TARNOLIS APPUHAMY et al., Petitioners, and WILMOT PERERA, Respondent

112-NLR-NLR-V-49-TARNOLIS-APPUHAMY-et-al.-Petitioners-and-WILMOT-PERERA-Respondent.pdf


Tamolis Appuhamy v. Wilrnet Per era.
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1948Present: Nagallngam J.
TAHNOLIS APPUHAMY et al., Petitioners, andWiLiMOT PERERA, Respondent.
Election Petitions Nos. 7 and 9 of 1947, Mattjqama.
Election petition—General intimidation—Undue influence—Treating—Paymentsto religious or charitable institutions—Bribery—Ceylon (ParliamentaryElections) Order in Council, 1946, sections 55, 56, 57 (a).
To set aside an election on the ground of general intimidation it is necessaryto show that the intimidation was of such a character, so general andextensive in its operation, that it cannot be said that'the polling was a fairrepresentation of the opinion of the constituency.
Before an election can be declared void on the ground of undue influencethere must be proof that the person or persons guilty of undue influence wereagents of the successful candidate ; there must also be proof that particularvoters were in fact influenced by the acts of undue influence.
The supply of refreshments by a candidate to persons who are actually engagedin the work of the election, and whose ballots are well known to be securein his favour, does not amount to treating within the meaning of section 56of the Ceylon (Parliamentary Elections) Order in Council, 1946.
Payments to religious or charitable institutions do not amount to briberywithin the meaning of section 57 (a) of the Order in Council.
The inducement to vote, which is contemplated in section 57 (a) of the Orderin Council, must be proved to have been operative in the mind of theelector at the date of the election.
Where a candidate made a declaration that he would hand over the allowance .that he would receive as a Member of Parliament to the Vice-Chancellor ofthe University of Ceylon to enable poor students from his electoral area toprosecute their studies at the University—
Held, that there was no offer or promise of valuable consideration -withinthe meaning of section 57 (o) of the Order in Council.
Xhese were two election petitions challenging the return of therespondent as Member of Parliament for the Electoral Districtof Matugama.
The grounds set out by the petitioners as tending to vitiate theelection were (1) General intimidation, (2) Undue influence, (3) Treating,
Bribery.
R.L. Pereira, K.C., with W. Sansoni, E. B. Wikramanayake,A. M. Ckaravanamuttu, V. A. Jayasundere, H. IV. Jayewardene, S.R.Wijayatilake, and R. S. Wana-sundera, for the petitioners.
E. F. N. Gratiaen, K.C., with C. S. Barr Kumarakulasinghe, A. I.Rajasingham, and Vernon Wijetunge, for the respondent.
Cur. adv. wit.
29 – N.L.R. Vol – xlix
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May 3, 1948. Nagalxngam J.—
These are tw.o Election Petitions challenging the return of the respon-dent as Member of Parliament for the Electoral District of Matugama.Three candidates contested the seat, namely, the respondent, Mr. C. W.
– W. Kannangara, the Minister of Education in the former State Council,and Mr. Robert Appuhamy. The last named does not appear to havemade a serious bid for the suffrage of the people. He does not appear tohave had election meetings or established polling offices or even appointedpolling agents and in truth the election was fought for all practicalpurposes between the other two candidates, and I propose to discussthe evidence in the case as if these two candidates alone had been in thefield.
Four grounds have been set out by the petitioners as tending to vitiatethe election of the respondent, namely,—
General intimidation,
Undue influence,
Treating,
Bribery.
I shall deal with each of these grounds seriatim.
General Intimidation.
No less than forty-five instances were furnished by the petitionersunder this ground. They adduced proof of only thirteen of them and,even in regard to these latter, the proof tendered was in certain instancesat variance with the particulars given. Not only have the acts reliedupon by the petitioners as constituting the basis for the charge of generalintimidation not been proved, but even if full weight be attached to thetestimony given in Court by the petitioners’ witnesses to the extent ofholding the charges established, it would be clear that the entirety of theproof thus assumed to have been given in favour of the petitionerscannot in law amount to proof of the charge of general intimidation.
Speaking generally, the testimony of the petitioners’ witnesses, witha few exceptions, may be said to range itself between gross exaggerationon the one side and deliberate perjury on the other. I do not, therefore,consider it necessary or essential to discuss the evidence in regard to eachof these specific charges in detail and I shall content myself with recordingmy findings very briefly in regard to them. Though in the petitionit was alleged that there was general intimidation before, during andafter the election in different parts of the electoral district, no attemptwas made to offer evidence of any intimidation subsequent to the dateof the election, and the evidence tendered in regard to intimidationbefore and during election was to show at best that there were unrelatedand unconnected acts of threat or violence to electors.
According to document P 16, at a place called Pannala, it wouldappear that two school boys, who were not themselves voters but who hadbeen on a mission of distributing election literature in support of thedefeated candidate, had had the leaflets in their possession snatchedfrom them by a drunken man who abused both of them and the candidatefor whom they were working. It is also alleged that the two youngsters
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were threatened with assault. One of the schoolboys gave evidenceand to corroborate him another schoolboy who had witnessed the incidentwas also called. In Court they went much beyond the statements theyhad made to the Police shortly after the incident, and I place no relianceon the exaggerated evidence they gave in Court, which was obviouslyan attempt on their part to carry escapades they are used to in schoolinto the Courthouse as well.
A similar incident is said to have taken place at Henpita on September 2,when three schoolboys were out distributing notices for a meeting to beheld in support of the defeated candidate ; these boys were bolder thanthe last two, and they in a spirit of bravado insisted on tendering theirnotices to two drunken men, who to their knowledge were staunchsupporters of the successful candidate ; as was to be expected, the reactionof the inebriates was to snatch the notices the boys yet had with themand to destroy them. The boys also alleged that the two men chasedafter them armed with a knife and a club. A complaint was made to thePolice which was followed by a plaint, and later the prosecution wascompounded on the undertaking given by the accused persons that theywould not interfere with the complainants.
These two instances show that drunken men and schoolboys engagedm distributing election pamphlets seem to have a certain amount ofaffinity for each other, and that drunken men avoid grown-up mensimilarly engaged as the boys and vice versa is proved by, inter alia,the instance where Sirisena Wijesinghe, who went about distributinghandbills in support of the defeated candidate, did not come across anydrunken men nor did drunken men run across him, although the Staremblem was prominently displayed about his person as he went aboutthe country. I think the truth is that schoolboys on their rounds intheir unbridled enthusiasm sought to poke fun at drunken men when theycame across them for otherwise they would not be schoolboys, and drunkenmen then retaliated, for otherwise they would themselves not heve beendrunken men. But what is surprising is that these instances shouldhave been seriously put forward at this inquiry in support particularly ofthe charge of general intimidation.
A drunken man also figures at the incident at Yatowita where, accordingto P 11, on September 2, 1947, a man ,the worse for liquor, appears tohave tom away the placard of the defeated candidate which was pastedon the walls of the house of one of his1 supporters and abused the supporterin obscene language. The supporter, however, gave evidence in Courtand for the first time introduced details of how threats had been utteredagainst him if he voted for the defeated candidate and of how he himself,as a result of the incident, explained to a fellow voter who came on thescene shortly thereafter that it did not appear to him that they werefree to exercise their vote in any way they pleased—language which makesone suspect that the witness had some acquaintance with the well knowntreatise of “ Rogers on Elections ”, if not in the original, at least in trans-lation of a certain passage in it. In this instance, too, I reject all theadditional material that was embroidered round the incident of thetearing away of the placard and the use of abuse towards him. Parfrom any threats having been held out, the statement to the Policediscloses that when the witness came out of his house the' miscreant took
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to his heels. This incident only furnishes an example of a cowardlyintruder of a building being intimidated by the appearance of the house-holder and does not support the charge.
The next is an incident that is said to have occurred at Udagama onSeptember 4, when three men who went in a car are alleged to havethreatened harm to a voter of Mr. Kannangara should he vote forMr. Kannangara, but the evidence also shows that the voter repliedthat in spite of what they said he would do exactly what he liked anddoes not appear in the least to have been intimidated.
Iddagoda is the scene of the next incident where, on September 6,two brothers-in-law, each supporting one of the two rival candidates, cameto blows over the alleged propriety, or rather impropriety, of puttingup the placard of the defeated candidate on a building in which one ofthem was trading and the other had rights of ownership. Not a wordwas said as to how either of them should vote or not and yet evidencewas led of this incident!
Yala became somewhat of a robust peg upon which was hung a mass ofevidence in regard to an incident that is said to have taken place there onSeptember 7. At best, accepting at its face value the evidence led onbehalf of the petitioners, nothing more is established than that a numberof men, some of them undesirable characters, went up to Yala junctionin a car and a bus, some of them exposing their persons and all of themshouting out that if any body came out they would be taught a good lessonand that if they did not vote for the respondent their cattle would bestolen and their houses would be set on fire—here again the language ofRogers is much to the forefront. It is alleged that this demonstrationwas enacted for the special benefit of one Aron Mudalaly, who was aleading supporter of Mr. Kannangara, but Aron Mudalaly himself wasnot called. The words alleged to have been uttered could not havebeen taken seriously by anyone—they were words uttered by vain menand could not and would not have been treated as meaning anythingmore than idle words of threat. In fact, though persons who say theyheard these threats were called, not one of them did say that thesewords had any effect on their mind or that their conduct in regard tothe election was altered in the slightest degree in consequence. The facts,however, are otherwise. The evidence of Sub-Inspector Kuruwitashows that the incident has been grossly exaggerated. According to theSub-Inspector, the day in question was one of the ordinary days of afair that is normally held in that locality not far from the junction andthe usual concomitant large crowd made its presence felt on the fairgrounds and in the vicinity, and when the car and bus full of men shoutingslogans came up and halted, people swarmed round the vehicles. TheSub-Inspector’s evidence further establishes that the men in the car andbus did not make any indecent exposure of their persons but that theywere attired in the normal way in which villagers are clad, that they raisedshouts of “ Victory to the Elephant ” and that there was nothing in theirbehaviour which would have given cause for alarm to or hurt the feelingsof persons of ordinary nerve.
The location of the next incident is Walagedara. On September 8,certain Wedisinghes are alleged to have made use of threats to theinmates in the house of a voter by uttering words to the effect that they
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would not be tolerated in the village if they were to give their votes toMr. Kannangara. The witness who was called in support of this chargesays he made a complaint to the Headman but the Headman took himto his (witness’s) house and there shut him in and asked him not to getout. This is really strange conduct on the part of the Headman to whoma complaint is made against certain other persons. But what is more,a plaint alleged to have been filed in connection with this incident wasproduced but it does not show it has anything to do with the electionsor that any member of the witness’s household was insulted or even thatAlice Nona who, according to the plaint, appears to have been the personinsulted, had been insulted in connection with election activities.
The remaining incidents under the heading of general' intimidationall relate to events that took place on the day of the polling itself.
Kasellenawa polling station is one which has been singled out forspecial attack by the petitioners. The evidence given by the peti-tioners’ witnesses has been contradicted by Police officers. Mr. A. P.Jayasuriya says that he went to this polling station in the forenoonon election day and that he was greeted with hoots and jeers, that peoplewearing Elephant badges thronged round him in a threatening attitude,so much so that he feared for the safety of his person and that in fact abadge that he was wearing was snatched by a person in the crowd.He further says that Ke complained to the Sub-Inspector of the removalof his badge and *also asked the Sub-Inspector to^“ give a chance to thevoters to give their votes ” as'he felt that1 voters were finding it difficult 'to enter the polling station, the implication being that the voters ofMr. Kannangara were being prevented from casting their votes by threatsof force or voilence and by physical extraction. But the testimonyof Mr. Mella Aratchi, who accompanied Mr. Jayasuriya, shows thatMr.. Jayasuriya:s memory is at fault. According to Mr. Mella Aratchi,Mr. Jayasuriya appears to have been the bete rvoir of the electors of theMunuwatubage Pattu and the appearance of Mr. Jayasuriya was thesign for cries of “ We do not want Jayasuriya ”, amidst hooting andjeering. According to Mr. Malalgoda, the Presiding Officer, pollingwas interrupted for about fifteen minutes ; the reliable evidence in thecase, however, shows that the interruption was due to Mr. Jayasuriya’scar having been halted opposite the entrance to the polling station andthe crowd of voters becoming restive in consequence. One word mustbe mentioned about the alleged loss of the badge. It is admitted byMr. Jayasuriya and the other witnesses that he had only one badgewhen he came to Kesellenawa polling station. Sub-Inspector Raja-kulasingham denies that any complaint was made to him about the badgebeing snatched away from the person of Mr. Jayasuriya, but whenMr. Jayasuriya met the Assistant Superintendent of Police, Mr. Kelaart,a few minutes later, Mr. Jayasuriya was noticed by Mr. Kelaart yetwearing a badge. Neither Mr. Jayasuriya nor Mr. Mella Aratchi norMr. Simon Kuruppu was able to explain how, after the removal of Mr.Jayasuriya’s badge, he was yet seen wearing one. It seems to me thatevents moved so fast that Mr. Jayasuriya was in such a confused state ofmind that he has unwittingly transplanted at Kesellenawa an incidentthat took place at Madurawela, and his companions unthinkingly have
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fallen, in line with him. The conduct of Sub-Inspector Rajakulasinghamhas been adversely commented upon and his integrity assailed byMr. Jayasuriya, but there is no foundation for it. The evidence given byMr. Jayasuriya is not convincing and is inconsistent with the complainthe made shortly after the incident to the Assistant Superintendent ofPolice. In that statement he expressly states that but for the assistancerendered to him by Sub-Inspector Rajakulasinghim and some of hisfriends the crowd might have assaulted him. That Mr. Jayasuriyawas in a very excited, state is obvious. Sub-Inspector Rajakulasinghamsays that Mr. Jayasuriya wanted him to charge the crowd and shootthem. Mr. Mella Aratchi also says that he had to appeal to Mr. Jayasuriyato cool down, as the latter appeared to be very hurt. As stated earlierthe Presiding Officer’s journal contains a reference to the interruptionto the polling during a period of fifteen minutes but to no other, and thejournal has been endorsed by the polling agents of Mr. Kannangarato th.3 effect that they were satisfied with the arrangements for pollingand that they had no complaints to make. In fact Mr. Mella Aratchiwas frank enough to admit that so far as he could see there were no votersof Mr. Kannangara about the place who could have been threatened orabused, and in these circumstances it is impossible to hold that anyvoters were threatened or intimidated.
The polling station at Beilapitiya must next be noticed. It wasstated that wearers of Star badges were molested, their badges removed,Elephant badges substituted and they were adjured to vote for the res-pondent. The witnesses who depose to these facts, one of them a Regis-trar of Marriages and another a polling agent, admit that they made nocomplaint to anyone in authority at the time the alleged misdeeds wereperpetrated, and perpetrated so flagrantly in close proximity to placeswhere Police officers were stationed. What is more, the polling agentin this instance too expressly declared to the Presiding Officer that hehad no complaint to make with regard to the polling. A third witnesswent to the extent of saying that constables detained wearers of starbadges while they let those with Elephant badges go into the pollingstation, but he too, eurioulsy enough, says he made no complaint eitherto superior officers of the Police who came to the station at frequentintervals or even to the agents of the candidates who were both in thepolling station and in the election office close by.
In contrast to the evidence of these witnesses is that of the PresidingOfficer, who says that he went out at intervals to see whether there w7asanything amiss on the road leading to the polling station but he foundthat everything was orderly ; he, however, says he found the Headmanloitering among the crowd and he warned him no less than twice beforehe could be induced to leave the place. I reject the testimony of thewitnesses called by the petitioners as unworthy of credit.
Activities at the Madurawela and Haltota polling stations formedthe subject of charges, but the evidence in Court is so far different fromthe particulars furnished that it is unnecessary to take any furthernotice of them.
Obstruction caused to a car out on a mission of conveying voters tothe polling stations by certain men armed with knives at a place called
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Welipenna was spoken to by a witness by the name of William Wije-suriya. His evidence in Court was totally in conflict with the state-ment he had made to the Police shortly after the alleged incident. Tothe Police he said that as he was going in his car with two boys, a mancalled Henry Jayasuriya obstructed the passage of the car, holding anopen knife in his hand. On behalf of the respondent it has been suggestedthat the schoolboys and the witnesses were going about in the car,shouting slogans, when the incident is alleged to have occured. Butwhatever that may be, the Police themselves to whom complaint wasmade do not appear to have taken any action in regard to it and it issignificant that no voters were being conveyed at that time and that novoters were obstructed, although the witness in Court tried hard to makeout that there were two voters in the car at the time—a version entirelyopposed to that given by him to the Police.
The last of the polling stations referred to by the petitioner is that atMilleniyawa. It was alleged that a party of youngsters who appearedto be drunk went up, created disturbance and prevented people fromvoting by threatening them that if they did vote for Mr. Kannangarathey would be stabbed. How these boys were to discover how the voteswere cast in order to carry into execution their threats has not' beenrevealed. This view of the matter apart, though there were severalmembers of the Police at the spot apart from Police officers who patrolledthe area from time to time and agents of Mr. Kannangara both in thepolling station and at the office hard by, not one word of the allegeddisorderly behaviour of these youngsters was said to anyone of them.The witness who speaks to these facts is a native physician, but thoughhe adds that he was himself specifically threatened, he recorded his votewithout any mishap Nor is there evidence that any other person wasprevented in consequence. No reliance can be placed on testimonyof this character.
On this state of the evidence, can it be said that a case of generalintimidation has been made out? The term “ general intimidation ”is not defined in the Order in Council. To appreciate, however, what ismeant by general intimidation, one must fall back upon the EnglishLaw, where the offence has been regarded as a development of thecommon law. No better definition can be given of the term than thatgiven by Baron Bramwell in the North Durham Case1 where he expressedthe notion underlying the term as follows :—
“ Where the intimidation is of such a character, so general andextensive in its operation, that it cannot be said that the polling was afair representation of the opinion of the constituency. ”
If one applies the test as formulated in this dictum to what was soughtto be proved by the petitioners, leave alone what can be said to havebeen established by the evidence led by them, it would be found thatthere is here a total lack of evidence from which it could be gatheredor even inferred that the general body of the electorate or even a sectionof it was subjected to threats of force or violence, so much so that it couldbe said that the exercise of the franchise by the electors was not free and
* (1847) 2 O’Mds H 152.
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that the polling did not reflect truly the views of the electorate. Noevidence was given of what may be termed coercive intimidation, that isto say, intimidation having for its object the use of force or threat to compela voter to vote for a particular candidate, but what evidence was ledwas led to show that the electorate was subjected to preventive intimida-tion, that is to say, intimidation which had for its object the preventionof the electors from going to the polls lest the rival candidate gets theirvotes. Having regard to the number polled and to the circumstancethat this electoral area annexed to itself the credit of having polled thehighest percentage of voters in any electoral area in the Island, it certainlywould be extremely difficult to convince anyone that voters in generalwere deterred by anything savouring of intimidation from going tothe polls or recording their votes. I must not, however, be understoodas saying that if it is shown that; though a large number may have pollednevertheless a fair number of the electorate were prevented from exercisingtheir right freely, that would not by itself be a sufficient ground fordeclaring the election void, but of this there is scarcely any proof in thiscase.
The North Louth case 1 was a much stronger case of general intimidationthan the present one. In that case the facts summarised by Rogers 2were as. follows .—
‘‘.The opposing candidate was assaulted on the polling day and had. to be protected by Vhe Police, but no voter was proved to h“ave beenprevented from voting ; that in the Louth polling districts for some daysbefore the election crowds perambulated the roads at night, booingoutside the houses of the reputed supporters of the opposing candidate,that on the day before the poll a voter was followed for a quarterof a mile and kicked and did not vote, that a postmaster was threatenedon the night before the election and his windows were smashed, that onthe polling day the same person was threatened and had to he protectedby the Police and was held up for two hours, that another''voter wasassaulted with stones and his jaw broken and that another voterwas kicked and beaten so badly that he had to stay in the house for afortnight and that in other polling districts voters were booed andjeered at by crowds. ”
The Court refused to avoid the election on the ground of generalintimidation, Gibson J. observing :—
“ To upset an election for general intimidation it is necessaryto show that there was such general intimidation as might have affectedthe result of the election ”.
Local cases are not wanting which illustrate the principles upon whichon the ground of general intimidation, Courts have interfered in elections.In both the Nuwara Eliya Case 3 and the recent Gampola Case 4 therewas clear evidence that large sections of the electors were prevented fromrecording their votes by threats of actual violence and force used onthemythat prompt complaint was made to persons in authority and thatthose complaints were verified and found to he true. The present case
1 (1911) 6 O'M <5e H 124.3 (1944) 45 N. L. R. 145.
3 Elections, 20th ed. Vol. II., page 345.4 (1948) 49 N. L. R: 207.
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is one far removed from either of these. Not a single complaint was madeto anyone in authority that any voter experienced difficulty in gettingto the polling station or in recording his vote. In these circumstancesthere is only one conclusion possible with regard to this charge, and thatis that it has not been made out.
Undue Influence.
While in order to sustain a charge of general intimidation it is necessaryneither to prove the agency of the intimidators in relation to the candi-date on whose behalf the intimidation was exercised nor to establishthat any particular voter or voters were in fact intimidated, it is essential,however, that before an election can be declared void .on the ground ofthe exercise of undue influence proof must be adduced both of the agencyof the person or persons guilty of undue influence and of the person orpersons intimidated. Section 56 of the Order in Council which definesthe offence of Undue Influence makes this abundantly clear. Althoughthe petitioners have made an endeavour to place before Court testimonywhich, according to them, would demonstrate the commission of theoffence of undue influence, they have singularly failed to establisheither agency of the alleged intimidators or that in fact any person wasintimidated.
, I shall proceed to an examination of the various acts relied upon bythe.petitioners. Some of the instances of undue°influence have akeadybeen considered under the charge of general intimidation* but I shall.quickly pass them in review, briefly commenting on them from the stand-point of the charge I am now considering.
The alleged incidents at Madurawela and Haltota may be ignored,because the proof tendered, as stated earlier, is so completely at variancewith the particulars furnished. The events at Henpita and Welipennado not concern voters at all but schoolboys. The occurrences at Yato-wita and Udugama have a spiciness more of abuse directed againstsympathisers of the opposing candidate rather than of any real threatdeliberately made of the infliction of force or violence on them. Inregard to the happenings alleged at Iddagoda, there was not even apretence of intimidation of anybody but a quarrel between two brothers-in-law as regards the putting up of posters.
I shall now' take up the- other incidents not so far referred to. It issaid that at Ganatuduwa Temple, after the priest in charge had objectedto the holding of a meeting at the temple premises in support of therespondent’s candidature, the organisers arranged to hold the meeting,and in fact did hold it, in the open a little distance away from the templepremises and that some of the speakers uttered threats not against anyonein particular, but generally against those who worked or voted forMr. Kannangara. It was, however, alleged that one of the organisers,while engaged in clearing the open ground selected as the fresh venuefor the meeting cast a remark that he was cutting a grave to burythe priest of the temple but this, as the witness himsolf admitted, wasnot and could not have been regarded as a serious threat intended to becarried into effect but merely as one expressing resentment and annoyancewhich the speaker felt in being refused permission by the priest to holdthe meeting at the temple premises and nothing more.
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At Weboda it is alleged that a woman by the name of Siriya made useof threats generally against all and sundry, and at Palligoda a masonwas abused by one Eddin for voting for Mr. Kannangara. No attemptwas made to prove the agency of either Siriya or Eddin.
Proof was tendered that at a meeting held at Udugama in support ofthe candidature of the respondent leaflets were distributed in whichstatements were made to the effect that Mr. Kannangara was “ underthe malefic influence of planets during the period between August 16and September 14 ”. A copy of the leaflet has been produced and itpurports to be signed by one styling himself “Astrologer Munivamsa”,which is obviously a pseudonymous name and, what is more, the leafletdoes not bear the name of the printer or publisher as required by law.But here again, apart from the question of agency, it would be obviousthat this statement cannot in the remotest degree tend to have the effectof intimidating voters. The leaflet undoubtedly has reference to the so-called unsatisfactory position of the planets under whose influence Mr.Kannangara was alleged to be between the dates mentioned, but it isdifficult to see how such a statement could create or tend to create fearin the minds of the voters ; it is, however, said that a publication suchas that may and would have tended to wean Mr. Kannangara’s votersaway from him because the electors may have thought that they wouldbe casting their bread on water in voting for a candidate who wasbound to meet with defeat ; but then that would constitute at best a chargenot of undue influence but one under section 58 of the Order in Councilunder the heading of making a false statement of fact in relation to thepersonal character of a candidate, assuming, of course, that the allegationcould be treated as a personal reflection on the character of the candidate.
The last item is one that relates to the distribution of copies of pam-phlet P 35 among Indian labourers on the estates, in particular at Pantiya.That the leaflet was published and distributed by or on his behalf isadmitted by the respondent. It has been argued on behalf of thepetitioners that the publication of photographs of Pandit JawaharlalNehru and of the respondent on either side of a facsimile of the IndianCongress flag would have tended to create in the minds of the estatepopulation for whose benefit the leaflet was distributed the fear that ifthey did not support the respondent either temporal or spiritual harmor injury would befall them. I am not disposed to accede to this con-tention for I do not think that such would be the normal effect producedon the mind of any person, be he a labourer or not, even by the barepictorial representation, let alone the printed words, but if the texttoo is taken into account, it would be well nigh impossible to hold thatsuch a result as contended for by the petitioners could have been even. remotely possible. To my mind the impression that any voter lookingat the pictorial representation would receive is that the respondent eitherwas a Mend or had support of Pandit Jawaharlal Nehru but certainlynot that the voter would suffer punishment even spiritually—fortemporal punishment is altogether out of the question—by not voting for therespondent ; on the. other hand, it may be true to say that the voter,if guided entirely by the pictorial matter alone may feel that he wouldbe doing an act pleasing in the eyes of Pandit Jawaharlal Nehru shouldhe vote for the respondent and so be induced to vote in that way. But
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even so, the act does not fall within the category of fraudulent devicesor contrivances which are penalised by the Enactment. The wrongview formed by the voter is attributable to his carelessness in not properlyinforming himself of the verbal contents which are an integral partof the document, and the person issuing it cannot be heid responsible forthe error committed by the voter. For otherwise, the consequencewould be that a document quite proper in point of form and unassailablein law at the time of issue would subsequently be said to attract to itpenalties under the law dependent upon solely the misconception of thirdparties as to its exact purport—an illogical position altogether. Besides,there is a total lack of evidence that any voter suffered change of faithor felt himself impelled to change his faith as a result of the perusal ofthe document in question.
It is manifest that in regard to all these instances there is no proofeither that any of the persons alleged to have been responsible for theacts of undue influence relied upon by the petitioners was an agent ofthe respondent even in the wider sense of the term as understood inelection law, or that any voter or voters were influenced by these actsof undue influence. This charge, too, therefore, fails.
Treating.
This charge is so closely allied to that of bribery, and as every act oftreating save one is said to have been accompained by acts of bribery,it would be more appropriate, in view of the conclusions reached byme, to make a few broad observations on the items under this chargeand to relegate the discussion of the evidence to the latter head. Onecannot help noticing that in more than one instance where more than onewitness has been called to testify to any particular incident, the witnessescontradict themselves so badly, not merely on unimportant detailsof a trivial character but on material facts of ample proportions, thatit is difficult to believe any of the witnesses.
On August 28 and September 3, voters are alleged to have been treatedat Hakgala Estate, the residence of the respondent. The evidence led isof a conflicting nature, not only as regards the persons treated and theirnumber but even as to the attendant circumstances.
The floods of August, 1947, are said to have provided an opportunityto the respondent to treat voters in the afflicted areas. The agents of therespondent are reported to have taken provisions and distributed themto the needy, but the two eye-witnesses called in support are not agreedas to the method of transport employed to convey provisions, the placeor places where they were taken to or from where or how they weredistributed.
The scene is laid at Bopitiya in the house of one William Appuhamy,where the witness Sadiris Appuhamy, who admittedly was a pollingagent of the respondent, states that on September 10, food and drinkincluding arrack was given to about twenty-five persons who wereworkers of the respondent. His evidence is supported by that of theHeadman of the area, Don Dias Karawita, who says that as he wentalong the road at about 7 f.m. he saw people being given drinks out ofa bottle which had a label of arrack. The agency of William Appuhamy
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NAGAI-INGAM J.—Tamolia Appuhamy v. Wilmol Perera
is denied by the respondent ; but assuming agency to be established,do the facts prove the charge ? Section 55 penalises the giving of food anddrink to a person with a corrupt, motive to influence him to vote or refrainfrom voting. But where persons who are admittedly workers of a candi-date and whose ballots are well known to be secure in favour of thatcandidate are provided with meat and drink not for influencing theirvotes, for there is no need for any influence at that stage, but as partof the ordinary amenities to which any worker is entitled, such conductand action falls outside the sphere contemplated by the section. Inthe Westminster Case 1 refreshments were supplied at no less thansixty public houses to the men who were actually engaged in the workof the election for the candidate. It was held there too that it did notamount to treating. Again, the Bradford Case 2 was also a similarcase where known supporters of the sitting member, his committeemen in fact, who were actually engaged in the work of the election,were provided with meat and drink ; it was held that the act did notamount to treating.
Bopitiya is also the scene of alleged treating on the election day. It isalleged that at the boutique of one John Sinno, tea and bread was servedfreely to all and sundry—and one of the witnesses went to the extent ofsaying that even those who wore Star badges were freely served withoutany questions l?eing asked and .without any attempt being made toinfluence them to'change over in support? of the Elephant emblenr. Theevidence also discloses that there were two boutiques 'in this area and thatall the voters collected at one or other of the two boutiques from wherethey were conveyed to the polling station. Counsel for the respondentsuggested that probably the treating'was done by the opposing candidate’ssupporters ; but it seems to me that having regard to the evidence on thepoint as a whole, a society admittedly in existence in the village theavowed object of which was to ameliorate the conditions of the peopletook upon itself to make a day of the election and to offer refreshmentsto all those who had gathered at the boutique, but there is no proof thatany agent of the respondent or anyone on is behalf or with his knowledgespread this feast before the electors.
Bribery,
Under this head too several instances were furnished by the petitioners,but here, as in the previous instances, often the proof was far removedfrom that which the petitioners took upon themselves to establish. Underthis charge, more than any other, the evidence tendered by the petitionersis more often than not entirely untrustworthy and is of such an obviouslytainted character that hardly in the ordinary class of litigation that comesup before the Courts either on the criminal or civil side would Counselhave deemed it fit to place such evidence as has been led at this inquiry.Again, a common feature of the evidence in respect of this charge too isthat wherever more than one witness was called to depose to an instanceof an alleged bribe, the witnesses so hopelessly contradicted one anotherthat one could not but come to the conclusion that not one of them wasspeaking the truth ; and when their evidence had to be weighed against1 (1869) 1 O'M A H 91.— * (1869) 1 O’M A H 39.
NAGALINOAM J.—Tamolis Appuhamy v. WUmot Parera
373
that of the respondent and of his witnesses, who undoubtedly were notonly candid and truthful but created the impression of being forthright,straightforward and honest, it is needless to say that the only viewone could take of the evidence led by the petitioners is that no reliancecould be placed on it.
I shall now turn to the evidence which may appropriately be discussedunder three main headings :—
{a) Payment of money to individuals ;
Payment of money to institutions, religious or charitable ;
Offer other than money.
On the date of polling it is alleged that one T. -M. Fernando paidmoney to estate labourers for their votes. The payment is said to havebeen made on the road not far from the polling station and withinvisible distance of where police officers were stationed ; the manner inwhich payments are said to have been made varied with individualwitnesses, one saying that payments were made openly, another furtivelyand a third covertly. Witnesses who testified to these facts wanted theCourt to believe that they were so innocent and ignorant of the sin ofbribery that they did not realise that an offence was being committed,at least not certainly till they were made wise by a member of the barwho happened to observe the act himself. Evidence of the statementalleged to have been made by the member of the bar was permittedto be given by the witnesses on Counsel’s undertaking that the memberof the bar referred to would be called to testify and in fact the hearing wasspecially adjourned for that purpose. Though the member of the baralluded to did attend Court on the next date, Counsel then appearingfor the petitioners did not think it necessary to call him. In the resultthe evidence of the witnesses on this point did not receive that weightycorroboration expected to have been given to it by a witness of standingand of undoubted integrity, and their evidence bereft of that supportis worthless. It is also significant that no attempt was made by anyoneto draw the attention of any police officer to these flagrant misdeeds.Besides, as Counsel for the petitioners himself had to admit, there is noproof of the agency of T. M. Fernando.
Electors living in the two villages of Henpita and Kolehekada aresaid to have been reimbursed their loss of income for the day of pollingby the respondent. Payments are alleged to have been made to severalon September 10, the day preceding the date of the election. Suderis,admittedly respondent’s polling agent, says that sums varying fromRs. 2 to Rs. 8 were distributed at several houses according to the numberof votes available at each house but he is definite that it was on September3, 1947, and not on the 10th. The charge therefore largely fails. Inregard to three voters, however, the allegation is that it was onSeptember 3 that payments were made, but two of them Suderis does notidentify and consequently only one may be said to be reached by hisevidence. It is noteworthy that this witness volunteered the informa-tion that he himself was paid the sum of Rs. 25, but that informationhe does not appear to have divulged to anyone. The respondent deniesthat he did take part in any such activity and I have not the slightest
374
N AGALIN GAM J.—Tamolia Appuhamy v. WiImol Per era
hesitation in accepting his denial in preference to the uncorroboratedassertion of the ■witness Suderis, who, if his evidence be true, is at best anaccomplice.
Next I come to a very serious charge of bribery. Premadasa Wije-gurusinghe deposes that Cecil Dias and Gunawardena, agents of therespondent, promised him and his brother a sum of Rs. 1,000 if theywould secure votes for the respondent. Wijesinghe further says that inpursuance of the promise he was paid by the respondent two sums ofRs. 50 and of Rs. 100 on August 10 and 28, respectively, and that healso recieved another sum of Rs. 50 on the same account from Cecil Diason September 3, out of a sum of Rs. 200 paid to him on that date, thebalance Rs. 150 representing car hire incurred by him to take voters tothe estate of the respondent. In the particulars furnished the personsto whom the offer of the bribe was made are set out as Premadasa Wije-gurusinghe and his father P. A. P. Wijegurusinghe, who is an aratehi ;the evidence, however, is that it was the brother and not the father,and on behalf of the respondent it has been urged that the variation isnot as innocent as it may seem but that it is part of a deliberate plan,having regard to the circumstance that wherever persons of some standingor responsibility have been referred to in the particulars, they certainlyhave not made their appearance in Court, but invariably some person ofno consequence has been saddled with the task of getting into the witnessbox. The brother himself has not given evidence but it is obvious thatthe conduct of the brother, as disclosed by certain letters written by himto the respondent even after the election, clearly proves the falsity ofthis offer of bribe to the brother at least. Had such a promise been madeto the brother, the brother instead of appealing for monies by way ofloan would certainly have referred to the fact that money was due tohim on the promise that had been made to him, but not a single sentimentof that nature pervades the letters. What is more, Premadasa Wije-gurusinghe says that relying upon the promise made to him he engagedthe services of the witness Sirisena, agreeing to pay him a sum of Rs. 50,but Sirisena flatly contradicts this witness of the existance of such anagreement having been entered into.
On September 3, it is further alleged that Premadasa Wijegurusinghetook a number of voters from Horawela to the estate of the respondentat Hegala and that the electors were treated with food and drink as setout under the charge of treating and that some were also paid moneyat the rate of Rs. 5 to each by the respondent. But Premadasa Wije-gurusinghe and another witness by the name of Francis are both agreedthat as the party went up the respondent left the estate on some missionof his, while another witness, Sirisena, says that it was the respondentwho paid the moneys. It was not suggested by either Wijegurusingheor Francis that the respondent did return before they left. It isimpossible, therefore, to reconcile the evidence of these witnesses or toplace any reliance upon the statement that the respondent paid a sum ofRs. 5 to any of the voters at his bungalow' on September 3. There areother circumstances also which throw doubt on the truth of this story.Francis says that when their party of about one hundred people wentup, there were already on the respondent’s estate fifty or sixty others
NAGAUNGAM J.—Tamolis Appuhamy v. W&mot Perera
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who had' come from other areas. Neither of the other two witnesseshowever, refer to the presence of any but members of their own party.Wijegurusinghe further says that when Cecil Dias paid him Rs. 200it was in a room, unseen by anybody, -while Sirisena says that moneywas paid in his presence as well. Both Cecil Dias and the respondentdeny the acts imputed to them, and their evidence, as I have said earlier,outweighs the statements of these witnesses.
A pure act of charity, if true, was referred to as having taken place atWelkandala, also on September 3. The respondent, it appears, saw aboy lying ill in the temple premises with an abscess and he handedover a sum of Rs. 10 to one Ekmon with directions to procure food andobtain medical attention for the boj The respondent denies it ; butit is to be noted that the payment, if made, is not to an elector or to anyother person on behalf of an elector for the purpose of inducing an electoreither to vote or refrain from voting in consequence.
At Matugama Resthouse on July 14 the petitioners allege that therespondent paid a sum of Rs. 200 to one Appusinno and one Arlis Sinnoto bail out certain accused persons charged in the Magistrate’s Courtof Matugama. Two witnesses testified to this incident and not only didthey not impress me as speaking the truth but attention need only bedrawn to the fact that one witness says that the respondent was dressedin European costume while the other says he was in national costume.There are other facts, too, a consideration of which can hardly be saidto inspire confidence in the story related by these witnesses. Therespondent denies the incident.
It is common ground that on July 3, 1947, the respondent handeda cheque for Rs. 200 towards the Pannila Temple Fund, the occasionbeing the opening of a fancy bazaar in aid of the temple funds by him.The witnesses called by the petitioner, however, say that the opportunitywas seized both by the respondent and by certain of his supporters torefer to his candidature and to ask those present to give their supportto him. The respondent, as indicated, admits the issue of the chequebut he denies that there was any speech or reference touching hiscandidature. I accept the evidence of the respondent on this pointas against that of the witnesses called by the petitioners. But theeffect of giving this cheque has to be considered. It is not disputed thatthe respondent did stop payment of this cheque. He says that a fewdays after he had issued this cheque he was put wise by a friend of hiswho indicated to him the possibility of his contributions being misinter-preted and taken advantage of by his opponents. He says he did notconsult legal opinion but immediately decided to stop payment of thecheques and wrote to the Bank stopping payment on July 9. By sostopping payment there can be little doubt that he put himself in avery much worse position than he would have been had he not issued thecheque at all. Even if there had been in the remotest degree any attemptto influence electors to vote for him as a result of the issue of the cheque,on the dishonour of it becoming known among the electorate, as itundoubtedly did and as is shown by the evidence to have been widelypublished in the area both by display of the cheque itself in the windowof a business establishment and by reference to it in newspapers, the
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NAGALTNGAM J.—Tamolia Appuhamy v. W&mot Perera
influence, whatever it was, was thereby completely nullified, and itcannot therefore be said that the inducement, if any, was operative inthe minds of the electors at the date of the election- See the WindsorCase1.
Another instance of an admitted payment is that of a sum of Rs. 150to Amanda Vidya Wardene Samitiya on June 22, 1947. This bodyis in the fullest sense of the term a philanthropic society, the membersbeing entitled not in the slightest degree to any direct benefit themselves.The object of the Association was to collect funds for the constructionof the school building. No amenities of any kind were provided for themembers. There was no question of proposing and seconding a personfor membership of the Society. Provided an individual paid the minimumsubscription of fifty cents a month he became a member of the societyand so entitled to take an interest in collecting further funds for theconstruction of the building. The members of the Society from time totime invited leading members of the area to preside at meetings and,of course, the opportunity was never lost of inducing those invited tocontribute as liberally as they could towards the building fund ; thepersons invited themselves knew full well of the idea behind the invitation.There is one point of the contest between the respondent and the petitionersin regard to this incident. The petitioners assert that it was after therespondent had announced his candidature and it was at a time when itwas known as a fact in the area that he was coming forward as a candi-date that he insidiously procured the secretary of the Society to takesteps to extend the invitation to him to preside at a meeting with theobject of furthering his candidature. The respondent, on the other hand,denies that at the time he accepted the invitation he had any intentionwhatsoever of contesting a seat. There is ample testimony in this case,not only of various surrounding circumstances but also specific evidenceof some of the witnesses called by the petitioners whose evidence on thepoint is preferable to that of the ■witnesses who directly testify on thisquestion that the first time that anybody heard of the respondent puttinghimself forward as a candidate was when he announced his candidaturein the Press on June 21. The respondent says that it was about twoor three days prior to that that some of his friends came and coaxed himto come forward as another candidate who had been in the field had bythen dropped out. It is not without interest to note that at thecommittee meeting of the Society the person who seconded the resolutionthat the respondent should be invited to preside at the meeting was noother than the Vice-President of the Society, an ardent worker of thedefeated candidate and a witness for the petitioner. The committeealso deputed three of its members among whom, again, were supportersof Mr. Kannangara, to interview the respondent to induce him to acceptthe invitation. The President, S. H. A. Fernando, and the Vice-PresidentSadris Fernando, who are respectively the Village Headman and Vel-Vidane, are both guilty of perjury when they spoke to various incidentsin coimection with the conduct of committee and general meetings ofthe Society. On the other hand, the Secretary, B. A. Perera, was anuninterested, honest and impartial witness, whose every word was fully
1 (1874) 2 O'M dr H 88.
NAGALINGAM J.—Tarnolia Ajypuhamy v. Wilmot Ptn.ro..
377
supported and corroborated by the minutes of proceedings which heproduced and which were confirmed by no other than S. H. A. Fernandohimself. The respondent says that as he had already accepted theinvitation he did attend the meeting on June 22, and became a memberof the Society by paying by way of subscription a sum of fts.150. Had therespondent been the only individual who paid such a large sum of moneyto gain membership, the door would have been open for an inferenceadverse in some degree at least being drawn against the respondent.But it is established, and established through the mouths of the witnessesthemselves who testified against the respondent, that there were othersin that area belonging to communities other than theirs who could not havehoped to have derived any benefit directly or indirectly for themselvesor for any members of their own community who had contributed largelyand at least one who contributed even more than the respondent. Therespondent’s testimony, which is supported by that of the Secretary,
A. Perera, is borne out completely by the recorded account of thenature and purpose of the payment made by the respondent, whichshows that there was no connection between the payment and therespondent’s candidature.
A payment of Rs. 150 is also admitted by the respondent in connectionwith the Mihindu Perahera at Matugama on June 2, 1947. According toPieris Munasinghe, about May 13, the respondent intimated to him thathe intended coming forward for the Matugama seat and desired that heshould introduce the respondent to the electorate among which he, therespondent, was not sufficiently well known. A teacher by the name ofSathan says that the respondent, when he took part in the function onJune 2, 1947, publicly announced his candidature on that date. Boththese witnesses are witnesses of falsehood. Sathan, who claims to be aschoolmaster teaching the eighth standard in a Sinhalese school, expresslystated that the repondent unveiled a picture of the Arahat Mahinda.On more than one occassion he referred to the object unveiled as a paintingor picture. Under cross-examination, when he was confronted with theassertion that it was not a picture that the respondent had unveiled but astatue, he took umbrage under the pleas that the statue was painted andtherefore he described it as a painting. It is important to note in thisconnection that the petitioners in their particulars too did refer to theunveiling of a picture and not of a statue. One of two conclusions ispossible with regard to this witness’s testimony, and that is that eitherhe was never there and that he was merely deposing to what informationhe had received at the hands of others or that if he had been there he wasprepared to accommodate himself to the extent of taking upon himselfto adhere to the incorrect description given by the petitioners in theirparticulars. The respondent’s evidence is that two persons by the nameof Colonne and Jayasundere informed him that a small sum had beenleft over from the “ anti-beef-eating campaign ” staged by them earlierand wanted him to assist them in getting a statue made of Mahinda toenable them to conduct a procession with the image on the next Posonday. He says he agreed to do so and bore the cost of the statue amountingto Rs. 150. He further states that at the date of the procession nothingwas further from his mind than a parliamentary seat, because at that:30 – N.L.R. Vol – xlix
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NAOAL.INOAM J.—Tamolia Appuhamy v. Wilmot Per era.
date he aays there was already one Mr. Wilmot Jayanetti who was-considered a strong rival to the sitting member. I accept the evidenceof the respondent that at the date he made this payment he had notformed any intention of contesting the seat.
On September 7, at Welkandala the respondent is said to have made agift of Rs. 300 to the Mahajana Abiwurdhina Sadaka Samitiyafor buildinga Chaitya. Admittedly the office-bearers included a treasurer and asecretary apart from the president, who has given evidence in the case,and admittedly there were books of account in which the contributionsreceived were entered. But, curiously enough, no books have beenproduced, and the position taken up by the President is that after theparliamentary elections the Society has ceased to meet and he now hasno knowledge of the books. The evidence also indicates that the respon-dent went to Welkandala by previous appointment and the money isalleged to have been handed in the presence of a large gathering ofpeople who had been previously informed both of respondent’s intendedvisit and of its purpose. It is established that the respondent hadstopped payment of the cheque he had issued to the Pannila templeas early as July 9, as he deemed it improper. But it is said that althoughhe may have made no payments by cheque after he had stopped paymentof the cheque referred to, he nevertheless continued to make paymentsin cash. It has, however, not been suggested that he was making pay-ments secretly, but quite openly and after previous announcementand publication of his intended visit. Nothing would have been simplerthan to have secured the presence of responsible persons to testify to thefact of payment. The respondent, on the other hand, affirms that havingbeen warned that his contributions may be misinterpreted he refrainedthereafter from any such activity and literally followed the well knowndictum of Bowen J. that charity at election times ought to be kept bypoliticians in the background.
On July 18, the respondent is alleged to have made a payment ofRs. 150 to Levandura temple on the occasion, again, of a Pancy Bazaarheld for the purpose of raising funds for the temple. In this instance,too, although accounts are said to have been kept of the collections madefor the temple, it is admitted that no entry of the payment of moneysby the respondent appears in the books and that no such money has beenbanded to the Treasurer of the funds who would be no other than theresident priest. It is also said that no steps have been taken to compelthe party who had received the money to account for the moneys receivedup to date. The date of this incident, it will be noticed, is subsequentto the date when the respondent stopped payment of his cheque alreadyreferred to, and here too, it is not without significance that admittedlythe respondent attended the Fancy Bazaar after his visit had been publish-ed by means of posters and handbills. The priest himself does not saythat he saw the respondent place or hand over any money but the mostthat the priest goes to the length of saying is that he heard it so said.The respondent denies that he made any such payments as alleged.
It is not unimportant to determine, even on the facts as found, whetherpayments to religious or charitable institutions can be said to amount
NAGAXJZNGAM J.—Tamolia Appuhamy v. Wilmot Perera.
379
to bribery within the meaning of the provision in the Order in Council..The part of the section material for purposes of the present discussion .is sub-section (a) of section 57, which provides, leaving out the wordswhich are inapplicable, that every person who gives money to an elector-or to any person on behalf of an elector or to any other person in orderto induce an elector to vote or refrain from voting should be deemedguilty of the offence of bribery.
Now, I cannot quite see how payment to the funds of a temple can besaid to be a gift of money to an elector or to any other person to inducean elector to vote or refrain from voting. The essence of bribery consistsin the acquisition of some personal gain or remuneration by the personbribed. In the case of a payment to temple funds no person gains anypecuniary benefit or advantage directly for himself or for any otherperson. One can, however, understand a payment 'made towards aprivate chapel owned by one or more individuals as amounting to a bribe,but in the case of a public place of worship I do not think it possible tohold that a payment towards its funds can be said to amount to an actof bribery within the meaning of the Order in Council. It is, however,true to say that such a payment may have the effect of gaining for thecandidate popularity with the electors and may tend to enlist their sym-pathies in his favour. Though such payment may be the means of pro-viding facilities to the people of the area to obtain religious or spiritualsolace, comfort or benefit, nevertheless it is clear that such a paymentfalls far short of a giving of money or other valuable consideration ascontemplated by the Order in Council.
In the United Kingdom, where the election laws have received theclosest scrutiny, the view has never been entertained that such paymentsamount to bribery; our provision in regard to bribery is taken oververbatim from the English provision. There is a useful passage in thejudgment of Channel J. in the Nottingham Case l, which is well worthquoting:—
" It really is indeed clear that gifts to hospitals, churches, chapels,libraries and clubs of all sorts have never been considered bribery. TheLegislature has not yet forbidden them although certainly one motivein such cases is, I suppose, always the popularity resulting in theconstituency from the gifts or possibly the fear of the unpopularityresulting in refusing, which is, of course, quite the same thing.”
The same idea underlies the pronouncement of Justice .Lush in thePlymouth case 2 when he said,
“ Granted that the motive is fair, bestowing gifts on the poor isno more an offence against any law than the erection of a library,than the endowment of a church. ”
An Indian judgment opposed to these views quoted in the work ofPandit Nanak Chand and others dealing with the Law and Practice ofElections and Election Petitions in India has been cited on behalf of thepetitioners. The case is referred to at page 328 as the Agra City Case,
* (1911) 6 O'M <b H 292.* (1880) 3 O'M 4s H 107 at 110.
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NAGAXjING AM J.—Tamolis Appuhamy v. Wilmol Per era.
reported in 3 Hammond's Indian Election Petitions, which series of reportsis not available to -us here. The note of the case is as follows :—
‘ ‘ In the ca3e of gifts to temples, where the criterion is the intentionof the donor, out of a total collection of 753 the respondent subscribed150, his nephew 100 and another person through whom the respondent• gave the subscription 200, and where the respondent being an AryaSamajist never believed in temples and afterwards denied the paymentit was held that he had a guilty conscience and in such cases, thecriterion being the intention of the respondent was to influence thevoters, the gift was therefore a gratification. ’ ’
It may be that the case was decided quite correctly on its particularfacts, especially when one bears in mind that the language of the IndianEnactment in regard to the offence of bribery is somewhat differentfrom our own send that of the United Kingdom. The respondent in thepresent case is not shown to have had a corrupt motive in making thepayments he did both to temples and societies; on the other hand, it hasbeen proved beyond controversy that he had for a considerable periodof years prior to the making of these payments made donations andcontributions to charities with the expectation of no temporal rewardbut actuated by a sincere spirit of benevolence and an honest desire tofurther the spiritual and social welfare of his fellow beings. The Indiancase is, therefore, distinguishable from the present both as regards thefacts and the enactment the construction of which was involved, whilethe English cases are apposite and more in point. In my view, in Ceylon,benefactions to temples, schools and similar institutions are beyondthe pale of the penal provisions of the Order in Council.
There remains for consideration the charge that the respondentmade a promise to hand over the allowance that he may receive as aMember of Parliament to the Vice-Chancellor of the University of Ceylonto enable poor students from the Matugama electoral area to prosecutetheir studies at the University. The respondent admits that he didpublish and distribute document P 33 in which express reference wasmade to this offer on his part. He is also alleged by the petitioner tohave given utterance to the -identical sentiment at various meetingsat which he addressed audiences. This the respondent denies. It is,however, immaterial to decide whether repetition of the published offerwas made orally at the meetings or not, for it is established that therespondent did make such an offer. The question is, Does this offer ofthe respondent amount to the promise of a valuable consideration? Ido not think so. Valuable consideration is defined by Stroud as moneyor money’s worth, a definition more appropriate to the present contextthan that given by the Exchequer Chamber in Currie v. Misa 1 as “ someright, interest, profit or benefit ”, though, it is needless to say, there isin reality no conflict between the two definitions ; the former brings outmore clearly the idea underlying the term inElectioD Law, while the latterthat under the law of Contract.
Now, did the respondent offer money or money’s worth to any elector?Clearly not. But it is said that he offered the money to the Vice-Chan-cellor ; assuming this to be correct, it is manifest that the offer was to the1 (1875) L. R. 10 Exch. at 162.
BASNAYAKE J.—Jasline Nona v. Samaranayakp.
381
institution and not to the Vice-Chancellor personally: But, was an offermade in fact to the Vice-Chancellor ? The Vice-Chancellor may not evenhave heard of this offer, and even if he had, could he claim payment fromthe respondent? Again, clearly not.
What the respondent did was in reality not to make an offer or promiseto anyone but to make a pious declaration of the intention he had formedwith regard to the allowance he may receive if elected. No one cansurely contend seriously that such a declaration could amount to bribery.If one analyses the declaration of the respondent further, it would befound that his objective in making it was to give added point and signi-ficance to his statement that in coming forward to seek the suffragesof the people he was not doing so with a view to secure employment inorder to acquire a living for himself but purely to work for theirwelfare. But undoubtedly the effect of the declaration or at least thatintended would have been the gaining of popularity among and thewinning of the favour of the people ; but even so, that is not bribery.The view I take is that, firstly, there was no offer or promise, and secondly,that assuming there was an offer or promise, it was to a scholastic institutionand would be governed by the same considerations as those apolicableto a temple, and therefore equally unobjectionable.
In the result, none of the charges has been established, and I hold thatthe respondent has been duly elected and that his return is proper. Thepetitions, therefore, fail and are dismissed.
The question of costs I reserve for the present and I shall make an orderin regard to it after I have heard Counsel.
Petitions dismissed.