045-NLR-NLR-V-44-PEIRIS-et-al-Appellants-and-ELIYATAMBY-Inspector-of-Police-Respondent.pdf
HEARNE J.—Peiris and Eliyatamby.
207
1943Present: Hearne J.
PEIRIS, et aX, Appellants, and ELIYATAMBY, Inspectorof Police, Respondent.
895-898 M. C. Colombo, 32,825
Police Information Book—Used as evidence by Magistrate—Testing credibilityof witness.
Entries in a Police Information Book cannot be used as evidence forthe purpose of testing the credibility of a witness.
PPEAL from a conviction by the Magistrate of Colombo.
L. A. Rajapakse (with him V. F. Guneratne), for accused, appellants.
N. Nadarasa, C.C., for Crown, respondent.
Cur. adv. vult.
March 10, 1943. Hearne J.—
There were four appellants and at the conclusion of the argument Isummarily dismissed the appeals of the second, third, and fourth accused.It was obvious that, however the clash between the first accused and thecomplainant may have originated, the^ made the quarrel their ownquite gratuitously and helped in the infliction of very serious injury onthe latter. So far as the first accused was concerned it was of importanceto decide who was the original aggressor and the decision of this questionwas made to depend, to some extent at least, upon the Police InformationBook. The first accused had called as a witness one C. P. Perera, whoclaimed to have been an eye-witness and who gave evidence that was mostfavourable to the first accused. He said he had seen the complainantassault the first accused and that, when the latter was running away, headvised him to go to the police and gave him his name. Dealing with thiswitness the Magistrate remarked that “ he found the first accused had notmentioned his name to the police ” when he made a statement after theevents which led to his being charged. It appears that the Magistrate“ found ” what he did in the Police Information Book and Crown Counseladmitted that this must be taken to be so. Was that an improper use ofthe Police Information Book ? On the authorities it plainly was. Itwas used, as the judgment indicates, to discredit the first accused when hesaid that he had met C. P. Perera soon after the affray and, arising fromthat, it was used to discredit the evidence given by C. P. Perera. Thisis precisely what cannot be done. Wickremasinghe v. Fernando' Tenne-koon v. Ponniah’. Entries in the Police Information Book cannot beused as evidence fofc the purpose of testing the credibility of a witness.
I allow the appeal and order a retrial of first accused by anotherMagistrate.
1 29 N. L. R. 403.
Set aside.*11C.L.W.68.
44/18
208 CANNON J.—Abeywickreme and Commissioner of Motor Transport.
1941Present : Cannon J.
ABEYWICKREME, Appellant, and COMMISSIONER OFMOTOR TRANSPORT, Respondent.
In the matter of a case stated under section 4 (6) of theMotor Car Ordinance, Appeal No. 2,609.
Omnibus licence—Refusal of application for licence in a particular year—Change of circumstances—Renewal of application—Motor Car Ordinance,No. 45 of 1938, s. 4 (6).
, Where the Commissioner of- Motor Transport refuses an' applicationfor an omnibus licence for a particular year, he is not debarred fromconsidering another application by the same applicant for the same routeduring the same year where the circumstances have changed and wherethere is room for an additional omnibus.
T
HIS was a case stated for the Supreme Court under section 4 (6)of the Motor Car Ordinance, 1938.
■H. V. Perera, K.C. (with him D. D. AtUlathmudali). for objector,appellant.
H. W. R. Weerasooriya, C.C., for the Commissioner of Motor Transport.
Cur. adv. vult.
December 17, 1941. Cannon J.—
This is an appeal by way of cases stated under section 4 (6). of theMotor Car Ordinance, No. 45 of 1938, in which Ordinance is the lawrelating to the licensing of public vehicles.
The question referred by the case stated for the decision of this Courtis as follows :Where the Commissioner refuses an application for an
omnibus licence for a particular “year, is he. debarred from consideringanother application for the same route during the same year where thecircumstances have changed and there is room for an additional. omnibus ?
The duration of a ’bus licence is for a 'year or any part of a year endingin the month of December in all cases. The procedure for obtaining' alicence to begin in January is that the application must he sent in to thelicensing authority and forwarded by that authority, together with itsrecommendation, to the Commissioner of Motor Transport not later thanthe first week in the’October, preceding. An application for a licenceto’ come into force at any time after January 31 must be foruiardedby the licensing authority, with its recommendation, to the Commissionerwithin seven clays, of its receipt, The licensing authority may notrecommend a refusal of the application except upon one or more of threegrounds, namely, unsuitability of the particular ’bus for! the proposedroute ; unsuitability of the route for’bus traffic ; traffic, congestion on theproposed route—“ that any proposed route is generally so congested bytraffic that additional omnibus traffic canhbt, with due regard to the Safetyand convenience of the public, be allowed thereOn”, section 45 (2) (c).All such, applications are advertised by the Commissioner ; and any otherlicence holder or applicant for a licence for any part of the route-inquestion may make objection to the issue of the licence, section 46 (2) (b).The Commissioner must Have regard to the following matters whendeciding whether to grant or refuse the application ;—The licensing
CANNON J.—Abeywickreme and Commissioner of Motor Transport.209
authority’s recommendation ; any, objection under section 46 (2) (b) ;existing transport facilities ; adequacy of the proposed service for theneeds of the public. The Commissiofier’s decision is duly notifiedto the licensing authority for that authority to act in conformity there-with ; and where the decision communicated is that the licence should berefused, section 53 (1) directs that “ the licensing authority shall not issuethe licence
The facts which give rise to the present appeal are that a licence wasapplied for in October, 1940, for a ’bus to ply from January, 1941, on theroute Matara to Hakmana. The Commissioner refused it and there wasno appeal from his refusal. Later, in February, 1941, the applicantapplied for a licence for the route Matara to- Hakmana and Beliatte,such licence to come into force on March 1, 1941. This application wasallowed because the traffic conditions had changed. An appeal waslodged by an objector, one of the grounds of appeal being that the refusalof the first application was final for the year 1941. The objector’s appeal,being dismissed, he asked the Tribunal to state a case for the decision ofthis Court: hence the reference.
Mr. Perera, in arguing, the objector’s appeal that a later applicationfor the same ’bus and route for a particular year could not be entertained,submitted that the licensing authority when it sends its recommendation,and the Commissioner when he considers “ the adequacy and suitabilityof all existing transport facilities” under section 47 (lj (c), make theirdecision for the whole year in question ; and if the Commissioner’sdecision is to refuse, that decision is final for the year for which theapplication is made, by virtue of the direction in section 53 (1) that' “ thelicensing authority shall not issue the licence ”. He drew attention tothe fact that the wording of the section is peremptory and submittedthat it does not permit any subsequent application to be considered forthe same route for the same. year. While admitting that' circumstancesmay change, he maintained that the Statute required the Commissionerto consider all the circumstances actual or potential at the time of hisdecision ; otherwise there would be no finality. The decision' to refuse,he argued, has the legal effect of an injunction against the issue of thelicence for the year in question to the applicant for that route, whichinjunction was unqualified.
Mr. Weerasooriya emphasised that the Ordinance permits an applica-tion to be made for a licence to come into force in any month of the year,and submitted that it, therefore, followed that it is open to anyone .to makea number of applications for jl licence to cOme into force in differentmonths. He pointed out that the licensing authority was required toforward applications to the Commissioner for consideration, and com,tended that while the Commissioner could still refuse a second,applicationon the grounds of his refusal of the prior application, ' for example,congestion, he could not refuse it on the principle of res judicata. Inishort, he must consider it on its merits, which would N include new.circumstances existing when he deals with the second application. . A'state of congestion existing in one part of the year may not .continue'for a number of reasons, some of which are anticipated by the Ordinance. ■■For example, a ’bus may be Withdrawn or a licence holder may be granted
210
Panditharatne and Koustz.
a change of route ; further, though the Commissioner has authorised theissue of a licence, the licensing authority must refuse it if the Examinerreports the ’bus to be unfit. In each of these cases the volume of ’bustraffic on the particular route would thus be lessened. Counsel citedsection 58b (1) to show that the Ordinance contemplated fresh applica-tions for the same ’bus and route. This section provides for the issue ofa new licence where there has been a change of possession, and Counselsubmitted .that the provision is wide enough to cover a case where theold owner had been refused a licence ; that it does not limit the right ofthe new ownerto make an application only in a case where the old ownerhas successfully applied for a licence for the route.
The relevant part of section 53 (1) reads as follows:—‘ Where thedecision or order communicated by the Commissioner under section 52 1in respect of any application for a licence for an omnibus or lorry is that alicence should be refused, the licensing authority shall not issue thelicence ”. Mr. Weerasooriya submitted that the words “ any applica-tion” should., be construed as meaning ‘.‘any particular applica-tion ”. The section was necessary because without it. the licensingauthority might disregard the decision of the Commissioner; but, hecontended, it was limited to a particular decision on a particular applica-tion, namely, an application for a licence from a particular month, not toa particular month. ,
The legal argument adduced against the appeal is reinforced by thepractical aspects of the problem. I think it would be unreasonablein the absence of some clear statutory prohibition, to hold that the.Commissioner has no power to consider favourably, where changedcircumstances justify it, a fresh application. by an applicant whoseapplication for the same ’bus and route has been previously refused.The answer to the question referred, is,, therefore, in the negative, and theappeal is dismissed with costs.
Having come to. this decision, it is unnecessary for this court to,considerwhether, or not the second application in this case, having been for anextended route, was, on that account, different from- the first application:and therefore not'within the ambit of section 52 (1).
Appeal dismissed.