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 Muhammad Siddique and Pannalal, were committed to the Sessions Judge 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.
3. 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 Muhammad Siddique, and of guilty against the other two. The learned Judge accepted these verdicts, acquitted Muhammad Siddique and sentenced each of the appellants to be detained in a Borstal institution for three years.
4. 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.
5. In our opinion this contention is unsound. Section 5 of the Indian Oaths Act provides that it is unlawful in a criminal proceeding to administer an oath to the accused person. Section 342, Criminal Procedure Code, gives power to the Court to examine he 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.
6. 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 Mukerjee v. Emperor 45 Ind. Cas. 999 : 45 C. 720 : 27 C.L.J. 91 : 22 C.W.N. 405 : 19 Cr. L.J. 663, Winsorv. Reg. (1866) 1 Q.B. 390 : 7 B. and Section 490 : 35 L.J. M C. 161 : 12 Jur. (N.S.) 561 : 14 L.T. (N.S.) 567,14 W.R. 695 : 10 Cox C.C. 327, Empress v. Durant 23 B. 213
7. The question, therefore, which we have to decide is, whether, at the time when Pannalal gave his evidence, he was an accused person within the meaning of Section 342.
8. The first point to note is that he was no longer a person who was accused only, but who had been convicted also. Chapter XXIII, Criminal Procedure Code, deals with trials before Courts of Session. Section 268 pro vides 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.
9. 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)., There fore, the trial before a Court of Session commences immediately after the empanelling of the Jury, when the prisoner is given in charge. 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 he 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 Grown 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 Bose v. Emperor 3 Ind. Cas. 628 : 9 C.L.J. 55 at p.72 : 10 Cr. L.J. 325], 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.
10. 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.
11. 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 Crown 225. But where he refuses to do this he cannot be tried. The practice some times 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, is, in our opinion, illegal and an abuse of the process of the Court.
12. It follows, therefore, that we are in disagreement with the decisions in Queen-Em-press v. Chinna Pavuehi 23 M. 151 : 2 Weir 747, Sukdev Tewari v. King-Emperor 4 Ind. Cas. 57 : 13 C.W.N. 552 : 9 C.L.J. 291 : 10 Cr. L.J. 484, Kesho Singh v. Emperor 40 Ind. Cas. 742 : 18 Cr. L.J. 742 : 20 C.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. Lakshmayya Pandaram 22 M. 491. 2 Weir 746, Queen-Empress v. Parbhu 17 A. 524 : A.W.N. (1895) 111, Queen.Empress v. Paltan 33 A. 53 : A.W.N. (1900) 192, Emperor v. Kheoraj 30 A. 540 : A.W.N. (1908) 241 : 5 A.L.J. 505: 4 M.L.T. 398 : 8 Cr. L.J. 380, Queen-Empress v. Pahuji 19 B. 195, and the judgment of Sir Arnold White, C.J. in Subrahmania Aiyar v. Emperor 25 M. 61 : 11 M.L.J. 233 : 3 Bom. L.R. 540 : 281. A. 257 : 5 C.W.N. 866 : 2 Weir 271 : 8 Sar. 160 (P.C.), in which it was decided that where an accused person pleads guilty he is not on trial and.cannot be tried.
13. 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 3 Ind. Cas. 628 : 9 C.L.J. 55 at p.72 : 10 Cr. L.J. 325, (Supra) per Brett, J., at page 72 Page of 9 C.L.J.--[Ed.] and the reason is stronger still if he has been convicted upon his own confession, that is to say, upon his plea of guilty.
14. When a person has been 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.
15. All the cases to 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'--Winsorv. Reg. (1866) 1 Q.B. 289 : 35 L.J.M.C. 121 : 12 Jur. (N.S.) 91 : 14 L.T. (N.S.) 295 : 14 W.R. 423, per Cockburn, C.J., at pages 311-2 Pages of (1866) 1 Q.B.--[Ed.]. But this course is not essential, Reg. v. Pyne (1845) 1 Cox C.C.R. 339.
16. For these reasons this appeal is dismissed.