018-NLR-NLR-V-41-JAYASURIYA-v.-RATNAJOTI.pdf
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Jayasuriya v. Ratnajoti.
1939
Present : Nihill J.
JAYASURIYA v. RATNAJOTI
In revision M. C. Colombo, 36,133
Buddhist Temporalities Ordinance, No. 19 of 1931, s. 42 (.Cap.) 222—Chargeof holding out as upasampada bhikku—Name not on the Registrar-General’s register—Register contemplated is that under section 41.
In a charge under section 42 of the Buddhist Temporalities Ordinanceagainst a person, whose name does not appear on the register, of holdinghimself out as an upasampada bhikku.
Held, that the register referred to in the section is the register kept bythe Registrar-General under section 41.
Mahanayaka Thero, Malwatte Vihare v. Registrar-General (39 N. L. R.186) referred to.
NIHCLL J.—Jayasuriya v. Ratnajoti.
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T
HIS was an application to revise an order of acquittal made by theMagistrate of Colombo.
H. V. Perera, K.C., (with him J. R. Jayawardana and V. F. GooneraXne),in support.
R. L. Pereira, K.C. (with him L. A. Rajapakse), for accused, respondent.October 25, 1939. Nihill J.—
This is an application for revision in a case in which the accused-respondent was aquitted in the Magistrate’s Court of Colombo, on a sum-mons alleging him to be guilty of an offence under section 42 of theBuddhist Temporalities Ordinance (Cap. 222). The sanction of theAttorney-General for an appeal against the acquittal was sought and wasrefused.
The short point for my consideration is whether the register referredto in section 42 is the register of Buddhist priests kept by the Registrar-General pursuant to the provisions of the Ordinance or the registers keptby certain ecclesiastical heads also pursuant to the Ordinance. If it bethe former, then the decision of the learned Magistrate was right, for onthe date of the hearing of the summons the accused’s name was on theRegistrar-General’s register, but if it be the latter, then the grounds forthe acquittal were wrong because on the relevant date the accused’s namewas not on the register kept by the Mahanayaka Thero of the accused’sNikaya or Sect.
Now the learned Magistrate was fortified in the view he took by thejudgment of Soertsz J. in the case of Mahanayaka Thero, MalwaXteVihare v. the Registrar-General'.
That was an application for a Writ of Mandamus against the Registrar-General and the intervenient was the present accused-respondent. Theapplication was for a writ requiring the Registrar-General to remove theintervenient’s name from the register on the grounds that his name hadbeen removed from the register kept by the Mahanayake Thero and thathe was no longer an Upasampada Bhikku.
I need not go over in detail the various points argued before my brother.It is sufficient to note that, in the result, whilst my brother held that theRegistrar-General was under a legal duty to remove a name from hisregister on receiving notice from the Mahanayaka that the priest inquestion had been expelled from the Order, he refused to issue the writbecause he was not convinced of the propriety of the motives of theapplicant.
Now it is clear from the concluding passages of my brother’s judgmentthat he had in his mind that if he made the writ absolute he would beexposing the intervenient to a risk of a prosecution under section 42, andconversely that so long as the name remained on the Registrar-General’sregister the intervenient was safe.
> 39 N. L. R. 1S6.
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NIHJDL.L J.—Jayasuriya u Ratnajoti.
Under the special circumstances which were referred to fully in thejudgment, my brother was loathe to place the intervenient in a position“ of great disadvantage and even of great danger It occurs to me thatthe disadvantage and danger would have been as imminent had the Regis-trar-General changed his mind, and in view of my brother’s judgment, ful-filled his legal duty.
However for what reason I know not, the Registrar-General did notremove the name, hence the present proceedings.
Now in the light of the above-mentioned case, it is clear, and I thinkit is conceded, that the learned Magistrate had no option but to findas he did and to acquit the accused. Nevertheless as the view taken bymy brother was obiter and not a ruling on a matter expressly argued beforehim, I am invited to say that the view is wrong and to hold that “ register ”in section 42 means the ecclesiastical and not the Registrar-General’sregister.
It has been impressed upon me and I can well believe it that the matteris of great moment to the Buddhist hierarchy and priesthood and certainlyif I felt any real doubt as to the soundness of my brother’s obiter, I wouldsubmit the point to fuller authority. But can there be a real doubt? Ido not think so.
In considering the question it may be helpful to examine in detail thecomponent parts of the machinery of registration set up by the Ordinance.The aim of this machinery is clearly the protection of the public againstthe imposter ; the rogue, who under cover of the yellow robe, might fattenon the good will and charity of the pious laity. So therefore, after thecoming into force of the Ordinance every priest whether he was a fullyordained Upasampada or a Samanera was required to take certain steps.
In the case of the former he had to obtain Form A in the Schedule,fill it up and send it to the Registrar-General. In the case of the lattera like procedure on Form B had to be followed by the Viharadhipati ofthe temple in which the Samanera was resident.
Now the Registrar-General on receiving the forms which were sent tohim in duplicate had to retain one copy and send the other to the Maha-nayaka Thero or Nayaka Thero of the Nikaya or Sect concerned whosename appeared on the form. This being done, it was the duty of theRegistrar-General and the ecclesiastical heads to file their respective copiesand make registers.
Thus on the completion of all this there had come into existence acentral register kept by the Registrar-General, and a number of sectionalor sectarian registers scattered about in the various places, where the headsof sects and communities have their habitation.
It is true that after this, corrections, additions, and alterations to theregisters flow from the sectional registers to the central register and thatthe latter should mirror the former.
But what is the position of the public ? That becomes apparent in thesixth sub-section of section 41 which is as follows :—“ Such registers keptby the Registrar-General shall for the purposes of this Ordinance be
NIHILL, J.—Jayasuriya v. Ratnajoti.
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prirad fade evidence of the facts contained therein in all courts and for allpurposes; and subject to the prescribed regulations, every such registermay be searched and examined by any person claiming to be interestedtherein, and certified copies of or extracts from such registers may beobtained on payment of the prescribed feeIt is the central register which is the public’s protection. It would beno use for a person who might suspect the bona fides of an over-importunatepriest to hunt for a sectional register for he might never find it, and hissuspicions could not be finally allayed or confirmed until he had inspectedevery sectional register in existence. No, his proper course must be togo to the central register and there if the machinery has functioned he willfind the true position.
It may be urged that in the present case the machinery did not functionbecause the Registrar-General did not do his duty, but a failure to co-ordinate in one instance cannot alter the essential character of the centralregister which is clearly indicated in sub-section (6).
I regard it as significant also that the last sub-section of section 41is penal and that this is followed immediately by section 42. The effectis surely this ; the sixth sub-section of section 41 makes the Registrar-General’s registers “ for the purposes if this Ordinance ” and those wordsare important, prima facie evidence in all courts and for all purposes andgives the public a right of search. Sub-section (7) then makes itincumbent on every section of the priesthood, under pain of penallyto take the steps without which the Registrar-General’s registers couldnever be initiated or maintained.
Finally comes section 42 which makes it an offence for any UpasampadaBhikku or Samanera to hold himself out as such if his name does notappear on “ the register ” ; what can this mean but the register kept inthe place where the public have the right to go and see for themselves ?
Mr. Perera has argued that if the register in section 42 be the Registrar-General’s register, then the anomalous position is reached that if there isa failure on the part of the Registrar-General to do his duty, then a namemay appear on his register of a person who in fact has been disrobedby properly constituted ecclesiastical authority. That must be conceded,but I do not consider it a reason for altering the character of the offenceset out in section 42. The purpose of this part of the Ordinance is clearlythe protection of the public, not the maintenance of ecclesiastical disci-pline and as I have attempted to show, it is the Registrar-General’sregister which is the central cog of the machinery set up by the Ordinancefor this purpose. This does not mean that the absence of a name froma sectional register could never be of any value as evidence in anyproceedings.
There are a number of facts stated in Forms A and B and the Registrar-General’s register is but prima fade evidence of these facts.
Thus where the fact of expulsion from a Nikaya was the matter in issue,evidence that a name was no longer on the register of the MahanayakaThero might be conclusive in demonstrating that the name given in Item14 of Form A was no longer correct. But holding as I do that the register
82
Bartleet & Co. v. Commissioner of Stamps.
in section 42 is the Registrar-General’s register and none other, then on acharge alleging an offence under section 42, the probative value of theMahanayaka Thero’s register is nil, for the Court need not look beyondthe register of the Registrar-General.
True it is, if my view is correct, that it is possible for a priest who isno longer a priest (or is no longer permitted to function as a priest)to hold himself out as such and still not be guilty of an offence, but insuch a case the ecclesiastical authorities are not without their remedy,for it does not follow that because this Court has refused a Writ ofMandamus on the Registrar-General in one case on the ground of impropermotive, that it would not grant it in another case where such motive wasnot present.
Having reached the above conclusion on the meaning of the wordregister ” in section 42, there is nothing further for me to consider inthis matter and I accordingly refuse the application for revision.
Application refused.