* (1947) 49 N. L. R. 1.
Paragraph 5 is reproduced below in full :
“ Your petitioner further states that by reason of misconduct onthe part of the respondent his agents supporters and political connexionsand by reason of other circumstances the majority of electors were ormay have been prevented from electing the candidate whom theypreferred.”
'file petitioner contends that this paragraph, if it contains any chargeat all, contains only one charge while the respondent argues that itcontains at least two charges.
I shall now turn to the sections in the Order in Council which enumeratethe grounds for avoiding elections. Section 70 has enacted that theelection of a candidate as a Member is avoided by his conviction forany corrupt or illegal practice, while section 77 sjiecifies the grounds onproof of which the election of a candidate is required to be declaredvoid. The ground relevant to the present petition is specified in theOrder in Council in the language quoted below :
(a) that by reason of general bribery, general treating, or generalintimidation, or other misconduct, or other circumstances, whethersimilar to those before enumerated or not, the majority of electorswere or may have been prevented from electing the candidate whomthey preferred;
It was first contended on behalf of the petitioner that paragraph 5contains no charge at all within the meaning of rule 12 (2). Reliancewas placed on the definition of a charge as set out by Drieberg J. inTillekewardene v. Obeyesekere (supra) which was approved by the DivisionalBench in Perera v. Jayewardene (supra). In the first-mentioned ofthese cases, Drieberg J. stated “ in my opinion by the word ‘ charges ’in rule 12 (2) is meant the various forms of misconduct coming under thedescription of corrupt and illegal practices : for example, whatever maybe the number of acts of bribery sought to be proved against a respondentthe charge to be laid against him in a petition is one of bribery Ido not think it can be said that this definition—if it was intended to besuch—is exhaustive. As Viscount Simon stated in Harris v. Directorof Public Prosecutions“it must be remembered that every case isdecided on its own facts, and expressions used, or even principles stated,when the Court is considering particular facts, cannot always be appliedas if they w'ere absolute rules applicable in all circumstances. ”The Court was not concerned in either of the two cases, Tillekewardene v.Obeyesekere and Perera v. Jayewardene, with allegations of general bribery,general treating, general intimidation, or other misconduct which arestrictly not corrupt or illegal practices as defined in sections 54 to 71of the Order in Council. The allegations in the petitions in both thesecases were confined to what may strictly be called corrupt or illegal practi-ces. Our Courts have held that allegations of general intimidation andgeneral treating go to form a ‘ charge * as contemplated in the rule inquestion—vide Jeelin Silva v. Kularatne2. It is implicit also in the1 (1952) A. C. at 711.* (1942) 44 N. L. R. 21.
decision in Mohamed Mihvlar v. Nalliah1 that grounds (a) and (b) inthe petition on which that case commenced which did not by any meansallege the commission of any corrupt or illegal practice constitutedcharges within the meaning of rule 12 (2). At one stage of the argu-ment, learned counsel for the petitioner contended that every ground foravoiding an election is not a charge within the meaning of rule 12, andthat it is only a ground that involves the respondent (the elected candi-date) in some form of misconduct for which he is answerable that consti-tutes a charge. This proposition means that, allegations against personslike returning officers and others, allegations of general bribery, etc.and an allegation that the person elected was disqualified for electiondo not constitute charges at all. I am unable to agree that the argumentis sound ; it is indeed contrary to the practice that has hitherto obtained,and, if it is correct, it follows that where a petitioner alleges againstan elected candidate three charges of corrupt or illegal practices and oneor more charges against a returning officer or other officer, the amountthat is required to be given as security is Rs. 5,000. Such a situationleaves the respondent or respondents other than the elected candidatewithout security for his costs at all.
The next line of argument on behalf of the petitioner was that clause(a) of section 77 merely gives statutory recognition to the principle ofthe English Common Law that an election must be real and free, andthat the ground or reasons specified in clause (a) constitute but onecharge within the meaning of rule 12 (2). Reference was made to certainelection petition cases decided in England and elsewhere, but, with allrespect, I am unable to derive any assistance on the point in issueon this motion from cases decided in other jurisdictions wherethe amount of security for costs is not dependent on the numberof charges laid in an election petition. It was also contendedthat each of the clauses (a) to (e) contains but one charge, butthis contention, I fear, failed to take account of the fact that it is nowsettled that under clause (c) which must be taken as reading <f that acorrupt practice or practices or an illegal practice or practices was orwere committed ” several charges (within the meaning of rule 12) couldbe laid in a petition. It follows that a ground does not mean the samething as a charge and that a single ground may sometimes involveseveral charges.
There are certain dicta and decisions of election judges which bear onthe point that directly arises here and which, therefore, require examina-tion. In their chronological order, the first of these is an observationof Drieberg J. in Silva v. Karaliadde2 contained in the following passagefrom his judgment :
“ The petition makes charges of treating, bribery, undue influenceand conveyance of voters ; in paragraph 3 {d) the petition alleges‘ that by reason of general bribery, treating, intimidation, and othercircumstances the majority of voters were prevented from votingfor the candidate whom they preferred ’. It was no doubt intended
1 (1944) 45 N. L. R. 251.* (1931) 33 N. L. R. 85.
2*R 9904 (10/65)
to allege the offence set out in Article 74 (A). In my opinion thecharges of general bribery, general treating, and general intimidationwere distinct charges from those of bribery, treating and undueinfluence in regard to ascertained and named persons dealt with inArticles 51, 52 and 53 (of the Ceylon—State Council Elections—Orderin Council, 1931) respectively. ”
In the above observation the dictum that is relevant for the purposesof the motion before me is no doubt obiter, but it is permissible to saythat if treating, bribery and undue influence do constitute three separatecharges, there is little reason why general bribery, general treating, andgeneral intimidation should not similarly constitute three separatecharges. Eleven years later, Hearne J. in Jeelin Silva v. Kularatne(supra) stated “ The only question is how many charges did the petitioncontain ? The answer, as a matter of simple calculation, is four. Therewere three of corrupt practices alleged to have been committed by therespondent or his agents and one of general intimidation, general treating,etc. which, if proved, would have had the effect of unseating the success-ful candidate, even if connivance on his part or agency could not beestablished. It must, therefore, be held that the security tendered bythe petitioner was insufficient ”. I can hardly resist the inference thatthe main issue on which counsel and judge concentrated during theargument was whether the security of Rs. 5,000 deposited was sufficient.It would have been insufficient if the charges were in excess of three.It was immaterial whether the charges were four, five, or six.
Both these cases (Silva v. Karaliadde and Jeelin Silva v. Kularatne)came to be examined by Sri Skanda Rajah J. recently in 'Piyasena v.Ratwaite1, and that learned judge while recognising that the dicta inboth cases were made obiter, preferred to act as if the dictum of Hearne J.represented the correct position in law. In the petition before SriSkanda Rajah J. there were three charges alleging the commission, withthe knowledge or consent of the elected candidate, of the corrupt practiceof making false statements in relation to the personal character of acandidate (section 58), of treating (section 55) and of undue influence(section 56). In addition, there was a further ground or allegationthat “ such misconduct and/or other circumstances prevailed at thesaid election within the meaning of section 77 (a) that the majority ofelectors were or may have been prevented from electing the candidatewhom they preferred”. This ground or allegation was held by thelearned judge to constitute only one charge.
Next in point of time is the very recent decision of Sirimane J. inwhich he, on 30th September 1965, dismissed Election Petition No. 37of 1965, holding that the allegation reproduced below constituted thelaying of more than one charge :
“ By reason of misconduct on the part of the respondent, her agentsand supporters and others interested in promoting her candidature,and by reason of other circumstances (particulars of same to be1 {1963) 67 N. L. R. 473, 68 C. L. W. 41.
furnished with the particulars of the aforementioned charges) the
majority of electors were or may have been prevented from electing
the candidate whom they preferred. ”
Finally, there is the decision of Abeyesundere J. given on the next day,the 1st October 1965, when he came to dismiss Election Petition No. 1of 1965. That petition contained in paragraphs 3 and 4 what consti-tuted respectively a charge of committing a corrupt practice (section58) and a charge of committing an illegal practice (section 68A). Iunderstand the decision to mean that the allegation in paragraph 5that ** by reason of general intimidation and/or other misconduct and/or other circumstances, the voters were prevented from freely exercisingtheir franchise and electing the candidate of their choice ” containedtwo charges.
The petition (No. 6 of 1965) that is before me bears a close resemblanceto that dismissed by Sirimane J. Both petitions contained allegationsconstituting two charges of commission of corrupt practices. They alsocontain additional allegations that by reason of misconduct and byreason of other circumstances the majority of electors were preventedfrom electing the candidate whom they preferred. In regard to thenumber of charges contained in the additional allegations I have reachedthe same view as that which commended itself to Sirimane J. I respect-fully agree with his view that when the rule in question refers to a chargeit contemplates something in the nature of a complaint. Counsel forthe respondent suggested that anything that can avoid an election can bethe subject of complaint in a petition. The complaint need not neces-sarily be one against the elected candidate. It could take in othercircumstances, e.g., acts of God, on proof of which, with proof also thatthe majority of voters were or may have been prevented thereby fromelecting the candidate of their choice, the election is avoided. Imight add that I observe that in the course of his judgment, Sirimane J.states that “ misconduct ” in section 77 (a) would mean some act onthe part of the respondent which affects the result of the election. Hereagain, the judicial observation must be understood as having been madewith reference to the particular facts before the Court. The petitionin the particular case complained of misconduct on the part of therespondent, but I apprehend section 77 (a) as not being confined tomisconduct on the part of the elected candidate and his agents. I thinkclause (a) has a wider import and embraces the acts of persons quiteindependent of the elected candidate. General bribery, general treatingand general intimidation could avoid an election even where it has notbeen proved or even attempted to be proved that the elected candidateor his agents participated in those acts.
As a final argument the petitioner’s counsel urged that, in any event,paragraph 5 contains no more than one charge. I do not find it possibleto accede to this argument. If, as in my view it must be conceded,
“ other circumstances ” embrace inter alia, acts of God, a species ofacts which can by no means be said to be misconduct, then “ othercircumstances ” form a group of acts different from misconduct. Generalbribery, general treating and general intimidation appear to be regardedas forms of misconduct, but as clause (a) of section 77 itself expresslyrecognises that “ other circumstances ” need not be similar to the forms ofmisconduct specified in the section, it seems to follow that where othercircumstances are relied on in the petition a specific charge is to thatextent therein laid. I feel compelled to observe that much of the diffi-culty experienced in this class of case can well be avoided if, at the timeof drawing up an election petition, the draftsman gives his mind to thereal nature of the allegations relied on by the petitioner. As securitymust be given at the time of the presentation of the petition, or withinthree days afterwards, the petitioner must in any event advise himselfas to the correct number of charges he has laid. This is best done atthe time the petition itself is being drafted, and if that counsel be heeded,later heart-burning may be avoided.
I hold that the petition contains more than three charges. Securitygiven being only Rs. 5,000, it follows that security as provided in rule12 has not been given by the petitioner. I have therefore to grantthe motion of the respondent and to order the dismissal of the petition.I accordingly do so, and direct that the petitioner do pay the costs ofthe respondent which I fix, with consent of parties, at Rs. 1050.
Election petition dismissed.
1 (1931) 33 N. L. R. 65.