In The Matter Of The By Election For The Colombo North Electorate Held On April

1942 Present: de Kretser J.

In the Matter of the BY-ELECTION FOR THE COLOMBO NORTH
ELECTORATE held on April 26, 1941.

DR. R. SARA V ANAMUTTU, Petitioner.
v.
JOSEPH DE SILVA, Respondent.

State Council election-Agent guilty of corrupt and illegal practice-Report to Governor-Fair warning of the charges-Opportunity to be heard-Right to call evidence-Conclusion of trial and certificate-Ceylon (State Council Elections) Orders in Council, 1931 and 1935, s. 79 (1) and (2).

Before an election Judge reports a person to the Governor under section 79 (1) (b) of the Ceylon (State Council) Order in Council he must have a fair warning of the charges and be given an opportunity of being heard.

Where an agent is reported, who has had an opportunity of defending, himself at the trial, he is not entitled to call evidence but only to be heard.

Where a witness, who appeared only incidentally and against whom no direct charge had been made is reported, he must have fair warning of the charge and an opportunity of giving and calling evidence.

Whether a person had fair warning and opportunity would depend upon the facts of the particular case.

The Court would then complete the trial and certify its determination and make a report.

THIS was a notice served on A. E. Goonesinha, a witness in the above-mentioned election petition, to show cause why he should not be reported under section 79 (2) of the Ceylon (State Council Elections) Orders in Council, 1931 and 1935.

Counsel:

R. L. Pereira, K.C. (with him C. V. Ranawake, U. A. Jayasundera, and V. F. Gooneratne), for A. E. Goonesinha.

U. A. Jayasundera, for A. J. S. Perera.

Dodwell Goonewardene, for Julian Fernando.

H. H. Basnayake, C.C., for Attorney-General on notice.

C. S. Barr Kumarakulasingham, for petitioner.

March 18, 1942. DE KRETSER J.

Upon being called upon to show cause under Article 79 (2) of the Order in Council, each of the persons noticed desired to call witnesses in order to convince me that the decision I had previously arrived at was erroneous. I had previously caused notice to be given to them that I would not allow evidence which was intended to canvass my findings in the absence, of authority to the contrary. The object I of this was to put them upon special inquiry. And in order to have further assistance I also invoked the help of the Attorney-General, on whose behalf Mr. Basnayake, Crown Counsel, appeared and gave valuable assistance, for which I am much indebted.

Counsel for the parties noticed relied entirely on the wording of Article 79 (2), and Mr. Pereira drew my attention to the fact that it was different from the English Statute and expressly gave the parties noticed the right to give evidence, a right which he did not propose to exercise. Crown Counsel relied on the wording of Articles 78 and 79. Nobody had been able to find any authority directly in point and I myself have found none, though I made diligent search from the time when the trial of the election petition was going on.

I will consider the matter first on the lines taken by Counsel.

Article 78 requires the judge to determine whether the election was void and to certify such determination. Article 79 (1) requires him also to report in writing to the Governor certain matters. Both Articles commence with the words" At the conclusion of the trial". The natural conclusion is that both the judgment and the report are contemporaneous and follow immediately upon the conclusion of the trial, the trial being, as in the Civil Procedure Code, something different from the judgment. As far as I have been able to gather, this is what happens in England and Dalton J. supports that view in Latiff v. Saravanamuttu[34 N. L. R. 369.], the Colombo North Election Petition of 1931.

The next point to be noted is that the election judge determines whether the election was void and his dete

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