1935 Present : Koch A.J.

ROOSEMALACOCQ v. SALLY.

227-P. C. Colombo, 28,570.

Plea of guilt-Failure to record verdict-Application to withdraw appeal-Refusal of permission-Subsequent verdict of guilt-Irregularity- Criminal Procedure Code, s. 188 (1).

On a plea of guilt being tendered by an accused, the Magistrate did not record a verdict of guilty, but remanded the accused for identification. On the next date the accused asked that the evidence of a witness be recorded. When this request was complied with, the accused withdrew his plea of guilt and pleaded not guilty.

The Magistrate refused the application to withdraw the plea of guilt and convicted the accused.

Held, that it was the duty of the Magistrate on the plea of guilt being tendered to record a verdict of guilty and pass sentence; and that, in the circumstances, the subsequent verdict could not stand.

APPEAL from a conviction by the Police Magistrate of Colombo.

L. A. Rajapakse, for accused, appellant.

Cur. adv. vult.

July 8, 1935. KOCH A.J.-

The appellant was charged under section 369 of the Ceylon Penal Code with the theft of cash Rs. 25 and a silver pendant and necklace. On the charge being read to him, the record shows that he stated as follows: "I am guilty". This was on March 11, .1935. The Magistrate thereupon, instead of convicting him, made the following order:" Identification and sentence March 13, 1935 ".

On March 13 the Magistrate records that the accused was present and wanted one Madariamma called. Madariamma's evidence was then recorded, and at its close Mr. Tiruchelvam on behalf of the accused moved to withdraw the plea. The accused was then questioned and he said, "I am not guilty ". This was recorded and the case put off for the 15th.

On the 15th the case was called again and it is recorded that further time was wanted by the defence to cite cases in support of the right of the accused to withdraw his plea of guilt. The Magistrate allowed this

and fixed the matter for March 25. On that day a judgment of the Supreme Court was cited by defending counsel and once again application was made to withdraw the plea and a statement by the accused was recorded, which was to the effect that he had a defence but that he pleaded guilty as the Police Constable asked him to do it. The learned Magistrate thereupon made order refusing the plea to be withdrawn. The entry is as follows:" I record now formally a verdict of guilty. No previous convictions. Sentence 3 months R.I.". He also stated he would give his reasons later. These reasons were given later in the day. In doing so the learned Magistrate says, "Apparently I should formally have recorded a verdict of guilty, but I do not think this is ever done when accused has definitely stated that he is guilty".

It is hardly an excuse to make, that often a verdict of guilty is not recorded by Magistrates, when the law insists on its being done. Section 188 (1) of the Criminal Procedure Code requires the presiding Magistrate on a plea of guilt being tendered to record a verdict of guilty and pass sentence. The language is imperative, the word used is "shall", and the insistence of the law is not merely confined to recording a verdict but also extends to the passing of a sentence.

This was not done on March 11, when the accused pleaded, "I am guilty". The result was that Madariamma's evidence has been subsequently recorded and a plea of not guilty thereafter also recorded. We have in consequence, before the date of the Magistrate recording a verdict of guilty, two pleas, one the opposite of the other. I think the procedure adopted in this case is quite irregular and confusion and discord have thereby arisen.

In Saheed v. Silva1[10 Cey. Law Rec. 117.] Lyall Grant J., following an old case reported in Lorenz, p. 100, held that it was highly irregular for the Magistrate to have recorded any evidence after a plea of guilty was tendered and