M. A. DANIEL APPUHAMY, Appellant, and T.B. ILLANGARATNE and 2 others, Respondent

029-NLR-NLR-V-66-M.-A.-DANIEL-APPUHAMY-Appellant-and-T.B.-ILLANGARATNE-and-2-others-Respondent.pdf


Lianiel Appuhamy v. Jllangaratne
97
1964 Present:Basnayake, C.J., Weerasooriya,andT. S. Fernando, J.M. A. DANIEL APPUHAMY, Appellant, and T. B. ILLANGARATNEand 2 others, Respondents
In the matter of an Appeal under Section 82A of Ceylon (Parlia-mentary Elections) Order in Council 1946 as amended byCeylon Parliamentary Elections (Amendment) ActsNo. 19 of 1948 and No. 11 of 1959
Election Petition Appeal No. 1 of 1963/Election PetitionNo. 8 of 1960 (Hevodheta)
Election petition—Charge of corrupt practice of making false statements of fact relatingto the personal character or conduct of a candidate—Evidence—Police reportsof speeches made at election meetings—Claim of privilege from production—•“ Unpublished official records ”—“ Affairs of State ”—Appeal from order ofElection Judge—Power of Court to order new trial—Scope—EvidenceOrdinance, es. 2 (2), 123, 124, 162, 167—Ceylon (Parliamentary Elections)Order in Council 1946 (as amended by s. 24 of Act No. 11 of 1959), as. 58, 79,82A, 82B.
Section 123 of the Evidence Ordinance reads as follows :—
“ No one shall be permitted to produce any unpublished official recordsrelating to any affairs of State, ot to give any evidence derived therefrom,except with the permission of the officer at the head of the departmentconcerned, who shall give or withhold such permission as he thinksfit, subject, however, to the control of the Minister.”
The appellant aiid the 1st respondent were rival candidates for a Parliamentaryseat, and the latter was declared duly elected. The appellant then filed anelection petition in which one of the grounds urged for invalidating the electionwas that the 1st respondent was guilty of corrupt practice under section 58 ofthe Parliamentary Elections Order in Council. The corrupt practice allegedwas that the 1st respondent, by himself or his agents, made false statements offact in relation to the personal character or conduct of the appellant. Thestatements in question were said to have been made at election meetings andto have been taken down and reported to their superior officers by certainpolice constables who, in terms of general instructions previously issued tothem, attended the meetings in plain clothes and made notes of what wassaid by the various speakers on specified points, one of them being anythingspoken by a candidate, or on his behalf, against the rival candidate.
The appellant sought to adduce in evidence the reports of the constablescontaining notes of the speeches made at the meetings attended by them. Butin respect of these reports a claim of privilege from production was raised
LXVT—5 & 6R 18867—1,855 (6/64)
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under section 123 of the Evidence Ordinance by the officer who brought thereports to Court in obedience to summons. This claim was upheld by theElection Judge who refused permission for the production of the reports.
Held, that the Election Judge was wrong in upholding the objection to theproduction of the reports of the police constables. The record of a speechmade in public by a candidate, or his agent, is not an unpublished officialrecord relating to any affairs of State within the meaning of section 123 of theEvidence Ordinance. The fact that it is taken down by a police officer andforwarded to his superior or recorded in the information book does not alterits character.
The second question for consideration in the present appeal was whetherthe election petition should, in terms of section 82B (3) of the ParliamentaryElections Order in Council, be tried anew in regard to ihe charge of corruptpractice, or whether the appeal should be dismissed although the questionof law arising on the appeal was decided in the appellant’s favour.
Held (T. S. Fernando, J., dissenting), that in the circumstances of thepresent case the provisions of section 167 of the Evidence Ordinance were notapplicable and that the charge of corrupt practice should be tried anew inaccordance with certain specified directions.
^^PPEAL filed under the provisions of the Ceylon (ParliamentaryElections) Order in Council in respect of Election Petition No. 8of 1960 (Hewaheta).
H. W. Jayewardene, Q.G., with P. N. Wikramanayake and N. R. M.Daluwatte, for Petitioner—Appellant.
8. Nadesan, Q.G., with A. Mahendrarajah, R. R. Nalliah, and RajahBandaranaike, for 1st Respondent-Respondent.
Gur. adv. vult.
February 17, 1964. Bashayake, C.J.—
This is an appeal, under section 82A of the Ceylon (ParliamentaryElections) Order in Council, 1946, as amended by section 24 of the CeylonParliamentary Elections (Amendment) Act No. 11 of 1959, by thepetitioner who unsuccessfully presented a petition, under section 79 ofthe above-mentioned Order in Council, in which he claimed—
(a) a declaration that the election of the respondent Tikiri BandaraIllangaratne (hereinafter referred to as the respondent) isvoid,
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a declaration that the return of the respondent was undue,
a declaration that he was duly elected and ought to have been
returned, and
a scrutiny.
The two questions that arise for decision on this appeal are—
Whether the learned Election Judge was wrong in not permitting
the production in evidence of the record of the speeches madeat the election meetings of the respondent on 3rd, 6th, 8th and16th July 1960 made by police constable Dedigama RalalageDon Dhanapala (No. 7357), and
if so, whether we should order the election petition to be tried
anew in regard to the charge of committing the corrupt practiceof making or publishing, before or during the election, for thepurpose of affecting the return of the petitioner, false statementsof fact in relation to the personal character or conduct of thepetitioner.
In regard to the first of the above questions, the material facts areshortly as follows :—Police Constable Dhanapala was an officer attachedto the Talatuoya Police Station in 1960. In July of that year he wasassigned the duty of attending election meetings and making notes ofthe speeches that were made. He was not expected to take down thespeeches verbatim. In Dhanapala’s own words this is what he wasrequired to do—
“ If any speaker at a ifaeeting spoke disparagingly of the governmentwe were to note it down. If any person was reprimanded or if somespeaker said anything against a person we were to make a note ofthat ….
…. I made a note of the names of the speakers and a short
note of what they spoke. When the election meeting was over Iwent back to the station and an entry was made of the fact that we hadreturned. Thereafter, I prepared a report of what I had taken down.The preparation of such a report had to be done immediately wereturned to station. I made my reports in five copies. Those 5 copiesI would hand over to the Officer in Charge. As to what he didwith those 5 copies I do not know. I was instructed to make a noteof the date and time of the meetings I covered. The place of themeeting was also made a note of by me and also, roughly, the numberof persons who were at the meeting. The name of the person whopresided over the meetings was also noted down.”
The officer in charge of the Talatuoya Police Station and the Superin-tendent of Police, Kandy, were summoned to produce Police ConstableDhanapala’s records of the proceedings of the meetings he attended. Theofficer who represented the Superintendent of Police, Kandy, and who
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was authorised to take the documents to Court in obedience to thesummons claimed that the document was protected under section 123of the Evidence Ordinance. Learned counsel for the respondent alsoobjected to their production. After hearing counsel for the petitionerand the respondent and the Attorney-General who appeared as amicuscuriae and taking into account the affidavit filed by the Inspector-Generalof Police, the learned Judge upheld the plea of privilege. In his affidavitthe Inspector-General of Police said inter alia—
“ 3. It has been and is the practice of my Department to gatherinformation and intelligence from various sources in the interests ofthe preservation of public order and security of the State. Onemethod of collecting such information and intelligence is by requiringPolice officers in plain clothes to attend meetings and to forwardreports thereon to certain superior officers.'
The documents referred to in paragraph 2 hereof are reportsmade by Police officers who in plain clothes attended, and thereafterreported on, certain election meetings held in Hewabeta Electorate,in July, 1960.
I have carefully examined the contents of each of the documentsreferred to in paragraph 2 hereof and I have formed the opinion thatit would be injurious to the public interest if these documents are tobe produced because they belong to a class of documents the productionof which would indicate or tend to indicate the sources of Policeinformation given in confidence, the nature of the information gatheredand the persons to whom such information is communicated.
The said documents are unpublished official records relatingto affairs of State and belong to a class of documents the practiceof keeping which secret, is necessary for the proper functioning ofthe Public Service.
Accordingly, I object to the production of these unpublishedofficial records and have refused permission to the various officersmentioned in paragraph 2 hereof to produce the said documentsin Court or to give any evidence derived therefrom.”
I shall now turn to section 123 of the Evidence Ordinance. Thatsection reads—
“No one shall be permitted to produce any unpublished officialrecords relating to any affairs of State, or to give any evidence derivedtherefrom, except with the permission of the officer at the head ofthe department concerned, who shall give or withhold such permissionas he thinks fit, subject, however, to the control of the Minister.”
The above provision imposes a duty on the Court not to permit anyperson to produce or tc give any evidence derived from “ any unpublishedofficial records relating to any affairs of State ”, unless the officer atthe head of the department concerned gives permission to do so. Except
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in the case of a document whose very name or nature indicates thatit relates to affairs of State the Court would find, itself unable to decidewhether the document contains matter coming within the ambit ofthe expression “ affairs of State ” without examining it. It is submittedthat in deciding whether the production of a document shouldnot be permitted on the ground that it is barred by section 123,the Court is precluded by section 162 (2) of the Evidence Ordinancefrom inspecting the document. The material subsections of section 162read—
“ (1) A witness summoned to produce a document shall, if it is inhis possession or power, bring it to court, notwithstanding any objectionwhich there may be to its production or to its admissibility. Thevalidity of any such objection shall be decided on by the court.
(2) The court, if it sees fit, may inspect the document, unless itrefers to matters of State, or take other evidence to enable it todetermine on its admissibility.”
The difference in phraseology between section 123 and the abovesubsection is noteworthy. The former speaks of “ unpublished officialrecords relating to any affairs of State” while the latter speaks of “matters■of State ”. Quite apart from the fact that in the former the referenceis to “ any affairs of State ” and in the latter to “ matters of State ”the qualification that the documents should be official records and thatthey should be unpublished are not in subsection (2). That subsectionis an empowering provision. It empowers the Court to inspect a docu-ment or take other evidence in order to determine on its admissibility.It confers no such power when the Court has to determine whetherthe document is one that may not be produced. < Even when the Court.has to determine on the admissibility of a document, the power ofinspection does not extend to documents which refer to matters of State.The question then is, may the Court inspect a document relating toaffairs of State ” for the purpose of exercising the function vestedin it by section 123. The wide difference in phraseology between the-two sections leads me to the conclusion that section 162 (2) does notJiave any application to section 123. The two provisions deal with■different classes of documents, and different purposes. Section 123 isconcerned with preventing the production of unpublished official recordsTelating to any affairs of State ; section 162 (2) is concerned with em-powering the Court to inspect a document when it is called upon to decidewhether a document is admissible or not. Apart from the fact thatsection 162 (2) does not forbid the Court from inspecting a documentrelating even to a matter of State when it is called upon to decidewhether the document is one that may be produced, section 162 (2)which is a later section from its very nature and language has no applica-tion to section 123. No implied prohibition in section 162 (2) extendsto section 123.
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For the purpose of exercising its functions under that section the Courtis untrammelled by section 162 (2) or any other section and may inspectthe document which it is invited to shut out thereunder. It is anestablished canon of interpretation of statutes that when a power isconferred by statute all powers necessary for the effective exerciseof that power are conferred by implication. Section 123 must thereforebe regarded as conferring those implied powers ; because the Courtcannot effectively exercise its far-reaching powers without them. Thereis nothing in section 123 or any other section which requires the Courtto proceed with eyes shut. If the intention of the Legislature was thatthe Court should act blindfold when determining the questions arisingunder section 123, it would have expressed it in no uncertain terms andnot in the indirect way it is urged it has done. The language of section162 (2) does not in my view warrant so grave an intrusion on the impliedpowers of the Court to examine the document before ruling it out, becauseclear and unmistakable words must exist in an enactment before anintention to subordinate the interests of justice to any other interestis imputed to the Legislature. Such words are not to be foundanywhere in the Evidence Ordinance. To impute such an intentionto the Legislature would be most unfair.
• If a document is an unpublished official record relating to any affairsof State, the Court is bound not to permit its production. But thehead of the department concerned has a discretionary power to grantpermission to produce such a document. The question whether thepublic interest will suffer or not does not arise under section 123, becauseif the document, the production of which is sought, comes within theambit of the section, the Court must shut it out and is not entitled tolet it in on the ground that the public interest will not suffer or on anyother ground. Whether the public interest will suffer or not is a con-sideration which the head of the department concerned may properlytake into account in exercising the discretion vested in him. Whetherthe Court has power to overrule the head of department concerned onthe ground that the public interest will not suffer by the disclosureof the contents of a document does not arise under section 123, nor isan affidavit such as the one furnished by the Inspector-General or inany other form called for in deciding whether a document falls withinthe ambit of section 123. Whether the document has been publishedor not, whether it is . an official record or not, and whether it relatesto any affairs of State, are questions of fact. The decision of these ques-tions of fact will of course be preceded by a decision on the meaning ofthe expression “ affairs of State ”, which is a question of interpretationand as such is a matter of law. If the Court requires evidence in orderto decide the questions arising for decision, such evidence must be takenin open Court, as our law does not provide for the taking of evidenceby affidavit except in certain specified cases ( s. 179 Civil ProcedureCode). If the head of department concerned withholds his permission,the Court cannot overrule him or query his decision. The question ofpublic interest arises only under section 124 and there too the judge
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of whether the public interest would suffer by the disclosure or communi-cation made to him in official confidence is the public officer concernedand the Court has no power to overrule him or override his opinion.
The Court, as stated above, being under a duty to protect fromproduction in evidence unpublished official records relating to any affairsof State, has to be vigilant when it is sought to produce any documentregardless of whether immunity from production is claimed or not.It has power ex mero motu not to permit the production of documentswhich are unpublished official records relating to any affairs of Stateunless the head of the department concerned gives permission.
Now, as to the expression “ affairs of State ”, it has not been defined,though often used in relation to the business of the State, such as mattersconnected with international diplomacy, minutes of public servantsto their colleagues or superiors regarding the business of Government,State secrets, and such like documents connected with statecraft. Theclass is a narrow class and does not vary with the expansion of the Govern-ment’s field of activity. The expression certainly does not includeevery record made by a police officer in the course of duties entrustedto him. In seeking to illustrate the meaning of the expression “ affaireof State ”, Field in his Treatise on the Indian Evidence Act(6th Ed., p. 408) gives the following as illustrative of documents relatingto affairs of State—
“ Communications between a Colonial Governor and his Attorney-General on the condition of the colony, or the conduct of its officer,or between such Governor and a military officer under his authority ;the report of a military commission of enquiry made to theCommander-in-Chief and • the correspondence between an agent ofthe Government and a Secretary of State ; ”
If the State undertakes trade or social welfare, its trading or socialwelfare activities do not become affairs of State though they areundertaken by the State. Our Evidence Ordinance was enacted in 1895at a time when the activities of the State were confined to gubernato-rial functions. Neither social welfare nor trade came within the ambitof the State’s activities. At that time the expression “ affairs of State ”must have been confined to matters relating to diplomacy and state-craft and the business of government. Words such as these in a statuteshould be given the meaning they held at the time the statute was passed.
Although documents which are protected by section 123 are referred toas privileged documents, it is not correct to do so. When counsel ora public officer or any other person invites the Court not to permit theproduction of a document to which section 123 applies, he claims noprivilege. His act is an invitation to the Court to obey the imperativeprohibition in that section. The question of privilege arises undersection 124. There a public officer enjoys the privilege of decidingwhether he may disclose or not communications made to him in officialconfidence. The concepts of English Law have crept into our system
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and. when discussing section 123, both here and in India, Judges andlawyers speak of privilege. Clearly the record of a speech made in publicby a candidate at an election meeting is not an unpublished recordrelating to any affairs of State. The fact that it is taken down by apolice officer and forwarded to his superior or recorded in the informationbook does not alter its character.,
Little assistance can be gained by reference to English Law. Therethe claim of privilege is one based on the common law and the usageof the Courts. The development of the English Law has been largelyinfluenced by public policy and has undergone change over the years.Scrutton L.J. describes the practice thus—
“…. It is the practice of the English Courts to accept the
statement of one of His Majesty’s Ministers that production of a parti-cular document would be against the public interest, even thoughthe Court may doubt whether any harm would be done by producingit. I have been informed on very high authority that the practicein Scotland is different; that there the judge looks at the documentand orders it to be produced if he does not agree with the Minister’sreasons for considering its production to be against the public interest.No harm seems to have resulted from this practice. But that isthe law in England.” (Ankin v. London and North Eastern RailwayCompany, (1930) 1 K. B. 527 at 533.)
This view of the English Law was affirmed in Duncan v. CammellLaird & Co. Ltd.1 which still is regarded as the leading case on thesubject. Occasionally Judges look at the document as in Spigelman v.Hocken and another, Qoldblatt v. Same, reproduced in LI South AfricanLaw Journal (1934) where Macnaghten J. examined the documentobjected to and admitted it despite the claim of privilege. In Scotlandthe law is that the Court is entitled to look at the document in order todetermine whether its contents should be protected from disclosure(Glasgow Corporation v. Central Land Board 2).
A large number of English cases have been cited by both sides, butit is not necessary to refer to them for the reason above stated. InEngland in the last decade, the tendency has been on the ground of publicpolicy to refuse to permit the production of even documents which dis-close no state secrets. The Crown Proceedings Act 1947 (s. 28) 10 & 11Geo. VI, c. 44, while removing the immunity of the Crown from dis-covery, makes no alteration in the rule as to withholding of documentsin the public interest. The views of academic writers in Englandexpressed in their contributions to learned journals indicate adissatisfaction with the present trend, as the interests of justice arenot served by the extension of the protection (see Article by J. E. S.Simon in 1955 Cambridge L? w Journal, p. 62, on Evidence Excludedby Considerations of State Interest).
1 (1942) A. C. 024.
2 {1956) S. L. T. (H. L.) p. 41■
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The trend of judicial opinion too is towards a more liberal approachto the problem in order to ensure that the rule does not result in a denialof justice (see Broome v. Broome and observations of Lord Evershedin Auten v. Rayner2). In the most recent pronouncements on thesubject in the case of Merricks and another v. Nott-Bower and others(London Times, 31st January 1964), the Court of Appeal went muchfurther than before in confining the Cammel Laird case to the setting inwhich it had been decided. The certificate in Merricks case was in thefollowing terms :—
“ I have personally examined the minutes on the official Metro"politan Police file relating to the transfer of the plaintiffs . . . andhave formed the view that on the grounds of public interest the minutesought not to be produced because they belong to a class of documentswhich it is necessary in the public interest for the proper functioningof the public service to withhold from production. ”
and Lord Denning said—
“ . . . . The certificate used the words which Lord Simon hadused in Duncan v. Cammel Laird & Co. (1942) A. C. 624 at p. 642 ;but those words of Lord Simon had not been necessary for thedecision in the Duncan case, and he would not have wished them tobe used as if they were the words of an Act of Parliament.
The practice seemed to have grown up since that decision that allthat a Secretary of State had to do was to give a certificate and putin those words as if pronouncing a spell, thereby making all documentstabu. Indeed the formula had only to be set out, it would appear,and the Court was for ever blindfold. If that were indeed the stateof affairs it would be deplorable, for there was a natural temptationfor people in executive positions to regard the interest of the depart-ment as paramount, without realizing that in many cases a greaterinterest—the interest of justice itself—had to be considered. It wasnot sufficient to repeat the words of Lord Simon. When a class ofdocument was referred to, his Lordship would like to see that classdescribed in such a way that anyone—Parliament, the public, and theCourt and the litigants—could see that it was only right that thosedocuments should be withheld from production. If there was adefect in a certificate, an opportunity might be given to deal withit; but at the moment his Lordship did not think the Minister’scertificate in this case was sufficient to claim protection and hewould not on that ground strike out the cause of action in libel.”
Lord Justice Salmon in his judgment was even more critical of theexisting practice than Lord Denning—
“ Duncan’s case had been decided in the darkest days of the war—in 1942—before the battle of Alamein. If the documents there con-cerned had been made public it was obvious that their publication
1 U955) TT. L. R. 402.* (1958) 1 S. L. R. 1300 at 1303.
R 18857 (6/64)
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could have been of the greatest assistance to the enemy. It followed,therefore, that when Lord Simon added to the category of documentsfor which a certificate might be given, ‘ a class of documents whichit is necessary to keep secret for the proper functioning of the publicservice ’ those words were completely obiter, and though of very greatpersuasive authority, they were not binding, particularly on the Houseof Lords. Clearly documents passing between high officers of stateshould be kept secret; but those words obiter of Lord Simon had inthe last 20 years given rise to a practice that everything, howevercommonplace, which had ever passed between one civil servant andanother behind the departmental screen should be kept secret on thespecial ground that the possibility of its disclosure in a legal actionwould impair the freedom and candour of official reports or minutes.In cases of this kind—his Lordship said this with great diffidence—it was a pity that the law of this country could not be brought intoline with the law of Scotland where if Crown privilege was being claimedfor a document, as, for instance, some communication between oneminor civil servant and another, the Court, while accepting the viewof the Minister as expressed in his certificate, was entitled to say :
. * Well we must accept the view that this is regarded by theMinister as prejudicial of public interest: but in a case such as this,the administration of justice is the over-rid'ng consideration/ Thoughit was a power which the Court used sparingly, it was a useful power,particularly having regard to the practice which had grown up ofgiving a very wide construction to the language of Lord Simon.”
In 1956 the Lord Chancellor (London Times, 7th June 1956) madea statement in regard to Crown Privilege {vide Appendix ‘ A ’j1 whichdisclosed that the Crown was narrowing the privilege hitherto claimedby it; but in practice there appears to have been no substantial changeof policy. In India, where the Law of Evidence is codified as in Ceylon,the provision corresponding to our section 123 is slightly different.It reads—
“ No one shall be permitted to give any evidence derived fromunpublished official records relating to any affairs of State, except withthe permission of the officer at the head of the department concerned,who shall give or withhold such permission as he thinks .fit.”
The difference between the two sections is that our section bars bothdocuments to which it applies and oral evidence of their contents, whilethe Indian section does not make express mention of the productionof documents. But the main question for decision remains the sameunder both sections, viz., “ What are unpublished official records relat-ing to any affairs of State ? ”. The Indian Judges have, in construingthe statute, allowed concepts peculiar to English Law to creep in andthe result has been that matters that have no place in the statute havebeen allowed to influence their judgment (see Chamarbaghwalla Parpia 2).In construing our Evidence Ordinance it would not be correct to approach
1 Page III (infra).
s (1950) A. I. B. Bombay, p. 23G.
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it with preconceived notions of English Law and treat section 123 asa statutory declaration of that system of law. The proper approachto a Code has been stated long ago in the following words {Bank of Englandv. Vagliano Brothers x, cited with approval in Narendra Nath Sircar v.Kamalbasini Dasi a)—
“the proper course is in the first instance to examine
the language of the statute and to ask what is its natural meaninguninfluenced by any considerations derived from the previous stateof the law, and not to start with inquiring how the law previouslystood, and then, assuming that it was probably intended to leaveit unaltered, to see if the words of the enactment will bear an inter-pretation in conformity with this view. If a statute, intended toembody in a code a particular branch of the law, is to be treated inthis fashion, it appears to me that its utility will be almost entirelydestroyed, and the very object with which it was enacted will befrustrated. The purpose of such a statute surely was that on anypoint specifically dealt with by it the law should be ascertained byinterpreting the language used instead of, as before, roaming over a vastnumber of authorities in order to discover what the law was, extractingit by a minute critical examination of the prior decisions . . . . ”
The wise words above cited have been overlooked by many learnedJudges both here and elsewhere. When construing section 123 it hasbeen the practice to refer to and cite extensively from English decisions.The danger of such a course is that we may get lost in the contentiousmatters of the English system which do not exist in our law. It isnot necessary to review the Indian decisions. The decision of theSupreme Court of India in State of Punjab v. S. S. Singh3 was cited tous by counsel for the appellant and criticised at length by learnedcounsel for the respondent. The learned Judges in that case too didnot seek to define the expression “ affairs of State ”. It was statedthere, as I have done here, that whether a document falls withinsection 123 is a question of fact. The majority judgment stated—
“ . . . . The question as to whether any particular document ora class of documents answers the description must be determinedin each case on the relevant facts and circumstances adduced beforethe Court.”
The learned Election Judge fwas, in my opinion, wrong in notpermitting the production of the record made by Police ConstableDhanapala of the speeches at the meetings in question.
Before I leave this part of the judgment I should add that, althoughI have discussed the law with special reference to the evidence of PoliceConstable Dhanapala and the production of the records of speeches 1
1 {1891) A. C. 107.2 23 L. R. I. A. {1895-96) p. 18 at 26.
8 A. I. R. {1961) S. G. 493 at 502.
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at election meetings attended by him, what I have said above appliesequally to the records of speeches made by other police officers whomthe petitioner listed as witnesses whom he intended to call.
I accordingly set aside the order of 20th December 1962 upholdingthe claim of privilege and refusing under section 123 of the EvidenceOrdinance to permit the production of certain documents. Whileupholding the decisions of the Election Judge as to a recount and inregard to the charge of undue influence, I set aside the order of 8thFebruary 1963 dismissing the petition of the petitioner. As two outof the three grounds on which the learned Election Judge dismissedthe Election Petition have not been canvassed in appeal, I think it isjust and proper that the order for costs made by the Election Judgeshould not be set aside.
I now come to the second question. Inspector Piyadasa, Inspectorof Police, Tangalle, who was at the material date in charge of theTalatuoya Police Station, gave evidence of statements made at theelection meetings at which he was present. At the meeting held on3rd July, 1960 which he attended, he stated that the respondent said—
“ . . . . the rival candidate was a bus magnate, and he hadacquired a portion of land behind the Police Station for a housingscheme, and as the buses were taken over by the Government, andas the land was acquired by him for a housing scheme, he has comeforward to fight this Election. He further said that as Chairman ofthe Village Committee of Talatuoya the other candidate had mis-appropriated funds from the Galaha Theatre and he carried on.”
Piyadasa was disbelieved by the learned Election Judge. Dhanapalaalso attended that meeting and recorded the speeches. It does notappear from the judgment that even if the records made by Dhanapalahad been produced and they corroborated Piyadasa, the learned Judgewould, notwithstanding the corroboration, have disbelieved him.He states in the course of his judgment—
“ . . . ., I am not satisfied with the evidence of Inspector Piya-dasa to feel safe to hold the respondent Mr. Hangaratne guilty ofa corrupt practice of making a false statement referred to. InspectorPiyadasa is speaking from memory of an incident that took placemore than 2£ years ago. Moreover, there is evidence to show thatrightly or wrongly, he has a bias against Mr. Hangaratne because ofcertain allegations made by Mr. Hangaratne during the electionsthat certain Police Officers were working against him at that time.Even in the course of giving evidence before me, I could not helpfeeling and sensing that Mr. Piyadasa suffered from a feeling of biasagainst Mr. Hangaratne, which renders his evidence suspect in myeyes. As a finding of fact therefore, I also hold that I am not satisfiedthat the alleged statement has been proved to have been made.”
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It would appear from the words quoted above that the learned Judge’sdisinclination to act on Piyadasa’s evidence was partly influenced bythe fact that Piyadasa was speaking from memory of what he had heardabout 2£ years ago, and partly by the fact that he had a bias againstthe respondent. It is not possible to state to what extent Dhanapala’srecord of the speech would have affected the judgment of the learnedJudge. If it corroborated Piyadasa, it is not likely that he would havebeen entirely uninfluenced by it. The question then is what order arewe to make. Before 1959, when section 82B was amended, this Courthad power upon an appeal only to affirm or reverse the determinationof the Election Judge. ' In 1959 the section was amended to read—• •
“ 82B.(1) The Supreme Court may, upon any appeal preferred
under section 82A, affirm, vary or reverse determination or decisionof the election judge to which the appeal relates.
Where the Supreme Court reverses on appeal the determinationof an election judge under section 81, that Court shall decide whetherthe Member whose return or election was complained of in the electionpetition, or any other and what person, was duly returned or elected,or whether the election was void, and a certificate of such decisionshall be issued by that Court.
The Supreme Court may in the case of any appeal undersection 82A, order that the election petition to which the appeal relatesshall be tried anew in its entirety or in regard to any matter specifiedby that Court and give such directions in relation thereto as thatCourt may think fit.
The Supreme Court may make any order which it may deem justas to the costs of the appeal and as to the costs of and incidental tothe presentation of the election petition and of the proceedings con-sequent thereon, and may by such order reverse or vary any orderas to costs made by the Election Judge ; and the provisions of theThird Schedule to the award, taxation and recovery of costs shallmutatis mutandis apply in relation to the award of such costs by theSupreme Court and the taxation and recovery thereof.
The decision of the Supreme Court on any appeal shall be finaland conclusive.”
Section 82B in its present form empowers this Court to take one oftwo courses in a case when it reverses the decision of the Election Judge.It may decide whether the member whose return or election was com-plained of in the election petition, or any other and what person, was dulyreturned or elected, or whether the election was void, or order that theelection petition shall be tried anew. In the instant case the courseprovided in subsection (2) cannot properly be taken and we are leftwith that provided in subsection (3).
Where the trial Judge has formed his conclusions of fact withouthearing evidence which is material, it is necessary that there shouldbe a trial at which the Judge should hear all the admissible evidence
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that the petitioner was seeking to prodace. I therefore in terms ofsubsection (3) order that the election petition should be tried anew.Now subsection (3) empowers this Court to order a new trial of anelection petition in its entirety or in regard to any matter specified bythis Court. The petitioner in his election petition asked for a recount andalso that the return of the 1st respondent be declared null and void byreason of the corrupt practices of undue influence and of making falsestatements of fact in relation to the personal character of the petitioner.Although the learned Election Judge held against the petitioner on allthe grounds which were urged at the trial, learned counsel for the appel-lant did not seek to canvass the decisions as to the recount and on thecharge of undue influence. He confined the argument at the hearingof the appeal to the charge of making false statements. The new trialshould therefore be only in respect of the charge of making falsestatements. Sub-section (3) also empowers this Court to give suchdirections in relation to the new trial as the Court may think fit.
■ In the circumstances of this case it seems to me reasonable that direc-tions should be given in regard to the new trial in view of the fact thatInspector Piyadasa was the only witness called to give oral evidenceof false statements affecting the character of the petitioner. It is right° and proper therefore that the petitioner should not be permitted at thestage of the new trial to call those witnesses whom he was not precludedby the ruling of 20th December 1962 from calling and whom he refrainedfrom calling at the first trial. He should be permitted at the new trialto call Inspector Piyadasa and all other witnesses called at the first trialto establish the charge of making false statements and all the witnesseshe was precluded from calling by the ruling of the Election Judgeon 20th December 1962. He should also be permitted to call any otherwitness who according to the law of Evidence should be called in orderto make admissible the evidence of the witnesses whose evidence willbe led in consequence of our decision in appeal. I direct that thepetitioner should also be permitted to—
(а)lead evidence to prove the falsity of any statement in regard
to the making of which evidence is adduced, or to prove thatany person referred to in the particulars as having made afalse statement, was an agent of the 1st respondent, providedthe name of such witness appears in a list of witnesses alreadyfiled by him, and
(б)call any witnesses the petitioner may have to call in rebuttal
where he is entitled in law to call evidence in rebuttal.
The Election Judge is also directed to exercise all powers that areancillary or incidental to the carrying out of the above orders anddirections. I
I order the 1st respondent to pay to the petitioner the costs of appeal.
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APPENDIX •« A ” *
CROWN PRIVILEGE FOR DOCUMENTS AND ORAL EVIDENCELord Chancellor’s Statement
A statement on Crown privilege was made in the House of Lords yesterday bythe Lord Chancellor in reply to Lord Towitt, who asked whether the Governmenthad any statement to make on their policy in relation to the claiming of .Crownprivilege for documents and oral evidence.
The LORD CHANCELLOR said : “ The Government has had under considera-tion for some time the whole problem of Crown privilege for documents and oralevidence. It is not a new problem, but has come into some prominence in recentyears. This is not due to any extension of the principles on which privilege is claimed,but because since the Crown Proceedings Act, 1947, the Crown has been liable intort or in delict and can be sued in the same way as private persons, and that hasthrown into relief its privileged position with regard to the production of documentsand other evidence.
With regard to documents, the Lord Chancellor continued, the law in England,as laid down in the House of Lords case of Duncan v. Cammell Laird[(1942) A.C.624]enabled Crown privilege to be claimed for a document on two alternative grounds ;first, that the disclosure of the contents of the particular document would injure thepublic interest, for example, by endangering public security or prejudicing diplo-matic relations; secondly, that the document fell within a class which the publicinterest required to be withheld from production, and Lord Simon particularizedthis head of public interest as “the proper functioning of the public service”.The Minister’s certificate of affidavit setting out the ground of the claim must inEngland be accepted by the Court.
POSITION IN SCOTLAND
In Scotland Crown privilege could be claimed on either of those two grounds, butit was now clear from the decision in Glasgow Corporation v. Central Land Boardthat the Court in Scotland had an inherent power to override the Minister’s certi-ficate or affidavit; but, as Lord Normand said in the Glasgow Corporation case“ the power has seldom been exercised and the Courts have emphatically saidthat it must be used with the greatest caution and only in very special circum-stances.” As far as he (the Lord Chancellor) knew it had only been exercised ontwo occasions in the last 100 years. The position in Scotland, therefore, althoughsubstantially different in principle, might not be very different in practice.
The claiming of Crown privilege on the first ground Rad always been acceptableto the Courts and public opinion. Where, however, the claim had been made onthe ground that the document belonged to a particular class, especially in proceed-ings where the Crown’s position seemed very like that of an ordinary litigant, ithad been criticized on the ground that the administration of justice was itself amatter of public interest and should be weighed against the other head of publicinterest, i.e., “ the proper functioning of the public service”.
The reason why the law sanctioned the claiming of Crown privilege on the * * class”ground was the need to secure freedom and candour of communication with and withinthe public service, so that Government decisions could be taken on the best adviceand with the fullest information. To secure this it was necessary that the classof documents to which privilege applied should be clearly settled, so that the persongiving advice or information should know that he was doing so in confidence. Anysystem whereby a document falling within the class might, as a result of a laterdecision, be required to be produced in evidence, would destroy that confidence andundermine the whole basis of class privilege, because there would bo no certaintyat the time of writing that the document would not be disclosed.
FOR MINISTER
It was sometimes suggosted that a claim for privilege on the class basis shouldbe referred to and decided by a judge. This suggestion went much further thanthe position in Scotland, where the power of the judge was only exercisable “ in veryspecial circumstances ” and did not permit any examination of the ground of theclaim. This ground—namely, “the proper functioning of the public service”—must in the view of the Government be a matter for a Minister to decide, with hisknowledge of government and responsibility to Parliament, rather than for a judge.
* Appendix “ A ” is referred to at page 106 (supra).
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A judge assessed the importance of a particular document in the case that he washearing, and his inclination would be to allow or to disallow a claim for privilegeaccording to the contents and the relevance of the document, rather than to considerthe effect on the public service of the disclosure of the class of documents to whichit belonged. The result would be that the same kind of document would sometimesbe protected and sometimes disclosed, and that would be destructive of the wholebasis of the class claim.
Claims of Crown privilege were made in respect of all documents falling withinthe class, irrespective of whether their production would be favourable or unfavour-able to the Crown’s interests. All Crown lawyers were familiar with cases in whichthe Crown’s interests had in fact been prejudiced by the application of the rule.
STRIKING THE BALANCE
The proper way to strike a balance between the needs of litigants and those ofGovernment administration was to narrow the class as much as possible by excludingfrom it those categories of documents which appeared to be particularly relevantto litigation and for which the highest degree of confidentiality was not required in.the public intorest. “ We have carried out an extensive survey of the field, andhave certain proposals to make along these lines, ” the Lord Chancellor continued.
A very large part of present-day Crown litigation consisted of actions arising outof accidents on the road or involving Government employees, or on Governmentpremises. Where such an action was brought against a Government departmentthe most relevant documents were the reports of the employees involved and ofother eye witnesses. ‘ ‘ In our opinion the Crown privilege ought not be to claimedfor these documents, and we propose not to do so in the future.”
With regard to the report of a Government inspector, such as a factory inspector,the department was not concerned as an employer or an owner of property, but wasexercising governmental functions, and different considerations arose. “ We thinkthat in this case the report should be privileged, but that the inspector shouldbe allowed to give evidence on matters of fact.”
MEDICAL REPORTS
Secondly, medical reports and records had been considered. In the recent caseof Ellis v. the Home Office [(1953) 2 Q.B. 135] judicial criticism was directed at aclaim for'privilege for reports made by a prison doctor which might have beenrelevant to the claim for negligence against the Crown. It was proposed, first,that ordinary medical records kept by departments in respect of the health of civilianemployees should not be the subject of Crown privilege. In the case of medicalreports and records in the fighting Services it was considered that privilege shouldstill be claimed, so far as proceedings between private litigants, usually matrimonialproceedings were concerned. Service doctors owed a special duty to the commandingofficer, andfrank reports were essential. It was also important in the Services thata man should report readily to the medical officer, who was a doctor not of hischoice but in whom he must have confidence ; this was especially so in the case ofvenereal disease. Some of these considerations applied to prison doctors, and theirreports and records should still be privileged.
Where, however, the Crown or the doctor employed by the Crown was being suedfor negligence, it was proposed that privilege should not be claimed. With regardto both proposals, there might be reports of a special confidentia Icharacter whichought still to be privileged.
It was also proposed that if medical documents, or indeed other documents, wererelevant to the defence in criminal proceedings, Crown privilege should not beclaimed.
In the Ellis case criticism was also made of a claim of privilege for a statementmade to the police. Since that case a procedure had been established under whichstatements made by witnesses to the police were produced in Court on subpoena incivil cases and might be furnished earlier with the consent or at the request of thewitnesses themselves. This would prevent a recurrence of what occurred in theEllis case. The only exception, made for obvious reasons, was for statementsby “ informers ”, i.e., persons volunteering information about the commissionof crimes.
In contract cases the documents passing between parties were the most relevantand were always disclosed. Other documents which affected the legal position, e.g.an authority to an agent, were also disclosed. Moreover, reports on matters of
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fact, as distinct from comment and advice, might be relevant to the issues inGovernment conlract cases, and it was proposed that, where such a distinctioncould be clearly drawn, factual reports should be excluded from the privileged class.
It might be that in other fields, in addition to accident and contract proceedings,it would be possible to evolve new categories of documents of a factual nature,which, without prejudice to the public interest, would also be excluded.
DEPARTMENTAL MINUTES
“ We believe,” the Lord Chancellor continued, “ that our proposals willeliminatemany of the grounds of complaint that have arisen in the past. I am assured bythose responsible for Crown litigation that they will apply to the majority of casescoming before the Courts.”
As to departmental and inter-departmental minutes and memoranda containingadvice'and comment, and recording decisions, Crown privilege must be maintained.
“ An important type of case in which documents of this kind may be relevant,”the Lord Chancellor said, “ is where the vires or legality of a Minister’s decision is■challenged, and the plaintiff may seek to show that the Minister proceeded on wrongprinciples. In such a case it is right that a Minister should be prepared to defendhis decision, but if it became possible to challenge Government action, by referenceto the opinions expressed by individual Civil servants in the necessary process ofdiscussion and advice prior to decision, the efficiency of Government administrationwould be gravely prejudiced.
Minutes may also be relevant to proceedings because they may containcomments upon the issues in the case and the question of liability. They are notof high evidential value, although admittedly they may be used effectively incross-examination. It can hardly be said that their non-disclosure prejudices theadministration of justice and their disclosure would in our opinion prejudicegovernment administration. For example, such actions as wrongful imprison-ment, malicious prosecution or defamation may easily be concerned with events ofpublic interest which give rise to comment in the Press and questions in Parlia-ment. It is necessary and right that advice should be given at a high level in suchcases, and that the advice should be entirely frank. It could not easily be givenif it were subject to discovery in the subsequent proceedings.”
ORAL EVIDENCE
As to oral evidence, it was plainly established and accepted that oral evidence ofthe contents of privileged documents could not be admitted. As regards evidenceof oral communications, Crown privilege was claimed, much more rarely, on the sameprinciples as in the case of written communications. It would be absurd, for example,if privilege could be claimed for a confidential minute passing from one official toanother but not for a confidential conversation between them. “ The proposals thatwe are making for reducing the scope of privilege for documents would apply to oralcommunications of the same kind ”, the statement concluded.
LORD JOWITT, after expressing thanks for the statement, said that the problemit dealt with was not new. It caused a great deal of anxiety and worry to one ofhis predecessors and, he expected, to many of them. Obviously a great deal ofthought had been given to the matter. It was desirable to cut down, so far as possi-ble, in the interests of litigants, any exclusion of documents so long as that did notimperil the efficiency of the public service. Would the enforcement of the princi-ples which the Lord Chancellor had enunciated involve legislation or the promulgationof rules, or could it be done by instructions to the Government departmentsconcerned ?
The LORD CHANCELLOR replied that no legislation was necessary. Theimprovements he had mentioned would come into force from now.
LORD SELKIN asked whether the changes announced had been the subject ofdiscussion with the Bar Council or the Law Society. Would those bodies have anopportunity of making comments on the improvements before they came intooperation ?
The LORD CHANCELLOR replied he had had the advantage of the views of thebodies mentioned, but he did not pretend that his proposals met their views in total.The Bar Council were anxious for a judicial decision on the matter. Their viewshad been taken fully into account by all who had examined the problem before thedecisions announced were come to.
(Extract from “ The London Times ” of 7.6.1956, p. 15.)
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WEERASOORIYA, S.P.J.—Daniel Appuhamy v. Illangaratne
Weerasooriya, S.P.J.—
This is an appeal filed under the provisions of the Ceylon (ParliamentaryElections) Order in Council, 1946.
The appellant and the 1st respondent were rival candidates at thegeneral election held on the 20th July, 1960, for the return of membersto the House of Representatives. The contest between the appellantand the 1st respondent was in regard to the return of a member forElectoral District No. 49, Hewaheta. The 1st respondent was declaredduly elected by a majority of 126 votes. The appellant then filed anelection petition challenging the return of the 1st respondent on thegrounds of a miscount of votes, undue influence and corrupt practices,and praying, inter alia, for a declaration that the return of the 1strespondent was undue and that the appellant was duly elected andought to have been returned. After trial the petition was held bythe Election Judge to have failed on all grounds and that the 1strespondent had been duly elected and returned. Hence this appeal.
Under section 82a of the Ceylon (Parliamentary Elections) Order inCouncil, 1946, an appeal lies to the Supreme Court on a question oflaw against the determination of an Election Judge that a member ofthe House of Representatives, whose return or election is complainedof, was duly returned or elected. In the petition of appeal filed bythe appellant he sought to have the findings of the Election Judge onthe charges of undue influences as well as corrupt practices set asideon various grounds of law. But at the hearing of the appealMr. Jayewardene, who appeared for the appellant, did not canvass theElection Judge’s findings on the charges of undue influence and heconfined his submissions to the findings on the charges of corruptpractices.
The corrupt practices alleged against the 1st respondent in the electionpetition were that he, by himself or his agents, and for the purpose ofaffecting the return of the appellant, did make false statements of factin relation to the character or conduct of the latter. There are listedin the statements of particulars furnished by the appellant, seven electionmeetings held on the 3rd, 6th, 8th, 12th and J 6th July, 1960, in ElectoralDistrict No. 49 at which the statements in question are said to have beenmade.
It would appear that certain police officers were present at thosemeetings, and in terms of general instructions previously issued to them,they made notes of what was said by the various speakers on specifiedpoints, one of them being anything spoken by a candidate, or on hisbehalf, against the rival candidate or candidates. Not more than one,officer made notes at any single meeting. After the meeting was overthe procedure was for him to go back to the police station and preparea report (which he was expected to do within twenty-four hours) of what
WEERASOORIYA, S.P.J.—Daniel Appuhamy v. Jllangaraine
115
he had noted. Five copies of the report were prepared and handed overto the officer in charge of the police station, who had to forward themto the Superintendent of Police of the district.
The seven election meetings referred to were held at various placeswithin the limits of the Talatuoya Police station, the officer in chargeof which was Inspector Piyadasa (then Sub-Inspector). The officerswho were present at these meetings were constable Dhanapala, Bajapakseand Banaweera of the same police station. The petitioner had takenout summons on the officer in charge of the Talatuoya police station andon the Superintendent of Police, Kandy, to produce or cause to beproduced at the trial the reports of constables Dhanapala, Bajapakseand Banaweera containing notes of the speeches made at the meetingsattended by them-. But in respect of thlese reports a olaim of privilegefrom production was taken under section 123 of the Evidence Ordinanceby the officer who brought the reports to Court in obedience to thesummons. This claim, which was also supported by an affidavit from theInspector General of Police, was upheld by the Election judge whorefused permission for the production of the reports. The first questionfor decision in this appeal is whether the Election Judge was right ingiving this ruling.
Section 123 of the Evidence Ordinance reads as follows:—
“No one shall be permitted to produce any unpublished officialrecords relating to any affairs of State, or to give any evidence derivedtherefrom, except with the permission of the officer at the head ofthe department concerned, who shall give or withhold such permissionas he thinks fit, subject, however, to the control of the Minister ”.
It was common ground at the hearing of the appeal, as it was at thetrial too, that where a question arises whether any unpublished officialrecords are records relating to “ any affairs of State ” within the meaningof that expression in section 123, the decision of it rests with the Court.The same expression occurs in the corresponding section of the IndianEvidence Act (also section 123) and has been the subject of conflictingdecisions by the Indian Courts. The Election Judge held that theexpression has to be given a wide interpretation, and that “ any matterwhich appertains to the exercise of governmental or administrativefunctions is an affair of State ”. In so construing the expression theElection Judge purported to follow a decision of the Lahore High Courtin Nazir Ahmad v. Emperorl, but it has to be stated that the view expressedthere was disapproved by a Full Bench of the High Court of East Punjabin Governor-General in Council v. Peer Mohamed Khuda Bux 2; and that,even before the latter decision came to be given, the view was by nomeans one which was consistently adopted by the Lahore High Courtin its earlier cases. A more restricted interpretation has been givento the expression by the Bombay High Court—see Dinbai v. Dominion ofIndia 3. But as far as the Indian Courts are concerned, the question
1 A. I. R. 1944 Lahore 434.2 A. I. R. 1950 E P. 22 .
3 A. I. R. 1951 Bombay 72.
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has since been authoritatively settled by the Supreme Court of Indiain the recent case of The State of Punjab v. S. S. Singh1, which was notcited at the argument before the Election Judge. Four of the fiveJudges who heard that case rejected the interpretation of the expression“ affairs of State ” as co-extensive with “ State or Governmentbusiness ”, which Mr. Nadesan pressed on us to adopt, and they heldthat it applied to a smaller category of documents within that class.With this conclusion I would respectfully agree. They refrained, how-ever, from attempting a definition of the expression “ affairs of State ”and said that the question whether any particular document or classof documents comes within it must be determined in each case “ on therelevant facts and circumstances adduced before the Court
Mr. Nadesan submitted as an alternative argument that if we do notaccept the interpretation of the expression for which he contended,the documents in question, being departmental reports of a confidentialnature submitted by the police officers concerned, would be documentsrelating to affairs of State in the narrow sense in which the expressionwas construed in The State of Punjab v. S. S. Singh (supra). Inconsidering this argument I may refer to the evidence given by ConstableDhanapala when he was called as a witness for the appellant shortlybefore the objection to the production of the police reports was taken.He said t at when he attended a meeting he made a short note of whatwas spoken by each of the speakers, and after the meeting was over hewent back to the Police Station and prepared a report of what he hadtaken down. Neither in his evidence nor in the affidavit of the Inspector-Geneaal of Police is there anything to indicate that in addition to thenotes of the speeches and the names of the speakers the report containedcomments or expressions of opinion by him or information relating toany other matter. It must be remembered that the speeches reportedwere intended for the public ear, which was in all probability reachedthrough one or more microphones set at the loudest pitch. Even ifthere were no microphones, there is little doubt that the speeches weredelivered quite openly and their contents were matters of commonknowledge among those present. The question arises for seriousconsideration whether such reports can be described as “ unpublishedofficial records The position seems to be no different from a casewhere a police officer is instructed to proceed to a place where there isa public monument and forward a report of an inscription on it. Itwould be absurd to contend that the report sent in compliance withthese instructions is an unpublished official record. In my opinion,the words “ unpublished official records ” mean any matter or mattersplaced on record for an official purpose which have not been previouslypublished. On this reasoning, the reports sought to be produced bythe appellant cannot be said to come within the class of documentsmentioned in section 123 of the Evidence Ordinance irrespective ofwhether they relate to matters of State or not.
1 A. I. R. 1961 S. C. 493.
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117
Even apart from the question whether these reports are “ unpublishedofficial records ”, I do not see how they can be described as records“relating to affairs of State”. In more than one reported case thenotes taken by police officers have been admitted in evidence as aproper method of proving speeches made at election meetings—seeIllangaratne v. George de Silva1 and Don Philip v. Illangaratne 2. In eachof these cases one of the parties was no other than the 1st respondenthimself. The fact that the notes are contained in a confidential reportsubmitted by the police officer concerned, does not, in my opinion,convert tde notes or the report into a record relating to affairs of State. ~I am far from saying, however, that in no circumstances can a policereport be regarded as a document relating to affairs of State. Muchwould necessarily depend on the subject matter of the report and onthe comments and expressions of opinion, etc., which it may contain.From what I have already stated it will be seen that these considerationsdo not arise in regard to the reports with which we are concerned inthe present case. I hold, therefore, that the Election Judge was wrongin sustaining the claim of privilege taken in respect of these reportsunder section 123 of the Evidence Ordinance.
In view of this finding, the only other question which directly arises fordecision is what our order should be regarding the relief claimed underhead (3) of the prayer in the petition of appeal, which is as follows :
“3. Or in the alternative to make order that the Election Petitionbe tried anew in regard to the allegation of making or publishingthe said false statements of fact, proof of which was excluded by thelearned Election Judge, in upholding the claim of privilege. ”
Section 82B (3) of the Ceylon (Parliamentary Elections) Order inCouncil empowers this Court, on an appeal under section 82A, toorder that an election petition to which the appeal relates be tried anewin its entirety or in regard to any specified matter and to give suchdirections in relation thereto as the Court may think fit. The provisionin section 82B giving power to order that an election petition be triedanew is of recent origin, having been introduced by Act No. 11 of 1959.In exercising this power the Court would be guided by the same consi-derations as in a case where the question is whether a new trial shouldbe ordered by the Court in the exercise of its ordinary appellatejurisdiction.
Section 167 of the Evidence Ordinance provides, inter alia, that theimproper rejection of evidence shall not be ground of itself for a newtrial if it shall appear to the Court that if the rejected evidence had beenreceived it ought not to have varied the decision. The decision of theElection Judge not to permit the production of the reports preparedby Constable Dhanapala and the other police officers containing theirnotes of the speeches made at the various election meetings, had the
1 (1948) 49 N. L. R. 169 at 173.
(1949) 51 N. L. R. 561 at 562.
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effect of rejecting ail relevant evidence of the contents of those reportswhich the appellant could otherwise have adduced in proof of the chargeof corrupt practice brought against the 1st respondent in respect ofthe said speeches. In view of that order, appellant’s counsel at thetrial stated tgat Constable Dhanapala, whose examination-in-chiefas a witness for the appellant had already commenced when the orderwas made, would hot be further questioned by him. It was, no doubt,for the same reason that counsel refrained from calling the other policeofficers to speak to the contents of the reports prepared by them. Buthe called Inspector Piyadasa, who gave evidence regarding the speechmade by the 1st respondent at the meeting held at Angilipitiya (alsoreferred to as Omugalpitiya in the particulars furnished by the appellantrelating to the charge of corrupt practice by making false statements)bn the 3rd July, 1960. Constable Dhanapala, who was also presentat the meeting, took notes of the 1st respondent’s speech, anh his reportcontaining the notes was one of the reports the production of whichwas not permitted by the Election Judge. Inspector Piyadasa couldonly speak from recollection of what the 1st respondent said, and hepurported' to do so independently of the notes made by ConstableDhanapala.
According to Inspector Piyadasa, _ one of the statements made bythe 1st respondent regarding the • appellant was that as Chairman ofthe Talatuoya Village Committee he “ had misappropriated funds fromthe Galaha Theatre and he carried on”, and that as he (the 1st respondent)had taken action in the matter the appellant was angry with him.The Talatuoya Village Committee is also known as the GandahayaVillage Committee. The documents P2 and P3 show that on the15th December, 1958, the appellant had been charged by the Policein case No. 10782 of the Magistrate’s Court of Kandy with having,between the 15th January and the 24th August, 1958, committed criminalbreach of trust in respect of a sum of Rs. 2,914/20 being entertainmenttax paid by the Galaha Jothi Cinema and received by the appellant -as- Chairman of the Gandahaya Village Committee, and that he was acquittedof that charge on the 15th September, 1959. The document P4 showsthat investigation, leading to the prosecution of the appellant cameto be made as a result of an official letter sent to the Assistant Com-missioner of Local Government, Kandy, on the 19th August, 1959, bythe 1st respondent himself.. .
The Election Judge held that it was not safe to act on the evidenceof Inspector Piyadasa, speaking as the latter did from memory toan incident which had taken place over two and a half years previously,and that, moreover, Inspector Piyadasa appeared to have a feeling ofbias against the 1st respondent. In so far as these reasons influencedthe finding of the Election Judge that the charge relating to the makingof false statements at the Angilipitiya meeting had not been established,I am unable to say that had Constable Dhanapala’s report of the speechmade by the 1st respondent at that meeting been permitted to be
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produced and its contents received in evidence, it ought not to -havevaried the finding. If the report was accepted as a contemporaneousnote of what the 1st respondent stated at the meeting, and the notewas found to support the evidence of Inspector Piyadasa, the Judgemay have believed him notwithstanding that he appeared to be abiassed witness. On the other hand, had the production of the reportmade no difference to the Judge’s disbelief of Inspector Piyadasa.it was yet possible for the appellant, without recourse to the Inspector’sevidence, and on the strength • of the report itself, coupled with suchevidence as the officer making the report would have given with refer-ence to its contents, to have established that the statements allegedbo have been made at the Angilipitiya meeting were in fact made.The position would be the same in regard to the reports of the speechesmade at the other meetings, provided, of course; they supported theallegations made, and were accepted by the Court as representingcorrectly what was said at those meetings.
In regard to the statement that the appellant “ had misappropriatedfunds from the Galaha Theatre and he carried on ”, the Election Judge 'observed that there was not even a bare denial of the truth of it by theappellant and that in the absence of such a denial the appellant hadfailed to make out a prima facie ca3e in regard to a necessary ingredientof the charge, viz., that the statement (assuming it was made) wasin fact false. Mr. Nadesan rightly attached special importanceto this finding, for it must be conceded that, if the finding is valid,there is revealed an inherent defect in the presentation of this partof the appellant’s case which would not have been cured even if theproduction of Constable Dhanapala’s report of what was said atAngilipitiya had been permitted by the Election Judge and thecontents of it received in evidence.
Apparently the Election Judge was prepared to regard the acquittalof the appellant in M.C. Kandy Case No. 10782 as prima facie establishingthe falsity of the statement, provided the statement could be saidto refer to the specific misappropriation which was the subject of thecharge in that case. But the Judge observed that there was “ no evidenceat all to show that tfere may not have been other misappropriationsof other sums from other theatres at Galaha or even from the sameplace of entertainment ”. As for the possibility that the statementmay have referred to misappropriation of funds from a different theatrein Galaha, or (if it did refer to the same theatre) to a different sum ofmoney, from that mentioned in the charge preferred against the appellantin M. C. Kandy Case No. 10782, it would appear from the documentP 4 that the 1st respondent, who was then Minister of Labour, Housingand Social Services, wanted investigation to be made into the failureof the Gandahaya South Village Committee to show, accounts regardingentertainment tax collected “ from the Picture Palaces at Galaha ”. Inview of this ministerial decree, which embraced all the cinemas atGalaha, it is unlikely that any departmental investigation which followed
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WEERASOORIYA, S.R.J.—Daniel Appuhamy v. Jllangaratnc
was merely confined to ascertaining whether entertainment tax collectedfrom only the Jothi Cinema had been duly accounted for ; and whenthe Police eventually decided to proceed against the appellant on thespecific charge set out in their report to Court in M. C. KandyCase No. 10782, it may be assumed, I think, that there was noevidence of ** other misappropriations of other sums from other theatresat Galaha or even from the same place of entertainment
In holding that the appellant failed to make out a prima facie case offalsity of the statement that the appellant “ had misappropriated fundsfrom the Galaha Theatre and he carried on ” the Election Judge reliedon the case of Don Philip et al. v. Illangaratne (supra) where Nagalingam,J., considered the nature of the burden of proof which lies on the petitionerand the respondent at an election petition inquiry in regard to anallegation that the respondent or bis agents made false statements offact relating to the character or conduct of the petitioner. Nagalingam, J.,said that the falsity of the statement must be prima facie established bythe petitioner, but, once that is done, the burden is on the respondent,if he asserts that the statement is true, to establish beyond reasonabledoubt the truth of it. The question of the burden of proof was notraised by Mr. Jayewardene or Mr. Nadesan at the hearing of this appeal.But in so far as it may be regarded as necessary for the appellant, inaccordance with the view expressed by Nagalingam, J., to makeout a prima facie case of falsity of the statement that he misappropriatedfunds from the Galaha Theatre, I would for the reasons indicated byme, record my respectful dissent from the finding of the ElectionJudge that the appellant had failed to do so.
It seems to me, therefore, that the limitation imposed by section 167of the Evidence Ordinance on the power of the Court to order a newtrial does not apply to the present case. It then becomes a matter withinour discretion as to whether under the powers conferred by section82B (3) of the Ceylon (Parliamentary Elections) Order in Council anew trial should be ordered or not on the charge of corrupt practiceby making false statements of fact relating to the appellant’s characteror conduct. Mr. Nadesan submitted that, even so, a new trial shouldnot be ordered. He drew attention to the particulars furnished bythe appellant as late as on the 26th November, 1962, which purportedto give the gist of each of the false statements alleged to have beenmade by the 1st respondent or his agents, thereby indicating thatthe appellant was in a position to call in proof of those statementswitnesses other than the police officers who made notes of what wassaid at the meetings, whereas when the trial commenced it becameclear that the appellant had no intention of relying on those otherwitnesses. Mr. Nadesan submitted that if a new trial is ordered itwould not only provide the appellant with a second opportunity ofcalling evidence which he had omitted to call at the trial, but also
WEERASOOR1YA, S.P.J.—Daniel Appuhamy v. IUangaratne
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open the door to perjured testimony being adduced at the new trial.Mr. Nadesan also relied on the lapse of time which has occurred sincethe election was held, over three years ago.
The lapse of time—even though neither party is in any way to beblamed for it—is, no doubt, a matter which is relevant to the questionwhether a new trial should be ordered. But it seems to me that in. thepresent case it is outweighed by other considerations. The reasons forthe decision not to call any witnesses (with the possible exception ofInspector Piyadasa) to speak to the alleged false statements, other thanthe police officers who made notes of those statements, would appear fromthe following passage in the record of the opening speech of appellant’scounsel :
“ In regard to the statements concerned it is not possible today,so many years after the elections, for people to recollect the actualwords used, but it is fortunate that the police had covered certainmeetings and the police reports are available. Those reports weremade by the police in the course of their duties and those reports willbe relied upon.”
It seems to me that the decision of learned counsel was not only a properone, but was also fully justified, especially when considered in the lightof the subsequent failure of Inspector Piyadasa to convince the ElectionJudge that the evidence which he gave from recollection regarding thespeech made by the 1st respondent at the Angilipitiya meeting couldbe acted upon.
It is not a case, therefore, of the appellant being given a secondopportunity of calling evidence which he omitted to call at the trial. Whathe asks for, and I think he is entitled to, is to be given a first opportunitywhich, on our finding, was wrongly denied to him at the trial, of adducingin evidence the police reports, should they be relevant to the questionwhether the statements in question were made or not. Mr. Nadesansubmitted that since the contents of the reports remain undivulged evennow, there is no reason to think that they will have such relevance. Nosubmission was, however, addressed to us by Mr. Nadesan that anydoubts regarding the relevance of the reports be settled by our inspectingthem even at this stage ; and we have decided against an inspectionex mero motu. I do not think that it is right to assume that the reportswill not support the appellant’s case on the issue whether the falsestatements in question were made or not. I
I would set aside the judgment appealed from in so far as it relatesto the charge of corrupt practice by making false statements of factrelating to the character or conduct of the appellant, and also the orderof the Election Judge upholding the claim of privilege in respect of thepolice reports. I would send back the case for a new trial on that charge,on the basis of the particulars in the appellant’s statement dated the26th November, 1962, save and except the particulars in paragraph 5
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T. S. FERNANDO, J.—Daniel Appuhamy v. Illangaratne
thereof. I would, also direct that at the new trial the appellant shouldnot be permitted to call any witness to prove the making of the allegedfalse statements other than Inspector Piyadasa and Police ConstablesDhanapala, Rajapakse and Ranaweera. This direction will not apply—
(а)to any witness who is called to prove the falsity of any statement
in regard to the making of which evidence is adduced, or toprove that any person referred to in the particulars as havingmade a false statement, was an agent of the 1st respondent,provided the name of' such witness appears in a list of witnessesalready filed by the appellant ; or
(б)to any witness called by the appellant in rebuttal, in any case
where he is entitled in law to call evidence in rebuttal.
I see no reason to interfere with the order for costs of trial alreadymade by the Election Judge, but the appellant will be entitled to histaxed costs of appeal from the 1st respondent.
T. S. Fernando, J.—
At the general election held on July 20, 1960 the 1st respondent waselected as member in the House of Representatives for the electoraldistrict of Hewaheta. The petitioner who was the other candidatefor election as member for the same electoral district presented onAugust 18, 1960 a petition praying, inter alia, (1) that a recount of the.votes be ordered before trial, and (ii) that a declaration be made bythe court that the return of the 1st respondent as member at the saidelection was null and void on the ground of (a) the commission of theoffence of undue influence as defined in section 56 of the Ceylon(Parliamentary Elections) Order in Council, 1946 and (6) the commissionof a corrupt practice within the meaning of section 58 of the sameOrder in Council in that the 1st respondent by himself or his agentspublished before or during the said election false statements of fact inrelation to the personal character of the petitioner for the purpose ofaffecting the return of the petitioner at the said election.
An order for a recount was made by the election judge and a recountin accordance with directions given therefor by the said judge tookplace in due course, but it is sufficient here to record that the recountalso showed that the 1st respondent had a majority of the lawful votescast at the said election. In regard to the prayer for the avoidanceof the election on the ground of the commission of the offence of undueinfluence, although evidence was led on behalf of the petitioner in supportthereof, the election judge held that ground not established to his satis-faction. The election judge held the remaining ground of the commissionof a corrupt practice also not proved and dismissed the petition orderingthe petitioner to pay to the 1st respondent one-third of his incurredcosts not to exceed a sum of Rs. 16,000.
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The petition of appeal does not seek to reagitate the question of thecorrectness of the count of the votes, and is confined to canvassingthe legality of the findings of the trial judge in respect of the two corruptpractices above referred to. At the hearing of the appeal, the peti-tioner’s counsel did not attempt to advance any argument in respectof the allegation of undue influence and restricted himself to arguingthat the dismissal of the charge of corrupt practice of making falsestatements in relation to the petitioner’s personal character is vitiatedby an order made by the trial judge upholding an objection taken tothe production of certain documents in the custody of a public officer.
It is important to bear in mind that an appeal to the Supreme Courtagainst a determination of an election judge lies only on a question oflaw. Section 82A of the Order in Council as amended by Act No. 11of 1959 now reads:
An appeal to the Supreme Court shall lie on any question of law,but not otherwise, against—
the determination of an election judge under section 81, or
(&) any other decision of an election judge which has the effectof finally disposing of an election petition.
The main question we are called upon to consider on this appeal andon which we listened to exhaustive argument was the correctness ofthe order of the trial judge upholding the objection above referred to.It is necessary now to state the circumstances in which that order cameto be made.
t
On an application for particulars of the charge of making falsestatements in relation to the personal character of the petitioner, thepetitioner furnished to the 1st respondent on November 9, 1962 a state-ment showing certain particulars of the names and addresses of personswho are said to have made the false statements and the dates and timesthey were made. On an application made for further particulars, andconsequent to an order of the trial judge thereon, the petitioner furnishedcertain fuller particulars on November 26, 1962 indicating the gist ofthe statements alleged to have been made by the 1st respondent at fivenamed places and by four other named persons who are alleged to haveacted as agents of the 1st respondent or with his knowledge or consent.
The petitioner applied for and obtained summonses on the DeputyInspector-General of Police, the Superintendent of Police, Kandy andthe Officer-in-Charge of the Talatuoya police station to produce or causeto be produced four reports made by Police Constable No. 7357
A. Danapala, two reports. made by Police Constable No. 6813D. A. Rajapakse and one report made by Police Constable No. 1105S. K. Ranaweera to their superior officers.
On December 14, 1962, when counsel for the petitioner reached thestage of leading evidence in respect of the charge of making false state-ments, he called into the witness-box constable Danapala who testified
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T. S. FERNANDO, J.—Daniel Appuhamy v. Illangaratne
that he was one of the officers detailed to cover election meetingsand that he had been instructed on the points to be noted.To use his own words, “ we were also to make notes of whatever thatwas being spoken—not everything that was said, but we were directedto make a note of particular points, the important facts. If any speakerspoke disparagingly of the government we were to note it down. Ifany person was reprimanded or if some speaker said anything against
a person we were to make a note of thatThere were
various speakers at such election meetings. I made a note of the names'of the speakers and a short note of what they spoke. When the electionmeeting was over I went back to the station and an entry was made ofthe fact that we had returned. Thereafter, I prepared a report of whatI had taken down. I sent my report in Sinhalese. I cannot remember theplaces of the meetings I went. What I have heard at the meetingswill be in my report.” There is no record of his having said at thetrial that he was unable, on the day he was called into the witness-box,to recall what was said by the speakers at the meetings held in July 1960,but the evidence I have reproduced above appears to have been under-stood at the trial as meaning that, independently of the records he madein the report, he was unable to recall the statements from memory. Thearguments addressed to us at the hearing of the appeal also proceededon the basis of the same understanding.
In the transcript of the proceedings in court there is a record—reproduced below—of what transpired when constable Danapala gavethe evidence I have already quotde—
“ At this stage Mr. Wikramanayake (counsel for petitioner) statesthat he has summoned both the Officer-in-Charge of TalatuoyaPolice Station and the Superintendent of Police, Kandy, to produceor cause to be produced, the reports of the meetings covered by this• witness on the 3rd, 6th, 8th and 16th July 1960. He has appliedfor certified copies but has been refused.
Inspector Perera who appears on behalf of the Superintendentof Police, Kandy, who was summoned to produce the records of certainreports made by P. C. Danapala is present and states that he hassummons but has been instructed to plead privilege under section 123of the Evidence Ordinance. In view of this plea Mr. Nadesan(counsel for the 1st respondent) states that he is objecting to theproduction of these statements.”
Argument of counsel ensued, and in the middle of that argument anaffidavit was presented to the court (presumably by Inspector Pererareferred to above). The affidavit was one made by the Inspector-General of Police who stated therein that he is the head of the PoliceDepartment. It was further stated in the affidavit that the reportshis officers have been summoned to produce have been carefully examinedby him and that he has formed the opinion that it would be injuriousto the public interest if these documents are to be produced because
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they belong to a class of documents the production of which wouldindicate or tend to indicate the sources of police information given inconfidence, the nature of the information gathered and the persons towhom such information is communicated. It is stated in paragraph 6of the affidavit that “ the said documents are unpublished officialrecords relating to affairs of state and belong to a class of documentsthe practice of keeping which secret is necessary for the properfunctioning of the public service ” ; and in paragraph 7 that “ accordingly,I object to the production of these unpublished official records andhave refused permission to the various officers mentioned in paragraph 2hereof to produce the said documents in court or give any evidencederived therefrom. ”
After long argument had in the election court, the learned trial judgemade order on December 20, 1962, refusing permission to produce thedocuments in question.
When the order was delivered, Mr. Wikramanayake stated to thejudge that, in view of the order, he desired the witness Danapala tostand down. He added that if the need arises he would apply for arecalling of the witness. Mr. Nadesan thereupon stated that he wishedto cross-examine the witness and was permitted to do so. Certain otherwitnesses, described as formal, were then called. Witnesses whoseevidence would have been relevant on the charge of undue influencewere next called and, thereafter, Mr. Wikramanayake called in supportof the case for the petitioner witness G. S. Piyadasa who was in July 1960the officer-in-charge of Talatuoya Police Station which is said to bethe station serving the area where the villages in which all the electionmeetings we are concerned with in this case are situated. This witnesspurported to speak of certain statements made by the 1st respondentat an election meeting held on July 3, 1960 at Ankelipitiya at whichhe said he was himself present. When the learned judge made hisdetermination at the conclusion of the trial holding, inter alia, that thecharge of committing a corrupt practice by making a false statementto character was not proved, he stated he was, “ not satisfied with theevidence of Inspector Piyadasa to feel safe to hold the 1st respondentguilty of a corrupt practice of making a false statement referred to.Inspector Piyadasa is speaking from memory of an incident that tookplace more than 2£ years ago. Moreover, there is evidence to showthat, rightly or wrongly, he has a bias against Mr. ILangaratne becauseof certain allegations made by Mr. Hangaratne during the electionsthat certain police officers were working against him at that time. Evenin the course of giving evidence before me, I could not help feeling andsensing that Mr. Piyadasa suffered from a feeling of bias againstMr. Ilangaratne which renders his evidence suspect in my eyes. Asa finding of fact, therefore, I also hold that I am not satisfied that thealleged statement has been proved to have been made Havingreached this finding, the learned judge, as I have stated already, dismissedalso the charge of committing a corrupt practice of making false state-ments in relation to the personal character of the petitioner.
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T. S. FERNANDO, J.—Daniel Appuhamy v. IUangaratne
The main question arising on this appeal, viz., the correctness of theorder upholding the objection to the production in evidence of the reportmade by Police Constable Danapala to his superior officer involves theinterpretation of section 123 of the Evidence Ordinance. That sectionis in the following terms :—
“ 123. No one shall be permitted to produce any unpublishedofficial records relating to any affairs of State, or to give any evidencederived therefrom, except with the permission of the officer at thehead of the department concerned, who shall give or withhold suchpermission as he thinks fit, subject, however, to the control of theMinister. ”
(The expression “ Minister ” appearing in section 123 was a substitutionfor the expression “ Governor ” effected by a Proclamation, publishedin Gazette Extraordinary No. 9,773 dated 24th September 1947, issuedunder section 88 of the Ceylon (Constitution) Order in Council, 1946.)
As the learned trial judge preferred to accept the wide interpretationof the expression “ affairs of State ” appearing in the corresponding’ section of the Indian Evidence Act of 1872 to be found in certain judg-ments of the Lahore High Court rather than a restricted interpretationthereof given in decisions of other High Courts of India, notably ofBombay, and as I myself propose to accept an interpretation of tha.texpression set out in a recent decision of the Supreme Court of India,it will be useful if the corresponding section of the Indian Evidence Actis also reproduced below :—
. .“ 123. No one shall be permitted .to give any evidence derived
from unpublished official records relating to any affairs of State, exceptwith the permission of the officer at the head of the department con-cerned, who shall give or withhold such permission as he thinks fit.”
The judgments of the Lahore High Court which the learned trial judgehad in mind are not specified in his order, but were probably thosereferred to by counsel before him in the course of their arguments. Thetrial judge construed' the words “ relating to any affairs of State ” insection 123 of the Evidence Ordinance as meaning any matter apper-taining to an administrative act or governmental function. He wenton to say that, as the head of the department has claimed that thedocument belongs to a class of documents which it is necessary in theinterest of public security to keep secret, the claim of privilege will beupheld. The Lahore case which calls for most notice is that of NazirAhmad v. Emperor1, in which Abdur Rahman J. stated—(see page 440):—
“ Thus the decision of the question whether a privilege is to beclaimed solely rests with the authority who is competent to claimsuch privilege and the Court can in those circumstances merelygive effect to that decision by adding its own command to it butwithout verifying the correctness of the allegations or the grounds■on which the privilege was claimed. ”
* (1944) A. I. R. (Lahore) 434.
T. S. FERNANDO, J.—Daniel Appuhamy v. lllangaratne
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He did not apparently agree with the view expressed by Bhagwati J.in ChamarbaghioaMa v. Parpia1 also referred to by him where that learnedjudge stated—(see p. 232)—
“ Every communication which proceeds from one officer of theState to another officer of the State is not necessarily relating to theaffairs of State. If such an argument was pushed to its logical extent,it would cover even orders for transfer of officers of GovernmentDepartments and the most unimportant matters of administrativedetail which may be addressed by one officer of the State to another.That could not be within the intendment of the Act at all. ”
In preferring to accept what he calls the view of the Lahore High Courtto that described by him as the opposite view, taken particularly bythe Bombay High Court in Dinbai v. Dominion of India a, the learnedtrial judge was apparently not deterred by the circumstance that inyet another case cited to him, i.e., Governor-General in Council v. PeerMohammad3, described in the law reports as a Full Bench decision,three judges of that particular Court declined to accept the authority ofNazir Ahmad v. Emperor (supra) as sound. Khosla J. stated (see p. 232) :—“ As far as I am aware this expression (affairs of. State) has not beendefined anywhere, but it is clear that it cannot mean any and everymatter in which the State is concerned. Otherwise, the privilege con-templated by section 123 would attach to every communication madeby every officer of Government upon every subject. That, however,is not the law either in England or in India as is manifest from a numberof authorities on the subject. ‘ Affairs of State ’ has always beeninterpreted in a somewhat narrow sense.” and again at page 233 :—
“ I would define * affairs of State ’ as matters of a public naturein. which the State is concerned and the disclosure of which will beprejudicial to the public interest .or injurious to national defence,or detrimental to good diplomatic relations.”
He went on to say that, having regard to section 162 of the EvidenceAct,—( see page 234 )—“ In the case of a document relating to affairsof State the course of inspecting the document is not open to the Court,but this does not mean that the .Court’s right to adjudicate upon thevalidity of the objection is completely taken away thereby. The Courthas still the right to take other evidence and determine whether theobjection taken by the witness who was ordered to produce the documentor the head of the department is indeed a valid objection. In otherwords, the Court has a right to satisfy itself that the document doesin fact relate to affairs of State. ”
Much argument was addressed to us by counsel for the respectiveparties as to the meaning of the section of the Evidence Ordinancewe are called upon to construe on this appeal. On the one handMr. Nadesan for the 1st respondent contended that the expression
1 {1950) A. I. R. {Bombay) 230.2 (1950) A. /. R. (East Punjab) 228.
(1951) A. 1. R. (Bombay) at 80.
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T. S. FERNANDO, J.—Daniel Appuhamy v. Illangaratne
affairs of State ’ must be given what he said was its natural and ordinarymeaning of * business of the State ’ or * government business Mr. Jayewardene for the petitioner, on the other hand, argued that
affairs of State 5 is not synonymous with the expression ‘ affairs of theState ’ and suggested that what has been called a restrictive interpretationshould be placed in the context in which the particular expressionappears. Extensive references to cases from England and other countrieswhere common law is applied and where the question calls to be■decided without reference to statute law on the one hand and to casesfrom several jurisdictions in India where, on the other hand, as in Ceylon,the question is governed by statute, have been made. The high autho-rity of the Privy Council when it interpreted the relevant law of theState of South Australia in Robinson v. State of South Australia1 or theTespect we must attach to the pronouncements of Viscount Simon, L.C.,when the House of Lords in Duncan v. Cammell Laird & Co. Ltd.2 laiddown the law in England appears to me less relevant on the matterwe are now considering than pronouncements of the courts of Indiawhere the question is governed by a statute which on the essential pointsis in identical terms with the local statute which, no doubt, has itselfbeen copied from the Indian Statute.
Our Evidence Ordinance of 1895 is described as an Ordinance toconsolidate, define and amend the law of evidence. Lord Herschell,speaking of coded laws in the House of Lords while delivering judgmentin Bank of England v. Vagliano Brothers 3, observed that, “ the propercourse is in the first instance to examine the language of the statuteand to ask what is its natural meaning, uninfluenced by any consider-ations derived from the previous state of the law, and not to start withinquiring how the law previously stood, and then, assuming that it wasprobably intended to leave it unaltered, to see if the words of theenactment will bear an interpretation in conformity with this view.” Thesame viewpoint was put trenchantly by Soertsz J. in The King v. Chan-drasekera 4 where our Court of Criminal Appeal, called upon to decidea question arising in that instance too on the law of evidence, observedthat we must shut our eyes to the English law of evidence except sofar as a casus omissus renders recourse to it necessary and call to mindthe provisions of our own Evidence Ordinance. It is necessary also tobear in mind that by section 2 (2) of that Ordinance all rules not containedin any written law so far as such rules are inconsistent with any of theprovisions of the Evidence Ordinance were repealed.
On the question that now confronts the Court on this appeal, thelearned trial judge did not have the advantage of considering a mostimportant judgment of the Supreme Court of India in the recent caseof State of Punjab v. S. S. Singh 5 where five judges of that Court, withthe assistance of able counsel, considered the meaning of section 123
1 (2931) A. C. 704.3 (1891) A. G. at p. 145-
a (1942) 1 A. E. R. 587.4 (1942) 44 N. L. R. at 122
*(1961) A.I.R. IS. O.) 493.
T. S. FERNANDO, J.—Daniel Appuhamy v. Illangaratne
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of the Evidence Act of India read along with section 162 of the same Act.Section 162 of the Evidence Act of India and section 162 of our EvidenceOrdinance are in identical terms. The judgment of the majority ofthe Court refused to accept the authority of the Lahore High Courtdecision in Nazir Ahmad’s case (supra) and noted that that decisionhad been dissented from by a Full Bench of the East Punjab High Courtin Peer Mohammad’s case (supra) and that the view taken by the FullBench prevails in the Punjab High Court ever since. Having consideredthe reasoning in the judgment of the majority of the Bench that decidedthe case in the Supreme Court of India, I find it so convincing and ofsuch persuasive value that I feel bound respectfully to apply it on themain question before us on the present appeal. Whether a documentis an unpublished official record is easily ascertainable. Not so whetherthe record relates to affairs of State. The question nevertheless fallsto be decided .by the Court, and it is only where the Court decides thatthe record relates to an affair of State that it is required not to permitproduction or the giving of evidence derived therefrom without permissiongranted therefor by the head of the department. In delivering thejudgment of the majority in the State of Punjab case (supra), Gajendra-gadkar J. observed that it is “ necessary to remember that where theLegislature has advisedly refrained from defining the expression ‘ affairsof State ’ it would be inexpedient for judicial decisions to attempt toput the said expression into a strait jacket of a definition judiciallyevolved. The question as to whether any particular document ora class of documents answers the description must be determined ineach case on the relevant facts and circumstances adduced beforethe Court.” The majority rejected the contention that the expression• ‘ affairs of State ’ is synonymous with public business, but recogniseda broad division of official records into two classes loosely describedas innocuous and noxious respectively. Into the noxious class whichalone would comprise official records relating to affairs of State wouldfall records coming roughly within the description attempted by Khosla J.noticed above. Arguments very similar to those addressed to us onbehalf of the respective parties were addressed to the Supreme Courtof India as well; and—see page 503—the Court, after observing thaton the point in controversy three views were possible, stated that indeciding the question as to which of these three views correctly repre-sents the true legal position under the Act it would be necessary toexamine also section 162 of the Act, and preferred after such examinationto accept the third view. That view is that the Court can determinethe character of the document, and if it comes to the conclusion thatthe document belongs to the noxious class it must leave it to the headof the department to decide whether its production should be permittedor not for it is not the policy of section 123 that in the case of everynoxious document the head of the department must always withholdpermission. As the Supreme Court itself observed, that view takenabout the authority and jurisdiction of the Court is based on a harmoniousconstruction of sections 123 and 162 of the Act; it recognises the power
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T. S. FERNANDO, J.—DanielAppuhamy v. Illangaratne
conferred by the Court by clause 1 of section 162, and also gives dueeffect to the discretion vested in the head of the department bysection 123. The main conclusion reached by the majority is statedthus :—see page 505 :—
“ Thus our conclusion is that reading sections 123 and 162 togetherthe Court cannot hold an enquiry into the possible injury to publicinterest which may result from the disclosure of the document inquestion. That is a matter for the authority concerneh to hecihe ;but the Court is competent, anh inheed is bound, to hold a preliminaryenquiry and determine the validity of the objections to its production,anh that necessarily involves an enquiry into the question whetherthe evidence relates to an affair of State under section 123 of not.In this enquiry the Court has to determine the character or class ofthe document. If it comes to the conclusion that the documentdoes not relate to affairs of State then it should reject the claim forprivilege and direct its production. If it comes to the conclusionthat the document relates to affairs of State, it should leave it to thehead of the department to decide whether he should permit its pro-duction or notIn exercising his discretion under section
123 in many cases the head of the department may hive to weighthe pros and cons of the problem and objectively determine the natureand extent of the injury to public interest as against the injury tothe administration of justice. That is why we think it is not un-reasonable to hold that section 123 gives discretion to the head ofthe department to permit the production of a document even thoughits production may theoretically lead to some kind of injury to publicinterest. While construing sections 123 and 162, it would be irrelevantto consider why the enquiry as to injury to public interest shouldnot be within the jurisdiction of the Court, for that clearly is a matterof policy on which the Court does not and should not generally expressany opinion. ”
It is unnecessary to say more here than that I respectfully adoptmuch of the reasoning in the judgment of the majority. I have quotedextensively from that judgment and, in doing so, may appear to haveeschewed the accepting of the advice implicit in the passage appearing(at page 378) in a recent authority—Board of Trustees of MaradanaMosque v. Minister of Education1—that judgments should not be burdenedwith “ copious quotations from other men’s minds ”. Should I, there-fore, appear to have here disregarded that advice, my excuse is thatwhile in reaching a decision in a particular case before him a judge mustof necessity make the- journey alone, he yet has, as I apprehend it, thecomfort of the knowledge that in interpreting a law, involved in thatdecision there is no bar to his voyaging in company and seeking a havenin the guidance of judges before him, albeit of other jurisdictions. Thetradition of borrowing from the learning of others and acknowledgingthat debt blesses both him that lends and him that borrows.
1 (1963) 65 N. L. R. at 378.
T. S. FERNANDO, J.—Daniel Appuhamy v. Jllangaratne
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I may add that Mr. Jayewardene questioned whether the statementin the judgment in the State of Punjab case (supra) that the second clausein section 162 should he construed to refer to the objections both as tothe production and as to the admissibility of the documents is correct.Ordinarily one would be justified in inferring that where the legislaturerefers to production as well as admissibility in the first clause,but omits reference to production in the second clause, the omissionwas deliberate. Mr. Jayewardene suggested that logically admissi-bility should be considered before the question of production becauseif the document is held inadmissible there is no purpose in consideringproduction. He therefore contended that there was no statutory bar to theinspection of the document by the Court for the purpose of deciding the .question of production. Although the summons to produce specified thereports, argument proceeded on the basis that all that was requiredwere the records of the speeches as made by the witnesses. No onecan reasonably contend in this case that, if the reports in questioncontain records of statements made by the 1st respondent or his agents,such records are inadmissible. If, as I have held, the Court has to deter-mine the character or class of the documents in question, there is, inmy opinion, no difficulty in concluding in this case that the'records madeof speeches or utterances by a speaker at an election meeting in regardto the character of a candidate for election do not fall within the noxiousclass of documents referred to aliove. They therefore do not relate toaffairs of State. For that reason I do not feel compelled in the circum-stances to examine the soundness of Mr. Jayewardene’s contention.
I would answer the main question arising on this appeal and indicatedearlier in favour of the appellant, and say that the withholding by Courtof permission to produce the records of the speeches as made by PoliceConstable Danapala in his report was an erroneous order of the learnedtrial judge.
In view of the conclusion I have reached on this main question, viz.,that the records sought to be produced did not relate to affairs of State,the question of obtaining the permission of the officer at the head of thedepartment obviously does not arise. Anything that may now be saidin this judgment as to whether the objection that was taken at thetrial was indeed taken by the head of the department contemplatedin section 123 would be in the nature of an obiter dictum. Accordingly,
I refrain from examining the contention of Mr. Jayewardene that theobjection was not taken in the trial court by the proper officer. Thedetermination of that question may require more evidence than is nowavailable in the record. Nor do I consider it necessary to say anythinghere as to whether affidavits are admissible in support of objectionsraised under section 123.
The next and only other question that arises on this appeal is whetherthe conclusion that the trial judge was in error in upholding the objectionto the production of the official record or the giving of any evidencederived therefrom has the effect ipso facto of necessitating a retrial of
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the charge of a corrupt practice in making false statements in relationto the personal character of the petitioner. Before the amendment tothe Parliamentary Elections Order in Council introduced by section25 of Act No. 11 of 1959 it was doubtful whether the Supreme Courton appeal preferred under section 82A could order a retrial. The 1959Act, however, introduced the present sub-section (3) of section 82Bwhich is in the following terms :—
“ The Supreme Court may, in the case of any appeal under section82A, order that the election petition to which the appeal relatesshall be tried anew in its entirety or in regard to any matter specifiedby that Court and give such directions in relation thereto as thatCourt may think fit. ”
I understand the above provision as vesting in the Court a discretionto decide whether a retrial of the whole petition or a part thereofshall be ordered or not, and certainly not that on the reversal of anydecision made by the trial judge the petition or a particular chargetherein must be tried afresh.
In view of my conclusion that the records the production of which issought do not relate to affairs of State within the meaning of section 123of the Evidence Ordinance there does not appear to be any bar to ourinspecting those records even at this stage for the purpose of assistingus in the exercise of the discretion vested in us in respect of a retrial.I understand, however, that both my Lord and my brother Weerasooriyado not consider that we should now inspect these records for the purposeof making our decision on the remaining question. That is a viewwhich I respectfully share with them. The question of a retrial must,therefore, be considered without the advantage, if any, of an inspection,of those records.
The position of the petitioner in regard to the question that now remainsfor decision would, in my opinion, have been stronger if the petitioner hadat the trial refrained, after the Court made order upholding the objectionto the production of the records, from leading any further evidenceon the charge of a corrupt practice of making false statements. Theargument on his behalf at the appeal was that if Police Constable Dana-pala had at the time he gave evidence in December 1962 no recollectionof what the 1st respondent said at the meetings held two and a half yearsbefore that, in July 1960, apart from his records contained in his reportto his superior officer, it was unreasonable to think that either of theother two constables would himself have had any independent recollectionof speeches made about the time. The omission to call the other twoconstables at the trial, it was argued, was due to that reason as wellas to the order made in respect of the objection to production of theofficial records. The petitioner, it must not be overlooked, made no
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attempt at the trial to call any other witnesses (save Inspector Piyadasato whom I shall refer presently) to testify to the making of the falsestatements alleged. If there were any witnesses to testify as personspresent at one or more of the election meetings to what was said bythe 1st respondent at these meetings, they were certainly not called.Mr. Jayewardene stated in this connection that if the police constablewho was called could not remember, independently of the record made,what was said at the meetings, and if the position of the other policeconstables was similar, it was unreasonable to think that other personspresent at the meetings could after this long interval of time rememberwhat was in fact said. He attributed the omission of the petitioner tocall the other two constables and other persons present at the meetingsto the reason indicated by him. This argument loses its weight whenone finds that the petitioner did, long after the ruling on the law thatwas the main subject of controversy on this appeal was made at thetrial, call into the witness-box Inspector Piyadasa who was at the timeof the election meetings the officer-in-charge of the Police Station towhich the three police constables were then attached. Inspector Piyadasahad taken no notes himself, but the principal matter upon which he wascalled to testify was this allegation of false statements made by the1st respondent. The learned trial judge has disbelieved InspectorPiyadasa. So far as we in this Court are concerned, there is no appealto us available on a question of fact. We have to decide the questionof ordering a retrial without overlooking the circumstance that Piyadasahas been disbelieved. If we are unable to prevent Inspector Piyadasabeing called to testify at a new trial—and that I understand is the viewof the rest of the Bench—then, I fear, we are giving the petitioner asecond chance, after a failure of the first, to see whether a trial judgewill believe the evidence of Piyadasa. I do not think that in the contextin which the trial judge stated in his judgment that “ Inspector Piyadasawas speaking from memory about an incident that took place more thantwo and a half years ago ” he meant necessarily to imply that he wouldhave been inclined to believe him if his evidence had received corro-boration from that of Danapala. Taking action which would amount togiving the petitioner such a second chance is a course which places the1st respondent at an unfair disadvantage, particularly as the trial judgehas described Piyadasa “as a man having a bias against the 1strespondent which rendered his evidence suspect. ”
Mr. Nadesan has suggested that as the records made by the policeconstables were not available to the petitioner, he must have takenstatements from the proposed witnesses either when he prepared hispetition or furnished the particulars to the 1st respondent on the appli-cation made therefor by the latter. He submitted that the witnessescould not have forgotten everything they said to the petitioner or hislawyers. He also suggested that, if the petitioner has not so takenstatements from the witnesses he relied on when he decided to come to
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Court, he has made a charge without knowing whether there was evidenceto support it. He stated that as the records have not been seen byeither party as yet neither can say what the contents of the documentsmay or may not reveal. To order a retrial in the circumstances nowshown, to use Counsel’s own words, would be to permit the petitioner“to fish for evidence”. In other words, the petitioner is attemptingto establish a case on evidence the nature of which he yet doesnot know.
i
Mr. Jayewardene submitted that election petitions are not like ordinarylitigation but are matters of public interest and must be considered“ from the larger standpoint of the State ” ;—vide Don Alexander v.Leo Fernandox. This submission is appropriate when one has to avoida decision on an election petition being obtained by collusion. It canhardly be contended, much less maintained, that there is any fear ofcollusion in the present case.
If the charge of committing a corrupt practice by making false state-ments is to be tried anew, the witnesses will be called upon to testify,about four years after the event, to words uttered at meetings in July1960. Considering the long interval of time that has elapsed—a delaynot attributable in any way to the 1st respondent—I am unable to saythat the discretion vested in this Court by section 82B (3) of the Orderin Council requires to be exercised in favour of granting a retrial atthis stage. The charge is one in the nature of a criminal charge andit seems to my mind that justice will be met in this case by our makinga decision on the question of law which will serve for occasions in thefuture without exercising in favour of the petitioner the discretion vestedin the Court in the matter of retrials. Such an order would, in my opinion,conform to the spirit of the rule embodied in the maxim nemo debet bisvexari, a rule to be encouraged' in cases where considerable delay hasalready occurred. Such an order should be more readily made in acase where, as here, a citizen has already undergone successfully onetrial on several allegations and what now remains is a fraction of thecase on the merits of which, at least in part, a competent judge hasexpressed an opinion which we have no power in law to alter, and wherethe objection the upholding of which is now giving rise to the claim fora retrial was one taken not by the party successful at the trial but by thehead of the department within the meaning of section 123. Whereobjection has been so taken it will be wholly unreasonable to expecta person in the position of a respondent to an election petition not tosupport it. Moreover, as neither the Court nor any of the parties canyet say whether there is any evidence in the official records in supportof the petitioner’s charge, there is substance in the argument that ifthe Court orders a retrial it would be doing so on a speculation thatthere is evidence available relevant to the charge to be now pursued.
1 (1948) 49 N. L. R. at 204.
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For the reasons set out above, I am of opinion that this Court shouldnot exercise the discretion vested in it by section 82B (3) in favour ofgranting a new trial on the charge of committing a corrupt practicein making false statements in relation to personal character of a candi-date for election. As I am not in favour of exercising the Court’sdiscretion so as to grant a retrial, although the question of law arisingon this appeal has been decided in the appellant’s favour, I would makeno order as to the costs of this appeal.
New trial ordered in respect of charge of corrupt practice.