Siriwardene v. James.
Present: Moseley S.P.J.
SIRIWARDENE v, JAMES et at.
M. C. Ratnapura, 27,408.
Plea of guilt—Application to withdraw plea—Right of accused to do so beforesentence.
A plea of guilt tendered toy an accused may be withdrawn beforesentence is passed.
MOSELEY J.—Siriwardene v. James.
^ N application to revise a conviction by the Magistrate of Ratnapura.
P. J. Kurukulasuriya (with him S. R. Wijatilaka), for accused,petitioners.
U.A. Jayasundere, for complainant, respondent.
September 11, 1940. Moseley J.—
The petitioners in this case were charged with criminal trespass, anoffence punishable under section 433 of the Penal Code. They pleadednot guilty and the case went to trial on April 25, 1940. Aftertwo witnesses had given evidence, the following note is made by theMagistrate—
“At this stage the accused severally withdrew their former pleas
and now they severally plead ‘ I am guilty ’ to charge against them. ”
They were convicted upon their own pleas and they then asked for sixweeks’ time in which to leave the land as their house was not complete.Sentence was deferred till June 5, on which date each of the accused wassentenced to pay_ a fine of Rs. 25, in default three weeks’ imprisonment.
In the interval between conviction and sentence the accused moved towithdraw their pleas of guilty, and filed an affidavit which was sworn onMay 30, in which they deposed that they were acting under a misappre-hension as to the facts when they tendered their pleas of guilty. TheMagistrate in making his order on June 26 expressed doubt as to whetherhe had the right to set aside the verdict of guilty which he had recordedon April 25 and to allow them to plead to the charge again and to proceedwith the trial. He considered one authority which appears to have beenbrought to his notice, but held the view that it did not apply to the casebefore him and that he had no jurisdiction to set aside his own verdict.
The petitioners now ask that the convictions and sentences shall berevised. In the first place they claim that their pleas of guilty were notunqualified and that they were tantamount to a plea that if they wereallowed time during which to vacate the premises they would plead guilty.With that contention I am unable to agree. It appears the Magistratehas correctly recorded the words of each of the accused, namely, “ I amguilty ” and the request for time during which to leave the land wouldappear to be rather in the nature of a concession which they asked for thanof a qualification of their pleas.
It is then urged on their behalf that the convictions should be set asideinasmuch as the pleas were tendered under a misapprehension as to thefacts and the question arises whether the Magistrate had power to enter-tain their request to withdraw their plea. The Criminal Procedure Codeis silent upon this point, and Counsel for the petitioners submits that insuch a case by virtue of the provisions of section 6 of the Code it is opento this Court to look to the provisions of the English law for guidance.
There has been brought to my notice a case reported in 8 Cox CriminalCases, 237, in which a plea of guilty was allowed to lie withdrawn althoughit would appear to have been confirmed by a verdict of a jury. Againin the case of King v. Plummer reported in 1902 King’s Bench Division 339,
i>62HEARNE J.—Swarus u. Purer a.
it was held that a plea of guilty might be withdrawn at any time beforejudgment. It seems to me that the term “ judgment ” used in that caseis synonymous with the word “ sentence ” and if that law may be appliedas I conceive that it may, in the circumstances of this case, it wouldappear that the learned Magistrate was mistaken in the view that he hadno power to set aside his finding of guilty.
In these circumstances, I think that the convictions and sentencesshould be set aside, and the case should go back for trial before anotherMagistrate.
SIRIWARDENE v. JAMES et al