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Present : Pereira J.
THE KING v. PILLAI et al.
117-120—D. C. (Crim.) Kandy, 2,394.
Indictment—Charge of voluntarily causing hurt to constable with intent toprevent arresting coolyquitting without notice—No mentionin
indictment of a warrant to arrest cogly.
Where anindictmentcharged the accusedwith, voluntarily
causing hurt to Police Constable M with intent to prevent himfrom doing his duty, to wit, arresting P on a charge of quittingservice without notice,—
Held, that, on the face of it, the indictment (which made noreference toa warrantof arrest) disclosed nooffence, anda
conviction onit could notbe sustained, nor wouldit be proper,in
the circumstances, to amend the conviction and the indictmentwithout giving the accused a further opportunity of defendinghimself on the amended charge.
fJlHE facts are fully set out in the indictment.
J. 0. Pereira (with him Arulanandarn), for accused, appellant.—The indictment is defective, and discloses no offence known to thelaw. “ Quitting service without notice ” is not by itself an offence.Even if it is, it is not a cognizable offence. The indictment does notallege that the constable had authority to arrest " Ponnu.” Thereis no mention made of a warrant on the indictment.
Garvin, Acting S.-G., for the respondent.—It is open to theSupreme Court to amend the conviction. The evidence shows thatthe constable had a warrant for arresting “ Ponnu.”
The accused has suffered no prejudice, and the objection is atechnical one and not one of substance.
Cur. adv. vuLt.
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. ^ September 28, 1913. Pereira J.—
The King t/.
.In this ease there , are no less than six charges against the accused
in the indictment. In view of the order that I intend making I6hall not oomment upon the evidence, except to the extent ofobserving that the extract from the Police Information Book filedof record, which contains the earliest complaint made by the witnessGomes, does not support the charges of robbery. His statementin his evidence, " I told the sergeant shortly what had happened,"is hardly a satisfactory explanation of the situation. The accusedwere convicted under only three counts, namely, the 2nd, 3rd, and5th. The 2nd and 3rd counts contain about the N most seriouscharges in the indictment, and it is of the essence of these chargesthat the individual named Ponnu in the indictment was lawfullyarrested and lawfully detained in custody by Police ConstableMudianse. Evidence has been led to show that Police ConstableMudianse was armed with a warrant for the arrest of Ponnu. Bothat the trial and in the petition of appeal objection has been takento 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 counselfor the accused was relying on, but ex, facie it appears that thename of the accused in the warrant and throughout the proceedingsin case No. 23,251, in which the warrant was issued, i6 spelt Ponnooy,and not Ponnu. Be that as it may, there was in the Police Courtproceedings also evidence that Police Constable Mudianse was armed,with a warrant, but apparently the Crown Counsel, for some reasonbest known to himself, in. instructing the Magistrate to commit theaccused for trial, thought it expedient to omit all reference to thewarrant and to frame the 2nd charge in the indictment as a chargeof causing hurt to Mudianse while discharging his duty, to wit,** while arresting Ponnu on a charge of quitting service withoutnotice." This is the offence described in the warrant of commit-ment also. Objection has been taken, and strongly pressed in appeal,that neither the 2nd and 3rd counts of the indictment, nor the formalconvictions 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 togo through a solemn trial when the statements in the indictmentshow that no offence has been committed, even though no objectionis taken to the indictment, and it would be equally absurd to convicta person, or to sustain the conviction of a person, of acts that do notin law constitute an offence. In the 'indictment the accused ischarged with voluntarily causing hurt to Police Constable Mudiansewith intent to prevent him from discharging his duty. Had thecharge ended there, it might be argued that it disclosed an offence,although it might be that sufficient information was not given tothe accused of the particulars of the offence with which they were
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eharged. Bui the indictment proceeds to set forth me particularduty that Mudianse was discharging at the time, and it is describedas follows:“ Arresting Ponnu on a charge of quitting service
without notice.” Now, arresting a person on a warrant dulyissued by a competent Court of Justice on a charge of quittingservice without notice or reasonable cause is one thing: arrestinga person on a charge of quitting service without notice is quiteanother. Quitting service without notice alone is no offence, andquitting service without notice or reasonable cause is not a cogniz-able offence, that is to say, it is not an offence for which the offendercan be arrested by the police. For some Reason best known tohimself, the Crown Counsel responsible for the indictment haswithheld from it any mention of arrest on a warrant. The statementin the indictment negatives the idea of a valid and legal arrest.The indictment therefore is bad, disclosing no offence, and theconviction, following as it does the indictment, is equally bad. Theaccused have been convicted of an act which, on the face of theformal conviction itself, is no offence. The Acting Solicitor-Generalasked me to amend the conviction. A conviction is usually amendedby this Court in appeal to harmonize with the charge. Where acertain charge with particulars is deliberately made, evidence thatdoes not support the particulars is irrelevant, and it is too much toexpect this Court to amend the indictment without allowing theaccused a further opportunity of meeting it and then to amendthe conviction to harmonize with the amended indictment. More-over, in the verdict recorded by the District Judge on September4 at the close of the trial, there is no mention, of any arrest on awarrant duly issued by a competent Court. What the DistrictJudge, in this connection, holds is that Ponnu (aic) was in factarrested and handcuffed, and nothing more. In what he terms“ reasons for verdict ” recorded four days after, the learned Judgesays:“ The accused are charged with rescuing a cooly named
Ponnen (sic), who was arrested upon a warrant by ConstableMudianse.” With reference to this, suffice it to say that this is notthe charge in the indictment. I cannot possibly affirm the convic-tion as it stands, and it cannot be amended so long as the indictmentstands unamended. The alternative is to quash the proceedings.
I accordingly quash the conviction and the proceedings since- the presentment of the indictment, and direct a new trial afteramendment of the indictment. It is obvious that the trial shouldnot now take place before the same Judge, who has already formedhis opinion on the facts of the case. The case should be tried byanother Judge of the Court, and if another Judge is not convenientlyavailable, either party may make application to this Court for thetransfer of the case to another Court.
The King v.
THE KING v. PILLAI et al