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 thereon.

 

If the accused refuses to or does not plead, or if he claims to be tried, die Court shall proceed to choose jurors (if the offence is triable by jury) as herein after directed and to try the case provided that, subject to the right of objection hereinafter mentioned, the same jury may try as many accused persons successively as the Court thinks fit.

 

(1) In trials before the High Court, when it appears to the High Court, at any time before the commencement of the trial of the person charged, that any charge or any portion thereof is clearly unsustainable, the Judge may make on the charge an entry to that effect.

(2) Such entry shall have the effect of staying proceedings upon the charge or portion of the charge, as the case may be.

 

(I) In trials before the High Court the jury shall consist of nine persons.

(2) In trials by jury before the Court of Session the jury shall consist of such uneven number, not being less than five or more than nine, as the President of the Union, by order applicable to any particular district or to any particular class of offences in that district, any direct:

Provided that, where any accused person is charged with an offence punishable with death, the jury shall consist of not less than seven persons [* * * ] 2

 

*      *       *       *

 

The jurors shall be chosen by lot from the persons summoned to act a such in such manner as the High Court may from time to time by rule direct

Provided that -

first, pending the issue under this section of rules for any Court the practice now prevailing in such Court in respect to the choosing of jurors shall be followed;

secondly, in case of a deficiency of persons summoned, the number of jurors required may, with the leave of the Court. be chosen from such persons as may be present;

thirdly, in a trial at Yangon before the High Court –

fourthly, in any district for which the President of the Union has declared that the trial of certain offences may be by special jury the jurors shall, in any case in which the Judge so directs, be chosen from the special jury list prescribed in section 325.

 

(1) As each juror is chosen, his name shall be called aloud, and upon appearance the accused shall be asked if he objects to be tried by such juror.

(2) Objection may then taken to such juror by the accused or by the prosecutor, and the grounds of objection shall be stated:

Provided that, in the High Court objection without grounds stated shall be allowed to the number of eight on behalf of the Government and eight on behalf of the person or all the persons charged.

 

 

(1) Every objection taken to a juror shall be decided by the Court, and such decision shall be recorded and be final.

(2) If the objection is allowed, the place of such juror shall be supplied by any other juror attending in obedience to a summons and chosen in manner provided by section 276. or if there is no such other juror present, then by any other person present in the Court whose name is on the list of jurors, or whom the Court considers a proper person to serve on the jury:

Provided that no objection to such 0juror or other person is taken under section 278 and allowed.

 

(1) When the jurors have been chosen, they shall appoint one of their number to be foreman.

(2) The foreman shall preside in the debates of the jury, deliver the verdict of the jury, and ask any information from the Court that is required by the jury or any of the jurors.

(3) If a majority of the jury do not, within such time as the judge thinks reasonable, agree in the appointment of a foreman, he shall be appointed by; the Court.

 

When the foreman has been appointed. the jurors shall be sworn under the Oaths Act.

 

(1) If, in the course of a trial by jury at any time before the return of the verdict, any juror, from any sufficient cause, is prevented from attending throughout the trial, or if any juror absents himself and it is not practicable to enforce his attendance, or if it appears that any juror is unable to understand the language in which the evidence is given or. when such evidence is interpreted, the language in which it is interpreted, a new juror shall be added, or the jury shall be discharged and a new jury chosen.

(2) In each of such cases the trial shall commence a new.

 

The judge may also discharge the jury whenever the prisoner becomes incapable of remaining at the bar.

 

D. - Choosing Assessors 

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*      *       *       *

*      *       *       *

 

*      *       *       *

 

E. - Trial to close of Cases for Prosecution and Defence. 

² (1) If the trial is by jury, when the jurors have been chosen, or if the trial is without a jury, when the accused has refused to plead or has claimed to be tried, the prosecutor shall open his case by reading from the Penal Code or other law the description of the offence charged and stating briefly by what evidence he expects to prove the guilt of the accused.

(2) The prosecutor shall then examine his witnesses.

 

The examination of the accused [it any] 2 duly recorded by or before the committing Magistrate shall be tendered by the prosecutor and read as evidence

 

The evidence of a witness duly recorded in the presence of the accused under Chapter XVIII may, in the discretion of the presiding Judge, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Evidence Act

 

(1) When the examination of the witness for the prosecution is concluded, the accused shall be asked whether he desires to give evidence on his own behalf and whether he means to adduce evidence and the presiding Judge shall warn the accused in the manner provided by sub-section (1) of section 342.

(2) If the accused declines to give evidence he shall be examined for the purpose of enabling him to explain any circumstances appearing in the evidence against him, unless the presiding Judge considers such examination unnecessary.

(3) If the accused declines to give evidence and states that he does not mean to adduce evidence, then after the examination (if any) of the accused is concluded the prosecutor may sum up his case, and if the Court considers that there is no evidence that the accused committed the offence it may record a finding of acquittal. or in a case tried by jury direct the jury to return a verdict of not guilty.

(4) If the accused, or any one of several accused, desires to give evidence on his own behalf or says that he means to adduce evidence, and the Court considers that there is no evidence that the accused committed the offence. It may nevertheless record a finding of acquittal, or in a case tried by jury direct the jury to return a verdict of not guilty.

(5) If the accused, or any one of several accused, says that he means to adduce evidence, and the Court considers that there is evidence that he committed the offence, or it on his saying that he does not mean to adduce evidence the prosecutor sums up his case and the Court considers that there is evidence that the accused committed the offence, the Court shall call on the accused to enter upon his defence.

 

The accused or his pleader may then open his case, stating the facts or law on which he intends to rely, and making such comments as he thinks necessary on the evidence for the prosecution. The accused shall then give evidence, if he desires to give evidence, on his own behalf, and after his examination, cross examination and re-examination (if any) he shall examine his witnesses (if any), and after their cross-examination and re-examination (if any) he may sum up his case

 

The accused shall be allowed to examine any witness not previously named by him, if such witness is in attendance but he shall not, except as provided in sections 211 and [228]’. be entitled of right to have any witness summoned, other than the witnesses named in the list delivered to the Magistrate by whom he was committed for trial.

 

The prosecutor shall be entitle to reply -

Provided that, in the case referred to in clause (c) the reply shall, unless the Court otherwise permits. be restricted to comment on the document so produced.

 

(1) Whenever the Court thinks that the jury [* *]² should view the place in which the offence charged is alleged to have been committed, or any other place in which any other transaction material to the trial is alleged to have occurred, the Court shall make an order to that effect, and the jury [* *]2 shall be conducted in a body under the care of an officer of the Court to such place which shall be shown to them by a person appointed by the Court.

(2) Such officer shall not, except with the permission of the Court suffer any other person to speak to, or hold any communication with. any of the jury [* *]2 and, unless the Court otherwise directs, they shall, when the view is finished, be immediately conducted back into Court.

 

If a juror [* *]2 is personally acquainted with any relevant fact it is his duty to inform the Judge that such is the case. Whereupon he may be sworn examined, cross-examined and re-examined in the same manner as any other 1, witness.

 

If a trial is adjourned. the jury [* *]1 shall attend at the adjourned sitting, and at every subsequent sitting, until the conclusion of the trial.

 

The High Court may, from time to time, make rules as to keeping the jury together during a trial [ * * ]1 lasting for more than one day and subject to such rules, the presiding Judge may order whether and in what manner the jurors shall be kept together under the charge of an officer of the Court. or whether they shall be allowed to return to their respective homes.

 

In cases tried by jury, when the case for the defence and the prosecutor's reply (if any) are concluded, the Court shall proceed to charge the jury, summing up the evidence for the prosecution and defence, and laying down the law by which the jury are to be guided.

 

(I) In such cases it is the duty of the Judge

(2) The Judge may, if he thinks proper, in the course of his summing up, express to the jury his opinion upon any question of fact, or upon any question of mixed law and fact, relevant to the proceeding.

Illustrations

It is the duty of the jury -

Illustrations

In cases tried by jury, after the Judge has finished his charge the jury may retire to consider their verdict.

Except with the leave of the Court, no person other than a juror shall speak to or hold any communication with any member of such jury.

 

When the jury have considered their verdict, the foreman shall inform the Judge what is their verdict, or what is the verdict of a majority.

 

If the jury are not unanimous, the Judge may require them to retire for further consideration. After such a period as the Judge considers reasonable, the jury may deliver their verdict, although they are not unanimous.

 

(1) Unless otherwise ordered by the Court, the jury shall return a verdict on all the charges on which the accused is tried, and the Judge may ask hem such questions as are necessary to ascertain what their verdict is.

(2) Such questions and the answers to them shall be recorded.

 

When by accident or mistake a wrong verdict is delivered, the jury may, before ir immediately after it is recorded, amend the verdict, and it shall stand as ultimately amended.

 

(1) When in a case tried before the High Court the jury are unanimous in their opinion, or when as many as six are of one opinion and the Judge agrees with them, the Judge shall give judgment in accordance with such opinion.

(2) When in any such case the jury are satisfied that they will not be unanimous, but six of them are of one opinion, the foreman shall so inform the Judge.

(3) If the Judge disagrees with the majority, he shall at once discharge the jury.

(4) If there are not so many as six who agree in opinion, the Judge shall, after the lapse of such time as he thinks reasonable, discharge the jury.

 

(1) When in a case tried before the Court of Session the Judge does not think it necessary to express disagreement with the verdict of the jurors or of a majority of the jurors, he shall give judgment accordingly.

(2) If the accused is acquitted, the Judge shall record judgment of acquittal. If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 562. pass sentence on him according to law.

 

(1) If in any such case the Judge disagrees with the verdict of the jurors, or of a majority of the jurors, on all or any of the charges on which any accused person has been tried, and is clearly of opinion that it is necessary for the ends of justice to submit the case in respect of such accused person to the High Court, he shall submit the case accordingly, recording the grounds of his opinion, and, when the verdict is one of acquittal, stating the offence which he considers to have been committed, and in such case, if the accused is further charged under the provisions of section 310, shall proceed to try him on such charge as if such verdict had been one of conviction.

(2) Whenever the Judge submits a case under this section, he shall not record judgment of acquittal or of conviction on may of the charges on which such accused has been tried, but he may either remand such accused to custody or admit him to bail.

(3) In dealing with the case so submitted the High Court may exercise any of the powers which it may exercise on an appeal, and subject thereto it shall, after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict such accused of any offence of which the jury could have convicted him upon the charge framed and placed before it; and, if it convicts him, may pass such sentence as might have been passed by the Court of Session.

 

Whenever the jury is discharged, the accused shall be detained in custody or on bail (as the case may be). and shall be tried by another jury unless the Judges considers that he should not be re-tried, in which case the Judge shall make an entry to that effect on the charge, and such entry shall operate as an acquittal.

 

When in a case tried without a jury the case for the defence and the prosecutor’s reply (if any) are concluded, the Judge shall give judgment, and if the accused is convicted he shall, unless he proceeds in accordance with the prov1. ions of section 562, pass sentence on the accused according to law.

 

In the case of a trial by jury, when the accused is charged with an offence and is further charged that he is by reason of a previous conviction liable o enhanced punishment or to punishment of a different kind for such subsequent ) offence, such further charge shall not be read out in Court and the accused shall not be asked to plead thereto, nor shall the same be referred to by the prosecution or any evidence adduced thereon, unless and until -

Notwithstanding anything in the last foregoing section, evidence of the previous conviction may be given at the trial for the subsequent offence, if the fact of the previous conviction is relevant under the provisions of the Evidence Act.

 

The High Court may prescribe the number of persons whose names hall be entered at any one time in the special juror’s list.
* * * *

 

(1) The Clerk of the Court shall, before the first day of April in each year, and subject to such rules’ as the High Court from time to time prescribes, prepare -

(2) Regard shall be had, in the preparation of the latter list, to the property, character and education of the persons whose names are entered therein.

(3) No person shall be entitled to have his name entered in the special juror’s list merely because he may have been entered in the special juror’s list for a previous year.

(3A) Members of either Chamber of the Union Parliament shall be exempt from serving as jurors.

(4) The President of the Union may exempt any salaried officer2 of Government from serving as a juror

(5) The Clerk of the Court shall, subject to such rules as aforesaid, have full discretion to prepare the said list as seems to him to be proper, and there sha1l be no appeal from, or review of, his decision.

 

(1) Preliminary lists of persons liable to serve as common jurors and is special jurors, respectively, signed by the Clerk of the Court, shall be published one in the Gazette before the fifteenth day of April next after their preparation.

(2) Revised lists of persons liable to serve as common jurors and special jurors, respectively, signed as aforesaid, shall be published once in the Gazette before he first day of May next after their preparation.

(3) Copies of the said lists shall be affixed to some conspicuous part of the court-house.

 

(1) Out of the persons named in the revised lists aforesaid, there shall be summoned for each sessions in Yangon as many of those who are liable to serve on special or common juries respectively as the Clerk of the Court considers necessary.

(2) No person shall be so summoned more than once in six mc unless the number cannot be made up without him.

(3) If, during the continuance of any sessions, it appears that the number of persons so summoned is not sufficient, such number as may be necessary of other persons liable to serve as aforesaid shall summoned for such sessions

 

Whenever the High Court has given notice of its intention to hold sittings at any place outside Yangon for the exercise of its original criminal jurisdiction, the Court of Session at such place shall, subject to any direction which may be given by the High Court, summon a sufficient number of jurors from its own list, in the manner hereinafter prescribed for summoning jurors to the Court of Session.

 

(1) In addition to the persons so summoned as jurors, the said Court of Session shall, if it thinks needful, after communication with the Commanding Officer, cause to be summoned such number of commissioned and non-commissioned officers in (the Myanmar)¹ Army or Air Force resident within ten miles of its place of sitting as the Court considers to be necessary to make up the juries required for the trial of persons charged with offences before the High Court as aforesaid.

(2) All officers so summoned shall be liable to serve on such juries notwithstanding anything 3ontained in this Code but no such officer shall be summoned whom his Commanding Office desires to have excused on the ground of urgent official duty, or for any other special official reason.

 

Any person summoned under section 3 15, section 3 16 or section 317, who without lawful excuse fails to attend as required by the summons, or who, having attended, departs without having obtained the permission of the Judge. or fails to attend after an adjournment of the Court after being ordered to attend, shall be deemed guilty of a contempt and be liable, by order of the Judge, to such fine as he thinks fit: and, in default of payment of such fine, to imprisonment for a term not exceeding six months in the civil jail until the fine is paid:

Provided that the Court may in its discretion remit any fine or imprisonment so imposed.

 

K. - List of Jurors for Court of Session and summoning Jurors for that Court. 

All male persons between the ages of twenty-one and sixty shall, except as next hereinafter mentioned, be liable to serve as jurors [* *]¹ at any trial held within the district in which they reside, or, if the President of the Union, consideration of local circumstances, has fixed any smaller area in this behalf within the area so fixed.

 

The following persons are exempt from liability to serve as jurors [* * ]¹namely:-

(1) The Clerk of the Court shall prepare and make out in alphabetical order a list of persons liable to serve as jurors and qualified in his judgment to serve as such and not likely to be successfully objected to under section 278, clauses (b) to (h) both inclusive.

(2) The list shall contain the name, place of abode and quality or business of every such person.

 

Copies of such list shall be stuck up [* * * *]² in the court-houses of the District Magistrate and of the District Court, and extracts there from in some conspicuous place in the town or towns in or near which the persons named in the extract reside.

 

To every such copy or extract shall be sub-joined a notice stating that -objections to the list will be heard and determined by the Sessions Judge and [District Magistrate]’ at the sessions court-house, and at a time to be mentioned in the notice.

 

(1) For the hearing of such objections the Sessions Judge shall sit with the [District Magistrate]¹ and shall, at the time and place mentioned in the notice, revise the list and hear the objections (if any) of persons interested in the amendment thereof, and shall strike out the name of any person not suitable in their judgment to serve as a juror, [* * * *]2 or who may establish his right to any exemption from service given by section 320, and insert the name of any person omitted from the list whom they deem qualified for such service.

(2) In the event of a difference of opinion between the Sessions Judge -and the [District Magistrate]¹, the name of the proposed juror [* *]¹ shall be omitted from the list.

(3) A copy of the revised list shall be signed by the Sessions Judge and [District Magistrate]’ and sent to the [Clerk of the Court]¹.

(4) Any order of the Sessions Judge and [District Magistrate]’ in preparing and revising the list shall be final.

(5) Any exemption not claimed under this section shall be deemed to be waived until the list is next revised.

(6) The list so prepared and revised shall be again revised once in every year.

(7) The list so revised shall be deemed a new list and shall be subject to all the rules hereinbefore contained as to the list originally prepared.

 

In the case of any district for which the President of the Union has declared that the trial of certain offences shall, if the Judge so direct, be by special jury, the [Clerk of the Court]¹ shall prepare, in addition to the revised list here before prescribed, a special list containing the names of such jurors as are on the revised list and are, [in his opinion]¹, by reason of their possessing super qualifications in respect of property, character or education, fit persons to serve special jurors: Provided always that the inclusion of the name of any person -such special list shall not involve the removal of his name from the revised list relieve him of his liability to serve as an ordinary juror in case not tried by Jury.

 

¹(1) The Clerk of the Court shall ordinarily at least seven days the date fixed for holding the sessions summon as many persons named in said revised list or the said special list as seem to him to be needed for trials jury at the said sessions, the number to be summoned being not less than the number required for any such trial.

(2) The names of the persons to be summoned shall be drawn by lot .n open Court, excluding those who have served within six months unless the number cannot be made up without them and the names so drawn shall be specified in the said letter.

²(3)(4) * * * *

 

The [Clerk of the Court]’ may direct jurors [* * ]² to be summoned it other periods than the period specified in section 326, when the number of trials before the Court renders the attendance of one set of jurors [* *]² for a whole session oppressive or whenever for other reasons such direction is found to e necessary.

 

Every summons to a juror [* *]² shall be in writing, and shall, require his attendance as a juror [* * * *]² at a time and place to be therein specified.

 

When any person summoned to serve as a juror [* *]² is in the service of the Government or of a Railway Administration, the Court to serve in which he is so summoned may excuse his attendance if it appears on the representation of the head of the office in which he is employed that he cannot serve as a juror [* *]² without inconvenience to the public.

 

(1) The Court of Session may for reasonable cause excuse any juror[* *]² from attendance at any particular session.

(2) The Court of Session may, if it shall think fit, at the conclusion of any trial by special jury, direct that the jurors who have served on such jury shoot be summoned to serve again as jurors for a period of twelve months.

 

(1) At each session the [Clerk of the Court]¹ shall cause to be made a list of the names of those who have attended as jurors [* *]² at such session.

(2) Such list shall be kept with the list of the jurors [* * *]¹ as revised under section 324.

(3) A reference shall be made in the margin of the said revised list to ~ach of the names which are mentioned in the list prepared under this section.

 

(1) Any person summoned to attend as a juror [* * *]¹ who without lawful excuse fails to attend as required by summons, or who, having attended, departs without having obtained the permission of the Court, or fails to attended after an adjournment of the Court after being ordered to attend, shall be liable by-order of the Court of Session to a fine not exceeding one blundered rupees.

(2) Such fine shall be levied by the District Magistrate by attachment and sale of any moveable property belonging to such juror [ * * ]¹ within the local limits of the jurisdiction of the Court making the order.

(3) For good cause shown, the Court may remit or reduce any fine so imposed.

(4) if default of recovery of the fine by attachment and sale, such juror [* *]¹ may, by order of the Court of Session, be imprisoned in the civil jail for the term of fifteen days, unless such fine is paid before the end of the said term.

 

At any stage of any trial before the High Court under this Code, befog the return of the verdict, the Attorney-General may, if he thinks fit, inform Court on behalf of [the Government]¹ that he will not further prosecute the defendant upon the charge; and thereupon all proceedings on such charge against the defendant shall be stayed, and he shall be discharged of and from the same. But such discharge shall not amount to an acquittal unless the presiding Judge other wise directs.

 

For the exercise of its original criminal jurisdiction, the High Coin, shall hold sittings on such days and at such convenient intervals as the Chief Justice of such Court from time to time appoints.

 

(1) The High Court shall hold its sittings at the place at which it now, holds them, or at such other place (if any) as the President of the Union may direct.

(2) But it may, from time to time, with the consent of the President of the Union, hold sittings at such other places within the local limits of its appellate jurisdiction as the High Court appoints.

(3). [The Clerk of the Court]2 shall give notice beforehand in the Gazette of all sittings intended to be held for the exercise of the original criminal jurisdiction of the High Court.

 

*    *    *    *  

      

(1) In the case of any offence triable exclusively by the High Court or Court of Session, or any offence punishable with imprisonment which may extend to ten years, or any offence punishable under section 211 of the Penal Code with imprisonment which may extend to seven years, or any offence under any of the following sections of the Penal Code, namely, sections 21 6A, 369, 401, 435 and 477A, the District Magistrate, a Sub-divisional Magistrate or any Magistrate of the first class may, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof;

Provided that, where the offence is under inquiry or trial, no Magistrate of the first class other than the District Magistrate shall exercise the power hereby conferred unless he is the Magistrate making the inquiry or holding the trial, where the offence is under investigation, no such Magistrate shall exercise power unless he is a Magistrate having jurisdiction in a place where the might be inquired into or tried and the sanction of the District Magistrate has been obtained to the exercise thereof

(1 A) Every Magistrate who tenders a pardon under sub-section (1) shall record his reasons for so doing [* * * ]¹.

(2) Every person accepting a tender under this section shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any.

(2 A) In every case where a person has accepted a tender of pardon and has been examined under sub-section (2), the Magistrate before whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Session or High Court, as the case may be.

(3)Such person, unless he is already on bail, shall be detained in custody until the termination of the trial.

 

At any time after commitment, but before judgment is passed, the Court to which the commitment is made may, with the view of obtaining on the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence tender, or order the committing Magistrate or the District Magistrate to tender, a pardon on the same condition to such person.

 

(1) Where a pardon has been tendered under section 337 or section 338, and the Public Prosecutor certifies that in his opinion any person who has accepted such tender has, either by willfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered, or for any other offence of which he appears to have been guilty in connection with the same matter:

Provided that such person shall not be tried jointly with any of the other accused, and that he shall be entitled to plead at such trial that he has complied with the conditions upon which such tender was made; in which case it shall be the prosecution to prove that such conditions have not been complied with.

(2) The [deposition]1 made by a person who has accepted a pardon may be given in evidence against him at such trial.

(3) No prosecution for the offence of giving false evidence in respect of such [deposition]1 shall be entertained without the sanction of the High Court.

 

( 1) The Court trying under section 339 a person who has accepted a tender of pardon shall,-

(2) If the accused does so plead, the Court shall record the plea and proceed with the trial, and the jury, or the Court [* * * * ]2 or the Magistrate, as the case may be, shall, before judgment is passed in the case, find whether or not the accused has complied with the conditions of the pardon, and, if it is found that he has so complied, the Court shall, not withstanding anything contained in this Code, pass judgment of acquittal.

 

(1) Any person accused of an offence before a criminal Court, or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader.

1(2) Any such person as aforesaid may offer himself as a witness on his own behalf at the inquiry into or trial of such offence or in such proceedings.

 

If the accused, though not insane, cannot be made to understand the proceedings, the Court may proceed with the inquiry or trial; and, in the case of a Court other than the High Court, if such inquiry results in a~commitmen4, or if such trial results in a conviction, the proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such order as it thinks fit.

 

(1) Every person accused of an offence shall be a competent Witness on his own behalf in an any inquiry into or trial of the said offence, whether person so accused is accused solely or jointly with any other person or person and his evidence may be used against any person or persons tried jointly him Provided as follows: ---

(2) (i) Notwithstanding anything contained in sub- section (1). for purpose of enabling the accused to explain any circumstances appearing evidence against him the Coury may, at stage of any inquiry or trial previously warning the accused, put such questions to him as the Court Considers necessary, and shall, when the accused declines to give evidence on his own behalf, for the purpose aforesaid, question him generally on the case the witnesses for the prosecution have been examined and before he is on for his defence.

(3) The depositi6n (if any) of the accused recorded under sub- section (2), clause (i), may be put in evidence for or against him in any other inquiry into or trial for any other offence which such deposition or such answers may tend to show he has committed.

 

Except as provided in sections 337 and 338 no influence, by means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withhold. any matter within his knowledge

 

(1) If. from the absence of a witness or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing stating the reasons therefor, from time to time, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:

Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.

(2) Every order made under this section by a Court other than the High Court shall be in writing signed by the presiding Judge or Magistrate.

Explanation. ---- If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.

 

(1) The offences punishable under the section of the Penal Code specified in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that table:

Offence	Sections of Penal Code applicable	Personos by whom offence may be compounded
Uttering words. etc.. with deliberate intent to wound the religious feelings of any person.	298	The person whose religious feelings are intended to be wounded
‘Causing hurt on grave and sudden provocation.	334	The person to whom the hurt is caused.
Wrongfully restraining or confining any person.	341, 342	The person restrained or confined.
Assault or use of criminal force	352,355,358	The person assaulted or to whom criminal force is used.
Unlawful compulsory labour	374	The person compelled to labour
Mischief when the only loss or damage caused is loss or damage to a private person.	426,427	The person to whom the loss or damage is caused
Criminal trespass House trespass	447 448	The person in possession of the property trespassed upon
Criminal breach of contract of service	491	The person, with who the offender has contracted.
Adultery Enticing or taking away of detainingwith criminal intent a married woman.	497 498	The husband of the women.
Defamation. Printing or engraving matter, knowing it to be defamatory. Sale of printed or engraved substance containing defamatory matter, knowing it to contain such matter.	500 501 502	The person defamed.
insult intended to provoke a breach of the peace.	504	The person insulted.
Criminal intimidation except when the offence is punishable with imprisonment for seven years.	506	The person intimidated.
Act caused by making a person believe that be will be an object of Divine displeasure.	508	The person against whom the offence was committed.

(2) The Offences punishable under the section of the Penal Code specified in thefirst two columns of the table next following may, with the permission of the Court before Which a prosecution for such offence is pending, be compounded by the persons mentioned in the third column of the table:

Offence	Sections of Penal Code applicable	Personos by whom offence may be compounded
1Causing hurt* * * *	323	The person to whom hurt is caused.* * * *
Voluntarily causing grievous hurt on grave and sudden provocation.	335	The person to whom hurt is caused * * * * * * * * *
Wrongfully confining a person for three days for more	343	The person confined.
Wrongfully confining a person in secret	346	Ditto
Assault or criminal force in attempting wrongfully confine a person.	357	The person assaulted or to whomThe force was used.
Dishonest misappropriation of property	403	The owner of the property misappropriated. propriated
Cheating	417	The person cheated.
Cheating a person whose interest the offender was bound by law or by legal contract, to protect.	418	Ditto
Cheating by personation	419	Ditto
Mischief by injury to work of irrigation by wrongfully diverting water, when the only loss or damage caused is loss or damage to a private person.	430	The person to whom the loss or damae is caused.
House-trespass to commit an offence (other than theft) punishable with imprisonment.	451	The person in possession of the house trespassed upon
Marrying again during the lifetime of a husband or wife.	491	The husband or wife of the person so inarrying.
Uttering words or sounds or making gestures or exhibiting any obiect intending to insult the modesty of a woman of intruding upon the privacy of a woman.	509	The woman whom it is intended to insult or whose privacy is intruded upon.

(3) When any offence is compoundable under this section, the abetment of such offence or an attempt to commit such offence (when such attempt is itself an offence) may be compounded in like manner.

(4) When the person who would otherwise be competent to compound an offence under this section is under the age of eighteen years or is an idiot or a lunatic, any person competent to contract on his behalf may with the permission of the Court compound such offence.

(5) When the accused has been committed for trial or when he has been
convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is committed, or as the case may be, before which the appeal is to be heard.

(5A) The High Court acting in the exercise of its powers of revision under section 439 may allow any person to compound any offence which he is competent to compound under this section.

(6) The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded.

(7) No offence shall be compounded except as provided by this section.

 

(1) If, in the course of an inquiry or a trial before a Magistrate in any district, the evidence appears to him to warrant a presumption that the case is one which should be tried or committed for trial by some other Magistrate in such district, he shall stay proceedings and submit the case, with a brief report explaining its nature, to any Magistrate to whom he is subordinate or to such other Magistrate, having jurisdiction, as the District Magistrate directs.

(2) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself, or refer it to any Magistrate subordinate to him having jurisdiction, or commit the accused for trial.

 

(1) If in any inquiry before a Magistrate, or in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, and if he is empowered to commit for trial, he shall commit the accused under the provisions hereinbefore contained.

(2) If such Magistrate is not empowered to commit for trial, he shall proceed under section 346.

 

(1) Whoever, having been convicted of an offence punishable under Chapter XII or Chapter XVII of the Penal Code with imprisonment for a term of three years of upward, is again accused of any offence punishable under either of those chapters with imprisonment for a term of three years of upwards, shall, if the Magistrate before whom the case is pending is satisfied that there are sufficient grounds for committing the accused, be committed to the Court of Session or High Court, as the case may be, unless the Magistrate is competent to try the case and is of opinion that he can himself pass an adequate sentence if the accused is convicted:

Provided that, if any Magistrate in the district has been invested with powers under section 30, the case may be transferred to him instead of being committed to the Court of Session.

(2) When any person is committed to the Court of Session or High Court under sub-section (1), any other person accused jointly with him in the saint inquiry or trial shall be similarly committed, unless the Magistrate discharges such other person under section 209.

 

(1) Whenever a Magistrate of the second or third class, having jurisdiction, is of opinion, after hearing the evidence for the prosecution and the accused, that the accused is guilty, and that he ought to receive a Punishment different in kind from, or more severe than, that which such Magistrate is empowered to inflict, or that he ought to be required to execute a bond under section 106, he may record the opinion and submit his proceedings, and for, ward the accused to the District Magistrate or Sub-divisional Magistrate to whom he is subordinate.

(1A) When more accused than one are being tried together and the Magistrate considers it necessary to proceed under sub-section (1) in regard to any of such accused, he shall forward all the accused who are in his opinion guilty to the District Magistrate or Sub-divisional Magistrate.

(2) The Magistrate to whom the proceedings are submitted may, if he thinks fit, examine the parties and recall and examine any witness who has already given evidence in the case and may call for and take any further evidence, and shall pass such judgment, sentence or order in the case as Le thinks fit, and as is according to law:

Provided that he shall not inflict a punishment more severe than he is empowered to inflict under sections 32 and 33.

 

(1) Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in a inquiry or a trail, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor, or partly recorded by himself; or he may re-summon the witnesses and recommence the inquiry or trial;

Provided as follows :

(2) Nothing in this section applies to cases in which proceedings have been stayed under section 346 or in which proceedings have been submitted to a superior Magistrate under section 349.

(3) When a case is transferred under provision of this Code from one Magistrate to another, the former shall be deemed to cease to exercise jurisdiction therein and to be succeeded by the latter within the meaning of subsection (1).

 

No order or judgment of a Bench of Magistrates shall be invalid by reason only of a change having occurred at any stage of the inquiry or trial in the number or Magistrates sitting on the Bench, if the Bench by which such order or judgment is passed is duly constituted under section 15 and the rules made under section 16 and the Magistrates constituting the same have been present on the Bench throughout the proceedings.

 

(1) Any person attending a criminal Court, although not under arrest or upon a summons. may be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which, from the evidence. may appear to have been committed, and may be proceeded against as though he had been arrested or summoned.

(2) When the detention takes place in the course of an inquiry under Chapters XVII or after a trial has been begun, the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard.

 

The place in which any criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed an open Court, to which the public generally may have access, so far as the same can conveniently contain them:

Provide that he presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.

 

Except as otherwise expressly provided, all evidence taken under Chapters XVIII, XX, XXI, XXII and XXIII shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader,

 

*       *      *        *         

                              

(1) In summons-cases tried before a Magistrate, and in cases of the ~ offence mentioned in sub-section (1) of section 260, clauses (b) to (m), both inclusive, when tried by a Magistrate of the first or second class, and in all proceedings under section 514 (if not in the course of a trial), the Magistrate shall make a memorandum of the substance of the evidence of each witness as the examination of the witness proceeds.

²(2) Such memorandum shall be written by the Magistrate or from his dictation in open Court, [ * * *]³ in the language of the Court [* * *]² and shall be signed by him, and shall form part of the record.

¹(3) * * * *

 

In all other trials before courts of Session and Magistrates, and in all inquiries under Chapters XII and XVIII, the evidence of each witness shall be taken down in writing in open Court, in the language of the Court [* * * ]( Note ) , by the Judge or Magistrate or from his dictation and under his personal direction and superintendence, and shall be signed by the Judge of Magistrate.

 

*       *      *        *    

                                    

In cases of the kind mentioned in section 355, the Magistrate may, if he thinks fit, take down the evidence of any witness in the manner provide in section 356.[ * * * ]¹

 

(1) Evidence taken under section 356 [ * * * ]¹ shall not ordinarily be taken down in the form of question and answer, but in the form of a narrative.

(2) The Magistrate of Sessions Judge may, in his discretion, taken down cause to be taken down, any particular question and answer.

 

(1) As the evidence of each witness taken under section 356 [* * * ]¹ is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, be corrected.

(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or Sessions Judge may, instead of correcting the evidence make a memorandum there no of the objection made to it by the witness, and shall add such remarks as he thinks necessary.

(3) If the evidence is taken down in a language different from that in which it has been given and the witness does not understand the language in which it is taken down, the evidence so take down shall be interpreted to him in the language in which it was given, or in a language which he understands.

 

(1) Whenever an evidence is given in a language not understood by the accused, and he is present in person, it shall be interpreted to him in open Court in a language understood by him.

(2) If he appears by pleader and the evidence is given in a language other than the language of the Court, and not understood by the pleader, it shall be interpreted to such pleader in that language.

(3) When documents are put in for the purpose of formal proof, it shall be in the discretion of the Court to interpret as much thereof as appears necessary.

 

*      *       *      *                

                

When a Sessions Judge or Magistrate has recorded the evidence of a witness, he shall also record such remarks (if any) as he thinks material respecting the demeanor of such witness whilst under examination.

 

(1) Whenever the accused is examined by any Magistrate [under sub section (2) of section 342]¹, or by any Court other than the High Court of such examination, including every question put to him and every answer by him, shall be recorded in full, in the language in which he is examined, or, if that is not practicable, in the language of the Court, [* * *]²; and such shall be shown or read to him, or, if he does not understand the language which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers.

(2) When the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate or Judge or such Court, and such Magistrate or Judge shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.

(3) In cases in which the examination of the accused is not recorded by the Magistrate or Judge himself, he shall be bound, as the examination proceeds, to make a memorandum thereof in the language of the Court, [ * * *]² ; and such memorandum shall be written and signed by the Magistrate or Judge with his own hand, and shall be annexed to the record. If the Magistrate of Judge is unable to makes a memorandum as above required, he shall record the reason of such inability.

(4) Nothing in this section shall be deemed to apply to the examination of an accused person under section 263.

 

The High Court shall from time to time, by general rule3. prescribe the manner in which evidence shall be taken down in cases coming before the Court, and the evidence shall be taken down in accordance with such rule.

 

(1) The judgment in every trial in any criminal Court of original jurisdiction shall be pronounced, or the substance of such judgment shall-explained:-----

Provided that the whole judgment shall be read out by the presiding Judge if he is requested so to do either by the prosecution or the defence.

(2) The accused shall, if in custody, be brought up. or, if not in custody, be required by the Court to attend to hear Judgment delivered, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted, in either or which cases it may he delivered in the presence of his pleader.

(3) Not judgment delivered by any criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof or of any commission to serve, or defect in serving on the parties r their pleaders or any them, the notice as such day and place.

(4) Nothing, in this section shall be construed to limit in any way the extent of the provisions of section 537.

 

(1) Every such judgment shall except as otherwise expressly provided by this Code, be written by the presiding officer of the Court or from the dictation of such presiding officer in the language of the Court, [* * *]( Note ) and shall contain the point or points for determination, the decision thereon and the reasons for the decision; and shall be dated and signed by the presiding officer in open Court at the time of pronouncing it, and where it is not written by the presiding officer with his own hand every page of such judgment shall be signed by him.

(2) If shall specify the offence (if any) of which, and the section of Penal Code or other law under which the accused is convicted, and the punishment to which he is sentenced.

(3) When the conviction is under the penal Code and it is doubtful under which of two section, or under which or two parts of the same section, of Code the offence falls, the Court shall distinctly express the same and judgment in the alternative.

(4) If it be a judgment of acquittal, it shall state the offence of which accused is acquitted and direct that he be set at liberty.

²(5) In trial by jury, the Court need not write a judgment, but the Court at Session shall record the heads of the charge to the jury.

(6) For the purpose of this section, an order under section 118 or section 123, sub-section (3), shall be deemed to be a judgment.

 

(1) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.

(2) No sentence of transportation shall specify the place to which the person sentenced is to be transported.

 

Save as otherwise provided by this Code or by any other law for the time being in force, [* * * *]( Note ) , no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error.

 

*      *     *    *

 

²(1) On the application of the accused a copy of the judgment shall be given to him without delay. Such copy shall , in any case other than a summons case, be given free of cost.

(2) In trials by jury in a Court of Session, a copy of the heads of the charge to the jury shall, on the application of the accused, be given to him without delay and free of cost.

(3) When the accused is sentenced to death by a Session Judge, such Judge shall further inform him of the period within which, if he wishes to appeal, his appeal should be preferred.

 

The original judgment shall be filed with the record of proceed [* * *]( Note ) .

 

In cases tried by the Court of Session, the Court shall forward a Copy of its finding and sentence (if any) to the District Magistrate within the local limits of whose jurisdiction the trial was held.

 

When the Court of Session passes sentence of death, the proceedings shall be submitted to the High Court and the sentence shall not executed unless it is confirmed by the High Court.

 

(1) If, when such proceedings are submitted, the High Court thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry of take such evidence itself, or direct it to be made of taken by the Court of Session.

(2) Such inquiry shall not be made. nor shall such evidence be taken, in the presence of jurors of assessors, and unless the High Court otherwise directs, the presence of the convicted person may be dispensed with when the same is made of taken.

(3) When the inquiry and the evidence (if any) are not made and taken by the High Court, the result of such inquiry and the evidence shall by certified to such Court.

 

In any case submitted under section 374.[ * * *]¹ the High Court

Provide that no order of confirmation shall be made under this section until the period allowed for preferring an appeal has expired, or if an appeal is presented within such period, until such appeal is deposed of.

 

In every case so submitted, the confirmation of the sentence or any new sentence or order passed by the Height Court shall be made, passed and signed by at least two the Judges of the Court.

 

When any such case in heard before a Bench of Judges and such Judges are equally divided on opinion, the case, with their opinion thereon shall be laid before another Judge, and such Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion.

 

In case submitted by the Court of Session to the High Court for the confirmation of a sentence of death, the proper officer of the High Court shall without delay, after the order of confirmation or other order has been made by the High Court, send a copy of the order under the seal of the High Court and attested with his official signature to the Court of Session.

 

*    *      *      *

 

When a sentence of death passed by a Court of Session is submit to the High Court for confirmation, such Court of Session shall, on receiving the order of confirmation, or other order of the High Court thereon, cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary.

 

If a woman sentenced to death is found to be pregnant, the High Court shall order the execution of the sentence to be postponed, and may, if it thinks fit, commute the sentence to transportation for life.

 

Where the accused is sentenced to transportation or imprisonment in cases other than those provided for by section 381, the Court passing the sentence shall forthwith forward a warrant to the jail in which he is, or is to be, confined, and, unless the accused is already confined in such jail, shall forward him to such jail, with the warrant.

 

Every warrant for the execution of a sentence of imprisonment shall be directed to the officer in change of the jail, or other place in which the prisoner is, or is to be, confined.

 

When the prisoner is to be confined in a jail, the warrant shall be lodged with the jailor.

 

(1) Whenever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-

Provided that. if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless for special reason to be recorded in writing it considers that the offender is able to pay the whole or some part of the fine.

(2) The President of the Union may make rules regulating the manner in which warrant under sub-section (1), clause (a), are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.

(3) Where the Courts issue a warrant to the Collector under sub-section (1), clause (b), such warrant shall be deemed to be a decree, and the Collector to be the decree-holder, within the meaning of the Code of Civil Procedure, and the nearest civil Court by which any decree for a like amount could be executed shall, for the purposes of the said Code, be deemed to be the Court which passed the decree, and all the provision of that Code as to execution of decrees shall apply accordingly:

Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.

²(4) Nothing in this section shall affect the provisions of section 388.

 

A warrant issued under section 386, sub-section (1), clause (a), by any Court may be executed within the local limits of the jurisdiction of such Court, and it shall authorize the attachment and sale of any such property without such limits, when endorsed by the District Magistrate within the local limits of whose jurisdiction such property is found.

 

(1) When an offender has been sentenced to fine only [or to fine in addition to a sentence of imprisonment till the rising of the Court]¹ and to imprisonment in default of payment of the fine, and the fine is not paid forthwith Court may

(2) The provisions of sub-section (1) shall be applicable also in any case in which an order for the payment of money has been made on non recovery of which imprisonment may be awarded and the money is not paid forthwith ; and, if the person against whom the order has been made, on being required to enter into a bond such as is referred to in that subsection, fails to do so, the Court may at once pass sentence of imprisonment.

 

Every warrant for the execution of any sentence may be issued either by the Judge or Magistrate who passed the sentence, or by his successor in office.

 

When the accused is sentenced to whipping only, the sentence shall, subject to the provisions of section 391. be executed at such place and time as the Court may direct.

 

(1) When the accused-------

(2) The whipping shall be inflicted in the presence of the officer in charge of the jail, unless the Judge or Magistrate orders it to be inflicted in his own presence.

¹(3) * * * *

 

(1) In the case of a person of or over sixteen years of age whipping shall be inflicted with a light rattan not less than half an inch in diameter, in such I mode, and on such part of the person, as the President of the Union directs ; and, in the case of a person under sixteen years of age it shall be inflicted in such mode, and on such part of the person, and with such instruments, as the President of the Union directs.

(2) In no case shall such punishment exceed thirty stripes and, in the case of a person under sixteen years of age. it shall not exceed fifteen stripes.

 

No sentence of whipping shall be executed by installment and none of the following persons shall be punishable with whipping, namely:

Provided that a male sentenced to imprisonment for a period exceeding five but not exceeding seven years shall be punishable with whipping under the Whipping Act:

(1) The punishment of whipping shall not be inflicted unless a medical officer, if present. certifies, or. if there is not a medical office present, unless it appears to the Magistrate or officer present, that the offender is in a fit State of health to undergo such punishment.

(2) If. during the execution of a sentence of whipping, a medical officer certifies, or it appears to the Magistrate or officer present, that the offender is not in a fit state of health to undergo the remainder of the sentence, the whipping shall be finally stopped.

 

(1) In any case in which, under section 394. a sentence of whipping is wholly or partially prevented from being executed, the offender shall be kept in custody till the Court which passed the sentence can revise it and the said Court may, at its discretion, either remit such sentence, or sentence the offender in lieu of whipping, or in lieu of so much of the sentence of whipping as was not executed to imprisonment for any term not exceeding twelve months or to a fine not exceeding five hundred rupees, which may be in addition to any other punishment to which he may have been sentenced for the same offence.

 

When sentence is passed under this Code on an escaped convict, such sentence, it of death, fine or whipping, shall, subject to the provisions herein before contained, take effect immediately, and if of imprisonment [** * ]( Note ) or transportation shall take effect after he has suffered imprisonment [* * *]( Note ) or transportation as the case may be for a further period equal to that which at the time of his escape remained unexpired of his former sentence.

 

When a person already undergoing a sentence of imprisonment [* *]( Note ) or transportation is again sentenced to imprisonment [**]( Note ) or transportation such subsequent imprisonment [* *]( Note ) or transportation shall commence at the expiration of the imprisonment [** ]²or transportation to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence.

Explanation,---- An order committing a person to prison under section 123 is not a sentence of imprisonment.

 

(1) Nothing in section 396 or section 397 shall be held to excuse any person from any part of punishment to which he is liable upon his former or subsequent conviction.

(2) When an award of imprisonment in default of payment of a fine is annexed to a substantive sentence of imprisonment, or to a sentence of transportation [* * *] ( Note ) and the person undergoing the sentence is after its execution to undergo a further substantive sentence, or further substantive sentences, of imprisonment [or transportation]2 effect shall not be given to the award of imprisonment in default of payment of the fine until the person has undergone the further sentence or sentences.

 

*      *     *     *    

 

When a sentence has been fully executed, the officer executing it shall ,f return the warrant to the Court from which it issued, with an endorsement under his hand certifying the manner in which the sentence has been executed.

 

(1) When any person has been sentenced to punishment for an offence, the President of the Union may at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced

(2) Whenever an application is made to the President of the Union for the suspension or remission of a sentence, the President of the Union may require the presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion, and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.

(3) If any condition on which a sentence has been suspended or remitted in the opinion of the President of Union, not fulfilled, the President of the Union may cancel the suspension or remission, and there upon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by police-officer without warrant remanded to undergo the unexpired portion of sentence.

(4) The condition on which a sentence is suspended or remitted under section may be one to be fulfilled by the person in whose favour the sentence suspended or remitted, or one independent of his will.

(4A) The provisions of the above sub-sections shall also apply to any passed by a criminal Court under any section of this Code or of any oilier law, which restricts the liberty of any person or imposes any liability upon him or property.

(5) Nothing herein contained shall be deemed to interfere with the right [*** ]( Note ) of the President of the Union [* * * ]( Note ) to grant pardons, reprieves respites or remissions of punishment.

(5A) Where a conditional pardon is granted [* * * *]( Note ) by the President of the Union any condition thereby imposed, of whatever nature, shall be deemed to have been imposed by a sentence of a competent Court under this Code and shall be enforceable accordingly.

(6) The President of the Union may, by general rules2 or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with.

 

(1) The President of the Union may, without the consent of the person sentenced, commute any one of the following sentences for any other mentioned after it.------

death, transportation. [* * *]( Note ) rigorous imprisonment for a term not exceeding that to which he might have been sentenced, simple imprisonment for a like term fine.

(2) Nothing in this section shall affect the provisions of section 54 or section 55 of the Penal Code.

 

(1) A Person who has once tried by a Court of competed jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offend, nor on the same facts for any other offence for which a different charged from the one made against him might have been made under section 236, or which he might have been convicted under section 237.

(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, sub-section (1).

(3) A person convicted of any offence constituted by any act causing consequences which, together which such act, constituted a different offence from that of which he was convicted may be afterwards tried for such last-mentioned offence, if the consequences had not happened, or were not known to the Court to have happened at the time when he was convicted.

(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with , which he is subsequently charged.

(5) Nothing in this section shall affect the provisions of the Burma General. Clauses Act or section 188 of this Code.

Explanation, --- The dismissal of a complaint, the stopping of proceedii1 under section 249, the discharge of the accused or any entry made upon charge under section 273, is not an acquittal for the purposes of this section.

Illustration.

(a) A is tried upon a charge of theft as a servant and acquitted. He cannot afterward, while the acquittal remains in force, be charged with theft as a servant, or upon the same facts with theft simply, or with criminal breach of trust

(b) A is tried upon a charge of murder and acquitted. There is no charge of robbery ; but appears it from the facts that A Committed robbery at the time when the murder was committed ; he may afterwards be charged with, and tried for, robbery.

(c) A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried again for culpable homicide.

(d) A is charged before the Court of Session and convicted of the culpable homicide of B. A may not afterwards be tried on the same facts for the murder of B.

(e) A is charged by a Magistrate of the first class with, and convicted by him of voluntarily causing hurt to B. A may not afterwards be tried for voluntarily causing grievous hurt to B on the same facts, unless the case comes within paragraph 3 of the section

(f) A is charged by Magistrate of the second class with, and convicted by him of, theft of property from the person of B.A may be subsequently charged with, and tried for, robbery on the same facts.

(g) A,B and C are charged by a Magistrate of the first withes, and convicted by him of, robbing D. A, B and C may afterwards be charged with, and tried for, dacoit on the same facts.