CANNON J.—Khan t>. Fernando (P. C.).
1946Present : Cannon J.KHAN, Petitioner, and FERNANDO (P. C.), Respondent.
In revision, M. M. G. Kandy, 38,127.
Accused's plea of guilty—Magistrate a virtual party to case—Irregularprocedure—Right of accused to change plea before sentence.
Where an accused person made an unqualified admission of guilt beforea Magistrate who was a virtual party to the case—
Held, that, in the circumstances, the accused’s plea should not havebeen token before that Magistrate.
Held, further, that an accused person has the right to change his pleabefore sentence is passed.
HIS was an application to revise a conviction recorded by theMagistrate of Kandy.
S. AUes (with him S. R. Wijayotilake), for the accused, appellant.March 25, 1946. Cannon J.—
A military driver apparently from Northern India was brought beforethe Magistrate on three charges framed under the Motor Car Ordinance.They involved the obstruction of the motor car of Mi*. Malalgoda, thepresiding magistrate. The record states that the charges were explainedto the defendant by an interpreter and the defendant then said “ I amguilty ”, and the magistrate recorded his plea. The magistrate thendirected that the case should be remitted to another magistrate, apparently
1 30 C. L. W. 89.
CANNON J.—Khan v Fernando (P.Q.).
for sentence, as the presiding magistrate was a virtual party to thecase. The defendant was at this time unrepresented. When the casewas called before the other magistrate the defendant who was representedby a proctor informed the Court that he wished to withdraw his plea ofguilty because he had not appreciated the full meaning of the charges.This magistrate, describing the application as an “ afterthought ” onthe part of the defendant, refused the application and sentenced him to afine of Rs. 60 on his original plea.
In the circumstances, the accused’s plea should not have been takenbefore Mr. Malalgoda. The matter is brought here in revision. Theapplication may have been an afterthought but it is well establishedthat an accused person has the right to change his plea before sentence,and decided cases were in fact discussed in a case where the point aroseand which is reported in 41 N. L. R. 560.
The conviction and sentence must be set aside and the case remittedto another magistrate for a fresh trial.
Freeh trial ordered.
KHAN, Petitioner, and FERNANDO (P. C.), Respondent