1952 Present   :   Swan J.

JOHN, Appellant, and CHARLES SILVA, Respondent

S. C. 178-M. C. Colombo, 22,238

Criminal Procedure Code-Section 188 (1)-Plea of guilty-Right of accused to withdraw plea subsequently.

Accused pleaded guilty and the case was postponed for passing of sentence. On the next date he moved to withdraw the plea of guilty which he had tendered earlier.

Held, 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.

APPEAL from an order of the Magistrate's Court, Colombo.

O. M. da Silva, for the accused appellant.

E. 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 (b) criminal misappropriation of goods to the value of Rs. 2,100. On being served with summons, the accused appeared before the Additional Magistrate, Mr. Kariapper, who fixed 13th December, 1951, as the date for the prosecution to lead evidence. On that date the accused was represented by Mr. Thiruchelvam, Proctor, who applied that the case should be sent before another Magistrate as Mr. Kariapper had heard several cases against the accused. The case was therefore sent to the Chief Magistrate, Mr. Sri Skanda Rajah. When the case was called in that Court, the accused was again represented by Mr. Thiruchelvam. After the evidence of the complainant was led the learned Magistrate decided to try the case in his capacity as Additional District Judge. The accused was duly charged. He pleaded not guilty and the trial was fixed for 8.1.52.

On that date Mr. Adv. Alles instructed by Mr. Thiruchelvam appeared for the accused. After some evidence had been led I find the following note made by the learned Judge on the record :-

" Accused now states, ' I am guilty for committing house trespass Complainant is not proceeding with the 2nd charge.

I acquit him of the 2nd charge. Accused proposes to place the complainant 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 Mr. Velauthapillai.

Mr. Cosme moved the Court to permit the accused to withdraw the plea of guilt already tendered. He cited in support of his application the case of Fernando v. Costa 1[(1918) 5 C. W. R. 224.] in which Bertram A.C.J. expressed the opinion that where an unqualified admission of guilt is subsequently withdrawn the plea of guilty must be treated as never having been made and the case must be decided apart from that plea.

The learned Magistrate refused to allow the withdrawal of the plea of guilt, and sentenced the accused to pay a fine of Rs. 100 and to be detained 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 the last 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 a formal verdict of guilt. That I did because I intended treating the accused under Section 325, Chapter 16.

" I would follow the case of Sabaratnam v. Santhia in 43 N. L. R. page 93. There it was held that the omission to record the formal verdict of guilt was an irregularity curable under Section 425. Therefore, I refuse to permit the accused to withdraw the plea of guilt already tendered. "

It is from this order that the accused appeals. Mr. da Silva appearing for him contends that an accused person who has pleaded guilty has the right, before sentence is passed, to withdraw that plea and to insist that the 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 he should not be convicted makes a statem