylon (Parliamentary Elections) Order in Council, 1946,ss. 58 (1) (d), 77 (c).
The Chairman -who presides at an election meeting as agent or with theknowledge and consent of a candidate has implied authority to supervise andcontrol the meeting and to permit speeches to be made at his discretion. Thecandidate can, therefore, be held responsible for a false statement made byany speaker at the meeting concerning the personal character or conduct ofan opposing candidate. In such a case, the speaker in question is also an“ agent ” within the meaning of the term in Election Law.
Samaranayake v. Kariawasan (69 N. L. R. 1) followed.
One ground on which the petitioner-appellant sought to have the electionof the respondent as a Member of Parliament declared void was that an agentof the respondent had committed the corrupt practice of making a false state-ment of fact concerning the personal character or conduct of an opposing candi-date. The statement in question was alleged to have been made by the agentat an election meeting held on 9th March 1965. The only evidence as to thefact that this statement was made at the meeting consisted of a report P 50which was produced at the trial by an Inspector of the C. I. D., Colombo, whohad received it at his office on 3rd April 1965. A Police Sergeant testified thathe sent that report and that it was compiled from notes taken down by himof a speech made by a person at the election meeting. He had made the notesat the meeting in an exercise book and afterwards dictated a report to hisbrother(not a Police Officer) : P 56 was the original or a carbon copy of what the brotherhad written at dictation. The exercise book in which the witness claimed tohave entered his original notes was not produced at the trial. In regard toOther Police reports produced at the trial, the evidence was that the originalnotes made at meetings by Police Officers had been destroyed after reportscompiled from them had been completed.
Held, by H. N. G. Fesxasdo, C.J., and T. S. Fernando, J. (Sri SkandaRajah, J. dissenting), that the police officer’s report P56 was not admissibleunder section 35 of the Evidence Ordinance in proof of any statement mentionedin the report. P56 was not an official book, register or record contemplated insection 35 of the Evidence Ordinance. “ Record ” in that section must begiven a generic meaning as “ book ” and “ register ”, and a report like P56, oreven the original notes, did not bear such a character.
382
H. N. G. FERNANDO, C.J.—Wimalasara Banda v. Yalegama
Illangaralne v. de Silva (49 N. L. R. 169) overruled.
Don Phillip v. Illangaratne (61 N. L. R. 561) considered.
Held further, that evidence of the matters stated in P56 was not duly givenunder section 159 or section 160 of the Evidence Ordinance. If section 159 orsection 160 is intended to be utilized in a case, both Judge and witness must bemade aware that evidence is being given as permitted by one or other of thesesections.
ElECTION Petition Appeal No. 10 of 1966—Electoral District No. 36(Rattota).
Nimal Senanayake, "with V. A. S. Perera and N. S. A. OoonetiUeke,for Petitioner-Appellant.
Colvin R. de Silva, with Malcolm Perera, K. Shanmugalingam, PrinsQunasekera, and Jayatissa Herath, for Respondent-Respondent.
Cur. adv. wilt.
December 20, 1966. H. N. G. Fernando, C.J.—
This was an appeal against the determination of an Election Judgeholding that the Respondent was duly elected at the March 1965 GeneralElection as Member of Parliament for Electoral District No. 36, Rattota.The grounds of evidence relied on at the trial of the Election Petitionwere that the Agents of the Respondent or persons acting with hisknowledge and consent had committed the corrupt practice of making orpublishing false statements of fact concerning the personal character orconduct of Chandrasena Munaweera who had been one of the other twocandidates at the Rattota election.
Evidence was led at the trial in regard to—
(а)one instance where a false statement was alleged to have been made
in a pamphlet marked P5J ;
(б)five instances of false statements alleged to have been made in
speeches delivered at meetings held in support of the candidatureof the Respondent;
.(c) several instances of false statements alleged to have been made byone person at different places in the electorate from a motor carcarrying a loudspeaker. I
I will deal first with the case of the pamphlet P54. The learned Judgehas held that two statements concerning Mr. Munaweera which weremade in this pamphlet were not statements which referred to the personalconduct or character of Mr. Munaweera. The finding of the learnedJudge was strongly challenged in appeal, on the ground particularly thatone of the statements contained in the pamphlet was clearly and beyond
H. N. G. FERNANDO, C.J.—Wimalasara Banda v. Yalegama
363
doubt an allegation that Mr. Munaweera, who had been a Member ofParliament in December 1964, had at the time “ crossed over ” and votedagainst the Government in Parliament, having accepted a bribe for doingso. It was argued I think with much justification that the finding withrespect to this statement was perverse and ought to be set aside. Forreasons which will presently appear, however, it is not now necessary toconsider the validity of this argument.
We understand that although the trial of this petition occupied 13 daysand concluded on 8th June 1966, the learned trial Judge reserved hisjudgment for 11th June, and on that day dictated his judgment from theBench. This course which the Judge followed perhaps accounts for thefact that in relation to nearly every one of the eight charges which he hadto consider, the judgment con tains no findings of fact except the particularfinding relied on by the learned Judge for holding that the charge hadnot been established. For instance in the case of the pamphlet P54there is only a finding that the statements made in the pamphlets didnot affect the personal character or conduct of Mr. Munaweera : there isno finding that the statements -were false, nor a finding that they weremade by an agent of the Respondent. In regard to some of the othercharges also the sole finding relates to the “ innocence ’’ of the state-ments, and there are no findings on other relevant points. In regard toone charge there is a finding that an alleged statement was made by aperson not proved to be an agent of the Respondent, but no finding as towhether the statement was false or affected the personal character orconduct of Mr. Munaweera. In the result, if the appellant had satisfiedus that a particular finding must be set aside, we would have beenleft without the benefit of other findings of fact necessary to enableus properly to dispose of this appeal.
As I have stated above, we have no finding of the trial Judge on thequestion whether P54 was published by an agent of the Respondent.According to the evidence it was published by one Mulan Dunuweera. Thewitness De Mel testified that P54 was brought to his house by Dunuweerawho came in a party of people. As to the time when P54 was handed to .De Mel, he testified “ I believe it is about mid January 1965 three or fourdays after the nomination because I remember the date of the nominationas the 11th of January An important point in De Mel’s testimonywas that Dunuw'eera had on that occasion canvassed De Mel’s vote forthe Respondent. There was also evidence referred to in the judgmentthat Mulan Dunuweera had made a speech in support of the candidatureof the respondent at a meeting held on 30th January 1965, and evidencethat Mulan Dunuweera had caused to be printed another document P51,which although it mentioned no names, referred to the same matter asP54, viz. the betrayal of the Government on an occasion of a vote inParliament. Had these been the only matters relevant to the questionwhether Mulan Dunuweera was an agent of the Respondent at the timewhen he is alleged to have delivered to De Mel the pamphlet P54, theconclusion that he -was an agent may have been an obvious one.
364 H. N. G. FERNANDO, C.J.-—]Yimalasara Banda v. Yalegama
On the other hand, there were several matters in evidence which arerelevant to this question, but which unfortunately received no consi-deration in the judgment. Mr. T. B. Illangaratne, who had been a seniormember of the Cabinet in the Government which was defeated in Parlia-ment in December 19G4, was a witness at this trial. He testified that hehad been a member of the nomination board which selected candidates torepresent the Sri Lanka Freedom Party at the General Election of 1965,and that Mulan Dunuwccra had applied for nomination for the Battotaseat. He said also that some time after the Respondent had been selectedas the party candidate and after the date of nomination, the Respondenthad told him that a number of persons who had unsuccessfully made appli-cation for nomination were not giving support to the Respondent, and thatone such person was Mulan Dunuwccra. According to Mr. Illangaratne,he himself spoke to Dunuwccra about this matter shortly after 21stJanuary 1965 ; Dunuwccra at first told him that he could not support theRespondent's candidature, but later agreed to do so on Mr. Illangaratne’sadvice. There is also the evidence of the Respondent himself that itwas only late in January that Dunuweera agreed to support him,and that Dunuweera did actively support him from about the end ofJanuary 1965. The evidence to which I here refer was not challengedin cross-examination.
The pamphlet P54 was printed on 14th December 1964, nearly a fullmonth before Nomination Day, and several weeks before the Respondenthad even applied for the Party nomination, and it is perfectly clear thatin having it printed Dunuweera had no intention of using the pamphletto further the Respondent’s candidature. On the contrary, the pamphletP 51, also printed early in December, shows that Dunuweera at thatstage was motivated partly by bitter personal acrimony towardsMr. Munawocra, and partly by his intention to contest and defeat thelatter in the forthcoming General Election. P51 was clearly a challengeto such a contest. At the time when these pamphlets were printed, theRespondent was in Government service and it was not known that hehad then any intention of standing for Parliament.
If the learned Judge had addressed his mind to the question whetherDunuweera acted as the Respondent’s agent when he handed P54 to DeMel a few days after 11th January 1965, he would have found considerableevidence indicating that Dunuweera had not so acted. There was nothingincredible in Mr. Illangaratne’s evidence which in substance disclosed thatDunuweera, who had long been a Party stalwart but had neverthelessbeen refused the Party nomination, had been unwilling to support theRespondent who was a complete new-comer in the Party. The dateswhen P51 and P54 were printed, and the content of P51, show thatDunuweera’s motive was purely personal. The fact that only onepublication (to De Mel) of P54 was proved also tends to negative theallegation that Dunuweera was in mid-January seriously supporting therespondent’s candidature. Had these matters received considerationby the Election Judge, he would have found in them confirmation of theRespondent’s evidence that Dunuweera had not been his agent prior to the
H. N. G. FERNANDO, C.J.—Wimalasara Banda v. Yalegama 305
end of January, and little or nothing to controvert that evidence. Thejudgment indicates that the trial Judge acted on what I consider is thecorrect principle, namely, that a Member chosen by the vote of the peoplemust not be unseated upon an election petition unless a statutory groundof avoidance is established by proof of the same standard as is required in acriminal case. For me now to hold that proof of Dunuweera’s agency wasnot established by the evidence is not +o reverse an express finding of thetrial Judge. But even if there had been such a finding, I would have beencompelled to hold in appeal that the evidence fell far short of establishingagency beyond reasonable doubt. Thus, although for reasons differentfrom those relied on by the trial Judge, I affirm his finding that the chargebased on P54 was not proved.
I pass now to consider a different charge. There was evidence that ata meeting held on 9th March 1965 at Udatenne in support of the Res-pondent, some person had in the course of a speech made an allegation thatMr. Munaweera had taken a bribe of Rs. 75,000 and acted treacherouslyagainst the former Prime Minister. According to the judgment, theRespondent did not at the trial contest the fact that this was a falsestatement relating to the personal character or conduct of Mr. Munaweera,but the defence taken up was that the person who made the speech did soneither as agentnor with the knowledge or consent of the Respondent. Thelearned trial Judge accepted the position that the speaker had not beenexpressly appointed an agent of the Respondent, and held that merewas not sufficient evidence from which to conclude that the speaker madethe statement with the knowledge and/or consent of the Respondent.The Judge held that although the Chairman of the meeting was an agentof the Respondent, the Chairman had no authority to add to or deletefrom a list of speakers previously chosen by the Respondent, and that inpermitting this particular speaker to make a speech the Chairmanexceeded his authority. His finding was that the speaker was not anagent of the Respondent. For reasons which have been stated in thejudgment in appeal in the Bentara-Elpitiya case1, the learned Judgo inthe present case has misdirected himself on the law in reaching thatfinding. There was no evidence that the Chairman had been prohibitedby the Respondent from permitting speeches to be made by persons otherthan those previously chosen by the Respondent; on the contrary, theevidence establishes that this particular meeting could not have com-menced at the scheduled time unless persons not previously selected hadbeen permitted to speak. Indeed out of several persons so previouslyselected only two or three ultimately turned up at the meeting. Whenthe Chairman presided as agent or with the knowledge and consent of theRespondent, he had implied authority to supervise and control the meetingand to permit speeches to be made at his discretion. I hold thereforethat the speaker in question was an “ agent ” within the meaning of theterm in Election Law. Save for other reasons which will be presentlydiscussed, the election of the Respondent should have been declaredvoid in consequence of the making of false statements by a speaker atthis meeting.
1 Samaranayake v. Kariaicasan (1966) 69 N. L. R. I.
366
H. N. G. FERNANDO, C.J.—Wimalaaara Banda v. Yalegama
The only evidence as to the fact that this statement was made at theUdatenne meeting consisted of a report P56 which was produced at thetrial, and I must refer to the circumstances pertaining to this report. OneSiribaddana, an Inspector of the C. I. D., Colombo, produced at the trial adocument in Sinhala which was marked P56, which had apparently beenreceived at the C. I. D. office on 3rd April 1965. Subsequently thisdocument was shown to one Sergeant Ratnayake of the Matale Station.When asked in examination in chief “ Is that a report made by you ? ”,his answer was “ I recorded this at the meeting and got them written upand checked them up Subsequently, however, Ratnayake admittedthat P56 had not been in fact recorded at the meeting. His later positionwas that he had made notes at the meeting in an exercise book, and after-wards dictated a report to his brother (not a Police Officer) and that P56was the original or a carbon copy of what the brother had written atdictation. I must note here that although P56 bears a stamp evidencingits receipt at theC. I. D. office in April 1965, this document bears neitherthe signature of Ratnayake nor any indication as to the date on whichit was written. According to Ratnayake the original notes which he madeat several meetings were written into an exercise book during the meetings,and his evidence on this point is interesting (the under-lining is mine) :—
“ Q. You have with you all the notes of the meetings that youcovered ?
A. Yes, I have.
Q.You have written down all these in an exercise book ?
A. Yes.
(To Court.- Q. Have you got that exercise book ?
A. I cannot say whether it is there.
Q. You would keep it ?
A. After the Election the book was kept in the office. I do notknow whether it is still there.
Q. Did you keep it in the office ?
A. Yes.
Q. After you kept it in the office you have up to today not seen it ?
A. I have no recollection of having seen it. ”
The exercise book in which the witness claimed to have entered hisoriginal notes was not produced at the trial. In regard to other Policereports produced at this trial, the evidence was that original notes madeat meetings by Police Officers had been destroyed after reports compiledfrom them had been completed.
H. N. G. FERNANDO, C.J.—WimcUasara Banda v. Yalegama
367
His Lordship Chief Justice Sansoni in the Dedigama Petition refused toallow the production of similar Police reports on the ground that theoriginal notes from which the reports were claimed to have been compiledhad been destroyed or were not made available to Court. I am in entireagreement with the principles underlying this ruling. The best evidenceof what a Police Officer notes at a meeting will be the notes themselves,and if the notes have been destroyed or deliberately suppressed, it isunsafe (to say the least) to admit in evidence a report alleged to havebeen compiled from the notes. In the case of the document P56 unusualsuspicion must attach to it, because it bears no date or signature and it isactually in the handwriting of a civilian, and more particularly because,for reasons unexplained in the trial, it reached the C. I. D. office nearlya fortnight after the date of the General Election, and long after themeeting in question.
Several of these Police reports were produced at the trial, and it isperfectly clear from the judgment that the learned trial judge acted onthese reports as being themselves evidence of the fact that statementsattributed in the reports to speakers at Election meetings had actuallybeen made by those speakers. Section 35 of the Evidence Ordinancereads as follows :—
" An entry in' any public or other official book, register, or record*stating a fact in issue or relevant fact, and made by a public servant inthe discharge of his official duty, or by any other person in perform-ance of a duty especially enjoined by the law of the country inwhich such book, register, or record is kept, is itself a relevant fact.”Now any entry referred to in Section 35 is itself a relevant fact. Thus abirth registration entry, for example, is itself evidence of the facts statedin the entry, that is to say that X was born on a particular day, th at hismother was Y and his father was Z. Those facts are thus established byproof of the entry itself without the need for any oral testimony in proofof the facts.
Learned Counsel who appeared for the Appellant in this case hasproperly conceded that reports like P56 do not come within the scope ofSection 35. It is clear that P56 is not an official book, register or recordcontemplated in the Section. A public “ book ” or “ register ” issomething regularly maintained, with the object that entries be madetherein in the course of official business ; s. 35 refers to such books orregisters being “ kept ”, the verb “ to keep ” in this context havingthe meaning that the book or register is maintained for the making ofparticular entries as a matter of regular routine. “ Record ” in that;section must be given a generic meaning as “ book ” and “ register ”,and a report like P56, or even the original Police note, certainly does notbear such a character. Section 35 occurs in the group of sections 34-37,the others in the group dealing with books of account regularly kept,maps and charts, statements in Acts, notifications and Gazettes, andstatements in official legal publications. It is because the authenticityof entries or statements in such documents would ordinarily be bevond
368
H. N. G. FERNANDO, C.J.—Wimalasara Banda v. Yalegama
question that the Evidence Ordinance renders the entries or statementsrelevant evidence of the facts therein stated—One cannot for a momentconcede that the same authenticity attaches to reports like P56.
I have no doubt therefore that the report was not admissible underSection 35 in proof of any statement mentioned in the report.
Counsel for the appellant argued that evidence of the matters statedin P56 was duly given under Section 160 of the Evidence Ordinance.Section 159 permits a witness to refresh his memory as to a transactionby reference to a document made at the time of the transaction or soonthereafter. Section 160 permits a witness to testify to facts mentioned insuch a document even if he has no specific recollection of the factsthemselves.
The record of the evidence of Sgt. Ratnayake does not show that eitherthe trial Judge or counsel intended that P56 was to be used or admittedunder s. 159 or s. 160. Ratnayake was not asked whether he couldremember what had been said at the meeting, whether before or afterperusing P56. If a writing is used only to refresh memory, then thematters which require consideration by the Judge are the credibility ofthe witness’s testimony and the reliability of his memory. If the writingdoes not serve to refresh memory, then the matter for consideration isthe honesty of the person making the record and the reliability both ofhis sense of hearing and of his capacity to make an accurate record.Despite decisions in India to the contrary, I much prefer the view that,if 8. 159 or s. 160 is intended to be utilized, both Judge and witnessmust be made aware that evidence is being given as permitted by one orother of those sections.
In IUangaratne v. de Silva 1 Windham J. held that a police officer’sreport, purporting to have been made in circumstances substantiallysimilar to those affecting the reports in the instant case, was admissibleunder s. 35 of the Evidence Ordinance as being an “ official record ”.A decision of a Bench of 3 Judges in King v. Silva2 was there relied onas a '■ase in which “ the exact point is covered ”.
In the latter case, which involved a charge of murder, one Mohammaduhad been taken before a Superintendent of Police and made to hima.state-ment which was recorded by' the Superintendent. At the trial, Moham-madu gave evidence inconsistent with his former statement. Thereuponthe Superintendent was called and, having produced the statement, heexplained that the statement had been freely made by Mohammadu, whohad placed his mark to it after it had been read and explained to him.The accused in the case was convicted of grievous hurt, and the witnessMohammadu was dealt with for having given false evidence at the trial.A Bench of 3 Judges held that the statement was properly used inevidence—
(a) under s. 145 of the Evidence Ordinance, to cross-examine Moham-madu as to a previous statement made by him in writing or
reduced to writing ; and
1 (1948) 49 N. L. R. 169.
(1928) 30 N. L. R. 193.
H. N. O. FERNANDO, C.J.—Wimalasara Banda t>. Yalegama
369
(6) under s. 155 (c) of the Evidence Ordinance, to impeach the creditof the witness Mohammadu, by proof of a former statementinconsistent yith his evidence.
There is literally not a word in the judgment in King v. Silva whichrefers to s. 35 of the Evidence Ordinance, or to the character of the“ entries ” declared by that section to be relevant evidence of any fact.The statement there proved was the previous statement of a witness, andit was proved only for the strictly limited purposes specified in s. 145 ands. 155. The production of the statement as reduced to writing was neces-sary under the best evidence rule, and was not in any way related to s. 35.
I must say, with the utmost respect, that Windham J. completely mis-understood the judgment if he thought it to be authority for the admission,in proof of the fact that a person made a certain statement at a meet ing, ofa police officer’s report of matters said to have been uttered at the meeting.Such a report is certainly not a “ statement made by such person orreduced into writing ” (s. 145) ; that section relates only to statementswritten by the witness himself, or statements made by him and acceptedby him at the time to be correctly reduced to writing. Nor was there anywitness, in the case heard by Windham J., “ whose credit was impeachedby proof of former statements inconsistent with his evidence ” (s. 155).Nor did Windham J. examine in any way the purpose and scope of s. 35in deciding that the police report was admissible. For these reasons, Iemphatically decline to follow the decision in Ilangaralne v. de Silva,and I trust that the judgments in this and other appeals will finally over-rule that decision. I must disapprove also the decision in Don Philip v,Ilangaralne 1, in so far as it placed reliance on police reports in proof ofstatements alleged to have been made at election meetings. Apart fromthe strictly iegai issue to which I have given consideration above, I mustexpress my agreement with the observations which my brother Fernandoproposes to make with regard to the use hitherto made of police reports ofelection meetings.
For the sake of completeness, I propose to add an expression of opinionwhich is obiter. I consider that a police report of the nature admitted inthis case would be available under s. 155 (e) of the Evidence Ordinance toimpeach the credit of the officer making the report, if anything stated inthe report is inconsistent with evidence given in a Court by the officer.The report may also be utilised under s. 145, to cross-examine the officerhimself. But such a report does not constitute proof, as againstany person, that he made any statement attributed to him in the report.
Abeyesundere J. who was the trial Judge in the instant case, hasauthorised me to state that if the grounds of objection which I havenow considered had been argued before him he would have held P56 tobe not admissible under section 35.
I hold for these reasons that there was misdirection in law in the admis-sion of P56 in evidence ; there was accordingly no proof that the alleged
1 (1949) SI N. L. B. SSI.
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T. 5. FEKMAMDU, J-—Wimatasara Banda v. Yalegama
false statements to which it refers were in fact made at the Udatennemeeting. The finding of the trial Judge that the charge based on P50had not been established as against the Respondent has therefore to beaffirmed, though again for different reasons.
In relation to the third of the charges mentioned at the commencementof this judgment, I was not impressed by the arguments that there waseither misdirection in law or else gross misdirection on the facts.
The remaining charges depended solely on police reports alleged tohave been compiled from notes which had subsequently been destroyed,or which were not available at the trial. On the same grounds whichapply in the case of P56,1 hold that these reports were not legal proof thatalleged false statements had been made by agents of the Respondent.
The determination of the Election Judge is affirmed, and the appealis dismissed with costs.
T. S. Fernando, J.—
I agree with the judgment of my Lord dismissing this appeal for thereasons stated by him. The abhorrence with which I view this newphenomenon of copies of police reports where the originals have beendestroyed that has obtruded itself upon our courts is so great that I amimpelled to add the following observation :—
What is declared a corrupt practice by section 58 of the Ceylon(Parliamentary Elections) Order in Council, 1946 is the making orpublishing of any false statement of fact in relation to the personalcharacter or conduct of a candidate. I cannot appreciate whyinstructions have to be given by superior officers of the Police to theirsubordinates that notes be taken of the contents of speeches made atelection meetings that are likely to contain false statements such as thosesought to be penalised by section 58. While it is true it is the duty of allpolice officers to detect and bring offenders to justice, surely at the timea police officer is recording a note of a speech that is being made he isnot aware that a statement made in the Bourse of that speech is false.Such a record has then to be attributed to an excess of zeal displayedby the officer unaware as he is of the falsity of the statement. I donot wish to believe that police officers consciously waste their time inthe hope that statements in election speeches would ultimately turnout to be false.
What happens after such a recording by a police officer ? An electionpetition is occasionally presented by or on behalf of a defeated candidate.Quite often, as indeed in the case which has given rise to the presentappeal, no evidence of any person except the police officer is evenattempted to be led to prove that the alleged false statement was made.The police officer himself says he has no independent recollection of thecontents of the speech, and the petitioner relies on section 160 of theEvidence Ordinance. As the witness has no specific recollection
SRI SKANDA RAJAH, J.—Wimcuasara Banda v. Yaleg'ama
371
of the facts he renders himself immune from effectivecross-examination. He could say that the speech was correctlyrecorded in the notes he made at the time. The law allowsto the adverse party a right to see the note or writing madeby the witness so that, after perusal thereof, the latter may becross-examined upon it. This right, which has proved itselfto be a very important one, is effectively baulked by the eruption of anew practice, a practice that is unfortunately growing and must beunhesitatingly discouraged, of destroying the contemporaneous noteor writing. Uneasiness of the mind of the public at such destructionis not allayed when, as sometimes happens, the witness says that thewriting was destroyed “ on instructions received ”, What is thereforemade available to the cross-examiner is a copy, often a “ fair ” copy,made sometime after the event. Where, as is often the case, the disputeat the trial relates to an offending word or words and not to the bulkof the rest of the note of the speech, a reference to the original notewould be of vital necessity to the adverse party. It would be important,for instance, to examine the original note for any corrections, interpola-tions or erasures. Imperfections of that nature are swept away inadvance if all that is made available at the trial is what goes underthe sobriquet of a “ copy ”, sometimes described as a precis alleged tohave been made from the contemporaneous note. This procedurewhereby the original note or writing is destroyed renders the policeofficer liable to be accused by the adverse party of distorting the truthor, what may be as objectionable, of undue partiality towards a particularcandidate.
At a stage of the development of our Country when parliamentaryelections are yet conducted in an atmosphere not devoid of tensionand excitement, I venture to suggest that police officers will be welladvised to confine themselves to their regular and more conventionalduties. The matter of taking notes of speeches which might contain astatement which on verification turns out to be false could well be leftto the resources of the candidates themselves or of their agents andsupporters.
Sri Skanda Rajah, J.—
This is an appeal from the determination of an Election Judge dismissingthe petition with costs and declaring the respondent duly elected andreturned as a Member of Parliament.
The hearing commenced on 16th May, 1966, and concluded on 8th June,1966, which was the end of the week. The order itself was dictatedfrom the Bench after the week-end. Counsel for the Appellant complains,not without justification, that there has been a denial of justice.
An appeal to this Court lies only on any question of law : vide section82A of the Ceylon (Parliamentary Elections) Order in Council, 1946.The jurisdiction conferred on this Court is, therefore, limited. It would
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SRI EKANDA RAJAH, J.—Wimalaaara Banda v. Talegama
be the same as in a case stated by the Board of Review for the opinionof this Court on questions of law under the Income Tax Ordinance.The scope and nature of the power which this Court has to rejectconclusions reached by the Board of Review on questions of law, offact and of mixed law and fact was set down by Gajendragadkar, J., inNaidu and Co. v. The Commissioner of Income Tax This passage wasadopted by this Court in Mahavithana v. Commissioner of Inland Revenue 1and Ram Iswara v. Commissioner of Inland Revenue 3. It runs thus :—
“ There is no doubt that the jurisdiction conferred on the High Courtby section 66 (1) is limited to entertaining references involving questionsof law. If the point raised on reference relates to the construction of adocument of title or to the interpretation of the relevant provisions ofthe statute, it is a pure question of law ; and in dealing with it, thoughthe High Court may have due regard for the view taken by the tribunal,its decision would not be fettered by the said view. It is free to adoptsuch construction of the document or the statute as appears to itreasonable. In some cases the points sought to be raised on reference mayturn out to be a pure question of fact ; and if that be so, the finding of fact'recorded by the tribunal must be regarded as conclusive in proceedings undersection 66 (1). If, however, such a finding of fact is based on an inferencedrawn from primary evidentiary facts proved in the case, its correctness orvalidity is open to challenge in reference proceedings within narrow limits.The assessee or revenuee can contend that the inference has been drawn onconsidering inadmissible evidence or after excluding admissible and relevantevidence ; and, if the High Court is satisfied that the inference is the resultof improper admission or exclusion of evidence, it would be justified inexamining the correctness of the conclusion. It may also be open to theparty to challenge a conclusion of fact drawn by the tribunal on ike groundthat it is not supported by any legal evidence ; or that the impugned conclusiondrawn from the. relevant facts is not rationally possible : and if such a pleais established, the Court may consider whether the conclusion in questionis not perverse and should not, therefore, be set aside. It is within thesenarrow limits that the conclusions of fact recorded by the tribunal can, bechallenged under section 66 (1). Such conclusions can never be challengedon the ground that they are based on misappreciation of evidence. There isyet a third class of cases in which the assessee or the revenuee may seekto challenge the correctness of the conclusion reached by the tribunalon the ground that it is a conclusion on a question of mixed law and fact.Such a conclusion is no doubt based upon the primary evidentiaryfacts, but its ultimate form is determined by the application of relevantlegal principles. The need to apply the relevant legal principles tendsto confer upon the final conclusion its character of a legal conclusionand that is why it is regarded as a conclusion on a question of mixedlaw and fact. In dealing with findings on questions of mixed law and
1 (1959) A. I. R. 359 (S. C.) at 383 and 383.
* (1962) 85 A*. L. R. 393.
* (1962) 64 N. L. R. 217.
SRI SKANDA RAJAH, J.—WimaUuara Banda v. Yalegama
373
fact the High Court would no doubt have to accept the findings of thetribunal on the primary questions of fact; but it is open to the HighCourt to examine whether the tribunal has applied the relevant legalprinciples correctly or not; and in that sense the scope of inquiry andthe extent of the jurisdiction of the High Court in dealing with suchpoints is the same as in dealing with pure points of law
The passage relevant for the consideration of the submissions madeby Counsel for the Appellant is italicized above.
The ground relied on by the petitioner was corrupt practice as definedby section 58 (1) (d) and read with section 77 (c).
In order to succeed the petitioner had to prove that the statement inquestion
is a statement of fact;
relates to the personal character or conduct of another candidate,
viz., Munaweera;
is false
was made or published
by an agent of the respondent, or
with the knowledge or consent of the respondent; and,
was made or published for the purpose of affecting the return of
Munaweera.
It will be seen that what meaning the speaker intended by the wordshe uttered is not an element of this charge. Therefore, no burden restedon the petitioner to prove either beyond reasonable doubt or even onthe balance of probability that the utterance was made intending asinister meaning. The real test is, “ What would be the impressioncreated by the words in question on the mind of a reasonable man orthe ordinary voter? When the Election Judge placed the burden ofproving the meaning intended by the speaker on the petitioner he seriouslymisdirected himself on the law. For this reason alone this appealshould be allowed and a trial de novo by another Election Judge ordered.
An Election Judge owes a duty not only to the parties but also tothis Court, to which an appeal lies, and even to the electorate, to specifythe point or points for determination, the decision thereon and thereasons for the decision. An Election Judge trying the above charge(of false statement) should consider and decide whether each one of thefive elements specified above has been proved. It is not sufficient forhim to say that one of the elements has not been proved and to refrainfrom deciding the other elements.
If the Court of Appeal sets aside his finding in respect of the onlyelement he had chosen to decide, then it will have to order a retrial.Such a course will involve the parties’ unnecessary expense and at thesame time defeat the object of the legislature, viz., the constitution of
374
SRI SKANDA RAJAH, J.—Wimalasara Banda v. Yalegama
the Legislative Assembly should be distinctly and speedily known(v. Senanayake, v. Navaratne 1 and the Balangoda Election PetitionAppeal No. 3 of 1966 : S. C. Minutes of 11.8.1966s).
I am unable to subscribe to the view that the judgment is not vitiatedby the failure to determine all the questions involved, (“ though the idealwould be to determine all of them ”); nor to the view that the ElectionJudge must be assumed to have considered all the elements for theastonishing, and, to my mind, even amusing, reason that “ he is one ofus ”. This proposition will not, obviously, be applicable in the case ofan Election Judge who is only a District Judge. This assumptiondoes not appear to have been made ever before. Such an assumptionis not warranted by law and is pregnant with danger. Besides, even ifsuch an assumption is permissible, can it be invoked in the case of aJudge who does not ordinarily do trial work—not even Assize trials ?
Another view to which I cannot subscribe is that we should strain touphold the validity of an election. What this Court has to do is toascertain whether
(а)on a pure question of law the finding is correct;
(б)on a pure question of fact whether the finding impugned is “ not
rationally possible ; if such a plea is established, the
conclusion in question is not perverse and should not, there-fore, be set aside” ; or
on mixed questions of fact and law the relevant legal principleshave been correctly applied, regardless of consequences.
There was much argument regarding the admissibility of documentP 56—the report made by Police Sergeant Ratnayake of a meeting heldon 9th March, 1965, at Udatenne, at which one of the alleged falsestatements was made. Counsel for the Appellant first argued that itwas admissible under Section 35 of the Evidence Ordinance, but laterabandoned that submission, when the majority of the Court indicatedthat P 56 would not be admissible under that section. He, however,submitted that it was evidence under sections 159 and 160 of the EvidenceOrdinance. Before considering these provisions I would express myrespectful dissent from the very general proposition that a Member ofParliament should not lose his seat on the report or even on the evidenceof a Police Officer.
Section 35 of the Evidence Ordinance :An entry in any public or
other official book, register, or record, stating a fact in issue or relevantfact, made by a public servant in the discharge of his official duty orby any other person in performance of a duty especially enjoined bythe law of the country in which such book, register, or record is keptis itself a relevant fact.
1 (195*) 56 N. L. R. 5 (P. C.) * 11966) 69 N. L. R. 49. (RalwcUte v. Piyasena)
SRI SKANDA RAJAH, J.—Wimaiasara Banda v. YaUgama
376
Section 159 (1) of the Evidence Ordinance: A witness may, whileunder examination, refresh his memory by referring to any writingmade by himself at the time of the transaction concerning whichhe is questioned or so soon afterwards that the Court considers itlikely that the transaction was at that time fresh in his memory.
Section 159 (2):. The witness may also refer to any such writingmade by any other person, and read by the witness within the timeaforesaid, if when he read it he knew it to be correct.
Section 159 (3): Whenever a witness may refresh his memory byreference to any document, he may, with the permission of the Court,refer to a copy of such document:
Provided the Court be satisfied that there is sufficient reason for thenon-production of the original.
Section 160 of the Evidence Ordinance : A witness may also testifyto facts mentioned in any such document as is mentioned in Section159, although he has no specific recollection of the facts themselves, ifhe is sure that the facts were correctly recorded in the document.
Illustration: A book-keeper may testify to facts recorded by himin books regularly kept in the course of business, if he knows that thebooks were correctly kept, although he has forgotten the particulartransactions entered.
In lllangaratne: v. 0. E. de Silva1 Windham, J., held that a PoliceOfficer's official report of a speech at an election meeting is admissibleunder section 35 of the Evidence Ordinance and is not any the lessadmissible from the fact that his original rough note made during theactual course of the speech, and a rough draft of the report madeimmediately afterwards, have since been lost or deoitruycu. jll it) uicreport itself which is admissible, and nothing in the law requires theproduction of the rough note or draft of such a report.
This decision was arrived at after a Lahore case was considered (v.p. 173).Our attention was drawn to the order made by Sansoni, C.J., in thetrial of the Dedigama Election Petition wherein he had stated that heprefers to follow the Lahore case and said that the police report is notadmissible under section 35. With respect, I find it difficult to dissentfrom the considered view expressed by Windham, J.
Commenting on section 35 in his Law of Evidence Monir says :—
“ Reports .made by public servants—Every isolated document is not abook, register or record, but in certain cases a single document, e.g., areport by a public servant made within the discharge of his duty, may beconsidered an official book, register or record. Where there is a statutoryduty laid upon public officers to investigate and report facts, a report ofthe facts elicited by their investigation is an official record within themeaning of this section and entitled to great weight ” (4th Editionpp. 299 and 300)
30- Volume LXDC
H194S 49 N. L. B. 169.
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FBI SKANDA RAJAH, J.—Wimalaeara Banda v. Yalegama
Under the Police Ordinance it is the duty of Police officers to detectand bring offenders to justice (v. Police Ordinance, Chap. 63, section 66).Making a false statement before or during an Election is an offence.Therefore it was P. S. Ratnayake’s official duty to detect it and bringthe offender to justice. Besides P 56 was a report made in pursuance ofofficial directions issued by his superiors. It was sent to the AssistantSuperintendent of Police ? Criminal Investigation Department, incharge of the elections. It was filed in his office. P. S. Ratnayakesaid that P 56 and P 56A are true and correct copies of what he heard,-at that meeting.—He got the report written out by his brother Seelaratneand checked it and found it to be correct.—According to P 56 SunilKarunadasa alleged that Munaweera had received a bribe of Rs. 75,000.This is not an allegation which can be misunderstood or easily forgotten.This report (P 56) is also receivable in evidence under section 160 of theEvidence Ordinance because P. S. Ratnayake said that P 66 is a trueand correct record of what he heard at that meeting.
Monir comments on this section as follows :—“ According to thesection, if the witness, though having no recollection of the facts, is surethat the facts were correctly represented in the document at the time hewrote it or read it, the document may be evidence on the witness swearingto that fact.”—p. 939.
In Om Prakash v. Emperor 1 it was held that section 159 does notrender the notes of a speech inadmissible in evidence. At p. 869 Tapp. J,said, “ It was then contended on behalf of the appellant that the notesof the speech were not admissible in evidence as Nazar Hussain shouldhave testified orally as to the speech and under section 159, EvidenceAct, refreshed his memory from those notes. I fail to see how section159, relied upon by the learned Counsel and urged by him, renders thenotes of the speech inadmissible in evidence. This provision of lawmerely provides for a witness, while under examination, refreshinghis memory by referring to any writing made by himself at the time ofthe transaction concerning which he is questioned or so soon afterwardsthat the Court considers it likely that the transaction was at that timefresh in his memory. Instead of deposing orally as to the speech madeby the appellant, Constable Nazar Hussain put in the notes made byhim of that speech, and I confess I can see no difference between thisprocedure and Nazar Hussain deposing orally after reference to thosenotes. For all practical purposes this would be one and the same thing.”
In my opinion, therefore, P 66 was rightly received in evidence. Itcontains the false statement of fact that “ Munaweera had taken a bribeof Rs. 75,000 and acted treacherously against the Lady Prime Minister ”,as was held by the Election Judge, who further held that it related tothe personal character of Munaweera, another candidate, and it wasmade with the purpose of affecting the return of Munaweera. He had
1 A. I. R. 1030 Lahore 867.
fRI SKANDA RAJAH, J.—Wimalasara Banda v. TaUgama
377
also rightly held that this was made at an election meeting held in supportof the respondent’s candidature. But his conclusion that SunilKarunadasa was not an agent of the respondent was not only “ notrationally possible ” but even “ perverse ”, especially after he hadrightly held that the chairman of the meeting was an agent of therespondent.
The document R 8 shows that the meeting was held in support of therespondent’s candidature. It certainly did not include Sunil Karuna-ratne’s name as one of the speakers. Nine speakers were determined bythe respondent and named therein. But, it contained also the procla-mation “ and other accomplished speakers will address you ”. Of thenine speakers mentioned in R 8 only Anver turned up at the meetingand he was the first speaker. The only other of the nine speakers wasIllangaratne, who arrived along with the respondent, who attended themeeting long after its commencement.
If the chairman of the meeting who was agent of the respondent hadno authority to allow other speakers to address the meeting, the meetingwould have had to be abandoned long before the respondent turned up inthe company of Illangaratne. – At that meeting seven persons who werenot in the list contained in R 8. spoke. In answer to tiie Election Judgethe respondent said, “ I have empowered my workers in my office atMatale to do all the necessary work connected with meetings held inmy support.” The respondent admitted in the course of his evidencethat he could not possibly be present all the time at every meeting heldto further his candidature and in his absence his organisers looked afterhis meetings (i.c. when he is moving round the electorate and he remainedat this meeting for only about half an hour or forty-five minutes). On9.3.65, besides the meeting at Udatenne, the respondent had two othermeetings and so he had to rely on somebody locally to keep the meetinggoing and he expected his supporters to put in other speakers in place ofthe speakers mentioned in R 8 who did not turn up. Also he admittedthat his supporters at the spot had done their best to keep the meetinggoing till the respondent arrived.
Even without this evidence, it was clear that the chairman of thatmeeting was agent of the respondent—agent to promote the interests ofthe respondent. Therefore, he had authority to decide as to whom heshould permit to speak. Sunil Karunadasa came within the categoryof “ and other accomplished speakers ”.
The evidence in the case w as sufficient to establish beyond any mannerof doubt—not merely beyond reasonable doubt-—Sunil Karunadasa’sagency.
I would, therefore, hold that the charge in respect of the false statementattributed to Sunil Karunadasa has been proved beyond reasonabledoubt and on that ground alone the respondent’s election should bedeclared void.
378
SRI SKANDA RAJAH, J.—Wimalasara Banda v. Yalegama
Another charge is in respect of the pamphlet P 54 proved to have beenpublished by one Mulan Dunuweera. The Election Judge has notrejected the evidence of one de Mel, a draughtsman in the Public WorksDepartment, that this pamphlet was handed to him “ four or five daysafter the Nomination Day in January 1965 by Mulan Dunuweera whocame with some other persons to canvass his vote for the respondentHe appears to have accepted this evidence and acted on it. But hedid not decide the question of agency, though there was the evidenceof Illangaratne and the respondent himself tending to show that MulanDunuweera was not the respondent’s agent at the time in question.
Was it because that evidence was rejected that the Election Judgeacted on the footing that de Mel was canvassed by Mulan Dunuweeraas agent for the respondent ?
– In the last paragraph of P 54 Munaweera is told that he had “ filledthe pockets of his trousers ” when he did the despicable act “ of votingagainst the Government—by raising that hand of yours unkempt andfestered owing to the blood and pus of the ultimate corruption’’
The Election Judge’s interpretation of this passage with reference toan earlier passage in the pamphlet to the effect that the passage in questionreferred to meant that he had been hired to write to the Silumina ispatently wrong and “ not rationally possible ”. The conclusion that itrefers to a bribe taken before voting is irresistible. It is also noticedthat Munaweera’s evidence on this matter has been ignored altogether.His evidence was that (though the voting was on 3.12.1964) he wrote tothe Silumina only after that explaining his conduct regarding the voteand it was published in the Silumina of 13.12.64. (P 65).
This charge should be tried afresh before another Election Judge,because not merely the validity of the respondent’s election but alsothe question whether Sunil Karunadasa has been guilty of a corruptpractice making him liable to be reported, is involved. Besides, thatis a duty owing to the electorate itself.
P 57 is the report made by P. C. Kulapala of a meeting held atKaikawala on 28.1.1965 in support of the respondent. The reportstates that N. K. Liyanage said, “ Mr. Rajaratne, Mr. C. P. de Silvaand his follower Munaweera subdued by the money of Mr. HemaBasnayake, Gunasena Book-stall and the Lake House paper people .and performing the antagonistic act of raising the hand against theSri Lanka Coalition Government has made it a matter of regret for himto come to battle with him. ”
According to P. C. Kulapala the respondent was present when Liyanagemade this speech—the respondent being there from the beginning tillthe end of the meeting. P 57 is evidence for the reasons I have givenin regard to P 56. The Election Judge said, “ The meaning assignedon behalf of the petitioner to the aforesaid utterance of Liyanage wasthat Munaweera was subdued by bribes given by the persons mentioned
SRI SKANDA RAJAH, J.—Wimalaaara Banda v. Yalegama
370
in that utterance. It cannot be said that such utterance was madeintending such meaning in view of the fact that such utterance can meanthat Munaweera was subdued because the persons mentioned in suchutterance were providing him with funds to defray his election expenses.I hold that the aforesaid utterance of Liyanage does not relate to thepersonal character or conduct of Munaweera ”.
The passage in question relates to the money that had been paidbefore the voting. Before the voting there would have been no electionexpenses in contemplation. The meaning attributed by the ElectionJudge was not only “ not rationally possible ” but also “ perverse
Besides, as already pointed out earlier in this order, what meaningthe speaker intended by the words he uttered is not an element of thischarge. Therefore, there was no burden on the petitioner to provewhat Liyanage intended. How would an ordinary voter have understoodthis utterance ? There can be only one answer to it, viz., that Munaweeravoted in this manner because he had been bribed with money to do so.This would, therefore, clearly relate to the personal character ofMunaweera.
There was ample evidence of agency. In fact, the respondent waspresent when Liyanage made the speech. The evidence also establishesthat it is a statement of fact and it is false. This charge too has beenproved beyond reasonable doubt and the respondent’s election is voidon this ground also.
Another finding which is " not rationally possible ”, is in regard tothe statement embodied in the report P 58, viz., “ 14 members becomingslaves for money left the Government ”,
The Election Judge has stated that the word “ money ” “ refers tomoney in general ” and therefore the statement means “ having becomeslaves to capitalism ”. In addition he has held that the word “ Govern-ment ” means the Cabinet and because Munaweera was not a member ofthe Cabinet this statement could not refer to Munaweera. It is perfectlyclear that the only meaning that can be given to the word is the party inpower.. No reasonable man would consider the word “ Government ”(Aandu) to mean the Cabinet. This charge too (in respect of thestatement alleged to have been made by Podiappuhamy) should beretried.
The appeal should be allowed, the order appealed from should be setaside with costs both here and below. Action should be takenas indicated in this order.
After the above judgment was prepared I had the opportunity ofreading the judgment prepared by my Lord the Chief Justice in whichhe says, “Abeyesundere, J., who was the trial Judge in the instant
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SKI £ HAND A RAJAH, J.—Wimalasara Banda v. Yalegama
case, has authorised me to state that if the grounds of objection whichI have now considered had been argued before him he would have heldP 56 to be not admissible under Section 35
This course does not appear to be right. It would seem objectionable.The fact is that the Election Judge admitted it in evidence, withoutindicating under what provision he did so, and acted on it. I wonderif he can be heard to say now that he would not have admitted it underSection 35, especially when he .had not himself heard the submissions.This may be construed as affording him an opportunity to deliver asupplementary judgment in respect of a point which had already beenargued in appeal or consulting him in regard to the judgment of thisCourt.
Addendum
After the above order was prepared judgment was delivered in S.C.496 (F) of 1964 : D.C. Jaffna No. TR/52 on 13.12.66 by my brotherT. S. Fernando, with my concurrence, where the provisions of Section35 of the Evidence Ordinance were the subject of decision. There thequestion was whether the contents of the document Dl, a list of templesin the Islands division, were relevant and properly received in evidence.Dl was prepared in pursuance of an order issued by the GovernmentAgent to the Maniagar, who gathered the information through theVillage Headman, who reported the name of the founder of the templeand that of its then Manager, as required in the Government Agent’sorder, which was not based on duty especially enjoined by law. Wehave answered this question in the affirmative.
This decision supports the view I have expressed earlier in this orderin respect of Section 35. of the Evidence Ordinance. The police reportsin question were prepared in pursuance of orders received from superiorofficers who were competent to issue such orders.
I have this day (15.12.66) had the opportunity of reading the opinionof my brother T. S. Fernando agreeing with my Lord the Chief Justicethat the appeal should be dismissed.
While conceding that “it is the duty of all Police officers to detectand bring offenders to justice ”—to which duty I have referred earlierin my order—he “ suggests that Police officers will be well advised toconfine themselves to their regular and conventional duties. The matterof taking notes of speeches which might contain a statement which onverification turns out to be false could well be left to the resources of thecandidates themselves or their agents and supporters ”. I regret thatI am unable to share this view.
This suggestion, if carried out, may well lead to serious breaches ofthe peace, whereas when a Police officer takes down notes of speeches he
381
ABEYESUNDERE, J.—Charles Fernando v. de Costa
can do so unmolested. Besides, the evidence of candidates, their agentsand supporters is vulnerable on the score of interest or partiality, whichmay not ordinarily be imputed to Police officers.
I would rather not restrict the duties of Police officers, whose dutieswould include the duty to detect election offences as well and to bringsuch offenders to justice, especially in a country notorious for the makingof false statements of fact in relation to the personal conduct or characterof candidates. If their duties are restricted this offonce may become farmore prevalent and go unchecked.
Certainly the best course for Police officers would be to preserve theoriginal notes. Had they been preserved the question of admissibility ofP 56, etc., could not have arisen. The situation that arose from thefailure to preserve them it was which was the subject of considerationby Windham, J., in lllangaratne v. G. E. de Silva (supra). Such reportsappear to have been consistently admitted thereafter. They wereadmitted in the Bentara-Elpitiya and the Balangoda Election petitions,the appeals in which wore dismissed.
Appeal dismissed.