OhelvanayaTcam v. Natesan
1953Present: Swan J.
S. J. V. CHELVANAYAKAM, Petitioner, and S. NATESAN,Respondent
Election Petition 17 of 1952, Kankesanihurai
Election Petition—Particulars relating to certain charges—What particulars shouldbe given and when they should be given—Scope of Rule -5 of Sbhedule 3 of Ceylon(Parliamentary Elections) Order in Council, 1946.t
Where the date of trial of an. election petition has been fixed, the electionjudge is entitled to specify a particular date for the filing of particulars.
Where the petitioner relies upon a false statement made hy the respondentto a particular individual or group of known individuals regarding the petitioner’scharacter and conduct, he may be ordered to give the name or names of such
SWAN J.—Chelvanayakam v. Natesart
individual or individuals and their addresses, occupations and numbers (if any)on the e'ectoral register. The names of the witnesses, however, need not bestated. (Rule 5 of Schedule 3 of the Parliamentary Elections Order in Council,1946.) Similar particulars should also be given where the petitioner relies oncharges of undue influence or distribution of improper advertisements or hand-bills to any particular individual or group of known individuals. Whereposting of placards and posters is alleged, the petitioner may be directed togive, where possible, the places of posting.
With regard to the charge of hiring, borrowing and using prohibited vehiclesfor the conveyance of voters, the petitioner must furnish inter alia the details ofeach trip, namely the starting-point and the destination and, if known, thenumber of persons conveyed, their names, addresses, occupations and numberson the electoral register, and, if known, the amounts paid and to whom they werepaid.
With regard to the charge of making a false return concerning electionexpenses, the petitioner cannot be compelled to state the names, &c. of thewitnesses to be called to prove each alleged omitted or impugned item ofexpense.
j^^PPLICATION to furnish particulars regarding certain charges inElection Petition, Kankesanthurai.
S. Barr-Kumarahulasinghe, with G. T. Samarawickreme, T. W. Raja-ratnarn and G. Candappa, for the petitioner.
E. G. Wikramanayake, Q.O., with G. E. Ghitty, C. G. Rasaratnam andN. Nadarasa, for the respondent..
Cur. adv. vvlt.
September 9, 1953. Swan J.—
This inquiry has arisen out of an application by the respondent forparticulars of the charges. The original petition had only four charges,namely :—
making and publishing false statements of fact in relation to the
character and conduct of the petitioner ;
printing, publishing, distributing and posting advertisements,
handbills, placards and posters not bearing upon their faces the
■ names and addresses of the printers and publishers ;
undue influence and
hiring, borrowing and using prohibited vehicles for the conveyance
The petition was filed on 23.6.52. On 16.7.52 the agent of therespondent asked for full particulars of the charges. Before thisapplication could be dealt with the petitioner moved to amend the petitionby the addition of a further charge, namely the corrupt practice of themaking of a false return regarding election expenses. This applicationto amend the petition was, despite strenuous opposition, allowed by mein my capacity as a Judge of the Supreme Court. (See proceedings of26.9.52 and order dated 21.10.52).
SWAN J.—Ohehianayaicam v. Natesan
Thereafter the additional security necessitated by the added charge■was duly deposited and a copy of the amended petition filed. On 17.1.53I was appointed the Election Judge. On 16.2.53 the agent for thepetitioner moved that the case be fixed-fbr trial and also applied forsummons on certain witnesses to produce certain documents on a day tobe fixed by Court before the date of trial. The trial was fixed for 21.9.53.The application for summons was inquired into on 20.2.53 and disallowedon 31.3.53.'
On 4.8.53 the agent for the respondent referring to his applicationof 16.7.52 moved the Court that the petitioner be required to furnishfull particulars of the added charge as well. On 20.8.53 a motion wasfiled to amend the previous two applications ; and the “full ” particularswhich the respondent demanded are set out in detail in the second motionof 20.8.53 (marked 42 in the record).
It was this matter which came up for consideration on 2.9.53.Opposing counsel were agreed as to certain particulars. It is upon thoseparticulars asked for by the respondent and which counsel for thepetitioner refused or was reluctant to give that I am called upon to makean order.
Rule 5 sets out that:—“ Evidence need not be stated in the petition,but the Judge may, upon application in writing by a respondent, ordersuch particulars as may be necessary to prevent surprise and unnecessaryexpense and to ensure a fair and effectual trial upon such terms as to costs orotherwise as may be ordered. ”
Mr. Wikremanayako submits that the wording of the rule implies thatthe particulars should convey to the respondent a summary of what thepetitioner’s case will be. His contention seems to be that as the rule doesnot require “ evidence ” to be stated in the petition it follows that“ evidence ” should be supplied in the particulars. With this contentionI cannot agree. Our Rule 5 is the same as Rule 6 in England, and it hasnever been even contended, far less held that the particulars must containa gist or summary of the petitioner’s case. One must realize they areparticulars of the charges, not an outline of how the petitioner proposesto prove them. But the particulars must be sufficient to secure the three-fold object of:—
preventing surprise ;
saving unnecessary expense and
securing a fair and effectual trial.
Mr. Barr-Kumarakulasinghe seems to think that the particulars shouldnot be full but the barest minimum. He has an obsession that if toomany particulars are furnished it ■will give the respondent an opportunityof getting at the petitioner’s witnesses. That is an unworthy suggestionto make because it casts an unwarranted aspersion on both therespondent as well as the petitioner’s ■witnesses—that the latter are
SWAN J.—Chehxtnayakam v. Natesan
corruptible and the former is capable of bribing and corrupting them.
I do not think an election court would tolerate such a suggestion when itconsiders what particulars should be given and when they should be given.Mr. Barr-Kumarakulasinghe wanted me to make order that the particularsshould be filed so many days before the trial so that if the trial had to bepostponed the date of filing particulars would also be postponed.Undoubtedly the practice in England is to order particulars to befurnished a given number of days before the trial. But where the dateof trial is fixed I see no reason why a particular date should not bespecified for the filing of particulars. That would avoid any dispute orcontroversy as to the computation of time.-
In this particular case I thought, taking into consideration the numberof charges involved, that three or four weeks before the trial should beallowed, and I fixed December 4,1953, as the particular date having regardto the Ghristmas Vacation.
I shall now deal with the particulars upon which counsel could not agree.With regard to the first charge, namely the making and publishing offalse statements in relation to the character and conduct of the petitioner,the respondent demands, in addition to what the petitioner has agreed togive, the names, addresses, occupations and numbers (if any} on theelectoral register of the persons to whom each such act of publication wasmade; the names, addresses, occupations and numbers (if any) on theelectoral register of the persons in whose presence each such separate actof publication was made and the names, addresses, occupations andnumbers (if any) on the electoral register of the witnesses to be called toprove each such separate act of publication.
Where the petitioner relies upon a false statement made to a particularindividual or group of known individuals I consider it necessary thatthe respondent should be given the name or names of such individualor individuals and their addresses, occupations and numbers (if any) on theelectoral register. I do not however think that the petitioner shouldalso state the names of the persons in whose presence the false statementwas made or the names of the witnesses to be called to prove each suchact. That would not fall within the ambit and meaning of the term“ particulars of the charges ”. It would be in the nature of what evidencethe petitioner proposes to lead to establish the charges. That thepetitioner would not be entitled to know until the trial begins and thepetitioner’s case is opened.
With regard to the second charge, namely the printing, publishing,distributing and posting of advertisements, handbills, placards and 'posters I would make a similar order as above, namely that where thepetitioner relies on the distribution of advertisements or handbills to anyparticular individual or group of known individuals he should give theirnames, addresses, occupations and numbers (if any) on the electoralregister. With regard to the posting of placards and posters I direct thepetitioner to give, where possible, the places of posting.
SWAN J.—CheVoanaydkam v. Natesan
With regard, to the third charge I direct the petitioner to give thenecessary particulars to identify the person or persons upon whom anyaot of alleged undue influence was exercised, that is their names,addresses and occupations with their numbers on the electoral register.
With regard to the fourth charge, namely the charge of hiring, borrowingand using prohibited vehicles the petitioner must furnish, in additionto the particulars agreed upon, details of each trip, namely the starting-point and the destination and, if known, the number of persons conveyed,their names, addresses, occupations and numbers on the electoral register,and, if known, the amounts paid and to whom they were paid. I do notthink that the petitioner can be required to state the witnesses he will becalling to prove each of the alleged illegal acts specified in this charge.
As regards the fifth charge I refuse the respondent’s application tocompel the petitioner to state the names, &c. of the witnesses to be calledto prove each alleged omitted or impugned item of expense.
These particulars will be furnished along with the agreed particulars onor before 4.12.53. The costs of this inquiry will be costs in the cause.
Particulars to be furnished regarding certain charges.