A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant upon oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant, and also by the Magistrate:

Provided as follows; -

 

(1) If the complaint has been made in writing to a Magistrate who is not competent to take cognizance of the case, he shall return the complaint for presentation to the proper Court with an endorsement to that effect.

(2) If the complaint has not been made in writing, such Magistrate shall direct the complainant to the proper Court.

 

(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance, or which has been transferred to him under section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone he issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or, if he is a Magistrate other than a Magistrate of the third class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police-officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the compliant;

Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under he provisions of section 200.

(2) If any inquiry or investigation under this section is made by a person not being a Magistrate or a police-officer, such person shall exercise all the powers conferred by this Code on an officer in charge of a police-station, except that he shall not have power to arrest without warrant.

(2A) Any Magistrate inquiring into a case under this section may, if he thinks fit, take evidence of witnesses on oath.

 

The Magistrate before whom a complaint is made, or to whom it has been transferred, may dismiss the complaint if, after considering the statement on oath (if any) of the complain ant and the result of the investigation or inquiry (if my) under section 202, there is in his judgment no sufficient ground for proceeding. In such case he shall briefly record his reasons for so doing.

 

(1) If in the opinion of a Magistrate taking cognizance of an there is sufficient ground for proceeding, and the case appears to be one in according to the fourth column of the second schedule, a summons should in the first instance, he shall issue his summons for the attendance of the accused if the case appears to be one in which, according to that column, a should issue in the first instance, he may issue a warrant, or, if he thinks” summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or ( if he has not jurisdiction himself) some other Magistrate having jurisdiction.

(2) Nothing in this section shall be deemed to affect the provisions section 90.

(3) When by any law for the time being in force any process-fees of other fees are payable, no process shall be issued until the fees are paid, and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused, and permit ~um to appear by his pleader.

(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in manner hereinbefore provided.

 

The following procedure shall be adopted in inquires before Magistrates where the case is triable exclusively by a Court of Session or High Court or, in the opinion of the Magistrate, ought to be tried by such Court.

 

(1) The Magistrate shall, when the accused appears or is brought before him, proceed to hear the complainant (if any), and take in manner herein after provided all such evidence as may be produced in support of the prosecution or in behalf of the accused, or as may be called for by the Magistrate.

(2) The accused shall be at liberty to cross-examine the witnesses for the prosecution. and in such case the prosecutor may re-examine them.

(3) if the complainant or officer conducting the prosecution or the accused applies to the Magistrate to issue process to compel the attendance of any. witness or the production of any document or thing, the Magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so.

(1) When the evidence referred to in section 208. sub-sections (1). and (3), has been taken, and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, such Magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trail, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself r some other Magistrate, in which case he shall proceed accordingly.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

(1) When, upon such evidence being taken and such examination (if any) being made, the Magistrate is satisfied that there are sufficient grounds for committing the accused for trail, he shall frame a charge under his hand declaring with what offence the accused is charged.

(2) As soon as such charge has been framed, it shall be read ~d explained to the accused, and a copy thereof shall, if he so requires, be given to urn free of cost.

 

(1) When the charge has been read and explained to him, the accused shall be required to state forthwith whether he desires to given evidence on us own behalf and whether he desires to call witness, and the Magistrate shall warm him in the manner required by sub-section (1) of section 342.

(2) If the accused states that he desires to call witness, he shall be required at once to give in, orally or in writing, a list of the persons, and their occupations and addresses, whom he wishes to be summoned to give evidence on his trial.

(3) The Magistrate may, in his discretion, allow the accused to give fly any further list of witnesses at a subsequent time; and nothing in this section shall be deemed to preclude the accused from giving, at any time before his trial, to the Clerk of the Court a further list of persons whom he wishes to be summoned to give evidence on such trial provided that nothing in this sub-section shall entitle the accused to require that any person named in such subsequent list shall be summoned and examined at such trial.

 

The Magistrate may. in his discretion, if the accused desires to give evidence on his behalf take the evidence of the accused in manner hereinafter provided, and may also summon and take the evidence of witnesses named in any list given in to him under section 211.

 

(1) When the accused has declined to give evidence or to give in S list of witnesses under section 211, or when he has either stated that he desires to give evidence or has given in such list, or has both expressed his desire to give evidence and has given in such list, and the Magistrate has, if he decides so to do, taken the evidence of the accused, and of the witnesses included in such list whom he desires to examine, the Magistrate may make an order committing the accused for trial by the High Court or the Court of Session, as the case may be.

(2) If the Magistrate, after hearing the evidence of the accused and of the witnesses (if any) for the defence, is satisfied that there are not sufficient grounds for committing the accused, he may cancel the charge and discharge the accused, and in such case he shall record his reasons for discharging the accused

 

*   *    *     *

 

A commitment once made under section 213 by a competent Magistrate, or by a civil or revenue Court under section 478, can be quashed by the High Court only, and only on a point of law.

 

When the accused has given in any list of witnesses under section 211 and has been committed for trial, the Magistrate shall summon such of the witnesses included in the list as have not appeared before himself to appear before the Court to which the accused has been committed

Provided that [* * * *] the Magistrate may. in his discretion, leave such witnesses to be summoned by the Clerk of the Court. and such witnesses may be summoned accordingly:

Provided also that, if the Magistrate thinks that may witness is included in the list for the purpose of vexation or delay or of defeating the ends of justice the Magistrate may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of such witness is material and, if he is not so satisfied, may refuse to summon the witness (recording his reasons for such refusal), or may before summoning him require such sum to be deposited as such Magistrate thinks necessary to defray the expense of obtaining the attendence of the witness and all other proper expenses.

 

(1) Complainants and witnesses for the prosecution and defence, whose attendance before the Court off Session or High Court is necessary and who appear before the Magistrate, shall execute before him bonds binding themselves to be in attendance when called upon at the Court off Session or High Court to prosecute or to give evidence, as the case may be.

(2) If any complainant or witness refuses to attend before the Court of Sessions or High Court or execute the bond above directed, the Magistrate may detain him in custody until he executes such bond, or until his attendance at the Court of Session or High Court is required, when the Magistrate shall send him in custody to the Court of Session or High Court, as the case may be

 

(1) When the accused is committed for trial, the Magistrate shall issue an order to such person as may be appointed by the President of the Union in this behalf, notifying the commitment, and stating the offence in the same form the charge, unless the Magistrate is satisfied that such person is already aware of the commitment and the form of the charge:

and shall send the charge, the record of the inquiry and any weapon or other thing which is to be produced in evidence (* * * * *)¹ to the Clerk of the Clerk of the Court or other officer appointed in this behalf (* * * * )¹

( Note ) (2) * * * *

 

(1) The committing Magistrate or, in the absence of such Magistrate or any other Magistrate empowered by or under section 206 may, if he thinks fit summon and examine supplementary witnesses after the commitment and before the commencement of the trial, and bind them over in manner hereinbefore pro vided to appear and give evidence.

(2) Such examination shall, if possible, be taken in the presence of the accused, and a copy of the evidence of such witnesses shall be given to the accused free of cost.

 

Until and during the trial ,the Magistrate shall, subject to the precisions of this Code regarding the taking of bail, commit the accused by warrant to custody.

 

CHAPTER XIX
OF THE CHARGE

Form of Charges

(1) Every charge under this Code shall state the offence with which the accused is charged.

(2) if the law which creates the offence gives if any specific name the offence may be described in the charge by that name only.

(3) if the law which creates the offence does not give it any specific name, so much of the definition of the offence must be state as to give the accused~ notice of the matter with which he is charged.

(4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge.

(5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.

(6) The charge shall be written [* * * * ]¹ in the language of the Court.

(7) if the accused, having been previously convicted of any offence, .s liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to rove such previous conviction for the purpose of affecting the punishment which he Court may think fit to award for the subsequent offence, the fact, date and lace of the previous convious shall be stated in the charge. If such statement has been omitted, the Court may add it any time before sentence is passed.

Illustrations

1. (a) A is charged with the murder of B. This is equivalent to a statement that A’s act fell within the definition of murder given in sections 299 and 300 of the Penal Code it did not fall within any of the general exceptions of the same Code; and that it did not” within any of the five exceptions to section 300, or that, if it did fall within Exception I, one or other of the three provisos to that exception applied to it.

(b) A is charge, under section 326 of the Penal Code, with voluntarily Causing grievous hurt to B by means of an instrument for shooting. This is equivalent to a Statement that the case was not provided for by section 335 of the Penal Code, and that the general exceptions did not apply to it.

(c) A is accused of murder, cheating, theft, extortion, adultery or criminal intimidation, or using a false property-mark. The charge may state that A committed murder, or cheating, or theft, or extortion, or adultery, or criminal intimidation, or that he used a false property-mark, without reference to the definitions of those crimes contained in the Penal Code; but the sections under which the offence is punishable must, in each instance, be referred to in the charge.

(d) 4 is charged, under section 184 of the Penal Code, with intentionally obstructing a sale of property offered for sale by the lawful authority of a public servant. The charge should be in those words.

 

(1) The charge shall contain such particulars as to tie time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.

(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234

Provided that the time included between the first and last of such dates shall not exceed one year.

 

When the nature of the case is such that the particulars mentioned in sections 221 and 222 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose.

Illustrations

(a) A is accused of the theft of a certain article at a certain time and place. The charge need not set out the manner in which the theft was effected.

(b) A is accused of cheating B at given time and place. The charge must set out the manner in which cheated B.

(c) A is accused of giving false evidence at a given time and place. The charge must set out that portion of the evidence given by A which is alleged to be false.

(d) A is accused of obstructing B, a public servant, in the discharge of his public functions at a given time and place. The charge must set out the manner in which A obstructed B in the discharge of his functions.

(e) A is accused of the murder of B at a given time and place. The charge need not state the murder in which A murdered B.

(f) A is accused of disobeying a direction of the law with intent to save B from punishment. The charge must set out the disobedience charged and the law infringed.

In every charge words used in descnbing.31 offence shall be deemed to have been used in the sense attached to them nspectively by the law under which such offence is punishable.

 

No error in stating either the offence or the particulars required to be stated in the charge. and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.

Illustrations

(a) A is accused, under section 242 of the Penal Code, with ‘having been in pos. session of counterfeit coin, having known at the time when he became possessed thereof that d such coin was counterfeit’, the word ‘fraudulently” being omitted in the charge. Unless it appears that.] was in fact misled by this omission, the error shall not be regarded as material.

(b) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge. or is set out incorrectly. 4 defends himself, calls witnesses and gives his own account of the transaction. The Court may infer from this that the omission to set out the manner of the cheating is not material.

(c) A is charged with cheating B, and the manner in which he cheated H is not set out in the charge. There were many transactions between A and B and. A had no means of knowing to which of them the charge referred, and offered no defence. The Court may infer from such facts that the omission to set out the manner of the cheating was, in the case, a material error.

(d) A is charged with the murder of Khoda Baksh on the 21st Jaunary 1882 in fact.. the murdered person’s name was Haidar Baksh. and the date of the murder was the 20th January 1882. A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the ease of Haidar Baksh. the Court may Infer front these facts that.] was not misled, and that the error in the charge was inmaterial.

(e).A was charged with murdering Haidar Baksh on the 20th January 1882. and Khoda Baksh (who tried to arrest him for that murder) on the 21st January 302 When charged for the murder of Haidar Baksh. he was tried for the murder of Khoda Baksh. The witnesses present in his defence were in the case of Haedar Baksh The Court may infer from this that A was misled, and that the error was material

When any persons committed for trial without a charge, or with an imperfect or erroneous charge, the Court, or, (*** ** )1 the Clerk of the Court may frame a charge or add to or otherwise alter the charge, as the case may be. having regard to the rules contained in this Code as to the form of charges.

Illustrations

1. A is charged with the murder of C. A charge of abetting the murder of C may be added or substituted.

2. A is charged with forging a valuable security under section 467 of the Penal Code. A charge of fabricating false evidence under section 193 may be added.

3. A is charged with receiving stolen property knowing it to be stolen. During the trial it incidentally appears that he has in his possession instruments for the purpose of counterfeiting coin. A charge under section 235 of the Penal Code cannot be added.

 

2(1) Any Court may alter or add to any charge at any time before judgment is pronounced, or, in the case of trials by jury before the Court of Session or High Court, before the verdict of the jury is retuned.

(2) Every such alteration or addition shall be read and explained to the accused.

 

(1) Whenever a charge is altered or added to by the Court after the commencement of the trial the Court may. in its discretion, either -

(a) proceed with the trial as if the new or altered charge had been the original charge, or

(b) adjourn the trial for such period as it may. in the interest of justice, deem necessary, or

(c) direct a new trial

(2) When the Court either procceds with or adjourns the trail under clause (a) or clause (b) of sub-section (1). the prosecution and the accused shall be allowed to recall and examine, with reference to such alteration of or addition to the charge, any witness who have been examined, and also to call any further witness whom the Court may think to be material.

 

*   *    *    *

If the offence stated in the new or altered or added charge is one for prosecution of which previous sanctmn is necessary, the case shall not be proseeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the new or altered charge is founded.

 

*   *   *   *

(1) If any appellate Court, or the High Court in the exercise of its powers of revision or of its powers under Chapter XXVII. is of opinion that any person convicted of arm offence was misled in his defence by the absence of a charge or by an error in the charge, it shall direct a new trial to he had upon a charge framed in whatever manner it thinks fit.

(2) If the Court is of opinion that the facts of the case are such that no valid charge could he preferred a against the accused in respect of the facts proved. it shall quash the conviction.

Illustrations

A is convicted of an offence under section 196 of the Penal Code upon a charge which omits to state that he knew he evidence, which he corruptly used or attempted to use as true or genuine, was false or fabricated, If the Court thinks it probable that . I had such knowledge, and that he was misled in his defence by the omission from the charge of the statement that he had it. it shall direct a new trial upon an amended charge , but, if it appears probable from the proceedings that . I had no such knowledge, it shall quash the conviction.

 

For every distinct offence of which tow person is accused there shah be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235. 236 and 239.

Illustrations

A is accused of a theft on one occasion, and of causing grievous hurt on another occasion. I must be separately charged and separately tried for the theft and causing grievous hurt.

(1) When a person is accused of more offences than one of the kind committed within the space of twelve months from the first to the last of offences, whether in respect of the same person or not, he may be charged and tried at one trial for any number of them not exceeding three.

(2) Offences are of the same kind when they are punishable with same amount of punishment under the same section of the Penal Code or of -special or local law

Provided that, for the purpose of this section, an offence punishable under section 379 of the Penal Code shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that offence punishable under any section of the Penal Code, or of any special or local’ law shall be deemed to be an offence of the same kind as an attempt to committ such offence, when such an attempt is an offence.

 

(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.

(2) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.

(3) If several acts, of which one or. more than one would by itself on themselves constitute an offence, constitute when combined a different offence he person accused of them may be charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any offence constituted any one or more of such acts.

(4) Nothing contained in this section shall affect the Penal Code. Section 71.

Illustrations

to sub-section (1) –
(a) A rescues B, a person in lawful custody, and in so doing causes grievous hurt to C a constabel in whose custody B was. A may be charged with, and convicted of. offences under sections 225 and 333 of the Penal Code.

(b) A commits house-breaking by day with intent to commit adultery. and commits in the house so entered adultery with B's wife. A may be separately charged with, and convicted of, offences under sections 454 and 497 of the Penal Code.

(c) A entices B, the wife of C, away from C, with intent to commit adultery with B, and then commits adultery with her. A may be separately charged with, and convicted of, the offences. under section 498 and 497 of tie Penal Code.

(d) A has in his possession several seals, knowing them to be counterfeit and intending to use them for the purpose of committing several forgeries punishable under section 466 of the Penal Code. A may be separately charged with, and convicted of. the possession of each seal under section 473 of the Penal Code.

(e) With intent to cause injury to B, A institutes a criminal proceeding against him knowing that there is no just or lawful ground for such proceeding and also falsely accuses B of having committed an offence, knowing that there is no just or lawful ground for such charges. .A may be separately charged with, and convicted of, two offences tinder, section 211 of the Penal Code.

(f) A. with intent to cause injury to B. falsely accuses him of having committed an offence knowing that there is no just or lawful ground for such charge. On the trial. .1 gives false evidence against H. intending thereby to cause B to be convicted of a capital offence may be separately charged with, and convicted of. offences under sections 211 and 194 of the Penal Code.

(g) A, with six others, commits the offences of rioting, grievous hurt and assaulting a public servant endeavouring in the discharge of his duty as such to suppress the riot. A may be separately charged with, and convicted of, offences tinder sections 147. 325 and 152 of the Penal Code.

(h) A threatens B.C and D at the same time with injury to their persons with intent to cause alarm to them. A may be separately charged with, and convicted of, each of the three offences under section 506 of the Penal Code.

The Separate charge referred to in Illustrations (a) to (h) respectively may be tried at the same time.

to sub—section (2)
(i) .4 wrongfully strikes B with a cane. A may be separately charged with, and convicted of. offences under sections 352 and 323 of the Penal Code.

(j) Several stolen sacks of corn are made over to A and B. who know they are stolen property, for the purpose of concealing them. A and B thereupon voluntarily assist each other to conceal the sacks at the bottom of a grain pit. A and B may be separately charged with, and convicted of, offences under sections 411 and 414 of the Penal Code.

(k) A exposes her child with the knowledge that she is thereby likely to cause its death. The child dies in consequence of such exposure. A may be separately charged with. and convicted of. offences under sections 317 and 304 of the Penal Code.

(l) A dishonestly uses a forged document as genuine evidence, in order to convict B, a public servant. of an offence tinder. section 167 of the Penal Code. A may be separately charged with, and convicted of, offences tinder sections 471 (read with 466) and 196 of the Penal Code.

to sub-section (3) -
(m) A commits robbery on B, and in doing so voluntarily causes hurt to him. A may be separately charged with, and convicted of, offences under sections 323, 392 and 394 of the Penal Code.

If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved with constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once: or he may be charged in the alternative with having committed some one of the said offences.

Illustrations

(a) A is accused of an act which may amount to theft or receiving stolen property, or criminal breach of trust, or cheating. He may be charged with theft, receiving stolen property criminal breach of trust and cheating, or he may be charged with having committed theft, or receiving stolen property, or criminal breach of trust or cheating.

(b) A states on oath before the Magistrate that he saw B hit C with a club. Before he Sessions Court A states on oath that B never hit C.A may be charge in the alternative and convicted of intentionally giving false evidence, although it cannot be proved which of these contradictory statements was false.

If, in the case mentioned in section 236. the accused is chained with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was mot charged with it.

Illustrations

A is charged with theft. It appears that he committed the offence of criminal breach of trust, or that of receiving stolen goods. He may be convicted of criminal breach of trust or of receiving stolen goods (as the case may be) though he was not charged with such of fence.

(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it.

(2A) When a person is charged with an offence, he may be Convicted of an attempt to commit such offence although the attempt is not separately charged

(3) Nothing in this section shall be deemed to authorize a conviction of any offence referred to in section 198 or section 199 when no complaint has been made as required by that section.

Illustrations

(a) A is accused, under section 407 of the Penal Code, with criminal breach of trust in respect of property entrusted to him as a carrier, it appears that he did commit criminal breach of trust under section 406 in respect of the property, but that it was not entrusted it to him as a carrier. He may be convicted of criminal breach of trust under section 406.

(b) A is charged, tinder section 325 of the Penal Code, with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under section 335 of that Code.

The following persons may be charged and tried together, namely-

(a) persons accused of the same offence committed in the course of the same
transaction

(b) persons accused of an offence and persons accuesed of abetment or an attempt to commit such offence.

(c) persons accused of more than one offence of the same kind. Within the meaning of section 234. committed by them jointly within the period of twelve months;

(d) persons of different offences committed in the course of the same transaction

(e) persons accused of an offence which includes theft, extortion, or criminal misappropriation, and persons accused of receving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence,

(f) persons accused of offences under sections 411 and 414 of the Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by one offence, and

(g) persons accused of any offence under Chapter XII of the Penal Code relating to counterfeit coin, and persons accused of arty other offence under the said Chapter relating to the same coin. or of abetment of or attempting to commit any such offence;

and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges.

 

WitWhen in the same trial several charges are framed against the same person and when a conviction has been had on one or more of such charges the complainant or the officer in charge of the prosecution may, with the consent of he Court, at any time before judgment is pronounced or the verdict of the jury is retuned on the remaining charge or charges, withdraw such charge or charges, or he Court of its own accord may stay the trial of such charge or charges. Such withdrawal or stay shall have the effect of an acquittal on such charge or charges unless the conviction be set aside, in which case the Court (subject to the order of he Court setting aside the conviction) may proceed with the trial of the charge or charges so withdrawn or stayed.hdrawal of remaining charges on conviction on one of several charges.

 

The following procedure shall be observed by Magistrates in the trial of summons cases.

 

When the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted but it shall not be necessary to frame a formal charge.

 

If the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly.

 

1 (1) If the Magistrate does not convict the accused under section 243 or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution and also, if the accused desires to give evidence on his own behalf, to hear the accused, or, if the accused does not desire to give evidence, to examine the accused, and take all such evidence as the accused produces in his defence provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.

(2) The Magistrate may, if he thinks fit, on the application of the complainant or accused, issue a summons to any witness directing him to attend or to produce any document or other thing.

(3) The Magistrate may, before summoning any witness on such application, require that his reasonable expenses, incurred in attending for the purposes of the trial, be deposited in Court.

 

(1) If the Magistrate, upon taking the evidence referred to in section 244 and such further evidence (if any) as he may, of his own motion, cause to be produced, and [(if the accused does not give evidence)] 1 examining the accused. Finds the accused not guilty, he shall record an order of acquittal.

(2) Where the Magistrate does not proceed in accordance with the provisions of section 349 or section 562, he shall, if he finds the accused guilty, pass sentence upon him according to law.

 

A Magistrate may, under section 243 or section 245, convict the accused of any offence triable under this Chapter which from the facts admitted or roved he appears to have committed, whatever may be the nature of the complaint or summons.

 

If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which he hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day.

Provided that, where the complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance proceed with the case.

 

If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused.

 

In any case instituted otherwise than upon complaint, a Magistrate of the first class, or with the previous sanction of the District Magistrate any other magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment either of acquittal or conviction, and nay thereupon release the accused.

 

(1) If, in any case instituted upon complaint or upon information given to a police-officer or to a Magistrate, one or more persons is or are accused before a Magistrate of any offence triable by a Magistrate, and the Magistrate by whom the case is heard discharges or acquits all or any of the accused, and is of opinion that the accusation against them or any of them was false and either frivolous or vexatious, the Magistrate may, by his order of discharge or acquittal, if the person upon whose complaint or information. the accusation was made is present, call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one or if such person is not present, direct the issue of a summons to him to appear and cause as aforesaid.

(2) The Magistrate shall record and consider any cause which such complainant or informant may show and if he is satisfied that the accusation was false and either frivolous or vexatious may, for reasons to be recorded, direct that compensation to such amount not exceeding one hundred rupees or, if the Magistrate is a Magistrate of the third class, not exceeding fifty rupees, as he may determine, be paid by such complainant or informant to the accused or to each or any of them.

(2A) The Magistrate may, by the order directing payment of the compensation under sub-section (2), further order that, in default of payment, the persons ordered to pay such compensation shall suffer simple imprisonment for a period not exceeding thirty days.

(2B) When any person is imprisoned under sub-section (2A), the provisions of sections 68 and 69 of the Penal Code shall, so far as may be, apply.

(2C) No person who has been directed to pay compensation under this section shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made or information given by him

Provided that any amount paid to an accused person under this section shall be taken into account in awarding compensation to such person in any subsequent civil suit relating to the same matter.

(3) A complainant or informant who has been ordered under sub-section (2) by a Magistrate of the second or third class to pay compensation [* * * ]1 may appeal from the order, in so far as the order relates to the payment of the compensation, as if such complainant or informant had been convicted on a trial held by such. Magistrate.

(4) When an order for payment of compensation to an accused person is made in a case which is subject to appeal under sub-section (3), the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided and, where such order is made in a case which is not so subject to appeal the compensation shall not be paid before the expiration of one month from the date of the order.

 

The following procedure shall be observed by Magistrates in the trial of warrant-cases.

 

(1) When the accused appears or is brought before a Magistrate, such Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution, and the accused shall have the right to cross-examine the complainant (if any) and the witnesses produced m support of the prosecution:

Provided that the Magistrate shall not be bound to hear any person as complainant in any case m which the complaint has been made by the Court.

(2) The Magistrate shall ascertain, from the complainant or otherwise, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary, and the accused shall have the right to cross-examine such person summoned to give evidence for the prosecution.

(1) If , upon taking all the evidence referred to in section 252 and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrequited would warrant his conviction, the Magistrate shall discharge him

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be C recorded by such Magistrate, he considers the charge to be groundless.

 

If, when such evidence and examination have been taken and made. or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused had committed an offence triable under this Chapter which such Magistrate is competent to try, and which, in his opinion. could be adequately punished by hum he shall frame in writing a charge against the accused.    

     

(1) The charge shall then be. read and explained to the accused, and he shall be asked whether he is guilty or has any defence to make.

(2) If the accused pleads guilty, the Magistrate shall record the plea. and may in his discretion convict him thereon.

 

In a case where a previous conviction is charged under the provisions of section 221. sub-section (7). and the accused does not admit that he has been previously convicted as alleged in the charge, the Magistrate may after he has convicted the said accused under section 255. sub-section (2). or section 258. take evidence in respect of the alleged previous conviction, and shall record a finding thereon.

 

(1) If the accused refuses to plead, or does not plead or claims to be tried, he shall be required to state forthwith whether he wishes to cross-examine any, and, if so, which of the witnesses for the prosecution whose evidence has been taken. If he says that he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any) they also shall be discharged. The accused shall then be called upon to enter upon his defence, and if he puts in any written statement it shall be filed with the record.

(2) On entering upon his defence the accused shall be asked whether he desires to give evidence on his own behalf and the Magistrate shall warn him in the manner required by sub-section (1) of section 342. If the accused decides to give evidence, his evidence shall next be taken, and after his cross-examination -and re-examination (if any) the evidence of witnesses for the defence (if any) shall be taken. If the accused declines to give evidence, he shall, before the evidence of - the witnesses for the defence is taken, be examined in the manner provided by sub-section (2) of section 342.

 

(1) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the -~ purpose of vexation or delay or for defeating the ends of justice. Such ground shall be recorded by him in writing:

Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness after the charge is framed, the attendance of such witness shall not be compelled under this section. unless the Magistrate is satisfied that it is necessary for the purposes of justice.

(2) The Magistrate may, before summoning any witness on such application, require that his reasonable expenses incurred in attending for the purposes of the trial be deposited in Court.

 

(1) If in any case under this Chapter in which a charge has been framed the Magistrate finds the accused not guilty, he shall record an order of acquittal -

(2) Where in any case under this Chapter the Magistrate does not proceed in accordance with the provisions of section 349 or section 562, he shall, if he finds the accused guilty, pass sentence upon him according to law.

 

When the proceedings have been instituted upon complaint, and upon any day fixed for the hearing of the case the complainant is absent, and the offence may be lawfully compounded, or is not a cognizable offence, the Magistrate may in his discretion, notwithstanding anything, hereinbefore contained, at any time before the charge has been framed, discharge the accused.

 

(1) Notwithstanding anything contained in this Code-

may, if he or they think fit, try in a summary way all or any of the following offences

Provided that no case in which a Magistrate exercises the special powers conferred by section 34 shall be tried in a summary way.

(2) When in the course of a summary trial it appears to the Magistrate or Bench that the case is one which is of a character which renders it undesirable that it should be tried summarily, the Magistrate or Bench shall recall any witnesses who may have been examined and proceed to re-hear the case in manner provided by this Code.

 

The president of the Union may confer on any Bench of magistrates invested with the powers Of a Magistrate of the second or third class power to try summarily all or any of the following offences :-

(1) In trials under this Chapter, the procedure prescribed for summons-cases shall be followed in summons-cases, and the procedure prescribed for warrant-cases shall be followed in warrant-cases, except as hereinafter mentioned.

(2) No sentence of imprisonment for a term exceeding [six months]1 shall be passed in the case of any conviction under this Chapter.

 

In cases where no appeal lies, the Magistrate or Bench of Magistrates need not record the evidence of the witnesses or frame a formal charge but he or they shall enter in such form as the President of the Union may direct the following particulars

(1) In every case tried summarily by a Magistrate or Bench in which an appeal lies, such Magistrate or Bench shall, before passing sentence, record a judgment embodying the substance of the evidence and also the particulars mentioned in section

(2) Such judgment shall be the only record in cases coming within this section.

 

(1) Records made under section 263 and judgments recorded under section 264 shall be written or prepared by the Magistrate [* * * * ]( Note ) in the language of the Court, and shall be signed by him.

(2) The President of the Union may authorize any Bench of Magistrates empowered to try offences summarily to prepare the aforesaid record or judgment by means of an officer appointed in this behalf by the District Magistrate, and the record or judgment so prepared shall be signed by each member of the Bench present and taking part in the proceedings.

(3) If no such authorization is given, the record prepared by any member of the Bench and signed as aforesaid shall be the proper record.

(4) If the members of the Bench differ in opinion any dissentient member may write a separate judgment.

 

CHAPTER XXIII
OF TRIALS BEFORE THE HIGH COURT AND COURTS OF SESSION

A. - Preliminary

*    *    *   *      

 

All trials under this Chapter before the High Court shall be by jury and, notwithstanding anything herein contained, in all criminal cases transferred to the High Court the trial may, if the High Court so directs, be by jury

 

*     *       *      *          

                  

(1) The President of the Union may, by order in the Gazette, direct that the trial of all offences. or of any particular class of offences, before any Court of Session, shall be by jury in any district. and may revoke or alter such order.

(2) The President of the Union, by like order, may also declare that. in the case of any district in which the trial of any offence is to be by jury, the trial of such offences shall, if the Judge on application made to him or of his own motion so directs, be by jurors summoned from a special jury list, and may revoke or alter such order

(3) When the accused is charged at the same trial with several offences of which some are and some are not triable by jury, he shall be tried by jury for such of those offences as are triable by jury. and by the Court of Session [* * * * ] 1 for such of them as are not triable by jury.

 

In every trial before a Court of Session the prosecution’ shall be conducted by a Public Prosecutor.

 

(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 there