Report No. 35
Topic Number 51
Plea of guilty
990. Plea of guilty.-
How far a plea of guilty should be accepted by the court in a capital case, is a question which may be discussed, in view of its importance. The present practice in India is not to accept a plea of guilty in such cases1-2. The relevant provisions of the law as to a plea of guilty in trials before the High Courts and Courts of Sessions are contained in sections 271 and 272 of the Code of Criminal Procedure, 1898. These are quoted below:-
"271. (1) 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 in Court and explained to him, and he shall be asked whether he is guilty of the offence charged, or claims to be tried.
(2) If the accused pleads guilty, the plea shall be recorded, and he may be convicted thereon.
272. 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:
Provided that, in cases triable by jury, the same jury may, subject to the right of objection hereinafter mentioned, try as many accused persons successively as the Court thinks fit.".
1. See analysis of case-law Case No. 29 and foot-notes thereto.
2. See also Achar Sanghar v. Emp., AIR 1934 Sind 204 (205).
991. It may be noted, that these provisions leave a discretion to the Court to accept a plea of guilty. Ordinarily, however, the plea is not accepted in a capital case, though there is nothing illegal in doing so if the Court is satisfied that the accused understands all the essential elements of the crime and the effect of the plea. It will not be a wise exercise of the discretion to accept the plea of guilty in a capital case. Charges of murder, it has been pointed out, frequently involve complicated questions as to the knowledge and intention: with which the death of the victim was caused, and it is undesirable (unless the case is clear) to convict the accused on his plea1. For this reason, courts err on the side of caution, and the practice has grown up not to accept the plea of guilty2-3.
1. Achar Sanghar v. Emp., AIR 1934 Sind 204 (205).
2. Queen Empress v. Chinna Pavuchi, 1900 ILR 23 Mad 151 (154).
3. Dalli v. Emp., AIR 1922 All 233 (1).
992. We quote from the judgment in an Allahabad case1 which contains instructive observations on the subject:-
"Bhadu was convicted on his own plea without evidence being recorded in the Sessions Court. He was charged with the offence punishable under section 302 of the Indian Penal Code. The case against him was that he had murdered his wife. His plea as recorded is as follows:-
Guilty, I killed my wife. She had abused me Called me 'ware'. No one was present. I killed her with a Kulhari.".
We are not clear whether the word "guilty" in the plea was Bhadu's or was the interpretation of the Judge of the meaning of Bhadu's plea. In any event it was not an unqualified plea of guilty, and although the words of abuse which Bhadu said had been used might not have effect to take the case out of section 302 of the Indian Penal Code, they put a qualification on his admission and made it necessary in our opinion that the trial should proceed and evidence should be taken.
In this country it is dangerous to assume that a prisoner of this class understands what are the ingredients of the offence under section 302 of the Indian Penal Code, and what are the matters which might reduce the act committed to an offence under section 304. Even in England, it used to be the practice of some judges, and probably is still, although they were not bound to do so, to advise persons pleading guilty to a capital offence to plead not guilty and stand their trial. One of us had known that course followed in numerous cases.".
(The case was sent back to the Court of Session, with a direction to the Judge to take evidence and proceed on the basis of the plea not being unqualified plea of guilty. The case was, subsequently, tried on (evidence taken before the same Sessions Judge, and the accused convicted and sentenced to death. The sentence was confirmed by the High Court).
1. Queen Empress v. Bhadu, 1896 ILR 19 All 119 (120, 121) (Edge and Elennerhassett J.).
993. If a plea of guilty is accepted, the accused cannot appeal from the conviction1. He can appeal only on the ground of the extent or the legality of the sentence. By pleading guilty, he is considered to have waived his right of appeal. "The intention of the Legislature would appear to be to treat the plea of guilty as a waiver of the right of appeal except as to the justice and legality of the sentence2". The restriction, of course, does not apply to the High Court acting in revision under section 439, Code of Criminal Procedure3-4.
1. Section 412, Code of Criminal Procedure, 1898.
2. Emp. v. Jaffar M. Talab, 1880 ILR 5 Bom 85 (87). (Case under section 167, Presidency Magistrates Courts Act, 1877).
3. Krishna Chanda v. Emp., AIR 1943 Pat 313 (Rowland J.).
4. Ali Hossein v. Emp., AIR 193 Rang 349 (350).
994. The practice in England is this: Generally, where an accused pleads guilty and it appears to the satisfaction of the Judge that he rightly comprehends the effect of his plea, the sentence can be forthwith passed on him after recording his confession1. In a case of serious crime, the court is usually reluctant to accept the plea, and will advise the prisoner to retract it. But, if the prisoner still refuses to withdraw his confession, there is no alternative but to accept it even in the case of murder, of which instances have occurred even in recent times2.
1. Archbold Criminal Pleadings etc., (1962), para. 424.
2. Archbold Criminal Pleadings, etc., (1962), para. 1127, citing R. v. Vent, (1935) 25 Cr AR 55.
995. The matter was considered by the Canadian Committee. The Committee noted1 that it was possible for an accused to plead guilty to a charge of murder. "On rare occasions, a person convicted of murder has insisted on entering a plea of guilty. In these cases, the courts have insisted on the production of sufficient crown evidence to assure that the charge was well founded." The Committee believed that it was extremely undesirable to admit pleas of guilty in capital cases, "because the capacity of the accused must always be taken as doubtful and the acceptance of the plea almost makes the court privy to a scheme for self-destruction2". It, therefore, recommended, that the law be amended to provide that all murder trials should proceed as if a plea of not guilty were entered.
1. Canadian Report, p. 3, para. 6.
2. Canadian Report, p. 19, para. 81.
996. Accordingly, in 1961, section 515 of the Criminal Code of Canada1 was amended. Section 515, sub-section (2a) and (2b), of that Code as amended, are quoted below:-
"(2a) An accused who is charged with an offence punishable by death and is called upon to plead may plead not guilty, or the special pleas authorised by this Part and no others.
(2b) Where an accused who is charged with an offence punishable by death does not plead not guilty or one of the special pleas authorised by this Part or does not answer directly, the court shall order the clerk of the court to enter a plea not guilty.".
We have to consider whether any such mandatory provision is needed. Since, in India, a sentence of death has to be confirmed by the High Court2, which would certainly see that no injustice is caused, by the acceptance of a plea of guilty without very strong reasons. We do not therefore recommend the insertion of a specific provision.
1. (Canada) Criminal Code, as amended in 1961, section 515.
2. Section 374, Code of Criminal Procedure, 1898.