080-NLR-NLR-V-70-PABILIS-Appellant-and-N.-SIVANDIYEN-Respondent.pdf
TAMBIAH, J.—Pabilis v. Sivandiyen
357
Present: Tambiah, J.
PABILIS, Appellant, and N. SIVANDIYEN, RespondentS. G. 797)63—M. C. Badulla, 33521
Criminal procedure—Withdrawal of plea of guilt—Circumstances when it iepermissible—Criminal Procedure Code, s. 188.
A plea of guilt may be withdrawn by the accused person at any time beforean order of conviction has been made.
Appeal from an order of the Magistrate’s Court, Badulla.M. Kanagarainam, for the Accused-Appellant.
Nimal Senanayake, for the Complainant-Respondent.
July 24, 1963. Tambiah, J.—
The accused in this case was charged with having committed housetrespass by remaining in a line room in the occupation of the complainant,Sivandiyen.
On 23.2.62 the accused withdrew his former plea of not guilty, tenderedon 22.12.61, and stated that he was guilty. He also undertook to leavethe estate on or before 30th April, 1962. Further it is recorded that thisundertaking is without prejudice to the right of the accused in any otherlegal proceeding.
The complainant also agreed and undertook not to plead, canvass orput in issue the undertaking in any other judicial proceeding or before theLabour Tribunal. The complainant also undertook to reinstate theaccused if an award favourable to the accused was made by the LabourTribunal.
It may be noted that no plea of guilt was entered by the learnedMagistrate as required by Section 188 of the Criminal Procedure Code. Thecase was called on 30.4.62 and on that day Mr. Devarajan, who appearedfor the accused, stated that the accused wanted to withdraw his formerplea of guilt and plead not guilty. The learned Magistrate then post-poned the case and subsequently on 14.5.62 he refused to allow the accusedto withdraw his earlier plea of guilt. The learned Magistrate thensentenced the accused to two weeks’ rigorous imprisonment. From thisorder the accused has appealed.
Mr. Senanayake brings to my notice that there are also some revisionpapers filed. The journal entry under the date 15.5.62 bears out hisstatement.
S58
indraxumana Thero v. Kalapugama XJpali
I do not think it necessary in this case to file formal revision papers’In my view an error in law has been committed by the learned Magistrateand the proper way to bring this matter before this Court is by way ofappeal. There are several rulings of this Court which lay down theprinciple that an accused person can withdraw his plea of guilt before anorder of conviction has been made. Where an accused person withdrawshis plea of guilt before an order of conviction is made the case against theaccused should proceed as if the admission has never been made. (VideLeembrugen v. Pitchaipillai1, Fernando v. Costa2 and Roosemalacocq v.Sally 3.)
Mr. Nimal Senanayake contended that this case comes within the rulingof John v. Charles Silva 4. But that is a case where the accused pleadedguilty and after the plea was recorded it was postponed for the passingof sentence. When the case was postponed for the passing of sentencethe learned Magistrate had accepted the plea of guilt tendered by theaccused. Therefore the case of John v. Charles Silva is clearlydistinguishable from the present case.
In the instant case no plea of guilt, either expressly or impliedly, hasbeen entered by the learned Magistrate before the accused wanted towithdraw his plea of guilt. Therefore, in my view, the learned Magis-trate should have recorded the plea of not guilty tendered by the accusedand proceeded to trial.
For these reasons I set aside the order of the learned Magistrateconvicting the accused and the sentence of two weeks’ rigorousimprisonment. I remit the case back for trial in due course.
Order set aside.