019-NLR-NLR-V-43-SABARATNAM–v.-SANTHIA.pdf
MOSELEY S.P.J.—Sabaratnam v. Santhia.
93
1941Present; Moseley S.P.J.
SABARATNAM t>. SANTHIA.522—M. C. Mannar, 1,885.
Verdict of guilt—Failure to record—Curable irregularity—Criminal ProcedureCode, s. 188 (1).
Where, upon an accused offering a plea of guilt, the Magistrate withoutrecording a verdict, of guilty as provided by section 188 (1) of the Criminal
Procedure Code made the following entry : —•“ Sentence on
Held, that the omission formally to record the' verdict was anirregularity curable under section 425 of the Criminal Procedure Code.
^PPEAL from a conviction by the Magistrate of Mannar.
J.A. P. Cherubin, for the accused, appellant.
E. H. T. Gunasekera, C.C., for the complainant, respondent.
September 16, 1941. Moseley S.P.J.—
The appellant was charged with the retention of stolen propertyknowing or having reason to believe that the same had been stolen.Evidence was led as to the finding of certain property on the appellant,which was identified by the complainant as his. The appellant uponbeing charged said: “ I am guilty ”. The learned Magistrate did notproceed, in so many words, to record a verdict of guilty, as provided bysection 188 (1) of the Criminal Procedure Code, but made the followingentry Sentence on 4.7.41”. On the latter date the appellantappeared before another Magistrate when his Counsel stated that theappellant had pleaded guilty under threat. The appellant alleged thathe had been threatened with assault by two headmen and that throughfear he had pleaded guilty. The Magistrate ordered him to be producedbefore Mr. Hingley who had recorded his plea of guilty. Mr. Hingley,to whom the representations alleging threat were repeated, held that theplea of guilty was unqualified and refused to accept a plea of not guilty.
Counsel for the appellant brought to my notice the case of Siriwardenev. James et al. in which the trial Magistrate had expressed his doubts as -to whether he had the right to set aside a verdict of guilty which he hadrecorded. In that case the accused had filed an affidavit stating thatthey were under a misapprehension as to the facts when they tenderedtheir plea of guilty. On appeal it was held that the Magistrate wasmistaken in the view that he had no power to set aside his finding ofguilty.
In the present case the Magistrate had apparently no inclination toallow the plea of "guilty to be withdrawn.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.
43/10
> 41 N. L. n. 560.
94
MOSELEY S.P.J.—Salgada v. Mudali Pulle.
The jsoint was also taken that the failure of the Magistrate formally torecord a conviction in so many words invalidates the conviction andsentence. In The King v. Babappu and another it was held that wherean accused had plekded guilty although it eventually turned out that hehad not committed the offences charged, there should legally be a formalconviction. At the same time Shaw A.C.J., commended the trial Judgefor, while being technically wrong, exercising his good sense in hearingevidence before he finally dealt with the case. In Akbar v. James Appu1there was an appeal against an order discharging the accused after hehad pleaded guilty. He was thereupon warned and discharged whichin effect, amounted to an acquittal. In appeal, the case was, if I maysay so with respect, properly sent back thal^ a conviction might berecorded in accordance with and not contrary to, the plea. Neither ofthese cases seem to me to be in point.
It seems to me however that in the present case, the words “ Sentenceon 4.7.41 ” at least, imply that the appellant in this, case was convicted.
The omission to record the fact does not seem to me to amount to any-more than an irregularity curable under section 425.
I would therefore dismiss the appeal.
Affirmed.