1. These appeals are against the conviction and sentence of the two appellants at the Fourth Criminal Sessions, 1955, the 2nd accused being the appellant in Criminal Appeal No. 74 of 1956 and the first accused being the appellant in Criminal Appeal No. 95 of 1956. Leave to appeal was granted under Section 411-A (1) (a) and (b), Criminal P. C., by this Court.
2. The first accused Raghavan was charged under Sections 419 and 467, I. P. C., for having cheated one Pushparaj, a postman attached to the Saida-pet post office, by pretending to be one Krishnan and inducing the said Pushparaj to deliver to him Rs. 25 covered by T. M. O. No. 2637 dated 23-12-1854 intended for the said Krishnan and in the course of the same transaction for having forged the receipt and acknowledgment in the said T. M. O.
The second accused K. K. Swami was charged with having abetted the commission of the said offence and therefore committed offences punishable under Sections 419 and 457 read with Section 114, I. P. C. The first accused pleaded guilty. The 2nd accused entered a plea of "not guilty." A jury was empanelled and the trial was proceeded with. The 2nd accused was defended by counsel. The first accused was not defended and did not cross-examine the witnesses and did not otherwise take part in the trial.
After the close of the evidence, his statement was recorded under Section 342, Criminal P. C., and he was questioned by Court as to whether he heard the evidence of the postman Fushparaj that he came with the money order to Krishnan and that the first accused impersonated as Krishnan and received the money order, to which his answer was he had nothing to say about it. A further question was put to him that he stated in the lower court that he received the money order, and his answer was that it was true that he signed as Krishnan.
When he was further asked whether he wished to say anything more, he said he had nothing further to say and that he had no defence witnesses to examine. The jury put him a question as to whether he could say the denomination of the money which he received as Rs. 5, Rs. 2 or Re. 1 and his answer was he did not remember.
3. In the charge to the jury the learned Judge stated that there were two accused in this case and after referring to the charges proceeded to state as follows:
"The first accused is not defended, ladies and Gentlemen, because he had pleaded guilty to the charge. You have seen that he has admitted having impersonated as Krishnan and admitted having signed as Krishnan and so he has pleaded guilty to the charges. So far as he is concerned, you will have to return a verdict of guilty on both the charges; there is no other alternative.
I only gave him a chance for him to say what he had to say when the charges were read over to him and he has admitted the offences. So in the face of the plea of guilty and the other evidence in the case you have to return a verdict of guilty against the first accused on both the charges."
The learned Judge then proceeded to discuss the evidence stating that the real dispute in the case is with regard to the second accused. In the concluding portion of the charge, after discussing the evidence as against the 2nd accused, the Learned Judge stated:
"That is the offence so far as the second accused is concerned. There is one important cir-cumstance which you must remember in considering the evidence, and that is, the first accused has pleaded guilty to the charges framed against him. He has also made a statement 'I have received money and I have received money at the instance of the 2nd accused.'
The law says that the statement of one accused about the other accused should not be taken as evidence but you can take that into consideration. Now you are in doubt whether you should believe the evidence of Pushparaj, Jayapal Singh and Lakshmi Bai and you do not know which is true and which is not true i. e., whether the prosecution story is true or the defence story is true.
In these circumstances, when you have got a doubt whether to accept the evidence or not, the law says, if one accused makes a statement implicating himself and the other accused then you can take that into consideration. It is only to this extent you can make use of the statement made by the accused. That is only if you are in doubt about the credibility of these witnesses you are entitled to take the first accused's statement and that is only to that extent.....
If you believe the evidence of the prosecution, particularly the evidence of Pushparaj, Jaypal Singh and Lakshmi Bai, then the case against the 2nd accused has been proved. So far as the first accused is concerned, he has pleaded guilty to the charges framed against him and you have to return a verdict of guilty." Objection is taken to the mode of the trial, the contention being that the first accused having pleaded guilty, under Section 271, Criminal P. C., he should have either been convicted, or if the court was not prepared to accept the plea of guilty, a plea of 'not guilty' should have been entered and the trial should have proceeded against both the accused with the jury and that there is nothing in the records to show that the court did not accept the plea of guilty and that the course of the trial does not indicate that the court did not accept the plea of guilty and entered a plea of not guilty and tried the first accused also.
Before considering the objection, it is necessary to examine the contentions whether in fact the court did not accept the plea of guilty or proceeded with the trial treating the first accused as not having pleaded guilty. Excepting that the court recorded a statement from him under Section 342, Criminal P. C., at the close of the trial, there Is nothing in the record to show that the court treated him in the same manner as the second accused, who pleaded not guilty, after not accepting the plea of guilty made by the first accused and entering for him a plea of "not guilty".
This is also evident from the charge to the jury, as from the portions already extracted from the charge, it is seen that the Jury was finally asked to return a verdict of guilty so far as the first accused is concerned as he has pleaded guilty to the charges. Though, in the earlier portion of the charge, the Jury was asked to return a verdict of guilty against the first accused on both the charges in the face of the plea of guilty and the other evidence, in the concluding portion of the charge there is no mention of the other evidence and the jury was asked to return a verdict of guilty on his plea of guilty.
A reading of the charge to the jury supports the view put forward by the appellants' counsel that the court throughout treated the first accused as having pleaded guilty and not otherwise.
4. Section 271 (2), Criminal P. C., provides that if the accused pleads guilty, the plea shall be recorded, arid he may be convicted thereon. Section 272 provides:
"If the accused refuses to, or does not, plead, or if he claims to be tried, the court shall, in a case triable by jury, proceed to choose jurors as hereinafter directed and to try the case, but in any other case, the Judge shall proceed to try the case himself."
In the present case, the first accused having pleaded guilty there being nothing to show that the court at the time he pleaded guilty did not accept the plea but wanted him to be tried also and for that entered a plea of not guilty -- the court should have proceeded under Section 271 (2), Criminal P. C., and convicted him and thereafter proceeded with the trial of the second accused alone and the Jury must therefore have been empanelled for the trial of the second accused alone.
5. In 'Md. Yusuf v. Emperor', AIR 1931 Cal 341 (A),: a Bench of the Calcutta High Court held that the court has got discretion when the accused pleads 'guilty" to accept the plea or not, that if the plea be not accepted there seems to be no sense in recording it, that the trial however can-not proceed because Section 272 does not apply where accused pleads guilty and that Section 271 means 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 and he cannot then be tried.
The learned Judges referred to the procedure In England as found in 2 Hale's Pleas of the Crown 225, viz., 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 advice him to withdraw his plea of guilty and to plead not guilty, but where he refuses to do this he cannot be tried.
The learned Judges observed that the practice sometimes adopted in India where there is a joint trial of refusing to accept the plea of guilty and proceeding to try the accused in order that his confession may be taken into consideration against his co-accused under Section 30 of the Evidence Act, was illegal and an abuse of the process of the court, and they proceeded to observe:
"After a plea of guilty there is nothing in issue to be tried between the Crown and the prisoner at the Bar ..... When a person has pleaded guilty he ceases ipso facto to be an accused person. There would be no sense in continuing to accuse him of or charge him with committing an offence after he had pleaded guilty to having done it; still more certain is it that he ceases to be an accused person when he has been convicted. The very terms of Section 342 show that it cannot be applied to a convicted person."
The learned Judges followed the view in -- 'Subra-manya Iyer v. King-Emperor', ILR 25 Mad 61 (PC) (B), in which it was decided that where an accused person pleads guilty he is not on trial and cannot be tried.
6. It is not necessary in the present case to examine the larger question whether on an accused pleading guilty, the court has no other option, but either to accept the plea of guilty and convict him, or if it does not accept to necessarily discharge him, or according to the English practice advise the accused to plead not guilty and proceed with the trial.
If the accused, in spite of the advice, insists on pleading guilty, the question arises whether it would be open to the court to enter a plea of not guilty for him and continue the trial. In the case of offences involving capital punishment, the usual practice has been not to accept , the plea of guilty and to proceed with the trial entering up a plea of not guilty for the accused. That question however does not arise in the present case, as we are satisfied that the court In the present case does not appear to have not accepted the plea of guilty made by the first accused and treated him as an accused, who has pleaded not guilty.
In 'Chitaley's Commentaries on the Criminal Procedure Code', 5th Edn. the learned author in his notes to Section 271 after referring to certain decided cases observes:
"Where one of the accused pleads guilty and the court accepts it it should not defer his conviction in order that his confession may be considered against his co-accused. Such a procedure is clearly against the spirit of the law. The accused should be convicted at once and should be removed from the dock in which case he can give evidence against his co-accused. It is always desirable to pass a sentence completely before calling one accused who pleads guilty in a joint trial to give evidence against a co-accused so that the witness may give his evidence free of all corrupt influence which the fear of impending punishment and the desire to obtain immunity to himself at the expense of other prisoner might other-wise produce."
As regards the value of such evidence, being in the nature of a confession of a co-accused, it must be scrutinised with great care and the question would then arise whether there should not be sufficient corroboration for such evidence, which need not be considered at any length in the present case. Suffice it to say that the presence of the first accused who has pleaded guilty and his statement recorded under Section 342 might reasonably have influenced the Jury in assessing the evidence as against the 2nd accused and to his pre-judice.
7. It was held by the Privy Council in ILR 25 Mad 61 (B), that the disregard of an express provision of law as to the mode of trial was not a mere irregularity such as would be remedied by Section 537, Criminal P. C., The express provision of Section 271 (2) of the Code regarding the trial must be held in this case to have been disregarded since inasmuch as after the plea of guilty of the first accused, the court should have proceeded under Section 271 (2) and disposed of the case as against the first accused, removed him from the dock and then empanelled the Jury and proceeded to try the case against the 2nd accused. We are satisfied that the trial of the 2nd accused has been vitiated by this departure from the procedure prescribed by the Code.
8. The learned Public Prosecutor however contended that the fact that the court recorded a statement under Section 342, Criminal P. C., from the first accused implied that the Court did not accept the plea of guilty made by the first accused and that it is also seen from the charge to the jury that the court called upon the jury to return a verdict of guilty not only on the plea of guilty but also on the other evidence in the case and -that though It might be, urged that the charge to the Jury is vitiated, there is no illegality in the procedure adopted for the trial. The learned Public Prosecutor obviously refers to that portion of the charge to the jury where it is stated:
"In the face of the plea of guilty and the other evidence in the case you have to return a verdict of guilty against the first accused on both the charges."
But the other portions of the charge to the Jury which have been extracted show that the Jury was asked to return a verdict of guilty against the first accused on his plea of guilty alone and that the statement under Section 342, Criminal P. C., was recorded as the court wanted to give a chance for him to say what he had to say when the charges were read over to him and he had admitted the offences.
We are satisfied therefore that there is no indication anywhere to support the Public Prosecutor's plea that the court did not accept the plea of guilty of the first accused and entered a plea of not guilty for him and proceeded with the trial as against him also. It appears to us that once, the first accused has pleaded guilty, there was no need to refer to his case in the charge to the jury and call upon the jury to return a verdict of guilty, since it is not for the jury to return a verdict of guilty against an accused, who has himself pleaded guilty.
Under Section 271 (2) it is for the court to convict him and the jury is empanelled only when "the accused refuses to, or does not, plead, or if he claims to be tried", which however has not arisen in the case of the first accused, once he has pleaded guilty. It is sufficient for the purpose of the objection raised to the mode of the trial to observe that the trial has not been in accordance with the requirements of the Code and this departure from the requirements of the Code has prejudiced the trial of the second accused and in the circumstances the convictions and sentences cannot be allowed to stand and the only course open to us is to set aside the convictions and sentences of both the accused and order a retrial.
9. This case therefore requires to be retried on account of the fact that the proper procedure has not been observed. Courts or Judges could not be expected to be fully conversant with the intricacies of criminal procedure and it is in such circumstances that they have a right to expect assistance from counsel, and in a State prosecution such assistance must have come from the State Prosecutor in charge.
It was for him to have brought it to the notice of the court that as soon as the first accused pleaded guilty, the procedure prescribed in Section 271 (2), Criminal P. C., should have been adopted. The failure to have done so has necessitated a retrial Involving delay, loss and inconvenience to everyone concerned. As observed by Beaumont C. J., in the Full Bench case in -- 'Emperor v. Kasamalli Mirzalli', AIR 1942 Bom 71 (C), "Judges have a right to expect assistance from counsel, and more particularly from counsel instructed on behalf of the Crown".
The prosecution ought to have pointed out to the court that the procedure laid down in Section 211 Criminal P. C., had not been followed and the same rectified then and there.
10. The result is, the appeals are allowed, the convictions and sentences are set aside, and a retrial is ordered.
11. Since a retrial is now ordered, accused 2 who is on bail will continue to be on bail on the same bond until the disposal of the case.
12. I agree with the retrial ordered by my learned brother.
13. We have no option but to direct the retrial, because on account of the very unusual procedure adopted in this ease, there has been substantial deviation from the mode of trial prescribed by the Criminal Procedure Code, resulting in very serious prejudice to the appellants and constituting an incurable irregularity.
14. The plea entered by the Clerk of the State and the minutes book maintained by him and the reference in the charge to the Jury, to which my learned brother has alluded, do not show that the plea of guilty by accused 1 was not accepted by the court. If the plea of guilty has been accepted this accused I had ceased ipso facto to be an accused person and the other accused, viz., accused 2 could not be tried along with him and this accused 1 could not have been questioned under Section 342, Criminal P. C., and the members of the Jury told as was the case here that that statement could be taken into consideration against accused 2.
In fact how could the Jury avoid convicting accused 2 when he stood his trial with accused l who had pleaded guilty and who had re-affirmed it in the answers given by him to questions put to him under Section 342. Criminal P. C., and the learned Judge himself has directed the members of the Jury that they had no option but to convict accused 1 on his own plea of guilty.
If on the other hand the learned Judge had not accepted the plea of guilty of accused 1 and then proceeded with the trial, the learned Judge would not be justified in directing the Jury, as he has done, to convict accused 1 by reverting to the plea of guilty without referring to the evidence and which gave no chance to the members of the jury at all to consider the evidence for and against the appellants, the plea of guilty by accused 1 being treated as if it were a confession Of the co-accused in the dock.
15. The correct procedure which is followed Invariably in the courts of Sessions, of which I have more than a quarter of a century experience, is that as soon as one of the accused pleads guilty and If the plea is accepted by the court to remove him from the dock and then empanel the Jury only for the trial of the accused who had pleaded not guilty but claimed to be tried and keep away from the members of the Jury all knowledge of the plea of guilty by the other accused, so that the Jury can dispassionately consider only the evidence against the accused taking the trial, untrammelled by the plea of guilty. On the other hand, if the admission of the commission of the offence by that accused is not accepted, a note is made that notwithstanding the admission, a plea of not guilty is being entered and that the trial is being proceeded with, in that case, that accused participates in the trial just like the other accused taking their trial and in the charge to the Jury, the members of the Jury are directed to consider the evidence for and against each of the accused before them on its own merits, taking into consideration but not treating as substantial evidence the explanations given under Section 342, Criminal P. C.
16. In the result, I agree with the order of retrial proposed by my learned brother.