John Beaumont, Kt., C.J.
1. This is an application in revision from a conviction by the Presidency Magistrate, Fourth Court. The accused was convicted under Section 17(1) of the Criminal Law Amendment Act XIV of 1908 and sentenced to four months' rigorous imprisonment. The facts of the case shortly are that the accused was arrested at 7 a.m. on October 15, 1930, and was charged for being a member of an unlawful association known as Satyagraha Volunteers or Congress Volunteers, which was declared an unlawful association by a notification in the Bombay Government Gazette dated October 14, 1930. The accused pleaded guilty, but the learned Magistrate, having merely recorded that plea by the letters ' A.P.G.' which means ' accused pleads guilty', then proceeded to hear evidence as to the facts giving rise to the charge, and in the result he says in his judgment, 'the accused is found guilty and convicted and sentenced to four months rigorous imprisonment.
2. Now the reference was made to this Court because it was thought that the conviction in this case might not be in accordance with our decisions in Emperor v. Balkrishna Hirlekar (1930) 33 Bom. L.R. 82 and Emperor v. Shripad (1930) 33 Bom. L.R. 90. Both the decisions in question were decisions relating to evidence. In the one case we dealt with the evidence necessary to prove notification in the Gazette of the declaration that the association is unlawful, and in the other case we dealt with the evidence necessary to prove membership of an unlawful association and we held that membership of an unlawful association was not proved merely by showing that the accused was a member of that association before it was declared unlawful. The suggestion made by the learned Government Pleader is that where you get a plea of guilty it is not necessary to go into any question of evidence, and, therefore, neither of our decisions, both of which as I have said dealt with evidence, is applicable. I am disposed to agree that there would be no answer to that if the accused had pleaded guilty and the plea of guilty had been accepted, but in deciding this case in which the Magistrate hoard evidence and merely recorded the plea of guilty, one has to consider the provisions of the Criminal Procedure Code. This being a summons case the relevant provisions are contained in Section 242 and the following sections. Section 242 provides that when the accused is brought before the Magistrate the particulars of the offence of which he is accused shall be stated to him and he shall be asked if he has any cause why he should not be convicted, but it shall not be necessary to frame a formal charge. Then Section 248 provides that if the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him and if he shows no sufficient cause why he should not be convicted the Magistrate may convict him accordingly. It seems to me clear that under that section the Magistrate has a discretion. He may accept the plea of guilty and convict, and if he does, then having regard to Section 412 the accused has no right of appeal except as to the extent or legality of the sentence. But, if the Magistrate does not accept the plea, then one has to look at the following sections to see the course open to him. Section 244 provides that if the Magistrate does not convict the accused under the preceding section the Magistrate shall proceed to hear the complaint and take all such evidence as may be produced in support of the prosecution and hear the accused. Then under Section 245 if the Magistrate upon taking the evidence referred to in Section 244 finds the accused not guilty ho shall record an order of acquittal; but where the Magistrate finds the accused guilty he shall pass sentence upon him according to law. Now it seems to me that if the Magistrate exercises his discretion under Section 243 by not accepting the plea of guilty and proceeds to hear evidence, he must then satisfy himself that the evidence which he hears justifies a conviction. If ho hears evidence and the evidence does not prove the facts of the charge, it seems to me that it is not open to him to go back and say :--'Well, although the charge is not proved, nevertheless I am now going to accept the plea of guilty under Section 243 and sentence the accused on that.' No doubt, if the Magistrate decides to accept the plea of guilty under Section 243 and convict, he may call evidence for the purpose of acquainting himself with the facts so as to enable him to arrive at a proper conclusion as to the sentence to be passed. But that is a different matter ; he is not there hearing evidence in order to show whether the accused was guilty or not. In the present case the Magistrate has not told us why he heard evidence; he has not said that he accepts the plea of guilty or that he does not accept it. We have to arrive at a conclusion as to what he intended from the circumstances of the case, and having regard to the fact that he proceeded to hear the evidence, not directed to the sentence to be passed, but directed to proving the facts alleged in the charge, I have no doubt that he intended to exercise his discretion under Section 243 by not accepting the plea of guilty. I think he probably desired to act with the utmost fairness towards the accused by seeing that the charge was proved, and he did satisfy himself that the evidence was sufficient. But he did not anticipate the subsequent decisions of this Court which show that the evidence in point of law was not enough to justify a conviction. That being so, I think the plea of guilty does not really affect the question inasmuch as it was not accepted by the learned Magistrate, and that therefore the conviction must be set aside.
3. I may say there are two additional grounds in this particular case why the conviction should be set aside. The first is that in the charge framed against the accused the date and number of the Gazette containing the notification of illegality of the association are incorrectly given, and the other is that the Magistrate does not appear to have examined the accused under Section 342 which, I think, he ought to have done after hearing evidence. Our decision in this case is likely to govern many others, so I prefer to base my judgment on the broad ground of principle, viz. that the Magistrate not having accepted the plea of guilty and having heard evidence was bound to satisfy himself that the evidence justified a conviction, and that in fact in this case the evidence did not justify a conviction having regard to our two previous decisions. The conviction should, therefore, be set aside and the accused should be set at liberty.
4. The case is governed by the procedure relating to summons cases, and under Section 243 of the Criminal Procedure Code if the accused admits that he has committed the offence of which he is accused, the admission shall be recorded as nearly as possible in the words used by him, and if ho shows no sufficient cause why he should not be convicted the Magistrate may convict him accordingly. The words 'may convict' have been substituted for the words 'shall convict' by the amending Act XVIII of 1923. The section, therefore, invests the Magistrate with a discretion to convict the accused on his plea of guilty. In recording the plea of guilty it is necessary for the Magistrate to be satisfied that the plea was properly made, after the nature of the offence was explained and understood by the accused, so as to amount to a confession of guilt. In the present case the admission of the accused has not been taken in the words used by him as required by Section 243, The difficulty in accepting the plea of guilty in this case is enhanced by the fact that the date and the number of the Government Notification declaring the illegality of the association is different from the date and number of the notification under which the accused is convicted.
5. The learned Magistrate appears to have proceeded not under Section 243 but under Section 244, and has taken evidence in the case with reference to the commission of the offence, and not merely with a view to determine the adequacy of sentence. Where a Magistrate does not act under Section 213 and proceeds under Section 244 to hear the complainant and take all the evidence in support of the prosecution, it is incumbent upon the Magistrate to see whether the evidence is sufficient to justify a conviction. If the accused makes an admission of guilt and the plea recorded is not accepted, and the Magistrate after taking evidence in the case finds that no offence is disclosed, it would be his duty to acquit the accused notwithstanding the plea of guilty. The record, therefore, of the plea of guilty at the initial stage of the case is not conclusive unless the Magistrate is prepared to convict the accused on that plea of guilty. In the present case the Magistrate has exercised his discretion not to convict the accused on his plea of guilty under Section 243 and has proceeded under Section 244. It was therefore incumbent on the Magistrate, after taking the evidence, to 'hear the accused' under Section 244 and examine him under Section 245, and it has been held by this Court that those words include an examination under Section 342 even in a summons case: see Emperor v. Fernandez ILR (1920) 45 Bom. 672, 22 Bom. L.R. 1040. The accused has not been examined after the evidence has been recorded. The point assumes importance in this case by reason of the fact that the date of the Government Notification declaring the illegality of the association is October 10 in the particulars of the charge, whereas the evidence on which the conviction is based refers to the Government Notification of October 14 and the accused was arrested at 7 a. m. on October 15.
6. I think, therefore, that after the plea has not been accepted by the Magistrate, the question to be determined is whether the evidence on the record is sufficient for a conviction. It is not contended that the evidence on the record is sufficient for the conviction. The only argument on behalf of the Crown is that there is a plea of guilty and the result of the plea of guilty is that under Section 412 the accused is precluded from questioning the legality of his conviction. Section 412 applies where an accused person has pleaded guilty and has been convicted on such plea. I think, therefore, that the plea of guilty not having been accepted by the Magistrate in this case, and the Magistrate having elected to proceed under Section 244, the question for consideration is whether the evidence on the record is sufficient for the conviction. In my opinion the evidence is not sufficient to sustain the conviction, and I, therefore, agree with my Lord the Chief Justice with the order proposed.
7. The only point involved in this application is the effect of the plea of guilty which has been recorded in this case under Section 213 of the Criminal Procedure Code. There is no doubt that under that section the Magistrate had a discretion to accept or reject the plea of guilty, and in the former case need have taken no evidence. He, as a matter of fact, examined a police-officer and exhibited a copy of the Government Gazette containing the notification of the illegality of the association in question and he then recorded the conviction. The provisions of Section 243 are, that if the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him, and if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly. The admission 'in the words used by the accused' has not been recorded in the present case, and the presumption is that he said ' I plead guilty.' I do not think that the mere taking of some evidence before either accepting or rejecting the plea of guilty, in itself precludes a Magistrate from convicting on the plea, for it is often necessary first to find out what the facts are, In this case we do not know whether the Magistrate really meant to convict on the plea, or not, He does not specifically say, whether he has taken the evidence because he does not accept the plea, or for any other reason. My opinion on the point is that, provided it is clear from the record that there was a plea of guilty which has been acted on, the mere fact of recording some evidence would not have the effect of nullifying that plea. But, in the present case, we do not know what really happened, and there are other grounds also for setting aside the learned Magistrate's order convicting the accused. I agree with the order proposed by the Honorable the Chief Justice.