Leonard Stone, Kt., C.J.
1. We are of the opinion that this appeal must be allowed and that the conviction and sentence must be set aside and the case sent to the next Sessions to be dealt with according to law. As our reasons for this result proceed from somewhat different angles, I will state the grounds which seem to me to make this course inevitable.
2. The appellant, who is a widower, was tried before Mr. Justice Lokur and a special jury under Section 302 of the Indian Penal Code for the murder of his only child, a girl of about fourteen years of age, and was found by the unanimous verdict of the jury guilty and sentenced by the learned Judge to transportation for life.
3. At the commital proceedings the appellant was asked by the learned Magistrate whether he wanted Government to make arrangements for a counsel for his defence or whether he would make his own arrangements, to which the appellant replied: 'I want Government to make arrangements for counsel in my defence' In spite of this, the appellant was, at the opening of the Sessions of this High Court in July, 1945, arraigned to plead without any counsel having been instructed on his behalf. How this came about we do not know, but it was in my opinion quite wrong. So arraigned and asked to plead, the appellant said that ha was guilty, and the learned Judge quite properly in the circumstances felt that he was unable to convict the appellant on this confession of guilt. The Clerk of the Crown, however, recorded in his book the following:
Pleads guilty, but he will be tried for murder.
4. In my opinion the whole of this procedure was irregular. In the first place the appellant having asked the committing Magistrate for legal aid ought never to have been allowed to plead to a capital charge when he was unrepresented by counsel. This is all the more so, because it appears to be the practice of the Sessions Courts of this Province never to accept a plea of guilty to a capital charge, though the authorities on which this proposition is said to rest, viz. Emperor v. Chinia (1917) 19 Bom. L.R. 356 and Emperor v. Laxmya Shiddappa : (1906)8BOMLR240 , do not lay down that a plea of guilty can never be accepted; but that it is not in accordance with the usual practice to do so. Speaking for myself, I see no reason why, if proper safeguards are taken, such a plea should not be accepted. Such safeguards must include the accused's representation by counsel who must be in a position to answer the questions of the Court, with regard to whether the accused knows what he is doing and the consequences of his plea and also a medical report or medical evidence upon him (see James Robert Vent (1935) 25 Cr. App. Rep. 55.
5. Unless such safeguards are taken and unless the learned Judge is prepared to accept a plea of guilty, the proper course is to tell the accused that he should 'claim to be tried', and if he refuses to claim to be tried, to record the plea of 'does not plead' (see Section 272 of the Criminal Procedure Code).
6. In this case there was a delay of some three weeks between the appellant's arraignment and the empanelling of the jury to try him, and the jury was then told that the accused 'claims to be tried', this was in fact inaccurate, for he had not done so. The difficulty which appears to have been felt in some other High Courts (see Mahammad Yusuf v. Emperor I.L.R.1931 Cal. 1214 upon the wording of Section 271 does not in my opinion present any problem, because a confession of guilt on arraignment does not become a plea of guilty unless and until it is accepted as such by the Judge (see James Robert Vent). If not accepted, the confession ought not to be recorded. The difficulty involved in taking a contrary view could not be more cogently demonstrated than by what happened in this ease. After the close of the prosecution case, the learned Judge, under Section 342 of the Criminal Procedure Code, proceeded to question the appellant and amongst other questions the appellant was asked: 'When the charge was read out, why did you plead guilty', to which he made answer:
My wife died several years ago. Now my only daughter has been murdered. After that I thought I could not live alone and felt tired of my life. So I made a false plea, in the hope that I would be hanged and be free from my miserable life. In fact I did not kill my daughter.
7. In his summing-up to the jury, which is eminently fair, the learned Judge was constrained to refer to this question. He said:
At this stage I must refer you to a question put by me to the accused as to why he pleaded guilty. I did not accept his plea and the plea is not before you. The plea was taken before you were empanelled. So you are supposed not to know that he pleaded guilty. There is a suggestion in the statement of Mr. Scott that the accused surrendered himself. In other words, the accused pleaded guilty and said to Mr. Chowdhari 'Please arrest me'. There also the same difficulty arises. Under Section 25 of the Indian Evidence Act, a statement made to a Police Officer cannot be taken into consideration. I will just read out the section to you, it says:
'No confession made to a police officer shall be proved as against a person accused of any offence.'
So even if he made a confession before Mr. Chowdhari and said 'Arrest me' and surrendered himself, still that statement cannot be taken into consideration by you, and you have to ignore that. Similarly you have to ignore the plea of guilty because it was not in the course of this trial. The trial really commences after the plea is taken, and you have to come to the conclusion on the evidence taken during the trial.
8. Mr. Rege, on behalf of the appellant, has submitted that the question by the learned Judge as to why the accused pleaded guilty must have so affected the minds of the jury that no explanation by him could put the matter right, and it is submitted that on this ground alone the conviction and sentence cannot be upheld. Other points were taken by Mr. Rege, but having regard to the view which we take on the conduct of the trial it is not necessary to go into them.
9. In my judgment if the appellant is to be regarded as having pleaded guilty, which must inevitably presuppose the acceptance of that plea by the Court, no case for the empanelling of any jury to try the appellant could arise. Accordingly the whole of the subsequent trial before the jury would be a nullity. But the learned Judge in Ms summing-up to the jury said: 'I did not accept his plea (of guilty) and the plea is not before you'.
10. With great respect to the learned Judge I find it difficult to follow this line of reasoning. If the plea of guilty is to be regarded as accepted, then there was no justification for empanelling the jury to try the accused, and if the plea of guilty was not accepted, then there is no plea and the question 'Why did you plead guilty?' should never have been put to the accused. In the former case the trial was a nullity and in the latter the asking of such a question is prejudicial to such an extent that the conviction and sentence cannot stand.
1. I agree that the appeal should be allowed and that there should be an order for retrial.
2. Mr. Rege's main argument is that the proceedings have been vitiated by the learned Judge's putting to the accused the question, 'When the charge was read out, why did you plead guilty?' and by the Judge's reference to the said plea in his charge to the jury. He has contended that the accused's plea recorded before the jury were empanelled, not being part of the evidence, should not have been thus introduced into the evidence, and that all that the Judge has said in his summing-up regarding the said plea amounts to a misdirection, in spite of the warnings that he has given to the jurors on this point. The plea was recorded under Section 271 of the Criminal Procedure Code, Sub-section (2) of which provides that if the accused pleads guilty the plea shall be recorded and that he may be convicted thereon. Instead of convicting the accused on his plea the learned Judge, following the usual practice in murder cases, directed that the accused should be tried and thereafter proceeded to empanel the jury under Section 272. There can be no doubt that the trial by jury actually begins when the jurors have been empanelled. This is indicated by the concluding words of the main part of Section 272: 'The Court shall proceed to choose jurors or assessors as hereinafter directed and to try the case'. It was held in Mohammad Yusuf v. Emperor I.L.R. (1931) Cal. 1214 that the trial before a Court of Session commences after the empanelling of the jury, when the prisoner is charged, and not at the time of arraignment when the charge is explained to him and his plea is taken. In this case it appears that when the Clerk of the Crown read out the charge after the jury had been empanelled, he said, incorrectly but according to the usual practice, that the accused claimed to be tried. If the plea was not a 'circumstance appearing in evidence against the accused' within the meaning of Section 342 of the Code, it cannot be said that the learned Judge was justified under that section in putting a question to the accused regarding the plea, That section entitles the Court at any stage of any inquiry or trial to put such questions to him as it considers necessary 'for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him'. If the Clerk of the Crown had read out the accused's plea correctly, it might have been possible to say that the plea thus became a circumstance appearing against the accused, and it seems to me that in such an event the learned Judge could possibly have asked a question regarding it. It must, however, be remembered that the practice of the Clerk of the Crown reading out the accused's plea is not authorised by any of the provisions of the Code, and if this practice has come into existence in this Court on the analogy or supposed analogy of the English practice, it is eminently desirable that the English practice, in its entirety, relating to the recording and the reading of the accused's plea should be followed. If the plea of guilty is not accepted by the Court in England, the practice seems to be for the Court to explain to the prisoner that his proper course is to plead not guilty and to have that plea entered. Where such a course was not followed in Rex v. Ingleson  I.K.B. 512 it was ordered that the case must go back for rehearing. Chitaley in his Code of Criminal Procedure, 1941 edition, has pointed out at p. 1294 that there is no specific provision enabling the Court to try the case where the accused pleads guilty and the Court does not accept the same and that in England where the Court does not think, it expedient to act upon the accused's plea of guilty, the usual procedure is to advise him to withdraw his plea of guilty and to plead not guilty. Chitaley has further pointed out that in this country the general trend of opinion is that the accused may be treated in such cases as if he had pleaded not guilty, and that the trial may be proceeded with in the ordinary way, and he has referred to several authorities in support of this view. It is no doubt possible that some of the jurors might have been present when the plea was taken and heard it or that some of them had come to know of the accused's plea in other ways; but such a circumstance could not convert the plea into a circumstance appearing in the evidence against the accused. If such a fact comes to the knowledge of the Judge it would be his duty-such a direction is usually given to the jury-to warn the jurors strictly to remove from their minds whatever they might have heard about the accused or the case prior to their being empanelled or apart from the actual evidence given in Court. In a serious case, for instance, where the Judge comes to know that certain jurors had gone out of their way to ascertain what plea the accused had taken, the Judge would even be justified is discharging the jury. Mr. Somjee, on behalf of the Crown, has contended that the plea was taken in a material part of the trial, as under Section 271 the Court is entitled to convict the accused on his plea, and that hence the plea is a part of the evidence in the case. But where the accused is convicted solely on his plea, he has been tried without a jury, In the present case, however, the trial was by a jury which was the sole judge of the facts, and the plea not being a piece of evidence in such trial, the jury needed no explanation as to why the accused had pleaded guilty.
3. The learned Judge has himself said in his summing-up that he asked the particular question because he wanted to be satisfied why the accused had pleaded guilty, that is, not in order to dispel a possible doubt or get clarified some matter which might have been present in the jurors' minds-a matter of which they had come to know either by being present when the plea had been taken or through other sources-as contended for the Crown.
4. I am of the opinion that the learned Judge, in asking this question, introduced a matter which had till then been extraneous to the evidence in the trial. The Judge having decided not to act on the plea, it should have been treated as non-existent throughout the trial or as a matter requiring no explanation from the accused. I would regard it as most unfortunate if the accused's plea, given when he was unrepresented by counsel, has in any way influenced the jury's verdict. It also seems to me open to doubt if the plea recorded in the absence of his counsel can, in a murder ease where he is regarded as entitled to be represented by counsel, at all be regarded as a legal plea. The statement of the accused made before the committing Magistrate shows that he was asked by the said Magistrate whether he wanted Government to make arrangements for engaging counsel for his defence or whether he was going to make his own arrangements and that the accused then replied that he wanted Government to make arrangements for his counsel for his defence. That being so, when in accordance with Section 271 the accused was brought before the Court, should his mere appearance, in the absence of his counsel, have been treated as proper appearance for the purposes of the trial? If not, it must be held that the Clerk of the Crown read out the charge at a stage when he should not have read it out, as the accused could not be said to be ready to respond to it in the manner expected of him in Sub-section (2) of Section 271; and that the accused's plea of guilty was, therefore, not a legal plea under the said sub-section. In such a view it must, I think, be held that the Judge was not justified in treating such a plea as a circumstance appearing in the evidence against the accused which called for any explanation by the accused.
5. Mr. Somjee has argued that it was really in fairness to the accused that the question was asked and that on his reply being given he would be entitled to the sympathy of the jury and thus the question, instead of creating prejudice, operated for the accused's benefit. It might have been possible to say this if it was clear that the jury accepted the accused's reply as true; the probability-in view of the verdict-is that they did not. They seem to have accepted the plea as correct and the reply as false, thinking in all probability that it was the result of his counsel's advice. In any ease, such an argument comes strangely from counsel for the Crown who is anxious to persuade us that the answer given by the accused to the question put by the Judge could not possibly have been true. This makes manifest the risk to the accused contained in the question.
6. If I am correct in saying that an element was unwarrantably introduced into the trial by the question, it must also be said that the learned Judge's reference to the plea in his charge to the jury was also uncalled for, although he warned them, 'You are not supposed to know that he (the accused) pleaded guilty'. The question and the answer under consideration and the discussion of them in the charge to the jury (the latter takes up about 20 lines of print) had, in my opinion, the effect of investing a matter which should have remained outside the evidence with an importance which did not properly belong to it. The jury having been apprised of the fact that before they had been empanelled the accused had pleaded guilty, such information, in my opinion, most probably had some effect on their minds: in all probability, and in spite of the learned Judge's warning, they regarded it as one of the circumstances referred to by the learned Judge, when he, towards the end of his summing-up, referred to the evidence as 'consisting of various circumstances which at least arouse a very strong suspicion against the accused'. The learned Judge, after referring to the terms of Section 271(2) which says that after the accused's plea is recorded 'he may be convicted thereon', has said that as a matter of fact Judges prefer not to accept the plea of guilty in a murder case which involves the sentence of death, because they want to know the circumstances under which the murder was committed and whether the accused really understood what he was saying and whether he really wanted to plead guilty. This might have given the jury the impression that it was legitimate to act on the plea but for certain technical consideration and that now that the circumstances under which the murder had been committed were known, there was no reason for thinking that the accused had not understood what he was saying or for not acting on the plea. In my opinion, the possibility of such an impression being left on the minds of the jurors and of their acting thereon has not been sufficiently guarded against in this part of the charge to the jury.
7. In the penultimate paragraph of his summing-up the learned Judge has collected together all the circumstances against the accused as also the circumstances in his favour. The last circumstance against the accused is stated to be the accused's going to the police-station to give information 'in such a way that Chowdhari thought that he had surrendered himself'. There is little basis for this statement. Police Sub-Inspector Chowdhari stated that on November 9, 1944, he was on station house duty at Pydhowni Station from 4 to 9 p.m., that at 5 p.m. the accused came there and made a certain statement, that he searched him in the presence of two panchas, and that in the left inner pocket of the coat he found the knife, exhibit A. The word 'surrendered' actually occurs in Deputy Inspector Scott's evidence:
On November 9, 1944, at about 5-30 or 5-45 p.m. I received a telephone message from Sub-Inspector Chowdhari of the Pydhownie Police Station to the effect that a person had gone there and surrendered himself.
The last part of this sentence should really not have been admitted into the evidence, and, in my opinion, the statement that the accused went to the Police Station in such a way that Chowdhari thought that he had surrendered himself was not justified and the direction to the jury that this was a circumstance against the accused, amounted, in my opinion, also to a misdirection calculated to influence their judgment. It is to me somewhat surprising that such a direction was given when earlier in his summing-up the Judge had stated.
So even if he made a confession before Mr. Chowdhari and said, Arrest me' and surrendered himself, still that statement cannot be taken into consideration by you, and you have to ignore that.
8. In Emperor v. Basangouda Yamanappa (1940) 43 Bom. L.R. 144 I remarked that it was the Court's duty to speculate, when the accused's statement did not explain the evidence against him, as to the possible hypotheses that might he made out in favour of the accused; and it seems to me that a little speculation, rather than the putting of a question to the accused which suggested that he had to explain an admission of guilt of which the jury had not heard before, might have been helpful in this case where the evidence is so meagre and entirely circumstantial. For instance, it remains a mystery why Khatuma was sent for, apparently with some suddenness, after she had stayed for years with her aunt, even before a separate room had been secured for her stay with her husband when, as facts subsequently showed, residential accommodation was very difficult to get and when accused's neighbour Suleman could be induced to keep her in his room only for one day. Adam Ahmed has said that he does not know why the accused sent for Khatuma before a room was available. Could not the sudden sending for Khatuma have its origin in something that her father or her husband had heard against her or her aunt? Was it unlikely that in order to get the matter cleared up, the accuser] allowed Khatuma and Adam to meet together in his room, when the others were away, a meeting leading to a passionate altercation and an assault by the husband on his wife, and that the accused for some reason decided not to implicate his son-in-law but to take the guilt upon himself? Such an explanation of the offence would appear to me to be preferable to the theory that the accused must have had, in a fit of temporary insanity, committed the act, a theory never suggested by the accused or his counsel but one to which I think I would be driven if I were to hold the accused guilty beyond all reasonable doubt. Mr. Somjee was constrained, in order to explain the conduct attributed to the accused, to resort to the theory of his extreme poverty, a theory which seems to me fantastic and entirely baseless. I am, therefore., inclined to regard the summing-up in this case as somewhat lacking and defective in this that possible explanations or circumstances which might have been favourable to the accused have not been sufficiently explored and put to the jury for their consideration. As stated in the full bench case of King-Emperor v. Upcndra Nath Das (1914) 19 C.W.N. 653 it cannot be laid down as a general proposition of universal applicability that a Court cannot and should not consider a case in favour of the accused which he has not himself raised. 'If such a case arises on the prosecution evidence, it should be put to the jury for their consideration, whatever line might have been taken by the accused or his counsel'.
9. In the penultimate paragraph of his charge the learned Judge has. stated five circumstances against the accused and four in his favour. Particularly in a case where the evidence is more or less equally balanced on both sides, as in this case, the Judge ought not to omit to give the usual direction to the jury that if they have any reasonable doubt in their minds as to the guilt of the accused they should give the accused the benefit of it. In the last paragraph of the charge, however, the learned Judge, after referring to the circumstances 'which at least arouse a very strong suspicion against the accused', has ended by saying, 'On the other hand, if you find that the other circumstances referred to are such as to throw a considerable doubt regarding his complicity, and if you cannot get rid of the doubt, you should give the benefit of the doubt to the accused and acquit him.' I would take exception to the two epithets 'strong' and 'considerable' in these sentences. Whether the suspicion were strong, and strong enough to amount to a prima facie case, it was for the jury to judge, and not considerable but reasonable doubt was sufficient to entitle the accused to a verdict in his favour. Similarly, the following passage in the charge: 'But the strange part of it is that he did not raise an alarm or call the neighbours to see what had happened. That suggests that he himself had committed the offence and had gone to give information to the Police', appears to me to be an unnecessarily positive statement in a matter which was within the jury's exclusive province. There is no doubt that this was an expression of the Judge's own opinion, and no doubt in his general directions he had warned the jury against being influenced by what opinions he might express on questions of fact. But apart from the strangeness of the fact that in a case of this nature the learned Judge found himself able to express himself in so positive a manner, it seems to me that in all probability, the evidence in this case being so slender and the considerations for and against the accused so delicately balanced, the jury, who might otherwise have groped in vain for a positive conclusion, considered themselves entitled to the assistance afforded by a predilection so clearly shown by the learned Judge.
10. A misdirection in the Judge's charge to the jury need not be expressed in direct or explicit language, and may exist in spite of warnings which are by themselves proper and which, when considered as abstract propositions, may appear sufficient to neutralise any actual misdirections or tendentious suggestions occurring in the charge. But if the charge as a whole, or a material part of it is likely to have had the effect of giving a substantially improper bias or direction to the jury's minds, it must, I think, be held that there has been misdirection. In my opinion, the charge to the jury in this case suffers from defects some of which at least amount to misdirections.
11. Misdirections, however, do not, by themselves, entitle the accused to an acquittal or an order for a retrial. It is laid down in Sub-section (2) of Section 423 of the 'Code of Criminal Procedure that nothing contained in the said section shall authorise the Court to alter or reverse the verdict of a jury 'unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge or to a misunderstanding on the part of the jury of the law as laid down by him;' and obviously the appellant cannot be acquitted nor his retrial ordered unless such verdict is reversed. Again, it is provided in Section 537 that, subject to the provisions thereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal on account, inter alia, 'of any misdirection in any charge to a jury, unless such misdirection has in fact occasioned a failure of justice'. Thus on the judgment under appeal being found to contain a misdirection, the appellate Court must proceed to consider whether the verdict is erroneous owing to the misdirection or whether the misdirection has in fact occasioned a, failure of justice; and if the Court so finds, then it has a plain justification for interfering and indeed a duty to do so. In a recent case decided by the Privy Council, Abdul Rahim v. King-Emperor : (1946)48BOMLR473 it has been pointed out that there has been a long-existing controversy in the High Courts of India as to whether the appellate Court, in deciding whether there is sufficient ground for interfering with the verdict of a jury, particularly where there has been a misdirection by the Judge, has the right and duty to go into the merits of the case for itself and on its consideration of the evidence to make up its mind whether the verdict was justified or not (p. 479) :
On the one hand it has been said that the accused is entitled to have his guilt or innocence decided by the verdict of a jury and that the appellate Court has no right to substitute its own judgment in place of a verdict by a jury. The powerful observations on this subject by Lord Chancellor Herschell in the case of Makin v. Attorney-General for New South Wales  A.C. 57 are invoked in support of this view. On the other hand it is argued that it is impossible for the Court to perform the duty laid upon it by the Code without applying its own mind to the soundness of the verdict.
In their Lordships' opinion it is the second argument, and not the first, which is correct. On the question whether the word 'erroneous' occurring in Section 423 (2) means that the verdict is wrong on the merits or that it has been vitiated by the misdirection irrespective of the merits, their Lordships did not express any opinion in view of the terms of Section 537, which peremptorily precludes the Court from interfering with a jury's verdict on the ground of misdirection unless the misdirection has 'in fact occasioned a failure of justice'.
12. The question of the merits of this case has not been debated at the bar fully or at length, and it seems to me rightly. I have already indicated my view, in paragraph 8, that a hypothesis consistent with the accused's innocence may not in this case be excluded by the evidence. The evidence in this case being entirely circumstantial and the really valid arguments for and against the accused being almost equally poised against each other, this seems to be a, case where the misdirections have mainly operated against the accused. That being so, it seems to me difficult to resist the conclusion that there has been a miscarriage of justice. It was held in Bray v. Ford  A.C. 44 that if there has been misdirection, and the jury, under proper direction, might have returned a different verdict, there has been miscarriage of justice. That may be too wide a proposition for this country in view of the statutory requirement of Section 537, if it be held to imply that a verdict is vitiated by the misdirection irrespective of the merits. But it seems to me to be essentially applicable to a ease [like the present where it is found that the trial has been clearly prejudicial to the accused as to certain important matters. T, therefore, agree that the verdict of the jury should be reversed and that there should be an order for retrial.
13. I wish now to deal with certain other questions which were argued at the bar or arose for discussion. There are four stages of the proceedings from the time the Court is ready to commence the trial up to the empanelling of the jury. (1) The accused appears or is brought before the Court; (2) the charge is read out and explained to the accused and he is asked if he is guilty or claims to be tried; (3) the accused makes his plea and if it is a plea of guilty, it is recorded; and (4) if the accused refuses to, or does not plead guilty or if he claims to be tried, the Court proceeds to choose jurors to try the case. In case the Court thinks that the accused should be represented by counsel, he has to provide himself or be provided with counsel. It seems to me that in such a case when the accused appears or is brought before the Court for the purposes of Section 271 his counsel also should be present and that the accused must in such cases have sufficient opportunity to consult his counsel. As to the second stage, namely, the reading out of the charge, its being explained to the accused and the accused being asked if he pleads guilty or claims to be tried, the Court will ordinarily assume (in the absence of any indication to the contrary) that the accused is capable of understanding and taking part in its proceedings. If there be any doubt on this point, the proceedings should be stopped till he becomes so capable and the accused may be sent for medical examination, if necessary. As to the third stage, the accused may adopt any of the following courses: (1) he may say that he claims to be tried, (2) he may say that he refuses to plead, (3) he may remain silent, (4) he may make a statement without expressly saying that he pleads guilty or claims to be tried or refuses to plead, (5) he may say that he is guilty but make such statement subject to certain reservations or he may say that he is guilty of a lesser offence than the one charged, and (6) he may say that he is guilty. In cases (1) to (3), it is clear that the provisions of Section 272 will apply. In case (4) the accused may have to be questioned further, but if the result is the same as before, the answer should be treated as amounting to one of the pleas mentioned in Section 272, in most cases that he claims to be tried. In case (5) the actual words used should be taken down and the plea ought to be treated as amounting to 'claims to be tried'.
14. The sixth case presents certain difficulties. Such a plea must be recorded (Sub-section (2) of Section 271). If the accused makes a statement which prima facie amounts to an admission that he is guilty of the offence charged, before the question of its acceptance by the Court can arise the Court must ordinarily be satisfied that the statement has been made with full understanding of the plea and of the implications of the plea. For this purpose, in a suitable case (i.e. where any doubt arises on this point) the Court will further question the accused and then decide whether the plea taken is a genuine: plea; but in the majority of cases no doubt arises on the point and the Court would be justified in regarding such plea as genuine. There are, however, cases in which the Court will not act on such plea in tiny case, i.e. irrespective of the question whether the accused has fully understood the charge and the implications of the plea, and hold it desirable to hold a trial by jury, exercising the discretion given to it by Section 271 (2) in favour of the accused. Such cases will include murder cases (Emperor v. Chinia : (1906)8BOMLR240 and Emperor v. Laxmya Shiddappa (1917) 19 Bom. L.R. 336. In such cases it does not appear necessary that the Court should be strictly satisfied, even if some doubt appears, that the accused has taken the plea of guilty with full understanding and responsibility; and the mere recording by the Court of the words used by the accused as his plea should not be open to objection. In the present ease 'I have no doubt (leaving aside for the moment the argument based on the absence of his counsel) that the learned Judge was right in recording the plea of guilty and in not convicting him on his plea. It seems clear that, following the usual practice, Lokur J. intended to proceed to the accused's trial by jury as this was a murder case, and that no question arose at that stage, and he did not think it necessary to ascertain whether the plea had been taken with full understanding of the charge and of the responsibility assumed by the accused in making the plea.
15. The question has been raised whether it is necessary that the Court should accept the plea before recording it. The word 'accept', in connection with the accused's plea, is nowhere to be found in the Code of Criminal Procedure, though it, is an expression often used. It seems to me that it may have more than one meanings: (a) it may mean that the Court is satisfied that the plea has been properly and validly made, that is, with full understanding by the accused of the meaning and implications of the charge and of what he is saying and the probable consequences thereof; or it may mean (b) that the Court believes it to be a true statement; it may also mean (c) that the Court regards it as such a statement that it would be entitled to act upon it, for instance, convict the accused. Of these possible meanings it seems to me that (c) is the correct one: acceptance is something more than belief that the plea has been properly made or is a true statement. It seems to me, however, that it is unnecessary in every case for the Court to accept the plea in order to be able to record it.
16. There is a lacuna in the Code in that it does not say what the Court is to do when the accused has taken the plea of guilty and yet the Court does not wish to convict him thereon. There is a Calcutta case (Mohammad Yusuf v. Emperor I.L.R.(1931) Cal. 1214 where the accused was not convicted on his plea of guilty and where Lort-Williams J. held that the Court might, after recording such plea, 'in a suitable ease, leave the matter there and discharge him'. With respect, I do not think that this is a correct decision, and it seems to me that the practice ordinarily followed in such a case, namely, to treat the accused's plea as if it had been one of not guilty, seems to me to be correct; it seems to me obvious that the Legislature could not have intended that in such an event the accused should be discharged.
17. In one part of his judgment my learned brother Rajadhyaksha has commented on the fact that the Clerk of the Crown, after the jury had been empanelled in the present case, read out the charge and added the usual formula: 'On this charge the prisoner at the bar has claimed to be tried. It is your duty to harken to the evidence and to return a true verdict'. Rajadhyaksha J. has also referred to the possibility that the Crown counsel, in opening his ease, might have mentioned, the fact that the accused had pleaded guilty. As to the Clerk of the Crown's formula, that, again, is not taken from the Code; it seems to have been adopted from the English practice. All that the Code says as to the step to be taken next after the jurors have been chosen is that 'the prosecutor shall open his case by reading from the Indian Penal Code or other law the description of the offence charged, and stating shortly by what evidence he expeets to prove the guilt of the accused' (s, 286, Sub-section (1)). I would suggest that the Clerk of the Crown's formula be changed to: 'On this charge the prisoner at the bar is to be tried. 'It is your duty,' etc. I do not think that it would be right for counsel for the Crown, in opening his case, to refer to the fact that the accused has pleaded guilty. The Court ought not, after it has decided not to act upon the plea, to allow it to be proved that the accused pleaded guilty, e.g. by examining a person who was present in Court at the time the plea was made; and if the plea could not thus be introduced into the evidence, a fortiori the Clerk of the Crown or Crown counsel cannot, in my opinion, he allowed to refer to it.
18. Finally, I agree with my learned brother Rajadhyaksha that in the cases of accused persons charged with murder the plea should not be recorded on the opening day of the Sessions but only When the case comes up for trial, after he has had the benefit of the advice of his counsel (engaged either by himself or at Government expense). The present practice has no basis in the Code of Criminal Procedure and the suggested procedure will be more in consonance with the requirements of a judicial trial. I would go even further than my learned brother and suggest that such procedure should be adopted in all cases, i.e. that the practice of recording pleas of accused persons on the opening day in oases which are not to be tried on. that day should be abandoned altogether. If a certain period is to elapse before a particular trial can be commenced it is desirable even in cases other than cases of murder, that the accused should, if possible, be enabled to get legal advice before he makes his plea.
1. The appellant in this ease was tried by Mr. Justice Lokur and a special jury on a charge of having committed the murder of his daughter Khatuma on November 9, .1944, by intentionally causing her death. The jury unanimously brought in a verdict of guilty. The learned Judge, as he was bound to, accepted the verdict and sentenced the appellant to transportation for life. The deceased Khatuma was a young girl of fifteen or sixteen who was married to one Adam Ahmed. Khatuma attained puberty a short time before her death. The appellant had lost his wife several years ago and lived in Jainabai Building along with six or seven others. The appellant as also his companions in the room were hawkers in cultured pearls. It was obviously undesirable to keep his daughter in a room which was inhabited by grown-up male persons, and the appellant therefore sent her to her aunt at Poona. He was, however, very anxious that she should live with her husband, and therefore asked his son-in-law Adam Ahmed to make arrangements to get an independent room and stay with her. He therefore sent Adam Ahmed and his own brother Ahmed Allarakhia to Poona to bring Khatuma back to Bombay. She came back on November 8, but as his son-in-law was still unsuccessful in his quest for accommodation, the appellant prevailed upon one Suleman Usman, who was living in the neighbouring Jakaria Buildings, to keep the girl for a day or two. Accordingly she stayed at night in the house of Suleman Usman on November 8, 1944. On November 9, at about 4-30 p.m. the appellant called his daughter Khatuma, ostensibly for the purpose of purchasing some clothes and; garments for her. Within an hour thereafter, i.e. at about 5 or 5-30 p.m. the accused presented himself at the Pydhoni Police Station and made a certain statement. He was accordingly searched in the presence of the panchas, and in the left pocket of his coat a knife (Ex. A) was found on which, Sub-Inspector Chowdhari suspected that there was some blood. The offence was found to have been committed within the jurisdiction of the Dongri Police Station, and Sub-Inspector Chowdhari therefore telephoned to Deputy Inspector Scott informing him what had happened and stating that the accused had gone there and surrendered himself. Deputy Inspector Scott asked Chowdhari to take the accused to the scene of offence where he himself proceeded. The scene of offence was the room in the Jainabai Building where the appellant lived. On opening the room the police and panchas found that the young girl Khatuma was lying on her back in a pool of blood with her hands by her sides and her body covered with a pink coloured shawl and a white burkha. The girl was found to have more than ten incised wounds on the several parts of her body. They also found on search an ijar lying near the scene. It was full of blood. A panchnama was drawn up, and the dead body was sent for post mortem examination. According to the medical opinion, the death was due to shock and haemorrhage as a result of multiple homicidal stab wounds. The doctor also expressed his opinion that a knife like Ex. A which was found on the person of the accused could cause all the incised wounds mentioned in his deposition in examination-in-chief. Eventually the accused was put up for trial at the Third Criminal Sessions of 1945 over which Mr. Justice Lokur presided.
2. It is the practice of this Court that when a new Criminal Sessions opens, all the accused who are to stand their trial at that Sessions are brought and placed before the Judge and the charges against each accused are read over to him by the Clerk of the Crown and then the pleas of all the accused are recorded. When the case of the appellant was called up, the charge against him was read over to him and he pleaded guilty to the charge. Thereupon the learned Judge made an entry in the record in the following terms: 'Pleads guilty, but he will be tried for murder'. This plea was recorded on July 4, 1945. The ease against the accused came up for trial on July 25, 1945. On that day a special jury was empanelled in view of the direction of the learned Judge that the appellant should be tried, and then in accordance with the. usual practice the Superintendent of the office of the Clerk of the Crown read over to the jury the charge against the accused and added as follows: 'On that charge the prisoner in the dock has claimed to be tried. It is your duty to harken to the evidence and to return a true verdict'. The prosecution counsel opened the case and all the evidence against the accused was recorded on the same day. After the recording of the evidence when the appellant was examined under Section 342 of the Criminal Procedure Code, he made the following statement:
On that day I went to Suleman with whom I had kept my daughter. It was then 4-30 p.m. I wanted to take her for buying some clothes for her. But when we were about to leave some customers came to me to buy some pearls. I asked my daughter to wait for some time in the room and went out with the customers. I returned at 5-30 p.m. and when I entered the room, I was horrified to see that my daughter lay in the room with several injuries on her person. They were all bleeding. I was shocked and did not know what to do. A few minutes later, it struck me that I should report the incident to the police. I covered the body with a. pink shawl. An ijar was lying in the room, but it does not belong to me. There was blood on the floor everywhere. I wiped some blood on the floor with the ijar and threw it aside, I closed the door and went straight to the Police Station to report the murder. The knife (Ex. A) was lying near my daughter's body. I took it with me to the Police Station and handed it over to the Police Officer there. The Police Officer gave information to the Dongri Station, and I was taken to my room.
When asked as to why he did not raise an alarm as soon as he saw the dead body, he said:
I was shocked at the sight and was stunned. It struck me that I should go to the; Police Station. When I was taken to my room, panchnamas were made. I told the Police that the ijar was not mine.
When questioned as to why he had wiped the floor with the ijar, the accused said that the room was full of blood, that he did not wash his hands and that he did not soil his hands with the blood. Then the learned Judge asked as to why he had pleaded guilty when the charge was read out, and the appellant stated:
My wife died several years ago. Now my only daughter has been murdered. After that I thought I could not live alone and felt tired of my life. So I made a false plea in the hope that I would be hanged and be free from my miserable life. In fact I did not kill my daughter.
Then the appellant was further asked by the learned Judge as to whether he could give any reason why Sub-Inspector Chowdhari had arrested him if he had gone to the police station merely to lodge a complaint, and the accused replied: 'Because when I handed over the knife to him, he must have misunderstood me'.
3. The learned Judge summed up the case to the jury. As regards his question to the accused as to why he had pleaded guilty and the accused's reply thereto, the learned Judge gave the following directions to the jury:
At this stage I must refer you to a question put by me to the accused as to why he pleaded guilty. In fact it was only for myself that I wanted to be satisfied why he pleaded) guilty. I did not accept his plea and the plea is not before you. The plea was taken before you were empanelled. So you are supposed not to know that he pleaded guilty... Similarly you have to ignore the plea of guilty because it was not in the course of this trial. The trial really commences after the plea is taken, and you have to come to the conclusion on the evidence taken during the trial. Section 271 of the Criminal Procedure Code which deals with the trial in Sessions Courts says that if the accused pleads guilty, the plea shall be recorded and he may be convicted thereon. The plea must be recorded, no doubt, but it is optional for the Court either to accept the plea and convict him or order a trial, and as a matter of practice Judges prefer not to accept the plea of guilty in a murder case which involves sentence of death, because they want to know the circumstances under which the murder was committed and whether the accused really understood what he was saying and whether he really wanted to plead guilty. In these circumstances I put to him a question to know why he pleaded guilty, and he said that he had lost his wife, now he has lost his only daughter, he is left without any kith and kin, he wanted to die, and therefore he hoped that if he pleaded guilty he would be hanged. But I refused to hang him on his plea, and ordered his trial. That is the first circumstance which ought not to be given any weight.
Regarding the statement of Deputy Inspector Scott that the accused had surrendered himself, the learned Judge stated as follows:
There is a suggestion in the statement of Mr. Scott that the accused surrendered himself. In other words, the accused pleaded guilty and said to Mr. Chowdhari, 'please arrest me'. There also the same difficulty arises. Under Section 25 of the Indian Evidence Act, a statement made to a Police Officer cannot be taken into consideration. I will just read out that section to you; it says: 'No confession made to a police officer shall be proved as against a person accused of any offence.' So even if he made a confession before Mr, Chowdhari and said 'Arrest me' and surrendered himself, still that statement cannot be taken into consideration by you, and you have to ignore that.
The learned Judge then commented on the various circumstances both in favour and against the accused. There was no direct evidence of murder, and the case rested entirely on circumstantial evidence. These circumstances both for and against the accused have been summed up in the following paragraph in the learned Judge's charge to the jury:
Yet his conduct does raise a good deal of suspicion, namely, his silence when he saw her lying dead in a pool of blood, his not calling the neighbours to his help, his wiping the floor with the ijar, whether his own or somebody else's, his picking up the knife and keeping it, and his going to the Police Station to give information, in such a way that Mr. Chowdhari thought that he had surrendered himself. Against these circumstances you have to take into account the fact that he had no reason to murder, that his clothes were not stained with blood, his hands were not stained with blood and he voluntarily went to the Police Station to give information. He did not try to abscond and he says that he was so shocked that he did not know what to do, and the only idea that struck him was to go to the Police Station and give information
After the learned Judge's charge to the jury, the jury brought in a unanimous verdict that the accused was guilty of murder, and the learned Judge thereupon sentenced him to transportation for life.
4. This appeal has been filed under the new Section 411 A, which was added to the Criminal Procedure Code by Act XXVI of 1943, under which by leave of the appellate Court or upon a certificate of the Judge who tried the ease that it was a fit case for appeal, an appeal lies to the High Court against the conviction on any ground of appeal which involves a matter of fact only or a matter of mixed law and fact or any other ground which appears to the appellate Court to be a sufficient ground of appeal. It was contended by Mr. Rege, the learned counsel for. the appellant, that, we should interfere even on questions of fact, and he submitted, that the verdict of the jury was perverse. But the powers of this Court in this regard under Section 411A of the Code have been defined in a recent full bench case of this Court in Government of Bombay v. Fernandez (1944) 47 Bom L.R. 363 where it has been held as follows:
The general considerations on which a High Court has to act in a case under Section 411A of the Criminal Procedure Code, 1898, are practically the same as those under Section 307 of the Code.
Whether the High Court has power, under Section 307 of the Criminal Procedure Code, 1898, to go into facts in trials by jury in the mofussil, it is the settled practice to give due weight to the verdict of the jury and to limit its interference to cases where the verdict appears to be manifestly wrong or unreasonable. The above practice should be followed with greater reason in the case of verdicts of jury in the High Court itself where the jurors are expected to be more intelligent and experienced in the ways of the world and have also the benefit of the summing-up of the case by a Judge of the High Court. Simply because extraordinary power has been given to the High Court for the first time (1943) by Section 411A of the Code, it does not necessarily follow that the Legislature intended that it would be exercised in every ease in disregard of the well recognised principles applying to all trials by jury.
So long as the jury remained the sole arbiter of the facts of the trial and the Judge is bound by the unanimous verdict of the jury, the appeal Court, acting under Section 411A of the Code, ought to give due weight to the verdict.
Where the presiding Judge gives a certificate of appeal, due regard must be given to his implied opinion that the verdict is wrong; but even then the test for interference remains the same as in a case under Section 307. The new powers with which the High Courts are invested are to be exercised with the double object of preventing failure of justice in trials by jury and at the same time preventing such trials themselves from being reduced to a state of mockery.
Although the power of interference given by Section 411A is very wide, it does not necessarily follow that the High Court is bound to exercise it indiscriminately in every case. In a case where the verdict of jury is based mostly on appreciation of oral evidence, the appellate Court would be slow to interfere when the jury has unanimously disbelieved the witnesses whose testimony is not beyond criticism.
It is well settled that where two views are. possible on the evidence, and the jury has taken one of such views, the High Court will not interfere with the verdict even though it may have itself preferred to take the other view.
Under Section 411A of the Criminal Procedure Code leave or certificate to appeal should be granted only when it is thought that had the verdict been given by a mofussil jury, it would have been a fit case for a successful reference to the High Court under Section 307, and not merely because on the evidence it is possible to take a view different from that taken by the jury.
Bearing these principles in mind, in my opinion it is impossible to say in the present ease that the verdict of the jury was perverse. There were several circumstances against the accused, particularly his silence after he had seen that his daughter had been brutally murdered, his refusal to call in neighbours to witness the misfortune which had befallen him, his taking the ijar and wiping the floor with it, the careful manner in which the body of his deceased daughter was kept covered with a shawl and burkha as if in preparation for a funeral, his picking up the knife and his going to give information to the police in such a way that the Sub-Inspector Mr. Chowdhari thought that the accused had surrendered himself. There were also some circumstances in his favour such as the absence of any apparent motive and his clothes and hands not being stained with blood. There was also the fact that the knife which he produced has not been certified to be stained with any blood. Even if it was possible for us to take a view different from that taken by the jury, it would not be right, to view of the principles enunciated by the full bench, for us to interfere and to set aside the unanimous verdict of the jury.
5. But then it was argued by Mr. Rege that Section 411A of the Criminal Procedure Code also enables us to interfere in appeal on any ground which appears to us to be a sufficient ground of appeal. This point has not been mentioned in the memo of appeal, but as it was merely a formal matter, we permitted the learned counsel to add this to his grounds of appeal. In elaboration of this contention, the learned counsel raised three points. Firstly, he contended that the learned Judge was wrong in putting a question to the accused as to why he-the appellant-had pleaded guilty and had thus prominently brought before the jury a plea of which they were till then not aware. His argument was that the plea had not been properly recorded and no question should have been put to the accused as to why he had pleaded guilty. His second contention was that the learned Judge was wrong in putting it to the jury that the accused had surrendered himself and had in effect stated 'I have committed the offence, please arrest me'. And lastly the learned counsel argued that the failure of the accused to raise an alarm and to call the neighbours to see what had happened should not have been described by the learned Judge to the jury as suggesting that the accused himself had committed the offence and had gone to give information to the police.
6. As regards the first contention the argument appears to be this. The plea made by the accused on the opening of the Sessions was not properly before the jury, as it was recorded before the jury was empanelled and the trial began. The learned Judge should not, under Section 342 of the Criminal Procedure Code, have asked the accused as to why he had pleaded guilty, because under that section the accused can be called upon only to explain the circumstances which appear in the evidence against him at the trial. As the trial began after the jury was empanelled, no question should have been asked to the accused with reference to a plea which was recorded before the trial began. This argument raises immediately the question as to the manner of recording pleas and as to whether, when the plea is properly recorded, it can or cannot be brought to the notice of the jury. In other words, is it the law that the jury are not supposed or entitled to know what the plea of the accused is? As I have stated above, the practice in this High Court, following presumably the practice in English Courts, is to place before the Judge all the accused who are to be put up for trial before the Sessions of Oyer and Terminer and general gaol delivery. When the accused in each ease is called up, the charge against him is read and explained to him and his plea is recorded. It is again the practice in this Court that, at that stage, the accused in murder cases are not represented by a Counsel at Government expense even though they may not have engaged counsel privately. The taking of the plea of the accused is obviously the most crucial part of the proceedings against him, and if the accused are entitled to the assistance of a counsel at Government expense, it is obvious that they must receive that assistance before the plea is taken. It is true that in most cases the accused pleads not guilty, but in those rare cases where the accused does plead guilty, it is necessary for the Court to make sure that the accused understands the plea, and that he has properly been advised by his counsel before that plea is made by the accused. In England when the accused pleads guilty, the Judge satisfies himself that the prisoner understands what exactly he is pleading to and what the consequences of that plea may be. He further questions the counsel whether he has satisfied himself that the prisoner understands the implications of the plea and is not pleading guilty for any ulterior motive such as to protect some other person. In accordance with the practice followed in this Court it is impossible for the Judge to take all these precautions and it is very desirable that the practice should be altered. There is no provision in the Criminal Procedure Code which requires that the pleas of all the accused who are to be tried at a particular Sessions should be recorded on the opening day. There is no reason why in the case of accused charged with the capital offence the pleas should not be recorded when the actual case comes up for trial. By that time the accused has the benefit of being advised by his private counsel or by the counsel engaged at Government expense, and if under those circumstances the accused chooses to put up a plea of guilty, it is possible for the Judge to satisfy himself, before accepting the plea, by putting the necessary questions to the accused and to his counsel. This procedure would also do away with the difficulty which has arisen in this case by reason of the plea being recorded' on one day and the trial commencing three weeks afterwards when the accused completely went back on his plea.
7. When the plea of the accused was taken in the present case, the only record of what occurred then is in these words: 'Pleads guilty, but he will be tried for murder'. Under Section 271 of the Criminal Procedure Code, when the Court is ready to commence the trial, the accused shall appear or be brought before it, and the charge shall be read out and explained to him and he shall be asked whether he is guilty of the offence charged with or claims to be tried. If the accused pleads guilty, the plea shall be recorded and he may be convicted thereon. Whether the accused has really pleaded guilty or not must be ascertained by recording his statement. Mere utterance of the word 'guilty' by the accaused should not, in my opinion, be regarded as a plea of guilty which the Court is bound to record (Queen Empress v. Dhiyan Singh (1898) 18 A.W.N. 16. It is desirable to record a complete statement of the accused to find out what he exactly means by pleading guilty (Emperor v. Sursing (1904) 6 Bom. L.R. 861. Such a statement may disclose that the accused admits having beaten the deceased but does not admit that he had the intention of killing the deceased or of causing such bodily injury as was likely to cause death (Queen-Empress v. Sakharam Ramji I.L.R.(1890) 14 Bom. 564; or the accused may state that although he gave the fatal blow, he acted under a grave and sudden provocation. In such cases the proper plea to enter would be the plea of not guilty, i.e. the accused claims to be tried, in which case the accused can properly be tried under Section 272 of the Criminal Procedure Code. On the other hand, the statement made by the accused may disclose that the accused fully understands what he is stating, but gives no explanation as to how and why he committed the particular offence. In such a case the plea of the accused has to be recorded and then it is for the Judge to decide whether he should convict the accused thereupon. In Emperor v. Chinia : (1906)8BOMLR240 Jenkins C.J. observed that 'that it was not in accordance with the usual practice to accept a plea of guilty in a case where the natural consequence would be a sentence of death.' Following this case, a plea of guilty was not accepted in Emperor v. Laxmya Shiddappa (1917) 19 Bom. L.R. 356. In that ease also the Sessions Judge of Dharwar was satisfied that the accused understood the nature of the charge against him, and the consequences of his plea. But even so, the High Court directed that the accused should be tried notwithstanding his plea of guilty, firstly, in order to ascertain what sentence should be imposed even assuming that the accused was guilty, and, secondly, for the purpose of ascertaining whether the accused was of unsound mind at the time when he committed the offence. But Batchelor J. observed (p. 357) :
It may be that there are cases of murder where the circumstances would be so clear that a Bench of this Court would have no difficulty in confirming the capital sentence on the accused's mere plea of guilty.
Although therefore there is nothing in law to prevent a plea of guilty made by an accused being accepted when arraigned on a charge of murder, it is desirable to proceed with the trial, especially in eases where the accused has not made a full statement, but has merely pleaded guilty even though he has put forward that plea with full knowledge of the implications of such a plea. This is all the more necessary where, under the present practice, a plea is recorded without the accused having at the time of making such plea the advantage of consultations with the counsel either engaged by himself or provided at the Government expense. In the case of Lahori v. Emperor : AIR1925All647 the Allahabad High Court directed the trial of the accused even though the accused had pleaded guilty stating that he had killed the woman with a chopper which he produced, and that the reason for the killing was jealousy. The High Court directed that the safer and better course would be to direct the Sessions Judge to put up the accused for trial again, to take his plea, and whether that he be guilty or not guilty, to hear the whole of the evidence in relation to the case. In Hasaruddin Mohommad v. Emperor : AIR1928Cal775 it was held that-
Section 271, though it directs that the plea shall be recorded, does not direct that the accused shall be convicted thereon, but only that he may be so convicted. It is left to the discretion of the presiding Judge in each particular case to determine whether in spite of the plea it is or is not desirable to enter upon the evidence.
In Achar Sanghar v. Emperor A.I.R. Sind 204 the Court of the Judicial Commissioner held that-
Under Section 231 if an accused person pleads guilty he may be convicted upon his plea. But there are cases in which this course is not advisable. Evidence should be taken where the crime on the face of it appears to have been murder.
Where therefore the accused pleads guilty, and the Judge is satisfied that the accused understands fully the implications of his plea, then the plea must be recorded. After recording the plea, it is open to the Judge either to convict or not to convict the accused upon that plea, and as a matter of practice it is desirable to proceed with the trial as if the plea was one of not guilty, lest the evidence may disclose that the facts proved do not, in law, constitute an offence of murder but some lesser offence. But, in such cases, the plea remains a plea of guilty, and the trial proceeds for the purpose of ascertaining the circumstances, which had resulted in the death and to find out whether the accused can, in law, be said to have committed murder.
8. The difficulty in the way of this procedure is created by the wording of Section 272 of the Criminal Procedure Code, which says that if the accused refused to or does not plead or if he claims to be tried, the Court shall proceed to choose jurors or assessors as hereinafter directed and to try the case. There is an obvious lacuna in this section, for it does not cover a case where the accused pleads guilty, and the Court in exercise of the discretion conferred upon it under Section 271 (2) does not convict him thereon. This was pointed out by the Calcutta High Court in Mahammad Yusuf v. Emperor I.L.R.(1931) Cal. 1214 Lort-Williams J. observes:
When the charge is read out to him, the accused has three courses offered to him. He may plead guilty, or he may remain silent, or ho may claim to be tried. The plea of 'not guilty' is not recognised by the Code. It is only when he remains silent, or when he claims to be tried, that the Court can proceed to empanel a jury and try the case. The issue between him and the Crown has then and not till then been joined, and it is that issue which the jury have to try. It is true that Section 271 seems to give the Judge a discretion, when the accused pleads guilty, to accept the plea or not. But if the plea be not accepted there seems to be no sense in recording it... and if it be not accepted, there is no provision in the Code for proceeding with the trial, because Section 272 does not apply where the accused has pleaded guilty.
Section 271 seems to mean that where the accused pleads guilty, the Court need not necessarily record a conviction against him-his plea shall be recorded, and, in a suitable case, the Court may leave the matter there and discharge him. In our opinion, he cannot bo tried.
In England, where the Court does not think it expedient, in the interest of the accused, to convict him upon his own confession, for example, where the charge is one of murder, the usual procedure is to advise him to withdraw his plea of guilty and to plead not guilty... But where he refuses to do this he cannot be tried.
9. With very great respect to the learned Judge, I cannot see what alternative there is except to try the accused, when he has pleaded guilty and the Court-as it is entitled to do-declines to convict him on his plea of guilty. On the other hand, the Chief Court of Oudh has. held that 'Where the plea of guilty is recorded and is not accepted by the Judge, the only course open to the Court is to proceed to try him.' (Keshao Singh v. Emperor A.I.R . Oud 362 . Other Courts have also held that the accused may be treated in such cases as if he had pleaded not guilty and the trial may be proceeded with in the ordinary way (Surjan Singh v. Emperor A.I.R . All. 558 Queen Empress v. Chinna Pavuchi I.L.R.(1899) Mad. 151 and Hasaruddhi Mohammad v. Emperor : AIR1928Cal775 .
10. Then the argument of the learned counsel was that the learned trial Judge was wrong in bringing to the notice of the jury by means of questioning the accused the fact that he had pleaded guilty to the charge. In my opinion, this contention must be accepted, but not for the reason urged in the course of the argument. I am not prepared to say that a plea, properly recorded, cannot be brought to the notice of the jury. The plea of guilty made by the accused which has to be recorded under the law, and any statement that may be made in explanation of the plea, remain part of the record, and merely because the learned Judge has directed that the trial should proceed, it does not mean that the plea and the statement are completely obliterated from, the record. In Hasaruddin Mohommad v. Emperor the Calcutta High Court, following the decision of this Court in Emperor v. Chinia and Emperor v. Laxmya Shiddappa and Queen-Empress-v. Bhadu I.L.R. (1890) All. 119 held that-
The trial of the accused person does not necessarily end if he pleads guilty but evidence may and should be taken in cases of murder as if the plea had been one of not guilty and ease decided upon the whole of the evidence including the accused's plea. It is not in accordance with the usual practice to accept a, plea of guilty in a case where the natural sequence would be a sentence of death.
The plea of guilty is an admission by the accused that he committed the act which resulted in the death, but whether in law the act does amount to murder or not still remains to be decided. It is only for the purpose of ascertaining whether in law the act amounts to murder and. what sentence should be imposed that the trial proceeds. It is for this reason that when the plea of guilty is made by the accused, the accused should be examined in some detail. If therefore the purpose of the trial after the plea of guilty is recorded and not accepted, by the Judge is to see whether the facts do, in law, amount to an offence of murder or any lesser offence or any offence at all, then there would appear to bo no objection to the plea of the accused being: mentioned before the jury although the plea is recorded before the jury was empanelled. After the jury is empanelled, the Clerk of the Crown reads the charge and in usual eases where the plea is of not guilty he proceeds to say:
On this charge the prisoner at the bar has claimed to be tried. It is your duty to harken to the evidence and to return a true verdict.
In the case before us that routine formula was used but the correct formula should have been:
The prisoner at the bar has pleaded guilty to the charge but His Lordship has not accepted the plea and has directed that the trial should proceed. It is therefore your duty to harken to the evidence and to return a true verdict.
If this formula, which is after all a correct statement of facts, had been used, it does not seem to me that any objection could possibly have been taken, and the jury would have come to know what the plea of the accused was. Again, if the Crown counsel in opening the case were to mention the fact that the accused had pleaded guilty, but that the Judge had ordered the trial to proceed, it does not appear that any objection could have been taken. The Crown counsel could not at that stage know that after the evidence was recorded the accused was likely to go back on his earlier statement. In such a case the counsel for the defence should, before the trial begins, formally bring to the notice of the Judge that the accused withdraws his original plea of guilty and claims to be tried. In that event, those circumstances could also be brought to the notice of the jury. It is true that certain facts though known to the Judge are not brought to the notice of the jury, such as, for instance, the previous convictions of the accused. But that is for the reason that the previous convictions have no bearing on the guilt or otherwise of the accused in respect of the offence to be tried, and the fact is scrupulously kept out of the knowledge of the jury so that the accused may have a fair trial. Similarly, when the question of the admissibility of a confession is discussed, it is usually done by asking the jury to retire. That is also because the jury should not come to know anything which is not admissible in evidence and which, may prejudice the minds of the jury. But a plea made by the accused in open Court before the Judge at the commencement of the Sessions does not stand on the same footing. After all such a statement cannot stand in a worse position than a confession made by the accused himself before a Magistrate under Section 164 of the Criminal Procedure Code or a statement by the accused admitting his guilt in the Court of the committing Magistrate. The plea made by the accused at the commencement of the Sessions is made to the Judge in open Court. I cannot see that there is any provision in law or any justification in logic for preventing such a plea being mentioned before the jury. Such a plea could not be effaced from the record and in reality forms part of the record. In my opinion, therefore, if the learned Judge in this case had recorded the plea of the accused and recorded the statement of the accused at that time to find out whether he had really understood the nature of the plea, then in my opinion there was no objection whatever to the learned Judge putting a question to the accused as to why he had pleaded guilty at the commencement of the Sessions. As a matter of fact, such a question gave an opportunity to the accused to remove any possible prejudice that may have been caused in the jury's mind by their having come to know that he had once pleaded guilty. As the practice of the High Court is at present, all the pleas are recorded not only in open Court but in the presence of all the jurors who are likely to be summoned for the purpose of trial during the Sessions. That is also the practice in the mofussil. The plea of guilty is such an unusual event that it is not unlikely that some at least of the jurors may have come to know that such a plea has been recorded. As it happens in the present ease, the victim was an unfortunate girl of whose existence none of the jury were probably aware. But if the victim had been a well-known person, the fact that the accused pleaded guilty to the charge would have been immediately noted by all the jurors and probably widely publicised in the next day's papers. In such a case again, the learned Judge would probably be acting in the interest of the accused in putting the question to him in the manner the learned Judge did in this case. The answer given by the accused could well have been that he was not fully aware of the implications of the charge and the plea which he made, and that he did so without the advice of his counsel. But the answer given by the accused in the present case does show that he was fully aware of the charge and of the implications arising from his plea of guilty, because he said that he was tired of his life and wanted to be hanged. In my opinion, therefore, the learned Judge was not wrong in putting the question which he did to the accused, if the plea of guilty had been recorded in the manner in which it should have been. The learned counsel for the appellant, Mr. Rege, also conceded in the end that if the plea of guilty had been recorded after the Judge had satisfied himself that the accused fully understood the implications of it, then there was no objection to the accused being asked as to why he made that plea at the commencement of the Sessions. But, as in this case, there is nothing on record to show that the learned Judge satisfied himself that the plea of guilty was made by the accused after the charge had been fully explained to him and the accused understood the implications of the charge, such a plea should not, in my opinion, have been brought to the notice of the jury by putting a question which the learned Judge did; because in reality there was no proper plea of guilty returned by the accused on record. As the case was so evenly balanced, depending as it did purely on circumstantial evidence, it is not unlikely that the jury were influenced by the fact that the accused had once pleaded guilty to the charge. For this reason I think the conviction of the accused should be set aside and the accused should be directed to be re-tried after recording a proper plea by the accused.
11. I do not think there is much substance in the other two arguments advanced by Mr. Rege. Although Mr. Chowdhari does not state that the accused surrendered himself, it does appear from the evidence of Mr, Scott that Mr. Chowdhari telephoned that the accused had gone there and surrendered himself. But even assuming that the Judge was wrong in using the word 'surrendered' in connection with the apprehension of the accused at the police station, the fact that in consequence of the statement he was searched and arrested cannot be controverted. The actual words used by the accused could not be brought on record as the learned Judge rightly points out in his charge to the jury. It was argued that the accused may have been arrested on suspicion. But there is no such suggestion made in the cross-examination of either Mr. Chowdhari or Mr. Scott and the jury were entitled to draw an inference, if they so chose, that the accused had surrendered himself. But it would have been desirable if the learned Judge had also brought to the notice of the jury that the fact of the arrest of the accused following upon the information given by him may also be attributed to the suspicion which the police may have entertained by his presenting the knife with which the offence is said to have been committed.
12. Nor do I think that the learned Judge was wrong in expressing his own opinion to the jury that the fact that the accused did not raise an alarm or call the neighbours suggested that he had committed the offence and had gone to give information to the police. That is merely an expression of the opinion of the learned Judge which he is entitled to do under the law, and he had in the earlier part of his summing-up warned the jury that they were the masters of facts and were not bound by any expression of his opinion.
13. I therefore agree with the order proposed by His Lordship the Chief Justice.