1. For the purpose of deciding this appeal the general facts of the case are not material.
2. Four persons, the two appellants and two others named respectively Mahammad Siddiq and Pannalal were committed to the Sessions at Alipore, on joint charges. The first three pleaded not guilty; Pannalal pleaded guilty. The learned Judge accepted his plea convicted him thereon and ordered that in-view of his age and antecedents he should be detained in a Borstal institution. Further he ordered that he should be examined medically forthwith and after that had been done he would fix the period of detention. The case then proceeded against the other three and among other witnesses Pannalal was called by the prosecution and gave evidence on oath against them. All this-took place on the same day. The trial proceeded and three days later the medical report on Pannalal was received and; the learned Judge fixed the period of his detention at three years. The trial was resumed and eventually the jury found a verdict of not guilty in favour of Mahammad Siddiq and of guilty against the other two. The learned Judge accepted these verdicts acquitted Mahammad Siddiq and sentenced each of the appellants to be detained in a Borstal institution for three years.
3. The only point of substance raised by the learned advocate for the appellants was that Pannalal's evidence was inadmissible because when he gave it he-was an accused person and therefore was incompetent as a witness.
4. In our opinion this contention is unsound. Section 5, Oaths Act, provides that it is unlawful in a criminal proceeding to administer an oath to the accused person. Section 342, Criminal P.C. gives power to the Court to examine the accused) upon his trial for the purpose of enabling him to explain any circumstances appearing in the evidence against him. Sub-section 4 provides that no oath shall be administered to the accused.
5. Obviously this means that for the purposes of Section 342 no oath shall be administered and equally obviously it is restricted to an accused who is on trial in the proceeding to which the section is being applied. The very terms of the section show that it has no application to a person who may be accused in some other proceeding: see Akhoy Kumar Moohherjee v. Emperor  45 Cal. 720, Winson v. the Queen  10 Bom. 390, and Empress v. Durant  23 Bom. 213.
6. The question therefore which we have to decide is whether at the time when. Pannalal gave his evidence he was an accused parson within the meaning of Section 342.
7. The first point to note is that ha was no longer a person who was accused only but one who had been convicted also. Oh. 23, Criminal P.C. deals with trials before Courts of Session. Section 268 provides that all such trials shall be either by jury or with the aid of assessors. Section 271 provides that when the Court is ready to commence the trial the charge shall be read out and explained to the accused and he shall be asked whether he is guilty or claims to be tried (in England this is called the time of arraignment and was always quite distinct from the next stage in the proceedings which is called exclusively the time of trial). If he pleads guilty the plea shall be recorded and he may be convicted thereon.
8. Section 272 provides that if the accused refuses to or does not plead, or if he claims to be tried the Court shall proceed to choose jurors, and to try the case (the claim to be tried, is called in English law 'putting himself upon the country' that is he claims to be tried by a jury). Therefore the trial before a Court of Session commences immediately after the empannelling of the jury when the prisoner is given in charge. When the charge is read out to him the accessed has three courses offered to him. He may plead guilty or he may remain silent or he may claim to be tried. The plea of ''not guilty' is not recognized by the Code. It is only when he remains silent or when ho claims to be tried that the Court can proceed to empannel a jury land try the case. The issue between him and the Crown has then and not till then been joint 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: see Khudiram Bonn v. Emperor  10 Cr. L.J. 325 per Brett, J. at p. 72 (of 9 C. L. J.); 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.
9. 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 be tried.
10. 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: 2 Hale's Pleas of the Grown 225. But where he refuses to do this he-cannot be tried. 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, Evidence Act, is in our opinion illegal and an abuse of the process of the Court.
11. If follows therefore that we are in disagreement with the decisions in Queen-Empress v. Chinna Pavnohi  23 Mad. 151, Sukhdeo Tewari v. Emperor  10 Cr. L.J. 484 and Kesho Singh. v. Emperor  20 O.C. 136 in which it was decided that the trial of an accused person does not necessarily end with his plea of guilty and in agreement with those in Queen-Empress v. Lahshmayya Pandaram  22 Mad. 491, Queen Empress v. Pirbhu  17 All. 524, Queen-Empress v. Paltva  23 All. 53, Emperor v. Kheoraj  30 All. 540 and Queen Empress v. Pahhuji (1895] 19 Bom. 195 and the judgment of Sir Arnold White, C. J. in Subramania v. Emperor  25 Mad. 61 in which it was decided that where an accused person pleads guilty he is not on trial and cannot be tried.
12. After a plea of guilty there is nothing, in issue to be tried between the Crown' and the prisoner at the Bar. A fortiori after his plea of guilty has been accepted' Khudiram Bose v. Emperor (supra) per Brett, J., at p. 72 (of 9 C. L. J.) and the reason is stronger still if he has been convicted upon his own confession, that is to say, upon his plea of guilty.
13. When a person has pleaded guilty he cease 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.
14. All the cases be which we have referred are distinguishable from the present case because the accused Pannalal had been convicted and had been sentenced to be detained in a Borstal institution before he was called to give evidence for the prosecution although the actual term of his detention had not been fixed by the learned Judge. It is clear therefore that he was a competent witness. It is however always desirable to pass sentence completely before calling one accused in a joint trial to give evidence against his co-accused: 'so that the witness may give his evidence 'with a mind free of all corrupt influence which the fear of impending punishment and the desire to obtain immunity to himself at the expense of the prisoner might otherwise produce: Charlotte Winsor v. The Queen  1. Q.B. 289 per Cockburn, C.J., at pp. 311-2.'
15. But this course is not essential: Queen: v. Pyne  1 C.C.R. 349.
16. For these reasons this appeal is dismissed.
S.K. Ghose, J.
17. I agree.