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.
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.

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) 8 Bom. L. R. 240, 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 ).

(3.)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 ).
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 (1931) I. L. R. 58 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.

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