029-NLR-NLR-V-37-ROOSEMALACOCQ-v.-SALLY.pdf
KOCH AJ.—Roosemalacocq v. Sally.
139
1935Present: Koch A.J.
ROOSEMALACOCQ v. SALLY.
227—.P. C. Colombo, 28,570.
Plea of guilt—Failure to record verdict—Application to withdraw appeal—Refusal of permission—Subsequent verdict of guilt—Irregularity—Criminal Procedure Code, s. 188 (1).
On a plea of guilt being tendered by an accused, the Magistrate didnot record a verdict of guilty, but remanded the accused for identification.On the next date the accused asked that the evidence of a witnessbe recorded. When this request was complied with, the accused withdrewhis plea of guilt and pleaded not guilty.
The Magistrate refused the application to withdraw the plea of guiltand convicted the accused.
Held, that it was the duty of the Magistrate on the plea of guilt beingtendered to record a verdict of guilty 'and pass sentence; and that, inthe circumstances, the subsequent verdict could not stand.
^ PPEAL from a conviction by the Police Magistrate of Colombo.
A. Rajapakse, for accused, appellant.
Cur. adv. vult.
July 8, 1935. Koch A.J.—
The appellant was charged under section 369 of the Ceylon PenalCode with the theft of cash Rs. 25 and a silver pendant and necklace.On the charge being read to him, the record shows that he stated asfollows : “ I am guilty ”. This was on March 11, .1935. The Magistratethereupon, instead of convicting him, made the following order : “ Identi-fication and sentence March 13, 1935 ”.
On March 13 the Magistrate records that the accused was present andwanted one Madariamma called. Madariamma’s evidence was thenrecorded, and at its close Mr. Tiruchelvam on behalf of the accused movedto withdraw the plea. The accused was then questioned and he said,,“ I am not guilty ”. This was recorded and the case put off for the 15th.
On the 15th the case was called again and it is recorded that furthertime was wanted by the defence to cite cases- in support of the right ofthe accused to withdraw his plea of guilt. The Magistrate allowed this
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KOCH A.J.—Roosemalacocq t). Sally.
and fixed the matter for March 25. On that day a judgment of theSupreme Court was cited by defending counsel and once again appli-cation was made to withdraw the plea and a statement by the accusedwas recorded, which was to the effect that he had a defence but that hepleaded guilty as the Police Constable asked him to do it. The learnedMagistrate thereupon made order refusing the plea to be withdrawn.The entry is as follows: “ I record now formally a verdict of guilty.No previous convictions. Sentence 3 months R.I. ”. He also stated hewould give his reasons later. These reasons were given later in the day.In doing so the learned Magistrate says, “ Apparently I should formallyhave recorded a verdict of guilty, but I do not think this is ever donewhen accused has definitely stated that he is guilty
It is hardly an excuse to make, that often a verdict of guilty is notrecorded by Magistrates, when the law insists on its being done. Section188 (1) of the Criminal Procedure Code requires the presiding Magistrateon a plea of guilt being tendered to record a verdict of guilty and passsentence. The language is imperative, the word used is “ shall ”, andthe insistence of the law is not merely confined to recording a verdict butalso extends to the passing of a sentence.
This was not done on March 11, when the accused pleaded, “ I amguilty ”. The result was that Madariamma’s evidence has been subse-quently recorded and a plea of not guilty thereafter also recorded. Wehave in consequence, before the date of the Magistrate recording a verdictof guilty, two pleas, one the opposite of the other. I think the procedureadopted in this case is quite irregular and confusion and discord havethereby arisen.
In Saheed v. Silva ' Lyall Grant J., following an old case reported inLorenz, p. 100, held that it was highly irregular for the Magistrate to haverecorded any evidence after a plea of guilty was tendered and also heldthat section 188 (1) of the Criminal Procedure Code “ in the clearestpossible language laid down that on a plea of guilty being tendered theverdict should be recorded and the sentence passed ”. I am in completeagreement with this decision.
There is the further point whether in these circumstances the appellantCould withdraw his plea of guilt. I have already pointed out that twopleas, one of “ guilty ” and the other of “ not guilty ” have been recorded.
•In S. C. 165 (P. C. Point Pedro, 1,338—S. C. M. of July 28, 1932) theMagistrate recorded the plea “ I am guilty ” but did not enter a verdictof guilty. After recording this plea he directed that the case "be calledat a later date and permitted the accused to stand out on bail. Sir"Forrest Garvin in appeal expressed the opinion thai: “ if the Magistratewas satisfied that the accused consciously and with full realizationof its consequences had made a statement which amounted to an unquali-fied admission of his guilt, the Magistrate had no alternative but to recorda verdict of guilty and pass sentence ”. This decision was brought to thenotice of the learned Magistrate who heard this case, and who had recordedthat he “ was satisfied that the accused understood what he was saying
1 10 Cey. Laic Rec. 117.
DRIEBERG J.—Pune hi Appu v. Aralis Appu.
141
In these circumstances I cannot conceive how the learned Magistratecame to overrule the point raised, by sheltering himself under the asser-tion that he did not think that a verdict of guilty is ever recorded whenthe accused has pleaded guilty. If there is such a practice, the soonerit is stopped the better, as it traverses the section of the CriminalProcedure Code and the judgments of this Court.
In Fernando v. Costa' Sir Anton Bertram states thus: “ It appears bythe record that although the accused originally made an unqualifiedadmission of guilt that plea was withdrawn. In such a case the plea ofguilty is treated as never having been made, and the case must be decidedapart from that plea
Here the accused has not only withdrawn' his plea of “ guilty ” buthas had recorded a plea of “ not guilty Evidence has also beenrecorded after the plea of “ guilty ” was entered, and in addition noverdict of “ guilty ” was passed in terms of section 188 (1) of theCriminal Procedure Code.
I set aside the conviction and remit the case for a new trial before adifferent Magistrate.
Sent back.