1913 Present: Pereira J.

THE KING v. PILLAI et al.

Indictment-Charge of voluntarily causing hurt to constable with intent to prevent arresting cooly quitting without notice-No mention in indictment of a warrant to arrest cooly.

Where an indictment charged the accused with voluntarily causing hurt to Police Constable M with intent to prevent him from doing his duty, to wit, arresting P on a charge of quitting service without notice, -

Held, that, on the face of it, the indictment (which made no reference to a warrant of arrest) disclosed no offence, and a conviction on it could not be sustained, nor would it be proper, in the circumstances, to amend the conviction and the indictment without giving the accused a further opportunity of defending himself on the amended charge.

THE facts are fully set out in the indictment.

H. J. C. Pereira (with him Arulanandam), for accused, appellant. - The indictment is defective, and discloses no offence known to the law. " Quitting service without notice " is not by itself an offence. Even if it is, it is not a cognizable offence. The indictment does not allege that the constable had authority to arrest " Ponnu. " There is no mention made of a warrant on the indictment.

Garvin, Acting S. G., for the respondent. -It is open to the Supreme Court to amend the conviction. The evidence shows that the constable had a warrant for arresting " Ponnu. "

The accused has suffered no prejudice, and the objection is a technical one and not one of substance.

September 28, 1918. Pereira J. -

In this case there are no less than six charges against the accused in the indictment. In view of the order that I intend making I shall not comment upon the evidence, except to the extent of observing that the extract from the Police Information Book filed of record, which contains the earliest complaint made by the witness Gomes, does not support the charges of robbery. His statement in his evidence, " I told the sergeant shortly what had happened, " is hardly a satisfactory explanation of the situation. The accused were convicted under only three counts, namely, the 2nd, 3rd, and 5th. The 2nd and 3rd counts contain about the most serious charges in the indictment, and it is of the essence of these charges that the individual named Ponnu in the indictment was lawfully arrested and lawfully detained in custody by Police Constable Mudianse. Evidence has been led to show that Police Constable Mudianse was armed with a warrant for the arrest of Ponnu. Both at the trial and in the petition of appeal objection has been taken. to the validity of this warrant on the ground that it does not contain a proper description of the accused. I do not know what the counsel for the accused was relying on, but ex, facie it appears that the name of the accused in the warrant and throughout the proceedings in case No. 23, 251, in which the warrant was issued, is spelt Ponnooy, and not Ponnu. Be that as it may, there was in the Police Court proceedings also evidence that Police Constable Mudianse was armed with a warrant, but apparently the Crown Counsel, for some reason best known to himself, in, instructing the Magistrate to commit the accused for trial, thought it expedient to omit all reference to the warrant and to frame the 2nd charge in the indictment as a charge of causing hurt to Mudianse while discharging his duty, to wit, " while arresting Ponnu on a charge of quitting service without notice. " This is the offence described in the warrant of commitment also. Objection has been taken, and strongly pressed in appeal, that neither the 2nd and 3rd counts of the indictment, nor the formal convictions filed in the case, disclose any offence known to the law. Whatever the true facts of the case may be, the objection appears to me to be sound, and I am obliged to uphold it. It is absurd to go through a solemn trial when the