Daniel Appuhamy.M.A V. Illangaratne.T.B

1964 Present: Basnayake, C.J., Weerasooriya, S.P.J., and
T. S. Fernando, J.

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

IN THE MATTER OF AN APPEAL UNDER SECTION 82A OF CEYLON
 (PARLIAMENTARY ELECTIONS) ORDER IN COUNCIL 1946 AS AMENDED BY
 CEYLON PARLIAMENTARY ELECTIONS (AMENDMENT) ACTS No. 19 OF 1948
 AND No. 11 or 1959

Election Petition Appeal No. 1 of 1963/Election Petition
 No. 8 of 1960 (Hewaheta)

Election petition-Charge of corrupt practice of making false statements of fact relating to the personal character or conduct of a candidate-Evidence-Police reports of speeches made at election meetings-Claim of privilege from production- " Unpublished official records "-" Affairs of State "-Appeal from order of Election Judge-Power of Court to order new trial-Scope-Evidence Ordinance, ss. 2 (2), 123, 124, 162, 167-Ceylon (Parliamentary Elections) Order in Council 1946 (as amended by s. 24 of Act No. 11 of 1959), ss. 58, 79, 82A, 82B.

     Section 123 of the Evidence Ordinance reads as follows :-

     " No one shall be permitted to produce any unpublished official records relating to any affairs of State, or to give any evidence derived therefrom, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit, subject, however, to the control of the Minister."

     The appellant and the 1st respondent were rival candidates for a Parliamentary seat, and the latter was declared duly elected. The appellant then filed an election petition in which one of the grounds urged for invalidating the election was that the 1st respondent was guilty of corrupt practice under section 58 of the Parliamentary Elections Order in Council. The corrupt practice alleged was that the 1st respondent, by himself or his agents, made false statements of fact in relation to the personal character or conduct of the appellant. The statements in question were said to have been made at election meetings and to have been taken down and reported to their superior officers by certain police constables who, in terms of general instructions previously issued to them, attended the meetings in plain clothes and made notes of what was said by the various speakers on specified points, one of them being anything spoken by a candidate, or on his behalf, against the rival candidate.

     The appellant sought to adduce in evidence the reports of the constables containing notes of the speeches made at the meetings attended by them. But in respect of these reports a claim of privilege from production was raised

under section 123 of the Evidence Ordinance by the officer who brought the reports to Court in obedience to summons. This claim was upheld by the Election Judge who refused permission for the production of the reports.

      Held, that the Election Judge was wrong in upholding the objection to the production of the reports of the police constables. The record of a speech made in public by a candidate, or his agent, is not an unpublished official record relating to any affairs of State within the meaning of section 123 of the Evidence Ordinance. The fact that it is taken down by a police officer and forwarded to his superior or recorded in the information book does not alter its character.

     The second question for consideration in the present appeal was whether the election petition should, in terms of section 82B (3) of the Parliamentary Elections Order in Council, be tried anew in regard to the charge of corrupt practice, or whether the appeal should be dismissed although the question of law arising on the appeal was decided in the appellant's favour.

   Held (T. S. FERNANDO, J., dissenting), that in the circumstances of the present case the provisions of section 167 of the Evidence Ordinance were not applicable and that the charge of corrupt prac

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