007-NLR-NLR-V-54-JHON-Appellant-and-CHARLES-SILVA-Responent.pdf
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SWAN J.—John v. Charles Silva
1952Present: Swan J.
JOHN, Appellant, and CHARLES SILVA, RespondentS. G. 178—M. C. Colombo, 22,238
Criminal Procedure Code—Section 188 (1)—Plea of guilty—Right of accused to withdrawplea subsequently.
Accused pleaded guilty and the ease was postponed for passing of sentence.On the next date he moved to withdraw the plea of guilty which he had tenderedearlier.
Beld, that an accused person has no right to withdraw a plea of guilty once;tendered, even though a verdict of guilty had not been formally recorded.
^^.PPEAL from an order of the Magistrate’s Court, Colombo.
O.M. da Silva, for the accused appellant.
A. G. de Silva, for the complainant respondent.
Cur. adv. vult.
April 1, 1952. Swan J.—
The accused-appellant was charged with (a) criminal trespass and (6)criminal misappropriation of goods to the value of Rs. 2,100. On beingserved with summons, the accused appeared before the AdditionalMagistrate, Mr. Kariapper, who fixed 13th December, 1951, as the datefor the prosecution to lead evidence. On that date the accused wasrepresented by Mr. Thiruehelvam, Proctor, who applied that the caseshould be sent before another Magistrate as Mr. Kariapper had heardseveral cases against the accused. The case was therefore sent to theChief Magistrate, Mr. Sri Skanda Rajah. When the case was calledin that Court, the accused was again represented by Mr. Thiruehelvam.After the evidence of the complainant was lecf the learned Magistratedecided to try the case in his capacity as Additional District Judge. Theaccused was duly charged. He pleaded not guilty and the trial wasfixed for 8.1.52.
(1943) 44 N. L. R. 221.
SWAN J.— John v. Charles Silva
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On that date Mr. Adv. Alles instructed by JMr. ThSruchelvam appearedfor the accused. After some evidence had been led I find the followingnote made by the learned Judge on the record :—
“ Accused now states, * I am guilty for committing house trespassComplainant is not proceeding with the 2nd charge.
I acquit him of the 2nd charge. Accused proposes to place thecomplainant in possession of that portion of the premises in question.
Sentence on 16.1.52.
Accused warned to appear. ”
On 16.1.52, the accused duly appeared. He was represented by Adv.Cosme instructed by Sir. Velauthapillai..
Sir. Cosme moved the Court to permit the accused to withdraw the pleaof guilt already tendered. He cited in support of his application thecase of Fernando v. Costa1 in which Bertram A.C.J. expressed theopinion that where an unqualified admission of guilt is subsequentlywithdrawn, the plea of guilty must be treated as never having been madeand the case must be decided apart from that plea.
The learned Sfagistrate refused to allow the withdrawal of the pleaof guilt, and sentenced the accused to pay a fine of Rs. 100 and to bedetained in the Court cell till 4.30 p.m. that day.
In the course of his order the learned Judge said :—
“ I am satisfied that the plea of guilt tendered by the accused on thelast date was an unconditional one. If I had any doubts on that point,I would not have accepted that plea. It is true that I did not enter aformal verdict of guilt. That I did because I intended treating theaccused under Section 325, Chapter 16.
I would follow the case of Sabaratnam v. Santhia in 43 1ST. L. R. page93. There it was held that the omission to record the formal verdictof guilt wras an irregularity curable under Section 425. Therefore,
I refuse to permit the accused to withdraw the plea of guilt alreadytendered. ”
It is from this order that the accused appeals. Mr. da Silva appearingfor him contends that an accused person who has pleaded guilty has theright, before sentence is passed, to withdraw that plea and to insist thatthe case should proceed to trial._
Section 188 (1) of the Criminal Procedure Code provides :—
“ If the accused upon being asked if he has any cause to show why heshould not be convicted makes a statement which amounts to anunqualified admission that he is guilty of the offence of which he isaccused, his statement shall be recorded as nearly as possible in thewords used by him ; and the Magistrate shall record a verdict of guiltyand pass sentence upon him according to law and shall reegrd suchsentence. ”
{1918) 5 C, w, R. 2U.
SWAN «T.—John v. Charles Silva
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Mr. da Silva argifes that inasmuch as the Magistrate did not recorda verdict of guilty it was open to the accused to retract his plea.
In support of his contention he cited the case of Roosemalecocq vSallyl, where Koch A.J. held that it was the duty of a Magistrate, on aplea of guilt being tendered, to record a verdict of guilty and passsentence.
The facts of that case are entirely different from those that confrontus here. There the accused had pleaded guilty. The Magistrate hadnot recorded a verdict of guilty, but remanded the accused for identifica-tion and sentence. On the next date the accused asked that the evidenceof a witness be recorded. When that was done the proctor moved towithdraw the plea of guilt, and when the accused was questioned hesaid he was not guilty, and the Magistrate recorded that plea as well.Eventually, when the right of the accused to withdraw his original pleawas argued, the Magistrate refused the application and made the followingorder :—
“ I record now formally a verdict of guilty. No previous convictions.Sentence three months rigorous imprisonment. ”
There can be no question that the procedure adopted by the Magistratewas highly irregular and, in the circumstances, the order setting aside theconviction and remitting the case for a fresh trial was, if I may respectfullysay so, the proper order to have been made.
Mr. da Silva, however, contends that Koch A.J. based his decisionon the dictum of Bertram A.C.J. in Fernando v. Costa-, referred toabove. I do not think so. In any event it is clear from a perusal of thejudgment of Bertram A.C.J. in Fernando v. Costa 2 that what was theredecided was not whether an accused had an un qualified right to withdrawa plea of guilt but whether, when a plea of guilt was subsequently with-drawn, a Magistrate could reject a petition of appeal tendered by theaccused on the ground that the accused had first made an unqualifiedadmission of guilt. Said the learned Acting Chief Justice :—
“ It appears by the record, however, that although the accusedoriginally made an unqualified admission of their guilt, that plea waswithdrawn. In such a ease the plea of guilty is treated as never havingbeenmade, and the case must be decided apart from that plea. In this caseevidence was taken, and the learned Magistrate expressed the opinionthat the evidence was sufficient to justify a conviction. The accused areentitled to appeal from that decision and accordingly a mandamus willissue. ”
Tlie next case relied on by Mr. da Silva is that of Selvadurai v. Rajahand others3 in which Howard C.J. held that, where a plea of guilt isexpressed in terms which leave room for doubt whether the plea isunqualified, the accused is entitled to withdraw the plea. It was anapplication in revision. The learned Magistrate had refused to allowthe withdrawal of the plea.
1 (1936) 37 jV, L. R. 139.2 (7.9JS) 5 C, W, R, 224,
3 {1940) 41 N. L. R, 421.
SWAN" J.—John, v. Charles Silva
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The learned Acting Solicitor-General who appeared for the respondentsconceded that if the pleas were qualified they could be withdrawn. Inthe course of his judgment the learned Chief Justice said:—
“ The Magistrate has not recorded a formal conviction of the accusedin any of these cases. In these circumstances the judgment of Bertram
C.J. in Fernando v. Costa1 is authority for the proposition thatsuch pleas could at the option of the accused be withdrawn and treatedas never having been made. Roosemalecocq v. Sallya is a furtherauthority for the same proposition.”
I would very respectfully say that these two cases are not authority forthe proposition that, where a formal verdict of guilty has not been recordedby the Magistrate, the accused has the right to retract his plea.
Mr. da Silva also relied on the judgment of Moseley S.P. J. in Siriwardenev. James and others3 where it was held that a plea of guilt tenderedby an accused may be withdrawn before sentence is passed. That,too, was an application in revision. The accused had pleaded guiltyand sentence was deferred. Thereafter they filed a motion to withdrawtheir pleas. It was supported by an affidavit in which they stated thatthe plea of guilt was tendered under a misapprehensiop. as to the facts.The learned Magistrate held that he had no jurisdiction to vacate theverdict of guilty which he had recorded. Moseley S.P. J. relying on twoEnglish cases reported in S Cox Criminal Cases 237 and (1902) 2 K.B. 339respectively held that the Magistrate “ was mistaken in the view thathe had no power to set aside his finding of guilty ”.
I find it difficult to agree that a Magistrate has jurisdiction to vacate averdict of guilty entered upon what appears on the record to be anunqualified admission of guilt. There, however, can be no question thatthis Court, acting in revision, has power to set aside a conviction enteredupon a verdict of guilty under Section 188 (1) if it is satisfied that theplea was tendered under a misapprehension as to the facts.
The last case upon which Mr. da Silva relied was Khan v. P. G.Fernando4 where Cannon J. said, inter alia, “ but it is well establishedthat an accused person has the 'right to change his plea before sentenceis passed ” and referred to the case of Siriwardene v. James anti others 3.That, too, was an application in revision, and the facts disclose a graveirregularity which vitiated the entire proceedings. The accused wascharged with certain offences under the Motor Car Ordinance whichinvolved obstruction to the car of Mr. Malalgoda. The accused appearedon summons in the Court over which Mr. Malalgoda presided as Magistrate.He pleaded guilty, and Mr. Malalgoda sent the case to another Magistratefor sentence. When the case was called before, that gentleman theaccused moved to withdraw his plea. That application was refused,and the accused was sentenced to pay a fine of Its. 60. Jn the circum-stances of the case this Court, acting in revision, very properly set asidethe conviction and sentence and ordered a fresh trial.
1 (1918) 5 C. TP. R. 224.3 (1940) 41 N. L. R. 560.
8 (1935) 37 N. L. R. 139.'4 (1946) 47 1V. L. R. 215.
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SWAN" J.—John v. Charles Silva
Let us now examine the case of Sabaratnam v. Santhia 1 referred toby the learned Magistrate in his order. That was a judgment of MoseleyS.P.J., and in the course of the argument reference was made to Siri-wardene v. James and others 2 also decided by the same learned Judge.In this case the accused upon being charged stated, “ I am guilty ”.The Magistrate did not record a verdict of guilty as required by Section188 (1) of the Criminal Procedure Code but merely said “ Sentence on4. 7. 41. ”. On that date the accused appeared before another Magistrateand it was stated that the original plda had been tendered under threat.The matter was referred to the Magistrate who recorded the plea andhe held that the plea of guilty was unqualified and refused to accept aplea of not guilty. In the course of his judgment the learned, Judgeremarked :—
“ In the present case the Magistrate had apparently no inclination toallow the plea of guilty to be withdrawn. He regarded that plea asunqualified, as indeed it would seem to be. In my view he was right inrefusing to allow the plea to be withdrawn at that stage.”
Regarding the failure of the Magistrate formally to record a convictionthe learned Judge held that it did not amount to any more than anirregularity which was curable under Section 425 of the Criminal ProcedureCode, adding :—
“ It seems to me, however, in the present case the words ‘ Sentenceon 4. 7. 41 ’ at least imply that the appellant was convicted.”
In this case the accused, in my opinion, had made an unqualifiedadmission of guilt and the learned Magistrate was right in refusing toallow him to withdraw it. Following the judgment of Moseley S.H.J.in Sabaratnam v. Santhia 3 I would hold that the failure of the Magistrateformally to record a verdict of guilty is a mere irregularity which doesnot vitiate the subsequent conviction and, sentence.
In my opinion an accused person has no right to withdraw a plea ofguilt oace tendered If he has, through misapprehension or underinducement or threat, tendered a plea of guilty and the Magistrate hasnot recorded a verdict of guilty, the accused may be permitted by theMagistrate, if he is satisfied that the original plea was not an unqualifiedadmission of guilt, to withdraw it. If the Magistrate has, in fact, recordeda verdict of guilty he has no jurisdiction to vacate it. In such a case if,in truth, the plea was tendered through misapprehension or under induce-ment or threat, the accused will have to seek his remedy by "way ofrevision.
The appeal fails and is dismissed.
Appeal dismissed.
i (19,11) 43 JSr. L. R. 93.2 (1940) 41 N. L. R. 560.
3 (1941) 43 AT. L. R. 93.
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